Misuse of Authority

James L. Hirsen, J.D., Ph.D.

November 15, 1999

NEWSMAX.COM-There is one simple yet important concept that our founding fathers incorporated into our early documents that stands out in its profundity. It is that as a society, we must hold a healthy suspicion about any one person retaining too much authority.

This concern was deeply rooted within the minds and hearts of our forerunners, because our country had just declared independence from an oppressive ruler.

The authors of our government were determined to prevent an executive officer of the new country from taking on the same dictatorial attributes as the despot from which we had declared independence.

The original blueprint of governance had a built-in system of checks and balances. Just as our forefathers believed that authority should not be concentrated in one individual, so this tenet would also be applied to the collective divisions of government. Each arm of government was fashioned to counter excessive concentration of power in another branch.

This notion of separation of powers is pivotal to the integrity of the American system.

The framers were explicit and clear as to which branch of government would exclusively handle the lawmaking function. The very first sentence that follows the preamble to the Constitution reads as follows: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

Not only does Congress have the exclusive power of lawmaking, but the Constitution specifically enumerates those areas where this legislative grant may be utilized. So what power is the president given and how does the power relate to the manifestations called executive orders?

The Constitution gives an exclusive grant of power to the president called the "executive power.” This executive power is underscored in the Constitution in two passages. The first is contained in the president’s oath of office where he or she is to "faithfully execute the office of the President of the United States.” The second is found in the passage that instructs the president to "take care that the laws be faithfully executed.”

Both of these passages use the term faithful. It is presupposed that the president, according to his or her oath and consistent with this grant of power, will be faithful to the Constitution and to the people that he or she governs. In addition, the exclusive grant of power also assumes that the president is faithfully carrying out laws that are already in existence.

This is the essence of the power granted to the president. Lawmaking was never expected to be a function of the executive domain. But in examining President Clinton’s approach to governing, we find that he has been fairly liberal in his use of executive orders as an instrument to heist legislative power.

One of his first official acts was to issue a presidential memorandum that reversed the long-standing "Gag Rule.” This was a set of regulations that prohibited family planning clinics receiving federal taxpayer dollars from providing patients with information, counseling, or referrals concerning abortion.

The casual dismissal of an issue that carried with it such fervid intensity was an early indication of the manner in which the administration intended to expand its influence and accomplish its goals.

This initial foray into the realm of executive legislation laid the groundwork for future misuse of the president’s designated scope of authority.

A sea change occurred, though, in 1994 when the Democrats discovered that they were no longer the majority party in the House of Representatives. At the same time, President Clinton found himself unable to initiate policy. Beset by a series of scandals and faced with an adversarial Congress, Clinton had to devise another way to promote his policies. And to the nation’s detriment, he succeeded.

A willingness to use executive authority as a substitute for legislation, and the material nature of the orders themselves, are what led to the constitutionally debilitated condition in which our country now dwells.

In the articles to follow, we will see how this abuse is manifest in the matrix of emergency powers, the inner workings of the secret government, and the ever-tightening grip of international obligations.

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