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The Washington Times | 08/23/1999

Clinton's executive orders still are packing a punch Other presidents issued more, but many of his are sweeping
Frank J. Murray

President Clinton is literally writing his legacy with his own pen by signing one controversial executive order after another.

Making 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.

The 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.

"Stroke 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.

"With 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 of law.

"President Clinton seems bent on using his powers until someone says stop," Mr. Armey said. "President Clinton is running roughshod over our Constitution."

To 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.

Other 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.

Presidents 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.

They 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 declared.

"Unfortunately, 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 success.

Rep. 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 federal law.

William 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 Congress.

"It 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.

Current numbering, now at 13132, began on Oct. 20, 1862, when Abraham Lincoln signed No. 1, establishing a "provisional court" for Louisiana.

The 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.

"Congress 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.

In 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.

Some 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 military uniform.

He 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."

"When 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.

Mr. 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.

The 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.

Opponents 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.

Rep. 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."

Mr. 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."

"In 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.

Similar 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.

"This 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 in effect.

Congress 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.

On 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.

Today, 13 such national emergencies are in effect. Two were originally declared by Mr. Carter, including the 1979 Iran emergency, and two by President Bush.

One 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.

The 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.

Mr. 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.

Every executive order must cite an authorizing statute and theoretically be aimed at government agencies under the president's purview.

Mr. Begala said that Mr. Clinton did not conceal his intent to make ample use of executive orders .

"Clinton 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.

"If 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.

Clearly, 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.

Still 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 "Second Reconstruction."

"President Truman gave us the order to march with Executive Order 9981," Mr. Powell said at a July 26, 1998 ceremony marking its 50th anniversary.

Mr. 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.

Despite 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.

Mr. 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 1862.

Mr. 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.

Even 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.

That 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 national standards."

Under 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.

On 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."


 

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