Begala's frank description of the manner in which the Clinton administration viewed the power of modern presidents to subvert legal process in this country through the misuse of executive order authority, was truly frightening.
Understandably, those Americans among us who savored a return to constitutional norms of governance, with due respect for the rule of law and for such concepts as separation of powers, breathed a huge sigh of relief with the election of George W. Bush in 2000.
Regrettably, our relief may have been premature.
Executive Order No. 13303, signed recently by President Bush, illustrates that this administration, like so many of its predecessors, has succumbed to the lure of easy power achieved through the "stroke" of the executive order pen. The continuing trend of using executive orders to legislate without having to bother with the "messiness" of the legislative process seriously subverts the checks and balances necessary for our magnificent system of government to work properly.
Since FDR, one administration after another, Republican and Democrat alike, has been able to accomplish this perversion of our representative democracy, based in large measure on three disturbing characteristics of modern American government.
First, we have become a nation largely ignorant of constitutional history, with little if any emphasis on civics in our schools and universities. Second, we are in modern decades governed by a Congress with little if any interest in conducting consistent or meaningful oversight of the Executive Branch to ensure it stays within lawful and constitutional bounds. Finally, all this is overseen by a federal judiciary far too deferential to Executive Branch power.
This particular executive order, signed with no fanfare by President Bush on May 22, 2003, early in the Iraqi operation, has been read and digested by perhaps one in every million U.S. citizens, and that's probably a liberal estimate. After all, how many Americans would pass up the chance to read the latest edition of Us or People in their doctor's office, in favor of the Federal Register, the periodical in which executive orders and other federal documents are regularly published?
Why the concern over Executive Order 13303? After all, on its face it relates only to matters in Iraq (a long ways away) in such a way as to simply protect Iraqi property: "Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq Has an Interest." I mean, who cares? Well, on taking the five minutes or so required to read this document, one quickly realizes its scope is broad and troubling.
This executive order grants to every company or other entity with any interest -- direct or indirect -- in Iraqi oil or any proceeds thereof, blanket immunity from any judicial process whatsoever. In layman's terms, according to this presidential "stroke of a pen," companies or individuals with any interest in Iraqi oil cannot be sued for anything, anytime, anywhere. Breathtaking? You bet.
On what authority did the president issue this executive order? After all, as envisaged by our first (and in many respects, greatest) president, George Washington, executive orders were to be narrow administrative documents dealing only with the internal management of the presidency. How, therefore, can a president with the "stroke of a pen" exempt from the reach of judicial process an entire class of persons and businesses (those having anything to do with Iraqi oil)? After all, Congress alone possesses the power to define federal court jurisdiction.
The authority cited by George W. Bush for Executive Order 13303 is simply that he's decided the matter of what to do with Iraqi oil -- who profits from it, who can use it, and who finances it -- constitutes "an unusual and extraordinary threat to the national security and foreign policy of the United States." The president goes on to simply declare this to be a "national emergency" and issues the blanket immunity.
After May 22, if some person or company -- perhaps a provider of, let's say, widgets to a large petroleum development company, let's say, Acme Corporation, which has been given an exclusive contract to oversee the rebuilding of Iraq's oilfields -- is not paid by Acme, then they're flat out of luck. The widget company can't go to court to enforce its contract, collect money owed it, or force Acme to honor its obligations. Any effort to seek redress in court would be met by the "executive order" defense. That is, unless the case is presented to a federal judge with the backbone and the intelligence to declare Executive Order 13303 unconstitutional, null and void. Or unless a reawakened Congress quickly steps in and passes a law voiding Executive Order 13303 as an unlawful usurpation of congressional law-making authority.
Alas, the chances are not great that either of these events will happen (for one thing, even if Congress awoke from its long somnambulism, President Bush would almost certainly veto any such legislation). And that is what is truly frightening about the state of government in America today.
-- Bob Barr is a former member of the United States House of Representatives.
-- United Press International's "Outside View" commentaries are written by outside contributors who specialize in a variety of important issues.
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