Debra J. Saunders
Al Gore finally has gotten a break. It's not that George W. Bush's pick for running mate isn't qualified. Dick Cheney most certainly is. A former member of Congress, presidential chief of staff and defense secretary, Cheney has a resume as hefty as his persona. Another plus: Cheney is a Beltway darling. Of course, now that he has been named to the ticket, Cheney has his detractors. The Dems would bash whomever Bush picked -- which is one of many reasons I am sorry Colin Powell will not be on the ticket. How delicious it would have been to watch Rep. Barney Frank and former Gov. Mario Cuomo take cheap swipes at this American icon. "It's funny how I've gotten myself manipulated into a place where I think he's a great choice," GOP consultant Sal Russo opined. "He really brings all the dimensions necessary. He's a solid guy. People respect him on both sides of the aisle. (Add) foreign policy and national defense experience to bolster Bush's credentials." His experience as President Ford's chief of staff means Cheney could be "a junior partner to a President Bush." I know Cheney is well qualified, yet I'm disappointed in the Cheney pick. I'm one of many Republicans who felt betrayed when President Bush raised taxes after Candidate Bush promised voters he wouldn't raise them. We don't want Son of Bush to be Bush Redux. Hence, I'd prefer a running mate who wasn't part of The Old Team Bush, someone who isn't a family retainer. It doesn't help that then-Rep. Cheney helped push the Reagan tax increase in 1982. Add that there is something unsettling about the head of the veep selection committee becoming the top pick. (I have since volunteered to head my department's pay raise committee if management ever names one.) Dubya already has a reputation of being the creature of his handlers; this choice only reinforces that suspicion. Then, there's the fact that Cheney's voting record, which ended in 1989, is so old that it reflects a different America. While the Dems are attacking Cheney for what they call extremist votes, Cheney's record isn't as far afield from Gore's as they make it out to be. Cheney had a 100 percent National Right to Life Committee anti- abortion voting record for his tenure in the House. When Gore left the House in 1984, the NRLC gave him an 84 percent rating. Still, it will be work explaining why, for example, Cheney voted in 1986 against economic sanctions to squeeze apartheid in South Africa. At the time, there was a genuine argument that there was a better way to deal with South Africa -- but history proved that argument wrong. This isn't a big issue for me, but Cheney's military deferments -- coupled with Bush's avoidance of combat by serving in the Texas Air National Guard -- won't play well with veterans as he runs against a ticket headed by a Vietnam vet. With gasoline prices hitting the car ceiling, Bush could have figured this wasn't the optimal moment to pick an oil company exec -- especially someone who cashed in his Halliburton shares for $5.1 million. Already, Dems have begun to attack Cheney's association with crude. And it won't help Bush that Gore has family ties to Occidental Petroleum, because Gore's anti-oil rhetoric -- despite what enviros consider a checkered record -- inoculates him. I shouldn't complain. Like many Repubs, I'm so anxious to see a Republican in the White House, I'd live with "arguably qualified." Perhaps I should simply be thrilled that Cheney is well credentialed and leave it at that. But Cheney's ascension suggests that the Bush League thinks the election is in the bag; that the pre-McCain cockiness is back. Yes, Al Gore finally got a break. executive order. As Tom Sargentich of American University's law school recently put it in testimony before the House Rules Committee, "There can be no doubt that presidential 'lawmaking' by executive order is a central phenomenon in modern governance." While in principle, presidents are not supposed to legislate, that power being reserved to the Congress under the Constitution, it has been recognized since the earliest days of the republic that the president's executive power necessitates some degree of de facto lawmaking. Notes Neil Kinkopf, a law professor at Georgia State, "Statutes are not self-enforcing. Every statute unavoidably conveys some discretion." From this fact inevitably flows a measure of presidential lawmaking via executive order. But clearly the power is not unlimited. "Executive orders are a source of law only when they draw upon the constitutional powers of the president or powers expressly delegated by Congress," Louis Fisher writes in his authoritative book, "Constitutional Conflicts Between Congress and the President" (Princeton University Press, 1985). "When executive orders lack statutory support, they have been held by the courts to be without the force and effect of law. Executive orders may not supersede a statute or override contradictory congressional expressions." An even better authority on this issue is William Howard Taft, who served both as president of the United States and later Chief Justice of the Supreme Court. In his book, "Our Chief Magistrate and His Powers," Taft said, "The true view of the Executive function is, as I conceive it, that the president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to exercise." The classic case of a president overstepping his bounds was when Harry Truman seized the steel industry in order to head off a threatened strike that would have hindered prosecution of the Korean War. The Supreme Court ruled that Truman's executive order was illegal. More recently, a federal district court struck down Bill Clinton's executive order regarding permanent striker replacements, a decision the administration chose not to appeal. While the problem of presidential lawmaking has been around for more than 200 years, there has been a trend in recent years for presidents to be increasingly vague about the legal basis for their executive orders. As Phillip Cooper, a professor of government at the University of Vermont, recently told the House Judiciary Committee, "There has been an increasing tendency since the 1970s for presidents to make sweeping claims of constitutional authority as the basis for their directives." The lack of specific statutory authority makes it harder for Congress and the courts to determine the legal basis for presidential actions. Also, claims of constitutional authority are harder to litigate, since they almost necessarily require a Supreme Court review. By contrast, claims of power based on specific statutory authority are more easily reviewed by lower courts. Bill Clinton, even more so than Richard Nixon, has stretched the power of executive orders to the limit, especially since the 1994 Republican takeover of Congress. As Robert Pear of the New York Times writes, "Mr. Clinton is continually stretching his executive and regulatory authority to put his stamp on policy. He has issued a blizzard of executive orders, regulations, proclamations and other decrees to achieve his goals, with or without the blessing of Congress." Elizabeth Shogren of the Los Angeles Times makes a similar observation: "The latest series of executive orders is illustrative of a president who has used his unilateral authority more robustly and frequently than most of his predecessors." She quotes New York University law professor David Schoenbrod as saying, "Clinton is pushing the envelope. He's constantly trying to take more power than Congress gives him." In an unusually candid comment, Clinton adviser Paul Begala said of Clinton's executive order policy, "Stroke of the pen. Law of the land. Kind of cool." And Clinton adviser Bruce Reed has said, "This president will be signing executive orders right up until the morning of Jan. 20, 2001." Many of Clinton's latest executive orders seem designed mainly to promote Al Gore's campaign. One problem with executive orders is that the courts have ruled that it is mainly Congress's responsibility to protect its own turf. If Congress acquiesces in a presidential usurpation of power without protest, the courts are inclined to let such action stand if challenged at a later date. Lately, Congress has awakened to the problem. Senator Mike Crapo (R-Idaho) has introduced S. 1795 to curb presidential legislating through executive orders. It would require presidents to cite specific constitutional or statutory authority when issuing orders, and provide for expedited judicial review of them. While this is not likely to end presidential usurpation of congressional power, it is a good start.

Debra J. Saunders


 
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