The Impact of Executive Orders on the
Legislative Process: Executive Lawmaking?
TESTIMONY of William J. Olson to the Committee on Rules,
Subcommittee on Legislative and Budget Process
October 27, 1999
Mr. Chairman and members of the Subcommittee, I want to thank
you for this opportunity to testify before you regarding the
impact of Executive Orders on the legislative process and the
very real problem of presidential lawmaking by fiat.
From the standpoint of my participation, the timing of your
hearing is providential, in that many months ago I was asked to
undertake a study of this very subject by Roger Pilon, director
of the Cato Institute’s Center for Constitutional Studies. The
paper which I co-authored with Alan Woll, an associate in our
law firm, was finalized just last week. It is now back from the
printer and today receiving its first public release. The Cato
paper has a title somewhat more flamboyant than that of this
hearing — "Executive Orders and National Emergencies: How
Presidents Have Come to ‘Run the Country’ by Usurping
Legislative Power." I greatly appreciate the opportunity to
testify about the matters discussed at length there, and I
understand that copies of this paper have been made available to
the Subcommittee, and otherwise are available on Cato’s website
at www.cato.org.
On January 30, 1788, in Federalist 47, James Madison observed
that Montesquieu’s warning — "There can be no liberty where the
legislative and executive powers are united in the same person,
or body of magistrates" — did not apply to our constitution
because "[t]he magistrate in whom the whole executive power
resides cannot of himself make a law, though he can put a
negative on every law...." Despite Madison’s predictions, our
government quickly strayed from its principles and our chief
magistrate has, in fact, again and again, legislated by fiat. In
fact, in our research on presidential directives (such as
executive orders and proclamations), I learned that from its
beginning, American political history has been marked by efforts
of many presidents to define the extent of their power and
authority in ways violative of the U.S. Constitution.
As early as 1792, according to Thomas Jefferson: "I said to
[President Washington] that if the equilibrium of the three
great bodies, Legislative, Executive and Judiciary, could be
preserved, if the Legislature could be kept independent, I
should never fear the result of such a government; but that I
could not but be uneasy when I saw that the Executive had
swallowed up the Legislative branch."
Congress and the courts have taken action from time to time
to examine and, at times, challenge presidential exercises of
authority perceived to be unconstitutional: from President
Washington’s declaration of neutrality to the Louisiana
Purchase, Jefferson’s embargo, Jackson’s removal of federal
funds from the Second Bank of the United States, Polk’s sending
of Gen. Zachary Taylor’s troops into contested territory before
the declaration of war with Mexico, Lincoln’s conduct of the
Civil War without calling Congress into session, Lincoln’s
amnesty and reconstruction plans, the Tenure of Office Act and
Andrew Johnson’s impeachment ... and the list goes on and on.
But the Constitution anticipated that the Congress and the
Court would jealously guard their prerogatives, and, setting
power against power, unconstitutional excursions by the
executive would be met with fierce resistance. Sadly, neither
the Congress nor the Court have acted boldly in defense of the
Constitution, particularly in the recent past.
My first personal experience with an unconstitutional
exercise by the executive of a legislative power arose in the
mid-1980's, shortly after I completed serving three part-time
positions in the Reagan Administration, when I filed suit
against the Reagan Administration for usurping the Senate’s
power to ratify treaties before they became effective. The case
was The Conservative Caucus v. Reagan, litigated
in the U.S. District Court for the District of Columbia. Our
client had sought to prevent Secretary of Defense Casper
Weinberger from ordering the Pentagon to unilaterally implement
the SALT II treaty — which the Senate had thus far refused to
ratify. President Reagan had announced his determination to
implement the treaty, notwithstanding the Senate's
constitutional role. Unfortunately, we were unable to obtain a
review on the merits, as the suit was dismissed, as so many
similar suits have been, on the theory that our client lacked
standing to bring suit.
The simple truth is that the courts cannot be counted upon to
check Presidential power — our research has been able to
identify only two cases in the history of the country in which
the courts have struck down completely an executive order. The
first of these was in 1952, when the U.S. Supreme Court negated
the seizure of the steel mills ordered by President Truman,
observing that:
In the framework of our Constitution, the President's
power to see that the laws are faithfully executed refutes
the idea that he is to be a lawmaker. The Constitution
limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws
he thinks bad. And the Constitution is neither silent nor
equivocal about who shall make laws which the President is
to execute. The first section of the first article says that
"All legislative Powers herein granted shall be vested in a
Congress of the United States ...." After granting many
powers to the Congress, Article I goes on to provide that
Congress may "make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in the
Government of the United States, or in any Department or
Officer thereof." [Youngstown Sheet & Tube v.
Sawyer.]
Notwithstanding this U.S. Supreme Court decision, presidents
of both parties continued to implement controversial initiatives
using presidential directives — often in the face of
Congressional opposition. The other time the court struck down
completely an executive order was President Clinton’s executive
order relating to the hiring of permanent striker replacements
by federal contractors, and the decision of the U.S. Court of
Appeals for the D.C. Circuit was not appealed to the U.S.
Supreme Court. Chamber of Commerce of the U.S. v.
Reich.
Congress has done little more than the courts in restricting
presidential lawmaking. Nevertheless, Congress did make one bold
step to check executive powers in the related arenas of
executive orders, states of emergency and emergency powers. The
Congressional concern led to the creation of a Special Senate
Committee on the Termination of the National Emergency,
co-chaired by Sens. Frank Church (D-ID) and Charles Mathias, Jr.
(R-MD), more than 25 years ago. The diligent efforts of this
committee resulted in the successful codification of efforts to
restore the Constitutional separation of powers, through a check
on the presidential exercise of "emergency powers," by means of
the National Emergencies Act. Other contemporaneous statutory
efforts to check presidents’ unconstitutional exercise of power
include the War Powers Resolution, the International Emergency
Economic Powers Act, and the amendment of the Trading with the
Enemy Act of 1917.
Unfortunately, these 1970s efforts to impose restraints on
unconstitutional exercises of power by presidents have been
ineffective — witness the inability of Representatives and
Senators to obtain judicial review of President Clinton’s war
upon the Federal Republic of Yugoslavia pursuant to the terms of
the War Powers Resolution. Likewise, notwithstanding the
National Emergencies Act and the International Emergency
Economic Powers Act, the number of presidentially-declared
national emergencies has exploded. Since then, although
individual members of Congress have spoken out, the Congress has
failed to act.
I commend the efforts of this Subcommittee to take a new look
at the issue of executive lawmaking, urge you to expand the
scope of your investigation to focus on emergency powers, and in
both cases to begin your investigation where Senators Church and
Mathias left off, and to act boldly to curtail Presidential
lawmaking.
Two proposals are currently before the House which would
address this concern. First there is Rep. Metcalf’s H. Con. Res.
30, which would express:
the sense of the Congress that any Executive order issued
by the President before, on, or after the date of the
approval of this resolution that infringes on the powers and
duties of the Congress under article I, section 8 of the
Constitution, or that would require the expenditure of
Federal funds not specifically appropriated for the purpose
of the Executive order, is advisory only and has no force or
effect unless enacted as law.
This proposal has been useful in focusing attention on the
problem, but the solution it proposes would be cosmetic only.
First, as a concurrent resolution, even upon passage, it will
not enjoy the force of law. If a resolution passed into law by
both Houses of Congress over a presidential veto, such as the
War Powers Resolution, cannot be enforced in the courts, then
passage of a resolution with no legal effect is essentially a
symbolic gesture. Second, it is unclear what constitutes an
infringement of the powers and duties of Congress, or a specific
appropriation for the purpose of the executive order. And third,
even if it were an effective limitation on executive orders, it
could be evaded easily by entitling the directive as a
proclamation (or some other directive). Rather than truly solve
the problem, I fear passage of this proposal would be
counterproductive in that it would give Members of Congress and
the public the false impression that the problem had been
solved.
By contrast, H.R. 2655, Rep. Paul’s and Rep. Metcalf’s
approach holds great hope to solve this recurrent problem. This
bill, which, as a proposed statute, would become legally
binding, would:
- establish the first statutory definition of
"presidential directive" (it uses the term "presidential
order");
- expand access to the courts to challenge the legality of
presidential orders;
- define the constitutional powers which the president may
exercise by presidential order; would require any statutory
authority for the presidential order to be express for the
order to be valid;
- terminate the powers and authorities possessed by the
president, executive agencies, or federal officers and
employees, that are derived from the currently existing
states of national emergency;
- vest the authority to declare future national
emergencies in Congress alone; and
- repeal the ineffective War Powers Resolution.
Lastly, I would say that concerns about presidential
lawmaking must not be written off as attacks on the policies
underlying the executive orders. This is not partisan politics
masquerading as separation of powers issues. It is true that it
finds fault with President Clinton, but it is also finds fault
with Presidents Reagan, Bush, and others. As a review of the
above-mentioned CRS report will demonstrate, presidential
directives were used to legislate to accomplish political
objectives which could be viewed as "liberal" and political
objectives which could be viewed as "conservative." No
constitutional power should be misused, irrespective of the
benefit perceived for a political objective. If constitutional
processes are violated, in the end, we all lose.
In his concurring opinion in Youngstown Sheet and Tube,
Justice Frankfurter observed:
The tragedy of such stalemates might be avoided by
allowing the President the use of some legislative
authority. The Framers with memories of the tyrannies
produced by a blending of executive and legislative power
rejected that political arrangement. Some future
generation may, however, deem it so urgent that the
President have legislative authority that the Constitution
will be amended. We could not sanction the seizures and
condemnations of the steel plants in this case without
reading Article II as giving the President not only the
power to execute the laws but to make some. Such a step
would most assuredly alter the pattern of the Constitution.
[Emphasis added.]
The problem before you is extremely serious, but solvable.
The U.S. Constitution charges you with the duty to protect it
from assault, and the American people look to you to do just
that. Thank you.
See Also Exec. Branch - Presidential Power
and Executive Orders Unlawful |
