The use of the executive order by the presidents is by no means new, nor are they immune from controversy. President Obama’s most recent executive order is easily categorized as a “controversial” one.
The executive order—more specifically titled “Assignment of National Security and Emergency Preparedness Communications Functions”—may be summarized as the President desiring the Federal government to take more control over various means of communication, so that the Federal government may communicate effectively in times of danger, crisis, or necessity. As the executive order reads “The Federal Government must have the ability to communicate at all times and under all circumstances to carry out its most critical and time sensitive missions. Survivable, resilient, enduring, and effective communications, both domestic and international, are essential to enable the executive branch to communicate within itself and with: the legislative and judicial branches; State, local, territorial, and tribal governments; private sector entities; and the public, allies, and other nations. Such communications must be possible under all circumstances to ensure national security, effectively manage emergencies, and improve national resilience.”
To some, there may be nothing wrong with this, on the surface. The justification for such actions—which are seemingly abstract—are to inform the public. “Such informing would be only when necessary,” thinks the person faithful in the government. Or would it?
In regards to the executive order, there are several reasons for its being both unconstitutional and wrong. Before these are shown, it is necessary to understand what the contents of the executive order mean.
While the orders may be, as previously noted, abstract, they equate to a single measure—further government control of television, radio, and very likely the internet. All of the control would be justified in the name of the Federal government’s “need” to communicate with, interpreting from the order, everyone in the world, using all means possible, and at any moment.
At the most fundamental level, this is not what an executive order should be used for. In fact, the Constitution does not explicitly give provisions for executive orders, in the sense of a direct mention. But, presidents have used Article II, Section 1, Clause 1 of the Constitution to justify their use of executive orders, arguing the logic that it is the duty of the president to follow their presidential duty.
But what is the president’s duty, according to the Constitution? Contrary to what some may think, it is not his duty to rob and disarm the populace, silence opposition, abuse private property, and generally behave in a manner that would leave Gaddafi in silent admiration. Rather, the duty of the president is stated in the oath he must take “… I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Since it has been established that ensuring the Federal government follows the Constitution—apart from his own actions being in line with the Constitution—then one must question if President Obama’s executive order is concurrent with the Constitution. From what was established, in the way of the order’s true nature, it certainly is not. The Constitution denotes the explicit purpose of the government as to protect the citizens’ rights (i.e. natural rights), protect the nation from foreign enemies, and guard the borders. There is no provision for control of property or mediums of communication.
In another sense, there is a philosophical problem with the executive order. When one reads the order, one does not find any acknowledgement of the concept of private property. Yet it is not surprising, when the same Federal government requires broadcasters to attain licenses from the Federal Communications Commission. In other words, it is already assumed that the government “owns” the airwaves. And where does this justification come from? Obviously, not from the Constitution. Therefore, it is evident that, going from the reasoning used, the Federal government may declare anything else their property. The doctrine of natural rights (from the philosophy of John Locke) written into the Constitution specifically views property as an irrevocable, God-given right. Not only is this right invoked, but one may also argue—and very justly—that President Obama’s executive order violates freedom of speech.
There is a final argument against this executive order, though I find it to somewhat missing the true subject. That being said, it does provide a semi-valid argument.
Let us suppose, for a moment, that a “disaster” was to befall the United States. This “disaster” could be a terrorist attack, a launch of nuclear missiles, or any other scenario possible to the connoisseurs of “what if?” Saying that such would happen, various governmental agencies would undoubtedly release their own press releases and notify the media. Not counting the government’s own announcements, is there any doubt that private radio stations and television channels would not relay such information to their viewers? It doesn’t require deep analysis to conclude that ESPN would interrupt a sports game, the History Channel would impede upon a show about Southerners or conspiracy theories, or TV Land would arrest The Andy Griffith Show? Does any rational person think that PBS would not put on news of such an emergency while Antiques Roadshow is on? Of course they would, in the event of something so important.
Throughout the last one hundred years in America, many things have been called rights. Many have argued that it owning a home or having a job is a “right,” or that there is a “right” to the property of others. Life, liberty, and property are the only true rights, and it was upon these precepts that our republic was built. Now, in an age where we appear close to spiraling into tyranny, these sacred rights are again being abused. We must remember two things. First, that these rights are inherent and cannot be removed or revoked. Second, that government is not God.
Liberty, at least in the case of the United States, will not be lost blatantly, but clandestinely. Not only will it be lost, in my opinion, in such a manner, but also by the idea that something good is being done. In a sense, a loss of liberty would be accepting the idea that would be something positive—it would be right, “constitutional,” good for the public, just, etc. President Obama’s latest executive order is continuing this trend of attempting to destroy liberty in a covert manner.
Christian Lopac | Wabash College | @CLopac