In a candid summary of his view of executive powers, Iraqi dictator Saddam Hussein once declared, “Law consists of two lines above my signature.” White House aide Paul Begala embraced a similar view of presidential power in his description of Bill Clinton’s intention to rule through executive orders: “Stroke of the pen. Law of the land. Kinda cool.” Begala’s flippant soundbite announced the advent of an era, in which a President mired in corruption and politically stymied by Congress rules by decree.

“Frustrated by a GOP-controlled Congress that lately has rebuffed him on almost every front, President Clinton plans a blitz of executive orders during the next few weeks, part of a White House strategy to make progress on Clinton’s domestic agenda with or without congressional help,” reported the Los Angeles Times on July 4th. “Fresh from what aides view as a triumphant trip to China, Clinton is reportedly eager to exercise his executive powers to the hilt.”

“Progress” by Decree

With an air of regal condescension, presidential press minion Rahm Emmanuel told CNN that Mr. Clinton is “ready to work with Congress if they work with him. But if they choose partisanship, he will choose progress” — and impose “progress” through dictatorial fiat, if necessary.

Mr. Clinton’s Beijing summit with Red Chinese tyrant Jiang Zemin reinvigorated his appetite for autocracy — a development noted by Mr. Clinton’s communist campaign donors. After the Senate issued resolutions reaffirming American support for the free Chinese on Taiwan, Beijing’s Foreign Ministry demanded that the President issue executive decrees to punish Congress. Foreign Ministry spokesman Tang Guoqiang complained on July 14th that members of Congress are “tabling anti-China resolutions one after the other, trying to obstruct the improvement and development of China-U.S. relations.... We hope the U.S. government will adopt effective measures to eliminate interference and prevent Congress from passing anti-China resolutions so that Sino-U.S. relations will not be harmed.” According to Tang, who represents one of history’s foulest dictatorships, the U.S. Constitution empowers Bill Clinton “to adopt effective measures to prevent the Congress from passing such resolutions.”

Jiang Zemin, the public face of the Chinese Communist Party’s ruling oligarchy, need not consult with or defer to the Party’s “National People’s Congress” — a body which exists to rubber-stamp the ruling elite’s initiatives. Bill Clinton’s view of the role of the U.S. Congress is remarkably similar. “Congress has a choice to make in writing this chapter of our history,” declared the President on July 6th. “It can choose partisanship or it can choose progress. Congress must decide.” However, he insisted, “I have a continuing obligation to act to use the authority of the Presidency … to advance America’s interest at home and abroad.”

Although the Administration achieved a new standard in audacity by announcing the executive order strategy, the announcement did not herald a substantive change in presidential policy. The U.S. Constitution grants the President no law-making authority. Article I, Section 1, Clause 1 of the Constitution specifies, “All legislative [law-making] powers) herein granted shall be vested in a Congress....” Yet, throughout his tenure in office, Mr. Clinton has unmistakably preferred to rule by decree, rather than carry out his constitutional duty to execute laws properly enacted by Congress. The result has been nothing less than a protracted assault on the Constitution’s separation of powers.

Executive Robbery

The President’s autocratic reflex was memorably displayed during his December 1994 raid on the Treasury Department’s Currency Stabilization Fund (CSF). Although the Republican leadership in both houses of Congress had approved a $40 billion bailout plan for Mexico, the November 1994 elections had produced a majority coalition in the House opposed to the bailout. Accordingly, Mr. Clinton pilfered $20 billion from the CSF in order to guarantee medium-term loans to the Mexican government. The CSF funds had been appropriated by Congress to stabilize the U.S. dollar, rather than the over-valued currencies of kleptocratic regimes, and no legal grounds exist for employing those funds in any other way. Mr. Clinton’s actions were essentially a bank robbery cloaked in the language of executive power.

Nor is Mr. Clinton’s official lawlessness confined to ignoring existing statutes; on several occasions he has issued decrees intended to enact “laws” which Congress has not yet passed. For instance, Executive Order 12954, issued on March 8, 1995, prohibited all federal contractors from hiring permanent replacements for striking workers. This was a gesture intended to curry favor with organized labor, which is a key Democratic Party constituency. Legislation intended to achieve similar objectives had been considered — and rejected — by Congress in 1994. With prospects dim for enactment of a replacement-worker ban through legislative channels, the President simply circumvented Congress by issuing the executive order. Significantly, the striker replacement order was later overturned by a federal appellate court precisely because it usurped Congress’ legislative authority.

“The President has managed to dominate Washington by doing his best to ram initiative after initiative into law without ever bothering to try running the Republican congressional gauntlet,” observed policy analyst Jerry Taylor, a senior editor for Regulation journal. In the first six months of 1997 alone, reported Taylor, the Administration undertook a “blitzkrieg of executive orders and agency rulemakings.”

On Earth Day 1997, for example, the President issued an order enacting elements of the “Children’s Environmental Protection Act,” a measure sponsored by Senator Barbara Boxer (D-CA). With the Boxer bill hopelessly stalled in the Senate, “President Clinton simply ordered federal agencies to change their regulatory standards to reflect the language of Boxer’s faltering legislation,” noted Taylor.

During the same period, the President asked the Federal Election Commission to “put in place all the same restrictions on soft money [campaign contributions] envisioned by the McCain-Feingold bill,” in the words of the New York Times. When Congress refused to enact legislation to prevent liquor companies from advertising on television, Mr. Clinton ordered the Federal Communications Commission to take unilateral action to ban the ads.

Perhaps most startling is the fact that the Treasury Department, acting with Mr. Clinton’s approval, attempted to impose a 2.9 percent Medicare payroll tax on certain limited partnerships, such as architectural, consultant, engineering, actuarial, accounting, and legal firms. “That tax was rejected by Congress in 1994 when it was part of the President’s health care reform package,” observed Taylor. Thus the Administration was seeking to impose new taxes through executive subterfuge — as if in specific homage to the monarchical abuses that inspired America’s War for Independence.

Constitutional Sabotage

While Mr. Clinton has openly usurped congressional authority in the name of “progress,” the Administration’s brazenness in announcing what one presidential spokesman called the “executive order strategy” was remarkable — as was the fact that the envisioned usurpations were inspired by crude political calculations. Most of the “progress” sought by Mr. Clinton deals with what the Associated Press called “soccer mom issues of education, health care, and juvenile crime.” The opening sortie of the most recent campaign was an executive order requiring that unpasteurized fruit and vegetable juice carry warning labels. Executive decrees dealing with gun safety and health care insurance quickly followed. The strategy was to generate headlines and television newscasts with images of the President as a “doer.” However, every executive order expanded the extra-constitutional powers of the Presidency and undermined Congress’ exclusive power to legislate. Furthermore, behind the facade of photo-op presidential activism, Mr. Clinton was engaged in an unprecedented act of constitutional sabotage.

On May 14th, while attending the G-8 economic summit in Birmingham, England, President Clinton issued Executive Order 13083, entitled “Federalism.” As previously reported in these pages (see “Clinton’s Peculiar Federalism” in our June 22nd issue), EO13083 amounts to a complete inversion of the Tenth Amendment.

EO13083 revoked two previous executive orders — EO12612 (which was also entitled “Federalism”), issued by President Ronald Reagan in October 1987, and EO12875, “Enhancing the Intergovernmental Partnership,” which was issued by Bill Clinton in October 1993. President Reagan’s order acknowledged in Section 2 (a) that “Federalism is rooted in the knowledge that our political liberties are best assured by limiting the size and scope of our federal government.” Subsection (b) recognized that the “people of the States created the national government when they delegated to it those enumerated powers relating to matters beyond the competence of the individual States. All other sovereign powers, save those expressly prohibited the States by the Constitution, are reserved to the States or to the People.”

Section 2 also took notice of the fact that “Acts of the national government — whether legislative, executive, or judicial in nature — that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers.” It further insisted that “in the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual States.”

Section 3 of the Reagan executive order established several criteria for federal policymaking, the first of which was that “there should be strict adherence to constitutional principles.” Section 3 also specified that “constitutional authority for Federal action is clear and certain only when authority for the action may be found in a specific provision of the Constitution, there is no provision in the Constitution prohibiting Federal action, and the action does not encroach upon authority reserved to the States.” Having established the constitutional context in which federal officials may exercise limited powers, Section 3 instructed said officials that “when national standards are required, consult with appropriate officials and organizations representing the States in developing those standards.”

Sinister Agenda

In light of intervening history, Reagan’s directive can be considered little more than a politically cost-free sop to constitutionalists; it did nothing of a substantive nature to diminish the size, cost, or oppressiveness of the central government. However, in a fit of perverse ingenuity, the Clinton Administration was able to rework the language of the Reagan executive order into a framework for a breathtaking executive power grab.

According to the July 15th Washington Post, the “staff work” on Mr. Clinton’s Executive Order 13083 was done by Sally Katzen, deputy director of the White House National Economic Council, with help from lawyers in the White House counsel’s office. EO13083 was described by presidential counselor Charles Ruff as an attempt to consolidate Executive Orders 12612 and 12875 and to bring them “up to date.” While Section 2 of EO13083 revisits much of the language from Reagan’s previous order, there are some critical omissions. For example, the Clinton order does away with the recognition that “our political liberties are best assured by limiting the size and scope of our federal government,” and that the “people of the States created the national government” and delegated enumerated powers to it. It also jettisons the portion of Section 2 mandating that “the presumption of sovereignty should rest with the individual States” where constitutional guidelines are unclear. Given that the rest of Section 2 closely resembles the language of Reagan’s previous order, these changes are critical — and must be regarded as sinister, particularly in light of the radically altered “Federalism Policymaking Criteria” established in Section 3 of EO13083.

As with the Reagan directive, Section 3 begins by recognizing the need for “strict adherence to constitutional principles” and the need to defer to the discretion of state and local governments when possible. The real damage comes in the section’s assertion that “matters of national or multi-state scope that justify Federal action may arise in a variety of circumstances....” Among those circumstances are: “a need for uniform national standards”; when “States have not adequately protected individual rights and liberties”; when “States would be reluctant to impose necessary regulations because of fears that regulated business activity will relocate to other States”; and when the “matter relates to Federally owned or managed property or natural resources, trust obligations, or international obligations.”

Furthermore, the Clinton order removes the Reagan order’s provision instructing executive branch officials to “consult with appropriate officials and organizations representing the States” in formulating national standards and policies “that have Federalism implications.”

In essence, EO13083 claims the authority to dispense with constitutional limitations, the separation of powers, and the reserved powers of individual states when the President or his subordinates in the executive branch believe such action is “necessary.” For the Clintonites, “federalism” is defined by consolidation of arbitrary power in the central government, rather than diffusion of power among various complementary governments and limitation of all government power through a written constitution.

Challenges From Congress

Shortly after it was signed by Mr. Clinton, EO13083 came to the attention of Congressman David McIntosh (R-IN), chairman of the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs at the House Committee on Government Reform and Oversight. McIntosh expressed his objections in a June 8th letter to the President, noting that by issuing the order, the President had “swept away [previous] limitations on the power of the federal government.” The congressman pointed out that the Clinton order “completely reverses the thrust of section 3” of the Reagan order, by requiring “no restraint or deference to the states; it only requires some justification of the need for a national standard.”

“Your executive order could wreak havoc on the balance of power envisioned by the Constitution between the states and the federal government,” remonstrated McIntosh. “What current circumstance justifies your abandoning the states and exposing them to the exercise of power of the federal government without consideration of the states’ unique role and responsibility in the governance of the people?”

In a July 15th “Dear Colleague” letter to his fellow congressmen, Representative Mac Collins (R-GA) warned, “If the President’s view of Federal power were accepted, executive agencies and departments would have almost limitless authority to promulgate regulations preempting State and local law in violation of the Tenth Amendment.” Taking note of the Administration’s defiant promises to rule through executive decrees, Collins warned, “It seems clear to me that [Mr. Clinton] intends to usurp and utilize the powers reserved by the Constitution to Congress and the States as well.”

Section 3 of EO13083, Collins observed, “dictates to Federal departments and agencies how to approach issues that have Federalism implications. Matters of ‘national or multi-state scope’ justifying Federal action are defined in a matter that is at the same time broad and vague, providing executive departments and agencies great latitude to impose Federal regulations. Such matters would include any issue (1) that is not ‘contained within one State’s boundaries,’ (2) that represents a ‘need for uniform standards,’ (3) in which a State is ‘reluctant to impose necessary regulations’ due to business concerns, or (4) that ‘relates to Federally owned or managed property or natural resources, trust obligations, or international obligations.’”

“It is difficult to think of an area of policy that would not fall under at least one of these standards,” concluded Collins. “If the Federal executive branch were granted the power to determine when there is a ‘need’ for uniform standards or to dictate what State-level regulations are ‘necessary,’ then there would be little reason for State law-making bodies or the U.S. Congress to exist at all.”

Under the definition of “Federalism” set forth in EO13083, warned Collins, “The President could implement the provisions of the United Nations’ Kyoto Climate Treaty through executive department and agency regulations. The ‘international obligations’ clause would allow this without Senate ratification.” Another very realistic possibility, continued Collins, is that “under the ‘interstate’ activity clause, criminal law and gun control measures could be implemented by the Justice Department, usurping the powers of both the States and the Congress.”

“Stealth Measure”

EO13083 was scheduled to go into effect on August 14th, and not a single “mainstream” media source warned the public of the danger. However, news of the directive was disseminated through talk radio, fax networks, and the Internet. Researchers at the House Committee on Government Reform and Oversight also contacted officials from organizations representing state and local governments and warned them of the order’s implications.

Nation’s Cities Weekly, published by the National League of Cities, warned on July 13th, “A Presidential order to alter fundamentally the relationship of the federal government and state and local governments is scheduled to go into effect next month.”

The next day, representatives of the “Big Seven” organizations of state and local government — the National Conference of State Legislatures, the National Governors’ Association, the National Association of Counties, the U.S. Conference of Mayors, the National League of Cities, the Council of State Governments, and the International City/County Management Association — convened what the Washington Post described as “a stormy meeting” with Mike Ibarra, the Clinton Administration’s chief of intergovernmental relations. The meeting produced a “concession” from the Administration in the form of a recommendation that Mr. Clinton issue yet another executive order delaying the implementation of EO13083.

“Whenever changes of this magnitude are contemplated in the relationship between the federal, state, and local governments, consultation with state and local leaders is the least that should be expected,” Becky Fleischauer, a spokesman for the National Governors’ Association, told THE NEW AMERICAN. “This executive order represents literally a 180-degree turn-about in previous definitions of federalism and in the prevailing understanding of the Tenth Amendment, and that point was made very strongly during the meeting.” Noting that the Administration had offered to delay implementation of the order for 90 days beyond the previous August 14th deadline so that “negotiations” could take place with state and local officials, Fleischauer declared, “We would prefer that they revoke it altogether.”

A source at the House Committee on Government Reform and Oversight told THE NEW AMERICAN, “There was no effort by the Administration to solicit input from the affected state and local governments, or to warn them about the implications of EO13083. They simply inserted it in the Federal Register and hoped that nobody would notice.” The deviousness of the Clinton Administration’s actions is illustrated by two facts, according to this official. “First, now that the public has become aware of EO13083, the White House is trying to convince the public that the order doesn’t really do anything, which makes no sense. Why issue an executive order that does ‘nothing’? Second, they issued that order at a time when they thought that nobody was looking. It was intended to be a stealth measure.”

Ominous Parallel

The attempted preemption of state and local governments by EO13083 offers an ominous echo of the campaign of gleichschaltung — “coordination” — through which Germany’s National Socialist (Nazi) Party abolished federalism and created a totalitarian state in 1933. “The plan was deceptively simple and had the advantage of cloaking the seizure of absolute power in legality,” wrote left-wing historian William Shirer in The Rise and Fall of the Third Reich. “The Reichstag would be asked to pass an ‘enabling act’ conferring on Hitler’s cabinet exclusive legislative powers for four years. Put more simply, the German Parliament would be requested to turn over its constitutional functions to Hitler and take a long vacation. But since this necessitated a change in the constitution, a two-thirds majority was needed to approve it.”

Like Bill Clinton, Adolf Hitler urged the German Parliament to choose “progress” over “partisanship.” He also exploited a terrorist attack (the burning of the Reichstag in February 1933) to obtain legislative support for expanding his executive powers. And, like Bill Clinton, Hitler pursued his consolidation of power through executive decrees.

Beginning on March 9, 1933 — two weeks before passage of the Enabling Act — Hitler’s government evicted sitting state governments and installed Reich Commissars to replace them. On March 31st, using the powers granted through the Enabling Act, Hitler dissolved all state diets or assemblies (except for the previously Nazified diet in Prussia). On April 7th, Hitler issued a law appointing Reich governors in all states and granting them power to reconstitute state and local governments. Each new governor was a National Socialist Party member and was required to follow “the general policy laid down by the Reich Chancellor.”

“Thus,” concluded Shirer, “within a fortnight of receiving full powers from the Reichstag, Hitler had achieved what Bismarck, Wilhelm II and the Weimar Republic had never dared to attempt: he had abolished the separate powers of the historic states and made them subject to the central authority of the Reich, which was in his hands. He had, for the first time in German history, really unified the Reich by destroying its age-old federal character.”

By January 30, 1934, Hitler fully consummated his triumph over Germany’s federal constitution by issuing a “Law for the Reconstruction of the Reich.” Under that measure, according to Shirer, “‘Popular Assemblies’ of the states were abolished, the sovereign powers of the states were transferred to the Reich, all state governments were placed under the Reich government and the state governors put under the administration of the Reich Minister of the Interior” — that is, under the head of Germany’s nationalized police. As Interior Minister Wilhelm Frick triumphantly observed on that date, “The State governments from now on are merely administrative bodies of the Reich.”

The parallels between Hitler’s executive tyranny and that being fashioned by Bill Clinton are inexact, but instructive nonetheless. In fact, it may be said that President Clinton’s bid to consolidate executive power and abolish federalism by decree actually displays greater audacity than Hitler’s, given that Hitler’s most decisive actions were taken after the German legislature had formally surrendered power through the Enabling Act.

Recovering the Balance

“The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power,” wrote Supreme Court Justice Louis Brandeis in the 1922 case Myers v. United States. “The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among these departments, to save the people from autocracy.” Bill Clinton presumes that when congressional opposition to his agenda results in friction, it is his privilege to become an autocrat.

On July 14th, Congressman Bob Barr (R-GA) introduced the “State Sovereignty Act of 1998” (H.R. 4196), which is intended to “restore the division of governmental responsibilities between the national government and the States that was intended by the Framers of the Constitution, by requiring all Federal departments and agencies to comply with former Executive Order 12612” — the original Reagan order on federalism. But although the text of the Barr bill is sound, it could (if passed by Congress) be vetoed by Mr. Clinton. Should that occur, a two-thirds majority of both houses would be required to prevent the President from attempting to exercise unauthorized powers (in this case, abrogation of the 10th Amendment).

Another remedy, which would not be submitted to the President for his signature, is House Concurrent Resolution 236, which was introduced by Congressman Jack Metcalf (R-CA) in March. This measure, which was introduced prior to EO13083, expresses “the sense of the Congress that any Executive order that infringes on the powers and duties of the Congress under article I, section 8 of the Constitution, or that would require the expenditure of Federal funds not specifically appropriated for the purpose of the Executive order, is advisory only unless enacted as law.” In effect, this measure would put Mr. Clinton on notice that he cannot presume to exercise powers he does not possess.

As THE NEW AMERICAN previously observed, the 1974 House Judiciary Committee report on impeachment documented that presidential “high crimes and misdemeanors” include actions in which a President exceeds “the constitutional bounds of the powers of his office in derogation of the powers of another branch of government.” Executive Order 13083, and Mr. Clinton’s overall “executive order strategy,”  illustrate that Bill Clinton embodies precisely the variety of presidential megalomania that the impeachment process was created to address. 

Presidential Dictatorial Decrees (PDDs)

By William Norman Grigg

In foreign policy, as in domestic matters, Bill Clinton has allowed free rein to his imperial impulses. For example, he has hinted that it is a presidential prerogative to lie when Congress passes troublesome foreign policy statutes. During a White House meeting with 60 evangelical Christian leaders last May, Mr. Clinton urged opposition to the Freedom From Religious Persecution Act (FRPA), which would require that “non-humanitarian” aid and taxpayer-subsidized loans be denied to regimes guilty of systematic religious persecution — in particular, Red China.

“What always happens if you have automatic sanctions legislation is it puts enormous pressure on whoever is in the executive branch to fudge an evaluation of the facts,” confided Mr. Clinton, unaware that a reporter was present. While the merits of FRPA are dubious at very best, Mr. Clinton’s covert admission opened a very useful window on the operations of his Administration, which has clearly “fudged” the truth regarding such issues as military transfers to Red China. However, Bill Clinton has largely avoided the necessity of “fudging” by simply ignoring the constitutional limits on executive power in foreign affairs.

This is best illustrated by Presidential Decision Directive (PDD) 25 (formerly PDD-13), which created a framework for U.S. military participation in UN “peacekeeping” missions — including missions in which U.S. personnel serve under foreign commanders. Originally drafted by left-wing radical Morton Halperin (whose Defense Department appointment faced insurmountable opposition in the Senate), PDD-25 usurped Congress’ exclusive constitutional authority to “make rules for the government and regulation of the land and naval forces.” Not only did President Clinton usurp Congress’s authority, but the PDD was immediately classified, thereby denying Congress an opportunity to review it. Furthermore, the directive served as the basis of the court-martial of former Army Specialist Michael New, who refused to disfigure his U.S. Army uniform with a UN insignia and serve under a foreign commander.

To date, Bill Clinton has issued 63 PDDs, all of which are classified either in whole or in part. In a May 27, 1997 letter to THE NEW AMERICAN, David S. Van Tassel of the National Security Council (NSC) explained that while the NSC “takes the position that it is not subject to the Freedom of Information Act or the Privacy Act,” it does occasionally release information “as appropriate on a discretionary basis” — while carefully withholding “information properly classified under Sections 1.5 (a), (c), and (d) of Executive Order 12958.” This is to say that the NSC considers itself exempt from both congressional statutes and congressional oversight, and that it answers only to the President.

This variety of abuse of power, like so many others, was invented by previous Presidents, but perfected by Bill Clinton. Both his “fudging” of facts to benefit our adversaries and his attempt to deliver our military to the United Nations by presidential fiat should be scrutinized by a congressional impeachment panel. 

Bookmark/Search this post with:

delicious | digg | newsvine | technorati