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No. 358

October 28, 1999

Executive Orders and National Emergencies

How Presidents Have Come to "Run the

Country" by Usurping Legislative Power

by William J. Olson and Alan Woll

Executive Summary

the states, raising fundamental concerns about

During the recent presidential scandals, con-

the separation and division of powers.

cluding with the impeachment of President

The problem of presidential usurpation of

Clinton, many people were heard to say that the

legislative power has been with us from the

investigations should end so that the president

beginning, but it has grown exponentially with

could get back to "the business of running the

the expansion of government in the 20th centu-

country." Under a constitution dedicated to

ry. In enacting program after program, Congress

individual liberty and limited government--

has delegated more and more power to the exec-

which divides, separates, and limits power--how

utive branch. Thus, Congress has not only failed

did we get to a point where so many Americans

to check but has actually abetted the expansion

think of government as embodied in the presi-

of presidential power. And the courts have been

dent and then liken him to a man running a

all but absent in restraining presidential law-

business?

making.

The answer rests in part with the growth of

Nevertheless, the courts have acted in two

presidential rule through executive orders and

cases--in 1952 and 1996--laying down the prin-

national emergencies. Unfortunately, the

ciples of the matter; the nation's governors have

Constitution defines presidential powers very

just forced President Clinton to rewrite a federal-

generally; and nowhere does it define, much less

ism executive order; and now there are two pro-

limit, the power of a president to rule by execu-

posals in Congress that seek to limit presidential

tive order--except by reference to that general

lawmaking. Those developments offer hope that

language and the larger structure and function

constitutional limits--and the separation and

of the Constitution. The issue is especially acute

division of powers, in particular--may eventually

when presidents use executive orders to legislate,

be restored.

for then they usurp the powers of Congress or

___________________________________________________________________________________________

William J. Olson heads a McLean, Virginia, law firm (www.wjopc.com) that focuses on constitutional, adminis-

trative, and civil litigation. Alan Woll is an attorney in Blevins, Arkansas (akewoll@arkansas.net).