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The New York Times, June 28, 1998

Under Clinton, the Presidential Pen Is Mightier Than Ever


WASHINGTON -- Bill Clinton is often perceived as a weak president -- a lame duck dogged by scandal, thwarted at many turns by a hostile Republican Congress. His campaign for tobacco-control legislation foundered this month in the Senate. To top it off, the Supreme Court last week denied him the power to kill specific items in tax and spending bills by line item veto.

But the perception of weakness is belied by a largely unnoticed reality. Clinton is continually stretching his executive and regulatory authority to put his stamp on policy. He has issued a blizzard of executive orders, regulations, proclamations and other decrees to achieve his goals, with or without the blessing of Congress.

In the summer of 1995, Clinton authorized the Food and Drug Administration to declare nicotine an addictive drug, clearing the way for the most significant government regulations in the history of the tobacco industry.

Last week, after the Senate killed a big anti-tobacco bill, Clinton ordered a survey of cigarette smoking among teen-agers as a way to identify those who market most effectively to underage smokers. Such market research was a key part of the bill that died in the Senate.

On a separate issue, Clinton last week ordered sweeping new protections for Medicare beneficiaries. The rules not only carry out a 1997 law, but go beyond it, adding many of the safeguards proposed by a presidential advisory commission -- for women, for people with serious illnesses and for patients who cannot speak English.

His critics say Clinton is legislating from the executive branch, often in defiance of Congress. His supporters say he is prodding, circumventing or overriding a do-nothing Congress that refuses to address the nation's major problems.

Presidents have used executive orders to work their will since the earliest days of the Republic, with the boldest actions coming in times of crisis. Lincoln freed the slaves by proclamation. Franklin D. Roosevelt created new agencies and placed Japanese-Americans in detention camps by executive order.

Clinton's more modest agenda is more suited to a time of peace and prosperity. A self-declared policy wonk, he is passionately interested in details of health, education and welfare programs that touch the lives of millions.

Critics say many of his initiatives are small-bore. Yet while ridiculing or denouncing some of them, Congress acquiesces in others to avoid tough decisions.

To some, this raises separation-of-powers concerns echoing those posed by the 1996 Line Item Veto Act, which was enacted in part to give members of Congress political cover by allowing the president to kill pork-barrel spending. The Supreme Court struck down the statute last week, saying it violated the procedures set forth in the Constitution for making law.

Jeremy Taylor, director of natural resource studies at the Cato Institute, says legislative authority has been ceded improperly to the executive branch in other ways. "This president distinguishes himself from past presidents by the aggressiveness with which he has expanded his authority without explicit congressional approval," Taylor said.

"The main culprit is Congress, for letting the president get away with this, and for delegating vague and broad discretionary powers to the executive in the first place."

In a recent speech, Taylor cited as one example telecommunications legislation mandating that the poor have access to the Internet and other forms of communication. Congress left the details to the Federal Communications Commission, and when the FCC came back to Congress to propose a tax on business to pay for such "universal access," he said, legislators were "shocked, shocked" at the proposed new spending.

Sometimes Clinton boldly carries off his novel use of presidential power, as when he tapped a special Treasury fund to bail out Mexico in 1995, over the objections of Congress. And sometimes he does not.

In March 1995, Clinton issued an executive order that barred federal agencies from signing contracts with companies that permanently replaced striking workers. He said he was simply exercising his power to set procurement policy for the government.

But the U.S. Chamber of Commerce denounced the executive order as a "political payoff" to organized labor, and the U.S. Court of Appeals for the District of Columbia struck it down, saying the president could not unilaterally "alter the delicate balance of bargaining and economic power" set by Congress in the National Labor Relations Act.

In the realm of foreign affairs and national security, Clinton takes "an expansive view of presidential power over military initiatives," said Louis Fisher, an expert on constitutional law at the Congressional Research Service.

Citing actions ordered by the president in Somalia, Haiti, Bosnia and Iraq, Fisher said that "Mr. Clinton's interpretation of presidential war power would have astonished the framers of the Constitution." Congress has substantial authority over foreign affairs, Fisher said, but in recent decades it "has failed to protect its prerogatives."

Clinton has also stretched his appointment power. After the Senate blocked the nomination of Bill Lann Lee to run the civil rights division of the Justice Department, Clinton defiantly named him acting assistant attorney general last December.

Lawyers at the Congressional Research Service say this designation appears to violate an 1868 law, the Vacancies Act, which in its current form sets a 120-day limit on such temporary appointments. The administration disagrees.

But Sen. Robert Byrd, D-W.Va., said the administration was flouting the law by using temporary appointments to fill 18 percent of the 320 positions subject to Senate confirmation at various departments. Without the 120-day limit, Byrd said, "no president need ever forward a nomination to the Senate." he preside

One of Clinton's most spectacular unilateral actions came in 1996, on the rim of the Grand Canyon, when he designated 1.7 million acres of Utah's red rock country a national monument. The step outraged Utah officials and many members of Congress, in part because it limits development of the land. But Congress failed to overturn the designation. And the rugged beauty of the area has become a tourist attraction, as well as a monument to presidential power.


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