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Executive Orders and the Decline of Law, Part 1

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During his presidency, Bill Clinton would conclude his trips abroad by telling his advisors that he was determined to use the powers of his office. Those “powers,” of course, included what are called “executive orders,” which are orders that come from the office of the president of the United States and have the force of law.

Lest anyone think that Congress is supposed to be the supreme lawmaking body of the central government of the United States, those days have long passed. A trend that began during the War Between the States and that accelerated during the Progressive Era and the Great Depression continues unabated. Laws and lawmakers are not what they used to be and certainly not what existed when the republic known as the United States of America was formed.

The typical schoolroom civics class is taught that the U.S. government has three branches — Congress, the president or chief executive, and the U.S. Supreme Court. Congress, it is said, makes the laws, presidents enforce them, and the Court interprets the laws. Each branch has its own delegated powers, which creates a balance in which no entity gains power at the expense of another.

While this makes for nice, tidy civics lessons, the truth is found elsewhere. The political reality of the 20th century, and now the 21st century, is that Congress has faded greatly in importance, with the executive branch gaining the most strength. (Despite what many conservatives claim, the federal courts, while powerful, also have ceded some of their powers to the executive, as shall be later explained.) Furthermore, the executive branch has two powerful entities within it — the presidency itself and the bureaucracies, which in many ways wield more power than the president. One may speak of an “imperial presidency” but a more accurate description is that of an “imperial bureaucracy.”

Bipartisan executive orders

The president of the United States wields the power to issue an “executive order,” which is an order supposedly based on current law. For example, near the end of his presidency, Bill Clinton issued an executive order greatly reducing the amount of arsenic (which often appears naturally in groundwater in Western communities) that was permitted in a municipal water supply. He said that this order was based on the Clean Water Act and other laws Congress previously had passed.

Likewise, upon taking office, George W. Bush issued an executive order changing how the federal government would fund research into embryonic stem cells.

Once issued, an executive order has the force of law and can serve as the basis for challenges in court. For example, environmental groups recently took the Bush administration to court, claiming it was not obeying Clinton’s executive orders to close huge portions of national forest lands to loggers, and the courts agreed. Likewise, Congress recently attempted to pass legislation expanding the federal role in embryonic stem cell research in order to counter Bush’s original executive order. As former Clinton aide Paul Begala once remarked, “Stroke of the pen, law of the land. Kinda cool.”

There is no specific provision in the Constitution for presidents to issue executive orders. However, as was recently made clear when Congress made a somewhat feeble attempt to rein in the proclivities of CIA field officers and U.S. military personnel to torture suspected terrorists held by U.S. forces, the Bush administration claims to reserve the right to interpret legislation as it sees fit. In other words, Bush (not to mention other presidents before him and almost certainly presidents to follow) declares that the executive branch owns the power supposedly held by the judicial branch to be the interpreter of legislation.

While executive orders themselves have the authority of law, supporters of this process hold that the power to issue such orders is not the same as the power to make new laws. As shall be demonstrated, that is a point of debate; surely, the ability of the executive branch to issue executive orders and to interpret law — and to influence the courts along the way — tells us that we are close to having an all-powerful and all-encompassing branch of government that ultimately is not accountable to anyone. That certainly was not the intent of those who framed the Constitution when they created the office of president of the United States.

Founding principles

The Constitution of the United States is a marvelous document that carefully attempts to lay a balance of power from the central government to the states and also within the central government itself. As Jacob Hornberger and others have noted in this publication, the original decentralist principle of spreading political power among the states has been steadily replaced by the centralization of power in Washington, D.C.

While we have dealt often with the fact that power has moved from the states to the central government, another power shift has gone on within the central government itself, as power has shifted from both the legislative branches and the courts to the executive branch. Furthermore, there is an element of the executive branch that is almost impervious to change, that being the established bureaucracies, where policies are made by employees who, in effect, are tenured and who have managed to accumulate powers for which there is no antidote.

The ultimate problem comes when the White House and the bureaucracies effectively join forces in order to impose various political orders that almost are impossible to overturn once they come into force. Thus, any real balance of power has long been abandoned, as the executive branch has accumulated powers that no other branch can — or is willing — to dislodge.

The Framers, who understood that concentration of power ultimately would mean that those people who held political authority could exercise their powers in tyrannical fashion, clearly did not wish for such a thing to happen. The genius of the Constitution was found not simply in the Bill of Rights (which was a recognition of the rights that people already held and which prohibited the central government from infringing those rights), but also in the way that the powers of the various political entities were separated. The idea was simple but profound: divide the powers that the state and federal governmental bodies are permitted to exercise.

Furthermore, not all aspects of this division of powers were spelled out, but the implications were there. For example, Abraham Lincoln’s contention notwithstanding, early Americans believed that secession was a political option for states or groups of states. Even before seven Southern coastal states cut their ties with the United States in late 1860 and early 1861, a number of other states, including those of New England, had earlier threatened to leave the Union over matters of war and taxation.

Part 1 | Part 2

This article originally appeared in the January 2007 edition of Freedom Daily.

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    William L. Anderson teaches economics at Frostburg State University in Maryland.