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08.16.2011 0

Executive Orders Threaten Representative Government and Federalism

Obama Signs an Executive OrderBy Rebecca DiFede – Executive orders have become a common topic in the news recently ever since Obama announced his intention to issue one that will require businesses and individuals bidding on federal contracts to reveal their political donations to the civil servants who are making the contract letting decisions. Many stand in opposition to this potential rule, but because of this power granted only to the President, it will be very difficult for Congress to overturn.

An executive order (E.O.) is a direct mandate from the President that is implemented by the Executive branch. It has the full force of law and can be enacted immediately. If that thought scares you, congratulations, you have a functioning brain.

Though this seeming carte blanche authority is not an explicit power in the Constitution, it is considered implicitly granted as an “executive power” in Article III, Section 1. It can be traced back to 1789 when President Washington gave the first ever executive order, and President Lincoln is considered to have issued the first officially numbered executive order.

To date, there are 13,581 executive orders which are used to manage operations within administration agencies, extend diplomatic immunity for international dignitaries, designate public land, set up affirmative action requirements, etc. Basically, anything the President can issue an executive order about anything that he/she decides is important and it must be honored. If it is particularly egregious, Congress or the Supreme Court could strike it down. But absent action, the executive order stands with the full weight of law.

Now because executive orders give the President freedom equivalent to giving a kid the keys to the Wonka Factory, sometimes they get carried away and issue edicts that are absolutely unfounded, and/or borderline tyrannical.

One fine example is E.O. 13132 which was enacted on August 4th, 1999 by then President Bill Clinton. Its purpose was to revoke E.O. 12612 (October 26th 1987) and significantly change the government’s approach to the relationship between the federal government and the states.

The purpose of the executive order was to make it easier to issue regulations against the states. In the 12 intervening years between the executive orders (1987-99), the number of pages added to the Federal Register increased by 15.2 percent from 114,337 to 134,992. But after that, it has increased another 22.5 percent to 165, 494, a record high.

The order also weakened a requirement that each regulation include an assessment of how it impacts states, making it unclear just by looking at the numbers how bad the damage has been. It may be incalculable.

There certainly is no shortage of laws to issue regulations from that will directly impact states. With new changes on the way with ObamaCare and the expansion of Medicaid, the Environmental Protection Agency’s carbon “endangerment” finding and federal light bulb standards, or the decade-old “No Child Left Behind,” three things (health care, energy emission standards, and education) that were never mentioned in the Constitution have been preempted by the federal government.

The impact of the Clinton executive order was to simply ignore the text of the Tenth Amendment, which says that all powers not enumerated in the Constitution belong to the states. Instead, the order sought to make it clear that regulations could be issued against the states whether or not they were clear uses of constitutional federal power.

The Clinton executive order essentially changed the relationship of federalism by discounting the rights and authority of state government’s giving the federal government absolute sway when their interests differ.

What is terrifying is if a president can so sweepingly change a concept that had existed since our nation’s founding with a single motion, what else might the office be capable of? With little to no opposition, a president can enact anything he wants, so long as the agencies pretend there is not a strong constitutional basis for the contrary. That is too much power over too many people for just one person to possess.

In our nation of checks and balances, we need to start making sure that the I’s are dotted and the T’s are crossed in these executive orders, otherwise we could end up blindsided with a rule that we have no control over, but that has full control over us.

Let’s hope that Congress takes a long, hard look at these laws that have been written into existence without a vote from our nation’s elected representatives, lest executive orders continue to expand our government’s power over we the people without even our state governments being able to stand in its way.

Rebecca DiFede is a contributing editor to Americans for Limited Government.

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