'Executive Orders and National Emergencies: How Presidents Have Come to "Run the Country" by Usurping Legislative Power' by William J. Olson and Alan Woll

<< < > >>

welcomed, and HCR 30 has helped focus

or statutory provision that empowers the

attention on the problem. But even if passed,

president to take the action embodied in the

the resolution would not remedy the prob-

directive, failing which the directive is deemed

lem--and could even divert attention from a

invalid. In addition, the application and legal

real solution.

effect of any directive that does cite such

Since HCR 30 has been introduced as a

authority are limited to the executive branch

concurrent resolution, its passage would not

unless the cited authority does in fact autho-

have the force of law. Concurrent resolutions

rize the embodied action. And, HR 2655

are not presented to the president for signa-

would establish, for the first time, a statutory

ture; they represent the sense of Congress

definition of a presidential directive.

only. They "are to be used for such purposes

Finally, recognizing that federal courts

as to correct the enrollment of bills and joint

have severely limited standing to challenge

resolutions, to create joint committees, to

presidential directives, the bill would grant

print documents, hearings, and reports, and

standing (1) to members of Congress if the

so forth."1 5 7

directive infringes on congressional power,

exceeds a congressional grant of power, or

Another concern with HCR 30 is that the

fails to state any authority; (2) to state and

purported limitation on expenditures is not

local officials if the directive infringes on

self-enforcing. The president can easily assert

their legitimate powers; and (3) to "any per-

that the "purpose" of any given executive order

son aggrieved in a liberty or property interest

is harmonious with prior appropriations.

adversely affected directly by the challenged

Finally, HCR 30 could be easily evaded.

Presidential order."

There are many types of presidential direc-

Solving the problem of presidential law-

tives; HCR 30 applies to only one: executive

making by statute will doubtless require

orders. Or, in the alternative, if HCR 30 is

overriding a presidential veto; but if that can

intended to affect all presidential directives,

be done, the result will be more sure and last-

the resolution fails to adequately define the

ing than any attempt by concurrent resolu-

object of its regulation. An effective remedy

tion. Such a statute would provide a powerful

must address the great creativity presidents

weapon for members of Congress and others

have demonstrated in imposing their policies

Powers were sepa-

to wield to defend their authority and their

on the country without benefit of constitu-

rated not to make

rights under the Constitution, even if the

tional or statutory authority.

courts must ultimately give force to the

HR 2655. Given those limitations, a more

government more

restraints the statute spells out. If our system

conventional legislative measure has just

efficient but to

of constitutional checks on power is to be

been introduced under the sponsorship of

restrain the nat-

preserved, Congress cannot, for the sake of

Representatives Paul and Metcalf, HR 2655,

expediency or efficiency, continue to ignore,

the Separation of Powers Restoration Act.

ural bent of men,

much less assist, presidential efforts to cir-

Following the approach taken by Congress in

even presidents,

cumvent those checks. Powers were separated

1976 in the National Emergencies Act, HR

not to make government more efficient but

2655 would eliminate the powers of the pres-

to act as tyrants.

to restrain the natural bent of men, even pres-

ident and his subordinates that are derived

idents, to act as tyrants.

from currently existing declarations by termi-

nating all such declarations. Further, under

HR 2655 the authority to declare national

Conclusion

emergencies would be vested exclusively in

Congress, making it impossible for one per-

son, by the mere stroke of a pen, to plunge

St. George Tucker, a prominent early

the nation into a state of emergency.

American jurist, understood well the point at

HR 2655 also requires that all presidential

issue in both the division and the separation

directives identify the specific constitutional

of powers: