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Thursday, April 12, 2012

Constitutional Issues Concerning the National Defense Resources Preparedness Executive Order

Read the following news coverage of a new executive order by President Obama:


The executiv order, as read in the title of this post, is the "National Defense Resource Preparedness Executive Order.
According to this news article,

"The newExecutive Order states that the president and his secretaries have the authority to commandeer all U.S. domestic resources, including food and water, as well as seize all energy and transportation infrastructure inside the borders of the United States. The Government can also forcibly draft U.S. citizens into the military and force U.S. citizens to fulfill 'labor requirements' for the purposes of 'national defense.'"

If this be true, there are a few constitutional issues with this executive order.  First, the law that backs up the executive order is the Defense Production Act of 1950.  Executive orders must be based in congressionally passed law first and foremost, before they have any binding authority.  Else-wise the executive branch would become a law making branch unto itself, which power is given specifically to Congress via Article 1, Section 1 of the Constitution.  If the president can use executive orders to essentially create new laws that govern all the people of the country and not just the executive branch, then there is no separation and balance of powers between the three governmental branches.  Indeed, the executive act states:

"By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.), and section 301 of title 3, United States Code, and as Commander in Chief of the Armed Forces of the United States, it is hereby ordered as follows..."

Thus, the President is citing congressional law as at least one of the sources for the authority to do the things explained in this executive order.  There are a few problems with the President citing the Commander in Chief clause of Article II of the Constitution, but more will be said on that later.  

But what remains to be determined is whether Congress has the constitutional ability to A.) seize property that belongs to the states (the domestic resources and energy and transportation infrastructure and maintain America's system of federalism, and B.) whether Congress can delegate its power to seize private property with just compensation for the public use to the executive branch.  From the article, it seems as if the President and the executive branch is asserting that it can automatically seize control and ownership of private property in the form of water and food resources, as well as energy and transportation infrastructures via the Defense Production Act.  But can Congress truly delegate its sole authority of eminent domain to another separate but co-equal branch of the government, in this case, the executive, to be exercised at the will of the executive branch and the President?  Our constitutional system seems to indicate that it cannot, indeed, as seen in Youngstown Sheet and Tube Co. v. Sawyer (1952), which says that Congress cannot delegate its lawmaking authority to another branch of government.  If Congress cannot delegate its lawmaking authority to the executive, then it cannot delegate the authority of eminent domain to the executive branch to be exercised at the will of the executive, because eminent domain is lawmaking.  More will be said concerning Youngstown later.  For that is what seizing private property is, is lawmaking, as described in Youngstown.  Thus, if the Defense Production Act gives the executive branch the authority to seize domestic resources and energy and transportation infrastructures within the U.S., then it seems that Congress have delegated its Eminent Domain authority to the executive, one of its law making powers, and this law would be thus be unconstitutional.  Congress can allow executive agencies to regulate domestic resources and energy and transportation infrastructures via congressional law, in that the executive agencies become the ones to execute the laws passed by Congress, but Congress cannot delegate one of its lawmaking powers to the executive branch.

Secondly, the authority of the government to seize and control domestic resources, as well as energy and transportation infrastructure within U.S. borders, throws the balance of federalism between the states and the national government completely out the window.  Since when can the national government seize anything that belongs to the states, specifically property-wise, like resources, energy, and transportation infrastructures like roads and such?  Those things belong to each respective state, and Congress alone has authority to regulate the commerce between the states and the national waterways, including the ocean, not the executive branch, as stated under the Commerce Clause in Article 1, section 8 of the Constitution.  Congress cannot delegate this authority to the executive branch without violating the separation and balance of powers established in the Constitution.  It can give the power to oversee such regulations laid out by Congress to the executive branch, to be sure, as it has, but the executive branch cannot make new rules concerning the national waterways and commerce between the states, nor can it seize domestic resources and energy and transportation infrastructures within U.S. borders without Congress's approval first.  Congress alone, via the 5th Amendment can take private property; and even then, Congress may not seize any private property for national use without just compensation.  This leads into the next constitutional issue regarding this executive order.

Thirdly, as described briefly before, the power to taking private property, such as is at least some energy infrastructure in the U.S., as well as domestic resources like food and water, is given solely to Congress via the 5th Amendment.  The asserted power of the executive branch to seize these things and bring them under the control and ownership of the executive branch seems to disagree with the Supreme Court ruling in 1952 case of Youngstown Sheet and Tube Co. v. Sawyer.  In Youngstown, the President tried to have the executive branch seize production facilities of steel in the U.S. because of strikes at the plants nationwide which temporarily shut down production.  The Supreme Court ruled that the president does not have authority under his title of Commander in Chief to seize and operate the steel mills of the nation, even during times of war, and that such results in lawmaking.  And as such, this power belongs solely to Congress, which must give just compensation when seizing private property for the public use.  Justice Black, who wrote the majority opinion, said the following in the Youngstown ruling:

"Even though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forced Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.  In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.  The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.  And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.  It [Congress] can authorize the taking of private property for public use.  The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.  The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times."

Like Youngstown, the President is asserting authority of the executive branch to seize private property or the property of each respective state, and as such, he and the executive branch is seeking to make law, which authority belongs solely to Congress, and thus is disrupting not only the system of federalism, but the balance of powers between the legislative and executive branch as laid out in the Constitution, and reestablished in Youngstown.  The President had asserted authority to seize these things described in the executive order due to his being the Commander in Chief.  But Youngstown specifically says that the President, as the Commander in Chief, cannot assert authority to seize and operate private property under the arm of the executive branch because such is lawmaking and belongs solely to Congress.  Thus, there is another constitutional issue regarding President Obama asserting such authority as is expressed in the executive order by way of his being Commander in Chief.

Fourthly, the authority of the executive branch to "force U.S. citizens to fulfill 'labor requirements' for the purposes of 'national defense'" is akin to slavery, or involuntary servitude, which is outlawed in the United States via the 13th Amendment, which says: 

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

These are the constitutional arguments against this executive order, if the accusations against it and descriptions of it, made by the Huffington Post, are indeed accurate.  It remains for me to review both the  Defense Production Act and the executive order considered here to see if the news article cited is indeed correct in its accusation concerning the executive order.