Congress Dodges Responsibility
To Stop Clinton's Royal Edicts

By William Perry Pendley

(Editor's note: William Perry Pendley is president and chief legal officer for Mountain States Legal Foundation, a public interest law firm specializing in issues of property rights and individual liberties.)

Recently, in a front-page story, The Washington Times reported on President Clinton's aggressive use of executive orders that "push the limits of presidential power." In what one expert referred to as "a deliberate plan to usurp legislative function," Clinton has been, in the words of a Congressional critic, "running roughshod over our Constitution."

Although Clinton's 301 executive orders are not a record, his willingness to issue orders for which he has no authority in a direct challenge to the prerogatives of Congress is unprecedented. No wonder longtime aide Paul Begala laughed, "Stroke of the pen, law of the land. Kind of cool!"

Much has been written of the pitiful inability of Congress to respond to Clinton's clear abuses of power, let alone reign him in. From inflated agency appropriations through illegal recess appointments to zero Congressional oversight of fraud, waste, and abuse in a host of agencies, Congress too often appears more like a bystander than a co-equal branch in the Constitution's system of checks and balances. While the passivity of Congress in the face of Clinton's aggression does severe damage to Congress' vital role and the individual rights that role is intended to protect, there are other constitutional implications that are not so obvious.

In September 1996, President Clinton, in clear violation of the Constitution and several federal statutes (not the least of which was the statute he cited as his authority), Clinton locked up 1.7 million acres of federal land in south central Utah. Over the next three years, the response of Congress was negligible. Attempts by westerners to limit Clinton's power went nowhere. Meanwhile, Congress adopted several minor legislative acts, including one to compensate Utah for state land taken by the Clinton decree, one to remove some small towns from the new area, and one to appropriate funds for federal agencies to manage that area.

Despite the non-controversial and inconsequential nature of these acts, they were enough for Clinton's lawyers to claim, in response to a lawsuit challenging Clinton's 1996 decree, that Congress had "ratified" Clinton's unilateral act. In other words, argued Clinton's lawyers, by passing minor bills, by passing appropriations legislation and by rejecting other legislation, and simply by inaction, Congress had approved of what Clinton had done, and as a result the lawsuit against Clinton had to be dismissed.

Wisely, the Utah federal district court refused. Concluding a strongly worded 40-page denial of Clinton's motion, the court declared: "If the court were to find congressional ratification based on the limited record in the present case it could quite possibly be the final act in a drama ... in which not one branch of government operated within its constitutional authority. It could be in effect an unintentional conspiracy of the three branches of government to do something none of them actually legally did and thereby rob the people of their voice."

Not all courts reject such arguments. Two-thirds of a continent away, a federal appeals court facing much the same question ruled for Clinton. In a lawsuit brought by Representative Helen Chenoweth, R-ID, and three colleagues challenging Clinton's ability to enact the American Heritage Rivers Initiative by executive order, first the district court and then a three-judge panel of the court of appeals ruled that the members of Congress could not sue Clinton for usurping the constitutional powers of Congress.

The appeals court relied, in part, on the failure of Congress to repeal Clinton's AHRI executive order. If Congress really objected to what Clinton did, said the court, it would have adopted legislation saying so!

How other federal courts will view the issue of congressional ratification remains to be seen. However, if more and more courts rule for Clinton on the issue, it will be members of Congress and not Clinton who will be crying out, "I'm relevant!" But it will be the American public who will suffer the greatest loss: the liberties guaranteed by the Constitution.