From Issue #99-39
In The Federalists Revisited, Part I, we focused on the Federalist Papers and their exposition on the constitutional limitations of the judiciary -- specifically, that the notion of interpreting the "spirit" of the document was expressly condemned by the Founders.
In Part II, we focus on the executive branch and its broad violation of "original intent." Sociocrats, under the leadership of Bill Clinton, have aggressively sought to undermine the limitations the Constitution places on the federal government.
Mr. Clinton and his administration, more than any previous executive branch, have deliberately endeavored to redefine the role of the federal government in contempt of the Constitution. In 1992, Clinton admonished George Bush, saying, "If you won't use the powers of the presidency to help people, step aside. I will." He claimed boldly that he would use executive orders to "pick up where Congress leaves off," and has, accordingly, issued no less than 300 executive orders since taking office. "Stroke of the pen, law of the land. Kind of cool," says former Clinton adviser Paul Begala, dismissing objections of critics who despise the process as unconstitutional. "Clinton is an activist, muscular president."
Executive orders are themselves controversial, especially when they are used by the executive branch to effectively bypass the legislative process. The judicial branch has, in the "spirit" of the Constitution, upheld the constitutionality of executive orders, though legal scholars dispute their legality. Examples of Mr. Clinton's efforts to socialize the federal government are numerous, but perhaps none is more explicit in its violation of federalism than Mr. Clinton's controversial executive order to redefine "federalism."
While executive orders tend to be filed in obscurity, constitutional scholars and conservative activists raised a great storm of protest after The Federalist, and a few other conservative watchdogs, publicized Mr. Clinton's Executive Order 13083 in May of 1998. EO 13083 proposed to replace Ronald Reagan's 1987 Executive Order 12612 on federalism, which had significantly tightened controls on federal agencies in an effort to stem the tide of federal usurpation of state and local governing authority. Clinton's new order, which would authorize far-reaching regulatory authority over the states, was suspended August 6, 1998 due to protest, particularly from the National Governors' Association.
Utah Gov. Mike Leavitt protested most loudly: "This order (EO 13083) represents a 180-degree turn from all previous federalism aimed to restrain federal action over states. The current version of this new order is written to justify federal supremacy."
One year later, under cover of darkness, Mr. Clinton issued a "revised" version of 13083 as Executive Order 13132, which, as Heritage constitutional scholar Adam Thierer notes, is "...little more than the continued effort by the Clinton Administration to systematically take apart the legacy of Ronald Reagan."
Of the new order, Mr. Clinton says, "[It] will strengthen our partnership with State and local governments and ensure that executive branch agencies are able to do their work on behalf of the American people." Mr. Clinton packages all his most egregious constitutional violations under the aegis, "on behalf of the American people." The lesser violations he packages "for the children." Both are, of course, insidious lies.
"With a stroke of the pen, he may have done irreparable harm to individual rights and liberties," warns House Majority Leader Dick Armey. "Clinton seems bent on using his powers until someone says stop. Clinton is running roughshod over our Constitution." Constitutional lawyer William J. Olson notes, "It is a deliberate plan to usurp legislative function, and unfortunately most of the time he has faced a Congress that could be described as supine."
Eagle Forum's Lori Cole says the operative word in the new order is "consult," suggesting that federal agencies are to consult with state and local officials prior to implementing policies or regulations which preempt the constitutional authority of state and local governments. Cole says, "There are many loopholes in this executive order. Federal agencies can still basically do what they want. This just creates more federal bureaucrats to enforce it," Cole said.
"This is the area that is open to the most abuse," Thierer added. "The Clinton administration is attempting to use this to preemptively eliminate any chance there will be congressional legislative action on the federalism front. They absolutely do not want any legislative action on the federalism issue."
Fortunately, Rep. David McIntosh and Sen. Fred Thompson have both introduced similar House and Senate legislation "to ensure the liberties of the people by promoting federalism, to protect the reserved powers of the States, to impose accountability for Federal preemption of State and local laws, and for other purposes."
Ronald Reagan's original Executive Order 12612 stipulates, among other things, that: "Federalism is rooted in the knowledge that our political liberties are best assured by limiting the size and scope of the national government. ... In most areas of governmental concern, the States uniquely possess the constitutional authority, the resources, and the competence to discern the sentiments of the people and to govern accordingly. In Thomas Jefferson's words, the States are 'the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies'. ... Acts of the national government...that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers. ... In the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual State. Uncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level."
Mr. Clinton's revised order deleted President Reagan's warning "political liberties are best assured by limiting the size and scope of the national government." It also eliminated President Reagan's assertion that "States uniquely possess the constitutional authority, the resources, and the competence to discern the sentiments of the people and to govern accordingly," noting instead that, "The Framers recognized that the States possess unique authorities, qualities, and abilities to meet the needs of the people and should function as laboratories of democracy." And most notably, in stark contrast to President Reagan's assertion that, "In the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual State," Clinton says, "With respect to Federal statutes and regulations administered by the States, the national government shall grant the States the maximum administrative discretion possible...."
There you have it. Mr. Clinton views the states as nothing more than "laboratories of democracy" which should be "granted...the maximum administrative discretion possible." Clearly, today's Sociocrats see all power emanating from the federal government -- despite what that old Constitution says, or as the judicial branch would argue, "implies."
As we reminded the judiciary in Part I, The 10th Amendment states simply: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It also charges the president to "take care that the laws be faithfully executed." This administration has ignored both charges in deference to Mr. Clinton's desire for an omnipotent central government.
Executive Order 13132 -- federalism according to Bill Clinton -- will become law Nov. 4, 1999, unless Congress takes action to stop it.
TO CONSTITUIONAL ISSUES
1 Oct 1999