Legislating by Executive Order

Bruce Bartlett
Posted: Jul 28, 2000 12:00 AM
One of the most important developments of the modern presidency is the growth of presidential lawmaking by executive order. As Tom Sargentich of American University's law school recently put it in testimony before the House Rules Committee, "There can be no doubt that presidential 'lawmaking' by executive order is a central phenomenon in modern governance." While in principle, presidents are not supposed to legislate, that power being reserved to the Congress under the Constitution, it has been recognized since the earliest days of the republic that the president's executive power necessitates some degree of de facto lawmaking. Notes Neil Kinkopf, a law professor at Georgia State, "Statutes are not self-enforcing. Every statute unavoidably conveys some discretion." From this fact inevitably flows a measure of presidential lawmaking via executive order. But clearly the power is not unlimited. "Executive orders are a source of law only when they draw upon the constitutional powers of the president or powers expressly delegated by Congress," Louis Fisher writes in his authoritative book, "Constitutional Conflicts Between Congress and the President" (Princeton University Press, 1985). "When executive orders lack statutory support, they have been held by the courts to be without the force and effect of law. Executive orders may not supersede a statute or override contradictory congressional expressions." An even better authority on this issue is William Howard Taft, who served both as president of the United States and later Chief Justice of the Supreme Court. In his book, "Our Chief Magistrate and His Powers," Taft said, "The true view of the Executive function is, as I conceive it, that the president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to exercise." The classic case of a president overstepping his bounds was when Harry Truman seized the steel industry in order to head off a threatened strike that would have hindered prosecution of the Korean War. The Supreme Court ruled that Truman's executive order was illegal. More recently, a federal district court struck down Bill Clinton's executive order regarding permanent striker replacements, a decision the administration chose not to appeal. While the problem of presidential lawmaking has been around for more than 200 years, there has been a trend in recent years for presidents to be increasingly vague about the legal basis for their executive orders. As Phillip Cooper, a professor of government at the University of Vermont, recently told the House Judiciary Committee, "There has been an increasing tendency since the 1970s for presidents to make sweeping claims of constitutional authority as the basis for their directives." The lack of specific statutory authority makes it harder for Congress and the courts to determine the legal basis for presidential actions. Also, claims of constitutional authority are harder to litigate, since they almost necessarily require a Supreme Court review. By contrast, claims of power based on specific statutory authority are more easily reviewed by lower courts. Bill Clinton, even more so than Richard Nixon, has stretched the power of executive orders to the limit, especially since the 1994 Republican takeover of Congress. As Robert Pear of the New York Times writes, "Mr. Clinton is continually stretching his executive and regulatory authority to put his stamp on policy. He has issued a blizzard of executive orders, regulations, proclamations and other decrees to achieve his goals, with or without the blessing of Congress." Elizabeth Shogren of the Los Angeles Times makes a similar observation: "The latest series of executive orders is illustrative of a president who has used his unilateral authority more robustly and frequently than most of his predecessors." She quotes New York University law professor David Schoenbrod as saying, "Clinton is pushing the envelope. He's constantly trying to take more power than Congress gives him." In an unusually candid comment, Clinton adviser Paul Begala said of Clinton's executive order policy, "Stroke of the pen. Law of the land. Kind of cool." And Clinton adviser Bruce Reed has said, "This president will be signing executive orders right up until the morning of Jan. 20, 2001." Many of Clinton's latest executive orders seem designed mainly to promote Al Gore's campaign. One problem with executive orders is that the courts have ruled that it is mainly Congress's responsibility to protect its own turf. If Congress acquiesces in a presidential usurpation of power without protest, the courts are inclined to let such action stand if challenged at a later date. Lately, Congress has awakened to the problem. Senator Mike Crapo (R-Idaho) has introduced S. 1795 to curb presidential legislating through executive orders. It would require presidents to cite specific constitutional or statutory authority when issuing orders, and provide for expedited judicial review of them. While this is not likely to end presidential usurpation of congressional power, it is a good start.