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Mobile Register - Editorial 11/27/99

The use of executive orders must be curtailed

WHEN REPUBLICAN President Nixon was claiming sweeping powers for his office, liberals quite justifiably warned about, and took steps to rein in, what they called the "imperial presidency." But now that one of their own is wielding power, they don't utter a peep.

An imperial presidency is just as dangerous in Bill Clinton's hands as it was in Mr. Nixon's, or as it potentially could be in the hands of George W. Bush or John McCain or Jesse Ventura.

Right now it is Mr. Clinton who is threatening to upset the nation's constitutional balance, most notably through the almost indiscriminate use of "executive orders" to circumvent the will of Congress. He should be stopped.

In the most recent case in point, President Clinton is talking about violating the spirit of the Constitution, but - conservatives should note - not the letter of the law. A story on The Associated Press wire this week reported that "with Congress showing little willingness to act, the Clinton administration is weighing whether to designate a dozen scenic and historic sites in the West as federal monuments to assure their protection."

In this case, the president does clearly have the authority to act. The Antiquities Act of 1906 allows the president to act unilaterally to protect any land of historic significance. Nevertheless, Mr. Clinton clearly ran afoul of that law's intent in 1996, when he used it to set aside 1.9 million acres in Utah - a federal land grab of breathtaking proportions. In doing so, he took out of commerce a rich vein of a clean-burning coal that is far less harmful to the environment than much of the coal from the Appalachians. As it turned out, the next biggest source of that kind of "clean" coal belongs to a large Democratic campaign contributor.

Regardless of the motivation, the president should not be doing such end-runs around Congress.

In other instances, he has acted similarly without even the specific authority of an old law to back him up. In 1995, for instance, he issued Executive Order 12954 to try to overturn a 1938 Supreme Court decision, so he could prohibit companies from using replacement workers during strikes. The next year, however, a federal appeals court struck the order down, because the president had clearly overstepped his authority. In that case, he had infringed on the powers of both the judiciary and of Congress.

In hundreds of other cases, though, his dubious power grabs have gone unchallenged. Congress has refused to ratify the Kyoto environmental treaty, but President Clinton is using executive orders to implement it, piecemeal, anyway.

Presidential Decision Directive 25 allows the United Nations to take command of some U.S. military forces without congressional approval. And, if the president declares a state of national emergency - which he claims the authority to do single-handedly, with no congressional consultation - then, through his Executive Order 12919, the administration can take full control over and "allocate materials, services and facilities as deemed necessary or appropriate." Which materials and services? Food resources and farm equipment, all forms of energy, health resources, water resources, and all forms of civil transportation.

About all that's left out of this order is our personal brain waves.

As Clinton political operative Paul Begala said: "Stroke of the pen. Law of the land. Kinda cool."

No, it's not "kinda cool;" it's kinda frightening. Actually, it's considerably frightening. It quite obviously carries within it the seeds of dictatorship. No separation of powers, nor intermingling thereof. No checks and balances. No powers reserved to the states.

By law and court precedent, the president's power to issue executive orders is only clearly established when he is acting pursuant to direct constitutional or legislative authority. But this president has instead used the power to act against Congress' wishes. Congress should call his bluff, and defend its own constitutional powers. It should repeal or modify laws currently being abused, such as the 1906 Antiquities Act, and it should severely circumscribe the very power to issue executive orders.

Reps. Jack Metcalf and Ron Paul have introduced legislation to do just that: to set clear limits on such presidential powers, and to require executive orders to cite the constitutional or legislative provision on which they rest their authority. Most important, this bill, known as HR 2655, would vest in Congress alone the exclusive right to declare national emergencies.

HR 2655 ought to be one of the top items on the agenda when Congress reconvenes next year. The goal is not to limit this president in particular, but all future presidents - so that representative democracy can never be superseded, and government by the people never threatened. As Ben Franklin said upon the conclusion of the constitutional convention: We now have "a republic - if you can keep it."


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