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Wielding the power of the president's pen
Authority: More than most modern presidents, Bill Clinton has turned to executive orders and other tools to enact policies without congressional approval.

By Jonathan Weisman
Sun National Staff

WASHINGTON -- Racing against time and a hostile Congress, President Clinton has recently launched a barrage of executive decisions -- from combating medical errors to cutting emissions from sport utility vehicles -- that has rankled political opponents and raised eyebrows among presidential scholars.

The president has issued more than 310 executive orders in his seven years in office, close to the pace set by Ronald Reagan, who signed 381 orders in his two terms.

But the rise in the number of Clinton's orders might understate the sweep of his executive decision-making, because Clinton -- more than most modern presidents -- has found other creative ways to enact his policies without congressional approval.

Yesterday, for example, the president unveiled the final form of regulations that will force oil refiners to produce cleaner fuels, while mandating that sport-utility vehicles and minivans comply with emissions limits set for cars.

Clinton called the regulations "the boldest steps in a generation to clean the air we breathe by improving the cars we drive." To effect those steps, he stretched to the limit the authority granted to the Environmental Protection Agency by the 1990 Clean Air Act.

"If you're a conservative, you would say this is above and beyond what the Clean Air Act was meant to do," said Jake Siewert, a White House spokesman.

Other executive actions have taken more novel routes. Presidential proclamations were once reserved for such trifling acts as pardoning a turkey before Thanksgiving.

But Clinton has used proclamations to establish the Grand Staircase-Escalante National Monument in Utah, and to buy thousands of acres of wilderness, from California's deserts to Florida's Everglades. The White House said Clinton's authority derived from Theodore Roosevelt's Antiquities Act of 1906.

In October, the president directed the Forest Service to ban roads in more than 50 million acres of pristine wilderness, a move that required neither congressional approval nor the formal apparatus of an executive order.

Early this month, Clinton unveiled regulations designed to reduce medical errors. Hospitals and doctors must comply with the new regulations in order to participate in the health insurance program for federal employees that covers 85 million Americans. The order came in the form of a memorandum to his Cabinet.

And Clinton has challenged the tobacco industry with a federal lawsuit, while threatening the gun industry with another one.

"We've been fairly unapologetic about finding ways to act where we've found that Congress hasn't acted," Siewert said.

Clinton has averaged just over 44 executive orders a year, more than George Bush's 40 but fewer than Reagan's 47 and far fewer than Jimmy Carter's 74, according to National Archives statistics. All the presidents of the modern era pale in comparison with Franklin D. Roosevelt, who issued 567 executive orders in 1933 alone.

But with Clinton, those numbers could be deceptive, because he has turned other tools at his disposal -- such as presidential proclamations and Cabinet directives -- into true policy-making instruments, said Ken Mayer, a political scientist at the University of Wisconsin, whose book on executive orders, "With the Stroke of a Pen," will be published next year.

With a Republican Congress openly hostile to Clinton, "he has quite naturally looked to other options to establish a legacy," Mayer said.

White House aides are unabashed about their creative use of such powers. John D. Podesta, the president's chief of staff, taught courses on legislative and regulatory affairs at Georgetown University law school and is "well-versed on the options," Siewert said.

But Republicans say they are incensed by what they see as an end run around the Congress.

Sen. James M. Inhofe, an Oklahoma Republican, declared this week that he would block every administration nominee to the federal bench for the rest of Clinton's term in protest of the recent reappointment of a member of the National Labor Relations Board without the Senate's consent.

Sen. John McCain of Arizona, a leading candidate for the Republican presidential nomination, vowed Monday to overturn Clinton's ban on new wilderness roads.

Another Republican presidential hopeful, Gary Bauer, a former Reagan administration official, declared last month: "My first policy act would be to repeal as many of Clinton's executive orders as I could. This president has abused that power."

In point of fact, Reagan -- a hero to many of today's leading Republicans -- issued more executive orders than any president since Dwight D. Eisenhower, and many had profound consequences, Mayer said.

Long before Clinton, presidents have wielded their executive authority to profound effect. Abraham Lincoln freed the slaves by executive order. Franklin Roosevelt interned Americans of Japanese descent during World War II. The origins of affirmative action date to an order by Lyndon B. Johnson that set aside a portion of government contracts for minority-owned businesses.

Reagan vowed to overturn the Johnson-era affirmative action orders. But political opposition persuaded top Reagan aides that a repeal was not worth the political price.

Clinton has overstepped his authority in the past. An executive order to ban the replacement of strikers on federal projects was thrown out in court. But Mayer predicted that most of the orders that remain on the books -- especially Clinton's land-protection orders -- will prove difficult to overturn.

"It's a lot harder to take something away than to not give it in the first place," Mayer said.

Originally published on Dec 22 1999


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