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prohibit employers from hiring permanent

motivated and probably illegal" and was

striker replacements.6  Following those

made "to circumvent congressional involve-

ment in public land decisions."1 2 As the

repeated failures to enact such legislation,

Clinton issued EO 12954, which prohibited

House Committee on Resources found:

federal contractors doing business with the

government under the Procurement Act7

The White House abused its dis-

cretion in nearly every stage of the

from hiring permanent striker replacements.

process of designating the monu-

Given that history, it was no surprise that

ment. It was a staff driven effort, first

EO 12954 was challenged in court.8 In the

to short-circuit a congressional

ensuing litigation, the administration assert-

wilderness proposal, and then to

ed that "there are no judicially enforceable

help the Clinton-Gore re-election

limitations on presidential actions, besides

campaign. The lands to be set aside,

claims that run afoul of the Constitution or

by the staff's own descriptions, were

which contravene direct statutory prohibi-

not threatened. "I'm increasingly of

tions," as long as the president states that he

has acted pursuant to a federal statute.9 But

the view that we should just drop

these Utah ideas . . . these lands are

the U.S. Court of Appeals for the District of

not really endangered."--Kathleen

Columbia Circuit rejected that argument--

McGinty,  chair,  Council  on

along with the administration's claim that

Environmental Quality.13

the president's discretion to act under the

Procurement Act trumps the statutory pro-

tections of the NLRA. The court noted that

The intent to both bypass and preempt

even if the administration could show that

Congress was made plain in an earlier letter

the two statutes were in conflict, under con-

from McGinty to Secretary of the Interior

ventional judicial principles the court would

Bruce Babbitt:

not interpret the passage of the Procurement

Act as implying that Congress had thereby

As you know, the Congress currently

intended partial repeal of the NLRA.1 0

is considering legislation that would

remove significant portions of public

The court concluded that the order

lands in Utah from their current pro-

amounted to legislation since it purported to

tection as wilderness study areas. . . .

regulate the behavior of thousands of

Therefore, on behalf of the President

American companies, thereby affecting mil-

A congressional

I/we are requesting your opinion on

lions of American workers. As the court

review later con-

what, if any, actions the Administra-

explained, "[N]o federal official can alter the

tion can and should take to protect

delicate balance of bargaining and economic

cluded that the

power that the NLRA establishes."1 1 Thus, it

Utah lands that are currently man-

proclamation,

aged to protect wilderness eligibility,

struck down the executive order. The Clinton

was "politically

but that could be made unsuitable

administration did not appeal the decision to

for future wilderness designation if

the Supreme Court, but neither did it cease

motivated and

opened  for  development  by

its aggressive use of presidential directives.

probably illegal"

Congress.14

Grand Staircase­Escalante Monument

and was made "to

A few weeks before the 1996 presidential

In response to Clinton's action, the Utah

circumvent

election, Clinton used Proclamation 6920 to

Association of Counties and the Mountain

congressional

establish the 1.7 million acre Grand

States Legal Foundation filed suit in the U.S.

Staircase­Escalante National Monument in

District Court for the District of Utah, argu-

involvement in

Utah. A congressional review later concluded

ing that when the president created the mon-

public land

that the proclamation, issued apparently to

ument he violated the Antiquities Act of

preclude pending legislation, was "politically

1906. Judge Dee Benson recently denied the

decisions."

4