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Critics Claim Exec Orders Permit Government by Fiat

Insight on the News, Sept 27, 1999 by Frank J. Murray

Other presidents issued more, but many el his are sweeping: President Clinton's executive orders pack a punch, and his detractors say he uses them to supersede Congress.

President Clinton is writing his legacy with his own pen by signing one controversial executive order after another. Making good on a vow to pick up where Congress leaves off, he has posted 301 formal executive orders and generated a storm from opponents who say he's pushing the limits of presidential power.

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The president has used executive orders to revamp civil-service rules for workers with psychiatric disabilities, ban discrimination against homosexuals in civilian federal jobs, halt dealings with federal contractors who use products made by foreign child labor, declassify vast stacks of old files, change contracting practices to give Asian-Americans and Pacific Islanders a bidding edge, revise food labeling, restrict smoking in government offices, revamp encryption export rules and intervene in a Philadelphia transit strike.

Presidents have issued executive orders that exceeded the wishes of Congress since George Washington signed his "neutrality order" demanding that citizens stay out of foreign disputes. Other presidents have used them to close banks in the Depression, intern Japanese-Americans during World War II, desegregate the armed forces, ban assassination of foreign leaders, build the Alaska Railroad, protect endangered species, intervene in labor strikes, allow affirmative action for racial and ethnic minorities and block foreign assets during a string of national emergencies almost unbroken since 1933.

Current numbering, now at 13,132, began on Oct. 20, 1862, when Abraham Lincoln signed No. 1, establishing a provisional court for Louisiana. The oldest orders still on the books are 703 and 705, issued Oct. 23, 1907, by President Theodore Roosevelt to protect endangered species. Roosevelt is credited -- or blamed -- for expanding the practice in number and scope.

A full 80 executive orders issued by Franklin D. Roosevelt remain in force 54 years after his death. No less than 187 of Truman's orders remain active, including one to end military racial segregation, which former Joint Chiefs of Staff chairman Colin Powell praised for starting the "Second Reconstruction." Truman's final order, issued one day before he left office in 1953, created a national-security medal of honor for the nation's top spies, still highly coveted and often revealed only in the obituary of its recipient.

In 1978, a select bipartisan Senate committee identified 500 existing laws that take effect when a president declares an emergency by executive order. Such laws include vast powers to seize property, commodities, fuel and minerals; organize and control the means of production, including compulsory job assignments for civilians; assign military forces abroad; institute martial law and force civilian relocation; seize and control all forms of transportation and restrict travel; seize communications and health facilities; regulate operation of private enterprise; require national registration through the postal service or otherwise control citizens' lives.

Congress terminated all four emergencies under review at the time and set up a new system of annual renewals to preclude perpetual states of emergency. The gesture turned out to be hollow. On Nov. 14, 1979, President Carter declared the next emergency during the Iran hostage crisis, and it still is in effect -- along with 13 other national emergencies. Executive orders renewing emergency declarations have become routine paperwork.

"Unfortunately, the Supreme Court has essentially ruled over time that the executive orders have the force and effect of law," says Rep. Jack Metcalf, Washington Republican, leader of a rebellion currently brewing in the House. "Well, they don't, but if nobody's there to challenge them they continue to carry the effect and force of law."

Metcalf has signed up 72 cosponsors for his joint resolution to call a halt to the practice, including House Judiciary Committee Chairman Henry J. Hyde, Illinois Republican. "Executive orders that press beyond the legitimate powers the president has are a violation of the Constitution," says Metcalf. "The president can't do things that require the spending of money."

Rep. Ron Paul, Texas Republican, has taken a different approach toward the same end, filing a bill seeking to designate executive orders as advisory -- without the force of law, unless Congress approves. His proposed Separation of Powers Restoration Act would limit the practice to cases of pardons, military orders or directives required by a specific federal law.

Meanwhile, William J. Olson, a constitutional lawyer who formerly worked in the Justice Department Office of Legal Counsel -- which along with Office of Management and Budget reviews every executive order for legality -- is preparing a research paper for the Cato Institute that charges Clinton with using executive orders as a substitute for legislative consideration by Congress.

Critics Claim Exec Orders Permit Government by Fiat

Insight on the News, Sept 27, 1999 by Frank J. Murray

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