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Executive Orders - Background Information 

During the recent presidential scandals, concluding with the impeachment of President Clinton, many people were heard to say that the investigations should end so that the president could get back to "the business of running the country." Under a constitution dedicated to individual liberty and limited government – which divides, separates, and limits power – how did we get to a point where so many Americans think of government as embodied in the president and then liken him to a man running a business?

The answer rests in part with the growth of presidential rule through executive orders and national emergencies. Unfortunately, the Constitution defines presidential powers very generally; and nowhere does it define, much less limit, the power of a president to rule by executive order – except by reference to that general language and the larger structure and function of the Constitution. The issue is especially acute when presidents use executive orders to legislate, for then they usurp the powers of Congress or the states, raising fundamental concerns about the separation and division of powers.

The problem of presidential usurpation of legislative power has been with us from the beginning, but it has grown exponentially with the expansion of government in the 20th century. In enacting program after program, Congress has delegated more and more power to the executive branch. Thus, Congress has not only failed to check but has actually abetted the expansion of presidential power. And the courts have been all but absent in restraining presidential lawmaking.

Nevertheless, the courts have acted in two cases – in 1952 and 1996 – laying down the principles of the matter; the nation’s governors have just forced President Clinton to rewrite a federalism executive order; and now there are two proposals in Congress that seek to limit presidential lawmaking. Those developments offer hope that constitutional limits – and the separation and division of powers, in particular – may eventually be restored.

William J. Olson and Alan Woll
Executive Orders and National Emergencies
How Presidents Have Come to "Run the
Country" by Usurping Legislative Power

CATO Institute, Policy Analysis, No. 358, Oct. 28, 1999

To read Mr. Olson and Mr. Woll's complete policy analysis, please click here.


It is not possible for a constitutional republic to maintain itself. A great and noble system of government requires perpetual vigilance on the part of its citizenry if it is to survive.

Sadly, within our own precious land, a subtle but virulent type of distortion has been taking place. The assault has been slow but persistent. It has occurred beyond the grasp and view of many Americans.

Most alarming, though, is that we now find ourselves in a situation where the rudimentary mechanisms of our republic, the actual underpinnings of our representative structure, are in danger.

At the superficial level, procedures appear to be routine in nature and government seems to be operating facilely. So by what means could so seemingly a solid and efficient system be threatened?

The instrument of destruction that hangs over us like the sword of Damocles goes by various titles, but most commonly it is referred to as the executive order. When used as originally intended, an executive order is a written method of communication that enables a president to facilitate and effectuate necessary administrative functions.

However, this tool has slowly been corrupted over time. It is now being used with the very intention of circumventing our system of representative government.

Most Americans would be shocked to find out that President Clinton, acting alone, has:

  • Taken legislation that was voted down by our elected representatives and, acting as a one-man Congress, signed it into law;
  • Resurrected a law that had previously been terminated by Congress, so as to alter policy relating to the export of sensitive technology;
  • Created secret laws that are unable to be seen, even upon written request, by the people, press, Congress, or even select intelligence committees of Congress;
  • Changed four decades of military policy, where previously a launch on warning was required if it were verified that an enemy missile was headed toward our mainland or our territories, to a launch on impact, where we are required to sustain a potentially devastating nuclear missile hit, with likely casualties, before we respond;
  • Erased a crucial, foundational part of our Constitution, the Tenth Amendment;
  • Implemented unratified international treaties, ignoring the constitutional requirement of the two-thirds approval vote by our duly elected representatives in the Senate;
  • Secretly assigned our troops to the United Nations and placed them under foreign command;
  • Enabled United Nations representatives in a given NGO to be immune from legal action for violations of law;
  • Placed the country in a state of emergency that allows the president, or others in his administration, to suspend the Bill of Rights and the Constitution at will.

Every American citizen should find the above list of items extremely disconcerting. But equally distressing is the fact that the present administration plans to accelerate its approach further still.

And so, with an urgency that has rare parallels in our history, we must determine how to stop the ever-increasing, pernicious usurpation of power that has been occurring through Bill Clinton’s abuse of the executive order process.

James L. Hirsen, J.D., Ph.D.
Executive Orders and the Demise of Liberty
November 12, 1999


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