Congress: Defend your Powers from Executive Usurpation

© 2000 by David W. Neuendorf

"Stroke of the pen. Law of the land. Kinda cool." Did this juvenile thought come from a D student in a middle school government class? No, it was the reaction of White House aide Paul Begala to the Clinton/Gore administration practice of legislating through executive orders. On many occasions when Congress has refused to pass bills favored by Clinton, the president has simply issued executive orders to implement the purposes of the bills without congressional approval.

Examples abound, since President Clinton has made over 450 executive orders so far in his administration. Many have implemented environmental regulations that could not pass muster in Congress. Often this has involved designating huge tracts of land as "monuments" under the 1906 Antiquities Act.

Another example is Executive Order 13166, which mandates provision of services by government and government contractors (much of private industry) in each person's language of choice. This order is widely viewed as elevating "limited English proficiency" to protected civil rights status. Such a major change in our system requires Congressional approval, just as it did in the civil rights movement era of the '60s. Yet now we have a single autocrat filling the role meant for the entire Congress.

The very first words of the Constitution after the Preamble, in Article I, Section 1, grant Congress exclusive power to make laws. "All legislative Powers herein granted shall be vested in a Congress of the United States..." The president has the veto power to prevent enactment of laws, and the federal courts have other checks against legislation; but neither may enact laws on their own.

If there is any one principle that animates the system of government created by our Constitution, it is this structure of "separation of powers" and "checks and balances." This principle has been the most important factor in preserving the liberty won for us by the Patriots of 1775 and beyond. Without it we would have no more protection from government excesses than the people of Iraq or China.

Did you hear in Begala's glib boast any hint of respect for this fundamental principle? What I heard was the audacious crowing of one who has found the key to illegitimate power, and who believes there is nothing that Congress can do about it.

What about Congress, whose role in our government is being usurped by the executive branch? There are those in both houses who, to their credit, are trying to restore constitutional order. For example, Rep. Ron Paul of Texas has introduced H.R. 2655, "The Separation of Powers Restoration Act." This bill would, among other things, seriously limit the scope of executive orders, re-establishing Congress's constitutional role as the exclusive legislative body. The Senate too has a bill, S. 1795: "The Executive Orders Limitation Act."

Unfortunately, the majority in both houses seems oblivious of the urgent need to restore checks and balances. Democrats' favorite policies are being enacted through the president's illegitimate actions, and they are too short sighted to see that the precedent could work against them with a different president in office. Most Republicans are so afraid of the power of big media to make them look bad that they are paralyzed. Unless their constituents light a fire under the members of Congress, these two important bills have no chance of passage.

Constitutional government can be a serious impediment to the process of bringing about radical change, good or bad. How much easier it is to sign a proclamation than to shepherd a bill through two houses of Congress! Yet it is vital to our future that we resist any temptation to bypass the orderly processes instituted by the Constitution.

To a conservative, this is more obvious than ever in light of recent events. If you're a liberal, try to imagine a president with otherwise conservative views who decided to follow the precedent set by Clinton and other recent chief executives. Wouldn't you then miss the protection of the Constitution, and the slow process of convincing a majority of Congress?

Whatever role we want for our federal government, we should all be able to agree that it should be determined through the guarded processes of the Constitution. Let's all urge our representatives and senators to defend the powers given exclusively to Congress by the Founders.

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