emergency power

executive order

Rule by Decree - It's Unamerican!

by Fred E. Foldvary, Senior Editor

The government of the United States of America is supposed to be by the people and of the people, as Lincoln said, but to an ever greater degree the USA is being ruled by the diktat of presidential executive orders.

Presidential rule began with Lincoln during the Civil War and then was vastly expanded by Theodore Roosevelt. The trend of expanding presidential rule has accelerated under president Clinton. Rather than prevent this transfer of authority to the executive branch, Congress has facilitated it by delegating power to the presidency, and the courts have usually failed to stop it.

Just because the president is elected by the people does not imply that his decrees are of the people. Under the USA Constitution, the president is to execute the laws passed by Congress, not make law by executive decrees.

The courts did stop one executive order. In 1995 Clinton issued Executive Order 12954 to prohibit some federal contractors from hiring replacement workers during a strike, despite a 1938 Supreme Court decision that an employer may do so. Congress had rejected legislation that would have enacted such a prohibition. This executive order thus overruled both the Supreme Court and Congress. The U.S. Court of Appeals found that this executive order amounted to legislation, and struck it down.

In 1998 Clinton issued EO 13083 to redefine "federalism," the relationship between the federal and state governments. The order justified federal action to solve "national" problems. Facing resistance from state governors, Clinton suspended the order.

Typically, however, executive orders have been used to assert and expand federal power, including military power. The war in Yugoslavia was waged by executive order, without the declaration of war required by the Constitution. In June 1998, EO 13088 declared a national emergency and prohibited trade with Yugoslavia. The bombing of Yugoslavia took place without Congressional authority. In April, EO 13119 designated Yugoslavia and Albania as a war zone, and EO 13120 ordered reserve units to active duty.

The precedent for such presidential war making goes back to Abraham Lincoln, who initially fought the Civil War without Congressional approval, let alone a Congressional declaration of war, as well as violating the authority given to Congress to raise and support armies. In August 1861 Congress ratified the orders of Lincoln. Unfortunately, as noted by a report by the Cato Institute, "the Supreme Court has upheld the legality of presidential actions ratified by Congress after the fact" (Policy Analysis no. 538).

Thus the Civil War actions set the stage for the later expansion of presidential power by executive order decrees, just as Lincoln and Congress also established the income tax, the military draft, and the nationalization of the currency due to the war.

President Wilson greatly expanded presidential rule, being the first president to declare a national emergency, which activated laws previously passed. He declared an emergency on February 5, 1917, two months before Congress declared war. Wilson then created federal agencies with presidential directives.

Presidential power expanded again under Franklin Roosevelt. On March 6, 1933, Roosevelt issued a proclamation declaring a state of national emergency. The United States officially remained in a state of emergency until 1978. But President Carter declared a new national emergency in 1979 during the Iranian hostage crisis, and the USA has been in an official state of emergency ever since! In fact, there are 13 concurrent states of emergency today.

There are two proposals in Congress to limit executive orders, HCR 30 and HR 2655 by Representatives Paul and Metcalf. HR 2655 would terminate emergency declarations and vest emergency declarations in Congress. The bill also requires presidential directives to specify their legal basis.

Passing this bill would go a long way to restoring the separation of powers intended by the US Constitution. But a more permanent reform is needed to prevent such usurpation of power. A radical decentralization of power and voting is needed in order to create a structure where the power truly rests with the people, not with the head of state.

(For more information, see the Cato Institute's Policy Analysis No. 358 (October 28, 1999), "Executive Orders and National Emergencies: How Presidents Have Come to 'Run the Country' by Usurping Legislative Power," by William J. Olson and Alan Woll.)

-- Fred Foldvary      

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Copyright 1999 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.