February 21, 2001
WASHINGTON, Feb. 21, 2001-President Bush already has reversed a number of President Clinton's executive orders, but many that are certainly improper and possibly illegal remain in place, says a new Heritage Foundation paper that provides a comprehensive overview of the use and abuse of such orders.
"President Clinton proudly publicized his use of executive decrees in circumstances where he failed to achieve a legislative objective," writes Todd Gaziano, director of Heritage's Center for Legal and Judicial Studies in a "memorandum" outlining the legal basis of executive orders and proposing ways to prevent their abuse. "And he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests."
The pattern emerged early in Clinton's presidency, Gaziano says. In 1993, President Clinton urged Congress to pass legislation that would prohibit employers from hiring permanent replacement workers for those on strike. When Congress refused, he issued an order forbidding all large federal contractors from permanently replacing lawfully striking workers. A court of appeals judge later overturned the order.
But others remain, such as the substantial land grabs Clinton initiated under the Antiquities Act of 1906, including the controversial designation of 1.7 million acres in Utah as a national monument. "There are separate laws to create parks," says Heritage environmental expert Angela Antonelli, who helped Gaziano prepare the memorandum. "The Antiquities Act was never intended to be used in this way, and the Utah 'monument' was created with virtually no input from the public or other interested parties."
In fact, a number of President Clinton's "monuments proclamations" face legal challenges on grounds ranging from insufficient public input to land use rights. Regardless of their legality, Gaziano says, President Bush should review them as well and modify or rescind them if appropriate.
He should also review President Clinton's executive orders calling for preferential treatment in federal contracting based on race or ethnicity, Gaziano says. President Bush should issue an order of his own implementing the Supreme Court's 1995 Adarand decision, which held that federal preference programs are presumed unconstitutional.
A number of other troublesome orders issued by Clinton deserve review, including: one that weakened the cost-benefit analysis that federal agencies are required to prepare for the Office of Management and Budget, one that compromised the guarantee against uncompensated takings of private property, and one that rescinded an order by President Reagan that government agencies must not carelessly preempt state authority and law.
Some orders may prove difficult to overturn, says Gaziano. And some actions, such as the pardon power, fall squarely within the president's discretion and cannot be overturned, regardless of the desire by some politicians to do so, he says.
The power to issue executive orders or proclamations dates from the dawn of the republic and must be based on either the Constitution or laws that delegate power to the president, Gaziano says. When the president exercises his constitutional responsibilities as commander in chief, chief law enforcement officer, head of the executive branch and head of state, he has especially broad powers and Congress has little ability to limit his actions.
But Congress can negate or modify the president's authority when it has granted the authority, and successful legal challenges could reverse directives the president claims flow from his constitutional authority, he adds.
"President Clinton had neither constitutional nor congressional authority for some of his most controversial uses of executive power," Gaziano says. "He simply abused his powers or assumed some he did not have to get his way when his administration had failed to convince Congress or courts of his point of view."
Some members of the 106th Congress introduced bills to curb what they perceived as abuses of executive power by President Clinton, but some would be unconstitutional as applied to certain presidential actions, Gaziano says.
"But that doesn't mean President Bush can't follow the examples set by his father and President Reagan and return the balance of power to its proper place and the presidential prerogative to its proper use," he says.