The New York Times, June
Under Clinton, the
Presidential Pen Is Mightier Than Ever
By ROBERT PEAR
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
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
"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
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
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
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
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.