Executive Orders and the Decline of Law

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During his presidency, Bill Clinton would conclude his trips abroad by telling his advisors that he was determined to use the powers of his office. Those “powers,” of course, included what are called “executive orders,” which are orders that come from the office of the president of the United States and have the force of law.

Lest anyone think that Congress is supposed to be the supreme lawmaking body of the central government of the United States, those days have long passed. A trend that began during the War Between the States and that accelerated during the Progressive Era and the Great Depression continues unabated. Laws and lawmakers are not what they used to be and certainly not what existed when the republic known as the United States of America was formed.

The typical schoolroom civics class is taught that the U.S. government has three branches — Congress, the president or chief executive, and the U.S. Supreme Court. Congress, it is said, makes the laws, presidents enforce them, and the Court interprets the laws. Each branch has its own delegated powers, which creates a balance in which no entity gains power at the expense of another.

While this makes for nice, tidy civics lessons, the truth is found elsewhere. The political reality of the 20th century, and now the 21st century, is that Congress has faded greatly in importance, with the executive branch gaining the most strength. (Despite what many conservatives claim, the federal courts, while powerful, also have ceded some of their powers to the executive, as shall be later explained.) Furthermore, the executive branch has two powerful entities within it — the presidency itself and the bureaucracies, which in many ways wield more power than the president. One may speak of an “imperial presidency” but a more accurate description is that of an “imperial bureaucracy.”

Bipartisan executive orders

The president of the United States wields the power to issue an “executive order,” which is an order supposedly based on current law. For example, near the end of his presidency, Bill Clinton issued an executive order greatly reducing the amount of arsenic (which often appears naturally in groundwater in Western communities) that was permitted in a municipal water supply. He said that this order was based on the Clean Water Act and other laws Congress previously had passed.

Likewise, upon taking office, George W. Bush issued an executive order changing how the federal government would fund research into embryonic stem cells.

Once issued, an executive order has the force of law and can serve as the basis for challenges in court. For example, environmental groups recently took the Bush administration to court, claiming it was not obeying Clinton’s executive orders to close huge portions of national forest lands to loggers, and the courts agreed. Likewise, Congress recently attempted to pass legislation expanding the federal role in embryonic stem cell research in order to counter Bush’s original executive order. As former Clinton aide Paul Begala once remarked, “Stroke of the pen, law of the land. Kinda cool.”

There is no specific provision in the Constitution for presidents to issue executive orders. However, as was recently made clear when Congress made a somewhat feeble attempt to rein in the proclivities of CIA field officers and U.S. military personnel to torture suspected terrorists held by U.S. forces, the Bush administration claims to reserve the right to interpret legislation as it sees fit. In other words, Bush (not to mention other presidents before him and almost certainly presidents to follow) declares that the executive branch owns the power supposedly held by the judicial branch to be the interpreter of legislation.

While executive orders themselves have the authority of law, supporters of this process hold that the power to issue such orders is not the same as the power to make new laws. As shall be demonstrated, that is a point of debate; surely, the ability of the executive branch to issue executive orders and to interpret law — and to influence the courts along the way — tells us that we are close to having an all-powerful and all-encompassing branch of government that ultimately is not accountable to anyone. That certainly was not the intent of those who framed the Constitution when they created the office of president of the United States.

Founding principles

The Constitution of the United States is a marvelous document that carefully attempts to lay a balance of power from the central government to the states and also within the central government itself. As Jacob Hornberger and others have noted in this publication, the original decentralist principle of spreading political power among the states has been steadily replaced by the centralization of power in Washington, D.C.

While we have dealt often with the fact that power has moved from the states to the central government, another power shift has gone on within the central government itself, as power has shifted from both the legislative branches and the courts to the executive branch. Furthermore, there is an element of the executive branch that is almost impervious to change, that being the established bureaucracies, where policies are made by employees who, in effect, are tenured and who have managed to accumulate powers for which there is no antidote.

The ultimate problem comes when the White House and the bureaucracies effectively join forces in order to impose various political orders that almost are impossible to overturn once they come into force. Thus, any real balance of power has long been abandoned, as the executive branch has accumulated powers that no other branch can — or is willing — to dislodge.

The Framers, who understood that concentration of power ultimately would mean that those people who held political authority could exercise their powers in tyrannical fashion, clearly did not wish for such a thing to happen. The genius of the Constitution was found not simply in the Bill of Rights (which was a recognition of the rights that people already held and which prohibited the central government from infringing those rights), but also in the way that the powers of the various political entities were separated. The idea was simple but profound: divide the powers that the state and federal governmental bodies are permitted to exercise.

Furthermore, not all aspects of this division of powers were spelled out, but the implications were there. For example, Abraham Lincoln’s contention notwithstanding, early Americans believed that secession was a political option for states or groups of states. Even before seven Southern coastal states cut their ties with the United States in late 1860 and early 1861, a number of other states, including those of New England, had earlier threatened to leave the Union over matters of war and taxation.

The longest-lasting legacy of Lincoln is not the War Between the States or even the violent way in which slavery ended in the United States. Lincoln was able to use brute force to “settle” the various arguments regarding the centralization of political power in this country. As the late Shelby Foote said during an interview on Ken Burns’s PBS documentary on the Civil War, in the years before the war people spoke of the United States in the plural, as in “the United States are.” However, after the war, people spoke of the country in the singular, as in “the United States is.”

Perhaps the most famous document to come from the war was the Emancipation Proclamation, an executive order which Lincoln issued on January 1, 1863. Despite the continuing belief that Lincoln’s proclamation “freed the slaves,” in reality, it freed no one, but it did have the effect of further concentrating power in the executive branch.

The Emancipation Proclamation declared that all slaves living in the areas of the Confederate States of America which were not secured by Union forces were legally free. In and of itself, it was a curious claim, as it failed to emancipate slaves held in Union slave states such as Delaware and Kentucky; and people living in the Confederate States did not believe themselves to be subject to Lincoln or any other Northern political institution, so it could not free slaves in those places, at least by itself.

(Union soldiers did use the Emancipation Proclamation to justify releasing slaves as they occupied new territories in the South. However, given the state of the fighting, it is just as likely that Union forces would have freed those slaves anyway, if for no other reason than to cripple the economies of the Southern states, making it more difficult for the Confederates to continue to fight.)

In issuing his order, Lincoln did not refer to any specific statutes — as there were none that he could have claimed as the basis of the Emancipation Proclamation. Instead, he said that the Constitution gave him that particular power. (Indeed, following the war, Congress pushed through the Thirteenth Amendment to abolish chattel slavery, as abolitionists fretted about the legality of Lincoln’s order, and decided to anchor the prohibition into the Constitution itself. The popularity of the order notwithstanding, abolitionists rightly feared that the Supreme Court would overturn it because of the absence of any legal basis for Lincoln’s actions.)

While the Lincoln presidency and the War Between the States did not lead to an immediate flood of new executive orders, it did help to set a longer-term precedent of concentrating powers in the executive branch. When the Progressive Era came to the United States, one can say that Lincoln helped to “set the table” when the intellectuals and political classes began to demand that government be centralized and that the presidency be strengthened.

The Great Depression and the subsequent New Deal of Franklin D. Roosevelt were a major turning point, as far as the power of the executive branch is concerned. Because the business downturn was so severe, Americans were willing to try anything, and that “anything” from the Roosevelt administration was the old Progressive agenda of turning power over to the executive branch.

Growth of executive orders

As Paul Craig Roberts and Lawrence W. Stratton point out in their book The Tyranny of Good Intentions, the entire business of congressional lawmaking changed. Instead of passing legislation that was carefully written and aimed at laying down clear boundaries, Congress began to crank out laws willy-nilly that were hastily written and unclear both in their language and their intent. (That is still the case, as most lawmakers do not even read the legislation they pass, preferring to leave that job to staffers, as well as the lobbyists and people from the executive branch, since those two groups actually are the authors of much current legislation.) Roberts and Stratton write that Joseph T. Robinson (Senate Majority Leader, 1933—1937) “wept” at the realization of what Congress was doing.

Most important was that Congress came to accept its role as being secondary in the legislative process, and the courts agreed to give up part of their role in the interpretation of congressional law. This should not be surprising, given that one of the tenets of Progressivism was that “experts” should be the decision-makers when it came to the workings of government. Thus, if prosecutors and U.S. Department of Justice attorneys were the “experts,” the courts agreed to defer to them.

(One obvious example of this deference was how the U.S. Supreme Court in the 1970s began to interpret the 1964 Civil Rights Act. The law specifically forbade the use of racial quotas, and one of the bill’s sponsors, Sen. Hubert Humphrey, declared he would “eat” the pages of the law itself if it permitted racial quotas. However, at the prodding of the U.S. Civil Rights Commission, the high court later declared that it would defer to the “expert” opinion of the commission and interpret the 1964 law as requiring employers to have certain numerical standards — quotas, if you will — in order to be in “compliance” with the law. In this case, it was the triumph of the bureaucracy over the wishes of the White House, which only underscores the tremendous power that the bureaucracies wield.)

Emboldened by the failure of Congress and the courts to hold their ground, the executive branch has grown in power, authority, and its ability to control the lives of individual Americans without fear of legal retribution. From Roosevelt’s executive order seizing private gold holdings of Americans, to his order to illegally intern Japanese-Americans during World War II, to Clinton’s executive order to bomb Serbia in 1999, to the slew of orders from the Bush administration, executive orders have become tools for the president and executive-branch bureaucrats to impose their own agendas that by themselves could not get past Congress. Moreover, Bush’s recent statements after signing an “anti-torture” bill from Congress that he would interpret the law in any way he saw fit shows only how big the problem has become.

Both Republicans and Democrats are fond of referring to the “imperial presidency” when someone from the opposite party is in the White House. Yet both parties have acted to protect and strengthen the presidency when it was to their advantage. For example, while Republicans supposedly favor more “decentralized” government, they consistently have given the central government more power (at the expense of the states) since they came to control Congress in 1995. Democrats, on the other hand, who coined the term “imperial presidency” during Richard Nixon’s years in office, nevertheless raised no objection when Bill Clinton ordered dozens of military interventions across the globe.

The Framers of the Constitution understood the dangers of the executive branch’s grabbing most of the powers of government. Unfortunately, while federal officials today — in all three branches of the federal government — profess their oath to “protect and defend the Constitution from all enemies, foreign and domestic,” they quickly join the ranks centralizing power in the executive. Unless members of the other branches are willing to act on the important principle of decentralization of power, the American Experiment will end up being nothing but a footnote of history.

May 10, 2007

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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