Is America's chief executive governing more like a king than a president?
It's been a mark of the Clinton administration to rule by executive fiat, circumventing a hostile Congress by signing presidential orders that affect everything from patients' rights to land conservation to a war against Yugoslavia. With one year to go and a presidential legacy at stake, the White House plans to aggressively pursue this strategy, dubbing it "Project Podesta" after the chief of staff who's spearheading it.
But this stroke-of-the-pen style of governing infuriates Republicans in Congress, who see it as part of a runaway presidency that has been gaining speed for decades. Concerned that the Constitution is being trampled and their power usurped, lawmakers are now considering ways to rein in what they see as overuse of presidential directives.
"We've come a long way toward tyranny, and the Hill - I hope and pray - is finally waking up," says William Olson, the author of a recent study on the subject. He testified before Congress last month, when the House held two hearings on legislation to restrict the president's use of executive orders. It is the first serious look Congress has taken at this issue since the 1970s, says Olson.
Particularly galling to lawmakers is the president's unilateral action on conservation. They point to a 1997 executive order protecting America's heritage rivers as an example of a Clinton takeover of state and congressional rights. It threatens citizens' property rights and redirects federal funds in ways not authorized by Congress, charges Rep. Jack Metcalf (R) of Washington.
More recently, Mr. Clinton called for regulations to protect 40 million acres of national forest land, involving restrictions just short of designating the acreage as wilderness. "We allow the president to in effect legislate through executive orders and proclamations. I find this trend deeply disturbing," said Representative Metcalf in testimony last month.
The Constitution speaks only vaguely about the president's powers, designating Congress as the body that makes laws and the executive branch as the one that carries them out. Nowhere does it define or limit the president's power to rule by executive order.
Rule-by-decree goes back to George Washington, who issued benign proclamations such as the nation's first Thanksgiving Day and more constitutionally risky ones such as a declaration of US neutrality in a European war.
The practice blossomed under Theodore Roosevelt, the start of a long line of presidents who came out from under the shadow of Congress to make their own mark as national leaders.
But the record holder for executive orders issued - 3,723 - is Franklin D. Roosevelt, a head of state who faced economic depression and a world war. In his 1933 inaugural address, F.D.R. said the urgent needs of the day could justify a "temporary departure" from the normal balance of powers. Perhaps his most notorious executive order was to hold US citizens and residents of Japanese descent in internment camps during World War II.
The number of executive orders issued by Clinton pales in comparison. Mr. Olson's study shows Clinton had issued 304 executive orders as of August, fewer than two-term Presidents Reagan (381) and Eisenhower (452). The count does not include directives, memos, and proclamations.
It's not the number of orders that's important, however, as much as their scope. "Most presidential orders are trivial" says Terry Moe, an expert at Stanford University in California. "But orders with real substance have gone up over time."
Whether the trend is good or bad depends on one's views. Mr. Moe notes that former Presidents Truman, Eisenhower, Kennedy, and Johnson laid the foundation for the Civil Rights Act with executive orders relating to racial discrimination.
Of course, successive presidents can overturn the orders of their predecessors - and they do. So can the courts, but they have rarely acted against presidents (a federal court, however, did strike down a 1995 Clinton order on replacement strikers.)
That leaves Congress. Critics of the current system admit they've been willing accomplices in this power tilt.
"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 goals accomplished without having to assume political responsibility," said Rep. Ron Paul (R) of Texas recently.
In July, Congressman Paul introduced the Separation of Powers Restoration Act, which calls for restricting a president's power to issue executive orders.
Moe is skeptical that Congress can do much in this area because the body of law to which presidents can turn for their authority is now huge. He expects presidents to keep pushing the boundaries, especially when faced with opposition Congresses.
As for Clinton, he'll likely continue to advance his agenda through such directives. "He'll make some progress on a variety of fronts and nickel-and-dime Congress to death," says Moe.
(c) Copyright 1999. The Christian Science Publishing Society