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CONTACT:      Susan Wheeler

The week of November 1, 1999

(202) 224-5150



Guest opinion submitted by Idaho Senator Mike Crapo

In Federalist Paper 51, it is written, "If men were angels, no government would be necessary." The writer knew, when promoting ratification of the Constitution in 1788, that our government would need controls to prevent the abuse of governmental power. The Constitution does this by dividing the governmental power among three equal branches with checks and balances to prevent each of them from gaining too much power.

That balance is increasingly threatened by the abuse of the power to issue presidential executive orders. The 20th Century has seen a dramatic increase in attempts by the President to make law--a power the Constitution reserves expressly to Congress--through the use of executive orders and unilateral declarations of policy. Recent examples include Presidential attempts to bypass Congress in deciding when the government has the right to intervene in or preempt state law, what the government's anti-discrimination policy should be, expanding federal control over water, and whether fetal tissue obtained from abortions should be used for research. Some Presidential orders are aimed at admirable goals, but as one federal judge noted, the failure to achieve some worthy goal "would be less injurious to the public than the injury which would flow from a . . . recognition that there is some basis for this claim to unlimited and unrestrained Executive power."

The Constitution has been interpreted, through Article II, to grant the President the power to issue executive orders. However, the authority to issue such orders was never intended to encompass the ability to unilaterally enact law. The purpose of executive orders was to allow the President to guide agencies in following legislative policy or improving government administration. However, the last several presidents have issued an increasing number of executive orders for an ever-expanding array of purposes. The first twenty-four presidents issued 1,262 executive orders--an average of 53 per president. The last seventeen presidents have issued 11,798 executive orders--an average of 694 per president. Many of the recent executive orders eschew the appropriate legislative process, and instead create policy without public or legislative involvement.

This expanded use of executive orders presents two main dangers. First, it can encroach on the Constitutional legislative power granted to Congress. Alexander Hamilton noted that "the legislative authority is to enact laws . . . while the execution of laws . . . seem[s] to comprise all the functions of the [President]." When executive orders create law rather than simply carrying out the law, they encroach on Congress' legislative power and result in precisely the accumulation of power in one governmental branch that the Constitution seeks to avoid.

Second, the burgeoning number of executive orders adds to the burden and confusion already being created by the ever-increasing tangle of administrative regulations. For example, one case involving federal agency officials was appealed all the way to the Supreme Court before it was discovered that the regulation the case was based on had already been eliminated by an executive order.

It is time for Congress to take steps to preserve its Constitutional power and to provide the public with more involvement in and oversight of the Presidential use of executive orders. The Executive Orders Limitation Act of 1999, a bill I introduced in October, will do this. This bill prohibits all executive orders not expressly authorized by statute or the U.S. Constitution. It reemphasizes that executive orders have the force and effect of law only when issued under express statutory authority or the President's

Constitutional executive power. One year after enactment, the bill would nullify all previously issued executive orders not based solely on constitutional authority and require the President to reissue them under a new set of guidelines that includes a citation of the legal authority for the order, a cost-benefit analysis, and a public comment period. In addition, this legislation would grant Members of Congress standing to seek expedited judicial review of unlawful executive orders.

This bill does not violate the separation of powers by infringing on or limiting the President's executive power. It will not prevent the President from issuing any executive order he has the Constitutional right to issue. The Constitution seeks to safeguard against abuse of the legislative power by granting it to Congress, where laws are made in an open forum by those chosen by the people for that purpose. This bill seeks to preserve that Constitutional separation by safeguarding Congress' legislative power and providing for more open and public knowledge about executive orders.


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