Executive Excess?

Bill Clinton is a rather spry lame duck. For proof of that, look no further than his penchant for issuing executive orders.

In recent months, he has protected great swaths of Western wilderness in national monuments. Civil rights enforcement has been toughened, Medicare coverage expanded, and unemployment benefits extended to parents of newborns.

But despite the outcry from Republican leaders in Congress, who charge the president is doing end runs around them, Mr. Clinton has not been all that unusual in his use of executive orders. His 451 so far won't threaten FDR's record 3,700. Eisenhower issued 425, Nixon 346, and Wilson, Coolidge, and Hoover each penned more than 1,000.

But Clinton's pace of executive policymaking is definitely picking up as the curtain starts to fall. He clearly is refusing to be a do-nothing president no matter how determined the congressional majority is to keep him from doing much. He's got a legacy to burnish, and if some glow settles on Al Gore's campaign, all the better.

Still, is the executive order a distortion of constitutionally apportioned power? Does it carry the threat of executive tyranny, as some assert?

In a word, no. Executive orders have been with us since George Washington. The Emancipation Proclamation was an executive order. This tool lets presidents deal with national emergencies. Most often, they're a means of carrying out authority delegated by Congress to the executive as laws are passed. That's the case with the wilderness set-asides - though the relevant law is nine decades old.

In other instances, the tie to the will of Congress is tenuous. When Clinton used an executive order to guarantee private bank loans to the Mexican government, it took the form of a directive to the Treasury secretary. Some in Congress complained, but the consensus was that the US national interest was being served.

One Clinton executive order, banning federal contracts with companies that permanently replaced striking workers, was invalidated in 1996 by the courts. The judges saw it as directly contradicting Congress's intent as set forth in federal labor law.

So there are checks on this presidential power. Not least, Congress can pass laws to annul executive orders, and the next president can cancel the orders of the outgoing one. The latter is rarer than you'd think, particularly when the order has created such impressive and popular facts on the ground as new wilderness preserves.

(c) Copyright 2000. The Christian Science Publishing Society

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