By Michael Posner
January 5, 2000
President Clinton's broad use of executive orders on a range of issues is prompting a move by some conservatives in Congress to curb the next President's ability to sidestep Capitol Hill.
It's a familiar complaint by lawmakers, who jealously guard their legislative turf: They gripe that Presidents who excessively issue directives are overstepping their authority and making an end run around Congress. Since the adoption of the Constitution, Presidents have been issuing executive orders to declare official U.S. policy or to direct Cabinet officers to take certain actions. George Washington issued the first directives in 1789, including one declaring Thursday, Nov. 26, 1789, as a day of Thanksgiving.
Nothing in the Constitution or in any statute spells out what an executive order or presidential directive is legally permitted to do, according to scholars of executive decision-making. But for members of Congress, the test is quite simple: If a presidential edict looks like a law, acts like a law, and barks like a law, it must be a law-and passing laws is a job for Capitol Hill, not the White House. Conservatives who want legislative guidelines for presidential orders are led by Rep. George W. Gekas, R-Pa., the chairman of the House Judiciary Subcommittee on Commercial and Administrative Law. They are armed with studies by the libertarian Cato Institute and the Congressional Research Service.
"I'm not such a zealous guardian of the legislature that I want to make this a crusade," Gekas said in an interview. But he does want to advance the debate in this session of Congress-even though it would probably not apply until a new President takes office.
President Clinton's choice of subjects on which to issue executive orders seems to have spurred conservatives to try to contain the executive branch. Many of Clinton's critics in Congress believe he has overstepped his bounds by ignoring Capitol Hill too many times. Clinton's defenders respond that he is using his presidential powers properly.
Clinton has issued more than 300 executive orders, but that number is far from a record. In the 20th century, nine Presidents-Theodore Roosevelt, William H. Taft, Woodrow Wilson, Warren G. Harding, Calvin Coolidge, Herbert Hoover, Franklin D. Roosevelt, Harry S. Truman, and Dwight D. Eisenhower-each delivered 450 or more executive orders. In recent years, Presidents Richard M. Nixon, Jimmy Carter, and Ronald Reagan were in the 300-plus range; George Bush and Gerald R. Ford fell short of that mark.
Clinton's conduct of war in Yugoslavia in particular angered some critics of executive orders. William Olson, a McLean, Va., lawyer, wants to rein in presidential orders on matters that he believes should go through the congressional lawmaking process. He is co-author, with Alan Woll, of the Cato Institute study, "Executive Orders and National Emergencies: How Presidents Have Come to 'Run the Country' by Usurping Legislative Power." Olson and Woll write: "Much like President Abraham Lincoln had done at the outset of the Civil War . . . Clinton, acting alone, relied solely on his power as commander in chief. In no serious sense could his undertaking be characterized as a defensive action compelled by imminent circumstances that made congressional authorization impracticable." They add: "The President waged war, plain and simple, without benefit of a congressional declaration of war." Clinton's allies have defended his authority to act with NATO in bombing Serbia and deploying troops in nearby Macedonia and Albania. They point out that Congress, when pressed on the issue in votes on the House floor in April, refused to assert its powers to declare war or to force the withdrawal of U.S. troops. Presidents have broad authority under the Constitution to issue orders to run the executive branch, but Olson and others contend that Presidents since Theodore Roosevelt-especially Clinton-have stretched, if not abused, their powers by taking over the authority of Congress to legislate. Perhaps the most strenuous opposition to a Clinton executive order came in response to his 1996 proclamation, under a 1906 law, setting up the 1.7 million-acre Grand Staircase-Escalante National Monument in Utah. Westerners and property-rights activists screamed, "land grab"-even though much of the land was federally owned. On other domestic fronts, Clinton has issued an order barring federal contractors from hiring replacements for strikers (a federal court of appeals later overturned this order); set up the American Rivers Heritage Initiative; and created the "don't ask, don't tell" policy for gays in the military. Another order outlined procedures to assist federal agencies dealing with states, but the states objected that their authority would be usurped and the order was withdrawn. Recent Clinton directives include protecting the privacy of medical records and promulgating rules that would permit states to tap into unemployment benefit funds to provide paid leave for parents of newborns under a policy now under review by the Department of Labor. He has directed federal agencies to recruit and hire people with disabilities, and has ordered, in the federal civilian work force, a prohibition on discrimination based on sexual orientation. An initiative barring road-building in some 40 million acres of federal forests infuriated hunters, some foresters, and Western lawmakers. Supporters of legislation to define and restrict presidential order-making concede that the issue is barely simmering on the legislative back burner. Lawmakers may not be ready to deal with an issue unlikely to capture any front-page headlines in an election year. But advocates of reform hope that the topic of presidential power-plays works its way onto the agenda of the Republican-controlled Congress, which might like to get a last swipe at Clinton. Two congressional panels-the House Rules Committee's Subcommittee on Legislative and Budget Process and the House Judiciary Committee's Commercial and Administrative Law Subcommittee-held hearings on the subject without fanfare in October. In testimony before the Rules panel, Olson said that Congress must act because "the simple truth is that the courts cannot be counted upon to check presidential power." Federal courts have in some cases acted to curb executive orders. In 1952, for example, the Supreme Court stopped the seizure of steel mills ordered by Truman. In another case, the U.S. Court of Appeals for the District of Columbia struck down Clinton's executive order prohibiting federal contractors from hiring permanent replacements for striking workers. The court ruled that the order amounted to legislation. Some legal experts counsel Congress to be careful not to usurp legitimate presidential power. One expert urging caution is Douglas Cox, a lawyer who was deputy assistant attorney general in the Office of Legal Counsel at the Justice Department during the Bush Administration. "When a President overreaches and uses executive orders to invade or supersede the legislative powers of Congress, Congress may be sufficiently provoked to consider an across-the-board approach to rein in those abuses," he told the House Rules subcommittee. "Although that reaction is understandable, Congress must be careful to understand the extent to which executive orders are a necessary adjunct of the President's constitutional duties," Cox added. "At all times, Congress has ample legislative and political means to respond to abusive or lawless executive orders, and thus Congress should resist the temptation to pursue more sweeping, more draconian, and more questionable responses." Gekas, who chaired the Commercial and Administrative Law subcommittee hearing on executive powers wants to press ahead with reforms when Congress reconvenes this month. But he said in an interview that he will not advance any legislation if it is used as "a partisan attack" on Clinton. Gekas noted that he had defended presidential powers by getting the House Judiciary Committee to knock out proposed language in the Clinton impeachment articles that included allegations he "frivolously and corruptly" abused executive privileges. Several pieces of legislation on the issue are pending in Congress. One, sponsored by Rep. Jack Metcalf, R-Wash., a former history instructor, provides that any executive order requiring the expenditure of money be solely advisory. This resolution, however, is only a sense-of-Congress measure and would have no force in law. Another bill offered by Metcalf and Rep. Ron Paul, R-Texas, would require a President to cite statutory or constitutional authority for an executive order to become valid. It would also end presidential declarations of national emergencies in peacetime and repeal the 1973 War Powers Resolution, which some scholars say has been ineffective in giving Congress a role in nondeclared wars. Another proposal, offered by Rep. Bob Barr, R-Ga., a leading critic of Clinton, would require a President to give Congress 30 days to review, reject, or modify proposed executive orders; the bill contains exceptions for emergencies. Although the efforts to limit executive orders are spearheaded by Republicans, Democrats have some election-year advice on the subject: Be careful what you wish for, Rep. Jerrold Nadler, D-N.Y., advised his Republican colleagues on the Judiciary Committee. Because Presidents of both parties have widely used executive orders to work their will, the Republican-proposed initiatives could handcuff one of their own. Roll Call of Executive Orders President Years in Office Number of Executive Orders Theodore Roosevelt 7+ 1,006 William H. Taft 4 698 Woodrow Wilson 8 1,791 Warren G. Harding 2+ 484 Calvin Coolidge 5+ 1,253 Herbert Hoover 4 1,004 Franklin D. Roosevelt 12+ 3,723 Harry S. Truman 7+ 905 Dwight D. Eisenhower 8 452 John F. Kennedy 2+ 214 Lyndon B. Johnson 5+ 324 Richard M. Nixon 5+ 346 Gerald R. Ford 2+ 169 Jimmy Carter 4 320 Ronald Reagan 8 381 George Bush 4 166 Bill Clinton 7 310 (through Dec. 1) Sources: Cato Institute; Federal Register
By Michael Posner
January 5, 2000