Defense, production, and Executive Powers

(c) Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

On Friday, March 16, 2012, the President signed an Executive Order giving the executive authority to nationalize industry, initiate selective service, and seize infrastructure.  For authority he cited “the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.), and section 301 of title 3, United States Code, and as Commander in Chief of the Armed Forces of the United States,”  The Order–not yet numbered–was issued by the White House Press Office.  The link is as follows.


I went over the document as well as the statute referenced and, while I have not done the exhaustive analysis that a law review article or court brief would require, I am neither applying for an adjunct professorship/federal judgeship nor am I being remunerated to write an appellate brief. That said, there are a few things I would point out.

The Defense Production Act of 1950, as Amended [50 U.S.C. App. § 2061 et seq.] was legislation in place when President Truman to seize the steel mills and railroads.  The US Supreme Court slapped down Truman’s action in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). There was at one time a provision in the Act for seizing necessary assets but Congress repealed that article.  If I read this correctly, the executive order restores the powers by not providing for seizure  per se but by redirecting the use of facilities. This is sometimes referred to as the Mussolini approach.   Query whether Friendly Quaker Industries, maker and purveyor of  plowshares, could be compelled to repurpose and/or retool the factory for the production of bayonets.  And query whether an executive order may go beyond the powers in the statute.  The not so hidden hand of  Cass Sunstein (whose works lack the socially redeeming virtues of those of Cass Elliott2) is apparent in this document.

Evidently the executive branch has the unilateral authority to determine whether there is an emergency.  Could this include (as with John Adams) that segments of society are not paying the Government proper respect.3

The question would be whether the current Supreme Court would follow the Youngstown precedent. Hugo Black, possibly the most liberal justice of the 20th Century (within a year he would become the primary justice taking the side of plaintiffs in Brown v Board of Education, cutting through the arguments and asserting that separate is unequal) wrote the decision. He was joined in his absolutist view by William O. Douglas. It all depends on whether the government can distinguish the case and whether they can convince either Alito or Kennedy.

  1. It has been more than thirty-five years since I really wrote like this. After reviewing the sentence from an English major’s perspective, I concluded that it makes sense with Santa’s contracted elves (independent clauses).
  2. California Dreamin’ for one.
  3. See what Adams had to say regarding an editor named B.F. Bache.

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