Magazine | Vol. 15, No. 31 | August 23, 1999
Published Date July 30, 1999, in Washington, D.C.
Rule, Abuse of Power?
never intended that the president should rule by executive
decree, usurping the legislative role of Congress. But a top
Clinton aide has called this option 'kinda cool.'
Washingtonians will tell you they used to have a view of the
river from their house. Now they no longer have a river
view; they no longer have their house. Instead, federal
offices filled with bureaucrats populate the city. During
the course of the last 150 years, the role of president of
the United States has grown exponentially, as has his team
of workers. Many Americans, critics claim, have been asleep
as one stealth presidency after another has usurped the
judicial authority of Congress by means of executive orders,
presidential directives and proclamations.
The Constitution dictates that the laws shall originate
in Congress and the executive branch shall see that they are
"faithfully executed" (Article II, Section 3). In
George Washington's day, executive orders were no more than
administrative directives to federal employees. "They
have grown," says Bill Olsen, a constitutional lawyer
and former Reagan administration official, "to be a
deliberate strategy to circumvent the Congress and the
legislative function." The more executive orders on the
books, the more the need for a huge tax-funded bureaucracy
to administer them.
President Clinton has not been shy about signing his name
to executive orders. Since his inauguration he has issued
nearly 300, and his critics claim that he has been reckless,
ordering more than his predecessors. Not so. Franklin D.
Roosevelt issued 3,522, Woodrow Wilson issued 1,803, and
Honest Abe Lincoln is the only U.S. president to have
declared martial law by executive order -- which he did
twice. Unlike Clinton, "all three of these presidents,
however, governed in wartime, a national emergency which
often gives rise to expanded executive authority," says
political analyst Michael Warder of the California-based
In 1974, a special Senate Committee on National
Emergencies and Delegated Emergency Powers was alarmed to
find that the United States had been governed under
emergency authority since 1933. Committee cochairman Sen.
Frank Church of Idaho cautioned: "It is distressingly
clear that our constitutional government has been weakened
by 41 years of emergency rule." Emergencies declared by
FDR and Harry Truman still were in effect, for example, and
the committee found that over time aggressive presidents had
subsumed 470 legally delegated powers from permissive
Congresses to govern beyond normal constitutional powers.
The law allowed presidents to seize property, control
production, restrict travel and institute martial law. In
other words, "Presidents could manage every aspect of
the lives of all American citizens," Church wrote.
The 1974 National Emergencies Act sunsetted all existing
emergencies at that time. Congress then passed legislation
in 1976 and in 1985 allowing termination of any national
emergency by joint resolution, though no such resolution has
Olsen argues that more citizens know about executive
abuses than do congressmen, whom he chastises for having
been "supine" in their response to presidential
This may be changing, however. Republican Rep. Jack
Metcalf of Washington state introduced a resolution this
year (HR30) to express the sense of Congress that any
executive order infringing on the constitutionally delegated
congressional powers must be considered for advisory
purposes only and be ineligible for federal funds.
Cliff Kincaid of the American Sovereignty Action Project
believes Metcalf's approach is the best course of action.
Kincaid's group held a conference in early July to highlight
unconstitutional executive orders and presidential abuses of
power. Because the Metcalf bill is a resolution, it only can
serve to heighten awareness of the issue, and Kincaid
rightly notes that any legislation with teeth is almost
certain to be vetoed by the president.
Republican Rep. Ron Paul of Texas has a different
approach. He notes that some executive orders are necessary,
legitimate and constitutional. "Others are abused and
are way overstepping their bounds," he tells Insight.
Paul has proposed legislation called the Separation of
Powers Restoration Act, which would provide that whenever
the president signs an executive order under the auspices of
Article II it may be applied only to federal employees, with
constitutional duties such as activities pursuant to the
military and his role as commander in chief protected.
Presidential orders issued to accord with unratified
treaties would be illegal, as would orders to support
ratified treaties that violate the laws of states and local
The Paul bill would rescind existing laws that have
violated the separation of powers, put to bed every national
emergency in effect and give standing in court to members of
Congress, local governments and other people aggrieved by
executive orders. An aide to Paul tells Insight that a
possible presidential veto would provide momentum to get the
two-thirds votes necessary to override a veto.
A nonprofit grass-roots organization of concerned
citizens and congressmen recently was formed to redress
alleged presidential abuse of executive orders. On the
Internet at http://www.executiveorders.org, the group is
part of the Liberty Study Committee. "For many years
the president, regardless of what party, has been
concentrating more power into his own hands by taking away
legislative powers of Congress," says Kent Snyder,
executive director of the Liberty Study Committee. "We
are going to be relentless." The new group will focus
entirely on informing the public and Congress about progress
of the Paul legislation through the Internet, fax and direct
Why can't this powers conflict be left to the judiciary?
Only two executive orders have been overturned by the
courts: a Truman order seizing strike-threatened steel mills
during the Korean War (Youngstown Steel and Tube Company vs.
Sawyer, 1952) and a Clinton order prohibiting federal
contracts being awarded to companies that hire permanent
replacements for striking employees (U.S. Chamber of
Commerce vs. Reich, 1995).
FDR's Executive Order 9066 was upheld by the Supreme
Court authorizing the dislocation of Japanese-Americans to
confinement camps during World War II. The court ruled that
the president had acted to safeguard the national interest
Congressional action and court cases to deal with
legislative usurpation by the president take time. The
president, however, can issue executive orders quickly. Last
summer, presidential aide Paul Begala became enamored of
this option. "Stroke of the pen, law of the land. Kinda
cool," he commented as the president discussed plans to
issue a series of executive orders upon returning from his
1998 trip to China.
Tom DeWeese of the American Policy Center cites what he
regards as severe abuses of executive orders by Clinton. He
has plenty of company. Among current irritants are:
Invasive Species Executive Order 13112, issued in
February, prevents the introduction of invasive species to
public property. DeWeese cautions that because alien
species is defined as any species, "including seeds,
eggs spores or other biological material capable of
propagating that species that is not native to that
ecosystem," alien species could be defined to include
a farmer's cattle or even the family dog.
Implementation of Human Rights Treaties Executive Order
13107 calls on the U.S. government to implement
human-rights treaties to which the United States now is or
may become party in the future. According to the
Constitution the Senate alone may ratify treaties, not the
president acting on his own authority.
American Heritage Rivers Initiative Executive Order
13061 has caused considerable consternation in Congress.
The president designated 14 rivers as federal property --
part of America's heritage to be seized by the federal
government regardless of whether they run through private
property. Estimates of the program's cost reach $5
million, none of which has been appropriated by Congress.
House Natural Resources Committee Chairman Don Young of
Alaska and Rep. Helen Chenoweth of Idaho, both
Republicans, have filed suit to halt the initiative.
Federalism Executive Order 13083 established federal
jurisdiction over states in matters not enumerated in the
Constitution. The president suspended this order after a
public outcry and much media attention that accused him of
attempting to rewrite the Constitution.
Council on Sustainable Development Executive Order
12852 centers on the fact that federal and local programs
are being set up to ensure that Americans sustain the
environment. Suburban housing, air conditioning, high meat
intake, frozen and convenience foods, fossil fuels and
kitchen appliances are not listed as sustainable.
Revocation of Certain Executive Orders Concerning
Federal Contracting 12833 overturned President Bush's
endorsement by executive order of the Supreme Court ruling
in the Communications Workers vs. Beck case that workers
for companies under federal contract do not have to pay
union dues as a condition of employment.
Meanwhile, Clinton has declared no less than 14 states of
national emergency. This compares to five for Bush and six
for Ronald Reagan. In early July, the president declared a
state of national emergency based upon a suspected terrorist
threat allegedly posed by the Afghan Taliban. Most
Americans, no doubt, are unaware that Clinton also declared
a national emergency based upon Burma's oppression of
"The usurpation of power started quietly and has
gained respect over time," warns Metcalf. And
Republican Rep. Roscoe Bartlett of Maryland cautions that if
something doesn't change soon the executive branch will
continue to expand by executive order and "we'll need