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.

---

[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:

It Has Been an Interesting Week (in review)

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Earlier this week 47 Republican Senators sent Iran a letter explaining the rules for US approval of international treaties.  This has created quite the firestorm.  The author and spark behind this was the freshman senator from Arkansas, the Honorable Tom Cotton.  So far he has been labeled everything from a traitor to a mutineer.  Where is a good yardarm when you need it?  Every expert the media and White House can find has been brought out to smack him down.  Heck, even Meagan Kelly has taken him to task.  There are some interesting comparisons made at Legal Insurrection, a politically conservative blog.

From what I’ve observed, the letter is foundationally correct in its statements to Iran that the Senate must approve treaties if they are to be binding.  This flies in the face of what has been reported about the President’s plan to just sign the agreement as if it were a binding document, perhaps thinking the Iranians were not smart enough to know the rules we in the US must play by.  What is causing the controversy is a group of Senators interjecting themselves into what is historically the role of the Executive.  As LI points out good ol’ Tom Cotton is not the first to do this, but he carries on a tradition employed by a number of Democrats when they didn’t like what a Republican President was doing.  Examples cited are Congressional engagement with Nicaragua’s communist regime, Senator Kennedy’s attempt to reach out to Yuri Andropov of the USSR, and the Honorable Ms. Pelosi’s uncoordinated trip and lunch with President Assad of Syria as she attempted to broker a deal between Syria and Israel.

As an interested citizen with no voice in the issues -- the only thing I find amusing in this whole affair is how outraged everyone is when, after six years of an administration that repeatedly shows its disdain for coordination with a Republican Congress they find that very same Congress acting without its blessing.

And then we have Ms. Clinton, presumptive nominee for the Democratic Party for the 2016 Presidential Campaign.  Good golly Miss Molly, she set up her own server because conducting official business through the government's system was just so darn inconvenient.  I understand many say “what’s the big deal? It was all personal stuff, and she should be allowed to do what she wanted to do.”  To those I would offer the following questions.  Why do we have a national archive and why do we have classified and unclassified systems?

Believe it or not the US Government actually has laws that define what constitute official records, how they are to be handled and where they are to be stored.  Just for the record (pun intended), based on my annual training in records maintenance, I can assure you E-mail does constitute an official record.  I checked, and you know I didn’t see Ms. Clinton’s server as one of the places they should be.  A while back, during the Civil Rights Movement of the ‘60s, we got all up in arms about the government spying on us, and our Congress created the “Freedom of Information Act” or FOIA (5 USC § 522) that President Lyndon Johnson signed into law in 1966.  This statue allows any citizen to make a request for information from the Government and obligates the government to make a good faith effort to provide that information as long as it does not compromise national security, or personal privacy.  What better way to avoid FOIA release  than not keep it where it belongs so it can’t be searched for and provided as appropriate?  Not that Ms. Clinton would ever consider that, it was simply a matter of convenience.  Who likes to carry around both a private device and a government device, especially when the demands on the entourage to carry all the other stuff like luggage, meals, bullet proof vests (for getting into and out of war zones), and flowers to give that homey touch to the government jet is so great. 

So now comes Citizen’s United in its lawsuit against the Department of State, for its failure to answer FOIA requests for the passenger manifests on Ms. Clinton’s flights as SECSTATE.  According to the NY Times, it seems Judge Gladys Kessler, District Court, District of Columbia, has ordered the State Department to begin turning over the manifests by April 5^th.  I assume the DoS will appeal.   
Isn’t government transparency a great thing?