-Caveat Lector-
It is our right,
and it is our duty,
to remain free.
--- Alan Keyes
Vol. 15, No. 31 -- August 23, 1999
Published Date July 30, 1999, in Washington, D.C.
http://www.insightmag.com
Emergency Rule, Abuse of Power?
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By Catherine Edwards
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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."
http://www.insightmag.com/articles/story4.html
Bard
Visit me at:
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http://www.xld.com/public/center/center.htm
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