By Isaac MacMillen
President-elect Barack Obama has already signaled his determination to change the direction of the country by wielding the Executive Order pen to heavily influence foreign and domestic policy.
And one is reminded of the somewhat chilling edification of Executive Orders from top aide to former President Bill Clinton, Paul Begala: “Stroke of the pen. Law of the land. Kinda cool.”
Presently, there is talk of President-Elect Obama deciding it would be “kinda cool” to use an Executive Order to reinstate the executive ban on offshore drilling. President Bush terminated the ban while urging Congress to do the same—and they did. At the time of the reversal, on July 14th, the national price of unleaded fuel was $4.11 per gallon. Since then, it has sunk to its current average of about $2.24/gallon.
But, apparently, Mr. Obama’s chauffeur has not yet informed him of the price cut.
Were a ban to be reinstated on offshore drilling, the economic effects would be devastating, as the oil companies would raise prices again, seeking to insulate themselves against the inevitable decrease in future projected supply.
That’s just the beginning of the havoc the new President could wreak with a single “stroke of the pen.”
And, it touches upon an even more fundamental issue: Namely, the legitimacy of a president using massive Executive Orders to create policy. The fact is, there is no constitutional provision explicitly authorizing Executive Orders. There is a vague grant of “executive power” given in Article II, Section 1 of the Constitution and the statement “take Care that the Laws be faithfully executed” in Article II, Section 3. And, indeed, U.S. Presidents have issued Executive Orders since 1789.
Most such orders, however, have been issued by the President to administration officials simply to help direct the day-to-day operation of government. They have not historically been a used as coercive tool to override or obviate the prerogatives of the legislative branch – or the will of the people – on critical policy issues.
Two Presidents, however, have fallen into the trap of abusing Executive Orders to such an extent that the federal courts have had to intervene.
In 1953, President Harry Truman issued an EO in an attempt to place all steel mills in the country under direct federal control, prompting a rebuke from the Supreme Court. In Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952), the High Court ruled Truman’s Executive Order 10340 nationalizing the steel industry was invalid because it attempted to make law, rather than clarify or act to further a law put forth by the Congress or the Constitution
In 1995, when President Bill Clinton issued a EO 12954 directing federal agencies not to do business with contractors who hire permanent replacements for striking employees, the District of Columbia Circuit Court, in Chamber of Commerce v. Reich, similarly ruled the act illegal. The Court reasoned that the Clinton executive order would upset the balance struck by Congress on an issue that “surely goes to the heart of United States labor relations policy.”
Now, John Podesta, Obama’s administration chief, has told the Associated Press that Obama will act quickly through Executive Order because he thinks Obama “feels like he has a real mandate for change. We need to get off the course that the Bush administration has set.” That change of course, Obama advisors have suggested, could amount to as many as 200 EO’s in the first days of the new Administration.
According to the New York Times, “As Mr. Obama prepared to make his first post-election visit to the White House on Monday, his advisers were compiling a list of policies that could be reversed by the executive powers of the new president.”
Already, that list includes the aforementioned ban of domestic oil drilling, the lifting of the ban on stem cell research, and opening the door to full diplomatic relations with Cuba. What else is on the Obama EO agenda remains to be seen.
But one thing is certain: If Barack Obama moves as forcefully to rule by executive fiat as his aides now indicate, Executive Orders – long a gray area in the balance of power mix – may become the focal point of a presidential-legislative-judicial showdown the likes of which the Republic has rarely seen.
And “Stroke of the pen. Law of the land” may end up being not so “kinda cool” after all.
Isaac MacMillen is a contributing editor of ALG News Bureau.
