Stroke of his pen subverts the law

0 Comments | Insight on the News, July 27, 1998 | by Keith Russell

The Founders would be shocked to learn presidents now make law by executive order. But for Bill Clinton and many of his predecessors, it had been a potent political tool.

Trust no one. Especially not the Federal Emergency Management Agency. That's the immutable lesson FBI Special Agents Mulder and Scully, those extraterrestrialchasing detectives played by David Duchovny (Mulder) and Gillian Anderson (Scully) learn in the blockbuster motion picture, The X-Files. In the film (based on the hit television series of the same name) Martin Landau, playing a conspiracy spinner whose tales of black helicopters and alien motherships ring true, tells Agent Mulder of a desperate plan concocted by federal villains: The secret transfer of dictatorial government power to the Federal Emergency Management Agency, or FEMA.

The mechanism that would allow bureaucrats to trample on the Constitution? A presidential executive order. "Think of it, Mulder!" Landau exclaims in the film. "A secret government, run by FEMA, with supreme powers!"

For most of us, it is purest fancy, straining credibility even by suggesting a president would use an executive order to seize total power. Even Mulder, a man paid to believe in conspiracies, has his doubts. "They call me the paranoid one," he quips when being told of the FEMA plot.

And yet, like all good science fiction, the threat of a presidential executive order abrogating constitutional authority is based on more than fantasy. Indeed, the truth about the use of executive orders by presidents to accumulate and exercise unauthorized power would seem a real-life nightmare to the Founding Fathers, say constitutional scholars and concerned members of Congress.

"We have virtually created a form of dictatorship," warns Idaho Republican Rep. Helen Chenoweth. "We must take back control of our government."

Chenoweth, who came into Congress as part of the GOP's 1994 conservative revolution, speaks from experience. For nearly two years she has fought the Clinton administration over the president's controversial American Heritage Rivers Initiative program, announced in his 1997 State of the Union address, under which local communities near designated "American heritage" rivers are made eligible for money and other development assistance from federal agencies. Though Chenoweth opposed the program on its merits, fearing it was an attempt to undermine private property rights in favor of expanded federal land management, it was how Clinton did it that steamed the gentlelady from Idaho.

Clinton did not go to the people's Congress for an enabling act but established the program dictatorially through executive order. In short, the president created a controversial new federal program, appropriating federal tax dollars that Congress likely would never have approved.

"It's purpose was ... a federal land grab, or a federal takeover of power that rightfully belonged to the states," Chenoweth tells Insight. "And they didn't do it through statutory authority. Instead, they created a new animal called an `initiative.' I am so amazed."

To stop funding for the heritage rivers initiative, Chenoweth introduced a bill, cosponsored by 52 other representatives, recently voted out of the House Resources Committee. Along with Republican Reps. Don Young of Alaska, Richard Pombo of California and Bob Schaeffer of Colorado, she also has filed a federal lawsuit to kill the initiative.

But Chenoweth and her allies are not the only ones amazed by the willingness of Clinton to act dictatorially without benefit of constitutional color through presidential executive orders. In November 1996, for instance, legislators in Utah were flabbergasted when they heard President Clinton had issued an executive order seizing 1.7 million acres of land in the Beehive state as a national monument-- without so much as consulting Congress or the state. "The manner in which the White House hid this decision from the people of Utah ... displays an alarming disregard for the Constitution," Utah Republican Rep. James Hansen says of the affair.

More recently, executive orders have been used to add controversial language inserting "sexual orientation" into affirmative-action provisions affecting federal hiring practices, and even have been used to change the rules concerning how federal agencies decide when and whether to intervene when issues of federalism arise. Adam Thierer, a fellow in economic policy at the Heritage Foundation, called the effort "a grotesque distortion of the Framers' language establishing the original federalist system." And it was all done without a single vote by Congress.

Even more curious is that the mechanism used to override the balance of powers carefully worked out by the Framers never was intended to be there. Forrest McDonald, a professor of history at the University of Alabama and author of The American Presidency: An Intellectual History, explains that executive orders were created about 100 years after the Constitution was written. They were first authorized by Congress as part of a civil-service bill in the go-go 1880s. Since then, executive orders gradually have evolved into a powerful executive tool, and the judiciary has tolerated the expansion of presidential authority. "The courts have held that if the order falls within a president's constitutional duty or is authorized by Congress then it has the force of law," McDonald explains.