Executive-order Panic: Martial Law in U.S.?

Drew Zahn

The White House’s late-week release of an executive order has sent the online community into an uproar, worried that President Obama had secretly provided himself means to institute martial law in America.

In the common practice of dumping government documents on a Friday afternoon, just as the news cycle is wrapping up for the week – a move critics say allows the administration to avoid widespread coverage of embarrassing actions – the White House released an executive order on “National Defense Resources Preparedness.”

Filled with language about “government-owned equipment” and a “defense executive reserve,” among other vague statements, rumors began to spread that the executive order expanded the president’s power to do everything from seizing whole industries to drafting private armies.

A Canada Free Press article titled “Obama Executive Order: Peacetime Martial Law!” spread concerns of gasoline ration cards; while an Examiner article declared the order would “nationalize everything” and “allow for a civilian draft.” Facebook, email and Twitter were suddenly abuzz, and even the extremely popular Drudge Report posted a link to the White House release under the title “Martial Law? Obama Issues Executive Order.”

But are the cries of martial law and expanding executive power justified?

No, says William A. Jacobson, associate clinical professor at Cornell Law School.

“If someone wants to make the argument that this is an expansion of presidential powers, then do so based on actual language,” warns Jacobson. “There is enough that Obama actually does wrong without creating claims which do not hold up to scrutiny.”

As it turns out, Obama’s executive order is nearly identical to EO 12919, issued by President Clinton on June 7, 1994, which itself was an amendment to EO 10789, issued in 1958 by President Eisenhower, and which in fact, was later amended by EO 13286, issued in 2003 by George W. Bush.

Obama’s executive order specifically assigns “executive departments and agencies responsible for plans and programs related to national defense” to do five things:

  • “identify” requirements for emergencies;
  • “assess” the capability of the country’s industrial and technological base;
  • “be prepared” to ensure the availability of critical resources in time of national threat;
  • “improve the efficiency” of the industrial base to support national defense;
  • “foster cooperation” between commercial and defense sectors.

Later provisions in the order establish the protocol for government agencies to purchase equipment needed in times of national emergency and even make loans to ensure the availability of that equipment.

Despite the vague nature of the functions, none mention anything about martial law or seizing private property. The five functions are also identical to those identified in Clinton’s EO 12919.

So why did Obama issue the order at all?

A side-by-side analysis of Obama’s order compared to Clinton’s, conducted by Ed Morrissey of HotAir.com, reveals Obama’s order is essentially just an update to reflect changes in government agency structure.

“If one takes a look at EO 12919, the big change is in the cabinet itself,” Morrissey writes. “In 1994, we didn’t have a Department of Homeland Security, for instance, and some of these functions would naturally fall to DHS. In EO 12919, the FEMA director had those responsibilities, and the biggest change between the two is the removal of several references to FEMA (10 in all). Otherwise, there aren’t a lot of changes between the two EOs, which looks mainly like boilerplate.

“I’m not ruling out the possibility that this is more than it seems,” adds Jacobson, “but unless and until someone [demonstrates any expansion of powers in the order], I’ll consider this to be routine.”

“The timing of this release might have looked a little strange,” Morrissey concludes, “but this is really nothing to worry about at all.”

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