From the standpoint of my participation, the timing of your hearing is providential, in that many months ago I was asked to undertake a study of this very subject by Roger Pilon, director of the Cato Institute’s Center for Constitutional Studies. The paper which I co‐authored with Alan Woll, an associate in our law firm, was finalized just last week. It is now back from the printer and today receiving its first public release. The Cato paper has a title somewhat more flamboyant than that of this hearing — “Executive Orders and National Emergencies: How Presidents Have Come to ‘Run the Country’ by Usurping Legislative Power.” I greatly appreciate the opportunity to testify about the matters discussed at length there, and I understand that copies of this paper have been made available to the Subcommittee, and otherwise are available on Cato’s website at www.cato.org.
On January 30, 1788, in Federalist 47, James Madison observed that Montesquieu’s warning — “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates” — did not apply to our constitution because “[t]he magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law.…” Despite Madison’s predictions, our government quickly strayed from its principles and our chief magistrate has, in fact, again and again, legislated by fiat. In fact, in our research on presidential directives (such as executive orders and proclamations), I learned that from its beginning, American political history has been marked by efforts of many presidents to define the extent of their power and authority in ways violative of the U.S. Constitution.
As early as 1792, according to Thomas Jefferson: “I said to [President Washington] that if the equilibrium of the three great bodies, Legislative, Executive and Judiciary, could be preserved, if the Legislature could be kept independent, I should never fear the result of such a government; but that I could not but be uneasy when I saw that the Executive had swallowed up the Legislative branch.”
Congress and the courts have taken action from time to time to examine and, at times, challenge presidential exercises of authority perceived to be unconstitutional: from President Washington’s declaration of neutrality to the Louisiana Purchase, Jefferson’s embargo, Jackson’s removal of federal funds from the Second Bank of the United States, Polk’s sending of Gen. Zachary Taylor’s troops into contested territory before the declaration of war with Mexico, Lincoln’s conduct of the Civil War without calling Congress into session, Lincoln’s amnesty and reconstruction plans, the Tenure of Office Act and Andrew Johnson’s impeachment … and the list goes on and on.
But the Constitution anticipated that the Congress and the Court would jealously guard their prerogatives, and, setting power against power, unconstitutional excursions by the executive would be met with fierce resistance. Sadly, neither the Congress nor the Court have acted boldly in defense of the Constitution, particularly in the recent past.
My first personal experience with an unconstitutional exercise by the executive of a legislative power arose in the mid-1980’s, shortly after I completed serving three part‐time positions in the Reagan Administration, when I filed suit against the Reagan Administration for usurping the Senate’s power to ratify treaties before they became effective. The case was The Conservative Caucus v. Reagan, litigated in the U.S. District Court for the District of Columbia. Our client had sought to prevent Secretary of Defense Casper Weinberger from ordering the Pentagon to unilaterally implement the SALT II treaty — which the Senate had thus far refused to ratify. President Reagan had announced his determination to implement the treaty, notwithstanding the Senate’s constitutional role. Unfortunately, we were unable to obtain a review on the merits, as the suit was dismissed, as so many similar suits have been, on the theory that our client lacked standing to bring suit.
The simple truth is that the courts cannot be counted upon to check Presidential power — our research has been able to identify only two cases in the history of the country in which the courts have struck down completely an executive order. The first of these was in 1952, when the U.S. Supreme Court negated the seizure of the steel mills ordered by President Truman, observing that: