CHRISTIAN SCIENCE MONITOR |
TUESDAY, NOVEMBER 9, 1999
Clintonian 'tyranny' rankles Hill
lawmakers resist what they see as a presidential proclivity
to bypass Congress and rule by executive order.
Staff writer of The Christian Science Monitor
Is America's chief executive governing more like a king
than a president?
It's been a mark of the Clinton administration to rule by
executive fiat, circumventing a hostile Congress by signing
presidential orders that affect everything from patients'
rights to land conservation to a war against Yugoslavia.
With one year to go and a presidential legacy at stake, the
White House plans to aggressively pursue this strategy,
dubbing it "Project Podesta" after the chief of
staff who's spearheading it.
But this stroke-of-the-pen style of governing infuriates
Republicans in Congress, who see it as part of a runaway
presidency that has been gaining speed for decades.
Concerned that the Constitution is being trampled and their
power usurped, lawmakers are now considering ways to rein in
what they see as overuse of presidential directives.
"We've come a long way toward tyranny, and the Hill
- I hope and pray - is finally waking up," says William
Olson, the author of a recent study on the subject. He
testified before Congress last month, when the House held
two hearings on legislation to restrict the president's use
of executive orders. It is the first serious look Congress
has taken at this issue since the 1970s, says Olson.
Particularly galling to lawmakers is the president's
unilateral action on conservation. They point to a 1997
executive order protecting America's heritage rivers as an
example of a Clinton takeover of state and congressional
rights. It threatens citizens' property rights and redirects
federal funds in ways not authorized by Congress, charges
Rep. Jack Metcalf (R) of Washington.
More recently, Mr. Clinton called for regulations to
protect 40 million acres of national forest land, involving
restrictions just short of designating the acreage as
wilderness. "We allow the president to in effect
legislate through executive orders and proclamations. I find
this trend deeply disturbing," said Representative
Metcalf in testimony last month.
The Constitution speaks only vaguely about the
president's powers, designating Congress as the body that
makes laws and the executive branch as the one that carries
them out. Nowhere does it define or limit the president's
power to rule by executive order.
Rule-by-decree goes back to George Washington, who issued
benign proclamations such as the nation's first Thanksgiving
Day and more constitutionally risky ones such as a
declaration of US neutrality in a European war.
The practice blossomed under Theodore Roosevelt, the
start of a long line of presidents who came out from under
the shadow of Congress to make their own mark as national
But the record holder for executive orders issued - 3,723
- is Franklin D. Roosevelt, a head of state who faced
economic depression and a world war. In his 1933 inaugural
address, F.D.R. said the urgent needs of the day could
justify a "temporary departure" from the normal
balance of powers. Perhaps his most notorious executive
order was to hold US citizens and residents of Japanese
descent in internment camps during World War II.
The number of executive orders issued by Clinton pales in
comparison. Mr. Olson's study shows Clinton had issued 304
executive orders as of August, fewer than two-term
Presidents Reagan (381) and Eisenhower (452). The count does
not include directives, memos, and proclamations.
It's not the number of orders that's important, however,
as much as their scope. "Most presidential orders are
trivial" says Terry Moe, an expert at Stanford
University in California. "But orders with real
substance have gone up over time."
Whether the trend is good or bad depends on one's views.
Mr. Moe notes that former Presidents Truman, Eisenhower,
Kennedy, and Johnson laid the foundation for the Civil
Rights Act with executive orders relating to racial
Of course, successive presidents can overturn the orders
of their predecessors - and they do. So can the courts, but
they have rarely acted against presidents (a federal court,
however, did strike down a 1995 Clinton order on replacement
That leaves Congress. Critics of the current system admit
they've been willing accomplices in this power tilt.
"A great number of congressmen and senators quietly
appreciate the assumed presidential authority to create and
enact legislation because it allows them to see their goals
accomplished without having to assume political
responsibility," said Rep. Ron Paul (R) of Texas
In July, Congressman Paul introduced the Separation of
Powers Restoration Act, which calls for restricting a
president's power to issue executive orders.
Moe is skeptical that Congress can do much in this area
because the body of law to which presidents can turn for
their authority is now huge. He expects presidents to keep
pushing the boundaries, especially when faced with
As for Clinton, he'll likely continue to advance his
agenda through such directives. "He'll make some
progress on a variety of fronts and nickel-and-dime Congress
to death," says Moe.