aren't enforced. Maybe there are just too many executive orders for the President to do that at every turn. Mr. SARGENTICH. Well, I agree with my colleagues. I think there are a number of orders that have mostly political or symbolic significance, not legal significance. But we live in a world in which symbols play a major role, and symbolic politics is a large part of politics. Having said that, I just want to reiterate a concern about oversight. It seems to me that there is a good deal of executive initiative taken to make law, that this is a function of the ambiguity of article II and of the position of the President in the government, which is that of an initiator, a person who can act quickly, much more quickly than Congress, simply because you have one person, not 535, and also because of the inherent tendency for executive branch advisors, of which I was one at one time, to protect the power of the President and to work to initiate in a legal way policies that the President wishes. Congress is a diffuse organization with a lot of collective action problems; and to get a handle on this it would be important to, I think, try to overcome some of those problems to have serious oversight. But it is, I think, a point of wisdom to recognize the difference between legally significant orders and just symbolic orders. Mr. HASTINGS. It seems to me that this whole debate, it has probably been ongoing for 210 years, is the notion of the division of powers, and that you should respect the division of powers that our Founding Fathers envisioned. Setting up a government that ultimately protects the people from government, that seems to be the basic principle. Now, inherent in that, it seems to me, is the notion that Paul Harvey frequently says on his radio program, that self-government is a work without self-discipline. That is something that we all have to take individually and act accordingly. But it appears, maybe with-well, I will just simply say, with this President, particularly in some of the environmental areas that the chairman of the committee mentioned within this reading last night, that this President is maybe stepping across that to try to enact something that the Congress collectively would not enact. he is not the first president to have thought that way I am sure, but, nevertheless, that seems to be a trend that we may be emerging to. Now, if I am right and that is indeed the start of a trend, is there anything that we ought to do or we ought to pursue other than just government oversight? I am sure this has been wrestled with for 200 years. Is there anything we should be looking at maybe specifically to address what may or may not be happening in the future? Mr. SARGENTICH. Sir, you know, I think that there are three or four clear things. One is oversight of particular cases. Another one is to look at statutes which are cited commonly as authority for some of the more controversial orders. The Procurement Act has been mentioned by two of my colleagues, and it certainly has been cited very broadly in discrimination contexts and in wage-price and all sorts of contexts and used broadly by presidents to do things. And so Congress, if it is concerned about some of these uses, can look at these omnibus stat utes and decide collectively whether it really wants them to be used as authority in this manner. Of course, the appropriations power is sort of the linchpin power of Congress. Congress has the power of the purse and presidents can't go ahead and do things that spending of money, at least for very long, without getting new appropriations. Report and wait provisions have also been mentioned. That is to say, in certain categories have the President report what is going on to Congress and wait 30 days, 60 or whatever for some feedback. Those are the traditional powers of Congress, oversight, narrow authority, appropriations, report and wait. But they are tremendous powers. I mean, ultimately, they are the fundamental powers of governing. Used selectively and carefully they can have tremendous, as Bob Bedell pointed out, impact as a practical matter. Mr. BEDELL. Just one thing to amplify what Tom said, is that Congress can preempt a field. It doesn't have to specifically do the same thing that the President would do but in a slightly different way in order to state its views on the matter and to make its case. It can preempt a field by showing sufficient action so that the constitutional authority of the President, if that is what he is relying on, as Justice Jackson indicated, would be at its lowest point and raise questions whether the President has the authority to move. So you don't have to try to figure out what the President is doing and then seek to counter that in advance of his doing it in some kind of game process. You can do it more broadly and more sweepingly, I believe, than that. Mr. KINKOPF. Just one caveat on the last point, and that is I think broad and sweeping action is problematic in this area because of constitutional limitations. For example, when it was contended that the Administrative Procedures Act applies to the President, the Supreme Court said we will not interpret it to do so because if we did it would raise significant constitutional problems. So we don't have actual decisional law telling us whether Congress could or could not, although we do have a decision indicating that it is, at the very least, extremely problematic enough so that Congress adopted what was not exactly a natural reading of the statute in order to avoid the problem. In another related case, where it was contended that the Federal Advisory Committees Act applies to the ABA committee, which advised on judicial appointees, the Supreme Court again read the FACA not to apply because it would raise significant constitutional questions. In that case, three justices were unwilling to rewrite the statute, in the way, ti had to be rewritten to achieve that result, and actually addressed the constitutional question it said it would violate the Constitution. That was an opinion written by Justice Kennedy, saying it would violate the Constitution to apply FACA when the President is deciding who to nominate under his constitutional power. The reason that broad responses, categorical responses to the executive order authority generally are problematic is that power is not a discrete thing. It is based sometimes exclusively in statute, sometimes exclusively in the Constitution. Most of the time it is a combination of the Constitution and statutes that give rise to the authority. But how much of that power is coming from the Constitution and how much from the statute will vary with every executive order, and the constitutional power of Congress to respond to the President then varies with respect to every executive order. And an across-the-board approach to dealing with the President's authority to issue executive orders then runs into that problem, that this is a very fact-specific inquiry constitutionally. So it is for that reason, I think, that the Supreme Court has been extremely reluctant to apply these blunderbuss acts to the President when the President is acting unilaterally. So I think you are right to be concerned, but the responses probably do need to be tailored to specific sorts of situations. Mr. Cox. Just briefly, while I certainly agree with everything that Professor Kinkopt said, that you have to be careful about the broad brush response because of the President's core of constitutional powers, some of the ideas we have been talking about this morning about broad mechanisms that would apply to all statutory-based executive orders, report and wait, requiring the statutory authority to be identified with particularity, would be things that would be within the power of Congress, would be things, I think, that over time would act to rein in the President. If he could no longer, for example, get away with simply saying, by the authority vested in me by the laws of the United States, without specification, and I think also would inform Congress, in the way we have talked about, about the Federal Procurement Act as sort of the classic example of the broad-based statute that gives the President enormous power that is often used very much at the margins of his power. If Congress saw over time that one or two statutes were being invoked by presidents over and over again as the basis for questionable executive orders, Congress then would be in a better position to focus on its own inquiry into amending the statutes. Mr. KINKOPF. If I might, just one footnote to Mr. Cox's observation. The problem with applying broad mechanisms even facially to statutes is that often when the President is deploying a power, a statute will be involved, even though what is really going on is an exercise of constitutional power. For example, when the President appoints a judge or an officer, the President is exercising a statutory power. Congress created that office. Congress vested the appointment power in the President alone with respect to an inferior office. With respect to a noninferior office, it is vested in the President by the Constitution, but it is still by Congress that, by statute, that created the office. In that situation, is the President exercising a statutory power? In some sense, yes, but for the statute there would be no power here. But that is precisely the situation where the Supreme Court-three justices said that Congress may not apply a broad mechanism and five other justices strongly indicated that the President could not and instead read the broad mechanism not to apply. Mr. Goss. I am going to have to say that we are all subject to the exigencies of the clock. I am going to thank you very much for your contributions. I would like to reserve the right to continue our dialogue in writing as questions occur to all of us. I want to thank this panel very much. I assure you of the committee's interest. The subcommittee suffers today. We have a rule on the floor at this moment, and several of our members are there doing that business, and that is why it is so clumsy and hard to get things done here. Because we have got this huge process that we have to deal with all the time, and it is hard to keep focused. And the President does not have quite that much baggage to carry I think when he does an executive order. We have learned a lesson. You have added a lot, and I appreciate very much your time here and tell you that we are hoping to further this. I don't know whether we will go into legislation or not. Perhaps that is a possibility. But I think that you have added very much to our sense of a pulse on this, and I appreciate that. I will dismiss this panel, and I will call the second panel. Thank you, gentlemen. Mr. Goss. The committee will call the second panel, Mr. William Olson, co-author, CATO research paper entitled "Executive Orders and National Emergencies." We are very pleased to have Mr. Olson with us here today. You are a panel unto yourself. Your prepared remarks will be accepted into the record without objection, and any enlightenment you wish to share with us would be most welcome. STATEMENT OF WILLIAM OLSON, CO-AUTHOR, CATO STUDY ATTORNEY-AT-LAW, Mr. OLSON. Thank you, Mr. Chairman and members of the subcommittee. I do want to thank you for the opportunity to testify before you regarding the impact of executive orders on the legislative process, and what I perceive to be the very real problem of presidential lawmaking by fiat, and I will stray from my prepared remarks to make some comments. I do want to begin with some comments on the prior panel. I was chaffing for a microphone while much of the discussion was going on. I knew Bob Bedell during the Reagan administration when I served there and have the highest regard for him and his comments. I have to say that I did disagree substantially with really only one witness, who was Professor Kinkopf, I believe, who appeared to indicate that there was no problem with respect to executive lawmaking when, in fact, I think, the instincts of the committee members, as expressed during your comments, are that there are problems here that are serious, constitutional, and have to be dealt with. And I want to encourage you and I hope my comments today will make the case that there is a serious problem, that the Constitution is being flaunted and the Congress is not doing an adequate job of defending its institutional prerogatives and that simply more of the same, more oversight, more hearings, more oversight is important only when the opinion of Congress is respected by the executive. If the executive does not respect the position of Congress, it is an empty threat. And certainly Mr. Dreier's quotation from U.S. News and what they characterize as President Clinton's showing the Congress who is boss is something that should raise the hair on the back of the neck of every self-respecting Member of Congress, and yet I am afraid that this is accepted much too often as simply the way the business is conducted. I do want to bring one other article to your attention that I came across in a Salt Lake City paper, and it had to do with a hearing that was held just last week and Secretary Babbitt's opportunity to testify with respect to the Grand Staircase Escalante National Monument, which has been alluded to before by Mr. Hastings. And he said in his testimony, "I am not prepared to sit back and let this Congress do what it has done for the past 7 years in these areas, which is virtually nothing." And he was referred to as "unusually feisty" and went on to say, "if Congress does not act and produce an acceptable bill protecting these lands, I will consider asking the President to use his power." Of course, his power, as they view it, was an obscure 1906 Antiquities Act which had never been used for the purposes that he had used it, and he looked at the Congress and said, the clock is running. At some point, oversight with an administration that is not particularly caring of the opinions of Members of Congress is less than effective, and I want to make some suggestions today. First of all, I have been researching and working in this area for a long while. Based on some earlier writings we had done, Roger Pilon of the CATO Institute had asked us to do a study for them, and we did undertake that, and very providentially that study is available today for the very first time, having gone to the printer at the end of last week. Our title has a more exciting title perhaps than the committee chose for its hearings. The title of our paper is, "Executive Orders and National Emergencies, How Presidents Have Come to Run the Country by Usurping Legislative Power." [Paper by William J. Olson and Alon Woll, submitted for the record:] |