Sunday, February 14, 2010

Obama Executive Orders on Environment Energy Economy: Defining Crisis and Emergency

President Obama has achieved little in his first year on the big issues facing the country:  the Environment, Energy and the Economy. His political capital is as non-existent as Martha Coakley's seat in the Senate, so he plans to issue executive orders to make things happen.

 U.S. Constitution - Crisis and Emergency

Obama hopes to enact some his cap and trade legislation through executive order. There is no emergency to be dealt with within cap and trade, although Democrats find it profitable to be the Saviors of a dying earth. Nevertheless, the President will try to strike down the will of the people.

Most executive orders throughout history have "war" or "national security" behind them, but not all. The quote below from Cornell Law says these powers are available to a president "in times of emergency," but we certainly see that most president's have taken advantage of the powers without much discretion.

Cornell Law on Presidential Executive orders:

Executive Orders

In times of emergency, the president can override congress and issue executive orders with almost limitless power. Abraham Lincoln used an executive order in order to fight the Civil War, Woodrow Wilson issued one in order to arm the United States just before it entered World War I, and Franklin Roosevelt approved Japanese internment camps during World War II with an executive order. Many other executive orders are on file and could be enacted at any time.
The following is identified as U.S. Supreme Court decisions, although I'm not sure about this intro into the article:
Presidential emergency powers should be distinguished into two categories, even though the boundary between them is sometimes obscure:
(1) the power to act in a crisis based entirely on the president's own prerogative; and
(2) the power to act in accordance with laws that give the executive special powers in a declared emergency.
The latter is a long‐standing feature of American law; the former is, from the standpoint of constitutional theory, more problematic.
Barack Obama has already unleashed a number of executive powers to further his environmental policies. He has ordered that the Feds set a 2020 greenhouse gas emission reduction target by by January 5, 2009, reduce fleet petroleum consumption, conserve water; reduce waste, support sustainable communities, and leverage Federal purchasing power to promote environmentally-responsible products and technologies.

None of the above promote a crisis or an emergency, and "supporting sustainable communities" simply takes your money and mine and piles it on the green industry. What department manager cannot "conserve water" without an executive order?" And if we are going to promote "environmentally-responsible products and technologies," let the American people know how much the deficit grew because of these mandated policies. Why did we not stop this executive order? You'll find a list of Obama's Executive orders for 2009 here.

Note that we seem to have "Greening the Government" (as Clinton's was titled) executive order from every modern day president.

Over the years, we have clearly redefined the definition of "crisis" and "emergency."
There is no provision in the text of the Constitution that the president has special power to act on his or her own discretion in an emergency. It is sometimes argued that such power can be inferred from the Vesting Clause (“the executive Power shall be vested in a President of the United States of America”) and from the president's oath of office (“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”)—the only oath that is constitutionally prescribed.
In recent years, Bill Clinton used executive privilege, assuring his environmental legacy by designating millions of acres of land as national monuments, illegally done under the Antiquities Act, which calls for "the smallest area compatible" with care and management. Of the 5.6M acres grabbed by Clinton, one alone was 1.7M acres. Use of the land becomes then restricted: grazing, mining and timber harvesting come to a halt - even though the land is still privately owned.

This from The Heritage Foundation:
Former President Bill Clinton proudly publicized his use of executive decrees in situations where he failed to achieve a legislative objective. Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests. If this were not enough, Clinton's top White House political advisers made public statements about his use of executive decrees that were designed to incite a partisan response, saying, for example, that the power was "cool" and promising that he would wield that power to the very end of his term....
History will show that President Clinton abused his authority in a variety of ways and that his disrespect for the rule of law was unprecedented. 
Presidential executive orders can be stopped through legislation or the courts:
...if the President attempts to issue an order regarding a matter that is expressly committed to another branch of government; it might even render the presidential action void.
One example is Bill Clinton's "striker replacement," where he tried to convince Congress to enact a prohibition against employers hiring permanent replacements for striking workers - in direct opposition to the National Labor Relations Act. Congress refused, and Clinton signed Executive Order 12954 to make it law. The U.S. Court of Appeals for D.C. unanimously over-turned the Order
The court first determined that it had jurisdiction over the case despite what the court described as President Clinton's "breathtakingly broad claim of non-reviewability of presidential actions." In short, the court said that it did not have to defer to the President's claim that he was acting pursuant to lawful authority under the Procurement Act. On the merits, the court ruled that since the NLRA "undoubtedly" grants an employer the right to hire permanent replacements for striking workers,
The job of the president is to be our Commander in Chief, Head of State, Chief Law Enforcement Officer and Head of the Executive Branch, so we should think about how our energy policy, directed only by Barack Obama, comes under authority. Is there any lawful action, he alone can take, on energy policy that is Constitutional?

Today, we find ourselves in the position of accepting questionable executive powers without questioning them, simply because it has gone on in other administrations. Barack Obama pounded G. W. Bush on the campaign trail for his use of executive powers, but once he stepped into the Oval Office, that rhetoric ceased.
There may be close cases in which the validity of the executive order is uncertain, such as when a claim of inherent constitutional authority is arguable and where Congress has been silent or its will is unclear....
Although the number of illegal executive orders issued by President Clinton does not constitute a large percentage of his total of 364, the pattern of illegal orders, often without any claim of statutory or constitutional authority, is still striking.
Presidential executive orders, in general, receive little attention. It is time to reign-in the Oval Office and define "crisis" and "emergency," to preserve the shreds of our Constitution - one shred at a time.

©2007-2012copyrightMaggie M. Thornton