Another Obama Power Grab


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The Obama administration issued a new executive order last Friday entitled “National Defense Resources Preparedness.” The Executive Order cited the powers granted to the president by the Defense Production Act of 1950, as amended, and the president’s constitutional authority as commander-in-chief as the basis for asserting more breathtaking presidential powers over key sectors of the U.S. economy, not only during wars and national emergencies, but also during peacetime.

The new executive order gives the president and his executive branch agency heads far more power than was contemplated by Congress in the Defense Production Act (“Act”).

At least, the definition of “national defense” in both the Act and executive order are the same:

programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any directly related activity.  Such term includes emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5195 et seq., and critical infrastructure protection and restoration.

The difference lies in how much discretion the president has to intervene in and control major portions of the economy if he or his delegated agency heads believe it is appropriate to do so to promote the national defense.

The Act authorizes the president to prioritize contract performance and to “allocate materials, services, and facilities in such manner, upon such conditions, and to such extent as he shall deem necessary or appropriate to promote the national defense.” The executive order follows this statutory grant as far as it goes, but then goes much further, particularly with respect to the energy industry.

Part II of Obama’s executive order (“Priorities and Allocations”) delegates to a broad array of executive agency heads the president’s authority over contract prioritization and allocation of materials, services and facilities across all major segments of the private sector economy, including agriculture, “all forms of energy,” “health resources,” “all forms of civil transportation,” “water resources,” and a catch-all for “all other materials, services, and facilities, including construction materials.”

The executive order delegates to the agency heads, with policy and oversight responsibilities affecting all these different industries, the authority to “issue regulations to prioritize and allocate resources and establish standards and procedures by which the authority shall be used to promote the national defense, under both emergency and non-emergency conditions.” Their authority is be exercised to support programs deemed by the secretary of defense, secretary of energy or secretary of homeland security to be necessary or appropriate to promote the national defense.

The Defense Production Act does not purport to affect so many industries. For example, nowhere are “health resources” even mentioned, much less defined, in the Act, as it is in the executive order.

The executive order is particularly over-reaching concerning the energy industry sector. When setting forth the president’s powers with respect to “the allocation of, or the priority performance under contracts or orders…relating to, materials, equipment, and services in order to maximize domestic energy supplies,” the Defense Production Act places strict conditions on the exercise of such powers.

Specifically, the Act states that the statutory authority to exercise such presidential powers:

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.

The Obama administration’s executive order skips right over the special statutory limitations on its executive authority to intervene in the energy industry sector. Instead, the Obama administration gives itself the direct authority to centrally manage the entire energy industry, encompassing fossil fuels and all forms of alternative energy, whenever and however it deems “necessary” or “appropriate” to promote the national defense.

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  • Anamah

    What do you think is the goal? I ask of all you! Also to you David, where are you, and what is going on in this country? I find very disturbing every thing this man does. Where are the Congress people, the honest, the patriots, where are our experts… What is happening here. Why is everybody silent? Are we going to became a tyranny? Do I put off the lights… and simply leave?

    • Ken

      Obama wants a "benevolent dictatorship". Watch out America, your freedom just took another big hit!!

      • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

        Benevolent?

    • Cuban Refugee

      Anamah: The goal should be obvious by now: state communism on a global scale. Why is everybody silent? Because they are ruled by fear, or struck mute by the weight of the many coins in their pockets. Are we going to become a tyranny? We entered tyranny when our sovereignty was sold out years ago; Obama is simply "the closer" in the end game. The lights are becoming dim in the entire world; and, there is nowhere to go.

  • Gunner57

    Why do we have this new executive order? In effect, this new EO allows the federal government, directed by the President, to commandeer and control all aspects of the economy and the lives of all Americans. It centralizes control to an astonishing and frightening degree. If Bill Clinton or QWB or for that matter if Jimmy Carter were president, I still wouldn't like it, but with this guy, it scares me. Beware. Be on guard. Throw this bum out in November.

    • JoJoJams

      If we even can, by November……

      • ymarsakar

        The Left used 10 decades to bring their Totalitarian Regime into fruition, in the land known as America's Utopia.

        One election is not going to stop them, whatever comes.

  • Anthony

    It’s a conspiracy! Let’s see, Oh, verbatim from Executive Order #12919 written June 6, 1994? Almost identical language was originally part of The Defense Production Act of 1950? Oh, never mind! Fear mongers don't mention the fact that this order has been passed by every president since then. http://www.fas.org/irp/offdocs/eo12919.htm
    Fear mongers don't mention the fact that this order has been passed by every president since then.

    • Phillip Ley

      And it was wrong, by every President since 1950, if that is indeed the case. No matter who gave the order.

    • Joseph Klein

      From the 1994 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.

      Where does the "critical and essential" language appear in Obama's new Executive Order? It doesn't, so far as I can tell. If it does, please link to it.

      • Joseph Klein

        Correction – The "critical and essential' language is buried in Obama's Executive Order but the Obama power grab in today's climate of other Obama power grabs is clear.

    • Bert

      What is dramatically different now is Obama himself. This man with an agenda that combines the radical leftist ideology of Saul Alinsky combined with Islamic supremicism plus hostility toward America and its allies.
      Unfortunately you can still fool some of the people all the time and the Obama fanatics will stick with him to the bitter end.

    • Texas Mom

      Anthony, we never had a Marxist radical as President before. Know what, Americans are stupid and deserve this monster if we let this go unchallenged.

    • ymarsakar

      Fast and Furious was under Bush as well. It was just a surveillance program until evil Totalitarian bureaucrats got a hold of it. Then it started getting really "good". But logic was never a thing designed to be given to the Left's cannon fodder. They are designed to overwhelm the defenders of Light, not to live on the ambrosia harvested from the corpses of the slain later at the victory party.

  • oldtimer

    And which president signed this order….. No other than William Clinton, Democratic socialist..

  • Mach1Duck

    Get out and vote, so we can get a congress that will stop this madness in its tracks.

    • jaydee007

      That's a Great Idea;
      But who do we vote for who's going to do that?
      Enabling Democrats?
      or
      Spineless Republicans?

      • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

        Tea party challengers to both.

    • fiddler

      And get ready for shenanigans from unions, and other leftists "inventing" voters. Look how Wisconsin got enough signatures to put recalling Scott Walker on the ballot.

  • SoCalMike

    We are supposed to believe Obama cares about National Defense.
    That's why he's in bed with the MB and has empowered them at every step.
    He despises the US Military and has done everything in his power to gut them and diminish their ability to project force.
    And of course he cares so much about the economy. That's why he positions the government to "manage" as many sectors and aspects of it as he can conceive.
    This facilitates the PLUNDER at the heart of his economic vision.
    This arrogant boy with big ears has never produced a dime of wealth in his life nor run a lemonade stand much less a 7/11 or super market. Yet he and his statist coreligionists assure us they know what they are doing when at this point, it's clear to any freshman econ student they haven't the slightest clue.
    When he opens his lying semi-literate mouth at this point, I just puke!
    And those of you who still applaud and insist on praising him at this point are simply government-worshiping cultists.

    • Rifleman

      Unfortunately, his idea of national defense is to subjugate and fundamentally change the American people.

    • eric

      So what if Obama is a muslim from indonesia , went to college at our expense . At least he has a good education in the most important field of all , { constitutional law } . I think he is way out and far the best president we have had since mabey John Kennedy or Harry Truman . I don't care if he is not even a American citizen and has only a false birth certificate . He at least tries to help the poor .. The fact that Obama can get by with keeping all his information secret , should tell you all you need to know about the kind of country you live in . And just who all these important consitutional laws have been for , all these many yrs . Its time you right wing ding bats shutup and adsjust like us poor people have all these many yrs .

  • pierce

    It is funny. BO used to stand for Body Odor, now it stands for Barack Obama. Is this just coincidence?

    • Cuban Refugee

      They are synonymous … and the stench has permeated our entire country.

  • Rifleman

    If one remembers, this was their basic response to 9/11. Right off, they spoke of using the kind of control, mobilization, and national effort we used to fight WWII, not to go after terrorists, but to “…wean us of our addiction to oil,” and our, ”consumption based economy.” They were drooling over wartime government control over resources and the economy, without ‘wasting’ it on weapons production or sustained large scale military operations. That’s basically what the hussein administration has been doing, to the extent it could, since it began its’ occupation of the WH.

    The only real question left for me is whether the next GOP president defends this expansion of executive powers or rolls it back.

  • jklein6234

    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

    • Stephen_Brady

      Excellent post!

  • Stephen_Brady

    Why can I only find stories like this on the internet? What has happened to our news media (even though I know the answer … They're in bed with Obama)? I find this story here. At Breitbart, I find a story about how Eric Holder … the current AG … told an audience in 1995 that he was in favor of brainwashing the American people, just as they did with tobacco (they provided the video).

    I don't even trust FOX, anymore …

    When the news media becomes compliant with the government, we cannot expect to hear the truth. Keep your powder dry …

    • ymarsakar

      Now a days we use explosives and nukes. Which may be what it comes to, in the end.

  • maria

    Some time ago I came accross Muslims cite and one of comment was " Thank you Barak for doing a good job for us". He continue doing that job.
    If November will not change situataion…

    • aspacia

      maria, it is site. Cite means citation.

  • dray

    democrates go pitching tents and republicans blog huh .remember that when rome became an empire it was agreat general that took that power and his family became emperors for several generations after the civil war to free the people of tyranny is histiry repeating its self,if so you are saying obama is a great man of power.may be his great nephew will call himself nero and burn some jews and christians at the stake.paranoia creates these scenarios.becareful of hatemongering on both sides america can not be divided or we all suffer.

  • alexander

    can we make plastics out of wind or sunlight?
    Oil is the answer.
    Ops, missed that, FuBar Ack O.?
    And "dirty coal" feeds that electric outlet on the wall…..Really!
    Didn't know that either?

  • Jim_C

    Yes, Obama's "tyranny" is "breathtaking," isn't it? This oppression is killing me over here! Why, I certainly hope whomever Obama's opponent may be brings up all his "abuses" on the campaign trail.

    Taste test: get yourself a whole bunch of executive orders from the last 50 years. Mix them up. See if you can separate out the "good" Republican ones from the "bad" Democrat ones.

    • Joseph Klein

      Rather than "mix them up," how about reading the orders side by side and comparing them? Here are a few to get started. Clinton's and Obama's orders are very similar but, as I pointed out above, Obama's order leaves out some crucial limitatoins on his power that were in the Clinton order.

      The Reagan and Nixon orders are nowhere close to the Obama order.

      Executive Order — National Defense Resources Preparedness March 2012 Barack Obama http://www.whitehouse.gov/the-press-office/2012/0

      EXECUTIVE ORDER 12919 NATIONAL DEFENSE INDUSTRIAL RESOURCES PREPAREDNESS June 1994 Bill Clinton http://www.archives.gov/federal-register/executiv

      Executive Order 12656–Assignment of emergency preparedness responsibilities November 1988 Ronald Reagan http://www.archives.gov/federal-register/codifica

      Executive Order 11490 – Assigning Emergency Preparedness Functions to Federal Departments and Agencies Oct 1969 Richard Nixon http://www.presidency.ucsb.edu/ws/index.php?pid=6

    • ymarsakar

      Fast and Furious under Bush

      Fast and Furious under Obama

      Yeah, they were pretty much the same. Obama killed people to make confiscating guns from Americans legal. Bush was spying on drug lords in Mexico.

      Yeah they were pretty much the same, right.

    • Stephen_Brady

      Simple …

      The good ones are those that do away with all the DEM excecutive orders.

  • Jim_C

    As of 1:15, a -6 for this post.

    I wonder if they even know what you've said that they're objecting to?

    Methinks they just don't like the cut of your jib!