Washington Times | 08/23/1999
executive orders still are packing a punch Other presidents
issued more, but many of his are sweeping
Frank J. Murray
Clinton is literally writing his legacy with his own pen by
signing one controversial executive order after
good on a vow to pick up where Congress leaves off, Mr.
Clinton has posted 301 formal executive orders and
generated a storm from opponents who say the orders push
the limits of presidential power.
president has used that extraordinary power to revamp civil
service rules for workers with psychiatric disabilities, ban
discrimination against homosexuals in civilian federal jobs,
halt dealings with federal contractors who use products made
by foreign child labor, declassify vast stacks of old files,
change contracting practices to give Asian-Americans and
Pacific Islanders a bidding edge, revise food labeling,
restrict smoking in government offices, revamp encryption
export rules and intervene in a Philadelphia transit strike.
of the pen, law of the land. Kind of cool," says former
Clinton adviser Paul Begala, dismissing objections of
critics who despise the process as unconstitutional
lawmaking, no matter which president uses it.
a stroke of the pen, he may have done irreparable harm to
individual rights and liberties," says House Majority
Leader Dick Armey, Texas Republican, who accepts two
premises many resist - that such orders do not
require congressional approval, and that they have the force
Clinton seems bent on using his powers until someone says
stop," Mr. Armey said. "President Clinton is
running roughshod over our Constitution."
confuse matters, the process of issuing executive orders is
spelled out by executive order. The absence of clear
boundaries infuriates those who seek to rein in presidents
from governing by fiat.
presidents have used executive orders to close banks
in the Depression, intern Japanese-Americans during World
War II, desegregate the armed forces, ban assassination of
foreign leaders, build the Alaska Railroad, protect
endangered species, intervene in labor strikes, allow
affirmative action for racial and ethnic minorities and
block foreign assets during a string of national emergencies
almost unbroken since 1933.
have issued executive orders that exceeded the wishes
of Congress since George Washington's 1793 "neutrality
order" demanding that citizens stay out of foreign
disputes. Such orders have been withdrawn under
political pressure or derailed internally before they were
signed, but only twice in history have federal courts
directly overturned one, legal experts say.
included Mr. Clinton's 1995 directive barring federal
contractors from hiring striker replacements, which
conflicted with existing law, and President Truman's 1952
order seizing steel mills in order to avoid a nationwide
strike. The Supreme Court nullified the latter because the
president acted during the Korean conflict under
"emergency" war powers even though no war was
the Supreme Court has essentially ruled over time that the executive
orders have the force and effect of law. Well, they
don't, but if nobody's there to challenge them they continue
to carry the effect and force of law," argued Rep. Jack
Metcalf, Washington Republican, leader of a brewing
rebellion in the House for which he predicts only symbolic
Ron Paul, Texas Republican, went Mr. Metcalf one better and
filed a bill seeking to designate executive orders only
as advisory without the force of law, unless Congress
approves. His proposed Separation of Powers Restoration Act
would limit their effect except in cases of pardons,
military orders or directives required by a specific
J. Olson, a constitutional lawyer who formerly worked in the
Justice Department Office of Legal Counsel - which along
with Office of Management and Budget approves every executive
order for legality - is preparing a research paper for
the Cato Institute that charges Mr. Clinton with using executive
orders as a substitute for legislative consideration by
is a deliberate plan to usurp legislative function, and
unfortunately most of the time he has faced a Congress that
could be described as supine," Mr. Olson said.
numbering, now at 13132, began on Oct. 20, 1862, when
Abraham Lincoln signed No. 1, establishing a
"provisional court" for Louisiana.
oldest orders still on the books are Nos. 703 and
705, issued Oct. 23, 1907, by President Theodore Roosevelt
to protect endangered species. Mr. Roosevelt is credited -
or blamed - for expanding the practice in number and scope.
has been asleep at the switch, at least since Teddy
Roosevelt, and it is very difficult all these years later to
transplant a backbone into Congress but essential that it be
done," Mr. Olson said.
practical terms, Mr. Olson points out, a confrontation now
would require Congress to pass a bill blocking an order,
then muster two-thirds majorities in both houses to overcome
a presidential veto of that bill.
see irony in the fact that Mr. Clinton took heat during his
first days on the job for an executive order he
wouldn't sign. In 1993, under fire from Congress, he reneged
on campaign promises to let homosexuals serve openly in
still generates controversy over executive orders ,
but now the core complaint is that Mr. Clinton, in effect,
is not staying within his constitutional authority to
"take care that the laws be faithfully executed."
you're running the government you want the agencies of
government to act according to the law. Prudent management
dictates that you inform people on how they can fulfill the
laws," said James E. Kennedy, special adviser to the
White House counsel, who argued that Mr. Clinton follows the
same policy as every other president.
Kennedy minimized the impact of Mr. Clinton's Executive Order
13087, signed May 28, 1998, amending a 1969 equal
opportunity order to add "sexual orientation,"
meaning homosexuality, to the list of factors on which
federal hiring could not discriminate.
Executive Order 13087 does not reflect any new policy
and creates no new law," Mr. Kennedy said. He did not
explain why adding a category to a provision with the force
of law didn't reflect new policy.
potential for a president to leave his personal stamp on
government is tempting. Mr. Clinton served notice last
summer that he would use the orders to advance his
agenda despite congressional gridlock.
of executive orders often are frustrated in attempts
to galvanize public opinion against arcane language and
euphemisms used in writing them, which do not always clearly
indicate the author's goal.
Bob Barr, Georgia Republican, introduced two bills to block Executive
Order 13107, on grounds that the Dec. 10, 1998, action
implemented three agreements on human rights, torture and
racial discrimination "that were never given the advice
and consent of the Senate."
Barr's charge sparked a prairie fire on talk radio that
still smolders. Even members of Congress with a deep
interest in the issue do not all realize that the
congressman withdrew his accusation on Feb. 4 in a written
"extension of remarks."
clarification, these treaties did in fact pass the Senate by
voice vote," Mr. Barr said. But he vowed to continue
the fight on the theory that the Senate vote on the
agreements may have been unconstitutional.
reactions to 1970s news articles about the long-standing
national emergencies led to a study by a select bipartisan
Senate committee and a cure that proved only temporary.
vast range of powers, taken together, confers enough
authority to rule the country without reference to normal
constitutional processes," the committee said in a 1978
report describing the impact of just four emergencies then
terminated all four that year and started over by setting up
a new system of annual renewals to preclude perpetual states
of emergency. The gesture turned out to be hollow.
Nov. 14, 1979, President Carter declared the next emergency
during the Iran hostage crisis, and it is still in effect
today. Executive orders renewing emergency
declarations have become routine unnoticed paperwork.
13 such national emergencies are in effect. Two were
originally declared by Mr. Carter, including the 1979 Iran
emergency, and two by President Bush.
Clinton emergency order continued export controls after a
law on the subject expired in 1994. The rest permitted
sanctions, economic controls or other powers relating to
foreign policy crises involving Iran, Iraq, Libya,
Afghanistan, Burma, Sudan, Yugoslavia, Angola and Cuba,
Colombian drug-runners, terrorists threatening the
"Middle East peace process," and proliferation of
nuclear or chemical weapons.
committee identified about 500 existing laws that take
effect when a president declares an emergency by executive
order. They include vast powers to seize property,
commodities, fuel and minerals; organize and control the
means of production, including compulsory job assignments
for civilians; assign military forces abroad; institute
martial law and force civilian relocation; seize and control
all forms of transportation and restrict travel; seize
communications and health facilities; regulate operation of
private enterprise; require national registration through
the postal service, or otherwise control citizens' lives.
Clinton incorporated all those powers into his arsenal in Executive
Order 12919 on June 3, 1994, as recent presidents since
John F. Kennedy have done.
order must cite an authorizing statute and theoretically
be aimed at government agencies under the president's
Begala said that Mr. Clinton did not conceal his intent to
make ample use of executive orders .
is an activist, muscular president," Mr. Begala said in
an interview, recalling that Mr. Clinton chided Mr. Bush in
1992 and said he intended to use the powers of the
presidency to the fullest.
you won't use the powers of the presidency to help people,
step aside. I will," Mr. Begala quoted the president as
telling Mr. Bush.
Mr. Clinton knew what some detractors do not: Presidential
successors of the opposite party do not lightly wipe the
slate clean of every order, or even most of them.
on the books 54 years after his death are 80 executive
orders issued by Franklin D. Roosevelt. No less than 187
of Mr. Truman's orders remain, including one to end
military racial segregation, which former Joint Chiefs of
Staff Chairman Colin Powell praised for starting the
Truman gave us the order to march with Executive Order
9981," Mr. Powell said at a July 26, 1998 ceremony
marking its 50th anniversary.
Truman's final order, issued one day before he left office
in 1953, created a national security medal of honor for the
nation's top spies, which is still highly coveted and often
revealed only in the obituary of its recipient.
uncontradicted statements attributed to Rush Limbaugh that
Mr. Clinton issued more executive orders than any
prior president, his numbers are at the low end for recent
presidents, despite questions about content. Mr. Clinton has
averaged 45.8 executive orders a year, the least
among the last eight presidents except for Mr. Bush, who
averaged 42 per year.
Carter leads the pack with 80 per year, followed by Mr.
Kennedy (76), and Gerald Ford (70). All, however, fell
behind a pace that averaged 96 orders per year since
Metcalf signed up 72 co-sponsors for his joint resolution to
call a halt to this practice, including House Judiciary
Committee Chairman Henry J. Hyde, Illinois Republican.
Executive orders that press beyond the legitimate
powers the president has are a violation of the
Constitution. The president can't do things that require the
spending of money," Mr. Metcalf said in an interview.
the White House seemed to reach that conclusion last year,
in the face of bipartisan outrage by the nation's governors
over a 1998 order drastically changing federalism rules. The
order galvanized opponents to such fury that the White House
took the unprecedented step of suspending it in August 1998,
three months after it was signed.
document, Executive Order 13083, junked a working
arrangement with the states that President Reagan laid down
in 1987. It seemingly prescribed strict adherence to
constitutional dictates limiting federal power over the
states but set up nine exceptions that would have allowed
draconian federal action virtually any time federal agencies
decided that states were unable to implement "uniform
heavy fire from Rep. David M. McIntosh, Indiana Republican,
the National Governors Association and platoons of mayors
and county officials, Mr. Clinton took the unusual action of
putting it on the shelf for a year.
Aug. 5 Mr. Clinton laid the old order to rest with a rewrite
welcomed by the National Governors Association, saying in
part, "The people of the states are free, subject only
to restrictions in the Constitution itself or in
constitutionally authorized acts of Congress, to define the
moral, political, and legal character of their lives."