When a system of checks on powerpitting power against powerceases to function in an adversarial way and functions instead "cooperatively"—with each

unit working hand in hand with the othersgovernment necessarily grows.

Introduction

There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.

-Montesquieu

When America's Founders gathered to draft a new constitution for the nation, they were especially mindful, from long study and recent experience, of the need to check governmental power if the rights and liberties of the people were to be secured-which the Declaration of Independence had made clear was the purpose of government. Thus, they instituted a plan that divided powers between the federal and the state governments, leaving most powers with the states and the people, as the Tenth Amendment would soon make explicit. And they separated the powers delegated to the federal government among three distinct branches, defined essentially by their functions-legislative, executive, and judicial.

The basic Madisonian idea was that power would check power. The states would check abuses of federal power and the federal gov. ernment would check abuses of state power. Similarly, because the three branches of the federal government were defined and empowered with reference to their respective functions, each branch would check efforts by the other branches to enlarge or abuse their powers.

Not surprisingly, that system of checks and balances works to limit government only insofar as each unit in the system understands its responsibilities and carries them out. When a system of checks on power-pitting power against power-ceases to function in an adversarial way and functions instead "cooperatively"-with each unit working hand in hand with the others, pursuing "good government" solutions to human "problems"-government necessarily grows. Since there is no end to the problems government thus transformed might address, government becomes like a business, where suc

cess is defined by growth in size and scope. Is

it

any wonder that at this point in the 20th century, which has been dominated by the idea of "good government," the president of the United States is seen more as the chief executive of America, Inc., than as a person charged primarily with the limited duty of seeing "that the Laws be faithfully executed"?

Nowhere is that transformation more clear, perhaps, than in the growth of presidential lawmaking, which is an obvious usurpation of both the powers delegated to the legislative branch and those reserved to the states. To warn against that prospect, James Madison, in Federalist 47, quoted Montesquieu on the peril of uniting in the same person legislative and executive powers. Yet, all too often in the modern era that conflation of powers has occurred-and the loss of liberty, against which Montesquieu warned, has followed.

A few examples from the current administration will serve initially to illustrate the problem and should serve as well to show how our liberties are at risk as long as Congress, the courts, and the states fail to exercise their constitutional responsibilities to check the growth of presidential power. We will then trace the theory and history of the problem in order to show that there are constitutional restraints on presidential power available to those charged with asserting them, if only they would do so. We will next show that, almost from the beginning, but especially in our own century, those restraints have not been used. Finally, we will look at two cases in which the courts did limit presidential attempts to rule through executive order or national emergency and two efforts currently before Congress that are aimed at doing the same.

President William Jefferson Clinton

In December 1998, Rep. Ileana RosLehtinen (R-Fla.) rose on the floor of the House to observe that

[t]he greatest challenge of free peoples is to restrain abuses of governmental power. The power of the American presidency is awesome. When uncontrolled and abused, presidential power is a grave threat to our way of life, to our fundamental freedoms.

Those comments were made in the context of President Clinton's impeachment on articles unrelated to his usurpation of legislative powers; however, the underlying principle applies even more when legislative usurpation is the issue. Yet Clinton has repeatedly used executive orders, proclamations, and other “presidential directives" to exercise legislative powers the Constitution vests in Congress or leaves with the states. As noted by Sen. Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee, "This President has a propensity to bypass Congress and the States and rule by executive order; in other words, by fiat."

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In addition, Clinton, far more than his predecessors, has trumpeted his use of presidential directives to legislate and, thereby, to circumvent or undercut congressional and state authority. As the Los Angeles Times reported last year:

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.

His first unilateral strike will come today. According to a draft of Clinton's weekly radio address obtained by The Times, he plans to announce a new federal regulation requiring warning labels on containers of fruit and vegetable juices that have not been pasteurized. Congress has not fully funded Clinton's $101

million food safety initiative, which among other things would pay for

inspectors to ensure that tainted foods from other countries do not reach American consumers.

After that initiative, Clinton will take executive actions later in the week that are intended to improve health care and cut juvenile crime, according to a senior White House official.3

In that weekly radio address, Clinton gave "a warning to Congress" reminiscent of FDR's First Inaugural Address (discussed below):

Congress has a choice to make in writing this chapter of our history. It can choose partisanship, or it can choose progress. Congress must decide.... I have a continuing obligation to act, to use the authority of the presidency, and the persuasive power of the podium to advance America's interests at home and abroad.*

Consistent with that rhetoric, Clinton has sought to advance “America's interests,” as he has seen them, not with the concurrence of Congress but often despite Congress, as a few examples will show.

Permanent Strike: Replacement

On March 8, 1995, Clinton issued Executive Order 12954 in an effort to overturn a 1938 U.S. Supreme Court decision interpreting the National Labor Relations Act (NLRA). The Court had held that an employer enjoyed the right "to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them." In 1990, 1991, 1992, and 1994, Congress had considered and rejected legislation that would have amended the NLRA to

Clinton has repeatedly used executive orders, proclamations, and other "presidential directives" to exercise legislative powers the Constitution vests

in Congress or leaves with the

states.

A congressional review later concluded that the proclamation, was "politically motivated and probably illegal" and was made "to circumvent congressional involvement in public land decisions."

prohibit employers from hiring permanent striker replacements. Following those repeated failures to enact such legislation, Clinton issued EO 12954, which prohibited federal contractors doing business with the government under the Procurement Act from hiring permanent striker replacements.

Given that history, it was no surprise that EO 12954 was challenged in court. In the ensuing litigation, the administration asserted that "there are no judicially enforceable limitations on presidential actions, besides claims that run afoul of the Constitution or which contravene direct statutory prohibitions," as long as the president states that he has acted pursuant to a federal statute.' But the U.S. Court of Appeals for the District of Columbia Circuit rejected that argumentalong with the administration's claim that the president's discretion to act under the Procurement Act trumps the statutory protections of the NLRA. The court noted that even if the administration could show that the two statutes were in conflict, under conventional judicial principles the court would not interpret the passage of the Procurement Act as implying that Congress had thereby intended partial repeal of the NLRA.

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The court concluded that the order amounted to legislation since it purported to regulate the behavior of thousands of American companies, thereby affecting millions of American workers. As the court explained, "[N]o federal official can alter the delicate balance of bargaining and economic power that the NLRA establishes."!! Thus, it

struck down the executive order. The Clinton administration did not appeal the decision to the Supreme Court, but neither did it cease its aggressive use of presidential directives.

Grand Staircase-Escalante Monument

A few weeks before the 1996 presidential election, Clinton used Proclamation 6920 to establish the 1.7 million acre Grand Staircase-Escalante National Monument in Utah. A congressional review later concluded that the proclamation, issued apparently to preclude pending legislation, was “politically

motivated and probably illegal" and was made "to circumvent congressional involvement in public land decisions."12 As the House Committee on Resources found:

The White House abused its discretion in nearly every stage of the process of designating the monument. It was a staff driven effort, first to short-circuit a congressional wilderness proposal, and then to help the Clinton-Gore re-election campaign. The lands to be set aside, by the staff's own descriptions, were not threatened. "I'm increasingly of the view that we should just drop these Utah ideas... these lands are not really endangered."-Kathleen McGinty, chair, Council on Environmental Quality."

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On September 11, 1997, Clinton's American Heritage Rivers Initiative was established by EO 13061. The impact of the program is not clear; however, some analysts believe that AHRI will require all land-use decisions affecting designated rivers to receive approval from the AHRI "river navigator. According to Rep. Helen Chenoweth (R-Idaho), once a river has been designated as part of AHRI, the control exercised by the river navigator over the use of land may extend over the entire watershed of the river, from its source to its outlet, crossing state lines in the process." Moreover, the river navigator's authority over the use of land is not limited to environmental concerns. AHRI is designed as well to address such social issues as poverty, education, and hunger.

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the unusual nature of the arrangement being proposed where the executive branch of the U.S. Government, through its agencies, was undertaking the implementation of a new Federal program that has not been authorized by Congress and for which no moneys have been appropriated by the Congress to these agencies to be expended for this purpose. This strikes me as being quite unusual and if successful, reason for alarm. Federal agencies are generally considered to be creatures of Congress but this will no longer be true if they can, by unilateral action of their own, extend their reach and usurp moneys appropriated to them for other purposes to for their pay

unauthorized activities."

A report on AHRI by the House Committee on Resources added:

Many believe that AHRI clearly violates the doctrine of separation of powers as intended by our Founding Fathers by completely bypassing the Congress. This was best stated by James Madison in Federalist Paper No. 46 that, "The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." For

“Many believe that AHRI clearly violates the doctrine of separation of powers as intended by our Founding Fathers by completely bypassing the Congress."