Executive Order on Martial Law

On March 16th President Obama signed an executive order allowing for the suspension of the writ of habeas corpus

On March 16, President Obama took the extraordinary step of issuing an executive order (“Executive Order—National Defense Resources Preparedness”) that would permit the president in times of peace or war, in his sole discretion, to declare martial law.   You may see that order here.  Under Article I, Section 9, Clause 2, Congress has the exclusive power to suspend the writ of habeas corpus (the right of one to be released by a court from military or police custody) in “cases of rebellion or invasion” when “the public safety may require it.”  Although not synonymous with martial law, which the Constitution never mentions by name, it is nevertheless clear that the Founding Fathers did not intend the President either to declare a state of war or to act independent of Congress to suspend the writ.  Moreover, there is no executive power to impose blanket regulations over the economy independent of Congress, even in times of war.  In this Executive Order, President Obama assumes that extraordinary power beyond the limits of the Constitution.  Indeed, so sweeping are the areas of control he presumes, that there is no substantive difference between the powers assumed and those of a dictator.

Under the March 16 Executive Order, the President invokes a 1950 Act of Congress, the Defense Production Act, as a basis for asserting extraordinary control over the entire economy in service to the national defense needs of the United States.  In effect, President Obama has unilaterally expanded the authority of Commander-in-Chief to include not only command of the military but also to command all resources that may be deemed necessary in support of the military and objectives of his administration.

The powers assumed are vast, comparable to those exercised by dictators.  Part II of the Order includes the following section, which delegates to the various secretaries the power to supplant private contracts with federal controls over every part of the economy.

Sec. 201. Priorities and Allocations Authorities.  (a) The authority of the President conferred by section 101 of the Act . . . to require acceptance and priority performance of contracts or orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense, is delegated to the following agency heads:

  1. the Secretary of Agriculture with respect to food resources, food resource facilities, livestock resources, veterinary resources, plant health resources, and the domestic distribution of farm equipment and commercial fertilizer;
  2. the Secretary of Energy with respect to all forms of energy;
  3. the Secretary of Health and Human Services with respect to health resources;
  4. the Secretary of Transportation with respect to all forms of civil transportation;
  5. the Secretary of Defense with respect to water resources; and
  6. the Secretary of Commerce with respect to all other materials, services, and facilities, including construction materials.

The Executive Order expressly does not limit the use of these extraordinary powers to times of war or the theater of war but, rather, they can be used for “purposes of national defense,” entirely in the discretion of the President.  The powers are delegated to his Secretaries and embrace every aspect of the economy.  There is no provision for prior authorization from Congress, so the President assumes that he may act unilaterally.

The National Defense Authorization Act declared the entire country a “battlefield” in the war on terror and granted the President the power to suspend the writ of habeas corpus, permit military arrest and detention without notice of charges or any right of due process any American accused of providing support to terrorists.  The President’s Executive Order grossly expands the constitutional violations in the NDAA by replacing the Constitution with a presumed power of the President to govern the entire economy.

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