By Edwards, Catherine
Insight on the News , Vol. 15, No. 46
Artfully circumventing the Constitution and the Republican-controlled Congress, the president continues to legislate through executive order. Will Congress take action?
Frustrated by the Clinton administration's inability to push its agenda past the Republican-controlled Congress, White House Chief of Staff John Podesta has decided that he and the president must take matters into their own hands. Ignoring the Constitution, which states that the laws shall originate in the Congress, and the executive branch shall see that they are faithfully executed, the administration plans to continue legislating and policymaking by executive order, dubbing this course of action, "Project Podesta."
This has produced public concern. "Every time I go on a radio talk show, callers tell me they are frustrated with this president's overuse of executive orders to govern," reports Florida Rep. Porter Goss, chairman of the House Rules subcommittee on the Legislative and Budget Process. But it was Podesta's open declaration of government by executive fiat that prompted Congress to stop complaining about such abuse and to do something about it.
At the end of October, Congress held two hearings on executive orders. In a House Rules Committee hearing, Goss noted that executive orders, "in their most benign form ... are management tools, means by which a chief executive can establish conformity and consistency across the many far-flung elements of his administration." Goss noted, however, that when presidents have overstepped their authority it sometimes has led "to congressional or judicial reaction." This rapidly is becoming one of those times.
William Olson, a constitutional lawyer who testified at the hearing, does not think Congress and the courts have been taking enough action to monitor presidential abuse of power. Olson is author of a recent paper published by the Washington-based Cato Institute, titled Executive Orders and National Emergencies: How Presidents Have Come to Run the Country by Usurping Legislative Power.
Neil Kinkopf, who served as special assistant to the Office of Legal Counsel at the Department of Justice for the first half of the Clinton presidency, is not concerned. He says the Republican majority in Congress has been an active guardian of its legislative role against presidential incursions. "In the 25 years from January 1973 through the end of 1997, legislation to overturn an executive order was introduced on 37 occasions. Of these, 11 occurred ... between 1995 and 1997," years in which the GOP controlled the Congress. That is, when President Clinton couldn't get his programs through Congress, he sometimes simply legislated by decree. Regardless of congressional concern, the president has issued 32 executive orders this year alone. As Podesta acknowledges, "There's a pretty wide sweep of things we're looking to do, and we're going to be very aggressive in pursuing it."
Rep. Ron Paul of Texas, a Republican and civil libertarian, is one who is concerned about this. "We in Congress have created a monster by allowing the president authority to legislate through executive order," he tells Insight. "If we don't do something soon the authority of Congress will continue to get weaker and weaker."
As Insight reported in July, Paul this summer introduced the Separation of Powers Restoration Act (HR2655). The day after the House Rules Committee hearing, Rep. George Gekas, chairman of the House Judiciary subcommittee on Commercial and Administrative Law, presided over a hearing at which Paul testified about his bill. HR2655 would strengthen the hand of the courts and Congress to require valid statutory authority for executive orders. Because a presidential declaration of national emergency greatly expands executive authority, the Paul bill would vest that authority in Congress alone and terminate existing powers of the executive derived from current statutes on national emergency. …