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Order from Feral House

"Stroke of the pen. Law of the land. Kinda cool."—Presidential aide Paul Begala as quoted in the New York Times, July 5, 1998

One of President George W. Bush's responses to the September 11 attacks was the creation, on October 8, 2001, of the Office of Homeland Security and the Homeland Security Council. President Bush chose Pennsylvania governor Tom Ridge as the first Director of Homeland Security and said he would have Cabinet-level rank. By the end of 2001, over 80 employees were part of the new office. But no member of Congress voted to create the Office of Homeland Security, despite Article I, Section 1 of the United States Constitution, which states "All legislative Powers granted herein shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." So how did the Office of Homeland Security come into being?

By a little-known device known as the executive order. Although not mentioned in the Constitution, executive orders issued by the President carry the full legal weight as laws passed by Congress. In effect, executive orders allow the President to "legislate" independently of Congress. For example, the Abraham Lincoln's Emancipation Proclamation was an executive order, as was his suspension of the right of habeas corpus during the Civil War. President Franklin Roosevelt used executive orders in 1933 to close all banks and force citizens to turn in their gold coins, and, in 1942, to intern American citizens of Japanese descent for the duration of World War II.(The legality of this latter action was upheld by the Supreme Court. . . . meaning a future President is free to indefinitely detain—without warrant, trial, or probable cause—American citizens solely on the basis of race.)

How serious is the threat posed by presidential abuse of executive orders? On September 30, 1973, a joint statement was issued by Senators Frank Church (Democrat-Idaho) and Charles Mathias (Republican-Maryland). They said, "The President has the power to seize property, organize and control the means of production, seize commodities, assign military forces abroad, call reserve forces amounting to 2.5 million men to duty, institute martial law, seize and control all means of transportation, regulate all private enterprise, restrict travel, and in a plethora of particular ways, control the lives of all Americans. . . . Most [of these laws] remain a potential source of virtually unlimited power for a President should he choose to activate them. It is possible that some future President could exercise this vast authority in an attempt to place the United States under authoritarian rule."

In the almost three decades since that statement, the potential for a virtual dictatorship because of Presidential abuse of executive orders has only increased.

INSIDE THE SHADOW GOVERNMENT: National Security and the Cult of Secrecy describes the origins of executive orders, how various Presidents have used them, and the frightening implications of numerous executive orders issued since the end of World War II.


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