John Podesta, co-chairman of Barack Obama’s transition team, recently announced that hundreds of Bush’s executive orders are being reviewed. Obama is expected to overturn many of Bush’s executive orders following his anticipated inauguration on January 20.
Obama is doing only what is expected, of course. The use of executive orders has increased exponentially in recent decades. According to a count conducted by Senator Mike Crapo, America’s first 24 presidents issued 1,262 executive orders. By contrast, the last 18 presidents have issued in excess of 12,000 orders. But the statistics are merely a reflection of a deeper problem. Early presidents relied upon executive orders as administrative tools. Modern presidents not only issue more orders, but they also expect these orders to have more substantive impact.
In the 1990s, Bill Clinton was especially ambitious in his use of executive orders. His then-aide, Paul Begala, notoriously described the administration’s attitude when he declared, “Stroke of the pen. Law of the land. Kinda cool.” Indeed, Clinton used his executive pen in lieu of the legislative process on many occasions, despite the fact that his aggression provoked several legal challenges.
For instance, when the Children’s Environmental Protection Act stalled in the Senate, Clinton unilaterally issued an executive order aimed at protecting children from environmental health or safety risks.
Another directive bypassed not only the legislature, but also the Supreme Court. In 1938, the Court had held that the National Labor Relations Act allows employers to protect their businesses by hiring replacements for striking workers and refusing to discharge these replacements if the strikers want to return. Congress rejected legislation meant to overturn this Court ruling, but Clinton decided to bypass the legislative gridlock entirely. He issued an order prohibiting the federal government from doing business with contractors who hire permanent replacements for striking workers. Despite the allegedly limited scope of the directive, the impact of the order could have been widespread. Many businesses would obey the order so as not to make themselves ineligible for future federal projects.
Clinton’s order was eventually overturned by the courts, but many others were not. In 1997, Clinton established the American Heritage Rivers Initiative by executive order. AHRI requires land-use decisions impacting specific rivers to be approved by designated “river navigators.” Clinton announced AHRI in his State of the Union address and established it on his own, deliberately sidestepping the legislative process.
In these and other areas, Clinton used his executive power aggressively—too aggressively. Bush should have sought to reverse Clinton’s dictatorial use of executive orders. Instead, he made matters worse. Bush made many of his own policy decisions unilaterally, ignoring the fact that these decisions should have been left to legislative bodies. Early in his presidency, he issued a controversial order prohibiting federal funding of certain types of embryonic stem-cell research.
To be fair, Bush’s hand was forced, in part, because he was seeking to negate actions taken by the executive branch during the Clinton years. These actions undermined a law enacted by Congress that banned research in which human embryos are “destroyed, discarded or knowingly subjected to risk of injury or death.” Bush should have overturned the actions of the Clinton administration completely, seeking to restore the congressional status quo. Instead, he made matters worse by choosing to issue his own improper directive—a directive that will most likely be promptly reversed, again, by Obama.
Unfortunately, Bush’s expansion of executive power did not stop with inappropriate use of executive orders. During his time in office, Bush heavily relied upon a little-known document, the presidential signing statement, to grab still more power. A signing statement can be issued when a president signs a bill into law. Typically, such a statement explains the likely effects of the bill or instructs administrative agencies about the bill’s logistical aspects. More controversially, the signing statement could include disclaimers that some provisions in the law won’t be enforced because the president believes such provisions to be unconstitutional. Of course, legislation may be constitutional in some contexts, but not in others, and any president certainly has the right to announce his view and to act accordingly. Or perhaps a president could legitimately decide not to kill an entire piece of legislation based on one relatively minor provision that may be unconstitutional. But Bush has been much too reckless in his reliance on signing statements, often disregarding the tool specifically provided for him in the Constitution: the presidential veto.
The War on Terror gave Bush another excuse to irresponsibly increase executive power. Infamously, Bush authorized the National Security Agency to eavesdrop on American citizens, without a warrant, in certain circumstances. His arguments for the new power relied, at least in part, upon his perception of himself as a trustworthy steward of governmental power. Indeed, Bush’s time in office was often tarnished by his insistence on offering the “just trust me” justification—perhaps most notoriously during his failed attempt to nominate the unqualified Harriet Miers to the Supreme Court.
Bush always misunderstood the most important aspect of governmental institutions: They should be one-size-fits all. Officeholders set precedents that will be utilized not only be good, honest, decent men, but also by ambitious, greedy, and abusive men.
Whether fairly or unfairly, many who trusted Bush do not now trust Obama. Bush’s power-expanding precedents are extremely unfortunate, particularly given Obama’s already ambitious notions regarding the degree to which government should be involved in the lives of individuals.
President Rutherford B. Hayes once spoke of executive power, noting that “[t]he real test has never come, because the Presidents have down to the present been conservative, or what might be called conscientious men, and have kept within limited range. . . . But if a Napoleon ever became President, he could make the executive almost what he wished to make it.”
Hayes spoke of executive power long before the aggressive overreaches of Clinton and Bush. His century-old warning about a future Napoleon, worrisome then, carries even more force today.
-Tara Ross is a co-author of Under God: George Washington and the Question of Church and State and a contributing writer for Doublethink Online.
Source: AFF Doublethink Online | Andrew Stiles
Source: AFF Doublethink Online | Kathlyn Ehl