In a speech to the Commonwealth Club, San Francisco, November 23, 2010, Peter Dale Scott gave a history of the various directives concerned with government continuity during a state of emergency. He showed that these directives could be used to supersede the Constitution.
The ease with which both the Bush and Obama regimes were able to set aside the due process protections of the Constitution that prohibit indefinite detention and execution without conviction in a trial indicate that Professor Scott's concern is justified that these directives could result in executive branch rule.
Scott describes how the executive branch efforts to provide government continuity in the aftermath of a nuclear attack dating from the Eisenhower administration were gradually converted into executive or national security (later Homeland Security) orders that confer secret powers to the White House for any event that the executive branch considers to be an emergency.
Generally these various executive orders and directives refer to "national emergencies," or "national disasters." However, President Bush's National Security Presidential Directive/NSPD 51 and Homeland Security Presidential Directive/HSPD-20 issued on May 9, 2007, use the term "Catastrophic Emergency."
The directives speak of "enduring constitutional government" which the president maintains by coordinating "as a matter of comity with respect to the legislative and judicial branches," but it is up to the president and his advisor, the National Continuity Coordinator, to decide what constitutes constitutional government during a catastrophic emergency.
What comprises a catastrophic emergency? It is reasonable for a president to regard a government shutdown, which can threaten everything from national security to default and economic collapse, as a catastrophic emergency, and to take such steps as are necessary to prevent it, such as raising the debt ceiling, on his own authority.
The Federal Reserve also has the power to prevent a government shutdown. If banks are too big to fail, so is the federal government. If the Federal Reserve on its own authority can issue more than $16 trillion in loans to US and European banks in order to prevent their failure, the Federal Reserve can issue a loan to the US government.
I don't expect either of these two possibilities to come into play. A shutdown and default of US debt obligations would terminate the US as a superpower and dethrone the dollar as world reserve currency. Neither Congress nor President Obama desire such an outcome. Also, Congress would not want a presidential directive to be implemented that subordinates their position and possibly eliminates their meaningful participation in governance. Therefore, I expect a resolution of the current standoff prior to the Treasury running out of money.
I did interviews on this subject with King World News and with Greg Hunter. The interviews are played to the sensational side, but I do not expect it to go that far. However, it could.
My interview with King World News is relatively short, but Eric King knows how to bring it to the most controversial point. What everyone should wonder is, "How did we, a free people protected by the US Constitution, become one step away from rule by Caesar?
My interview with Greg Hunter of USA Watchdog is, in my opinion, one of my best. The interview covers a broad range of issues or possibilities and makes it unnecessary for me to write a column about the government shutdown and its implications and possible consequences.
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