Recently, a disturbing story hit the national mainstream media, although it has been discussed in the blogosphere for quite a while. More recently, the story showed up at the Drudge Report, guaranteeing wider coverage.
Better late than never. It’s good to see that some in the mainstream media are willing to play catch up and to sound an alarm that we’ve been clanging from the beginning of the Obama administration. This particular story involves Obama’s Department of Defense (DOD) and an apparently ultra vires directive they “quietly” issued.
For the Washington Times, Bill Gertz wrote,
“Federal military forces shall not be used to quell civil disturbances unless specifically authorized by the president in accordance with applicable law or permitted under emergency authority,” the directive states.
“In these circumstances, those federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the president is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances” under two conditions.
The conditions include military support needed “to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order.” A second use is when federal, state and local authorities “are unable or decline to provide adequate protection for federal property or federal governmental functions.”
“Federal action, including the use of federal military forces, is authorized when necessary to protect the federal property or functions,” the directive states.
Military assistance can include loans of arms, ammunition, vessels and aircraft. The directive states clearly that it is for engaging civilians during times of unrest.
A U.S. official said the Obama administration considered but rejected deploying military force under the directive during the recent standoff with Nevada rancher Cliven Bundy and his armed supporters. [emphasis added to quotes]
Over a year ago, Jed Morey wrote,
By making a few subtle changes to a regulation in the U.S. Code titled “Defense Support of Civilian Law Enforcement Agencies” the military has quietly granted itself the ability to police the streets without obtaining prior local or state consent, upending a precedent that has been in place for more than two centuries.
This is patently unconstitutional. Never mind the president, the U.S. military simply cannot operate within the confines of any state without “local or state consent.”
The United States of America is a REPUBLIC; the federal government has few and limited powers to operate within what is, in essence, a sovereign state. That’s what the Tenth Amendment is all about.
Every governor of every state in the Union should be outraged and should demand that this “directive” be immediately rescinded. Morey quotes civil liberties attorney and constitutional law professor Bruce Afran, of Rutgers University. Afran says this directive
violates the long-standing presumption that the military is under civilian control. … It’s no different than the emergency powers clause in the Weimar constitution [of the German Reich]. It’s a grant of emergency power to the military to rule over parts of the country at their own discretion.
There it is in a nutshell: The military gives to itself the power to make up its own orders. No governor, no mayor, can tell them to stand down. In effect, the military could enact a coup within any state and Obama, having not given the order, could then stand above it all and deny responsibility.
As Morey points out, the military can act under their own directive simply if they can’t reach the President by telephone, ignoring the “statutory chain of succession,” in which command would go next to the Vice President, then to the Speaker of the House of Representatives, and down the line.
Try to imagine a situation in which the federal military would be on the scene of domestic unrest within any state and would be out of reach of the Commander in Chief. Why would the military be present in a state without the permission of or at the request of the governor of the state? It boggles the mind.
States have their own militias to defend themselves against civil unrest. They’re called the National Guard and they are under the command of the governors, not the U.S. military. Neither the president nor the military can intervene militarily in any state without the permission of that state’s governor.
Here is the plain text of the Constitution of the United States of America regarding federal power to quell domestic violence:
Article. IV. Section. 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
Just the fact that the “Obama administration” considered intervening with troops in the Bundy standoff is alarming. Had the “Obama administration” deployed military force against Bundy and his supporters, without permission of the Republican governor of Nevada, then this constitutional issue would have come to a head, which the administration surely knew, which is probably why they declined to do it. Is Obama “quietly” arming all manner of Executive Branch agencies and biding his time, hoping that no one will challenge this directive until the other shoe drops?
Other agencies with SWAT teams reportedly include the Department of Agriculture, the Railroad Retirement Board, the Tennessee Valley Authority, the Office of Personnel Management, the Consumer Product Safety Commission, the U.S. Fish and Wildlife Service and the Education Department.
Surely Obama, a lawyer (although unlicensed) and an erstwhile “constitutional law” lecturer, knows that this DOD directive violates the Constitution, which guarantees every state a “Republican Form of Government.” The directive also appears to violate the Insurrection Act of 1807 and the Posse Comitatus Act of 1878 (PCA). Violation of the PCA is a punishable offense. It’s a federal crime, but who cares about the law and the Constitution?
It is the habit of the Obama administration to act first (e.g., not enforcing laws, granting “amnesty” to illegal aliens) and then to dare someone to challenge the actions in court. As he knows and counts upon, litigation takes time, and Obama is very good at running out the clock. With luck, given a friendly progressive judge, he might even persuade the Court that no citizen, or even any state governor, has “standing” to challenge his Weimar Republic-like “directives.”
Even when lower courts rule against Obama, he simply continues on until the case goes all the way to the Supreme Court, hoping that if they rule against him, by then it will be difficult if not impossible to roll back his previous actions. Such is the case with the unconstitutional recess appointments to the National Labor Relations Board.
In the meantime, Obama and his administration continue to do whatever they want, with no apparent attempt by Congress or the Courts to stop them. Whether by unlawful “executive orders” or by simply ignoring laws enacted by the duly-elected representatives of the People, Obama steamrolls over the rule of law and continues to set himself up as “King Obama“.
Changing this rule now requires congressional or judicial intervention.
Let’s hope that intervention comes soon. Impeachment would be an option, but it’s unlikely to happen so long as the Democrats control the Senate and continue to march in lockstep with Obama, looking the other way as he grabs all the unconstitutional power that he can.
Postscript: Bruce Afran was a party to the lawsuit Hedges v. Obama, which was denied certiorari late last month by the Supreme Court. The suit sought to prevent the government under Obama from detaining people indefinitely if they were suspected of supporting terrorism or engaging in “hostilities” against the USA.