Obama’s Latest Executive Order: Something Else That’s Unconstitutional

The use of the executive order by the presidents is by no means new, nor are they immune from controversy. President Obama’s most recent executive order is easily categorized as a “controversial” one.

The executive order—more specifically titled “Assignment of National Security and Emergency Preparedness Communications Functions”—may be summarized as the President desiring the Federal government to take more control over various means of communication, so that the Federal government may communicate effectively in times of danger, crisis, or necessity. As the executive order reads “The Federal Government must have the ability to communicate at all times and under all circumstances to carry out its most critical and time sensitive missions. Survivable, resilient, enduring, and effective communications, both domestic and international, are essential to enable the executive branch to communicate within itself and with: the legislative and judicial branches; State, local, territorial, and tribal governments; private sector entities; and the public, allies, and other nations. Such communications must be possible under all circumstances to ensure national security, effectively manage emergencies, and improve national resilience.”

To some, there may be nothing wrong with this, on the surface. The justification for such actions—which are seemingly abstract—are to inform the public. “Such informing would be only when necessary,” thinks the person faithful in the government. Or would it?

In regards to the executive order, there are several reasons for its being both unconstitutional and wrong. Before these are shown, it is necessary to understand what the contents of the executive order mean.

While the orders may be, as previously noted, abstract, they equate to a single measure—further government control of television, radio, and very likely the internet. All of the control would be justified in the name of the Federal government’s “need” to communicate with, interpreting from the order, everyone in the world, using all means possible, and at any moment.

At the most fundamental level, this is not what an executive order should be used for. In fact, the Constitution does not explicitly give provisions for executive orders, in the sense of a direct mention. But, presidents have used Article II, Section 1, Clause 1 of the Constitution to justify their use of executive orders, arguing the logic that it is the duty of the president to follow their presidential duty.

But what is the president’s duty, according to the Constitution?  Contrary to what some may think, it is not his duty to rob and disarm the populace, silence opposition, abuse private property, and generally behave in a manner that would leave Gaddafi in silent admiration. Rather, the duty of the president is stated in the oath he must take “… I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Since it has been established that ensuring the Federal government follows the Constitution—apart from his own actions being in line with the Constitution—then one must question if President Obama’s executive order is concurrent with the Constitution. From what was established, in the way of the order’s true nature, it certainly is not. The Constitution denotes the explicit purpose of the government as to protect the citizens’ rights (i.e. natural rights), protect the nation from foreign enemies, and guard the borders. There is no provision for control of property or mediums of communication.

In another sense, there is a philosophical problem with the executive order. When one reads the order, one does not find any acknowledgement of the concept of private property. Yet it is not surprising, when the same Federal government requires broadcasters to attain licenses from the Federal Communications Commission. In other words, it is already assumed that the government “owns” the airwaves. And where does this justification come from? Obviously, not from the Constitution. Therefore, it is evident that, going from the reasoning used, the Federal government may declare anything else their property. The doctrine of natural rights (from the philosophy of John Locke) written into the Constitution specifically views property as an irrevocable, God-given right. Not only is this right invoked, but one may also argue—and very justly—that President Obama’s executive order violates freedom of speech.

There is a final argument against this executive order, though I find it to somewhat missing the true subject. That being said, it does provide a semi-valid argument.

Let us suppose, for a moment, that a “disaster” was to befall the United States. This “disaster” could be a terrorist attack, a launch of nuclear missiles, or any other scenario possible to the connoisseurs of “what if?”  Saying that such would happen, various governmental agencies would undoubtedly release their own press releases and notify the media. Not counting the government’s own announcements, is there any doubt that private radio stations and television channels would not relay such information to their viewers?  It doesn’t require deep analysis to conclude that ESPN would interrupt a sports game, the History Channel would impede upon a show about Southerners or conspiracy theories, or TV Land would arrest The Andy Griffith Show? Does any rational person think that PBS would not put on news of such an emergency while Antiques Roadshow is on?  Of course they would, in the event of something so important.

Throughout the last one hundred years in America, many things have been called rights. Many have argued that it owning a home or having a job is a “right,” or that there is a “right” to the property of others. Life, liberty, and property are the only true rights, and it was upon these precepts that our republic was built. Now, in an age where we appear close to spiraling into tyranny, these sacred rights are again being abused. We must remember two things. First, that these rights are inherent and cannot be removed or revoked. Second, that government is not God.

Liberty, at least in the case of the United States, will not be lost blatantly, but clandestinely. Not only will it be lost, in my opinion, in such a manner, but also by the idea that something good is being done. In a sense, a loss of liberty would be accepting the idea that would be something positive—it would be right, “constitutional,” good for the public, just, etc. President Obama’s latest executive order is continuing this trend of attempting to destroy liberty in a covert manner.

Christian Lopac | Wabash College | @CLopac

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12 Responses

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  1. Maureen Curtin
    Feb 23, 2014 - 11:54 AM

    For those commenting on how this executive order, I would like them to consider that this is not the only unconstitutional executive order President Obama has issued. He has issued multiple executive orders (example: the one on the Dream Act, those altering the Affordable Care Act, among others) that change or ignore the law. For an individual whom claimed to be a “constitutional expert” he really does not seem to have any grasp of the authority of the executive branch. The constitution was written limiting the powers of each branch for a reason. We are seeing an example of that reason right now. The executive branch is not given the power to make or alter laws. The people need to stand up and say enough.
    Everyone has a right to free expression of their opinion. And I respect the right of those that commented to have their own beliefs. I just hope everyone will try to investigate and find the facts when forming their opinions.
    There is a quote I always liked attributed to Winston Churchill “courage is what it takes to stand up and speak; courage is what it also takes to sit down and listen.” We all need the courage to do both and we need to respect each others opinions, whether we agree with them or not.
    We, also, must all, including presidents, accept the responsibility for our own actions. We cannot defend what we do by what others before us have done. Rod Balagojevich, the former Illinois Governor, tried to use the “business as usual” defense in his corruption trail. It that the standard we want our representatives, in any office, to have.

  2. Eric Pearson
    Jun 21, 2013 - 08:30 AM

    It is only unconstitutional if they are written to be laws, for only congress can make laws according to the Constitution of the United States.

    Please see A Comprehensive List Of The Worst Executive Orders at: http://www.militianews.com/a-comprehensive-list-of-the-worst-executive-orders/

  3. Kevin
    Oct 17, 2012 - 02:48 PM


    I can appreciate what you are saying, to a degree. No Executive Order can influence control over the general public, and if is attempts to it can be declared unconstitutional by Congress, which has been done.

    Additionally, you may recall a little dust up we call 9/11? In that tragedy all levels of government and emergency services discovered that there was a glaring communication issue; they couldn’t do so effectively, for many reasons.

    I think thats more important that can happen in a 9/11 scenario than you being able to text your girlfriend, don’t you?

    • Jay
      Jan 14, 2013 - 08:41 PM

      The Communication Issue was created by Clinton and his mass de-funding campaign….Also Clinton signed a bill into law making Regime Change in Iraq perfectly legal back in 1998 I think it was look it up….

  4. Bryan
    Jul 12, 2012 - 12:11 AM

    Before you talk about constitutional, please refer to our previous president starting 2 illegal wars…

    • jlkjr54@yahoo.com
      Jul 12, 2012 - 02:30 PM

      Bryan,please explain how the 2 wars are illegal? Then when you get done with that explain why Obama did not just stop the wars,bring the troops home ,if the wars as you say are illegal? Most important,Congress overwhelmiungly voted to go to war,by both the House and Senate,that by the Constitution makes them legal.

      • Bob
        Aug 25, 2012 - 08:46 PM

        Which is ironic since Obama violated the War Powers Act and not a single damn Democratic shed a tear. So, for the Dems who cry at each ‘illegal’ war, you have lost ALL credibility…. if you had any left after Bill “It depends on what the meaning of the word is is ” Clinton.

      • Kevin
        Oct 17, 2012 - 02:38 PM

        Do your research. Congress never declared war; that hasn’t been done since WWII. They voted on a resolution that allowed Bush to use the military IF Iraq continued to defy the UN sanctions AND was a direct threat to the US. One of those was never proven, he simply wanted to go to war. Additionally, that “overwhelming” vote you speak of? Republicans voted 215 to 6 Yes, that’s 215 of the 297 yes votes. When people speak of the war being illegal, they are referring to the fact that technically congress is supposed to declare war, which did not happen.

        That they voted on a RESOLUTION does not make the war legal. It makes it legal that the Little Bush decided to use force. There is a difference if you knew the constitution and what led to the use of force. If you read the resolution, it can easily be argued that he violated that resolution. Oh wait it was, but idiots like you try to drown it out with non-facts.

        To your other question, he is bring troops home. While he may not agree with Bush’s dumb war, anyone with a brain knows you can’t just leave in a day and say “sorry we came and jacked your country up now fix it yourself”….you sound like the typical Republican jackass….

      • Jay
        Jan 14, 2013 - 08:39 PM

        For the sake of argument I will say that Bush somehow started two wars and he violated the constitution….How does it make right for Obama to do the same….Do two wrongs make a right now adays…

      • Richard
        Dec 31, 2015 - 07:58 AM

        For a war to be legal, it must first be declared by congress. Congress has not declared war since WW2. Every war America has been involved in since then has not been a legally declared war. From Korea to the present, every war has been an illegal war not declared by congress.
        Another problem is the fact that everyone considers Obama to be the commander in chief. The president does not become commander in chief until an official declaration of war by congress. There has not been a commander in chief since WW2 because there has not been an officially declared by congress war since then.

    • bill
      Jul 12, 2012 - 07:44 PM

      you must be an IDIOT



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