Government by Fiat: The Presidency Running Riot


When the Republicans took control of Congress in 1994, pundits were quick to forecast the effective end of Clinton’s political relevance. Yet the president has managed to dominate Washington by doing his best to ram initiative after initiative into law without ever bothering to try running the Republican congressional gauntlet. Consequently, the distinction between the legislative and executive branches of government is disappearing, with troubling implications for constitutional government.

Just consider a sampling of the blitzkrieg of executive orders and agency rulemakings the president has launched over the past six months:

· In the face of congressional reluctance to restrict the amount of money people can give to the political parties (so‐​called “soft money”), the White House petitioned the Federal Election Commission to, in the words of the New York Times, “put in place all the same restrictions on soft money envisioned by the McCain‐​Feingold bill.” Legislation to require television stations to provide politicians with free air time during elections is going nowhere on the Hill, so the Federal Communications Commission is preparing to do by executive order what cannot be done by democratic vote.

· Congress hasn’t shown much interest in stopping liquor companies from going back on the air to advertise their products, so the president has asked the FCC to act unilaterally to keep liquor ads off television.

· Meanwhile, over at the Treasury Department, officials are attempting simply to impose a 2.9 percent Medicare payroll tax on various limited partnerships such as architectural, consultant, engineering, actuarial, accounting and legal firms. That tax was rejected by Congress in 1994 when it was part of the president’s health care reform package.

· The Children’s Environmental Protection Act, a bill recentlyintroduced by Sen. Barbara Boxer, D.-Calif., to tighten federal environmental and health standards, has virtually no chance of passing a Senate hostile to additional federal regulation. So to commemorate Earth Day, President Clinton simply ordered federal agencies to change their regulatory standards to reflect the language of Boxer’s faltering legislation.

This executive‐​branch lawmaking is built on a foundation of presidential activism begun in Clinton’s first term. Most notable, perhaps, was the Food and Drug Administration’s unilateral promulgation (with heavy rhetorical support from the president) of restrictions on the sale and advertisement of tobacco products — restrictions that were rejected on over 20 separate occasions by Congresses past and present.

Congress, of course, has been complicit in all of this either by delegating sweeping lawmaking powers to the executive branch or by refusing to lift a finger — out of political fear, secret agreement or frustration over the legislative difficulty of overriding a presidential veto — when the president or his agencies overstep their authority. Administration supporters defend this presidential lawmaking because Congress refuses to act. But Congress has a right to refuse to act. Under the Constitution, after all, Congress makes the law, not the president.

We tend to forget that the legislative process was meant to be cumbersome, with numerous checks and balances to ensure that law‐​making is something more than a casual affair. But when the president makes law either on behalf of or in lieu of Congress, those legislative hurdles so carefully constructed by the authors of the Constitution are circumvented and the restraints on promiscuous lawmaking are demolished. Government, as a result, runs riot.

Political pundits accept this development without much reflection; our Founding Fathers would not. To them, the separation of powers was a tremendously important bulwark against government tyranny. As John Adams warned, “A single assembly, possessed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favor.” Adams clearly anticipated something like the Clinton presidency. What he did not anticipate was the perverse reluctance of Congress to defend its prerogatives.

The advent of an imperial presidency, charged with the full power both to make and to enforce law, is perhaps the most important development of the Clinton presidency, and it may well be the most important legacy Clinton leaves the nation. It is not a welcome one.

Jerry Taylor

Jerry Taylor is director of natural resource studies at the Cato Institute and is senior editor of Regulation.