Hearings of the
Subcommittee on Legislative and Budget Process
The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?
William J. Olson
William J. Olson, P.C., Attorneys at Law
1. At what point, in your view, did the trend begin to turn toward more aggressive use of the executive order by Presidents? What triggered this new direction?
Response:
We recently completed a study on behalf of the Cato Institute entitled “Executive Orders and National Emergencies: How Presidents Have Come to ‘Run the Country’ by Usurping Legislative Power.” This study is available at our internet site, www.wjopc.com. In this study, we trace the use of executive orders beginning with President Washington. In Table 1 of the study, we set out the number of executive orders issued by each president since Abraham Lincoln. It can be readily concluded that the explosion of executive orders is a 20th Century phenomenon.
No president from Lincoln to William McKinley issued more than 71 identified executive orders, and all 10 presidents during this span issued a combined total of only 158 executive orders. This all ended abruptly when Theodore Roosevelt ascended to the presidency upon the assassination of McKinley on September 14, 1901. During the seven and one-half years of Theodore Roosevelt’s presidency, with neither a world war nor an economic catastrophe to supposedly force his hand, he issued 1006 executive orders — making him the third most prolific of all presidents, behind only Franklin Roosevelt at 3,723, and Woodrow Wilson at 1,791.
Theodore Roosevelt’s autobiography revealed his revolutionary view of presidential powers, which has come to be known as the “stewardship theory” of executive power. His approach was unchecked by any regard for the form of government established by the U.S. Constitution.
Theodore Roosevelt ignored the fact that in our federal scheme the national government was intended to be a government of limited, enumerated powers, and he ignored the fact that the president’s role was limited to execution of the laws that were written by Congress. In his autobiography, Roosevelt expressly “declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it.” To the contrary, he stated that it was “his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.” These are not the words of a man who believes this is a nation of laws and not of men.
A president who observes his vow to preserve, protect, and defend the U.S. Constitution must find express authority for his actions — not just a personal preference combined with the absence of an express prohibition. During the rest of the 20th Century, the Theodore Roosevelt view of presidential authority has rarely been articulated in such stark terms, except perhaps by Franklin Roosevelt, but has often been the unspoken basis underlying the issuance of many executive orders.
As recently as 1995, when President Clinton unsuccessfully tried to defend the legality of his Executive Order 12954 prohibiting the hiring of permanent striker replacements by federal contractors, the U.S. Justice Department argued 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 statutue. Fortunately, the U.S. Court of Appeals for the D.C. Circuit, in only the second judicial invalidation of an executive order ever, rejected the position of the Clinton Administration.
2. What role would you assign to the public in the process of maintaining a proper balance between the branches when it comes to executive orders? In your view, is the current process transparent enough — and is the public engaged enough — to allow for that role to be realized?
Response:
The role of the public is to elect to the presidency only persons of character, who are capable of exercising self-control, and who view it as their supreme duty and responsibility to defend the U.S. Constitution and exercise only those limited powers provided to them under the U.S. Constitution. Further, the role of the public is to elect to Congress only persons of character, who themselves live under the limitations on their power set out in the U.S. Constitution, and who, therefore, without hesitation or impediment of hypocrisy, will make it their highest priority to meet power with power and stop in his tracks any president who exceeds his enumerated powers.
Having elected such persons to office, the public must hold those persons accountable to the trust that they have placed in them, demonstrating the willingness to throw out of office persons who prove unworthy of that trust. When presidents violate the Constitution, the public should support efforts by the House to impeach and the Senate to convict and remove from office, such unworthy presidents. Lastly, we have a Biblical duty to support our leaders in prayer (I Timothy 2:1-2).
I view the issue of making the executive order process more transparent as a red herring — a diversion from that which is important. For those executive orders which the president can constitutionally issue — those which provide proper direction to his subordinates within the executive branch of government — he should not have new additional, principally cosmetic, burdens imposed on him of notice, comment, or the like. With respect to those executive orders where the president has no authority, he must be stopped directly, certainly and rapidly by a Congress full of righteous indignation against a president who has violated his role.
When my father read the testimony that I provided to the House Rules Committee, he was concerned that I was too guarded and did not provide a sufficiently clear and forthright message as to the severity of the problem, and the need for action by Congress. To remedy that well-founded criticism, I would say that based on the study we have undertaken, the United States is rapidly headed toward tyranny, defined as our founding fathers defined that term — the union of the power to write the laws in the same person as the power to execute the laws. As Montesquieu stated: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.” Congress has not been on the sidelines, but rather has been a willing participant in this nation’s march toward tyranny.
It is my earnest hope that a sufficient number of members of Congress take it upon themselves, as their highest priority, to return the government to its constitutional limitations. If Congress does not respond to this threat to liberty, it is my hope that as the people of the United States learn how badly the Constitution has been violated on both ends of Pennsylvania Avenue, they will vent their fury at the ballot box against all elected officials who have failed their sacred trust.
