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March 18, 2012

Executive Order: "National Defense Resources Preparedness"

I see Fritzworth's post below and this EO is getting a lot of chatter on Twitter and in email from folks nervous that it represents a new power-grab from the President. In fact, I'm hearing from the usual suspects (WND-types) that this is the foundation for Obama's plan to nationalize "everything" throughout the United States and even conscript private persons without compensation (slavery!) for government service.

So let's be clear about what this EO does not do.

(1) It does not allow the President or the named cabinet secretaries in either emergency or non-emergency conditions to conscript people without (or even with) compensation.

Sec. 201. Priorities and Allocations Authorities. (a) The authority of the President . . . to require acceptance . . . of contracts or orders (other than contracts of employment) to promote the national defense . . . is delegated to [the various named cabinet secretaries.]

So the authority to require private persons to accept contracts does not extend to contracts of employment. It says so right there in the order. No other provision of the order delegates authority to anyone to conscript private persons without compensation. Section 502 says the cabinet heads may employ certain folks without compensation (in violation of, among other things, federal minimum wage laws), but does not say that those persons may be conscripted, that is, forced to accept such an employment contract. I'm not sure where Goldstein got that.

(2) It does not allow the President or the named cabinet secretaries in either emergency or non-emergency conditions to nationalize anything.

The same provision seems to be what's tripping people up.

Sec. 201. Priorities and Allocations Authorities. (a) The authority of the President conferred by section 101 of the Act, 50 U.S.C. App. 2071 . . . is delegated to [the various named cabinet secretaries.]

Without the objectionable material, it becomes much more obvious that the order doesn't give the President authority to do anything. The authorities to prioritize and force acceptance of contracts (excluding contracts of employment) came from an act of Congress, the Defense Production Act of 1950. I suppose it could have been part of President Truman's "totalitarian" attempt to nationalize "everything," as Geller phrases it. (Geller also claims the order allows forced conscription, which, as discussed above, it does not.)

(3) It is not a power grab from Obama.

As discussed thoroughly by Ed Morrissey, this order simply updates orders issued by President Reagan (Executive Order 12656) and President Bush 41 (Executive Order 12919). Neither were power grabs by those presidents. This one isn't either. In fact:

The original EO dealing with national defense resources preparedness was issued in 1939 (EO 8248) according to the National Archives. It has been superseded a number of times, starting in 1951 by nearly every President through Bill Clinton, and amended twice by George W. Bush.

So, nothing to get excited about here. And if you're really het up about the Defense Production Act of 1950, you should call your congressman, not complain about fictitious Obama power grabs. As Professor Jacobson says and as I have documented in numerous posts here, there's plenty of things to criticize Obama for, including numerous end runs around Congress. No need to waste energy criticizing him over unfounded fears that this executive order will nationalize everything or lead to government conscription.

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posted by Gabriel Malor at 12:04 PM

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