A Libertarian-minded Defense of Presidential Alerts

Today was the first ever national test of the system which can send Presidential Alert notices to almost every cell phone in the country. We've joked about it, which is good. We've also wondered, do we need to be worried that this could be abused? Is the ability to send a national, “no opting out” text message too much power for a President known for rash tweets? 

One thing to ask is whether there is a law from Congress that allows the Executive Branch to implement this system and strictly controls its use. And in fact, there is just such a law. This is from the Integrated Public Alert and Warning System Modernization Act of 2015: 

Except to the extent necessary for testing the public alert and warning system, the public alert and warning system shall not be used to transmit a message that does not relate to a natural disaster, act of terrorism, or other man-made disaster or threat to public safety. 

Okay, good. As long as the President keeps to this rule, and only sends scheduled test messages, or messages related to those specific types of emergencies, this doesn't look like a case of executive overreach. Granted, presidents have been abusing their powers for about as long as I can think back, but so far, this power hasn't been abused. Yet. The system and the test itself is allowed by the law passed by Congress. But what about legislative overreach? Is this law constitutional?

Unlike many of our representatives from both sides of the aisle, I have a very strong opinion that Congress's authority should be very, very strictly bound by the Constitution. The Constitution sets up a list of Enumerated Powers, and says that additional powers should be “necessary and proper” for supporting those that are enumerated.

We all know that “national instant texting” isn’t an enumerated power. But are any of those powers in line with the spirit, at least, of a national communication? I think that we actually have a couple of candidates. Please go with me here, my fellow Libertarians:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; 

This catches my interest because I remember that under early constitutions and laws, the Militia didn’t refer to the army or the national guard. It was the people. Many constitutions defined the Militia to include any able-bodied person willing to take up arms, if needed, and answer the call.

I’m sure that very few, if any, people in FEMA or even all of Washington D.C. think much this way. A FEMA alert is more likely to read “Get out of the way!” than “To arms, to arms!”. But in many natural disasters that we, as a nation, have handled best, the people haven’t just waited for Washington to come to our rescue. The true first responders have been the citizens willing to hitch their boat to their pickup and look for flood survivors to rescue, or load up their own trailers with donated food and water. Might this be the true citizen Militia of today, or at least in the spirit of it? Might a national alert be a "proper" way to call forth the Militia in this day and age?

We still have room for questions and concerns. The fact that there is no opt-out is concerning, but if we were to all opt out of this calling forth, then we would find ourselves with no Militia. I would also like to know whether cell carriers are participating in this out of civic duty, or out of some improper coercion. Obviously, I would prefer voluntary participation, and full transparency. 

Please feel free to disagree, debate, and challenge me here. If there’s one thing we Libertarians believe, it is that we are all free to have our own opinions. I don’t think that we need to be in lockstep, as long as we are all headed toward more freedom.