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Declaration of a State of Emergency -- can President Obama issue one to prevent default?

Starting with the recognition we are still at war in Afghanistan, one would think if an economic disaster loomed on the horizon in the United States, the President would have the authority to act to preserve both our economy and our national security. The question then becomes what authority could he use that did not require the Legislature's approval. Perhaps the answer lies with a Declaration of a State of Emergency.

A preliminary review of several sources suggests that is a very real option President Obama could exercise if the debt ceiling is not lifted and the threat of default is a very real danger to the Country. Perhaps you might consider this possibility and comment.

What is the National Emergencies Act?


"The National Emergencies Act (Pub.L. 94–412, 90 Stat. 1255, enacted September 14, 1976, codified at 50 U.S.C. § 1601-1651) is a United States national law passed to stop open-ended states of national emergency and formalize the power of Congress to provide certain checks and balances on the emergency powers of the President. It imposes certain "procedural formalities" on the President when invoking such powers.

The perceived need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency (or public danger).

Under the Trading with the Enemy Act of 1917 ("TWEA", starting with Franklin D. Roosevelt in 1933, presidents had the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight.[1] The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer limited what a president could do in such an emergency, but did not limit the emergency declaration power itself. A 1973 Senate investigation found (in Senate Report 93-549) that four declared emergencies remained in effect: the 1933 banking crisis with respect to the hoarding of gold,[2] a 1950 emergency with respect to the Korean War,[3] a 1970 emergency regarding a postal workers strike, and a 1971 emergency in response to inflation.[4] Title V, Section 502 of P.L. 94-412 specifically exempts the statutorily authority cited in the Proclamations of these four declared states of national emergency from termination. It then passed the International Emergency Economic Powers Act to restore the emergency power in a limited, overseeable form."

Take a look at Reference #1 at the same link:

" H. Rep. No. 95-459, at 7 (1977) "[the TWEA] has become essentially an unlimited grant of authority for the President to exercise, at his discretion, broad powers in both the domestic and international economic arena, without congressional review. These powers may be exercised so long as there is an unterminated declaration of national emergency on the books, whether or not the situation with respect to which the emergency was declared bears any relationship to the situation with respect to which the President is using the authorities"

So I took a look to see if there are any unterminated declarations of national emergency in effect. As you can see from the above paragraph (b) quote, the declaration a President is making does not necessarily have to "bear any relationship to the situation with respect to which the President is using the authorities."



"In the past year, President Obama has signed continuations of National Emergency declarations for Zimbabwe, Cuba, Libya, Ivory Coast, the Middle East Peace Process, Sudan, Weapons of Mass Destruction, Democratic Republic of the Congo, Lebanon, Significant Transnational Criminal Organizations, the Former Liberian Regime of Charles Taylor, the Western Balkans, the Risk of Nuclear Proliferation Created by the Accumulation of Weapons-Usable Fissile Material in the Territory of the Russian Federation, Belarus, Iraq, Syria, Somalia, and Iran (2); nineteen in all. Nineteen concurrent "national emergencies." Most Americans, and perhaps most politicians, would be hard pressed to explain the circumstances surrounding one-third of these emergencies, let alone all nineteen. The mere existence of some of these declarations would doubtless be a surprise to many."

What are the requirements for declaring a national emergency?

"The National Emergencies Act requires the president to specify the provisions in the law upon which his actions under each declaration are authorized.

* * *
Last year, President Obama extended the National Emergency with respect to terrorism that President Bush signed after the devastating attacks on America by al-Qaeda on September 11, 2001." (see link above).

Finally, as I was writing this thread, I found an article published by Brookings entitled "President Obama Should Issue an Executive Order to Raise the Debt Ceiling":


"It is the right of any president to declare a state of emergency and to take action necessary to protect the nation. America has a long-standing history of granting or tacitly accepting expanded presidential powers in times of crisis. As the sole figure elected by the entire nation, he is the politician to whom we turn when faced with a national emergency, and in so doing, we often allow him leeway to act in ways that protect the nation even if we would not imbue those powers upon him in calmer times."

* * *

Once a state of emergency is declared, the President would have multiple mechanisms through which to raise the debt ceiling – via an executive order, memorandum, or proclamation, to name a few. The exact mechanism chosen, though, is of less importance than the action itself. The ultimate arbitrator of the constitutionality of the President’s actions will be the Supreme Court (notably, not Congress). Since the Constitution does not clearly state that the President cannot raise the debt ceiling in times of crisis – see the 14th Amendment argument – and the public is eager for any solution to the debt ceiling impasse, it seems likely that the courts would look favorably on presidential action to prevent an economic emergency of this magnitude.

Thus, the solution to the debt ceiling crisis lies in President Obama’s hands. He needs to recognize this as the national emergency that it is, and issue an executive order to solve the problem. Congress will get in line if he does. It’s a game of chicken, but in this game, the president holds the trump card."


It does appear there is an emergency exit from the economic default. Obviously, I am not an expert on this subject so you might know of conflicting factors.

In my opinion, I believe it is entirely possible this is a political trap for our President. If he does nothing, the House might possibly use his inaction as grounds for impeachment. He failed to prevent an economic collapse in the Country. Can't you hear the Tea Party warming up? If he does act, the possibility exists that the Republicans will accuse him of a power grab and try to impeach him for whatever actions he takes. Politically, he could be in a no-win situation.

Beyond that, if the decision to act ends up in the Supreme Court, one cannot assume that particular Court would not stoop to a political as opposed to a legal opinion. Think Bush v. Gore. The Republican party's motto in 2000 while competing in the Presidential race was "win at all costs." Assuming that is still the operative imperative, the question now becomes what will President Obama do about it? What do you think is the answer?


I think a wonderful compromise to the Government shutdown and debt ceiling controversies is

repealing the Second Liberty Bond Act of 1917, sometimes referred to as the statutory debt limit.

Here is a short history of this legislation:

"Before the debt ceiling was created, the President had free reign on the country's finances. In 1917, the debt ceiling was created during World War I to hold the President fiscally responsible. Over time, the debt ceiling has been raised whenever the United States comes close to hitting the limit. By hitting the limit and missing an interest payment to bondholders, the United States would be in default, lowering its credit rating and increasing the cost of its debt."

at http://www.investopedia.com/terms/d/debt-ceiling.asp

As we can clearly see now, the Second Liberty Bond Act of 1917, can sometimes for unusual, unexpected circumstances conflict with the 14th Amendment of the Constitution which requires:

Section 4.

"The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."

at http://www.law.cornell.edu/constitution/amendmentxiv

A substantial portion of the debt was accumulated as a result of our retaliation for the attack launched on our Country on September 11, 2001. This Section 4 of the 14th Amendment states the validity of the public debt ... incurred for payment of ... bounties for services in suppressing insurrection or rebellion shall not be questioned. I think it is safe to assume that the validity of the debt for responding to this Country being attacked would be within the intended scope of what the amendment states is unquestionably valid debt which should not be questioned. True, that is not what constitutes all of the debt but without that expense, our debt would not be as large.

But here is another important point. The Second Liberty Bond Act of 1917 is a Federal law. The 14th Amendment is a part of our Constitution, the highest law in the land. When there is a conflict in executing the intent of the 14th Amendment and adhering to the debt ceiling Federal Law, the Constitution I believe would have to prevail.

In order to eradicate the inevitable occasional conflict between these two referenced laws, it appears to me the solution to that problem is to repeal the debt ceiling legislation.

Importantly, the debt ceiling law was passed to keep the President of the United States "fiscally responsible" during wartime. Inasmuch as George W. Bush* kept 10.5 trillion dollars in debt off the general ledger and out of public sight during his two terms, he single-handedly proved by this action that this law is ineffective for the purpose for which it was intended! Repeal it now.

Another added benefit to doing so would be to eliminate the potential of the debt ceiling legislation being hijacked for nefarious political reasons which might possibly have the capability of producing great harm to our system of government.

This is my suggestion for reaching a middle ground of compromise between the House Republicans and the President of the United States on the two pending crises which threaten our government now. I do not see how any self-respecting politician could expect to publicly vote against a bill of this nature and still maintain any credibility but that is probably a naive expectation. However, repealing the debt ceiling is a compromise that would save face on both sides of the aisle, and that might be a welcomed opportunity by politicians of all political persuasions at this point.



This is not mere politics although it is being made to appear to be

Our political system is the venue under which their goals are camouflaged and that is the brilliance of it.

Breaking the economy of the United States was a stated goal of Osama Bin Laden. No one will argue that he was anything but a terrorist. But when a government official or officials surreptitiously develop a plan with private citizens to do the same thing, it is just politics. In other words, when a foreign enemy of the United States states this is his goal, he is a terrorist. When a citizen states this is his goal, he is a politician. That does not truly compute because in both instances the government suffers tremendous harm and folds.

I don't think this is mere politics. I believe the originators of the plan want to remake this Country into the image they would like, not necessary what the Constitution requires. Simply look at the fact that the Koch Brothers' father, for instance, helped co-found The John Birch Society. The last time I checked, about a year or so ago, David Koch's name was right there on the membership list. Most thinking people will agree The John Birch Society is an ultra right-wing organization:


"The organization identifies with Christian principles, seeks to limit governmental powers, and opposes wealth redistribution, and economic interventionism. It opposes collectivism, totalitarianism, and communism. It opposes socialism as well, which it asserts is infiltrating US governmental administration. In a 1983 edition of Crossfire, Congressman Larry McDonald (D-Georgia), then its newly appointed president, characterized the society as belonging to the Old Right rather than the New Right.[14]

The society opposed aspects of the 1960s civil rights movement and claimed the movement had communists in important positions. In the latter half of 1965, the JBS produced a flyer entitled "What's Wrong With Civil Rights?", which was used as a newspaper advertisement.[15][16] In the piece, one of the answers was: "For the civil rights movement in the United States, with all of its growing agitation and riots and bitterness, and insidious steps towards the appearance of a civil war, has not been infiltrated by the Communists, as you now frequently hear. It has been deliberately and almost wholly created by the Communists patiently building up to this present stage for more than forty years."[17] The society opposed the Civil Rights Act of 1964, claiming it violated the Tenth Amendment to the United States Constitution and overstepped individual states' rights to enact laws regarding civil rights. The society opposes "one world government", and it has an immigration reduction view on immigration reform. It opposes the United Nations, the North American Free Trade Agreement (NAFTA), the Central America Free Trade Agreement (CAFTA), the Free Trade Area of the Americas (FTAA), and other free trade agreements. They argue the U.S. Constitution has been devalued in favor of political and economic globalization, and that this alleged trend is not accidental. It cited the existence of the former Security and Prosperity Partnership as evidence of a push towards a North American Union.[18] Stuart A. Wright has said that their political racism, however, was not inconsistent with the views of either Republican or Democratic mainstream politicians at the time.[19]"

Just a clean reading of these two paragraphs reflect a lot of what Tea Party Republicans believe. It is my personal opinion that elements of The John Birch Society are intertwined with the shut-down currently in effect. It is also my personal opinion that this is not a coincidence but a realization of a long-term goal materializing by some who are pulling the strings of the Tea Party puppets.

Just think about it. How many times have we heard certain elements of the social safety net condemned in derogatory words as if to shame the participants: unemployment benefits, food stamps, medicaid, social security, the Affordable Care Act, just to name a few. These programs are sneered at by people who are opposed to socialism and/or a sharing of the wealth. Can't you still hear Michele Bachmann's words that Obamacare is socialism ringing in your ears?

And while some here are repulsed at the idea of calling what has happened here as anything but mere politics, I believe the proper course is to carefully re-think that conclusion. There are just too many things that suggest it simply is not.


Economic Treason: The definition of "treason" and could Republicans be guilty of this crime (Part 2)

On May 14, 2011, I wrote a thread here at DU entitled the same as this thread. Here is a link:


We have had several discussions recently on this subject, and I decided to go back and review the contents of my thread and the replies I received. This was prompted by a discussion on another thread in which 2naSalit and I became very interested in the subject, although the thread in which we were participating was of a different nature. So we decided to jointly start a thread on this specific question rather than hijack that discussion. This is that thread.

I hope if you are reading this, you will take a minute out and look at the contents of the linked thread and read some of the responses. Even today, I find the arguments initiated by some of the posters in response to my question very informative and interesting. I think you will too.

For those of you too busy to check out the link, here are a few paragraphs:

"Why is not the threat to make the U.S. government default on its debt the equivalent of economic treason? Every time one of the Republicans steps out and threatens to vote no on raising the debt ceiling, is he or she not giving aid and comfort to our enemies?

If a terrorist group boasts it will destroy the U.S. Government by breaking it economically, as the late Osama bin Laden himself repeatedly said he would do, is an American citizen threatening to cast a vote which will prevent the lifting of the current debt ceiling not giving aid and comfort to the enemy?

Keep in mind it is the Republicans themselves who boast that the late Ronald Reagan took down the Soviet Union simply by destroying its economy. By doing so, they imply this technique is an effective but non-violent approach to destroying one's political enemy.

When the Republicans started threatening to do this initially, I froze up with fear to think of the ensuing collapse. Of course, soon thereafter, I realized that was their purpose in making this threat: instill political paralysis through threatening to collapse our economy until they get what they want.

Of course, in order for a charge of treason to be made, we must be in a time of war. As we know, a formal declaration of war has not been declared by Congress. Still, with the recent "elimination" of Osama bin Laden, the use of extreme conduct by our military as so ordered by our Commander-in-Chief came with the explanation of that conduct being justified as acceptable in times of war. It would be awkward at best to make a legal case excusing a person charged with treason by a technicality that war has not been declared when arms of our government publicly speak in terms that we are.

I took my question a step further by looking up the term to find the precise definition. Here is a link to a full explanation. It is easy to see how a legal case could be argued either way under this definition, but please read it for yourself and let me know your reaction."

and here is a sampling of the diverse responses:

Poster #2: Are some of our trade agreements treason? They certainly have weakened our manufacturing capacity and therefore, our ability to be independent and self-sufficient as a nation.

Poster #30: Yes, if they deliberately default on the debt to punish the nation for political purposes.

Poster #32: As far as I'm concerned treason can only constitutionally be defined as giving actual aide to an enemy that the United States has declared war.

It's why the Rosenbergs were charged formally with treason, but "conspiracy to commit espionage." Same reason why Jonathan Pollard wasn't charged with treason.

Given the way this word has been thrown around loosely to target progressive activist, much to the detriment of our democracy, I'm not comfortable to doing the same thing even with people I think are horrible human beings. I'm for a very narrowly and strictly defined definition of treason.

This does not fall within in it."

Please note: the discussion on treaties alone is very interesting.

But another question that arose last night concerned whether or not the citizens of this Country could initiate a class action civil suit against the Tea Party minority determined to shut down our government. This question was prompted by the fact they cannot be impeached because the House has a Republican majority and the DOJ would probably never initiate any investigation because the hue and cry that would arise by the Republicans would accuse President Obama and his Attorney General of using the power of their offices to retaliate against their political opponents.

So if you have any thoughts you would like to contribute to issues in this thread, please share your thoughts. The question I raised with 2naSalit last evening was could the Tea Party Republicans be sued for malfeasance in office:

“ Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted not, to do. ”
—Daugherty v. Ellis, 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956) (internal citations omitted).

"The court then went on to use yet another definition, "malfeasance is the doing of an act which an officer had no legal right to do at all and that when an officer, through ignorance, inattention, or malice, does that which they have no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses their powers, they are guilty of malfeasance."


In summary, I have the feeling that if our politicians cannot remedy this type of behavior soon, the citizens of the Country need to step up to the plate and hit back at those who think shutting down our government is acceptable. Many, many people are going to be hurt by this. I think many of you will say that the way to hit back is at the polls, but that might be too late.

So the question is what can we as citizens do?

Thanks for reading.

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