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6/24/2003

Gephardt's Wish Was Clinton's Command
Ann over at a frustrated artist reminds us the President Bill Clinton issued executive orders at a blistering pace, often using them to circumvent the judicial and legislative branches of government. She remembers Clinton aide Paul Begala's famously cavalier description of the president's Executive Order powers: Stroke of the pen, law of the land. Kinda Cool.

When one of the nation's top Democratic politicians declares his contempt for the Constitution so openly, you know the sickness has spread into the mainstream.

Thing is, Bill Clinton (my least favorite person in this country, aside from serial killers and the like) actually governed this way. I forget where I saw the statistic, but the fact is he issued more executive orders than any President in history. While it was going on, it made me sick. The way his aide, Paul Begala, offhandedly characterized the power of executive order as "Stroke of the pen, law of the land. Kinda Cool" made me even sicker. The power of the executive order was designed to be used sparingly, not as a means to get around the Legislative and Judicial branches.

Clinton's abuse of this power, and Gephart's stated intent to similarly abuse it, should be well enough to demonstrate that the agenda of the Left is in opposition to the way the Founders set up our government to run.
I've been Googling trying to find out just how many EOs Clinton issued. Answer: 364.

Clinton issued a blizzard of EOs, in an effort to use presidential diktat to write into the law that which he couldn't achieve through the democratic legislative process. But he didn't issue more than any president in history. That honor falls to Franklin Delano Roosevelt, according to a phenomenal research paper on the history of executive orders by presidents all the way back to George Washington, published Feb. 21, 2001, by Todd F. Gaziano is Senior Fellow in Legal Studies and Director of the Center for Legal and Judicial Studies at The Heritage Foundation.
President Franklin Roosevelt, who served for over three terms, still issued more executive orders per year than did any other President. However, there is reason to be cautious in comparing the executive order output of Presidents from different eras, even in the same century. President Franklin Roosevelt was Commander in Chief during most of World War II. A wartime period will likely reflect many mobilization orders that are not applicable in other periods. In addition, the President's National Security Council was not created until 1947, and many of the specialized directives that it now drafts were not developed until recent Administrations.45 Thus, many of the executive orders issued by FDR might take some other form in a modern Administration. Many of these same considerations apply to other Presidents in the early and mid-20th century.

Although presidential executive order practices continue to evolve with each Administration, it is reasonable to make at least rough comparisons of the Presidents since 1960. Chart 2 shows that on an annualized basis, President Carter outpaced other recent Presidents in the sheer number of executive orders issued. On an annualized basis, President Clinton did not issue a significantly different number of executive orders than did Presidents Reagan or [the first] Bush.
It's not the number of EOs that's important, but their content and intent. Graziano: Former President Bill Clinton proudly publicized his use of executive decrees in situations where he failed to achieve a legislative objective. Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests.

UPDATE: TBOGG responds - and gigs a frustrated artist pretty hard. His permalinks don't work, so scroll down to the June 24 entry "The Liars Club." He's right - among two-term presidents since Hoover, Clinton issued fewer EOs than Eisenhower or Reagan. I failed to provide all of that data in my post because I linked to a report that has it. But TBOGG has found another source of data, the National Archives and Records Administration, which is a source of some of the data in the article I cited. Here's a direct link to that too. Something TBOGG doesn't mention: Of all presidents since Kennedy, Carter issued the most EOs on average per year - 80 - compared to Clinton's 48, Reagan' 48, Bush the First's 42, Ford's 70, Nixon's 62, Johnson's 53 and Kennedy's 76 per year. The current President Bush has issued 110 EOs in approximately 2.5 years in office - an average of 44 per year.

What matters more than the number of EOs is the content of them.

FDR issued 3,728 EOs during his three-plus terms in office. As Graziano's paper notes: During his time in office, President Franklin Roosevelt greatly expanded the use of executive orders, partly in response to the growth of government and partly in response to the demands placed on him as Commander in Chief during World War II. Unfortunately, FDR also showed a tendency to abuse his executive order authority and claim powers that were not conferred on him in the Constitution or by statute. President Harry Truman followed this pattern of governing by executive order. Some of President Truman's executive orders were to his credit, such as the integration of the armed forces, and some were to his shame, such as the attempted seizure of the steel industry during the Korean conflict.

As Graziano explains in the research paper I linked to above: the overwhelming majority of directives, including executive orders, are routine and few have significant policy implications beyond the executive branch. Thus, it would be a mistake to conclude that the number of executive orders or proclamations is a reliable indicator of whether a particular President has abused his executive order authority. In fact, a more careful review of executive orders suggests no correlation between the overall number of executive orders issued and the legitimacy of individual orders. The true measure of abuse of authority is not the overall number of directives, but whether any orders were illegal or abusive, and if so, how many and of what significance.

UPDATE: Pejman says the clarification from Gephardt's office was incoherent. And Porphyrogenitus says if a Republican had made Gephardt's statement, he would have been "hounded from the race - and rightly so." Read both of the whole things. [Hat tip: Instapundit]

UPDATE: The Cato Institute produced a good examination of executive orders in 1999, Executive Orders and National Emergencies: How Presidents Have Come to "Run the Country" by Usurping Legislative Power. From the executive summary: The problem of presidential usurpation of legislative power has been with us from the beginning, but it has grown exponentially with the expansion of government in the 20th century. In enacting program after program, Congress has delegated more and more power to the executive branch. Thus, Congress has not only failed to check but has actually abetted the expansion of presidential power. And the courts have been all but absent in restraining presidential lawmaking.

The Cato paper recalls once case where the Clinton administration tried to overturn a Supreme Court ruling by executive order - but was shot down by the courts:
On March 8, 1995, Clinton issued Executive Order 12954 in an effort to overturn a 1938 U.S. Supreme Court decision interpreting the National Labor Relations Act (NLRA). The Court had held that an employer enjoyed the right "to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them." In 1990, 1991, 1992, and 1994, Congress had considered and rejected legislation that would have amended the NLRA to prohibit employers from hiring permanent striker replacements. Following those repeated failures to enact such legislation, Clinton issued EO 12954, which prohibited federal contractors doing business with the government under the Procurement Act from hiring permanent striker replacements.

Given that history, it was no surprise that EO 12954 was challenged in court. In the ensuing litigation, the administration asserted that "there are no judicially enforceable limitations on presidential actions, besides claims that run afoul of the Constitution or which contravene direct statutory prohibitions," as long as the president states that he has acted pursuant to a federal statute. But the U.S. Court of Appeals for the District of Columbia Circuit rejected that argument - along with the administration’s claim that the president's discretion to act under the Procurement Act trumps the statutory protections of the NLRA. The court noted that even if the administration could show that the two statutes were in conflict, under conventional judicial principles the court would not interpret the passage of the Procurement Act as implying that Congress had thereby intended partial repeal of the NLRA.

The court concluded that the order amounted to legislation since it purported to regulate the behavior of thousands of American companies, thereby affecting millions of American workers. As the court explained, "[N]o federal official can alter the delicate balance of bargaining and economic power that the NLRA establishes." Thus, it struck down the executive order. The Clinton administration did not appeal the decision to the Supreme Court, but neither did it cease its aggressive use of presidential directives.
The Cato paper also has a list of the number of EOs issued by each president all the way back to Abraham Lincoln.

UPDATE: Stuart Buck says past presidents have expressed something akin to Gephardt's statement, though "in more eloquent and thoughtful phrases."

UPDATE: Volokh examines Gephardt's backtracking on a CNN interview. [Hat tip: Instapundit]

Editor's Notes:
1. Yes, I know Cato is libertarian and Heritage is conservative. I've been Googling around to see if Brookings or some other liberal think tank has produced similar research, and if I find it, I'll post a link here. So far, no luck. If you find something, let me know.

2. I will continue to update this post as new information and useful analysis and commentary emerges in the blogosphere.
I also have posted on it here and here.