Vol. 15, No. 31 -- August 23, 1999     
Published Date July 30, 1999, in Washington, D.C.                         www.insightmag.com


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Emergency Rule, Abuse of Power?

By Catherine Edwards

It was never intended that the president should rule by executive decree, usurping the legislative role of Congress. But a top Clinton aide has called this option 'kinda cool.'

Many older Washingtonians will tell you they used to have a view of the river from their house. Now they no longer have a river view; they no longer have their house. Instead, federal offices filled with bureaucrats populate the city. During the course of the last 150 years, the role of president of the United States has grown exponentially, as has his team of workers. Many Americans, critics claim, have been asleep as one stealth presidency after another has usurped the judicial authority of Congress by means of executive orders, presidential directives and proclamations.
. . . . The Constitution dictates that the laws shall originate in Congress and the executive branch shall see that they are "faithfully executed" (Article II, Section 3). In George Washington's day, executive orders were no more than administrative directives to federal employees. "They have grown," says Bill Olsen, a constitutional lawyer and former Reagan administration official, "to be a deliberate strategy to circumvent the Congress and the legislative function." The more executive orders on the books, the more the need for a huge tax-funded bureaucracy to administer them.
. . . . President Clinton has not been shy about signing his name to executive orders. Since his inauguration he has issued nearly 300, and his critics claim that he has been reckless, ordering more than his predecessors. Not so. Franklin D. Roosevelt issued 3,522, Woodrow Wilson issued 1,803, and Honest Abe Lincoln is the only U.S. president to have declared martial law by executive order -- which he did twice. Unlike Clinton, "all three of these presidents, however, governed in wartime, a national emergency which often gives rise to expanded executive authority," says political analyst Michael Warder of the California-based Claremont Institute.
. . . . In 1974, a special Senate Committee on National Emergencies and Delegated Emergency Powers was alarmed to find that the United States had been governed under emergency authority since 1933. Committee cochairman Sen. Frank Church of Idaho cautioned: "It is distressingly clear that our constitutional government has been weakened by 41 years of emergency rule." Emergencies declared by FDR and Harry Truman still were in effect, for example, and the committee found that over time aggressive presidents had subsumed 470 legally delegated powers from permissive Congresses to govern beyond normal constitutional powers. The law allowed presidents to seize property, control production, restrict travel and institute martial law. In other words, "Presidents could manage every aspect of the lives of all American citizens," Church wrote.
. . . . The 1974 National Emergencies Act sunsetted all existing emergencies at that time. Congress then passed legislation in 1976 and in 1985 allowing termination of any national emergency by joint resolution, though no such resolution has been offered.
. . . . Olsen argues that more citizens know about executive abuses than do congressmen, whom he chastises for having been "supine" in their response to presidential excess.
. . . . This may be changing, however. Republican Rep. Jack Metcalf of Washington state introduced a resolution this year (HR30) to express the sense of Congress that any executive order infringing on the constitutionally delegated congressional powers must be considered for advisory purposes only and be ineligible for federal funds.
. . . . Cliff Kincaid of the American Sovereignty Action Project believes Metcalf's approach is the best course of action. Kincaid's group held a conference in early July to highlight unconstitutional executive orders and presidential abuses of power. Because the Metcalf bill is a resolution, it only can serve to heighten awareness of the issue, and Kincaid rightly notes that any legislation with teeth is almost certain to be vetoed by the president.
. . . . Republican Rep. Ron Paul of Texas has a different approach. He notes that some executive orders are necessary, legitimate and constitutional. "Others are abused and are way overstepping their bounds," he tells Insight. Paul has proposed legislation called the Separation of Powers Restoration Act, which would provide that whenever the president signs an executive order under the auspices of Article II it may be applied only to federal employees, with constitutional duties such as activities pursuant to the military and his role as commander in chief protected. Presidential orders issued to accord with unratified treaties would be illegal, as would orders to support ratified treaties that violate the laws of states and local governments.
. . . . The Paul bill would rescind existing laws that have violated the separation of powers, put to bed every national emergency in effect and give standing in court to members of Congress, local governments and other people aggrieved by executive orders. An aide to Paul tells Insight that a possible presidential veto would provide momentum to get the two-thirds votes necessary to override a veto.
. . . . A nonprofit grass-roots organization of concerned citizens and congressmen recently was formed to redress alleged presidential abuse of executive orders. On the Internet at www.executiveorders.org, the group is part of the Liberty Study Committee. "For many years the president, regardless of what party, has been concentrating more power into his own hands by taking away legislative powers of Congress," says Kent Snyder, executive director of the Liberty Study Committee. "We are going to be relentless." The new group will focus entirely on informing the public and Congress about progress of the Paul legislation through the Internet, fax and direct mail.
. . . . Why can't this powers conflict be left to the judiciary? Only two executive orders have been overturned by the courts: a Truman order seizing strike-threatened steel mills during the Korean War (Youngstown Steel and Tube Company vs. Sawyer, 1952) and a Clinton order prohibiting federal contracts being awarded to companies that hire permanent replacements for striking employees (U.S. Chamber of Commerce vs. Reich, 1995).
. . . . FDR's Executive Order 9066 was upheld by the Supreme Court authorizing the dislocation of Japanese-Americans to confinement camps during World War II. The court ruled that the president had acted to safeguard the national interest during wartime.
. . . . Congressional action and court cases to deal with legislative usurpation by the president take time. The president, however, can issue executive orders quickly. Last summer, presidential aide Paul Begala became enamored of this option. "Stroke of the pen, law of the land. Kinda cool," he commented as the president discussed plans to issue a series of executive orders upon returning from his 1998 trip to China.
. . . . Tom DeWeese of the American Policy Center cites what he regards as severe abuses of executive orders by Clinton. He has plenty of company. Among current irritants are:
  • Invasive Species Executive Order 13112, issued in February, prevents the introduction of invasive species to public property. DeWeese cautions that because alien species is defined as any species, "including seeds, eggs spores or other biological material capable of propagating that species that is not native to that ecosystem," alien species could be defined to include a farmer's cattle or even the family dog.
  • Implementation of Human Rights Treaties Executive Order 13107 calls on the U.S. government to implement human-rights treaties to which the United States now is or may become party in the future. According to the Constitution the Senate alone may ratify treaties, not the president acting on his own authority.
  • American Heritage Rivers Initiative Executive Order 13061 has caused considerable consternation in Congress. The president designated 14 rivers as federal property -- part of America's heritage to be seized by the federal government regardless of whether they run through private property. Estimates of the program's cost reach $5 million, none of which has been appropriated by Congress. House Natural Resources Committee Chairman Don Young of Alaska and Rep. Helen Chenoweth of Idaho, both Republicans, have filed suit to halt the initiative.
  • Federalism Executive Order 13083 established federal jurisdiction over states in matters not enumerated in the Constitution. The president suspended this order after a public outcry and much media attention that accused him of attempting to rewrite the Constitution.
  • Council on Sustainable Development Executive Order 12852 centers on the fact that federal and local programs are being set up to ensure that Americans sustain the environment. Suburban housing, air conditioning, high meat intake, frozen and convenience foods, fossil fuels and kitchen appliances are not listed as sustainable.
  • Revocation of Certain Executive Orders Concerning Federal Contracting 12833 overturned President Bush's endorsement by executive order of the Supreme Court ruling in the Communications Workers vs. Beck case that workers for companies under federal contract do not have to pay union dues as a condition of employment.
. . . . Meanwhile, Clinton has declared no less than 14 states of national emergency. This compares to five for Bush and six for Ronald Reagan. In early July, the president declared a state of national emergency based upon a suspected terrorist threat allegedly posed by the Afghan Taliban. Most Americans, no doubt, are unaware that Clinton also declared a national emergency based upon Burma's oppression of democracy.
. . . . "The usurpation of power started quietly and has gained respect over time," warns Metcalf. And Republican Rep. Roscoe Bartlett of Maryland cautions that if something doesn't change soon the executive branch will continue to expand by executive order and "we'll need another revolution."

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