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Universal Press Syndicate | September 8, 1999

The President's Precedents

By Joseph Sobran

WASHINGTON -- Those who still entertain a rarefied taste for constitutional law are disturbed by President Clinton's use of executive orders to achieve results he can't get by legislative process. Favoring "gay rights," for instance, he has ordered that the military services ban discrimination against homosexuals, despite the absence of any act of Congress to that effect.

An executive order is supposed to be made pursuant to an act of Congress, not instead of it. But Clinton proceeds without statutory authority. Once again he has found a way of stretching the powers of his office as far as possible. Once upon a time such abuse of executive orders would have courted impeachment. Not today.

Unfortunately, Americans have allowed a baneful tradition to arise, a tradition of extraconstitutional executive power. During the Civil War, Abraham Lincoln suspended the privilege of the writ of habeas corpus, thereby enabling himself to order thousands of arbitrary arrests. Chief Justice Roger Taney ruled that this was unconstitutional: Only Congress could suspend habeas corpus. The power to do so is in the section of the Constitution enumerating the powers of Congress, not the president; and for the president to authorize himself to authorize arbitrary arrests would be a dangerous step toward one-man rule and despotism. So Lincoln was attacking the separation of powers.

Lincoln won. He defied Taney with impunity (and even wrote an order, fortunately never served, for Taney's arrest!). He made the specious argument that he had to violate part of the Constitution in order to save the whole. "Necessity, the tyrant's plea." Congress went along with this usurpation of its power.

A recent biographer, David Herbert Donald, notes that Lincoln's administration was distinguished for "greater infringements on individual liberties than in any other period in American history." But Lincoln won the war, and his strongman measure became a precedent instead of a crime.

During the New Deal, Congress voluntarily surrendered its powers to Franklin Roosevelt, enabling the creation of executive agencies with the power to make what has come to be called administrative law. That is why federal bureaucracies can now control innumerable activities, making their own rules. Congress can rein in the bureaucracies any time it chooses to -- but it prefers to let the executive branch take the responsibility.

Since the Korean War we have also accepted the extraconstitutional notion that a president may wage war without a declaration of war by Congress. If there was any monarchical power the framers of the Constitution hated, it was the unilateral power of launching a war -- a traditional prerogative of European kings. The careful constitutional division of powers was designed to prevent, above all things, one-man rule.

Again, Congress, by abdicating its power, is more to blame than the president. We saw a disgraceful example of this a few months ago when Congress refused to declare war on Serbia. Clinton made war anyway, and Congress increased funding for the operation.

When Lyndon Johnson escalated the Vietnam War in 1965, the only constitutional objections to the undeclared war came from the Left. The anti-Communist Right was willing to swallow its scruples in what it believed to be a righteous cause. As one of the Founding Fathers observed, the people only surrender their liberties, as a rule, under color of some noble-sounding pretext.

While all this was going on, Americans came to see the president not as a mere executive chosen by an electoral college, but as the tribune of democracy. The more power he claims and exercises, the more likely he is to be deemed "great." Heaven save us from the legacies of our "great" presidents.

Yet idolatry of the executive, dreaded by the framers of the Constitution, has become an integral part of American political culture, as witness our absurdly disproportionate attention to presidential races. Is there anyone who isn't already sick of the 2000 campaign?

Conservatives who loathe Clinton should bear in mind that he is only exploiting an office whose powers others have enlarged beyond easy constitutional control. He isn't a cancer on the presidency; he is a mere boil on a cancerous body politic.


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