Congress must seize back the law-making power

By Vin Suprynowicz
web posted December 20, 1999

Many a conservative commentator has taken to shrieking that William Jefferson Clinton has issued more executive orders than any president in history.

That's not true. With 304 executive orders issued through October, Mr. Clinton might yet exceed the total ginned out by presidents Nixon and Reagan -- 346 and 381, respectively -- if he stays busy.

But the current president seems unlikely to beat the records of those great progressives, Herbert Hoover, Woodrow Wilson, and Franklin Roosevelt, who respectively managed to churn out 1,004, 1,006, and a whopping 3,723 executive orders and proclamations during their terms of office -- FDR governing for 12 years in what amounted to a continuous state of declared "national emergency."

Still, it may not be the numbers that count. After all, many executive orders are proper exercises of executive authority. The ones that are of concern are those which constitute clear usurpations of the legislature's exclusive power to make law.

St. George Tucker, the prominent early American jurist, reminded us that powers are divided and separated in a republic because "Power thus divided, subdivided and distributed into so many separate channels, can scarcely ever produce the same violent and destructive effects, as where it rushes down in one single torrent, overwhelming and sweeping away whatever it encounters in its passage."

Yet increasingly in the 20th century, warn attorneys William J. Olson and Alan Woll in their new report for the Cato Institute, "Executive Orders and National Emergencies: How Presidents Have Come to 'Run the Country' by Usurping Legislative Power," in fact "Presidential power has too often rushed down in a single torrent."

What concerns the authors is the extent to which President Clinton's orders have amounted to writing new law from the White House, and the marked dawdling of the courts and Congress when it comes to halting such a dangerous trend.

When Harry Truman attempted to seize private steel mills beset by labor unrest during the Korean War, citing his power as "commander-in-Chief of the armed forces," the Supreme Court found that executive order invalid.

The U.S. Court of Appeals for the District of Columbia similarly balked in 1995 at allowing President Clinton to ban the hiring of permanent replacements for striking workers -- after he had tried in vain to get the Republican Congress to amend the National Labor Relations Act to that effect.

But since then, the Cato authors detail how the Clinton White House has increasingly succeeded in subsequent attempts to overrule the Congress and enact law by executive decree -- in such matters as the Grand Staircase-Escalante Monument, the American Heritage Rivers Initiative, and most blatantly in President Clinton's conduct of the war in Yugoslavia without even the penumbra of a declaration of war from Congress.

Even more shocking has been the tacit acceptance of this state of affairs by a public which -- the authors note -- moaned during the late impeachment proceedings that the inquiries should end so the president could "get back to the business of running the country."

"Under a constitution dedicated to individual liberty and limited government," the Cato scholars ask, "how did we get to a point where so many Americans think of government as embodied in the president and then liken him to a man running a business?"

More critically, Congress -- far from checking such usurpations -- has actually abetted them by delegating more and more of its rule-making power to executive agencies, while the courts "have been all but absent in restraining presidential law-making," the policy paper finds.

The public, for instance, has become perfectly accustomed to reading reports like that of Elizabeth Shogren, in the Los Angeles Times of July 4, 1998, that "Frustrated by a GOP-controlled Congress that lately has rebuffed him on almost every front, President Clinton plans a blitz of executive orders during the next few weeks, part of a White House strategy to make progress on Clinton's domestic agenda without congressional help.

"His first unilateral strike will come today. According to a draft of Clintons' weekly radio address obtained by The Times, he plans to announce a new federal regulation requiring warning labels on containers of fruit and vegetable juices that have not been pasteurized. ..."

It's tempting to ask, "Fruit juice: who cares?" But once such a precedent has been established, what's to stop a future president from suspending the right to trial before a randomly selected jury, the right to be free of warrantless searches, even the right to bear arms, of those deemed "potentially dangerous to the security of the state"?

The Cato scholars are to be congratulated for finally cutting through the partisan rhetoric and documenting the real nature of this assault on the vital constitutional safeguard of divided powers.

Fortunately, Rep. Ron Paul, R-Tex., and Rep. Jack Metcalf, R-Wash., have now proposed HR 2655, the Separation of Powers Restoration Act, which would terminate all existing declarations of national emergency and emergency powers, vest the power to declare any future emergencies solely in the Congress, and hold any future executive order invalid unless it identifies the specific constitutional or statutory provision which empowers the president to take the action in question.

HR 2655 is worth a try. If your congressional representatives aren't backing it, you might ask them why.

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. His new book, "Send in the Waco Killers" is available by dialing 1-800-244-2224.




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