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On the Lighter Side
About Those Executive Orders
by Donald A. Tevault
--former Presidential aide Paul Begala
The subject of presidential executive orders has been a controversial one for many years. While President Clinton has made extensive use of executive orders, he's not the first President to have done so. In fact, his uses of executive orders haven't always been the most controversial.
After the Revolutionary War, this nation's government was set up under the Articles of Confederation. By the late 1780's, the Federalists had begun pointing out certain perceived inadequacies with the Articles' system of a weak central government. So, the Federalists began to advocate replacement of the Articles of Confederation with a brand new Constitution. They felt that the country needed a strong central government in order to survive.
Another faction, the Anti-Federalists, argued against adopting the new Constitution. They and the Federalists had one thing in common, though. They both feared that the central Federal government would become too strong, and would thereby deprive citizens of their rights. That's why the Federalists insisted on placing certain safeguards against a too-strong government in the Constitution. The Anti-Federalists feared that these safeguards could be too easily circumvented.
One safeguard that the Federalists proposed was a separation of powers among three different branches of the Federal government. They are the legislative, executive and the judicial branches. Article I of the Constitution states that "All legislative Powers herein granted shall be vested in a Congress of the United States. . . " That means that Congress--and only Congress--has the Constitutional power to create Federal law.
Article II of the Constitution states, "The executive Power shall be vested in a President of the United States of America." The article goes on to list the different duties and responsibilities of the President; creating laws is not one of them.
So, where then, do "executive orders" fit into the big scheme of things? After all, the subject isn't even mentioned in the Constitution.
Executive orders do have a legitimate function. They are a tool that the President can use to help carry out his mandated duties. For example, if the Congress were to pass a budget that allocated less money to the executive branch, then the President could issue an executive order which would detail how the different executive branch departments would cut back on their expenses. The problem with executive orders comes about when Presidents use them to either create laws, or to circumvent laws that were already passed by Congress. President Clinton is only the latest president to try to circumvent Congress in this manner.
What's Wrong with the President Making Law?
The Founding Fathers had just thrown off the yoke of British tyranny. They had no desire to see the new American government turn into yet another tyranny. That's why they set up the system of checks and balances, with the power to govern divided between three different branches. In Federalist 47 James Madison said:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."
Madison also quoted the political philosopher Montesquieu as saying:
"There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates. . . "
"When the legislative and executive powers are united in the same person or body," says he (Montesquieu), "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner."
For that reason, all laws are supposed to be made by a body of many legislators, and not by a single person.
Some Controversial Examples
Presidents tend to use national emergencies as a pretext to issue executive orders. Prior to the War Between the States, President Lincoln suspended the writ of Habeas Corpus. By doing so, Lincoln assumed the power to throw his political enemies in jail without ever having charged them with a crime. During the Korean conflict, President Truman seized control of the American steel industry. His excuse was that the steel workers were about to strike, and he didn't want the mills to be shut down during the war.
Even without a national emergency, President Clinton has used executive orders for a variety of purposes. For example, with the American Heritage Rivers Initiative (EO 13061), the President effectively seized control of 14 different rivers for the Federal government. It didn't matter whether or not these rivers ran through private property. According to President Clinton, they are now property of the Federal government.
President Clinton's most controversial executive order was his Federalism order, number 13083. In a classic case of Orwellian/Clintonian doublespeak, Clinton at once both affirms the Constitutional principle of states' rights, and then takes those rights away. In section two of this EO, President Clinton stated:
"In formulating and implementing policies that have federalism implication, agencies shall be guided by the following fundamental federalism principles: (a) The structure of government established by the Constitution is premised upon a system of checks and balances. (b) The Constitution created a Federal Government of supreme, but limited, powers. The sovereign powers not granted to the Federal Government are reserved to the people or to the States, unless prohibited to the States by the Constitution. (c) Federalism reflects the principle that dividing power between the Federal Government and the States serves to protect individual liberty. Preserving State authority provides an essential balance to the power of the Federal Government, while preserving the supremacy of Federal law provides an essential balance to the power of the States."
The paragraph continues, giving several more assertions for states' rights. However, in the next section, President Clinton created various justifications for seizing power from the states. Among them:
With all of the "justifications" given for seizing power from the states, this EO effectively ended any notion of states' rights, and annulled everything the President had just stated in Section Two. This EO caused enough of an outcry that President Clinton had to suspend it. However, he later replaced it with another one that's just as odious.
(Besides these two executive orders, President Clinton has issued many others with the express purpose of usurping the legislative power of Congress. Most of his EO's have been designed to push a leftist agenda that the Republican-led Congress would never have approved. You can use the links at the bottom of the article to find more.)
How Did We Get Here?
"How", you ask, "have our Presidents been able to assume these types of powers, when the Founding Fathers took steps to prevent it?" There are two reasons, really.
First, is the belief--held by many of our Presidents--that the President should be allowed to exercise as much discretion as possible to protect the public good in time of national emergency. This belief was first expounded by John Locke, an English political philosopher. Thus, many executive orders were issued either in time of war or economic crises.
Many of President Clinton's executive orders were issued without any pretext of any national emergency. The purpose of these orders has been to advance President Clinton's social, environmental or foreign policy agendas in spite of whatever Congress would have to say on these matters. Thus, President Clinton is not only the chief executive, he is also a de facto legislator.
In both cases, our Presidents have been able to get away with this unconstitutional usurpation of power because through the years, Congress has allowed them to get away with it. There is some hope, though. Currently, there are bills pending in Congress that would curb Presidential abuse of executive orders.
The abuse of executive orders is a threat to the liberty that our Founding Fathers fought for. Even with all of the safeguards that were built into the Constitution, these abuses have still come about. The problem isn't with the system; rather, it's with the elected individuals who have chosen to ignore basic Constitutional principles. Also, if the voting members of the general populace had a better understanding of the Constitution, and of how our government is supposed to work, then perhaps better people would be elected to office.
© 2000 Truth In News Press