Obama’s Final Loophole: The “Catastrophic Emergency” Clause?

Zero Hedge
July 31, 2011

Politico’s Ben White has pointed out something interesting, namely that while the 14th Amendment may or may not be practical under the current situation (especially not without a full blown constitutional crisis), one potential loophole that Obama may have comes from none other than former president Bush, in the form of the Homeland Security Presidential Directive-20, one which deals with such trivia as “Catastrophic Emergency”, “Continuity of Government”, “Continuity of Operations”, and lastly, and perhaps somewhat ironically, “Enduring Constitutional Government.”

Considering the amount of doom and gloom spun by the government is bigger than anything seen even under Hank Paulson, could this “crisis” be interpreted by the constitutional scholar as one that merits the invocation of Homeland Security privileges? Is America’s maxing out its credit card comparable to a nuclear or terrorist attack on the continent? We may find out in less than 48 hours.

So, for your reading pleasure, here is National Security and Homeland Security Presidential Directive51/20
NATIONAL SECURITY PRESIDENTIAL DIRECTIVE/NSPD 51
HOMELAND SECURITY PRESIDENTIAL DIRECTIVE/HSPD-20
Subject: National Continuity Policy
Purpose

(1) This directive establishes a comprehensive national policy on the continuity of Federal Government structures and operations and a single National Continuity Coordinator responsible for coordinating the development and implementation of Federal continuity policies. This policy establishes “National Essential Functions,” prescribes continuity requirements for all executive departments and agencies, and provides guidance for State, local, territorial, and tribal governments, and private sector organizations in order to ensure a comprehensive and integrated national continuity program that will enhance the credibility of our national security posture and enable a more rapid and effective response to and recovery from a national emergency.
Definitions

(2) In this directive:
(a) “Category” refers to the categories of executive departments and agencies listed in Annex A to this directive;
(b) “Catastrophic Emergency” means any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions;
(c) “Continuity of Government,” or “COG,” means a coordinated effort within the Federal Government’s executive branch to ensure that National Essential Functions continue to be performed during a Catastrophic Emergency;
(d) “Continuity of Operations,” or “COOP,” means an effort within individual executive departments and agencies to ensure that Primary Mission-Essential Functions continue to be performed during a wide range of emergencies, including localized acts of nature, accidents, and technological or attack-related emergencies;
(e) “Enduring Constitutional Government,” or “ECG,” means a cooperative effort among the executive, legislative, and judicial branches of the Federal Government, coordinated by the President, as a matter of comity with respect to the legislative and judicial branches and with proper respect for the constitutional separation of powers among the branches, to preserve the constitutional framework under which the Nation is governed and the capability of all three branches of government to execute constitutional responsibilities and provide for orderly succession, appropriate transition of leadership, and interoperability and support of the National Essential Functions during a catastrophic emergency;
(f) “Executive Departments and Agencies” means the executive departments enumerated in 5 U.S.C. 101, independent establishments as defined by 5 U.S.C. 104(1), Government corporations as defined by 5 U.S.C. 103(1), and the United States Postal Service;
(g) “Government Functions” means the collective functions of the heads of executive departments and agencies as defined by statute, regulation, presidential direction, or other legal authority, and the functions of the legislative and judicial branches;
(h) “National Essential Functions,” or “NEFs,” means that subset of Government Functions that are necessary to lead and sustain the Nation during a catastrophic emergency and that, therefore, must be supported through COOP and COG capabilities; and
(i) “Primary Mission Essential Functions,” or “PMEFs,” means those Government Functions that must be performed in order to support or implement the performance of NEFs before, during, and in the aftermath of an emergency.
Policy

(3) It is the policy of the United States to maintain a comprehensive and effective continuity capability composed of Continuity of Operations and Continuity of Government programs in order to ensure the preservation of our form of government under the Constitution and the continuing performance of National Essential Functions under all conditions.
Implementation Actions

(4) Continuity requirements shall be incorporated into daily operations of all executive departments and agencies. As a result of the asymmetric threat environment, adequate warning of potential emergencies that could pose a significant risk to the homeland might not be available, and therefore all continuity planning shall be based on the assumption that no such warning will be received. Emphasis will be placed upon geographic dispersion of leadership, staff, and infrastructure in order to increase survivability and maintain uninterrupted Government Functions. Risk management principles shall be applied to ensure that appropriate operational readiness decisions are based on the probability of an attack or other incident and its consequences.

(5) The following NEFs are the foundation for all continuity programs and capabilities and represent the overarching responsibilities of the Federal Government to lead and sustain the Nation during a crisis, and therefore sustaining the following NEFs shall be the primary focus of the Federal Government leadership during and in the aftermath of an emergency that adversely affects the performance of Government Functions:
(a) Ensuring the continued functioning of our form of government under the Constitution, including the functioning of the three separate branches of government;
(b) Providing leadership visible to the Nation and the world and maintaining the trust and confidence of the American people;
(c) Defending the Constitution of the United States against all enemies, foreign and domestic, and preventing or interdicting attacks against the United States or its people, property, or interests;
(d) Maintaining and fostering effective relationships with foreign nations;
(e) Protecting against threats to the homeland and bringing to justice perpetrators of crimes or attacks against the United States or its people, property, or interests;
(f) Providing rapid and effective response to and recovery from the domestic consequences of an attack or other incident;
(g) Protecting and stabilizing the Nation’s economy and ensuring public confidence in its financial systems; and
(h) Providing for critical Federal Government services that address the national health, safety, and welfare needs of the United States.
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