August 2, 1999
Restricting the Executive Orders
Constitutional vision of separated powers necessary for liberty
One of the chief complaints of the American colonists against King George was that he had usurped powers that were not rightfully his, and then used those powers to the disadvantage of the people.
In the ensuing years, those revolutionaries created a federal government that was not only strictly limited, but also strictly divided among three co-equal branches, each with unique and limited powers and each with a coequal duty to uphold and sustain the Constitution of the United States. Under a truly constitutional approach to our government, every branch has the ability to check the abuses of power by the others.
But this system of "checks" has grown drastically out of balance, if indeed it ever truly was in balance. But the errors of the past, whether distant or recent, should not be reason to leave the future shackled to reckless policies grown from disdainful philosophies.
The most glaring example of our out-of-balance system is the power of the president to create laws through the use of the "Executive Order." Our system grants all legislative power to the legislative branch, while Chief Executive exists to "faithfully execute" those laws.
While there is a role for Executive Orders so that the president may execute his authorities and direct his employees, for far too many years the illegitimate uses have overshadowed the legitimate. Presidents have issued Executive Orders that take on the force of law.
It is a mistake, though, to place all blame with a single president in particular, or the office in general, for abuse of this power. After all, presidents have had many willing accomplices in Congress. A great number of congressmen and senators quietly appreciate the assumed presidential authority to create and enact legislation because it allows them to see their goal accomplished without having to assume a politically risky position.
With the "power" of the Executive Order, presidents can commit our troops to undeclared wars, destroy industries or make unprecedented social-policy changes. And they remain unaccountable because often these actions occur behind the door of the Oval Office, are distributed without notice, and then executed in stealth.
I have introduced legislation, along with Rep. Jack Metcalf of Washington, that would bring our federal system into proper balance. The Separation of Powers Restoration Act (HR2655) prohibits a presidential order from having the effect of law by restricting the scope of the directives. In addition, it repeals the 1973 War Powers Act, which -- despite the constitutional prohibition -- granted broad war-making authority to the Office of the President. Further, the legislation suspends all of the "national emergencies" which have been declared since 1976, when Congress last canceled them. Still on the books are "emergencies" relating to Iraq and the Soviet bloc. These emergency declarations give presidents great authority, even if the situation no longer presents a threat to our national security.
Finally, and perhaps most significantly, my legislation grants legal standing to individual Members of Congress and Senators, state officials and, of course, private citizens who believe a president's Executive Order has overstepped constitutional bounds and negatively impacted them, their rights, their property or their business.
That powers have been usurped is undeniable, and that our system is out of balance is evident to the most casual of observers. We have the opportunity to more perfectly balance our system and restrict potential abuses.
While kings may have the right to promulgate laws simply by decree, it is Rule of Law which is king in our form of government. By clearly defining the lines of power, while restricting the ability of a single person to arbitrarily impose law, we will further secure the blessings of liberty upon our nation.