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executive orders, measured simply by the num-

Congress, the

Power thus divided, subdivided,

bers, has not been out of line with that of sever-

and distributed into so many sepa-

states, and the

al of his predecessors. See Table 1.

rate channels, can scarcely ever pro-

courts must per-

5. NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333,

duce the same violent and destruc-

345­46 (1938), quoted in U.S. Chamber of

form their duties

tive effects, as where it rushes down

Commerce v. Reich, 74 F.3d 1322, 1332 (D.C. Cir.

in one single torrent, overwhelming

1996).

under our system

and sweeping away whatever it

6. Michael H. LeRoy, "Presidential Regulation of

of divided and

encounters in its passage.158

Private Employment: Constitutionality of

separated powers.

Executive Order 12,954 Debarment of Contrac-

In our own century, the point was well

tors Who Hire Permanent Striker Replace-

ments," Boston College Law Review 37 (1996):

stated by Justice Louis Brandeis:

279­80.

The doctrine of the separation of

7. Federal Property and Administrative Services Act, 40

U.S.C. § 471 et seq.

powers was adopted by the Conven-

tion of 1787, not to promote efficien-

8. Reich.

cy, but to preclude the exercise of

9. Ibid. at 1332.

arbitrary power. The purpose was,

not to avoid friction, but, by means of

10. Ibid. at 1333.

the inevitable friction incident to the

11. Ibid. at 1337.

distribution of governmental powers

among three departments, to save the

12. House Committee on Resources, Behind Closed

people from autocracy."1 5 9

Doors: The Abuse of Trust and Discretion in the

Establishment of the Grand Staircase­Escalante

National Monument, Committee on Resources

Over the 20th century, presidential power

Report, 105th Cong., 1st sess., November 7, 1997,

has too often rushed down in a single torrent.

http://www.house.gov/resources/105cong/parks/

If we are to be saved from the autocracy that

staircase.htm. See also 142 Congressional Record,

September 18, 1996, S10827­31, September 20,

follows, Congress, the states, and the courts

1996, S11084­87, and September 30, 1996,

must perform their duties under our system

S11832­33.

of divided and separated powers. Of late we

have seen the beginnings of that. We need to  13. House Committee on Resources, Behind

Closed Doors. In March 1997 the committee

see more.

requested that the administration supply docu-

mentation about the identification and desig-

nation of this national monument. The request

Notes

was ignored, as was an October 1997 subpoena.

As a contempt resolution was being drafted, the

documents were finally supplied.

1. 144 Congressional Record, December 18, 1998,

H11817.

14. Kathleen McGinty, Draft letter to Secretary of

the Interior Bruce Babbitt, March 19, 1996. Ibid.

2. House Committee on Resources, Establishment

of the Grand Staircase­Escalante National Monument

15. Jim Rayburn and Jerry Spengler, "Counties' Suit

by President Clinton on September 18, 1996: Hearing

over Staircase Advances," Deseret News, August 18,

before the House Committee on Resources, 105th

1999, Deseret News Archives, http://www.desnews.

Cong., 1st sess., April 29, 1997, p. 12.

com/cgi-bin/libstory_ reg?dn99&9908180134.

3. Elizabeth Shogren, "Clinton to Bypass

16. See, for example, David Almasi, "American

Congress in Blitz of Executive Orders," Los Angeles

Heritage Rivers: A Trojan Horse," Washington

Times, July 4, 1998, p. A1.

Times, July 25, 1997.

4. William Jefferson Clinton, "Clinton Says He

17. House Committee on Resources, Oversight Hear-

Will Use `Authority of the Presidency' to Press

ing on the Clinton Administration's American Heritage

Agenda," White House bulletin, July 6, 1998.

Rivers Initiative ["AHRI Hearings"]: Hearing before the

Notwithstanding Clinton's aggressive rhetoric,

House Committee on Resources, 105th Cong., 1st sess.,

and the scope of many of his efforts, his use of

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