welcomed, and HCR 30 has helped focus attention on the problem. But even if passed, the resolution would not remedy the problem-and could even divert attention from a real solution.

Since HCR 30 has been introduced as a concurrent resolution, its passage would not have the force of law. Concurrent resolutions are not presented to the president for signature; they represent the sense of Congress only. They "are to be used for such purposes as to correct the enrollment of bills and joint resolutions, to create joint committees, to print documents, hearings, and reports, and so forth."

157

Another concern with HCR 30 is that the purported limitation on expenditures is not self-enforcing. The president can easily assert that the "purpose" of any given executive order is harmonious with prior appropriations.

Finally, HCR 30 could be easily evaded. There are many types of presidential directives; HCR 30 applies to only one: executive orders. Or, in the alternative, if HCR 30 is intended to affect all presidential directives, the resolution fails to adequately define the object of its regulation. An effective remedy must address the great creativity presidents have demonstrated in imposing their policies on the country without benefit of constitutional or statutory authority.

HR 2655. Given those limitations, a more conventional legislative measure has just been introduced under the sponsorship of Representatives Paul and Metcalf, HR 2655, the Separation of Powers Restoration Act. Following the approach taken by Congress in 1976 in the National Emergencies Act, HR 2655 would eliminate the powers of the president and his subordinates that are derived from currently existing declarations by terminating all such declarations. Further, under HR 2655 the authority to declare national emergencies would be vested exclusively in Congress, making it impossible for one person, by the mere stroke of a pen, to plunge the nation into a state of emergency.

HR 2655 also requires that all presidential directives identify the specific constitutional

or statutory provision that empowers the president to take the action embodied in the directive, failing which the directive is deemed invalid. In addition, the application and legal effect of any directive that does cite such authority are limited to the executive branch unless the cited authority does in fact authorize the embodied action. And, HR 2655 would establish, for the first time, a statutory definition of a presidential directive.

Finally, recognizing that federal courts have severely limited standing to challenge presidential directives, the bill would grant standing (1) to members of Congress if the directive infringes on congressional power, exceeds a congressional grant of power, or fails to state any authority, (2) to state and local officials if the directive infringes on their legitimate powers; and (3) to “any person aggrieved in a liberty or property interest adversely affected directly by the challenged Presidential order."

Solving the problem of presidential lawmaking by statute will doubtless require overriding a presidential veto; but if that can be done, the result will be more sure and lasting than any attempt by concurrent resolution. Such a statute would provide a powerful weapon for members of Congress and others to wield to defend their authority and their rights under the Constitution, even if the courts must ultimately give force to the restraints the statute spells out. If our system of

constitutional checks on power is to be preserved, Congress cannot, for the sake of expediency or efficiency, continue to ignore, much less assist, presidential efforts to circumvent those checks. Powers were separated not to make government more efficient but to restrain the natural bent of men, even presidents, to act as tyrants.

Conclusion

St. George Tucker, a prominent early American jurist, understood well the point at issue in both the division and the separation of powers:

Powers were separated not to make government more efficient but to restrain the natural bent of men, even presidents, to act as tyrants.

1. 144 Congressional Record, December 18, 1998, H11817.

2. House Committee on Resources, Establishment of the Grand Staircase-Escalante National Monument by President Clinton on September 18, 1996: Hearing before the House Committee on Resources, 105th Cong, 1st sess., April 29, 1997, p. 12.

3. Elizabeth Shogren, "Clinton to Bypass Congress in Blitz of Executive Orders," Los Angeles Times, July 4, 1998, p. A1.

4. William Jefferson Clinton, "Clinton Says He Will Use 'Authority of the Presidency' to Press Agenda," White House bulletin, July 6, 1998. Notwithstanding Clinton's aggressive rhetoric, and the scope of many of his efforts, his use of

executive orders, measured simply by the numbers, has not been out of line with that of several of his predecessors. See Table 1.

5. NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345-46 (1938), quoted in U.S. Chamber of Commerce v. Reich, 74 F.3d 1322, 1332 (D.C. Cir. 1996).

6. Michael H. LeRoy, "Presidential Regulation of Private Employment: Constitutionality of Executive Order 12,954 Debarment of Contractors Who Hire Permanent Striker Replacements," Boston College Law Review 37 (1996):

279-80.

7. Federal Property and Administrative Services Act, 40 U.S.C. § 471 et seq.

8. Reich.

9. Ibid. at 1332. 10. Ibid. at 1333. 11. Ibid. at 1337.

12. House Committee on Resources, Behind Closed Doors: The Abuse of Trust and Discretion in the Establishment of the Grand Staircase-Escalante National Monument, Committee on Resources

Report, 105th Cong, 1st sess., November 7, 1997, http://www.house.gov/resources/105cong/parks/ staircase.htm. See also 142 Congressional Record, September 18, 1996, S10827-31, September 20, 1996, S11084-87, and September 30, 1996, S11832-33.

13. House Committee on Resources, Bebind Closed Doors. In March 1997 the committee requested that the administration supply documentation about the identification and desig nation of this national monument. The request was ignored, as was an October 1997 subpoena. As a contempt resolution was being drafted, the documents were finally supplied.

14. Kathleen McGinty, Draft letter to Secretary of the Interior Bruce Babbitt, March 19, 1996. Ibid.

15. Jim Rayburn and Jerry Spengler, "Counties' Suit over Staircase Advances," Deseret News, August 18, 1999, Deseret News Archives, http://www.desnews. com/cgi-bin/libstory_reg?dn998:9908180134.

16. See, for example, David Almasi, "American Heritage Rivers: A Trojan Horse," · Washington Times, July 25, 1997.

17. House Committee on Resources, Oversight ing on the Clinton Administration's American Herita Rivers Initiative ("AHRI Hearings"]: Hearing before i House Committee on Resources, 105th Cong., 1st sess.,

July 15, 1997, p. 21, http://commdocs.house.gov/ committees/resources/hi42836.000/hi42836_0fhem

18. Ibid., pp. 100-101, response of Kathleen McGinty.

19. "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."

20. AHRI Hearings, p. 3.

21. Ibid., p. 64

22. House Committee on Resources, Terminate Further Development and Implementation of the American Heritage Rivers Initiative, 105th Cong., 2d sess., October 6, 1998, H. Rept. 105-781, pp. 2-3. 23. Raines v. Byrd, 521 U.S. 811 (1997).

24. EO 12612, sec. 2(i).

25. Ibid., sec. 3(b)(2).

26. EO 13083, sec. 3(d).

(1) When the matter to be addressed by Federal action occurs interstate as opposed to being contained in one State's boundaries; (2) When the source of the matter to be addressed occurs in a State different from the State (or States) where a significant amount of the harm occurs; (3) When there is a need for uniform national standards; (4) When decentralization increases the costs of government thus imposing additional burdens on the taxpayer, (5) When States have not adequately protected individual rights and liberties; (6) When States would be reluctant to impose necessary regulations because of fears that regulated business activity will relocate to other States; (7) 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; (8) When the matter relates to federally-owned or managed property or natural resources, trust obligations, or international obligations; and (9) When the matter to be regulated significantly or uniquely affects Indian tribal governments.

27. Mike Leavitt, Statement at Hearing before the House Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, 105th Cong., 2d sess., July 28, 1998.

28. See, for example, Fred Thompson, "BigGovernment Power Grab," Washington Post, August 7, 1998, p. A25.

29. See, for example, Sen. Fred Thompson, "Thompson Reacts to Administration's New Federalism Order. Calls on White House co Support Federalism Legislation." Press release, August 5, 1999. Among other things, Senator Thompson notes that the new order requires agencies issuing new regulations to conduct "Federalism Summary Impact Statements" only when the regulations are "not required by statute." "But most of the important rules that concern state and local government-and everyone else are required by statute," Thompson points out, which means that that requirement in the order will come to almost nothing.

30. To deal with issues of national security and foreign policy, presidents issue classified executive orders. Clinton's are known as presidential decision directives (PDDs). The public learns about such orders, for the most part, only from veiled references during White House press briefings, the release of sanitized summaries, and, occasionally, the disclosure by the National Security Council of incomprehensible redacted versions in response to Freedom of Information Act requests. Members of Congress have complained that they too are denied access to classified PDDs. One PDD (no. 8, June 10, 1993), relating to the declassification of POW/MIA records, was never classified, apparently, and has been publicly released. Portions of a PDD on counterterrorism (PDD, no. 39, June 21, 1995) were voluntarily disclosed in response to a Freedom of Information Act request. Another classified PDD (no. 17, December 11, 1993) was, to the consternation of the Clinton administration, published in a recent book (Bill Gertz, Betrayal, Regnery, 1999). The best available source of information on PDDs is the Web site of the Federation of American Scientists, http://www.fas.org.

31. See, generally, Cliff Kincaid, "How Clinton Waged War through Executive Order," http://www.usasurvival.org.

32. James Bennet, "True to Form, Clinton Shifts Energies Back to U.S. Focus," New York Times, July 5, 1998, sec. 1, p. 10. A complete list, to date, of Clinton's 304 executive orders can be found in Appendix 1 of the electronic version of this study, which is posted at the Cato Institute Web site, www.cato.org.

33. Executive orders and proclamations are the best known of the 24 types of presidential directive: administrative orders, certificates, designations of officials, executive orders, general licens

es, interpretations, letters on tariffs and international trade, military orders, national security action memoranda, national security council papers, national security decision directives, national security decision memoranda, national security directives, national security reviews, national security study memoranda, presidential announcements, presidential decision directives, presidential directives, presidential findings, presidential reorganization plans, presidential review directives, presidential review memoranda, proclamations, and regulations. See Harold C. Relyea, Presidential Directives: Background and Review (Washington: Congressional Research Service, 1998), table of contents. Several of those forms of directive have not been used extensively. Ibid., pp. CRS-4, CRS-6, CRS-7.

This study follows Congressional Research Service practice and refers to such instruments as "presidential directives."

34. President Abraham Lincoln issued the first presidential directive to be formally designated an "executive order." That October 20, 1862, order established federal courts in parts of Louisiana held by federal troops. Senate Special Committee on National Emergencies and Delegated Emergency Powers, Executive Orders in Times of War and National Emergency, 93rd Cong., 2d sess., 1974, Committee Print, p. 2.

35. See, for example, Federalist 48 (Madison), student ed. (Dubuque, Iowa: Kendell-Hunt Publishing, 1990), p. 256.

36. See M. J. C. Vile, Constitutionalism and the Separation of Powers, 2d ed. (Indianapolis, Ind.: Liberty Fund, 1998) for perhaps the most comprehensive treatment of this fundamental constitutional doctrine.

37. John Locke, “An Essay concerning the True Original Extent and End of Civil Government" (1690), chap. 18, sec. 199, in John Locke, Two Treatises of Government, (Cambridge: Cambridge University Press, 1997), p. 398. Emphasis in the original.

38. John Contrubis, Report for Congress: Executive Orders and Proclamations, Congressional Research Service, 1995, p. CRS-1. However, a bill pending in Congress, HR 2655, would establish a statutory definition. See discussion on HR 2655 later in this paper.

39.49 Stat. 501.

40. Senate Special Committee on National Emergencies, Executive Orders in Times of War, p. 5. 41. Ibid., p. 3.

42. William Jefferson Clinton, "Privately Funded

Abortions at Military Hospitals," Memorandum for the Secretary of Defense, in Weekly Compilation of Presidential Documents, January 22, 1993, http://www.pub.whitehouse.gov/uri-.../oma.eop.

gov.us/1993/1/26/1.text1.

43. William Jefferson Clinton, "We Must Free Science and Medicine from the Grasp of Politics," Remarks by the President during Signing of Presidential Memoranda, in Weekly Compilation of Presidential Documents, January 22, 1993, http:// www.pub.whitehouse.gov/uri-.../oma.eop.

gov.us/1993/1/25/1.text.1.

44. William Jefferson Clinton, "AID Family Planning Grants/Mexico City Policy," Memorandum for the Acting Administrator of the Agency for International Development, in Weekly Compila tion of Presidential Documents, January 22, 1993, http://www.pub.whitehouse.gov/uri-.../oma.

eop.gov.us/1993/1/25/3.text.1.

45. William Jefferson Clinton, "Importation of RU486," Memorandum for the Secretary of Health and Human Services, in Weekly Compilation of Presidential Documents, January 22, 1993, http:// www.pub.whitehouse.gov/uri-.../oma.cop.gov.us/

1993/1/26/2.text.1.

47. Senate Special Committee on National Emergencies, Executive Orders in Times of War, p. 6.

48. Most Supreme Court cases involving presidential directives address the substantive effect of the directive; rarely do the cases reach the legality or constitutionality of the issuance of the directive itself. Ibid., p. 36.

49. Korematsu v. United States, 343 U.S. 214, 248 (1944) (Jackson, J. dissenting).

50. Armstrong v. United States, 80 U.S. 154, 156 (1871).

51. "An act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions," 1 Stat. 264-65. The president could call out the militia of a state to suppress insurrections by "combinations too powerful to be suppressed by the ordinary course of judicial proceedings." Ibid.

52. The president's power "to call forth and employ such members of the militia of other any State or States... as may be necessary" was available only "if the Legislature of the United States

shall not be in session." Ibid. A successor statute, which does not limit the president's power to calling out the militia only when Congress is not in session, is found at 10 U.S.C. § 332.

53. 300 U.S. 139.

54. "[A]gency regulations implementing federal statutes have been held to pre-empt state law under the Supremacy Clause." Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979).

55. Letter Carriers v. Austin, 418 U.S. 264, 273 (1974). Inexplicably, a federal appeals court subsequently stated that EO 11491 "cannot attain the status as a 'law of the United States."" Local 1498, American Federation of Government Employees V. American Federation of Government Employees, AFL/CIO, 522 F.2d 486, 491 (3d Cir. 1975).

56. Senate Special Committee on National Emergencies, Executive Orders in Times of War, p. 31. 57. Dames & Moore v. Regan, 453 U.S. 654 (1981). 58. President Reagan also implemented the terms of a treaty the Senate had rejected. In The Conservative Caucus v. Reagan, C.A. No. 84-183, U.S. District Court for the District of Columbia, the plaintiff sought to prevent Secretary of Defense Casper Weinberger from unilaterally implementing, pursuant to a secret executive agreement, the unratified SALT II treaty. Reagan had been frustraced by opposition to the treaty, led by Sen. Jesse Helms (R-N.C.). Determined to implement the SALT II agreement, Reagan administratively thwarted the Senate's constitutional role. The suit was dismissed in the U.S. District Court on the basis of a finding that the plaintiff lacked standing to bring suit.

59. 182 U.S. 222.

60. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952). Implementation aside, executive orders are also subject to direct constitutional challenge. In Ozonoff v. Berzak, 744 F.2d 224 (1st Cir. 1984), the Court of Appeals determined that EO 10422 (issued by President Truman), as applied to the plaintiff Ozonoff, violated the First Amendment. Ozonoff sought a position with the World Health Organization; under EO 10422, loyalty investigations were conducted of Americans seeking to work at the United Nations or with other public international organizations, including the World Health Organization, that enter into special loyalty screening agreements with the United States.

61. Chrysler Corp. v. Brown, 441 U.S. 281, 307-8 (1979). Applying Chrysler, the U.S. Court of

Appeals for the Fourth Circuit ruled that the federal government lacked statutory authority to apply EO 11246 to the Liberty Mutual Insurance Company, which underwrites workers' compensation insurance for many companies that contract with the government. Liberty Mutual Insurance Company v. Friedman, 639 F.2d 164 (4th Cir. 1981).

62. Appendix 3 of the electronic version of this study, posted at the Cato Institute Web site (www.cato.org), is a list of executive orders later modified or revoked by legislation.

63. Relyea, Presidential Directives, CRS-1. Emphasis

omitted.

64. 1 Annals of Cong. 90, 92, 949-50 (Joseph Gales, ed., 1789).

65. Ibid.

66. See the discussion in Myers v. United States, 272 U.S. 52, 137-39 (1926).

67. 1 Stat. 381-84.

68. Contrubis, Report for Congress, CRS-24 through CRS-25.

69. Ibid., p. CRS-24.

70. Abraham Lincoln, Letter to William H. Herndon, February 15, 1848. Quoted in Respectfully Quoted, ed. Suzy Platt (Washington: Library of Congress, 1989), p. 281. Emphasis in the original.

71. Lincoln's proclamation of April 15, 1861, may have had an unasserted statutory basis. Although the proclamation did not cite any statutory authority, it called for 75,000 militia to suppress "combinations” against the laws of the United States and to execute those laws. Thus, the proclamation may have relied on "An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the Act now in force for these purposes." 1 Stat. 424-25 (February 28, 1795).

President Lincoln commanded "the persons composing the aforesaid combinations to disperse," possibly pursuant to section 3 of that statute, which said that "whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time." Ibid.

72. See The Prize Cases, 67 U.S. 635, 684 (1863) (Nelson, J., dissenting).