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When presidential lawmaking gets out of control, it becomes unconstitutional--or just comical.

Executive Disorders

By Dan Seligman, Forbes, 7/3/00

IN THE EVENT YOU HAVE FAILED TO NOTICE THAT PRESIDENT Clinton is on an executive-order kick, check out the Web site of the National Archives & Records Administration. During the first 88 months of his Administration Bill established an executive order issuance rate averaging 3.6 per month. But in his 89th month--that would be May 2000--he published eight such orders. The science of statistics tells us that the odds against any such jump's occurring by chance are 36-to-1, while the science of Beltway Kremlinology makes it 1-to-10 that the May data reflect desperate efforts to counter perceptions of irrelevant lame duckery.

Possibly you are wondering how I happened to notice the executive order surge. What got me going was the Mel Brooks movie High Anxiety. One evening early in May, for possibly the fourteenth time, I was watching a tape of this opus, Mel's immortal send-up of the psychoanalytic profession. As always, he had me guffawing loudly at the climactic scene wherein he finally gains the familial insight that cures his acrophobia, and yells out, while clinging to a collapsing sky-high staircase: "I understand now! I understand now! It's not heights I'm afraid of. It's parents!" The next day I picked up the papers and read that Clinton had issued an executive order barring job discrimination against parents. This seemed even funnier than Mel Brooks.

Some executive orders are based on the President's constitutional obligation (set forth in Article II) to "take care that the laws be faithfully executed"--meaning that he gets to flesh out the details of statutes and treaties and make them operational. Some orders reflect the President's role as commander-in-chief, although there is plenty of argumentation about how much leeway that gives him. Not controversial nowadays is the executive order issued by Abraham Lincoln in 1863, based on his status as commander-in-chief, and known as the Emancipation Proclamation. There is no doubt at all that the President is free to issue executive orders that consist of 100% political pandering. Here a fair example would be Clinton's June 1999 order promoting more federal benefits for Asian Americans and Pacific Islanders.

So how far can the President go in issuing executive orders? The Constitution nowhere supplies a crisp answer. But this much is clear: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb." Those often-quoted words, written by Justice Robert Jackson, are from a 1952 Supreme Court decision resoundingly rejecting Harry Truman's takeover of the steel industry. Truman was using the takeover in an attempt to end a nationwide steel strike, said to constitute a national emergency. But, as the Court pointed out, Congress had considered and rejected labor legislation that would have legitimized national takeovers in times of emergency.

Just looking at the numbers, you would have to say that Bill Clinton has not been among the most prolific order-issuers. At last count his executive-order total was around 330--nowhere near the record of 3,728 set by Franklin D. Roosevelt. But our present President does have a habit of skirting close to the "lowest ebb" limits implied in Justice Jackson's opinion, and, except for Truman, he is the only President who issued an order later declared unconstitutional.

This happened in 1996, and came on the heels of Clinton's executive order stating that the federal government would no longer do business with corporations that permanently replaced striking workers. In an age when just about all large corporations are federal contractors, this use of the procurement power would have effectively rewritten the National Labor Relations Act--and done so in the face of repeated congressional refusals to ban permanent replacements of strikers. The executive order was struck down by the District of Columbia Court of Appeals, and Clinton prudently declined to ask for a Supreme Court review.

His executive-order outburst in May included one entry solidly anchored to his indisputable rights as commander-in-chief. This was Order No. 13154, establishing a "Kosovo Campaign Medal with suitable appurtenances." The Kosovo campaign was conducted without a single American death. The executive order nevertheless provides for posthumous awards, thus covering the awful possibility that some Kosovo veteran would die before collecting the medal with appurtenances.

Another May entry, Order No. 13157, was clearly legitimized by prior congressional passage of the Small Business Act. The purpose of this executive order was to reduce opportunities for men running small businesses. Possibly for public relations reasons, the order was craftily titled "Increasing Opportunities for Women-Owned Small Businesses."

As we have been hinting here, some executive orders just seem risible. This would definitely be true of Order No. 13152, issued on May 2 and sternly warning personnel in the federal government that they had better not discriminate against parents--defined so as to include stepparents, custodians of a legal ward and folks "in loco parentis" of children, a category that arguably gets us to camp counselors. The order was unaccompanied by any data suggesting that parents are, in fact, discriminated against in federal employment, but it was accompanied by a presidential comment reminding federal workers not to take their jobs too seriously. Said Bill: "This order simply says: No glass ceiling for parents. The job they are doing at home is more important, anyway."

He could be right, at that.

Another entry in Clinton's May flurry is not at all risible, in part because of the executive order's background, in part because it represents an incredible challenge to the "lowest ebb"rule. Order No. 13155 comes against the background of the ghastly African AIDS epidemic, which is almost certain to kill many millions in the decade ahead. Under huge international pressure to do something, the pharmaceutical companies that manufacture antiretroviral drugs effective against AIDS have announced price cuts of up to 90% on all shipments to sub-Saharan Africa. But, given the poverty of the continent and the magnitude of the emergency, that won't begin to solve the problem.

Hence the executive order--which also will do little or nothing to reduce AIDS deaths. What it does is get the President and Al Gore out of a bind. They got into it by initially threatening to invoke economic sanctions against South Africa for its passage of laws threatening the patent rights of American pharmaceutical companies. The laws in question would allow local companies to manufacture generic versions of the AIDS drugs, and sanctions are the standard response to any such violations of intellectual property rights. A year ago Gore himself traveled to South Africa and told its leaders that this is precisely what they should expect if they pursued the violations. But the Vice President's campaign was later seriously embarrassed by AIDS activists accusing him of taking "blood money" from the drug industry.

The executive order deals with this political problem by stating that the U.S. Government now "prohibits" any such sanctions. As the Supreme Court may one day note, Congress considered but ultimately rejected a similar rule in its latest African trade legislation. Both Clinton and his trade representative Charlene Barshefsky have squarely stated that the executive order was issued precisely because Congress declined to write the rule into law.

Definitely not risible.


 

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