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WASHINGTON TIMES | Sunday, November 7, 1999



Dave Boyer


President Clinton's relationship with the Republican-led Congress, never cozy from the start, is increasingly strained by his use of executive orders and other strategies to bypass the legislative branch.

In interviews, Republicans say the prospect of Mr. Clinton's making wholesale recess appointments after Congress adjourns - a move promoted by congressional Democrats - is only the latest skirmish in a war over the president's trying to legislate unilaterally from the Oval Office.

"I'm concerned not only about appointments but also legislative actions that are really substitutes for legislation," said Senate Majority Whip Don Nickles of Oklahoma. "I'm concerned about him taking executive orders or executive actions that really replace the legislative function of Congress."

The White House has thumbed its nose at Congress this year on a series of high-profile issues.

After the Senate rejected the Comprehensive Test Ban Treaty last month, Secretary of State Madeleine K. Albright sent a letter to foreign leaders assuring them that the United States would continue to abide by the spirit of the pact.

When Congress created a new agency last month to oversee the government's nuclear weapons program as a response to reports of Chinese spying, Mr. Clinton signed the bill into law. But he added a directive putting Energy Secretary Bill Richardson in charge of what was supposed to be a semiautonomous charter and prompted lawmakers to accuse Mr. Clinton of ignoring the law.

In January, with the Pentagon budgeting $10 billion over six years for a national missile defense system, the administration nevertheless announced it was delaying deployment until at least 2005.

Also last month, Mr. Clinton issued an executive order for the Forest Service to begin the process of eliminating 40 million acres of federal land from use and development in national forest areas that don't contain roads. The proposal, which does not include comment from Congress, affects 140 national forests in 37 states.

"The Constitution says Congress shall pass all laws," Mr. Nickles said. "The president has some executive powers, but they do not include legislative powers. They do not include taking 40 million acres of land and saying, `Hmm, I'm going to make this de facto wilderness.' "

Other presidents have made more use of executive powers - Mr. Clinton has averaged 42 executive orders per year. But Republican lawmakers believe that Mr. Clinton has begun to step up the pace of such executive actions as his presidency nears its end.

They say one of his goals is to help the presidential campaign of Vice President Al Gore by appealing to environmentalists with land grabs.

"You can't just arbitrarily go out there and seize land. There's a legislative process, an authorization process, that has to be considered," said Senate Majority Leader Trent Lott of Mississippi. "And he wants, I think, more money for land so Al Gore can sprinkle it around the country next year."

White House spokesman Barry Toiv said the president is acting when Congress refuses to do so.

"The Congress has failed to act on some issues that are critical to the American people," Mr. Toiv said. "The president is going to use the authority of his office to meet those challenges."

Mr. Toiv said he was not referring to the test-ban treaty and the Energy Department reorganization, but to such other issues as the administration's recent proposal for medical privacy regulations.

"Congress has failed to act on medical privacy," Mr. Toiv said. "This is a Congress that is not interested in getting work done on behalf of the American people. [The president] will continue to act as appropriate."

Mr. Lott acknowledged that the administration's poor relationship with Congress has led to this point, but he said Mr. Clinton's solution violates the separation of powers.

"I think what he is doing is unconstitutional," Mr. Lott said. "Anything they can't get the Congress to approve, he's just going to do it by executive order. That is absolutely wrong."

Congress does have options.

For example, when Mr. Clinton issued an executive order in 1995 barring federal contractors from hiring striker replacements - a directive that ran counter to existing law - opponents sued and won in federal court.

"If he tries to legislate, we can contest it in court," Mr. Nickles said. "We or other people can tie him up in court, and I think we'll eventually win."

Mr. Nickles also has suggested blocking all Clinton nominations if the president tries to sidestep Congress with a large number of recess appointments.

"I don't know that he's going to do it, but it sounds very much like he's going to be very aggressive," Mr. Nickles said. "I hope that's not the case. If he does recess appointments, he may not get other appointments.

"I hope we don't get into that," Mr. Nickles said. "I'm not looking for that. But I am concerned that there's an agenda by them to do a lot of things during the recess that they can't accomplish through the legislative process. This administration seems to push the envelope on what can be done constitutionally."


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