Back in July Sen. Barack Obama promised to repeal any executive orders that “trample on liberty”:
Barack Obama told House Democrats on Tuesday that as president he would order his attorney general to scour White House executive orders and expunge any that “trample on liberty,” several lawmakers said.…
The Illinois senator “talked about how his attorney general is to review every executive order and immediately eliminate those that trample on liberty,” said Rep. Jerrold Nadler, D-N.Y.
Good stuff! Perhaps that could include reviewing whether the federal government had any authority to partially nationalize banks, a sweeping intervention not authorized by Congress in the $700 billion bailout bill. Under what authority did the president and the secretary of the treasury start purchasing equity in major corporations?
Cato’s legal scholars would be happy to work with the new administration to review and rescind executive orders, signing statements, memos, and other documents that grant excessive power to the executive branch or otherwise “trample on liberty.” Some of the Bush administration’s excesses in this regard were reviewed by Gene Healy and Tim Lynch in Power Surge: The Constitutional Record of George W. Bush.
But I hope the new president realizes that Bush isn’t the first president to issue executive orders that “trample on liberty.” It was President Bill Clinton’s aide, Paul Begala, who drooled at the notion of using executive orders to do what Congress wouldn’t go along with: “Stroke of the pen. Law of the land. Kinda cool.” For a look at some pre‐Bush executive orders that might warrant elimination, Obama’s attorney general might consult “Executive Orders and National Emergencies: How Presidents Have Come to ‘Run the Country’ by Usurping Legislative Power,” published by Cato in 1999. There he can find information about Clinton orders that nationalized land, sought to reverse Supreme Court rulings, rewrote the rules of federalism, and waged war in Yugoslavia.
As Obama himself has said in recent days, channeling Frederick Douglass, “Power concedes nothing without a fight.” Many people are skeptical that a new president will make good on his pledge to constrain executive power. But if he’s committed to the rule of law and the separation of powers, we’re ready to help.