Executive Orders - Edicts From a Presidential Throne: Part 1

The danger in regard to the rise of authoritarian government is that Christians will be still as long as their own religious activities, evangelism, and lifestyles are not disturbed. - Francis Schaeffer How Should We Then Live?¹

What do we call a government where a single individual has the power to create laws merely by uttering a few words or issuing some sort of written decree? Most of us would respond that this describes a monarchy. The founders of our nation clearly wanted to depart from the kind of despotic control that can be imposed by a royal ruling class and established a republic to achieve that. Authority was divided among three branches of government to provide checks and balances and avoid an inordinate concentration of power in any one branch.

In light of this history, it is highly disturbing to discover that there is a readily available tool available to the president which could facilitate a form of dictatorial rule. This instrument of power is known as an executive order. Executive orders have a worthwhile purpose when correctly applied, but their use has been corrupted over time, often-times for political gain.

Precisely how many executive orders have been issued throughout our country's history remains unknown, since executive orders issued before 1907 were unnumbered. Beginning in that year, a number was assigned to each executive order, and the orders were filed chronologically by the State Department. Estimates of unnumbered executive orders range from 15,000 to as high as 50,000.² Today executive orders contain up to five digits, and since 1907 over thirteen thousand have been issued.

But how did America get to the point where we have the potential for autocratic control by the executive branch of government masquerading as standard managerial procedure? This month and next, we will attempt to clarify some erroneously held notions about executive orders and set forth specific steps that should be taken to address this problem. It is our hope that conscientious citizens will become engaged in the reform process.

The Allure of Solitary Power

Our forefathers recognized the natural inclination of human beings to seek greater and greater concentrations of power, primarily because they held a Scriptural view of the nature of man consonant with the idea of original sin-that human beings are fallen creatures. And additional impetus was the fact that they and their ancestors had experienced the abusive results of such power in Europe.

Because of this, the founders retained a healthy suspicion of those who hold elective office and so they designed a system that would divide power between three branches of government. In this way, no one branch or single individual would ever be vested with unchecked authority. It is doubtful that the Founding Fathers ever envisioned a president having the ability to create law without even the semblance of representative government. Yet this is the level to which the modern use of executive orders has grown.

For those who would question the difficulty with this sort of governance, imagine for a moment that you are relaxing in your own home. Suddenly there is a knock on the door. Upon answering you are abruptly seized, ripped from your home, stripped of your private property, and carried away against your will to a concentration camp where you are held prisoner.

Where could something so awful like this happen? Nazi Germany? The Soviet Union? Cuba? Probably, but this happened in 1942 to some 100,000 citizens of our own country. The whole event occurred without public debate or approval from Congress. A simple signature was all that was needed to create such powerful and life-changing consequences for American citizens. President Franklin Delano Roosevelt provided his name. The instrument he used to unilaterally create law was Executive Order 9066.³

Abuse of Authority

Immediately following the Preamble of the Constitution, the first substantive provision of the original document states: "All legislative powers herein granted shall be vested in a Congress of the United States."⁴ The plain meaning of this clause is that there are no legislative powers vested in any other branch of government. This includes the executive branch. Therefore, the president should not be in the business of making laws. With this being the case, what does the Constitution prescribe as the president's role?

The Constitution bestows an exclusive grant to the president in what is designated as the "executive power."⁵ This is circumscribed further by language contained in Article II, Section 3 that states that presidents are "to take care that the laws be faithfully executed."

So, according to the Constitution, it is the job of the executive branch to faithfully carry out the laws that Congress has previously legislated. Consistent with this balance, executive orders and other forms of presidential directives should be used to transmit information between various divisions of the executive branch of the federal government, based upon existing authority under established law. Typical executive orders deal with government agencies and officials. They establish governmental bureaus, modify rules, change procedures, and enforce existing statutes. Examples of usage include establishing rules for executive branch employees, authorizing agency policies, granting presidential awards, and putting forth commands to cabinet officers.

However, this authority has been extended well beyond the original constitutional allowance to encompass a vast, ambiguous source of power, as some interpret the Constitution.

In In re Neagle (1890), the Supreme Court said that the president was not limited to laws that had been passed by Congress, but the president could administer laws based on those growing out of the Constitution itself, international relations, and "all the protection implied by the nature of the government under the Constitution."⁶

The potential for abuse through executive orders is contained within two primary spheres. First, these instruments may be used to illegitimately further the international agenda expressed in UN treaties.⁷ Secondly, executive orders may be used to increase presidential authority, thus enabling a president to legislate during periods of what he or she may deem to be a national emergency (which we'll cover in detail next month). The possibility for corruption within these realms cannot be overstated.

Illicit Implementation of Treaties

The Constitution requires that a treaty be ratified by two-thirds of the Senate in order to become the law of the land.⁸ However, this legal requirement has not deterred the Clinton administration. Astoundingly, President Clinton signed two executive orders during the impeachment process. E.O. 13107 was released while the proceedings in the House of Representatives were taking place in December, and E.O. 13112 was signed in the middle of the Senate trial in February. Interestingly enough, each of these executive orders promoted an aspect of the international agenda.

Executive Order 13107 is entitled "Implementation of Human Rights Treaties." This innocuous sounding name does not divulge the capacity for misuse that is inherent in the provisions of this executive order. E.O. 13107 speaks not only of ratified treaties, but "other relevant treaties," and sets up as the official policy of the U.S. government the implementation of unapproved international treaties.

It creates an Interagency Working Group chaired by a designee of the Assistant to the President for National Security Affairs to conduct the following functions, among others: (a) oversee legislation proposed by the Administration to make certain that it is in conformity with UN human rights initiatives; (b) pursue public "education" slanted towards acceptance of UN initiatives; and (c) design new methods of monitoring for the purposes of human rights obligations.

It seems oddly coincidental that this executive order was signed at a time when the country was profoundly distracted, a new Congress was in transition, and the holidays were upon us. These factors made it less likely that Congress would disapprove the executive order during the customary thirty-day period in order to prevent it from becoming law. Tragically, Executive Order 13107 allows various unapproved and so-called human rights treaties to be implemented without Senate approval, further eroding our national sovereignty.

The current administration has provided us with another example of its guileful use of the piecemeal approach to implementing unratified treaties-Executive Order 13112.

This executive order circumvents the established lawful processes by expanding the regulatory scope of federal agencies and continuing on what appears to be an unimpeded course toward the fulfillment of the provisions embodied in the UN document known as the Biodiversity Treaty. The Biodiversity Treaty was signed in 1993 and is crafted to appropriate an extraordinary percentage of our property rights through extensive land use regulation.

Executive Order 13112 refers to "invasive species" that are to be "controlled" by such means as "eradicating, suppressing, reducing, or managing" their respective populations. The problem is that the definition of invasive species is so sweeping and expansive, it could easily include domesticated livestock and pets, house plants, front lawns and neighborhood golf courses, food crops such as wheat, barley and rice, and yes, even that adaptable and resilient species known as Homo sapiens.

Under this executive order, federal agencies are not only directed to prevent the introduction of invasive alien species but also to control populations of such species. In addition, agencies must provide for restoration of native species and habitat conditions in those ecosystems that have been invaded. Predictably, a new bureaucracy, the Invasive Species Council, is established to accomplish these questionable tasks.

Executive Order 13112 opens the door for the most extreme elements of the environmental movement to extend their intrusive claws into the agricultural industry and beyond, to the potential detriment of our entire country. This order constitutes a clear misuse of presidential power and must be completely overhauled or revoked altogether. This stealth attack on property rights needs to be exposed and combated in order to restrain an overzealous government.

Confiscation with a Single Signature

In 1996 Congress attempted to enact the Heritage Areas Act, but there were not enough votes to pass it. Under this proposed bill, Congress would have had the authority to designate areas of land as "heritage zones." Not to be dissuaded by the bill's failed passage, the Clinton administration craftily repackaged the act and issued it as Executive Order 13061 on September 11, 1997. It "officially" established the American Heritage Rivers Initiative (AHRI)⁹ and essentially provided the means by which the federal government could take control over large parcels of land adjacent to U.S. rivers.

Prior to this time, the waters within the border of a state had been the exclusive province of state sovereignty. Initially, the program involved ten rivers, but the long-range plan is to add rivers on a continual basis. Eventually, over one hundred rivers will be added.

In 1971, the United Nations created the Man and Biosphere Program.¹⁰ This program was fashioned to ease the implementation of the goals of the Biodiversity Treaty.

In January 1996, President Clinton issued Executive Order 12986,¹¹ which was designed to protect the International Union for Conservation of Nature and Natural Resources from future lawsuits.

This is a privilege that is generally reserved for foreign diplomats. Since the group played a role in the creation and promotion of the Man and Biosphere Program, it received preferential treatment in return.

Stomping on State Sovereignty

On May 14, 1998, President Clinton's White House released a new executive order dealing with the scope and classification of power that resides in the states as opposed to the federal government. While in Birmingham, England, President Clinton signed Executive Order 13083. This order struck at the very constitutional foundations of the relationship of the federal government, state governments, and the people. It effectively voided the language of the Tenth Amendment of the Bill of Rights,¹² which reads: "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."¹³

This new executive order set forth nine overly broad guidelines to justify federal action that could directly interfere with state sovereignty. These criteria basically say that the federal government can interfere in the sovereignty of the states of the United States however and whenever it so wishes.

This executive order undermines everything for which the Constitution and the Bill of Rights stand. It literally removes any trace of state sovereignty that would present an obstacle to the international agenda. There is no legitimate justification under constitutional law, either historically or through precedence, for this kind of power grab.14

Diligence Pays Dividends

Only two months after Executive Order 13083 was signed, the chief of White House intergovernmental relations reluctantly met with representatives of state and local governments in a "stormy meeting."¹⁵ On August 5, 1998, President Clinton, under pressure from governors, mayors, and members of Congress, suspended Executive Order 13083 by issuing Executive Order 13095.

As an added bonus, the House voted to nullify the same executive order on the very same day.¹⁶ The primary reason this occurred was that individual citizens, with the assistance of the alternative media, communicated their outrage at the local, state, and federal level.

Recipe for Tyranny

The other primary use of executive orders involves the exercise of so-called emergency powers. This is perhaps the most dangerous possibility for the misuse of executive orders. The most obvious national emergency situation involves war, but other domestic and international crises, real (or perhaps even fabricated), have come into play to justify the use of executive orders. Next month we'll take a closer look at these specific executive orders, and also provide a plan of action we as individuals can take to address these problems and evoke the necessary changes. Stay tuned...

James Hirsen is a Professor of Law at Trinity Law School and an attorney in Orange County, California. His new book Government by Decree deals with the subject of executive orders.