example, Executive Order 13061 was
provisions is uncontested, Clinton's federal-
drafted with no consultation with
ism order was noteworthy for its contrast
the leadership of Congress. This
with the previous Reagan executive order on
illustrates yet another abuse of power
federalism (EO 12612). For example, all refer-
by the President which is similar to
ences to the Tenth Amendment, the clearest
that used to create the 1.7 million
constitutional statement of federalism, were
acre EscalanteStaircase National
excluded. In addition, the Reagan order had
Monument in Utah without even
provided that "[i]n the absence of clear con-
consulting its Governor and
stitutional or statutory authority, the pre-
Congressional delegation.22
sumption of sovereignty should rest with the
individual States. Uncertainties regarding the
In response to Clinton's AHRI power
legitimate authority of the national govern-
grab, Reps. Chenoweth, Bob Schaffer (R-
ment should be resolved against regulation
at the national level."2 4 That presumption
Colo.), Don Young (R-Ark.), and Richard
Pombo (R-Calif.) filed suit in the U.S. District
too was eliminated from the Clinton order.
Court for the District of Columbia seeking a
In place of the doctrine of enumerated
declaratory judgment that the AHRI was
powers, which limits federal powers to those
"Where all previ-
unlawful and an injunction against its imple-
specified in the Constitution, Clinton's exec-
ous executive
mentation. The plaintiffs argued that the
utive order set forth "Federalism Policymak-
AHRI violated the Anti-Deficiency Act, the
ing Criteria." Gone was EO 12612's require-
orders on federal-
Federal Land Management and Policy Act,
ment that federal action be taken only on
ism aimed to
and the National Environmental Policy Act,
problems of national scope and only "when
restrain federal
as well as the Tenth Amendment and the
authority for the action may be found in a
Commerce, Property, and Spending Clauses
specific provision of the Constitution,
actions over
of the Constitution.
[when] there is no provision in the Constitu-
states, the current
The district court dismissed the suit, how-
tion prohibiting Federal action, and [when]
ever, stating that the plaintiffs' injuries were
the action does not encroach upon authority
version is written
reserved to the States."2 5 Instead, federal
"too abstract and not sufficiently specific to
to justify federal
support a finding of standing." In July 1999
agencies would be encouraged to find justifi-
supremacy."
the U.S. Court of Appeals for the District of
cation for their actions to solve "national"
Columbia Circuit affirmed the lower court's
and "multistate" problems from a list of nine
decision, citing Raines v. Byrd.2 3 The plaintiffs'
broad "circumstances" purporting to justify
such actions.2 6
injuries from the creation of AHRI were
"wholly abstract and widely dispersed," the
Gov. Mike Leavitt (R-Utah), speaking on
court said, and therefore were insufficient to
behalf of the National Governors' Associa-
warrant judicial relief. Thus, neither court
tion, raised the concerns of many about the
reached the merits of the challenge. The
role states would play under Clinton's new
plaintiffs are now seeking review by the U.S.
federalism:
Supreme Court.
This new order represents a fun-
Federalism
damental shift in presumption.
Turning now to an issue at the heart of
Where all previous executive orders
our system of government, on May 14, 1998,
on federalism aimed to restrain fed-
Clinton issued EO 13083, attempting there-
eral actions over states, the current
by to craft a new definition of "federalism" to
version is written to justify federal
guide the executive branch in its dealings
supremacy.
with states and localities. Although the
States are not supplicants and the
authority of presidents to issue directives
federal government the overlord.
governing the enforcement of constitutional
States are not special interests. States
6