Let’s Talk About Executive Order 9066 and Trump

Last week the news media (ABCNNBCBS, MSNBC, & Fox) and their political punditry are ablaze with the President Trump’s decision to declare the southern immigration problem a National Emergency and fund the construction of a wall over the objections of the Democratic Party.  Speaking to the press Ms. Pelosi (D-CA) said, “If the president can declare an emergency on something that he has created — an illusion that he wants to convey, just think what a president with different values can present to the American people,”

We can debate whether or not 150,000 unapproved immigrants a year is an illusion or not, but to put illusions in perspective we should compare that number to a problem the People’s Democratic Party is all over.  Specifically, the number of deaths from firearms (about 40,000 in 2017) most of which were self-inflicted fatalities or suicides.  Every day we hear about how guns are evil and we need new laws, why is one number significant and another, much higher number not?

Senator Rubio (R-FL) also condemned the President’s plan when he said, “We have a crisis at our southern border, but no crisis justifies violating the Constitution.  Today’s national emergency is border security.  But a future president may use this exact same tactic to impose the Green New Deal.  I will wait to see what statutory or constitutional power the President relies on to justify such a declaration before making any definitive statement.  But I am skeptical it will be something I can support.”

It’s is funny how this whole national emergency thing seems to work.  The founders imagined in times of emergency the President and Congress would work together to craft appropriate legislation.  But it has become increasingly fashionable for the President to act unilaterally when Congress fails to support his position.  As those who support the President have pointed out the previous President had declared something like 13 emergencies, 11 of which are still open.  The purpose of declaring an emergency seems to be a convenient way to get around the restrictions on the programming of funds defined by the separation of powers in the constitution.  I suggest we put this whole emergency thing in the context of the actions of past Presidents.  But first, let’s review the Constitutional requirements levied on the President.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The founders believed the real power of the government would be invested in the Congress, and the President acting as a co-equal would execute those powers.  Time has brought changes from the concepts of our founders as the Congress has acquiesced to Presidential decisions, which have made the Executive Branch an increasingly dominant role in the management of the nation's business.  What they did define is the President’s role in the defense of our sovereignty. 

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

So, we come to the idea of exerting Presidential authority through a declaration of a National Emergency, the current political crop would have us believe this is an unprecedented violation of the Constitutional authority.  To which I say, nay, nay![1]  It would seem to me to be far less egregious than the precedent set by President Roosevelt when he did it on February 19,1942.  It read[2]:

Executive Order No. 9066

The President

Executive Order

Authorizing the Secretary of War to Prescribe Military Areas

Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104);

Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.

I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.

I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.

This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder.

Franklin D. Roosevelt

The White House,

February 19, 1942.

As the President considered this executive order the assistant to the Attorney General and the Attorney General himself appear to be the dissenting voices among the outraged Democrats of the President’s party.  In a February 2, 1942 memo James Rowe Jr. writes the order would “require the suspension of habeas corpus” and “would be one of the great mass exoduses of history.”

Attorney General Biddle urged caution in the execution of the order as a response the increasingly vocal media outcries coming from the Los Angeles Times and the Washington Post, and led by columnists Walter Lippmann and Westbrook Pegler,[3] but his concerns were put aside when the War Department relieved the Attorney General of responsibility for the relocation.

So, as we struggled with the aftermath of Pearl Harbor the President’s executive order, declaring a National Emergency and establishing military exclusion zones was used to suspend the safeguards of the Constitution for well over 120,000 American citizens and move them from the military exclusion zones.  Although the Japanese were not mentioned exclusively (Germans and Italians were also subject) those executing the order targeted the Japanese almost exclusively.

Years afterward, during the time of Ronald Reagan’s presidency, the US government acknowledged the abuse of rights and paid reparations to the families of those sent to the internment camps.  Although no reparation could adequately make up for the true abuse of government power -- as it acted in such an overtly racist way in response to the hysteria that swept the nation, fueled by the media, in the post-December 7^th days.

During the Obama administration, most of his 13 declared emergencies seem to deal with terror-related activities and targeted the activities of specific ethnic groups, like the Sudanese, or Central Africans, or people engaged in activities in conflict areas like Yemen, Syria or Venezuela.  All of which restrict the rights and actions of individuals engaged in those activities without regard to a nation of origin.

So now we come to President Trump’s executive order, declaring a national emergency at the border so he can reprogram money to build a wall.  I am hard pressed to understand how his declaration rises to the level of unconstitutionality set as the precedent by previous administrations.  Maybe someone can help me out on this.  Is he proposing we suspend habeas corpus for our citizens or even the non-citizens who will confront the wall?

As with all things Trump, I guess the courts will sort this out and if he loses the media will have a field day.  If he wins we won’t hear much, if anything, at all.

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[1] A line from the late comic John Pinette

[2] https://www.ourdocuments.gov/doc.php?flash=true&doc=74&page=transcript

[3] http://www.fdrlibrary.marist.edu/archives/pdfs/internment.pdf  page 8 of 12 “Document 4: Memorandum to the President from Attorney General Francis Biddle, February 17, 1942: