March 22, 2001

March 22, 2001 | Testimony on

Executive Orders and Presidential Directives

Good morning, Mr. Chairman and Members of the Subcommittee. Thank you for the opportunity to testify today on executive orders and presidential directives.

For the record, I am a Senior Fellow in Legal Studies and Director of the Center for Legal and Judicial Studies at The Heritage Foundation, an independent research and educational organization. I am a graduate of the University of Chicago Law School and a former law clerk to the U.S. Fifth Circuit Court of Appeals. I also served in the U.S. Department of Justice, Office of Legal Counsel, during different periods in the Reagan, Bush, and Clinton Administrations, where I provided constitutional advice to the White House and four Attorneys General. Several years ago, I also was privileged to serve as chief counsel for another Subcommittee of this House.

In recent years, there has been renewed interest in the proper use and possible abuse of executive orders and other presidential directives. For example, many citizens and lawmakers expressed concern over the content and scope of several of President Bill Clinton's executive orders and land proclamations. And, in an exceedingly rare act, the courts reacted by striking down one of President Clinton's executive orders. Litigation to contest the validity of other directives is ongoing. Despite the increased public attention focused on executive orders and similar directives, public understanding regarding the legal foundation and proper uses of such presidential decrees is limited. Thus, the increased public attention generally has been accompanied by confusion and occasional misunderstandings regarding the legality and appropriateness of various presidential actions.

Attached as an appendix to my testimony is a Heritage Foundation Legal Memorandum we issued last month on "The Use and Abuse of Executive Orders and Other Presidential Directives," which is also available at www.heritage.org. The twenty-four page memorandum provides a more detailed analysis of the President's use of executive directives, including a discussion of the historical practice, sources of presidential authority, the legal framework of analysis, and some brief thoughts on reform proposals.

In my oral testimony, I would like to focus on two somewhat distinct areas. The first is the general constitutional framework for executive directives. The second is what Congress can do to reassert its prerogatives and make sure that the President does not usurp them.

THE SEPARATION OF POWERS

One of the great and enduring gifts from the Founders' generation was the inclusion of separation of power principles in the United States Constitution. The Framers had studied the writings of Montesquieu and other political philosophers as well as the workings of the separate branches of their own state governments. Their conscious design to enforce this separation of functions was carefully explained in The Federalist Papers and during the debates over ratification of the United States Constitution. The separation of powers is now enshrined in both the structure of the Constitution and various explicit provisions of Articles I, II, and III.

Yet, in the previous Administration, a baser motive seemed to prevail in the use of executive power. Former President Bill Clinton proudly publicized his use of executive decrees in situations where he failed to achieve a legislative objective. Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests. History will show that President Clinton abused his authority in a variety of ways and that his disrespect for the rule of law was unprecedented. Given this pattern, no one should be surprised that President Clinton sometimes abused his executive order authority as well.

A President who abuses his executive order authority undermines the constitutional separation of powers and may even violate it. But the constitutional separation of powers supports both sides of the argument over a President's proper authority. It reinforces a President's right or duty to issue a decree, order, or proclamation to carry out a particular power that truly is committed to his discretion by the Constitution or by a lawful statute passed by Congress. On the other hand, the constitutional separation of powers cuts the other way if the President attempts to issue an order regarding a matter that is expressly committed to another branch of government; it might even render the presidential action void. Finally, separation of powers principles may be unclear or ambiguous when the power is shared by two branches of government.

Thus, no simple recitation of governing law or prudential guidelines is possible. However, history and practice are useful tools in understanding the President's authority, and a legal framework of analysis exists to help determine issues of validity. In addition to the information in our memorandum, I would be happy to answer the Members' questions on these matters.

RECOMMENDATIONS FOR CONGRESS

In the attached Heritage Legal Memorandum, we provided our thoughts on some priorities for the current President to correct the errors and abuses of the previous President in five issue areas: foreign and defense policy, environmental policy, regulatory review, labor policy, and civil rights. For example, President Clinton's land designations under the Antiquities Act were improper and many, if not most, were probably illegal. We opined that the President probably could rescind those that were improper. In addition, he can change the boundaries of the monuments, significantly reduce the acreage involved, and alter the restrictions for portions of the monument lands.

Whether some of these lands should be protected or not, it would be best in my view if President Bush rescinded the monument designations with a message to Congress that he would be happy to sign legislation that Congress sent to him regarding such lands. That said, it is probably not the best use of the Subcommittee's time to hear me talk about what I think a different branch of government should do, whether it is the executive branch or the courts. Regardless of what President Bush does to restore faith in the Office of the President - and I think President Bush has taken some very positive steps in the area of executive orders - Congress should take the following steps to prevent future abuses and protect its prerogatives:

First, Congress should modify or repeal the statutory delegations of power that Congress has granted to the President which have been abused or may be abused in the future. Let me stress that I have no reason to suspect that President Bush would abuse his authority. He has shown every indication that his example will be a good one. Yet, this very fact suggests there is a satisfactory basis for Congress to work with the executive branch to review some of these grants of authority and reach an agreement on possible legislative changes.

For example, Congress did not significantly amend the Antiquities Act of 1906 when it revised many land management laws during the 1970s. Presidents Ford, Reagan, and George H.W. Bush did not make any monument designations under the Antiquities Act, but Presidents Carter and Clinton abused their authority to remove millions of acres of land from public use. Thus, I would recommend that Congress revise the type of land that can be designated as a monument under the Antiquities Act. More importantly, however, I think Congress should tighten up the language that requires monuments to be "the smallest area compatible with the proper care and management of the objects to be protected." Because some Presidents have shown no intention of being limited by such descriptive words, I also recommend that Congress limit the amount of land that can be designated under the Antiquities Act without additional statutory authority to something like 5,000 acres.

The President could seek a waiver from such an acreage limitation if it were necessary, and there are other laws that can be used to designate national parks, wild and scenic waters, etc. But it is unclear to me why Congress would want the President to have unilateral power to lock away tens of millions of acres of land as a national monument but it would not grant the President equivalent authority to make the same land a national reserve or park. Consistency may be the hobgoblin of little minds, but it should not be dismissed out of hand when someone points out that it is lacking.

The International Emergency Economic Powers Act (IEEPA) was intended to limit the President's emergency powers during peace time. The era since IEEPA's passage has witnessed an improvement upon earlier abuses, but IEEPA has still spawned "multiple concurrent states of national emergency," to quote one scholar. Although some of the authority granted to the President may be necessary in a true national emergency, I believe Congress should reassess the standards and threshold for a declaration of national emergency in that Act.

A second step Congress can take is further consideration of some of the process reforms contained in such bills as H.R. 2655, the Separation of Powers Restoration Act, which was introduced in the last Congress by Representatives Ron Paul (R-TX) and Jack Metcalf (R-WA). H.R. 2655 would have required that all presidential directives specify the constitutional and statutory basis for any action incorporated in the directive or be void as to parties outside the executive branch. With few exceptions, most recent Presidents before Clinton did cite the font of their authority in their executive directives. President Clinton cited some authority in a majority of his directives, but others were vague or had no citation of authority at all. A faithful executive should not have a problem citing the authority for his actions, and this requirement would help citizens, lawyers, and the courts evaluate new directives. Although there may be some constitutional problems with the application of this requirement in some cases, it is worth further consideration and possible refinement.

H.R. 2655 also would have attempted to expand the number of parties with standing to challenge an arguably unlawful directive, including Members of Congress, state and local officials, and any aggrieved person. Because part of the standing doctrine is constitutional, a statute could not automatically confer standing on someone without a "particularized" injury in fact. Nevertheless, the provision would potentially expand the range and number of persons who could bring suit to challenge a questionable directive by removing any statutory impediments to suit.

Finally, I think Congress should encourage the President to institute internal reforms, including those that are designed to address past congressional concerns. Such institutional reforms tend to have a more lasting effect than many statutory reforms, perhaps in part because executive branch officials are directly answerable to the President and perhaps also because they are instituted with more flexibility or sensitivity to the needs of future Presidents. Thus, it makes sense for a new President to follow tradition but also to consider, in time, proposals to improve the process by which executive directives are issued.

Todd F. Gaziano is Senior Fellow in Legal Studies and Director, Center for Legal and Judicial Studies at The Heritage Foundation.

About the Author

Todd F. Gaziano Director, Center for Legal & Judicial Studies
Edwin Meese III Center for Legal and Judicial Studies