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Executive Order: National Defense Resources Preparedness

On March 16th, the White House released the National Defense Resources Preparedness executive order. Since then, numerous headlines have railed against this executive order, saying it allows the President to control all U.S resources, and that it establishes peacetime martial law. The truth is, when you look at the facts and the history surrounding this executive order, it’s an update of a similar document that’s been around since 1950 stating certain responsibilities of cabinet members involving national defense.

This executive order connects directly with the Defense Production Act of 1950, which was made law under President Truman after the start of the Korean War. This act authorizes the President to:

a) “require businesses to sign contracts or fulfill orders deemed necessary for national defense,
b) establish mechanisms (such as regulations, orders, or agencies) to allocate materials, services, and facilities to promote national defense,
c) control the civilian economy so that scarce and/or critical materials necessary to the national defense effort are available for defense needs.”

Basically, the Defense Production Act, “confers upon the President authority to force private industry to give priority to defense and homeland security contracts and to allocate the resources needed.” Obama’s latest executive order states in section 101 that, “this order delegates authorities and addresses national defense resource policies and programs under the Defense Production Act of 1950.” Nearly every President has enacted similar executive orders since Truman, so the concept of a national defense preparedness executive order is nothing new. It closely resembles Executive Order 12919, enacted by President Bill Clinton in 1994. These orders are almost exactly alike, and both note that the order is applicable to ensure a prepared national defense “in peacetime and in times of national emergency.”

There are two sections of Obama’s recently released executive order that bear the most weight of the entire document, and these sections reveal the most about the intent of the document itself. Section 103 lists five specific assignments to “executive departments and agencies responsible for plans and programs relating to national defense.” These departments and agencies are assigned to:

a) identify requirements for the full spectrum of emergencies, including essential military and civilian demand
b) assess the capability of the domestic industrial and technological base
c) be prepared, in the event of a potential threat to the security of the United States, to take actions necessary to ensure the availability of adequate resources and production capability
d) improve the efficiency and responsiveness of the domestic industrial base to support national defense requirements
e) foster cooperation between the defense and commercial sectors

Nowhere in these five responsibilities appears to be a direct hand-over of American resources to the executive branch or any agency thereof. As Ed Morrissey of HotAir points out, the words identify, assess, be prepared, improve, and foster cooperation do not “claim authority to seize private property and place them at the personal disposal of Obama.”

Section 201, if taken out of context, could lead one to assume that this executive order allows for executive control over all US resources, but it actually delegates, “the authority of the President…to require acceptance and priority performance of contracts or orders (other than contracts of employment) to promote the national defense of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the nation defense.” The secretaries of Agriculture, Energy, Health and Human Services, Transportation, Defense, and Commerce are delegated this authority to require acceptance and priority performance of contracts and orders involving certain resources.

Just as the Defense Production Act gives the President the authorities to “prioritize and force contracts,” this executive order gives the secretaries of executive agencies the authorities to prioritize and force contracts involving certain resources that may be necessary, in their judgment, to promote the national defense.

When you look at the facts, this specific executive order doesn’t seem to elicit a government takeover of resources as originally thought. It’s not a blatant power grab by the executive branch. It could be argued, though, that the very concept of executive orders provides an opportunity for the executive branch to expand its power gradually, allowing the executive to, in essence, “make laws” when that power is constitutionally reserved to Congress.

The executive order issued by President Obama last Friday doesn’t spell a total usurpation of America’s resources, but it’s not something to be shrugged off as unimportant, either. This executive order is not the first of its kind, nor will it likely be the last. But the question remains whether or not this executive order lays the foundation for future executive “power grabs.”

Sarah Hinds :: Webster University :: Saint Louis, Missouri :: @Sarah_Hinds76

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16 Responses

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  1. O
    Mar 23, 2012 - 08:03 PM

    Wow. Forgive them for they know not what they do. See you in a work camp. It is unfortunate that your youthful naievité is preventing you from seeing any truths. Ignorance is bliss, ask any german who was an adult in 1941.

    • Anthony Fennell
      Jul 14, 2012 - 01:04 AM

      youthful what? we tried to get Ron Paul Nominated you old coot!

      • Valya
        Apr 02, 2013 - 07:49 PM

        trying to claim getting Ron Paul nominated as your nullification of any youthful naivete is a bit of an odd attempt don’t you think? That naive move guaranteed the re-election of Obama. I can’t find a single reason why it didn’t. Instead of working hard at getting the vote out for the guy that ended up winning the nomination, people voted third party, allowed lie after lie to ride about Romney, fostered new ones to get Paul elected, and the rest just got fed up and stayed at HOME! And I’m pretty young well, I’m somewhere in the middle of voter young,… This Executive Order and it’s implications are not to be trifled with, and any attempt to patronize those of us who are clearly able to read, and know what would be going on if GWB had even made an announcement that he was considering signing something like this, and we would all have a better idea of what would be really going on today.

  2. Joseph Klein
    Mar 19, 2012 - 10:35 PM

    Sometimes you have to look a little more carefully to understand what is going on here, particularly in the context of the last three years of presidential power overreach by President Obama.

    Defense Production Act: the president’s authority “may not be used to require priority performance of contracts or orders, or to control the distribution of any supplies of materials, services, and facilities in the marketplace, unless the President finds that—

    (A) such materials, services, and facilities are scarce, critical, and essential—
    (i) to maintain or expand exploration, production, refining, transportation;
    (ii) to conserve energy supplies; or
    (iii) to construct or maintain energy facilities; and

    (B) maintenance or expansion of exploration, production, refining, transportation, or conservation of energy supplies or the construction and maintenance of energy facilities cannot reasonably be accomplished without exercising the authority specified in paragraph (1) of this subsection.”

    Clinton’s 1994 Executive Order:

    “Sec. 203. Maximizing Domestic Energy Supplies. The
    authority of the President to perform the functions provided
    by subsection 101(c) of the Act is delegated to the Secretary
    of Commerce, who shall redelegate to the Secretary of Energy
    the authority to make the findings described in subsection
    101(c)(2)(A) that the materials (including equipment), services,
    and facilities are critical and essential. The Secretary of
    Commerce shall make the finding described in subsection
    101(c)(2)(A) of the Act that the materials (including equipment),
    services, or facilities are scarce, and the finding described in
    subsection 101(c)(2)(B) that it is necessary to use the authority
    provided by subsection 101(c)(1).”

    Obama’s Executive Order:

    “Sec. 203. Maximizing Domestic Energy Supplies. The authorities of the President under section 101(c)(1) (2) of the Act, 50 U.S.C. App. 2071(c)(1) (2), are delegated to the Secretary of Commerce, with the exception that the authority to make findings that materials (including equipment), services, and facilities are critical and essential, as described in section 101(c)(2)(A) of the Act, 50 U.S.C. App. 2071(c)(2)(A), is delegated to the Secretary of Energy.”

    That’s hardly verbatim – some key findings required by the statute and cited in Clinton’s order are deliberately left out of Obama’s order such as the finding of scarcity and that it is necessary to use the authority provided by subsection 101(c)(1) of the Defense Production Act

  3. NavySubGuy668
    Mar 19, 2012 - 07:41 PM

    Be it a renewal or not, by what right does the federal government have to commandeer private resources? I can’t seem to lay my finger on the article on the Constitution that authorizes that. The President’s job is to uphold, protect, and defend the Constitution. His job is to protect our God-given unalienable rights. I think we’re asking the wrong questions on this.

    The first big question is why is this necessary in this day and age? This amounts to a World War II nationalizing of the private sector. What possible threat today would require all of this?

    The second big question is, why this now? What prompted this executive order if the Defense Production Act of 1950 already covered it or Pres. Clinton’s 1994 E.O. already covered it? I think if we are going to so readily hand over our freedom to control our businesses and farms so easily we ought to at least demand a reason from our President.

    • Jim Buba
      Jul 05, 2012 - 08:11 PM

      This un-numbered E.O. updates the previous orders to the same topic relative to the Act. Passed by Congress under Truman, the Act is designed to ensure that the Defense of the Nation is held in the highest esteem, eliminating discord by fiat in the event of invocation of the authority herein named by the President, unto the President but restricted by Declaration by Congress.

      Quickly undone by Democrats at all juncture, the expansion of powers under Clinton included FEMA for the first time, and under this guise, FEMA has used the authority illegally to construct the Fusion Camp system. Authority thereunder is conveniently found under direction of the FCC to guarantee emergency communications between government elements isolated by fracas, incursion, invasion and severance of alternative communications where-in unrest has caused a crippling thereunto.

      Bill Clinton 12656.

      Odd that sec 804 remains intact, perhaps an oversight. Most unsettling here is the phrases that eliminate the need for Congress to Declare to make the Authority cited a bonafide stretch.

      This re-write includes DHS, where none was made before.

  4. The Jimmy Z Show
    Mar 19, 2012 - 02:05 PM

    Thank you for getting down to the truth here. As a conservative, I’ve become more and more distressed by the ‘fear mongering’ that goes on at some hysterical blog sites. Some of these issues demand more than a simple ‘share’ on Facebook from one of the many “The End Is Coming” sites. One has to put things in context, like you and Ed Morrissey have done. Thanks for thinking. I’m a big fan of your website.



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