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Dec. 2000
Edition 16
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Separation of Powers - Executive Orders
Government by the People, 14th edition, Burns, Peltason, Cronin, Prentice Hall
It may seem strange to begin by stressing the ways in which the Constitution limits governmental power, but we must keep in mind the dilemma the framers faced. They wanted a more effective national government, yet at the same time they were keenly aware that the people would not accept too much central control. Efficiency and order were important concerns, but they were not as important as liberty. The framers wanted to ensure domestic
tranquility and prevent future rebellions, but they also wanted to forestall the emergence of a home-grown George III. Accordingly, they allotted certain powers to the national government and reserved the rest for the states, thus establishing a system of federalism.... Even this was not enough. They believed they needed additional means to limit the national government.
The first step was the separation of powers, that is, allocating constitutional authority to each of the three branches of the national government. In The Federalist, No. 47, James Madison wrote, "No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that...the accumulation of all powers, legislative, executive, and judiciary, in the same hands...may justly be pronounced the very definition of tyranny."
Separation of powers: Constitutional division of power among legislative, executive, and judicial branches. The legislative branch is assigned the power to make laws; the executive is charged with the power to apply the laws: and the judiciary receives the power to interpret laws.
American presidents of both political parties; Congress regardless of its majority
party; and the courts have failed to honor the American constitutional requirement of the
separation of powers; the separation of powers our country's founders knew to be necessary
in order for them and for us to live in liberty.
During the remaining few months of his term in office, how many and what kind of executive
orders will President Clinton issue
"The fact that the amendment did
not survive conference was disappointing, and led the administration to issue essentially
the same policy in executive-order form."
U.S. Trade Representative Charlene
Barshefsky, The Wall Street Journal, May 11, 2000
"We've switched the rules of the
game. We're not
trying to do anything legislatively."
Interior Secretary Bruce Babbitt,
The Washington Times, June 14, 1999
"...he [Clinton] has also
pursued an 'executive order strategy'
that goes way beyond trying to guide federal agencies
in how to implement laws."
The Wall Street Journal (editorial) August 6,
1998
"Stroke of the pen.
Law of the Land. Kinda cool."
Paul Begala, former Clinton advisor, The New
York Times, July 5, 1998
"Clinton is pushing the
envelope. He's consistently trying to take
more power than Congress gives him."
David Schoenbrod, New York Law School
professor, Los Angeles Times, July 4, 1998
Legislation Introduced in 106th Congress to Restore Separation of Powers
U.S. HouseOn July 30, 1999, Representative Ron Paul (Texas) and Representative Jack Metcalf (Washington) introduced H.R. 2655; The Separation of Powers Restoration Act in the U.S. House of Representatives to reclaim our liberty by restoring the separation of powers of our national government.
H.R. 2655 would have:1. Prohibited a presidential executive order from having the effect of law.
2. Suspended all states of national emergencies declared since 1976 (the last time Congress canceled such declarations).
3. Granted legal standing to individual members of the U.S. Congress, state officials and private citizens who believe a presidential executive order is unconstitutional.
4. Repealed
the 1973 War Powers Resolution.
On October 27, 1999, the U.S. House Committee on
Rules, Subcommittee on Legislative and Budget Process held a hearing "The Impact of
Executive Orders on the Legislative Process: Executive Lawmaking?"
William J. Olson, counsel to The Liberty Committee testified before the
subcommittee. To read Mr. Olson's testimony, please click here.
To read Mr. Olson's answers to submitted questions, please click here.
On October 28, 1999, the U.S. House Committee on Judiciary, Subcommittee on Commercial and
Administrative Law held a hearing on H.R. 2655. Representatives
Paul and Metcalf testified before the subcommittee. To read Representative Paul's
testimony, please click
here. To read Representative Metcalf's testimony, please click here.
H.R. 2655 has 44 cosponsors as of November 2, 2000. To read an
analysis of H.R. 2655, please click here.
U.S. Senate
On October 26, 1999, Senator Mike Crapo (Idaho) introduced S. 1795; The Executive Orders Limitation Act to preserve the constitutional separation of powers by safeguarding Congress; legislative power and to provide for more open and public knowledge about executive orders.
S. 1795 would have:
1. Prohibited
all executive orders not expressly authorized by statute or the
Constitution of the United States of America.
2. Required
the president to cite the exact constitutional or statutory authority
when issuing an executive order.
3. Required
a cost-benefit analysis and a public comment period before an executive order can take
effect.
4. Provided
for expedited judicial review of questionable executive orders.
S. 1795 has seven cosponsors as of November 2,
2000. To read an analysis
of S. 1795, please click
here.
Executive Orders - Background Information
During the recent presidential scandals, concluding with the impeachment of President Clinton, many people were heard to say that the investigations should end so that the president could get back to "the business of running the country." Under a constitution dedicated to individual liberty and limited government; which divides, separates, and limits power – how did we get to a point where so many Americans think of government as embodied in the president and then liken him to a man running a business?
The answer rests in part with the growth of presidential rule through executive orders and national emergencies. Unfortunately, the Constitution defines presidential powers very generally; and nowhere does it define, much less limit, the power of a president to rule by executive order; except by reference to that general language and the larger structure and function of the Constitution. The issue is especially acute when presidents use executive orders to legislate, for then they usurp the powers of Congress or the states, raising fundamental concerns about the separation and division of powers.
The problem of presidential usurpation of legislative power has been with us from the beginning, but it has grown exponentially with the expansion of government in the 20th century. In enacting program after program, Congress has delegated more and more power to the executive branch. Thus, Congress has not only failed to check but has actually abetted the expansion of presidential power. And the courts have been all but absent in restraining presidential lawmaking.
Nevertheless, the courts have
acted in two cases; in 1952 and 1996; laying down the principles of the matter; the
nations governors have just forced President Clinton to rewrite a federalism executive
order; and now there are two proposals in Congress that seek to limit presidential
lawmaking. Those developments offer hope that constitutional limits; and the separation
and division of powers, in particular; may eventually be restored. William
J. Olson and Alan Woll
Executive Orders and National Emergencies
How Presidents Have Come to "Run the
Country" by Usurping Legislative Power
CATO Institute, Policy Analysis, No. 358, Oct. 28, 1999
To read Mr. Olson and Mr. Woll's complete policy analysis, please click here.
It is not possible for a constitutional republic to maintain
itself. A great and noble system of government requires perpetual vigilance on the part of
its citizenry if it is to survive.
Sadly, within our own precious land, a subtle but virulent type of distortion has been taking place. The assault has been slow but persistent. It has occurred beyond the grasp and view of many Americans.
Most alarming, though, is that we now find ourselves in a situation where the rudimentary mechanisms of our republic, the actual underpinnings of our representative structure, are in danger.
At the superficial level, procedures appear to be routine in nature and government seems to be operating facilely. So by what means could so seemingly a solid and efficient system be threatened?
The instrument of destruction that hangs over us like the sword of Damocles goes by various titles, but most commonly it is referred to as the executive order. When used as originally intended, an executive order is a written method of communication that enables a president to facilitate and effectuate necessary administrative functions.
However, this tool has slowly been corrupted over time. It is now being used with the very intention of circumventing our system of representative government.
Most Americans would be shocked to find out that President Clinton, acting alone, has:
Taken legislation that was voted down by our elected representatives and, acting as a one-man Congress, signed it into law;
Resurrected a law that had previously been terminated by Congress, so as to alter policy relating to the export of sensitive technology;
Created secret laws that are unable to be seen, even upon written request, by the people, press, Congress, or even select intelligence committees of Congress;
Changed four decades of military policy, where previously a launch on warning was required if it were verified that an enemy missile was headed toward our mainland or our territories, to a launch on impact, where we are required to sustain a potentially devastating nuclear missile hit, with likely casualties, before we respond;
Erased a crucial, foundational part of our Constitution, the Tenth Amendment;
Implemented unratified international treaties, ignoring the constitutional requirement of the two-thirds approval vote by our duly elected representatives in the Senate;
Secretly assigned our troops to the United Nations and placed them under foreign command;
Enabled United Nations representatives in a given NGO to be immune from legal action for violations of law;
Placed the country in a state of emergency that allows the president, or others in his administration, to suspend the Bill of Rights and the Constitution at will.
Every American citizen should find the above list of items extremely disconcerting. But equally distressing is the fact that the present administration plans to accelerate its approach further still.
And so, with an urgency that has rare parallels in our history, we must determine how to stop the ever-increasing, pernicious usurpation of power that has been occurring through Bill Clintons abuse of the executive order process.
Executive Orders -
News Articles & Commentaries
2000
10/27/00 NewsMax.com, "Executive Orders & the Presidential Campaign"
by Dr. James Hirsen
07/03/00 Forbes, "Executive Disorders" by Dan Seligman06/26/00 U.S. News Online, "Clinton's campaign to end-run Congress" by Kenneth T. Walsh
02-07-00 DeseretNews.com, "Clinton blurs separation of powers" by Jack Kilpatrick (commentary)
01-31-00 DeseretNews.com, Stroke of the pen, federal government takes control" by Marianne M. Jennings (opinion)
1999
12-22-99 SunSpot.net (The Baltimore Sun), "Wielding the power of the president's pen" by Jonathan Weisman12-14-99 WorldNetDaily.com, "Another 'stroke of the pen'" (commentary)
12-12-99 Las Vegas Review-Journal, "Restoring the Constitution" (opinion)
11-27-99 Mobile Register, "The use of executive orders must be curtailed" (editorial)
11-18-99 NewsMax.com, "Implementation of a Global Agenda" by James L. Hirsen, J.D., Ph.D.
11-17-99 NewsMax.com, "Secret Governance" by James L. Hirsen, J.D., Ph.D.
11-16-99 The Victoria Advocate, "Stop Clinton power grabs" (editorial)11-16-99 NewsMax.com, "Statutes of Doom" by James L. Hirsen, J.D., Ph.D
11-15-99 NewsMax.com, "Misuse of Authority" by James L. Hirsen, J.D., Ph.D.
11-12-99 NewsMax.com, "Executive Orders and the Demise of Liberty" by James L. Hirsen, J.D., Ph.D.
11-09-99 Christian Science Monitor, "Clintonian 'tyranny' rankles Hill" by Francine Kiefer
11-08-99 Colorado Springs Gazette, "By royal decree - President sidesteps the Congress with a succession of executive orders" (opinion)11-07-99 Washington Times, "Hill Leaders Complain of Clinton Power Grab" by Dave Boyer
11-02-99 Investor's Business Daily, "Restoring Checks and Balances" (editorial)
11-01-99 The Orange County Register, "Executive order excess" (editorial)
11-01-99 US News Online, "Washington Whispers: Project Podesta" by Paul Bedard
10-22-99 Insight Magazine , "Clinton Orders Human Experiments" by Timothy Maier
10-22-99 CNSNews.com, "Executive Orders Meet Separation of Powers Act" by Ben Anderson
10-20-99 The Salt Lake Tribune, "Babbit Gets Feisty, Warns Congress of More Monuments" by Christopher Smith
10-14-99 Deseret News, "Clinton abuses his power" (editorial)
09-13-99 The Washington Times, "Clinton's executive orders sweeping, controversial" by Frank Murray
09-09-99 UExpress/Universal Press Syndicate, "The President's Precedents" (opinion) by Joseph Sobran
09-07-99 The American Partisan, "Courage to Fight Executive Orders," by Michael R. Allen
08-23-99 The Washington Times, A SPECIAL REPORT "Clinton's executive orders still are packing a punch / Other presidents issued more, but many of his are sweeping" by Frank J. Murray
08-11-99 Pittsburgh Post-Gazette, "Power Trip: Clinton's record of using the military for law enforcement" by Jack Kelly
08-09-99 The Gazette, "An imperial prez, A plan to curb president's power to sidestep Congress, Constitution (editorial)
08-07-99 The Las Vegas Review-Journal, "The imperial presidency" (editorial)
08-06-99 CNN.com, "Clinton orders study on policing the Internet" by John King
08-06-99 Wall Street Journal, "Executive Rules" (editorial)
08-06-99 WorldNetDaily.com, "Executive Order 13083 replaced with new one: Federalism policy still broadens scope of Washington's power" by David M. Bresnahan
08-04-99 The Orange County Register, "Curbing an Imperial Presidency" (editorial)
07-30-99 Insight Magazine, "Emergency Rule, Abuse of Power?" by Catherine Edwards
07-04-99 Los Angeles Times, "Clinton to Bypass Congress in Blitz of Executive Orders" by Elizabeth Shogren
06-07-99 WorldNetDaily.com, "The Imperial Presidency: Another end-run around Congress? " by Sarah Foster
04-16-99 The Las Vegas Review-Journal, "Clinton abusing the power to issue executive orders" (editorial)
03-21-99 The Sunday Patriot-News Harrisburg, "Stand up to White House, take back powers" (editorial)
02-16-99 The Augusta Chronicle, "Warns of 'Emergency' Executive Orders" (editorial)
02-14-99 Florida Today, "Congress' power cut" (editorial)
02-11-99 WorldNetDaily.com, "Clinton's latest executive order 'Invasive Species' action seen as attack on rural America" by Sarah Foster02-02-99 The Augusta Chronicle, "Fears 'Emergency' Executive Orders" (editorial)
01-26-99 WorldNetDaily.com, "Clinton's 12 'national emergencies' - Is this a sign of White House power grab?" by Sarah Foster01-19-99 The Las Vegas Review-Journal, "Clinton grabs for power through executive orders" (editorial)
1998
08-31-98 WorldNetDaily.com, "The hidden power of the presidency" by James L. Hirsen/07-26-98 Portland Oregonian, "Clinton Perfects Do-It-Yourself Governance" by Francine Kiefer
07-24-98 Christian Science Monitor, "Clinton Perfects the Art of Go-Alone Governing Feeling stymied by GOP on the Hill, president pushes agenda through executive orders, vetoes, and publicity" by Francine Kiefer
07-16-98 Dow Jones Newswires, "Executive Order On Federalism Stirs State-Local Ire" by Alex Keto and John Connor
06-28-98 The New York Times, "Under Clinton, The Presidential Pen Is Mighter Than Ever" by Robert Pear05-07-98 Investor's Business Daily, "Kyoto Duplicity" (editorial)
1997
03-21-97 Florida Today, "Executive Orders Give Clinton Dictator Powers" (editorial)1996
12-20-96 Orlando Sentinel, "The Imperial Pen" (editorial)
List of
Executive Orders & Other Reference Sources
List of Executive Orders - Federal Register
Search for Executive Orders - The White House
Search for Executive Orders - Google/Uncle Sam
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