Perhaps no one
that practice more succinctly, and quotably,
dential usurpation of legislative authority has
than did Clinton adviser Paul Begala: "Stroke
been largely unchecked by both the legislative
put his admira-
of the pen. Law of the land. Kind of cool."3 2
and judicial branches. The Founding Fathers
tion for the raw
had clearly expected that each branch of gov-
power implicit in
ernment would defend its prerogatives from
Background on Presidential
encroachment by the other branches, setting
that practice more
power against power.3 5 Unfortunately, mem
Directives
-
succinctly than
bers of Congress have not been faithful to
their oaths of office or their obligations to
did Clinton adviser
check the executive, despite the Constitu-
From George Washington's first adminis-
Paul Begala:
tion's clear direction that "[a]ll legislative
tration, presidents have issued executive
"Stroke of the
Powers herein granted shall be vested in a
orders, proclamations, and other documents
known generally as presidential directives.3 3
Congress of the United States" (Article I, sec-
pen. Law of the
tion 1).36 Neither has the judicial branch
The two most prominent forms of presiden-
land. Kind
tial directive are executive orders and procla-
checked such executive usurpations: only
mations. More than 13,000 numbered execu-
twice in the history of the nation have U.S.
of cool."
tive orders have been issued since 186234 and
courts voided executive orders.
The focus of this study is presidential
more than 7,000 numbered proclamations
usurpations of legislative authority--that is,
since 1789. Although some directives are
the illegal exercise of legislative authority--not
proper exercises of executive power, others are
acts of tyranny--that is, the illegal exercise of
clearly usurpations of legislative authority.
power never delegated to the federal govern-
Presidential directives deal with all man-
ment at all. In the words of John Locke, one of
ner of constitutionally authorized subjects,
the principal inspirations for the American
such as the implementation of treaties (for
Revolution, "As Usurpation is the exercise of
example, EO 12889, "To Implement the
Power, which another hath a Right to, so
North American Free Trade Agreement,"
Tyranny is the exercise of Power beyond Right,
issued December 27, 1993), government pro-
which no Body can have a Right to."3 7
curement (for example, EO 12989, "Economy
and Efficiency in Government Procurement
through Compliance with Certain Immigra-
The Legal Authority for
tion and Naturalization Act Provisions,"
Presidential Directives
issued February 13, 1996), the regulation of
government-created information (for exam
-
ple, EO 12951, "Release of Imagery Acquired
by Space-Based National Intelligence
There is no constitutional or statutory
Reconnaissance Systems," issued February
definition of "proclamation," "executive
28, 1995), and the direction of subordinate
order," or any other form of presidential
directive.38 Since 1935 presidents have been
executive officials (for example, EO 12866,
"Regulatory Planning and Review," issued
required to publish executive orders and
proclamations in the Federal Register.3 9 Yet
September 30, 1993). There is even an execu-
tive order (EO 11030, issued by President
even that requirement can be circumvented
Kennedy) that specifies how executive orders
by the nomenclature used: "the decision
are to be prepared, routed (through both the
whether to publish an Executive decision is
Office of Management and Budget and the
clearly a result of the President's own discre-
tion rather than any prescription of law."4 0 As
attorney general), and published.
A constitutional problem arises, however,
a result, many important decisions are issued
when presidents use directives not simply to
informally, using forms not easily discovered
execute law but also to create it--without con-
by the public, while many trivial matters are
stitutional or statutory warrant. Such presi-
given legal form as executive orders and
8