The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?

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Mr. Chairman and members of the Subcommittee, I want to thankyou for this opportunity to testify before you regarding the impactof Executive Orders on the legislative process and the very realproblem of presidential lawmaking by fiat.

From the standpoint of my participation, the timing of yourhearing is providential, in that many months ago I was asked toundertake a study of this very subject by Roger Pilon, director ofthe Cato Institute's Center for Constitutional Studies. The paperwhich I co-authored with Alan Woll, an associate in our law firm,was finalized just last week. It is now back from the printer andtoday receiving its first public release. The Cato paper has atitle somewhat more flamboyant than that of this hearing -"Executive Orders and National Emergencies: How Presidents HaveCome to 'Run the Country' by Usurping Legislative Power." I greatlyappreciate the opportunity to testify about the matters discussedat length there, and I understand that copies of this paper havebeen made available to the Subcommittee, and otherwise areavailable on Cato's website at www.cato.org.

On January 30, 1788, in Federalist 47, James Madison observedthat Montesquieu's warning - "There can be no liberty where thelegislative and executive powers are united in the same person, orbody of magistrates" - did not apply to our constitution because"[t]he magistrate in whom the whole executive power resides cannotof himself make a law, though he can put a negative on everylaw...." Despite Madison's predictions, our government quicklystrayed from its principles and our chief magistrate has, in fact,again and again, legislated by fiat. In fact, in our research onpresidential directives (such as executive orders andproclamations), I learned that from its beginning, Americanpolitical history has been marked by efforts of many presidents todefine the extent of their power and authority in ways violative ofthe U.S. Constitution.

As early as 1792, according to Thomas Jefferson: "I said to[President Washington] that if the equilibrium of the three greatbodies, Legislative, Executive and Judiciary, could be preserved,if the Legislature could be kept independent, I should never fearthe result of such a government; but that I could not but be uneasywhen I saw that the Executive had swallowed up the Legislativebranch."

Congress and the courts have taken action from time to time toexamine and, at times, challenge presidential exercises ofauthority perceived to be unconstitutional: from PresidentWashington's declaration of neutrality to the Louisiana Purchase,Jefferson's embargo, Jackson's removal of federal funds from theSecond Bank of the United States, Polk's sending of Gen. ZacharyTaylor's troops into contested territory before the declaration ofwar with Mexico, Lincoln's conduct of the Civil War without callingCongress into session, Lincoln's amnesty and reconstruction plans,the Tenure of Office Act and Andrew Johnson's impeachment ... andthe list goes on and on.

But the Constitution anticipated that the Congress and the Courtwould jealously guard their prerogatives, and, setting poweragainst power, unconstitutional excursions by the executive wouldbe met with fierce resistance. Sadly, neither the Congress nor theCourt have acted boldly in defense of the Constitution,particularly in the recent past.

My first personal experience with an unconstitutional exerciseby the executive of a legislative power arose in the mid-1980's,shortly after I completed serving three part-time positions in theReagan Administration, when I filed suit against the ReaganAdministration for usurping the Senate's power to ratify treatiesbefore they became effective. The case was The ConservativeCaucus v. Reagan, litigated in the U.S. DistrictCourt for the District of Columbia. Our client had sought toprevent Secretary of Defense Casper Weinberger from ordering thePentagon to unilaterally implement the SALT II treaty - which theSenate had thus far refused to ratify. President Reagan hadannounced his determination to implement the treaty,notwithstanding the Senate's constitutional role. Unfortunately, wewere unable to obtain a review on the merits, as the suit wasdismissed, as so many similar suits have been, on the theory thatour client lacked standing to bring suit.

The simple truth is that the courts cannot be counted upon tocheck Presidential power - our research has been able to identifyonly two cases in the history of the country in which the courtshave struck down completely an executive order. The first of thesewas in 1952, when the U.S. Supreme Court negated the seizure of thesteel mills ordered by President Truman, observing that:

In the framework of our Constitution, the President'spower to see that the laws are faithfully executed refutes the ideathat he is to be a lawmaker. The Constitution limits his functionsin the lawmaking process to the recommending of laws he thinks wiseand the vetoing of laws he thinks bad. And the Constitution isneither silent nor equivocal about who shall make laws which thePresident is to execute. The first section of the first articlesays that "All legislative Powers herein granted shall be vested ina Congress of the United States ...." After granting many powers tothe Congress, Article I goes on to provide that Congress may "makeall Laws which shall be necessary and proper for carrying intoExecution the foregoing Powers, and all other Powers vested by thisConstitution in the Government of the United States, or in anyDepartment or Officer thereof." [Youngstown Sheet &Tube v. Sawyer.]

Notwithstanding this U.S. Supreme Court decision, presidents ofboth parties continued to implement controversial initiatives usingpresidential directives - often in the face of Congressionalopposition. The other time the court struck down completely anexecutive order was President Clinton's executive order relating tothe hiring of permanent striker replacements by federalcontractors, and the decision of the U.S. Court of Appeals for theD.C. Circuit was not appealed to the U.S. Supreme Court.Chamber of Commerce of the U.S. v. Reich.

Congress has done little more than the courts in restrictingpresidential lawmaking. Nevertheless, Congress did make one boldstep to check executive powers in the related arenas of executiveorders, states of emergency and emergency powers. The Congressionalconcern led to the creation of a Special Senate Committee on theTermination of the National Emergency, co-chaired by Sens. FrankChurch (D-ID) and Charles Mathias, Jr. (R-MD), more than 25 yearsago. The diligent efforts of this committee resulted in thesuccessful codification of efforts to restore the Constitutionalseparation of powers, through a check on the presidential exerciseof "emergency powers," by means of the National Emergencies Act.Other contemporaneous statutory efforts to check presidents'unconstitutional exercise of power include the War PowersResolution, the International Emergency Economic Powers Act, andthe amendment of the Trading with the Enemy Act of 1917.

Unfortunately, these 1970s efforts to impose restraints onunconstitutional exercises of power by presidents have beenineffective - witness the inability of Representatives and Senatorsto obtain judicial review of President Clinton's war upon theFederal Republic of Yugoslavia pursuant to the terms of the WarPowers Resolution. Likewise, notwithstanding the NationalEmergencies Act and the International Emergency Economic PowersAct, the number of presidentially-declared national emergencies hasexploded. Since then, although individual members of Congress havespoken out, the Congress has failed to act.

I commend the efforts of this Subcommittee to take a new look atthe issue of executive lawmaking, urge you to expand the scope ofyour investigation to focus on emergency powers, and in both casesto begin your investigation where Senators Church and Mathias leftoff, and to act boldly to curtail Presidential lawmaking.

Two proposals are currently before the House which would addressthis concern. First there is Rep. Metcalf's H. Con. Res. 30, whichwould express:

the sense of the Congress that any Executive orderissued by the President before, on, or after the date of theapproval of this resolution that infringes on the powers and dutiesof the Congress under article I, section 8 of the Constitution, orthat would require the expenditure of Federal funds notspecifically appropriated for the purpose of the Executive order,is advisory only and has no force or effect unless enacted aslaw.

This proposal has been useful in focusing attention on theproblem, but the solution it proposes would be cosmetic only.First, as a concurrent resolution, even upon passage, it will notenjoy the force of law. If a resolution passed into law by bothHouses of Congress over a presidential veto, such as the War PowersResolution, cannot be enforced in the courts, then passage of aresolution with no legal effect is essentially a symbolic gesture.Second, it is unclear what constitutes an infringement of thepowers and duties of Congress, or a specific appropriation for thepurpose of the executive order. And third, even if it were aneffective limitation on executive orders, it could be evaded easilyby entitling the directive as a proclamation (or some otherdirective). Rather than truly solve the problem, I fear passage ofthis proposal would be counterproductive in that it would giveMembers of Congress and the public the false impression that theproblem had been solved.

By contrast, H.R. 2655, Rep. Paul's and Rep. Metcalf's approachholds great hope to solve this recurrent problem. This bill, which,as a proposed statute, would become legally binding, would:

  • establish the first statutory definition of "presidentialdirective" (it uses the term "presidential order");
  • expand access to the courts to challenge the legality ofpresidential orders;
  • define the constitutional powers which the president mayexercise by presidential order; would require any statutoryauthority for the presidential order to be express for the order tobe valid;
  • terminate the powers and authorities possessed by thepresident, executive agencies, or federal officers and employees,that are derived from the currently existing states of nationalemergency;
  • vest the authority to declare future national emergencies inCongress alone; and
  • repeal the ineffective War Powers Resolution.

Lastly, I would say that concerns about presidential lawmakingmust not be written off as attacks on the policies underlying theexecutive orders. This is not partisan politics masquerading asseparation of powers issues. It is true that it finds fault withPresident Clinton, but it is also finds fault with PresidentsReagan, Bush, and others. As a review of the above-mentioned CRSreport will demonstrate, presidential directives were used tolegislate to accomplish political objectives which could be viewedas "liberal" and political objectives which could be viewed as"conservative." No constitutional power should be misused,irrespective of the benefit perceived for a political objective. Ifconstitutional processes are violated, in the end, we all lose.

In his concurring opinion in Youngstown Sheet and Tube,Justice Frankfurter observed:

The tragedy of such stalemates might be avoided byallowing the President the use of some legislative authority.The Framers with memories of the tyrannies produced by ablending of executive and legislative power rejected that politicalarrangement. Some future generation may, however, deem itso urgent that the President have legislative authority that theConstitution will be amended. We could not sanction the seizuresand condemnations of the steel plants in this case without readingArticle II as giving the President not only the power to executethe laws but to make some. Such a step would most assuredlyalter the pattern of the Constitution. [Emphasisadded.]

The problem before you is extremely serious, but solvable. TheU.S. Constitution charges you with the duty to protect it fromassault, and the American people look to you to do just that. Thankyou.

William J. Olson

Subcommittee on Legislative and Budget Process
Committee on Rules
United States House of Representatives