Clinton's EO from hell
Stealth executive order trashes 10th Amendment
By Sarah Foster
Ever since Americans got wind of the executive order on "Federalism," which the president signed without fanfare in England, May 14, the Internet's been humming with warnings about the threat it poses to the Constitution and our system of government. Word is out that EO 13083 represents a major power-grab by Clinton and his administration, and if it goes into goes into effect Aug. 12 as scheduled -- 90 days after the signing -- the U.S. Constitution will be so much confetti and Clinton can work his will on the body politic.
The home folks are way ahead of their elected officials on this one. To date, Democrat and Republican lawmakers alike appear oblivious to what this executive order does and have been quick to flick away constituents' concerns. Yet Republicans in particular might not be so sanguine if they realized that by issuing EO 13083 Clinton thumbed his nose at the entire Republican Party -- from former president Ronald Reagan to the GOP leadership, members of Congress, and everything they claim to represent --- and they don't even know it. If ignorance is bliss, Republicans on the Hill must be some of the happiest people around.
A harsh judgment? Let's take a look.
Clinton's order actually revokes an earlier one -- EO 12612, issued by President Reagan Oct. 26, 1987 -- and replaces it with a hideous parody, an EO from hell. It also revokes EO 12875, which Clinton himself issued on the same date, but six years later in 1993. EO 12875 promised an end to unfunded mandates and was basically a way to steal some thunder from the Right and Newt Gingrich's Contract with America. Since it was never really acted upon, we won't notice it's gone.
The revocation of the Reagan executive order is a different matter. That's serious.
Both EO 12612 and its replacement deal with federalism, that is the relationship of the states to the federal government and the distribution of power between the two as established by the Constitution. They are policy directives to executive departments and agencies of the respective administrations -- guidelines to federal bureaucrats and law enforcement for determining when a regulation or legislation has "federalism implications." Therefore, they address questions of jurisdiction, state sovereignty, the degree to which the federal government can intervene in state affairs, and the extent of federal regulatory activity allowable within a state. In a word -- the limits, if any, to the power of the federal government.
Whoever crafted EO 13083 used the framework of its predecessor and borrowed some of its wording, but any resemblance between them stops there. When it comes to policy and constitutional interpretation, the two executive orders -- though about the same subject -- are opposed at virtually every point.
For example, federalism itself -- according to Reagan's EO 12612 -- is "rooted in the knowledge that our political liberties are best assured by limiting the size and scope of the national government." Not surprisingly, EO 13083 doesn't talk about small government and political liberty, nor is there any explanation as to why federalism was adopted as a system in the first place, merely that it's somehow "premised" on a system of checks-and-balances. According to the Clinton view of federalism it's OK for the "supreme" government to be of gargantuan size and unlimited scope and power so long as it's "balanced."
By issuing his executive order, Reagan was trying to repair the damage to our political system wrought by Supreme Court decisions and the "mission creep" of federal agencies. Towards that end EO 12612 stresses state sovereignty, sets real limits on how far regulatory agencies can go in carrying out mandates by Congress, and above all, specifically reaffirms that the Tenth Amendment -- the one that says that powers not delegated by the Constitution to the national government, nor prohibited by it (the Constitution) to the States, are reserved to the States respectively, or to the people.
Consider these quotes from EO 12612:
"The Constitutional relationship among sovereign governments, state and national, is formalized in and protected by the Tenth Amendment to the Constitution."
"Acts of the national government ... that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the framers."
"In the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual states. Uncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level."
Clinton's EO 13083, on the other hand, never mentions state sovereignty, enumerated powers, nor for that matter the Tenth Amendment. Here's a major pronouncement on federalism by a sitting president with no reference to the Tenth Amendment!
The heart of both executive orders is the criteria for policymaking -- the whys and wherefores that justify federal intervention in state affairs. For Reagan this was to be undertaken only if there were "clear and certain constitutional authority" for any federal activity, and such activity must be necessitated by "a problem of national scope."
That's way too restrictive for Clinton and his vision of big-is-beautiful government. EO 13083 empowers bureaucrats and federal agencies in his administration to "determine" for themselves if there is "constitutional and legal authority" for whatever they want to do without concerning themselves unduly about "clear and certain constitutional authority." And why limit federal action to mere problem-solving? For Clinton federal action is justified by a host of "matters of national or multi-state scope." To quote a few:
When decentralization might increase the cost of government and impose additional burdens on the taxpayer.
When States would be reluctant to impose necessary regulations because of fears that regulated business activity will relocate to other States.
When placing regulatory authority at the State or local level would undermine regulatory goals because high costs or demands for specialized expertise will effectively place the regulatory matter beyond the resources of State authorities.
When the matter relates to Federally owned or managed property or natural resources, trust obligations or international obligations.
That last is the worst of the lot. The agencies already claim they have a right to manage natural resources on private land, and with EO 13083 in place as official policy it will be much harder for a property owner to launch a challenge in court or for a "reluctant" state or local government to tell the feds to go home to Washington.
As for the surreptitious reference to international obligations -- that should have set off alarm bells, at least among Republicans, but didn't. The president's not talking only about treaties (though those are bad enough, goodness knows), but about deals and arrangements he makes with foreign governments like China, or decisions he makes on his own. For instance, take the Kyoto Summit's Convention on Global Warming -- one of many treaties that advance the agenda for world-wide eco-fascism. Though unratified by the Senate, Clinton has adopted it as a policy for his administration. Since the convention is a creature of the UN, Clinton can put our country under its mandates and deflect criticism by saying he's only following obligations.
And as if the green agenda weren't bad enough, the rationale of international obligations increases Clinton's warmaking powers exponentially. He's effectively given himself unlimited authority to send the boys to Bosnia, Cyprus, India, Pakistan -- anywhere and whenever he wants to do a show of force number. No need to ask Congress nor even the UN for a go-ahead. With EO 13083 he can just call up the troops.
So what's the bottom line on EO 13083? Is it as bad as folks are saying? Yes, it is. Can it completely wipe out what's left of the Constitution? You bet. Can it be stopped? Sure. But don't count on it. Most members of Congress -- including Republicans -- don't want to face down the president, and that's what canceling this executive order would require. Worse, our congressmen don't seem to give a zip about the Constitution or the survival of this country. If they did, we wouldn't be in the mess we are and Clinton wouldn't be on his way to China. With EO 13083 in his pocket, you can bet he's laughing all the way to Beijing.
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