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
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
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.
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
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
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
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
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."