March 18, 2012

Friday Executive Order: ‘National Defense Resources Preparedness’

It’s here (mobile) and here on the White House’s website.

Its title is “NATIONAL DEFENSE RESOURCES PREPAREDNESS.”

It hardly seems inconsequential, but it has received no media coverage.

The White House clearly wants it to get minimal attention. It was issued on a Friday. There is no related White House blog entry or statement or release (pages will change with additional entries) since its issuance.

Though it demands rigorous analysis, it looks like a plan for taking control of the economy in case of some arbitrarily determined state of emergency or difficulty. Quoting just one item concerning a “finding required under section 101(b) of the Act, 50 U.S.C. App. 2071(b)” (bold is mine):

… the Secretary of the resource department that made the finding may use the authority of section 101(a) of the Act, 50 U.S.C. App. 2071(a), to control the general distribution of any material (including applicable services) in the civilian market.

Similar language is in previous EO 12919, but the paragraph in question in the new EO changes how findings are handled:

From — “This finding shall be submitted for the President’s approval through the Assistant to the President for National Security Affairs.”

To — “This finding shall be submitted for the President’s approval through the Assistant to the President and National Security Advisor and the Assistant to the President for Homeland Security and Counterterrorism.”

So is this a bureaucratic update, or does this now-dual submission of “findings” create more opportunity for mischief (or, perhaps, paralysis)?

This demands a review for which I lack time at the moment — and yes, I know that Hot Air and Legal Insurrection have opined that it’s merely an update.

Any thoughts from readers about the EO and links to others’ analysis are welcome.

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15 Comments

  1. Sounds rather ominous doesn’t it? The way it reads is IF a POTUS determines there is a national state of emergency he can confiscate all goods and presumably distribute them as he sees best. It’s basically the installation of a dictatorship via executive fiat. So what determines the national emergency to set this plan in action?

    BTW – If I understand it properly, a finding is not a law but a legal interpretation saying you can do something where the law specifically says nothing, i.e. a usurpation.

    Comment by dscott — March 18, 2012 @ 5:36 pm

  2. Oh, that’s definitely what a “finding” is.

    If they thought that doing something about this was important after taking office, they would have done so soon thereafter. The fact that they’re doing it now makes one look it over in detail, and wonder about the motivation.

    Comment by TBlumer — March 18, 2012 @ 6:19 pm

  3. (b) The Secretary of each agency delegated authority under subsection (a) of this section (resource departments) shall plan for and 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. Each Secretary shall authorize the heads of other agencies, as appropriate, to place priority ratings on contracts and orders for materials, services, and facilities needed in support of programs approved under section 202 of this order.

    NOTE: It says for non-emergency conditions–that is new.

    Comment by Scott Landmann — March 18, 2012 @ 10:05 pm

  4. #3, Thx. 201 and 202 are substantially revised, and for the worse.

    The old EO’s 202 said that “The authority delegated by section 201 of this order may be used only to support programs that have been determined in writing as necessary or appropriate to promote the national defense.”

    The new EO’s 202 says that “Except as provided in section 201(e) of this order, the authority delegated by section 201 of this order may be used only to support programs that have been determined in writing as necessary or appropriate to promote the national defense” — i.e., there is now an ability to take extraordinary measures for non-defense reasons.

    This is deeply troubling, and, sadly, not at all surprising. It’s the kind of thing you see from people who expect to lose and want to prevent it. Their calc may be that if they need to they’ll trump up a national emergency — e.g., hitting the debt ceiling or some other financial crisis (like another debt downgrade, or failure to sell bonds, or rampant inflation) — and say we all need to “rally around the president.”

    Comment by TBlumer — March 18, 2012 @ 10:20 pm

  5. I’m slowly getting annoyed. Our side is increasingly mirroring the left and their behaviour in 08. Remember how they were scared ****less when they found out that Pres. Bush was able to postpone elections in case of a terrorist attack?

    Comment by yoda — March 19, 2012 @ 4:53 am

  6. Well, there are legitimate reasons to question why “non-emergency” now appears when it formerly didn’t.

    If you have a good answer, I promise to be less “annoying.”

    Comment by TBlumer — March 19, 2012 @ 5:06 am

  7. Quoting hotair:

    >Update III: One commenter notes that Obama >has added to Section 201(b) the phrase >“under both emergency and non-emergency >conditions.” In 12919, though, the duties >of the Cabinet Secretaries were not limited >to emergency situations in Section 201(b), >either. And in both EOs, section 102 >specifically notes that the EO is intended >to ensure defense preparedness “in peacetime >and in times of national emergency.

    The EO says:
    “to promote the national defense, under both emergency and non-emergency conditions.”

    Question: Do we not want to promote National Defense in non-emergency condiditions?

    Comment by yoda — March 19, 2012 @ 5:42 am

  8. The obvious response is: “Why did ‘we’ not mention ‘non-emergency conditions’ previously?”

    You should also note that DOD is now not the only one involved in “findings.”

    I respect Hot Air and Legal Ins., and I feel a bit better that someone at Volokh has weighed in. But … I don’t think I’ve seen anyone weigh in on why the language change which appears to be more than a routine update occurred.

    If there’s a good explanation for the revision, it’s that Obama wants to eliminate the Department of Commerce, which would largely explain the changes to 201(b).

    Comment by TBlumer — March 19, 2012 @ 5:56 am

  9. But the DOD wasn’t the only one before either. In Clintons EO other Departments were named too.

    It is noteworthy that these “findings” relate to scarce materials or materials that are essential for National Defense.
    Let me speculate:
    Two things come to my mind (both of them relate to both the non-emergency case as well as emergencies):

    1.) Oil
    2.) Rare earth minerals

    Mining and distribution of the latter is almost exclusively controlled by the Chinese (and they have recently put export limitations in place). Perhaps the Administration is planning on stockpiling or even reestablishing production of the stuff in the US, as it is an essential prerequisite for manufacturing electronic equipment.

    My two cents.

    Comment by yoda — March 19, 2012 @ 6:21 am

  10. Concerning the timing:

    The EOs of Clinton and Reagan were both issued on a Friday.

    Comment by yoda — March 19, 2012 @ 7:06 am

  11. Good points in your last two comments.

    Should note that “going green” makes us extraordinarily dependent on rare-earths.

    Comment by TBlumer — March 19, 2012 @ 9:07 am

  12. first off, “findings” relate to scarce materials or materials that are essential for National Defense.
    Let me speculate: . .. .Gold?

    procure and install additional equipment, facilities, processes, or improvements to plants, factories, and other industrial facilities owned by the Federal Government and to procure and install Government owned equipment in plants, factories, or other industrial facilities owned by private persons;
    Let me speculate: . .. .your ISP?

    to employ persons of outstanding experience and ability . . .”without compensation” . . and to employ experts, consultants, or organizations. The authority delegated by this section may not be redelegated.

    Am i reading this wrong? . . govt hands out contracts to whom it sees fit, . then procures slave labor? . i must be reading this wrong.

    upon request by the Director of Selective Service, and in coordination with the Secretary of Defense, assist the Director of Selective Service in development of policies regulating the induction and deferment of persons for duty in the armed services;
    – - No comment

    This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

    BARACK OBAMA

    Again – no comment

    Comment by yadda heyhey — March 19, 2012 @ 1:33 pm

  13. #12, potentially it is cronyism on steroids. Let me just say that IF Barack Obama wins the 2012 election, it would seem based on his track record that he (w)could employ this as a means to completely reorganize society at his leisure with no one to oppose him. IF Reid remains the Leader of the Senate, no budget will be forthcoming meaning Obama can literally retask appropriated moneys to his desire. There is great potential for abuse here.

    Comment by dscott — March 19, 2012 @ 4:26 pm

  14. #12: No you are not reading this wrong, but that has been the law since 1950. Look it up. It is in the Defense Production Act. 710 (b) employment without compensation. 710 (c) employment with compensation not exceeding 50 bucks a day.

    It’s Cold War mentatlity enshrined in law. If the nukes come in you don’t want to have a government caught with its pants down.

    Comment by yoda — March 19, 2012 @ 4:43 pm

  15. I think this also says they (Our new dictating corporate govt) , (During a “peacetime” perceived energy shortage) have the right to build nuclear power plants anywhere they like . . . and they can also at the same time stop any alternative power builders from selling private contracts in the free market-

    Comment by yadda heyhey — March 19, 2012 @ 10:34 pm

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