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The Orange County Register | November 1, 1999

Executive Order Excess

When Congress, after passing a law in 1996 that authorized it to write more detailed electronic medical privacy regulations by August of this year, declined to do so, President Clinton could have taken one of two courses. He could have called members of Congress, determined that while everybody is for privacy in general there's no consensus about how (or whether) the federal government should issue detailed regulations to cover a field in which the technology and practices change almost weekly.

Or he could decide to propose 630 pages of regulations that might or might not protect privacy effectively by the time they're scheduled to take effect in 2002, but will certainly increase the paperwork and cost of providing health care.

If you know Bill Clinton, you don't have to guess which course he took. It's consistent with a proclivity in this presidency to issue sweeping executive orders that change policy and, in effect, make new law when Congress doesn't do as he wants it to do. And since the voters have given him a Congress controlled by the other party, he's employed the executive order mechanism often.

In the current issue of U.S. News ("Washington Whispers") the approach is called Project Podesta, after White House Chief of Staff John Podesta. The item notes that "Clinton plans a series of executive orders and changes to federal rules that he can sign into law without first getting the OK from GOP naysayers." As Podesta put it to U.S. News' Kenneth Walsh, "There's a pretty wide sweep of things we're looking to do, and we're going to bevery aggressive in pursuing it."

The new medical privacy rules were cited as an example of this executive-decree initiative, to be followed by an order or regulation to force private companies to provide paid leave to parents to take care of newborns.

As former Clinton adviser Paul Begala told the New York Times in July 1998, regarding executive orders: "Stroke of the pen. Law of the land. Kinda cool."

Right -- if you're an absolute monarch rather than an executive officer in a constitutionally limited government in which the legislature makes new laws and the executive carries them out.

Presidents have used executive orders, sometimes abusively, since George Washington (Teddy Roosevelt began the modern tradition of extensive use of the power). Clinton has used executive orders to contravene Congress often. Presidential Decision Directive 25 authorized the U.S. military to be moved under U.N. command without congressional approval. Executive Order 12919 (one of 13 national emergencies still officially in effect, some declared by the Carter administration) gives the federal government vast powers to seize property and control the means of production and require all citizens to register with the U.S. Post Office.

Executive Order 13139, quietly signed the day after congressional hearings into a controversial Pentagon decision to require U.S. military personnel to be inoculated with anthrax vaccine, denies soldiers the right to refuse experimental vaccines. The vaccine in question has not been approved by the Food and Drug Administration. If a private company ordered its employees to take a shot or medicine not approved by the FDA, it would probably be prosecuted.

Two committees of the House, a Rules subcommittee and a Judiciary subcommittee, responding to constituent concerns (see http://www.ExecutiveOrders.org) held hearings last week on executive orders. Three different bills to rein in government by decree have been introduced. The best is HR 2655, from Texas Republican Rep. Ron Paul, which would prohibit a presidential order from having the effect of law, suspend states of national emergency and give individuals standing to challenge the constitutionality of executive orders.

It is heartening to see such concern. It would be more heartening to see some real legislative action.


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