SPEAKERS CONTENTS INSERTS
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72–142 PS
2001
EXECUTIVE ORDERS AND PRESIDENTIAL DIRECTIVES
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
MARCH 22, 2001
Serial No. 10
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250
Mail: Stop SSOP, Washington, DC 20402–0001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN N. HOSTETTLER, Indiana
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MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
TODD R. SCHULTZ, Chief of Staff
PHILIP G. KIKO, General Counsel
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Subcommittee on Commercial and Administrative Law
BOB BARR, Georgia, Chairman
JEFF FLAKE, Arizona, Vice Chair
GEORGE W. GEKAS, Pennsylvania
MARK GREEN, Wisconsin
DARRELL E. ISSA, California
STEVE CHABOT, Ohio
MELISSA HART, Pennsylvania
MELVIN L. WATT, North Carolina
JERROLD NADLER, New York
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
MAXINE WATERS, California
RAYMOND V. SMIETANKA, Chief Counsel
SUSAN JENSEN-CONKLIN, Counsel
ROBERT N. TRACCI, Counsel
ANTHONY R. FOXX, Minority Counsel
C O N T E N T S
HEARING DATE
March 22, 2001
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OPENING STATEMENT
The Honorable Bob Barr, a Representative in Congress From the State of Georgia, and Chairman, Subcommittee on Commercial and Administrative Law
The Honorable Melvin L. Watt, a Representative in Congress From the State of North Carolina
WITNESSES
The Honorable James V. Hansen, a Representative in Congress From the State of Utah
Bruce Fein, Esq., Former Associate Deputy Attorney General and Constitutional Law Expert
Todd F. Gaziano, Senior Fellow in Legal Studies and Director, Center for Legal and Judicial Studies, The Heritage Foundation
Kenneth R. Mayer, Professor of Political Science, University of Wisconsin-Madison
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Behind Closed Doors: Majority Staff Report: Prepared Statement
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The Honorable James V. Hansen, a Representative in Congress From the State of Utah: Prepared Statement
The Honorable Orrin G. Hatch, a U.S. Senator From the State of Utah: Prepared Statement
Bruce Fein, Esq., Former Associate Deputy Attorney General and Constitutional Law Expert: Prepared Statement
Todd F. Gaziano, Senior Fellow in Legal Studies and Director, Center for Legal and Judicial Studies, The Heritage Foundation: Prepared Statement
Kenneth R. Mayer, Professor of Political Science, University of Wisconsin-Madison: Prepared Statement
APPENDIX
Material submitted for the record
EXECUTIVE ORDERS AND PRESIDENTIAL DIRECTIVES
THURSDAY, MARCH 22, 2001
House of Representatives,
Subcommittee on Commercial
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and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:05 a.m., in Room 2237, Rayburn House Office Building, Hon. Bob Barr [Chairman of the Subcommittee] presiding.
OPENING STATEMENT OF CHAIRMAN BARR
Mr. BARR. I would like to call to order this session of the Subcommittee on Commercial and Administrative Law. The subject matter of our hearing today, with a very distinguished panel, will be executive orders and presidential directives.
Executive orders are the primary means by which the President makes official statements concerning the function and management of the Executive branch of the Federal Government. Executive orders have been used by every President since George Washington.
The President's authority to issue executive orders derives from powers both enumerated, implied and inferred by the Constitution, as well as from authority delegated to the President by Federal statute.
In the overwhelming majority of cases, executive orders and proclamations are an appropriate public way of guiding the actions of numerous Federal agencies and other components of the Executive branch. While thousands of executive orders have been issued over the last two centuries, Federal courts have been extremely reluctant to challenge executive authority. When executive orders are issued without a constitutional or legal basis, they implicate the Separation of Powers Doctrine that underpins divided government. The Separation of Powers Doctrine allocates responsibility to each branch to energetically exercise and zealously defend its constitutional prerogatives.
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In the proper exercise of its authority, Congress has an ongoing responsibility to affirm its lawmaking primacy and to closely monitor executive action that might usurp its exclusive legislative mandate.
Advocates of an assertive executive have contended a President should be accorded broad deference to issue executive orders, even in the absence of clear legal authority. They have argued the President is uniquely capable of formulating national policy and that executive orders are an efficacious way of circumventing the parochial institutional intransigence of Congress.
This attitude was all too prevalent during the Clinton administration. Former President Clinton's senior domestic policy advisor, Paul Begalla, summed it all up when he remarked, ''Stroke of a pen, law of the land, kind of cool.''
Well, it's not kind of cool. Fidelity to constitutional self-government requires adherence to the formal legislative process the framers skillfully drafted into our founding document. When Congress yields its delegated powers to the President, or fails to check executive overreach, it not only undermines its own power, but mars the constitutional fabric carefully tailored by the Founders to preserve and protect our individual liberties.
Former President Clinton's designation of millions of acres of Federal land as so-called ''national monuments'', under the purported authority of the Antiquities Act of 1906, raises a host of legal questions that Congress has a responsibility to address. First, were these designations consistent with the Antiquities Act and Federal statutes governing Federal land management generally? Second, are there steps Congress can take to address potential abuses of the authority granted to the President under the Antiquities Act? And, how can Congress reassert its constitutional responsibility to manage Federal lands?
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We examine these issues today not to embarrass or impugn the motives of any former President, but to keep faith with the solemn responsibility the Founders entrusted to each of us in Congress; that is, to vigorously assert our legislative authority and to closely monitor activities of the Executive branch which might threaten it.
Before we begin, I would like to personally welcome a fellow Member of Congress, Chairman Jim Hansen of the House Resources Committee, as well as the other distinguished witnesses who will present their views this morning, who we will introduce very shortly.
What I would like to do at this time is recognize Miss Baldwin for any opening statement.
Ms. BALDWIN. I have no opening statement at this time, thank you.
Mr. BARR. Okay, thank you.
Does the gentleman from Pennsylvania, the distinguished former Chairman of this panel, have an opening statement?
Mr. GEKAS. No. I'm just watching the Chairman——
Mr. BARR. You would know.
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Mr. GEKAS [continuing]. To see if he measures up to the standards that we set the last 6 years. [Laughter.]
No, I'm grateful for the Chairman's choice of subjects for this first hearing, and I will be eager to hear the witnesses. Thank you.
Mr. BARR. Thank you very much.
At this time, since this is the first convening of this panel under new leadership, I would like to formally on the record commend the gentleman from Pennsylvania for his very, very distinguished stewardship of this Committee for the last 6 years. You did set very high standards, indeed, and we hope to and anticipate doing everything we can to measure up to those standards which you have set. We thank the gentleman very much for his leadership and his continued involvement with this very, very important Subcommittee of the Judiciary Committee.
I would like at this time to introduce the panel. First, Congressman Jim Hansen was elected to the United States Congress from Utah's 1st Congressional District in 1980, and is now serving his 11th term in the Congress. Congressman Hansen is the Chairman of the House Resources Committee and also serves as a senior member of the Armed Services Committee.
Previous public service includes four terms in the Utah House of Representatives, where he was Speaker of the House his last term. Prior to serving in the Utah Legislature, he served in local government as a three-term city councilman for Farmington, UT.
Mr. Hansen served in the United States Navy during the Korean war. Before becoming a Member of Congress, he was an independent insurance agent and president of a Utah land development company. He is a graduate of the University of Utah.
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Mr. Bruce Fein. Bruce Fein is a graduate of Swathmore College and an honors graduate of Harvard Law School. Mr. Fein is a nationally recognized authority on constitutional and international law. He served as Associate Deputy Attorney General under former President Ronald Reagan, General Counsel to the Federal Communications Commission, and as Counsel to the Congressional Iran-Contra Committee. He has also served at the Department of Justice, where he supervised litigation of the Criminal Division.
Mr. Fein has been a visiting scholar at The Heritage Foundation and an adjunct scholar at the American Enterprise institute. Mr. Fein is also a weekly columnist for the Washington Times and a guest columnist for USA Today, as well as many other important publications.
According to the National Law Journal, Mr. Bruce Fein is one of the sixth most quoted attorneys in the mass media, and has more than 500—he can update us on that number today—television and radio appearances to his credit.
Mr. Todd Gaziano is a Senior Fellow in Legal Studies, and Director of the Center for Legal and Judicial Studies at The Heritage Foundation. He is a graduate of the University of Chicago Law School and a former law clerk on the U.S. Fifth Circuit Court of Appeals.
Mr. Gaziano has served in the U.S. Department of Justice in the Office of Legal Counsel during different periods in the Reagan, first Bush, and Clinton administrations, where he provided constitutional advice to the White House and to four Attorneys General.
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Mr. Gaziano has also served in the House of Representatives as Chief Counsel for the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, where he worked on government-wide regulatory reform legislation.
To introduce our fourth distinguished panel member today, I would like to yield to the gentlelady from Wisconsin, Miss Baldwin.
Ms. BALDWIN. Thank you, Mr. Chairman.
I would like to provide a warm Wisconsin welcome to Professor Ken Mayer. He is a professor of political science at the University of Wisconsin, Madison, and Director of the University of Wisconsin Data and Computation Center.
He received his doctorate from Yale University and has been teaching at the University of Wisconsin since 1989. His research focuses on American politics, with a focus on the presidency, Congress, and campaign finance. Prior to coming to the University of Wisconsin, he consulted for the Washington, D.C. offices of the Rand Corporation and worked as a civilian contract specialist for the Naval Air Systems Command.
His books include, ''The political economy of defense contracting,'' published by Yale University Press in 1991; ''The Dysfunctional Congress, the Individual Roots of an Institutional Dilemma,'' by Westview Press in 1998; and hot off the presses, his latest book, ''With the Stroke of a Pen, Executive Orders and the Presidential Power'', offered by Princeton University Press this year.
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Mr. BARR. I thank the gentlelady from Wisconsin.
We are joined by the Ranking Member, Mr. Watt, from North Carolina. I would yield now to the gentleman, the Ranking Member, for any opening statement he might care to make.
Mr. WATT. Mr. Chairman, I appreciate you scheduling the hearing. I apologize for being late, I'm not getting around as quickly as I normally do, because I pulled a muscle. So it took me a little while to get back. But I'm looking forward to hearing the witnesses and exploring the historical and constitutional background for executive orders. I think it's an important subject matter.
With that, I will yield back so that we can hastily get to the witnesses.
Mr. BARR. I thank the distinguished gentleman.
What we would like to do, with the indulgence of the panel, is start with Representative Hansen, if we might, and in deference to the Member's schedule, with his Committee responsibilities and responsibilities on the floor, as soon as you conclude your statement, Mr. Hansen, we'll have any questions posed to you and then we'll move on to the rest of the panel.
Congressman Hansen.
STATEMENT OF THE HONORABLE JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
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Mr. HANSEN. Thank you, Mr. Chairman, and I thank the members of the Committee for allowing us to talk for just a moment, basically regarding the 1906 Antiquities law.
Not an awful lot of folks realize that in about 1888 a number of ranchers, especially two ranchers, they found some Indian ruins out there in the West. They started looking at them and discovered that this would be a pretty good way to make some money. A lot of people liked having those antiquities, and so they started selling them.
President Teddy Roosevelt, who was very familiar with the West—You read about this man. He was out there on a regular basis. He understood the Grand Canyon, that whole Basin area, and spent many, many hours and days and months in that area. He asked that they pass this 1906 antiquities law basically to curtail that kind of action on the part of people who were desecrating those areas—probably a pretty good idea.
What a lot of folks don't realize is there was not the 1916 Organic Act that started the parks. There wasn't a 1964 Wilderness Act; there wasn't a 1969 NEPA Act; there wasn't the '76 FLPMA Act, and a dozen other acts that protect the ground. At that times that's really all there was.
Out of that came some of our better parks, and I think Grand Canyon is a good example, Zion and some of those areas brought about. Our last President, former President Clinton, he made 19 national monuments.
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Now, let me talk about one I am very familiar with, and that happened on September the 18th, 1996, just prior to the general election, and they created the Grand Staircase-Escalante in southern Utah, 1.7 million acres.
Let's go back to the Antiquities Act for just a minute and talk about it. That Act is there, and the proclamation should go this way: the President declares whether it's a scientific, an archeological, or historic site, and then it says he shall use the smallest acreage available to protect that site.
The 74 monuments we had prior to President Clinton weren't very big. You take the one, the archeological site of the Rainbow Bridge, which is obviously an archeological site, relatively small. The historic site of the Golden Spike, where the two trains met, obviously quite small.
I guess, in my 42 years of being an elected official, as you mentioned, from the city council to the state legislature, whom I was Speaker of the Utah House, and here for 20 years, I always was of the opinion that you started out with the people on the ground and you said, ''What is it we can work out?'' My years of being on the Resource Committee, you should really figure out how long does it take to make a monument or a park if we do it.
We're talking almost two or 3 years. We're talking about studies. We're talking about people on the ground, talking about surveys. It takes a long, long time to do these things. Even the one we recently did last year for Mary Bono, a monument, it took us almost two-and-a-half years to put that one together, starting with her husband, as I may recall.
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Well, on that date that I previously gave, President Clinton went to the south rim of the Grand Canyon, and he looked across there into the Utah side and declared 1.7 million acres as a monument. He did not declare what it was. He did not say this is the archeological park, this is a scientific park, this is a historic site. None of that was said. He did say—he was a little upset about the Andalex Coal mine that possibly was going there. He made the statement, which I think is a classic statement, he said we can't mine everywhere—I think some people would agree you can only mine where there's ore or minerals. But anyway, that stopped that. That's another story entirely, which I guess I won't get into.
But what bothered me about it, Mr. Chairman, goes this way. I was chairing the committee on Public Lands and Parks at the time, so I was kind of in charge of that type of thing. The Governor of the State, Mike Leavitt, didn't hear about it. I didn't hear about it. The two Senators didn't hear about it. Our Democratic colleague and good friend from the Third District, Bill Orton, wasn't made aware of it until hours before it happened, as the Governor was made aware of it at two o'clock in the morning and it happened at ten o'clock that same day. It's kind of a great concern to the folks out in Utah, to have that occur.
But as you go back—and we subpoenaed the papers. It kind of upset us a little bit. We got all of the papers from the White House. We also got the papers from the Interior Department and others. We wrote a little pamphlet called, ''Behind Closed Doors.'' Why we did that, Mr. Chairman, is because what we found in this is pretty well what my Chief of Staff found when she called Kathleen McGinty of the Counsel on Environmental Quality the day before. She said to Kathleen McGinty, ''we're hearing this rumor that the President is going to go out to Utah and create a large monument. Is there any truth in it?'' We saw something in the Post and we saw something in the New York Times. She said, ''No, there's not any truth to it. We hear the same rumor.''
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Now, if you go to the pamphlet that I would like to leave with you, if I could, Mr. Chairman, copies for every member, this is some of the things we have found.
Mr. BARR. Without objection, it will be entered into the record.
[The report entitled ''Behind Closed Doors'' follows:]
A.eps
B.eps
C.eps
D.eps
E.eps
F.eps
G.eps
H.eps
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I.eps
J.eps
K.eps
L.eps
M.eps
N.eps
O.eps
P.eps
Q.eps
R.eps
S.eps
T.eps
U.eps
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V.eps
W.eps
X.eps
Y.eps
Z.eps
AA.eps
BB.eps
CC.eps
DD.eps
EE.eps
FF.eps
GG.eps
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HH.eps
II.eps
JJ.eps
KK.eps
LL.eps
MM.eps
Mr. HANSEN. Thank you.
We found that the Solicitor, John Leshy, instructed all of these people, saying ''I can't emphasize confidentiality too much. If word leaks out, it probably won't happen. So take great care.''
We also saw where Kathleen McGinty, from CEQ, said ''I do not think there is a danger of abuse of the withdrawal/antiquities authority, especially because these lands are not really endangered'' and there's no reason to do it. Anyway, out of that, we got 1.7 million acres. Compare that with what we had prior to that time.
Mr. Chairman, I'm really saying that the process bothers us. I'm not taking the President on. He had the right to do that, the right to create all 19 of them, I guess, if he wanted to. But I really feel in my heart of hearts that it's an abuse of the ground. I don't care if you're Republican or Democrat or whoever he was, these were supposed to be small, individual areas. They were not intended to go in and try to create a de facto wilderness or whatever it may be.
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I am always amazed that people talk about the protection it's giving the ground. Those who say that are not familiar with the Act. The Act basically gives nothing. It has to have a management plan draw up, to say, well, what are we going to do within that confines. Other than that, it's just a name. So that's what we have found in this particular area.
Mr. Chairman, you mentioned the idea of what do we do to correct it. Because of the other acts that are there, that give a lot of protection to the ground, and as I couldn't say enough, the Constitution only gives Congress the right to work with the public grounds of America—with one exception. And that's that 1906 Antiquities law.
You may recall in the 105th session of Congress we passed a law—it went through overwhelmingly in the House—that said the President could limit—we're trying to strengthen the law—would have to limit himself to 50,000 acres. I don't know if folks realize how big 50,000 acres is. That's bigger than, by far, most of the monuments that were created prior to President Clinton.
To give you an example, Washington, D.C. is 38,000 acres, so it would be bigger than Washington, D.C., if someone wanted to go up to that.
The second thing we did in the 106th session of Congress, as you may recall, is we said he's got to give notice to the governor of the State, the congressional delegation, and the State legislature. That passed 408 to 2. Now, at this time you say what can we do so it doesn't get out of control, that we can handle this thing without having these things put all over the West—and some of them, we are given to understand, were created in 1 day, compared to how long it takes the Committee to do that.
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Mike Simpson of Idaho, who has taken those two laws I have just referred to and he bundled them together, that legislation was heard in the Resource Committee last week. Of course, because it's been heard before, we will bring his other bill to the floor and we would wish to have the support of all of you on that piece of legislation. I think it's good legislation. Those two bills did not make it through the Senate. As many of us know, it's very hard to get things through the Senate from time to time.
I still remember—and forgive me, Mr. Chairman, for saying this—but when I walked in here 20 years ago, there was a fellow by the name of Thomas P. O'Neil, who was talking to the freshman class, the Speaker of the House. He said, ''One thing you'll learn. The House does all the work and the Senate gets all the attention.'' I say that respectfully. But we sent over there maybe a hundred-and-something pieces of legislation that, if they were passed, were passed in the last few minutes. So this time we are hopeful that that particular piece of legislation could make it through.
Mr. BARR. Mr. Chairman, if you would submit a copy of that piece of legislation, so that we might include it in our record along with your testimony.
Mr. HANSEN. I would be pleased to, Mr. Chairman. We will have that to you.
[The legislation follows:]
N4.eps
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O4.eps
P4.eps
Mr. HANSEN. We feel that that will kind of stop any problems that could come about. But if the President, whoever he may be, of whatever political persuasion, finds something somewhere and he, in his wisdom, feels it should be protected, that particular piece of legislation would give him the tools to do it, without going in and creating the kind of problems that we have with the 19 we've got.
If I may add just one thing, we sent a letter out, myself and Chairman Hefley, who chairs the Subcommittee, to all of the members who have a new monument in their district. In essence, it says this: If you had had a hand in it, how would you have done it? Now, I can't find one member who has had a monument put in his district that had a hand in it. As I have read to you what happened on the Grand Staircase-Escalante, I would worry about it. If they had come to me and said, ''Mr. Chairman, we want some help on this'', I would have said fine, let's put in 50 Mile Mountain as a conservation area. Let's put Paria Canyon in as a heritage area because that's what it is, and we would have something beautiful.
Do you know what the majority of that is? Contrary to what Mr. Leshy—and I think John's a very fine attorney, but when we asked him what was there, there is no beautiful, scenic, pristine, wonderful area to preserve. It's like much of the West, rolling hills of sagebrush, and jack rabbits and rattlesnakes, and no much more, if I may say so.
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Thank you, Mr. Chairman.
[The prepared statement of Mr. Hansen follows:]
PREPARED STATEMENT OF THE HONORABLE JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
Mr. Chairman and members of the subcommittee, I appreciate the opportunity to address the committee regarding the abuses of the 1906 Antiquities Act we have experienced during the past administration and what might be done to prevent these abuses in the future.
Before I go further, let me be clear about one point. While some critics will prefer to attribute my remarks to political differences, my testimony today is not about President Clinton, nor is it about whether or not lands designated as monuments were a good idea. My testimony is about process. In our nation, it is the process we value and it is the process that protects all of us. We should be very hesitant to praise a preferred outcome when the process required to achieve it places our future freedoms in jeopardy. Those who do heap praise upon these abuses of power should remember that those who exercise that power will not always be sympathetic to their concerns and wishes. Thus, I hope my testimony will be helpful to the committee in assessing how to prevent these abuses in future administrations, whether they be Republican or Democratic.
On September 18, 1996, President Clinton stood safely on the south side of the Grand Canyon of Arizona and designated 1.7 million acres of southern Utah as a national monument. The first time that I, or any other official that the people of Utah had elected to represent them, heard about the new national monument was on September 7, 1996 when the Washington Post published an article announcing that President Clinton was about to use the Antiquities Act of 1906 to designate a national monument in southern Utah. Naturally, the people of Utah, as well as their representatives, were concerned. Many of us found it hard to believe that the President would be considering something like this without any consultation with the people of Utah or those elected to represent the people of Utah. When our Congressional delegation expressed concern about a prospective designation directly to the White House and the Secretary of the Interior we were told that nothing was imminent and that these were just ideas being kicked around and that we shouldn't take them too seriously.
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Privately, however, the administration had already made its determination long before it was leaked to the press. In fact, they were doing their best to ensure that there would be absolutely no input from the public or their elected officials. By July of 1996, the Department of the Interior had already hired a law professor to draw up the monument proclamation with the Department's Solicitor John Leshy instructing him by letter that ''I can't emphasize confidentiality too much—if word leaks out, it probably won't happen, so take care.'' In addition, on August 5, the White House CEQ Chair Katy McGinty wrote a memo to Marcia Hale about the monument stating that ''any public release of the information would probably foreclose the President's option to proceed.'' The Administration continued to deny that anything was in the works until 1:00 AM the morning of the day that he signed the proclamation when the President finally returned a call from Utah's Governor with the news that it was already a done deal.
The Administration did not pursue this course blindly. They knew this was not the way this power was intended to be exercised. Another subpoenaed document written by CEQ Chair Katy McGinty to T.J. Glauthier at OMB reads: ''I do think there is a danger of abuse of the withdrawal/antiquities authorities, especially because these lands are not really endangered.'' In addition, Ms. McGinty wrote in March of 1996 to Linda Lance in the White House stating: ''I realize the real remaining question is . . . the political consequences of designating these lands as monuments when they're not threatened with losing wilderness status, and they're probably not the areas of the country most in need of this designation. Presidents have not used their monument designation authority in this way in the past . . .''
In order to add some context to my testimony regarding the Antiquities Act, let me briefly review some of the legislative debate that took place prior to its enactment. In 1888, two ranchers discovered seven century old multi-roomed dwellings nestled under an overhang in the cliffs near Mesa Verde. They discovered several ancient artifacts and began to dig and then sell these items. In order to facilitate their discovery they completely decimated the ruins, knocking down walls and using beams from the roof for firewood. As these kind of stories began to reach Congress they realized that something needed to be done to protect these areas before they were all destroyed and their scientific and cultural value was gone. The first archeological reservation in Casa Grande Arizona was done legislatively. However, Congress soon realized that protecting each and every site individually, and in a timely fashion would prove to be a daunting task, so they decided this authority would have to be delegated to the President. For about six years they debated various proposals, concerned about whether allowing the President to protect 320 or 640 acres at a time was wise. However, the final compromise allowed that the President could ''declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are owned or controlled by the Government of the United States to be national monuments.'' The size of such withdrawals would be in all cases ''confined to the smallest area compatible with the proper care and management of the objects to be protected.'' The compromise quickly passed both houses of Congress and was signed by President Theodore Roosevelt on June 8, 1906.
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It is important to note that Congress specifically rejected the proposal that national monument withdrawals extend to national park type preservation of land. While subsequent uses proclaimed the Grand Canyon and Zions as national monuments and were clearly outside the scope of the act, with very few options available for preserving such lands in 1906, the American people generally allowed Presidents to exceed this authority. In time, Congress filled this void, enacting legislation such as the 1916 Organic Act, which created the National Park Service and the 1964 Wilderness Act, which created the National Wilderness Preservation System. In 1968, they passed the Wild and Scenic Rivers Act, the National Environmental Policy Act of 1969, and the Federal Land Policy and Management Act of 1976. The cumulative effect of these laws and others made it easy to preserve large portions of land without allowing the president to abuse the Antiquities Act. Thus, Congress established a legal framework, and has been using that framework, to preserve and manage public lands through the creation of national parks, wilderness areas, historical areas, recreation areas, and wildlife refuges.
Returning to the creation of the Grand Staircase Escalante National Monument in southern Utah for a moment, I think it is particularly instructive to note the justification given for avoiding the normal legal and statutory process for the management of public lands. In April of the year following the monument's creation, CEQ Chair Katy McGinty stated before Congress that ''for decades people of goodwill and divergent opinions have debated the proper management of Federal lands in Utah. Questions have remained unresolved for two generations or more . . . the President has put forward the mechanism finally to break loose a large and important area of Federal lands in Utah from the gridlock.'' That comment is stunning to me. I don't think I have to expound very much on how dangerous this kind of thinking can be. Allowing for that type of debate on issues is what the democratic process is all about. Does this mean that any time debate goes on past an arbitrary deadline, the executive branch must sweep in and cut off legislative debate by executive order?
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It is also important to note that as many of you know, President Clinton was undeterred by opposition to his use of the Antiquities Act, creating 18 more monuments and two expansions during his time in office, with eight of those coming in the final week.
The Constitution was designed in a manner specifically to prevent these types of abuses. When one branch desires to exercise its power arbitrarily, it is the duty of the others to check that power. The failure to act by Congress erodes the authority of the legislative branch and encourages abuse in the future, whether by future Republican or Democratic executives. During the 105th Congress, the House passed legislation that required Congressional approval of a monument designation larger than 50,000 acres. If Congress did not approve of the designation within two years, the monument designation would sunset. This legislation passed the House with only two dissenting votes. In addition, during the 106th Congress, the House passed legislation requiring 60 days notice to the Governor and Congressional delegation and to provide for public input to the greatest extent possible. Again, I plan to move legislation through the Committee on Resources this year that will incorporate these two bills. I believe this legislation is essential to the proper balance of authority.
Once again, I appreciate the opportunity to appear before you and would urge you to act appropriately to limit the erosion of legislative authority. Thank you.
Mr. BARR. Thank you very much, Mr. Chairman.
Senator Hatch, your colleague from the great State of Utah, was going to join us here today. His responsibilities in the Senate prevented him from being here. But he was kind enough to submit a statement, and I would ask unanimous consent that that statement be included in the record.
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Without objection, so ordered.
[The prepared statement of Senator Hatch follows:]
PREPARED STATEMENT OF THE HONORABLE ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH
PRESIDENT CLINTON'S DECLARATION OF THE GRAND STAIRCASE-ESCALANTE MONUMENT
Mr. Chairman, I thank you for holding this hearing today and for the opportunity you have given me to make a statement for the record.
As my colleagues know, on September 18, 1996, President Clinton, in the midst of a reelection campaign, invoked the Antiquities Act of 1906 to create what is now the 1.9 million acre Grand Staircase-Escalante National Monument in southern Utah.
Mr. Chairman, by using an executive order, President Clinton was able to act without any consultation with the Utah congressional delegation, our governor or any other elected official in Utah. Let me emphasize this point; there was no public process, no hearings, no town meetings, no TV or radio discussion shows. There was not even input by federal land managers who understand and work in this region. As I stated last September, in all my 24 years in the U.S. Senate, I have never seen a more clear example of the arrogance of Federal power than the proclamation creating this monument. I still consider it to be the mother of all land grabs.
It is true that the Antiquities Act does not require the President to seek public input, but because he took this path of secrecy, he chose not to learn of the harm he would cause to the people of southern Utah. Acting by executive fiat, he shielded himself from the consequences of his action. And we were all reminded of this fact when he announced this new monument from the Grand Canyon in Arizona. What could have caused celebration among Utahns, instead, caused acrimony and bitterness. Public trust in our federal government reached an all-time low in southern Utah, and the wounds inflicted then are still felt today.
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Mr. Chaimnan, as the members of this committee know, the ''Property Clause'' in Article IV, sec. 3 of the U.S. Constitution gives Congress the authority to dispose of and make needful rules and regulations regarding property belonging to the United States. In my view, it is clear that Congress never willfully gave away this power—not even through the Antiquities Act. I believe that in passing the Antiquities Act, Congress sought only to give the President the power to protect objects of real historic or scientific value that are in actual jeopardy. Congress never intended to give the President unfettered power to manage vast tracts of public lands according to his whim. This may not have been clear to President Theodore Roosevelt when he granted
protection to the Grand Canyon using the Antiquities Act, but Congress clarified it further when it later passed strong laws for the management of public lands, such as the Federal Lands Policy and Management Act, the Wilderness Act, the National Environinental Policy Act, and others. These laws require an open and public process, always under the purview of Congress. That is what the Constitution demands.
I also want to address the scope of the president's order. In the Antiquities Act, Congress explicitly stated that when using the act, the President should include ''the smallest area compatible with the proper care and management of the objects to be protected.'' In his proclamation designating the Grand Staircase-Escalante Monument, President Clinton pointed to a planned underground coal mine in the Kaiparowits Plateau, the largest untapped field of clean coal in our nation. The underground mine was to be along an existing road in a depression which is out of sight for anyone not directly on the location. The mine would have disturbed only 40 acres in this area which, by the way, is a very desolate and unattractive region. If any tourist or hiker seeking solace ever came upon this area, they most assuredly were lost. There is certainly nothing of scenic, historic, or scientific value on or around the proposed mine site.
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If the president were sincerely seeking to protect this homely piece of public land, he could have done so by creating a 40-acre monument there. Instead he withdrew nearly two million acres, which is almost twice the size of the Grand Canyon, and larger than the states of Rhode Island and Delaware combined. With one proclamation, he doubled the acreage of national monuments in our nation. Of the 13 monuments designated by President Clinton, alone, 40 percent of the acreage is found in the Grand Staircase-Escalante Monument.
This was not simply a move to protect a particular object or even a collection of objects of historic or scientific value. There are a number of such sites within the monument, but such sites can be found throughout the entire state. This action by the President was an attempt to create a management scheme for a gigantic tract of public land—a management scheme being pushed by politically active advocacy groups, a management scheme that he knew would never survive an open public process or the oversight of Congress.
Mr. Chairman, there will be those who argue that monument designations, though sometimes controversial, eventually gain the favor of the public, but this is not about public opinion polls. What we have seen is a power grab by the Executive branch of a power explicitly given to Congress by the Constitution, and a power that Congress never intentionally gave up. For this reason, I have introduced legislation in the past to clarify the intent of the Antiquities Act, and I have supported similar measures by other members of Congress. I hope that in the 107th Congress such a measure can be enacted.
Mr. Chairman, we in Utah continue to work with the hand President Clinton has dealt us, and it has not been easy. I hope that Congress is able to ensure that other citizens do not have to experience the end-run around democracy that we have seen in Utah. I thank you and the members of this committee for this chance to make these remarks.
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Mr. BARR. We have been joined by the distinguished Vice-Chairman of the Committee, the gentleman from Arizona, Mr. Flake. Mr. Flake, welcome and good morning.
At this time, we had announced earlier that, in deference to Chairman Hansen's schedule and his responsibilities, we would move immediately to any questions that there might be for him before we move on to the rest of the panel.
I would like to recognize for purposes of any questions for the Chairman, the gentleman from Arizona.
Mr. FLAKE. Thank you, Mr. Chairman. I apologize for being late.
We all agree—and coming from Arizona, with a lot of sagebrush and rolling hills, and with a lot of designated monuments and, I think, aside from Utah, Arizona has been the most negatively impacted by this. What do we do now? The situation we're in, a lot of this has gone. We will hear from Mr. Fein and others, I guess, on the legal ramifications of moving forward. But what do you suggest.
Mr. HANSEN. What would we—Excuse me?
Mr. FLAKE. Can we do anything retroactively, or——
Mr. HANSEN. We have asked the members who have the monuments if they—we've put it to them this way. If you have had a hand in it—because they did not——
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Mr. FLAKE. Right.
Mr. HANSEN [continuing]. How would you have done it? Now, some of the members who said they've gone to their governors, they've gone to their legislators, their county commissioners or city councilmen and others and said, how would we have done this if we've had an opportunity. Some of them are saying we repeal it.
Our good friend from southern Arizona, Mr. Izolbe, Jim has told me, he said we'll leave it alone. This was one of the smaller ones. Bob Stump, on the other side, Chairman Stump of the Armed Services Committee, he wants to make a change. Denny Rehberg, up in Montana, wants to make a change. In the State of Idaho they want to make a change. Doc Hastings up in Washington wants to make a change. Chris Cannon in southern Utah wants to make a change. And many others.
So we will look at it and, frankly, I would have a hard time voting against something. If someone who represents the area feels it should have been done differently, feels that it did not accomplish any preservation or protection to a particular area, then we possibly should do it. I think that can be done, and we're looking forward to seeing if there's a possibility of doing that.
I really, honestly, wish this administration had worked with us. If they had, that would have been fine. In all deference to what people think, that myself and Secretary Babbitt didn't get along, we got along fine. But Secretary Babbitt, really, if I may be brutally candid, did not make those calls. He suggested some of them, admittedly so, and so did Mr. Leshy, his Solicitor. But they would counsel with me on them and the calls were not really—they were asked to make the suggestions and they did.
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What bothers us is why didn't we have a hand in it? I remember when I was Speaker of the Utah House, I used to be very offended when the Federal Government would usurp something right on the top of us and say this is it, you're going to live by it. Well, maybe it didn't apply to Utah. It may apply to Massachusetts or somewhere else but didn't apply to us. Why didn't we get a hand in it?
If you want to upset folks anywhere in America, just have the big government come in and tell them just exactly how it's going to be and they don't get much to say about it. That upsets our people, I don't care what political persuasion they are. We find that very offensive. That's why I think the feelings on this—and I don't know about the State of Arizona. I can tell you in Utah, I can tell you in Idaho, because I've been there talking to those people. There are some really mad folks out there.
Mr. FLAKE. I agree. Part of the problem we have in Arizona are some easements there for transmission lines, and given the current problems we're having on the energy side, that will have an impact as well. Those were negatively impacted by these decisions. So, as mad as you are in Utah, I think in Arizona we're equally so.
Thank you.
Mr. BARR. Thank you.
The Chair recognizes the gentleman from North Carolina, the distinguished Ranking gentleman, for 5 minutes.
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Mr. WATT. Thank you, Mr. Chairman. I probably won't take the 5 minutes. It may be actually better for me to address some technical questions to the remaining witnesses.
Let me just kind of get an outline here. Was the designation that you're having some concerns about done as an executive order?
Mr. HANSEN. Excuse me, Mr. Watt. I must be going deaf in my old age. I didn't pick that up. I'm sorry. Would you repeat?
Mr. WATT. Was this designation that you are complaining about done as an executive order?
Mr. HANSEN. It was done as a proclamation, where he has the right, under that law, to do a proclamation and set aside part of the land. I have a copy of the proclamation, if that would be helpful to you.
Mr. WATT. So was it done pursuant to the Code of Federal Regulations, or was it done pursuant to the statutory provision? I don't know that it would make a lot of difference. I'm just trying to figure out what the——
Mr. HANSEN. We have argued that in our Committee ad nauseam, does it make a difference if it's an executive order or proclamation or what. It seems to be a little blurry line. Maybe these gentlemen sitting to the right of me will elucidate on that.
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Mr. WATT. I'll direct it to them when they come around. I thought maybe you could——
Mr. HANSEN. I wish we could. Our people have gone that same path, trying to say what was it, what do you consider something under the 1906 history; is it kind of amorphous, or what is the thing? We haven't quite got it worked out.
Mr. WATT. Okay. I will reserve the rest—I'll just wait and try to get those questions answered later. I think I'll yield back. I appreciate the gentleman for being here.
Mr. BARR. The gentleman yields back.
The gentleman from Pennsylvania, Mr. Gekas——
Mr. GEKAS. Yes, thank you.
Mr. BARR [continuing]. Is recognized for 5 minutes.
Mr. GEKAS. Thank you, Mr. Chairman.
I just wonder, Jim, if you, in your thorough analysis of that situation that's been so vexatious to you and to your constituents, is a possible solution a new proclamation or executive order, or action taken by this President to modify or change or to eliminate the previous proclamation? Is that in the possibilities?
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Mr. HANSEN. Of course, I can't speak for the President, and I don't know what he would do. I did have a conversation with the Vice President, who I served with on the Interior Committee for three terms. He said they were looking into it. I haven't followed up on that.
But let me say we're given to believe—and I don't know if it's true, and we can't seem to figure it out—but years ago President Johnson expanded the Capital Reef National Park. We were given to understand that President Nixon negated that work.
Now, maybe it's unfair for me to say this, and I'm not sure that's true. We've got some of our legal folks working at it right now, looking at it. I guess he could do it, if he was so inclined to do it. I don't know the answer.
I have explained to you how, by legislation, we're looking at it, that we may want to fine tune them, massage them, maybe repeal some. But a long laborious legislative thing is always a very difficult way to do it.
Mr. GEKAS. Yes. Perhaps the remainder of the panel could address my inquiry in their prepared remarks and in the answers they might provide during the Q&A.
That's all I have at the moment. Thank you, Mr. Chairman.
Mr. BARR. The gentleman yields back.
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The gentlelady from Wisconsin is recognized for 5 minutes.
Ms. BALDWIN. Thank you, Mr. Chairman.
Just along the same lines of the previous question, when you have been discussing with the—the situation with the other members who have these monuments within their districts, have there been any other remedies that have been proposed that you're considering actively at this point, aside from the legislation that you earlier discussed, that you would like to direct to our attention today?
Mr. HANSEN. I'm sure looking for an inspired idea to come for us, but so far it's been maybe by legislation, start working on them. Some of the ideas of, well, this really shouldn't have been an antiquity thing because it doesn't fit the law, but maybe it would be a conservation area or maybe part of it would be a heritage area or a historic site, and so we've asked them to kind of reinventory the area that we're looking at and see if we can find something that kind of fits the criteria of those three areas, and have kind of left it up to the member to do what he may want to do.
But we haven't thought much about it ourselves. We don't have any precedence to work on, you know. We just can't go back—We're creating it ourselves. Maybe these gentlemen know much more about that than I'll ever know. I wish I could stay and listen, but I can't. But I'll leave some of my folks here.
A great question. I just wish I knew the answer to it. Possibly in another month or two there will be some creative ideas that will spring forth.
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Ms. BALDWIN. Thank you. No further questions.
Mr. BARR. Thank you. I recognize myself for 5 minutes.
Thank you very much, Chairman Hansen, for being with us today. We appreciate your leadership on this and so many other issues regarding our natural resources.
Just one question. I know you're familiar with the Antiquities Act in particular, and interpretations thereof and opinions relating thereto by the Department of Justice. Do you feel there is clear authority for a President—in this case, George W. Bush—to, by executive directive, modify the action of the prior President regarding any particular use or misuse of the Antiquities Act, such as the one you mentioned?
Mr. HANSEN. Mr. Chairman, in my opinion, he could. If he wanted to go down the same path and modify it by a proclamation, I think he has all the authority under the 1906 antiquity law to do that, if he was so inclined to do it.
I was of the opinion that maybe the members who had it, if they wanted to go talk to the President after they've come up with and formulated some plan to do it, that it wouldn't be a bad idea for them to do that. That would be a lot less painless in taking it through the legislative hoops that we go through.
But I have to say that I really feel the first drive and push of this Committee is to put the act in the parameters that we can work in. I think Mr. Simpson of Idaho's bill, which we already have had basically passed in the House, would remedy that.
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Mr. BARR. What is there—Presidents have repealed prior executive orders issued by their predecessor. It's done, not necessarily on a routine basis, but there are many, many precedents for it.
Is there something about the Antiquities Act that—and I know there's a 1938 opinion of the Attorney General, that a President could not undo a prior designation under the Antiquities Act. But, in your view, if a President uses a presidential directive, proclamation or executive order to declare certain lands as antiquities under the Act, and has done so improperly, why could not a subsequent President completely undo it?
Mr. HANSEN. We've wrestled with that same question. The President, of course, can create a monument, a national monument, using that Act. In effect, he creates law by doing that. I don't know—and we have wrestled with this, can a President, with an executive act to undo it, can he create law? I don't know if he can. I think maybe that's reserved to the Congress. But somebody that knows it better than I would—I don't know where we're going to find anything to hang our hat on. You know, we haven't got a legal hook here to find. So I don't know the answer to that.
I was hoping I would turn to you and members of your Committee who would give me a well thought out and well reasoned legal answer to that one.
Mr. BARR. I think we'll probably get at least three well thought out answers to that from the rest of the distinguished panel.
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If there are no further questions for Chairman Hansen, I would like to thank you once again, Chairman, for being with us, and as I said, for your continued leadership on this issue in particular, along with so many others. We appreciate your being with us today, and if there's any additional material, we certainly would like to include that in the record of this case, along with your full statement that you submitted. It is so ordered, without objection.
Mr. HANSEN. Thank you, Chairman Barr.
I would like to leave with you, if I could, the work we did called ''Behind Closed Doors''. Would that be permissible?
Mr. BARR. That would be and, without objection, that will be included in the record.
Mr. HANSEN. Thank you so much.
Mr. BARR. Thank you, Mr. Chairman.
Mr. BARR. At this time, subject to pending action on the floor, I would like to recognize and thank the three panelists that we have with us today.
Beginning with Mr. Fein, already introduced to the Subcommittee and the audience, I would ask Mr. Fein to take his allotted 5 minutes to summarize his statement, or make whatever comments he likes, and then we'll move on to the other two members.
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Mr. Fein.
STATEMENT OF BRUCE FEIN, ESQ., FORMER ASSOCIATE DEPUTY ATTORNEY GENERAL AND CONSTITUTIONAL LAW EXPERT
Mr. FEIN. Thank you, Mr. Chairman, and Members of the Subcommittee.
I would like to briefly sketch the legal landscape as a backdrop for perhaps answering some of the more particular questions and what might be done. It has to be brief as a concession to the shortness of life, since there have been volumes written upon these particular issues.
I think it's useful to think about presidential unilateral authority, including executive orders, proclamations and otherwise, as resting either on the United States Constitution—where the President derives his powers from Article II, where the congressional role in circumscribing and directing the President's exercise of authority is very narrow—and those exercises of executive authority that rest upon a congressional statute, where perhaps Congress' control over what the President does is at its zenith.
The typical case of presidential authority that derives directly from the Constitution lies in the field of national security. All of our classification of information in the executive branch—top secret, secret, classified—rests upon an executive order. An executive order establishes the intelligence community and assigns functions between the CIA, the National Security Council and otherwise. Those have been viewed as inherent presidential powers.
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It's not that they're unlimited. For instance, in the Youngstown Sheet & Tube case in 1952, the United States Supreme Court scolded Harry Truman for asserting he had inherent power to seize a steel mill during the Korean war on the theory that it threatened a shortage of steel that ultimately could endanger our troops in Korea—one of the only times in the history of the country where, during wartime, the United States Supreme Court displayed more robustness than supineness when it addressed presidential power.
But that's not the—that doesn't mean, in my judgment, however, that Congress has no role when the President asserts a constitutional power for his action. In the area of classified information, for instance, the United States Supreme Court, in EPA versus Mink in 1971, held that a classified document automatically was exempted from disclosure. Under the statute, there was no judicial review. If it was classified, that's the end of the question.
Congress then amended the Freedom of Information Act 3 years later and said, well, we want to give judges authority to force disclosure of classified information that the judge concludes was wrongfully deemed confidential and created, if public, a danger to the national security or foreign policy interest of the United States.
I think it's generally accepted that Justice Jackson's concurring opinion in Youngstown Sheet & Tube, where he indicated if Congress seeks to confront by statute a direct exercise of presidential power, it may, in some sense, subtract from the President's constitutional authority to do things, in foreign affairs or otherwise. We don't know where that nebulous realm leads us because it very seldom happens that Congress takes on a President in these particular areas. The typical reaction has been acquiescence.
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Even in cases like the War Powers Act, where the President has deemed the Act basically an ink blot for some 27 or 28 years now, Congress has typically done nothing, so whether or not its attempt there to try to control a President's use of military abroad is constitutional has never been litigated.
Let me move quickly to the area of delegated power under statutes. There Congress, unlike is the case with typical agency delegations, ordinarily uses language that is rather broad in scope as to what the President may do. I think that's a fair description of the Antiquities Act of 1906. It does, it seems to me, not relieve the President, however, from oversight and checking. Under the 1906 Act with regard to the most recent controversial designation out in Utah, surely there is available judicial review. The President is not shielded under our jurisdictional statutes from lawsuits challenging whether or not he has exceeded statutory discretion in what he has done.
I remember when I was clerking, I sat and worked on a case where we held it was illegal for President Nixon to refuse to raise executive pay under the classification scheme that Congress drafted. What can be done, if I can run a little bit over my time here, Mr. Chairman——
Mr. BARR. Let me check and see what the floor schedule is. Okay, if you could take just one additional minute, and then we'll recess briefly so we can go vote. The gentleman is recognized for 1 minute.
Mr. FEIN. One method of addressing the problem created by President Clinton's rather abrupt and unilateral assertions of authority, not only on the Antiquities Act but other statutes, is simply to make the Executive Office of the President an agency for purposes of the APA, which would require that there be extensive rulemaking, opportunity for comment and such, for any designation of land as qualifying as an antiquity or national monument was made.
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There is also an opportunity for Congress to dictate that, in reviewing presidential action in courts, it shall be done de novo and not any special deference to the expertise or insight or prestige of the presidency. It's customary at present, under judicial review, that it's a very deferential standard.
[The prepared statement of Mr. Fein follows:]
PREPARED STATEMENT OF BRUCE FEIN. ESQ., FORMER ASSOCIATE DEPUTY ATTORNEY GENERAL AND CONSTITUTIONAL LAW EXPERT
Mr. Chairman and Members of the Subcommittee,
I am grateful for the opportunity to present legal and prudential views about presidential executive orders and various congressional options that might fortify the outstanding deterrents against abuses. Executive orders are of two types. Some find justification in the constitutional powers of the President. For instance, the pardon power and the amnesties proclaimed by Presidents Ford and Carter for Vietnam era draft evaders and deserters. The President also enjoys inherent national security powers. Thus, President Roosevelt proclaimed the odious executive orders for Japanese American concentration camps during World War II, which were sustained by the Supreme Court in the Hirabayashi and Korematsu decisions. President Truman created Loyalty Review Boards in 1947 by executive order. The entire system of classifying executive branch documents rests on an executive order. The international trade predecessor to the WTO, GATT, was a unilateral executive agreement made by President Truman in the wake of a congressional failure to ratify an international trade treaty.
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Executive orders pivoting on the President's claimed constitutional authority, however, are not beyond judicial review. The Supreme Court thus invalidated President Truman's seizure of a steel mill during the Korean War in the Youngstown Sheet & Tube case. The High Court also upended President Lincoln's claimed authority to conduct military trials of civilians during the Civil War when civil courts were open and functioning in Ex Parte Milligan. Moreover, the Supreme Court has held that the President must obey outstanding executive orders, even when bottomed on the Constitution, until they are revoked. Additionally, Justice Robert Jackson's concurring opinion in Youngstown suggests that the Court will be less inclined to bless a claim of inherent presidential power if Congress acts directly against the assertion by statute than if it is either neutral or supportive. Finally, Congress is empowered to conduct oversight hearings of constitutional executive orders to explore either the need for a constitutional amendment or to inform the public of suspected abuses so voters may adjust their political loyalties accordingly, as illustrated by the congressional hearings reviewing President Clinton's less than exhilarating sayonara pardons.
Executive orders may also find justification in statutes, i.e., where Congress has delegated power to the President which he may exercise within the boundaries of the delegation. The President, for instance, adjusts federal civilian pay by executive order bottomed on a federal law. The President similarly administers the Helms-Burton law imposinig an embargo on Cuba by executive order. Ditto for the Antiquities Act of 1906. And the President by virtue of federal law is empowered by executive order to set standards for government contractors in furtherance of efficiency and cost savings. That is the foundation for the lengthy ''affirmative action'' executive order applicable to government contractors that originated with President Kennedy in 1961.
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Executive orders that purport to rest on statutes can be customarily checked in three ways. The judiciary may hold them beyond the power delegated by Congress, as the U.S. Court of Appeals for the District of Columbia Circuit did in invalidating President Clinton's attempt to boycott government contractors who used permanent replacements to supplant striking employees. Congress by statute may override an executive order, as it did in part in requiring the public disclosure of classified information that the judiciary finds has been erroneously classified under the Freedom of Information Act. And, a succeeding president may revoke executive orders of his predecessors, except for the possibility that the congressional delegation foreclosed such second-guessing, which might plausibly be the case for reservations of public lands for some specific use and a revocation might wreak havoc on the status quo.
In my view, nothing in recent history makes executive orders more or less worrisome. They should be examined on a case-by-case basis to determine whether they make for enlightened public policy. Controversial orders are ordinarily more questions of politics than of law.
Let me suggest, nevertheless, areas for congressional exploration which might strengthen institutional checks against misuse of executive orders. With respect to presidential pardons, Congress might consider obligating the President to receive the views of the Attorney General and the Director of the FBI before making a decision. It might further require the President to desist from issuing a pardon unless the name of the individual under consideration had been published in the Federal Register at least two weeks before the decision, (absent a national security certification of a need for secrecy).
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With respect to national security executive orders, Congress might consider an internal rule that brings them to a floor vote for approval or disapproval if 20 percent of the Members so demand (with no filibustering in the Senate) to put the legislature on record in case of litigation challenging their constitutionality, as Justice Jackson's concurrence advises in Youngstown.
With respect to statutory executive orders, Congress might consider subjecting them to the notice and rule making requirements of the Administrative Procedure Act unless an express statutory exemption is created. It might also expressly stipulate that executive orders are subject to judicial review, absent a clear statutory exception, and that the judiciary should review such orders de novo with no special or other deference to the President, thus displacing the customary deferential Chevron standard announced by the Supreme Court in 1984.
Finally, Congress might consider requiring a 90 or 120 day delay in the effective date of statutory executive orders to permit a reasonable time for it to thwart the action by new legislation, which, of course, would itself be subject to a veto.
As is true with all power, executive orders can be abused. The challenge of the congressional statesman is to discover that prudential blend of restraints and discretion that over the course of time will best advance our nation's ideals and aspirations.
SUMMARY
Congress should consider requiring the President to receive advice from the Attorney General and Director of the FBI before issuing pardons or commutations and to publicize for at least two weeks in advance potential beneficiaries of clemency.
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Congress should consider internal rules enabling immediate floor votes on national security executive orders of the President to place its view of the President's constitutional authority in the event of litigation.
Congress should consider making statutory executive orders subject to the Administrative Procedure Act and judicial review de novo with no special deference to presidential judgments.
Congress should consider subjecting executive orders to a 90 or 120 day waiting period to enable it to enact repudiating legislation, which itself would be subject to a presidential veto.
Mr. BARR. Thank you very much, Mr. Fein.
With apologies to the witnesses, we have to break for three votes on the floor. It will probably take about 15 minutes, so we'll stand in recess until noon, or as soon as the last vote is over.
[Recess.]
Mr. BARR. The Subcommittee will be in order.
At this time, Mr. Gaziano, you are recognized for 5 minutes.
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STATEMENT OF TODD F. GAZIANO, SENIOR FELLOW IN LEGAL STUDIES AND DIRECTOR, CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION
Mr. GAZIANO. Thank you. Good morning, Mr. Chairman—or good afternoon I should say by now—and Members of the Subcommittee. Thank you for this opportunity to testify.
In recent years there has been a renewed interest in the proper use and possible abuse of executive orders and presidential directives. As I don't need to inform you all, many citizens and lawmakers express grave concern over the content and scope of several of Bill Clinton's executive orders and land proclamations.
Attached as an appendix to my written testimony is a Heritage Foundation legal memorandum we issued last month, titled ''The Use and Abuse of Executive Orders and Other Presidential Directives'', which is also available at our website. The 24 page memorandum provides a more detailed analysis of executive directives, including a discussion of the historical practice, sources of presidential authority, the legal framework of analysis, and some brief thoughts on reform proposal.
In my oral testimony today, I just want to touch on two, somewhat distinct areas. First is the constitutional framework of analysis that Bruce, to my left, already gave a fabulous overview of. I have heard people say that presidential use of executives orders violates separation of powers.
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Well, the separation of powers in our Constitution actually cuts both ways with regard to executive orders, proclamations and such. It reinforces the President's right or duty to issue a decree, order, proclamation, to carry out a particular power that truly is committed to his discretion by the Constitution or by lawful statute.
On the other hand, the constitutional separation of powers cuts the other way, if the President attempts to issue an order regarding a matter that is expressly committed to another branch of government. It might even violate the separation of powers and render the executive order/proclamation void. Thus, there is no simple recitation of the constitutional order and you've got to look at the application of the constitutional and statutory law in each case. But, in addition to the information in the legal memorandum that I authored, I would also be happy and eager to answer your question about the general framework.
Let me turn now, though, to recommendations that I might have for this Committee and for the rest of Congress on how to sort of protect and defend some of your own prerogatives.
Let me start by saying, however, in the legal memorandum, we gave some advice to the current President on how he could correct some of the errors and abuses of the previous President in five substantive issue areas.
One of the areas we gave some advice to the President was on the land proclamations. We opine that the President could rescind the monuments that were improperly designated, and I would love to get into that, to provide answers to some of the questions that you had of Representative Hansen, and I would like to elaborate on what I think the President's authority is.
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I also think it's, without doubt, that he can change the boundaries, reduce the acreage substantially, and he can change some of the restrictions for those monuments. The Secretary of Interior has made some statements that at least they would consider those other actions, even if they didn't rescind some of the proclamations.
But, rather than sort of waste the Subcommittee's time on what another branch of government or what the courts might do with regard to the three legal challenges to the Grand Staircase-Escalante monuments, I would like to make a few suggestions on what I think you all in Congress may want to do to fix the law. By the way, you can also rescind by legislation the monuments as well, but apart from that, fixing the law I think is something I know you are keenly aware of.
First, I think you should repeal or modify some of the statutory delegations that have been abused in the past and might be abused in the future. Of course, I think President Bush has shown that his example will be a good one. But let me suggest to you that that may create a perfect opportunity for you all to work with the President, who has no interest in abusing his prerogatives, to come to a common understanding on changing some of these laws.
Let me use the Antiquities Act as an example, with some suggestions that I would like to see you all make. First, I think you all ought to change some of the language to narrow the kind of lands that could be designated under the Antiquities Act. But because some Presidents have shown that they are not going to be bound by such descriptive language that exists in the current standard—you know, the smallest acreage necessary language—I think you all ought to impose a limit. I think that that limit should be 5,000 acres, and I have four reasons why I think it should be 5,000 rather than 50,000 acres that I would be glad to elaborate on.
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The second step that I would like to suggest for you all, and is elaborated a little bit more in my written testimony, is to consider some process reforms. Mr. Fein had some very good ideas, very creative ideas, two others that were contained in H.R. 2655 that was introduced by Representatives Ron Paul and Jack Metcalf last year, also I think are deserving of renewed attention, and that is that such declarations, executive orders, proclamations, should clearly state what the President's claim of authority is, because many of Clinton's did not.
I think a faithful executive ought not mind stating what he thinks his constitutional authority is. For example, in the American Heritage Rivers Initiative, President Clinton did not specify what his authority was, and in hearings before this House it was clear that his claims were rather ephemeral.
There is also some ways that you could increase standing for some parties by removing some of the statutory barriers to people bringing suit against the President.
The final suggestion I would make for you all is that I think you can encourage the President to institute internal reforms, and I would be glad to elaborate on what some of those internal reforms are. But sometimes reforms that the President makes in the process—For example, I used to work reviewing the President's executive orders, and I know that we followed executive orders to review the President's executive orders. Sometimes those kind of reforms are more longstanding and effective.
Thank you.
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[The prepared statement of Mr. Gaziano follows:]
PREPARED STATEMENT OF TODD F. GAZIANO, SENIOR FELLOW IN LEGAL STUDIES AND DIRECTOR, CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION(see footnote 1)
Good morning, Mr. Chairman and Members of the Subcommittee. Thank you for the opportunity to testify today on executive orders and presidential directives.
For the record, I am a Senior Fellow in Legal Studies and Director of the Center for Legal and Judicial Studies at The Heritage Foundation, a nonpartisan research and educational organization. I am a graduate of the University of Chicago Law School and a former law clerk to the U.S. Fifth Circuit Court of Appeals. I also served in the U.S. Department of Justice, Office of Legal Counsel, during different periods in the Reagan, Bush, and Clinton Administrations, where I provided constitutional advice to the White House and four Attorneys General. Several years ago, I also was privileged to serve as chief counsel for another Subcommittee of this House.
In recent years, there has been renewed interest in the proper use and possible abuse of executive orders and other presidential directives. For example, many citizens and lawmakers expressed concern over the content and scope of several of President Bill Clinton's executive orders and land proclamations. And, in an exceedingly rare act, the courts reacted by striking down one of President Clinton's executive orders. Litigation to contest the validity of other directives is ongoing. Despite the increased public attention focused on executive orders and similar directives, public understanding regarding the legal foundation and proper uses of such presidential decrees is limited. Thus, the increased public attention generally has been accompanied by confusion and occasional misunderstandings regarding the legality and appropriateness of various presidential actions.
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Attached as an appendix to my testimony is a Heritage Foundation Legal Memorandum we issued last month on ''The Use and Abuse of Executive Orders and Other Presidential Directives,'' which is also available at www.heritage.org. The twenty-four page memorandum provides a more detailed analysis of the President's use of executive directives, including a discussion of the historical practice, sources of presidential authority, the legal framework of analysis, and some brief thoughts on reform proposals.(see footnote 2)
In my oral testimony, I would like to focus on two somewhat distinct areas. The first is the general constitutional framework for executive directives. The second is what Congress can do to reassert its prerogatives and make sure that the President does not usurp them.
THE SEPARATION OF POWERS
One of the great and enduring gifts from the Founders' generation was the inclusion of separation of power principles in the United States Constitution. The Framers had studied the writings of Montesquieu and other political philosophers as well as the workings of the separate branches of their own state governments. Their conscious design to enforce this separation of functions was carefully explained in The Federalist Papers and during the debates over ratification of the United States Constitution. The separation of powers is now enshrined in both the structure of the Constitution and various explicit provisions of Articles I, II, and III.
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Yet, in the previous Administration, a baser motive seemed to prevail in the use of executive power. Former President Bill Clinton proudly publicized his use of executive decrees in situations where he failed to achieve a legislative objective. Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests. History will show that President Clinton abused his authority in a variety of ways and that his disrespect for the rule of law was unprecedented. Given this pattern, no one should be surprised that President Clinton sometimes abused his executive order authority as well.
A President who abuses his executive order authority undermines the constitutional separation of powers and may even violate it. But the constitutional separation of powers supports both sides of the argument over a President's proper authority. It reinforces a President's right or duty to issue a decree, order, or proclamation to carry out a particular power that truly is committed to his discretion by the Constitution or by a lawful statute passed by Congress. On the other hand, the constitutional separation of powers cuts the other way if the President attempts to issue an order regarding a matter that is expressly committed to another branch of government; it might even render the presidential action void. Finally, separation of powers principles may be unclear or ambiguous when the power is shared by two branches of government.
Thus, no simple recitation of governing law or prudential guidelines is possible. However, history and practice are useful tools in understanding the President's authority, and a legal framework of analysis exists to help determine issues of validity. In addition to the information in our memorandum, I would be happy to answer the Members' questions on these matters.
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RECOMMENDATIONS FOR CONGRESS
In the attached Heritage Legal Memorandum, we provided our thoughts on some priorities for the current President to correct the errors and abuses of the previous President in five issue areas: foreign and defense policy, environmental policy, regulatory review, labor policy, and civil rights. For example, President Clinton's land designations under the Antiquities Act were improper and many, if not most, were probably illegal. We opined that the President probably could rescind those that were improper. In addition, he can change the boundaries of the monuments, significantly reduce the acreage involved, and alter the restrictions for portions of the monument lands.
Whether some of these lands should be protected or not, it would be best in my view if President Bush rescinded the monument designations with a message to Congress that he would be happy to sign legislation that Congress sent to him regarding such lands. That said, it is probably not the best use of the Subcommittee's time to hear me talk about what I think a different branch of government should do, whether it is the executive branch or the courts. Regardless of what President Bush does to restore faith in the Office of the President—and I think President Bush has taken some very positive steps in the area of executive orders—Congress should take the following steps to prevent future abuses and protect its prerogatives:
First, Congress should modify or repeal the statutory delegations of power that Congress has granted to the President which have been abused or may be abused in the future. Let me stress that I have no reason to suspect that President Bush would abuse his authority. He has shown every indication that his example will be a good one. Yet, this very fact suggests there is a satisfactory basis for Congress to work with the executive branch to review some of these grants of authority and reach an agreement on possible legislative changes.
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For example, Congress did not significantly amend the Antiquities Act of 1906 when it revised many land management laws during the 1970s. Presidents Ford, Reagan, and George H.W. Bush did not make any monument designations under the Antiquities Act, but Presidents Carter and Clinton abused their authority to remove millions of acres of land from public use. Thus, I would recommend that Congress revise the type of land that can be designated as a monument under the Antiquities Act. More importantly, however, I think Congress should tighten up the language that requires monuments to be ''the smallest area compatible with the proper care and management of the objects to be protected.'' Because some Presidents have shown no intention of being limited by such descriptive words, I also recommend that Congress limit the amount of land that can be designated under the Antiquities Act without additional statutory authority to something like 5,000 acres.
The President could seek a waiver from such an acreage limitation if it were necessary, and there are other laws that can be used to designate national parks, wild and scenic waters, etc. But it is unclear to me why Congress would want the President to have unilateral power to lock away tens of millions of acres of land as a national monument but it would not grant the President equivalent authority to make the same land a national reserve or park. Consistency may be the hobgoblin of little minds, but it should not be dismissed out of hand when someone points out that it is lacking.
The International Emergency Economic Powers Act (IEEPA) was intended to limit the President's emergency powers during peace time. The era since IEEPA's passage has witnessed an improvement upon earlier abuses, but IEEPA has still spawned ''multiple concurrent states of national emergency,'' to quote one scholar. Although some of the authority granted to the President may be necessary in a true national emergency, I believe Congress should reassess the standards and threshold for a declaration of national emergency in that Act.
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A second step Congress can take is further consideration of some of the process reforms contained in such bills as H.R. 2655, the Separation of Powers Restoration Act, which was introduced in the last Congress by Representatives Ron Paul (R-TX) and Jack Metcalf (R-WA). H.R. 2655 would have required that all presidential directives specify the constitutional and statutory basis for any action incorporated in the directive or be void as to parties outside the executive branch. With few exceptions, most recent Presidents before Clinton did cite the font of their authority in their executive directives. President Clinton cited some authority in a majority of his directives, but others were vague or had no citation of authority at all. A faithful executive should not have a problem citing the authority for his actions, and this requirement would help citizens, lawyers, and the courts evaluate new directives. Although there may be some constitutional problems with the application of this requirement in some cases, it is worth further consideration and possible refinement.
H.R. 2655 also would have attempted to expand the number of parties with standing to challenge an arguably unlawful directive, including Members of Congress, state and local officials, and any aggrieved person. Because part of the standing doctrine is constitutional, a statute could not automatically confer standing on someone without a ''particularized'' injury in fact. Nevertheless, the provision would potentially expand the range and number of persons who could bring suit to challenge a questionable directive by removing any statutory impediments to suit.
Finally, I think Congress should encourage the President to institute internal reforms, including those that are designed to address past congressional concerns. Such institutional reforms tend to have a more lasting effect than many statutory reforms, perhaps in part because executive branch officials are directly answerable to the President and perhaps also because they are instituted with more flexibility or sensitivity to the needs of future Presidents. Thus, it makes sense for a new President to follow tradition but also to consider, in time, proposals to improve the process by which executive directives are issued.
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Mr. BARR. Thank you, Mr. Gaziano.
Professor Mayer, you're recognized for 5 minutes.
STATEMENT OF KENNETH R. MAYER, PROFESSOR OF POLITICAL SCIENCE, UNIVERSITY OF WISCONSIN-MADISON
Mr. MAYER. Thank you, Mr. Chairman.
I would just like to state for the record that my book, called ''Dysfunctional Congress'' had a question mark at the end and that my answer was ''no''.
It's an honor to have an opportunity to speak to you about the issue of executive orders and presidential power. In my view, the previous administration's use of executive orders and proclamations was not exceptional. Although many of President Clinton's orders were controversial, and some were overturned by the courts and in response to congressional pressure, his administration was actually continuing a longstanding practice by Presidents, who have used executive orders to assert control over administration and policy.
Historically, Presidents have used executive orders to implement momentous policies. A short review confirms that this is the case. Nineteenth century examples include Jefferson's Louisiana Purchase, Andrew Jackson's 1832 Proclamation Regarding Nullification, and Lincoln's Emancipation Proclamation, all among the most important actions ever taken by any President.
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In 1939, President Franklin Roosevelt used an executive order to create the Executive Office of the President, the touchstone of modern presidential leadership.
Through executive orders, Presidents have almost singlehandedly created the Federal Government's classification system for national security information, as well as the personnel clearance system, which determines whether individuals will have access to that information.
With Executive Order 12291, issued in 1981, President Reagan reshaped the regulatory process by giving the Office of Management and Budget the right to review proposed regulations to ensure they were justified by cost-benefit analysis and consistent with the President's broader agenda. This order, which extended earlier and less successful efforts by Presidents Nixon, Ford and Carter to contain regulatory expansion, has been continued under President Clinton, though in somewhat modified form.
Since executive orders are a tool of the President's executive power, their reach extends as far as the executive power itself. Ultimately, there is no conclusive answer to the question of how far that power reaches because, after 200 years of precedent and judicial opinion, the scope of the executive power remains somewhat ambiguous. What this review demonstrates, though, is that significant or controversial executive orders are nothing new.
It is important to place the existing controversy in historical perspective and to note that concerns about the scope of presidential authority are often tied to opposition to particular policies.
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The disputes over the previous administration's use of executive orders and proclamations to create national monuments and otherwise implement unilateral policies have developed along these same lines. Many of those who oppose the underlying policy raise questions about process and legality, while supporters argue that the acts are based on legitimate statutory or constitutional powers.
Critics of President Clinton's orders and proclamations have asserted that he went well beyond the proper scope of presidential power. In 1981, though, critics of Executive Order 12291 were making the same argument about President Reagan, and in 1793, critics of President Washington's neutrality proclamation made the same argument about him.
Executive orders are subject to important checks. An order not based on a legitimate grant of statutory or constitutional power has no force, and the judiciary has stepped in to reverse improper presidential actions, as occurred with Clinton's replacement worker executive order.
It is not a coincidence that many of the most significant Supreme Court rules on presidential power have involved executive orders, including Youngstown, Korematsu, Schechter versus United States, Cole versus Young, and Ex Parte Merriman. Judicial deference to presidential authority is substantial, but it is not unlimited.
Congressional action serves as another check. Particularly when the President is acting pursuant to a statutory delegation of power, Congress clearly has the authority to prevail. The legislature's recent action overturning OSHA's ergonomics regulation is but one case in point.
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Congress would be well within its rights to modify the Antiquities Act to restrict the President's ability to create new national monuments, or to repeal the ban on assassinations included in the various intelligence executive orders, or to replace the executive orders and classification with a statutory framework.
The ultimate check on executive energy is, and should be, political. Congress could step in to reclaim the ground it has lost to the executive, and the fact that it has not done so is much more a function of context than any flaws in constitutional arrangements.
Thank you.
[The prepared statement of Mr. Mayer follows:]
PREPARED STATEMENT OF KENNETH R. MAYER, PROFESSOR OF POLITICAL SCIENCE, UNIVERSITY OF WISCONSIN-MADISON
Good morning Mr. Chairman and members of the committee. It is an honor to have the opportunity to speak to you about the issue of executive orders and presidential power.
In my view, the previous administration's use of executive orders and proclamations was not exceptional. Although many of President Clinton's orders were controversial, and some were overturned by either the Courts or through congressional pressure, his administration was actually continuing a longstanding practice among presidents, both Republican and Democratic, who have used executive orders to assert control over administration and policy.
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Historically, Presidents have used Executive orders to make momentous policy choices.
A short review confirms that executive orders and proclamations can have profound consequences. 19th Century examples include Jefferson's Louisiana Purchase, Andrew Jackson's 1832 Proclamation Regarding Nullification, and Lincoln's Emancipation Proclamation, all among the most important actions ever taken by any president.
In 1939 President Franklin Roosevelt used an Executive order to establish the Executive Office of the President, the touchstone of modern presidential leadership.
Presidents have resorted to executive orders to implement many of the nation's most dramatic civil rights policies. These include Truman's integration of the armed forces and Eisenhower calling the Arkansas National Guard into active military service in Little Rock, Arkansas, in order to enforce a court order to integrate Central High School.
Through executive orders, presidents have almost single-handedly created the federal government's classification system for national security information, as well as the personnel clearance process which determines whether individuals will have access to that information.
With Executive Order 12291, issued in 1981, President Reagan reshaped the regulatory process, granting the Office of Management and Budget the right to review proposed regulations to insure that they were justified by cost benefit analysis and in line with the president's broader agenda. This order, which extended earlier and less successful efforts by presidents Nixon, Ford, and Carter to contain regulatory expansion, has been continued under President Clinton, though in somewhat modified form.
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Since executive orders are a tool of the president's executive power, their reach extends as far as the executive power itself. The question of when a president can legally rely on an executive order, therefore, is the same as the question of when can the president bring into effect the executive power generally. Ultimately, there is no conclusive answer to this question. Even after two hundred years of precedent and judicial opinion, the nature and scope of presidential power remain astonishingly ambiguous.
What this review demonstrates is that significant or controversial executive orders are nothing new. It is important to place existing controversy in historical perspective, and to note that concerns about the scope of presidential authority are often based on opposition to particular policies.
The disputes over the previous administration's use of executive proclamations to create new national monuments and otherwise implement unilateral policies have developed along these same lines: many of those who oppose the underlying policy raise questions about process and legality, while supporters argue that the acts are based on legitimate statutory or constitutional powers. Critics of President Clinton's orders and proclamations have asserted that he went well beyond the proper scope of presidential power. In 1981, though, critics of executive order 12291 were making the same argument about President Reagan. And in 1793, critics of President Washington's Neutrality Proclamation made the same argument about him.
The dire warnings of presidential imperialism through executive orders are overstated, and they serve not only to exaggerate the nature of the president's authority, but also divert attention from more serious issues involving government accountability and the development of unwarranted federal government power. Despite fears that executive orders can undermine popular sovereignty, it is also possible that they can enhance accountability, by creating a clear decision trail that leads directly to the President. Notwithstanding the often arcane language and obscure provisions in many executive orders, the orders themselves leave no doubt about who is speaking.
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Executive orders are also subject to important checks. An order not based on a legitimate grant of statutory or constitutional power has no force, and the judiciary has stepped in to reverse improper presidential actions (as occurred with Clinton's replacement worker executive order). It is not a coincidence that many of the most important Supreme Court rulings on presidential power have involved executive orders, including Youngstown, Korematsu v. United States, Schechter Corp. v. United States, Cole v. Young, and Ex Parte Merriman. Judicial deference to presidential authority is substantial, but it is not unlimited.
Congressional action serves as another check. Particularly when the president is acting pursuant to a statutory delegation of authority, Congress clearly has the authority to prevail; the legislature's recent action overturning OSHA's ergonomics regulation is but one case in point. If, say, the 107th Congress successfully modifies the Antiquities act to restrict the President's ability to create new national monuments, or repeals the ban on assassinations included in the intelligence orders, or supercedes the executive orders on classification with a statutory framework, its success would not be viewed as a reshaping of constitutional foundations.
The ultimate check on executive energy is—and should be—political. Congress could step in to reclaim the ground it has lost to the executive, and the fact that it has not done so is much more a function of context than of any flaws in constitutional arrangements.
Mr. BARR. Thank you very much, Professor.
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We will now be in the question period. I would like to first recognize the Vice Chairman, the gentleman from Arizona, for 5 minutes.
Mr. FLAKE. Thank you, Mr. Chairman.
Mr. Mayer, just to give some context, you do not feel that the President did abuse his proclamation power?
Mr. MAYER. Well, that's not precisely what I'm saying. I'm saying that Congress would be well within its rights to modify the authority so the President could not do what he did. I understand why people were uncomfortable with the process.
Mr. FLAKE. Going in retroactively, then, say, in Arizona, for example, I mentioned we have one example of a monument being created where there was previous agreement for an easement for transmission lines and what not, that is up in the air now. Would Congress be within its rights to go in and modify that arrangement, then?
Mr. MAYER. Well, without knowing much about the specifics of that case, my understanding of the law is that, if the President based the national monument on authority pursuant to the Antiquities Act, Congress could reverse that by legislative action.
Mr. FLAKE. Can reverse that, then?
Mr. MAYER. I believe so.
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Mr. FEIN. Could I just add one caveat? It seems to me recent Supreme Court decisions would suggest, if there have been some reliance taken by private individuals through contracts or otherwise, on an outstanding, whether you call it an executive order or regulation, and then retroactively Congress seeks to change the rules of the game, that could expose the United States to liability, either as an unconstitutional taking or otherwise. So it wouldn't necessarily be cost free, but ultimately, if Congress wants to have its way, it could undo everything that the President did, President Clinton did.
Mr. FLAKE. Mr. Fein, your previous testimony mentioned that the President can be sued on things like this, and so——
Mr. FEIN. Yes, he's clearly not immune from lawsuits. We know that from Jones versus Clinton and a whole host of Nixon precedents.
Mr. FLAKE. But when he has left office, then the office or action can be taken up as a takings issue, then?
Mr. FEIN. If there's been reliance. There may not be a takings issue. It just depends on what's happened subsequently before Congress acts under the outstanding proclamation.
Mr. GAZIANO. In my view, if you don't mind me chiming in, there are more likely to be takings, compensation claims, based on the abuse of proclamation than reversing them. I doubt—Bruce is right, that there is this theoretical possibility that there may be a just compensation claim based on reliance, but there's much more likely to be a takings claim based on the potential leases that were extinguished. The existing proclamations did not extinguish valid mining leases that were already in operation, but there were some, at sort of the inception stage—they're in a netherworld—where a regulatory takings claim might be asserted. So this government may face just compensation claims based on the abuse of claims, so you're all's reversing of them I think would probably save the Treasury more money than—So I don't think monetarily that should be a significant concern.
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Mr. FEIN. I do think that Todd also has brought up another approach here, that falls short of maybe the stark effort by Congress to out and out reverse what President Clinton has done, when he suggested that, well, you can require the President to state reasons for why he's done things, and the U.S. Supreme Court has repeatedly said the Executive branch agencies can only sustain their action based upon what their arguments made in justification were, not in something that they held secretly.
A statute that applied, that basically held the proclamation designation in abeyance until there was a statement, affirmative statement by the Executive branch of what were the reasons that justified, under the Antiquities Act, based upon scientific, aesthetic or what other values, justified the designation and the particular acreage, and then, once that had been done, exposing that to judicial review before the proclamation took effect, there I think it would be a way for Congress to approach and attempt to reverse what the President did, not by scrapping the Antiquities Act or by setting a precedent where Congress, on a case by case basis, second guesses the President, but says hey, wait a minute, this really wasn't done by turning square corners procedurally; the President never gave any reasons for this, he never gave any reasons why the particular acreage was there. Why don't we hold this in abeyance and have the procedures necessary to determine whether it satisfied the objectives. Many people may vote for that without hazarding the more stark precedent.
Mr. FLAKE. Thank you, Mr. Chairman.
Mr. BARR. Thank you.
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The gentleman from North Carolina, the Ranking Member, Mr. Watt, is recognized for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman.
I have been kind of looking at the language of the actual controversial declaration that Mr. Hansen, Representative Hansen testified about. I'm wondering whether perhaps, in the body of the proclamation itself, there may not be some recognition of things that this administration can do, because—I'm quoting now. It says, ''The Secretary of Interior shall prepare, within 3 years of this date...'' that was apparently September 1996 ''...a management plan for this monument, and shall promulgate such regulations for its management as he deems appropriate.''
Now, I take it the 3-year limitation applies to the management plan, not to the regulations, the way this is written—at least that's the way I would read that. So did the prior administration promulgate any regulations, and if they did, wouldn't those regulations have been governed by the APA, or would they not have been governed by the APA?
Mr. FEIN. I don't know whether the regulations were promulgated. Typically, when Congress gives a time deadline, it's honored more in the breach than in the observance.
Mr. WATT. I don't take the 3-year limitation to apply to the promulgation of regulations.
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Mr. FEIN. I understand, but I think you're referring not to the designation that caused the greatest exorcise by Congressman Hansen, but to one in—1996 was much earlier. I think all the other designations made under the 1906 Antiquities Act were in the last year of Clinton's presidency, and those are the ones, I guess, that have created more controversy than the 1996 designation.
Mr. WATT. I thought we were—I thought Representative Hansen was talking about the proclamation dated September 18, 1996, the Grand Staircase-Escalante National Monument's vast and austere landscape embraces a spectacular array of scientific and historic resources.
Mr. FEIN. Yes, that was one——
Mr. WATT. That's how it starts.
Mr. FEIN. Yes, that was one. But I think was——
Mr. WATT. Okay.
Mr. FEIN [continuing]. Was addressing the——
Mr. GAZIANO. I actually think, legally, that is the most problematic one, whether it——
Mr. WATT. So you're saying there was one subsequent to that?
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Mr. GAZIANO. Oh, there are lots that were controversial also——
Mr. WATT. But I thought we started this hearing off talking about this particular one, so I'm trying to figure out whether there isn't, even within the context of this proclamation, the makings of this administration's ability to issue regulations that do about anything, I would think.
Mr. GAZIANO. There have been some regulations issue. I'm not exactly——
Mr. WATT. Okay. Now, was that under the APA?
Mr. GAZIANO. What I was going to apologize for not knowing, and I apologize, is whether they were APA, what type of regulations, and whether—There's different types of regulations. There are four types of regulations, even under the APA, and some APA regulations require notice and comment, and some regulations don't require notice and comment. So I don't know what procedures they underwent.
But I think the short answer to your question is that there clearly are some things that this administration can do to modify the type of restrictions, and the Secretary of Interior, Secretary Norton, has indicated that they're considering this. So——
Mr. WATT. Okay. I didn't want to leave us with the impression that the prior administration has absolutely boot-strapped or hamstrung—I guess I'm using the wrong word—has hamstrung—this administration. I mean, it's just that I don't read this to be the case. It's not clear whether it would be done according to the APA or whether it would be done according to some other regulations. But this administration can issue regulations. It may not change the size, I guess. I would take it that that would probably take some act over here.
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Mr. GAZIANO. I think the President can. Actually, everyone, the CRS report, and I think everyone agrees, that he can even change the boundaries. The only——
Mr. WATT. I hear you say that, but if the prior President was acting outside the scope of his authority to do this, wouldn't this President be acting as far outside of his authority to make a revision?
Mr. GAZIANO. With your indulgence, I would be glad to say ''why not?'' There are three pending lawsuits challenging the legality of what the President did. The President has a responsibility to either defend the litigation or to confess error. In my view, the President needs to be honest in taking a litigation position. The——
Mr. WATT. Right now that would be the new President, right? The Justice Department would——
Mr. GAZIANO. Correct. The new President assumes the responsibility——
Mr. WATT. So they could go in and basically roll over on the case, right?
Mr. GAZIANO. Rollover, admit, if they think that there is a serious legal error.
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But even apart from that, I think everyone agrees that this President, because it's happened in the past, and it's been upheld, and I think—I forget whether it was Bruce or Professor Mayer, said that there has been restrictions. There have been changes in the boundaries. So that one of the other—I'm with you, in a way. I think this administration can do a lot to fix the current designations that were problematic. They can reduce the acreage; they can change the restrictions. I think, for those that were done unlawfully, they can actually rescind them.
Mr. WATT. I've got some more questions, but I don't want to prolong this.
Mr. BARR. We'll have another round.
The gentlelady from Wisconsin is recognized for 5 minutes.
Ms. BALDWIN. Thank you, Mr. Chairman. Just a couple of quick questions.
Professor Mayer, you were indicating, as an example of congressional activity overturning executive action, the ergonomics rule. We did that, or took that action, pursuant to the Congressional Review Act. It's the first time that Congress has used the CRA, as I read the history of that.
In some of the explanations and background pieces on why it hadn't been used before, of course, if you were to use it during the administration that promulgated the rule or the executive order, presumably you would have to have veto-proof margins in order to move forward with something and we had the unique moment of a change in administration.
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I'm wondering if there are examples in your research, that you located, where congressional actions have overturned an executive order or proclamation during the pendency of the administration that made such an executive order or proclamation?
Mr. MAYER. Probably the best example would be when President Clinton, I believe it was in 1998, issued an executive order which rescinded—it was on federalism and consultation with State and local authorities, which reversed, revoked the Reagan-era order. There was a lot of opposition, not only within Congress but also among community groups and local governments and State governments, many of whom noted with some irony that the executive order promising consultation was drafted and released without any consultation.
Congress passed an appropriation's rider that prohibited spending any money on it, and because of that, and I think strong political pressure, within, I think, a month or so, President Clinton issued another executive order revoking the one that he had just issued, which had the effect of reinstating the order that President Reagan had. So it does happen.
I think we were talking about this before, that the Presidents don't issue executive orders without any sensitivity to context or what the reaction might be. In that sense, the political context serves as an important check. But it's unusual, though it does happen.
Mr. FEIN. I think somewhat of a ''first cousin'' to that was when the President came in and initially announced an intent for his ''don't ask, don't tell'' policy in the military, and then, really before it ripened into a formal executive order, Congress, by statute, wrote in what their view of ''don't ask, don't tell'' ought to mean and that was the end of that.
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Ms. BALDWIN. A question about some of the internal reforms that Mr. Gaziano indicated could occur within the White House.
First of all, are you talking about internal reforms by executive order, or just policies, informal policies, that might guide the Executive Office?
Mr. GAZIANO. Both operate now, both, two executive orders govern the issuance of executive orders, and as Professor Mayer in his scholarly testimony, and I think probably his book, which I'm eager to read, indicated sometimes they're not always honored. But, by and large, when I help supervise the practice of reviewing presidential executive orders, it was both the sort of informal and formal.
What I'm recommending, anything Congress could do—and there are certain constitutional limits—the President can go further. He has actually more flexibility to hamstring himself, and actually future Presidents, until a future President changes his or her mind. For example, requiring—almost anything, I should say. He can require—Before I sign any executive order, I require you to certify to me that it is lawful, that sort of part of the process, and that it cite what my authority is, in such clear terms as ''I hereby designate.''
Probably one thing you can't do, though, is increase standing by removing statutory standing requirements. A part of standing doctrine is constitutional, a part is statutory. If someone doesn't have statutory standing to sue, he probably wouldn't want to allow suits. He can—to be brought against—to increase the number of suits that can be brought against him. That's an area where I think you all have almost exclusive authority to think through and maybe work out with the President.
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Ms. BALDWIN. I don't know if I have much additional time, but I would be happy to yield it to Mr. Watt to finish his questions if I do.
Mr. BARR. The gentlelady has 22, 21, 20 seconds. We will have another round of questions.
Mr. WATT. I'll just wait.
Mr. BARR. Okay, thank you. I recognize myself for 5 minutes.
Professor Mayer, I was intrigued by, I think, the end of your oral testimony, reflective of the last paragraph of your written testimony, where you say, ''The ultimate check on executive energy is—and should be—political. Congress could step in to reclaim the ground it has lost to the executive, and the fact that it has not done so is much more a function of context than of any flaws in constitutional arrangements.''
I agree with most of what you're saying, with the exception of the phrase ''and should be''. I don't think that the ultimate check on executive authority should be political. It should be legal. But I certainly agree with you that Congress could do a lot more than it has.
I'm just wondering why, in your view, why hasn't Congress stepped in? Is it a lack of interest, a lack of backbone, a lack of understanding of the issues? Why is it that—For example, even when the very unusual step was taken of having the former President's executive order on striker replacement challenged successfully in court, and even though there was a lot of discussion, certainly on our side of the aisle at that time in challenging it legislatively, nothing was done. Why is Congress so hesitant to assert its prerogatives when challenged, directly or by implication, by these executive orders, and is this something that is historically new or has Congress historically deferred to the President on these types of issues?
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Mr. MAYER. Well, the reason is primarily institutional. Congress is a majoritarian institution that requires action on behalf of 535 people and two separate institutions. Often it faces the possibility of a presidential veto, which raises the threshold from 50 percent plus one to two-thirds. I think that serves as the biggest impediment to Congress asserting its prerogatives, because when the President is able to act, the President, as more or less a unitary actor, can move swiftly and basically change the status quo to a new set of conditions to which Congress would have to affirmatively respond in order to overturn.
I think there have been a lot of examples of significant executive orders that generated quite a bit of controversy in Congress. One example is President Reagan's regulatory order, which generated a lot of attempts to try to reverse it. It took several years. And essentially what Congress was able to do was extract some promises about process and confirmation and so forth.
But, to me, that's the biggest problem, that once the President issues an order that's pursuant to either his constitutional authority or to a statute, much of the time, in order to formally undo it, Congress has to pass a law. The legislative veto doesn't work any more, or the one-house veto. That, almost by definition, makes it very difficult for Congress to step in and take action.
Mr. FEIN. I think another reason——
Mr. BARR. Let me—Hold on. Just a second, Mr. Fein. I just want to raise one other issue that I would like—and I was going to direct this to you.
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On January 20th, Andrew Card issued a memorandum for the heads and acting heads of Executive departments and agencies. The subject was a regulatory review plan. Are you familiar with that memorandum that Mr. Card issued?
Mr. FEIN. Generally, yes.
Mr. BARR. Can you tell me—Do you know what was the practical impact of that, and why has not the Bush administration thus far seem interested or willing to move beyond this memo in challenging or asserting its prerogatives to do more than simply review prior to existing regulations or executive orders, and actually take steps in those areas to undo them or modify them? Or are they simply satisfied with what went on before?
Mr. FEIN. The general idea of the memorandum was to place in abeyance those rules and decisions of the President or the agencies that hadn't taken legal effect yet. Some of them are very complicated and it takes time to review them. Others, if they are to be undone, require notice and comment in rulemaking under the Administrative Procedure Act, and that means you've got to come up with good reasons to justify revoking what a previous President did.
I remember in the Reagan years there was an attempt by the Department of Transportation to undo the automatic seatbelt rule of the Carter administration. It was reversed in the U.S. Supreme Court because you didn't give good enough reasons for doing this, because those regulations are subject to the APA, every bit as much in the promulgation as in the revoking.
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And then there's the additional reason that the White House is politically sensitive like the Congress is, and some of the regulations they may conclude, after they've had a time to assess, would be unpopular if they sought to revoke them. They have many things on their agenda at present, and some of these regulations don't jump to the front of the queue and so it seems to be agonizingly long for those who are directly interested.
But I don't think—you know, from the time of the memorandum, here we are 3 months later in a presidential administration that came on a little bit slow because of the prolonged presidential legal and judicial jugglery and is exceptionally worrisome or dubious.
Mr. BARR. Thank you.
Mr. Flake, you are recognized for 5 minutes.
Mr. FLAKE. No further questions, Mr. Chairman.
Mr. BARR. I'm sorry. I should have gone to the Ranking Member. Mr. Watt, you're recognized for 5 minutes.
Mr. WATT. Let me pick up on this point.
The Card memo, basically the Bush administration basically suspended the application of a number of regulations as I understand it; is that right?
Mr. FEIN. Tried to freeze them.
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Mr. WATT. Freeze them, froze them.
Mr. FEIN. Exactly.
Mr. WATT. Why would that not be as much a violation of the spirit of the APA as an actual reversal? I mean, basically what you're saying is you're not going to apply the rules that have been written.
Mr. FEIN. Well, if I can borrow from a famous, or infamous, precedent, it depends upon what the meaning of ''freeze'' is. [Laughter.]
I mean, you're right, Mr. Congressman. Insofar as the regulations had already got into the Federal Register and had been printed, those are regulations. You can't freeze those. But my understanding, and from reading the Card memo, that there were regulations that the decision-making had been completed, to say we want ''x'', but they hadn't actually got all——
Mr. WATT. So it actually made a distinction.
Mr. FEIN [continuing]. To dot the I's and T's crossed, so it made it into the formal U.S. Code, something like that.
Just as Congress may enact a statute, but it has to go to the Clerk and then be presented to the President, those sorts of things, and it takes some time. President Clinton was so busy in his last hours doing various and sundry things that apparently a fair number of these less-pressing and urgent matters—they weren't pardons, after all—maybe got caught up in the log jams.
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Mr. WATT. Any other comments on——
Mr. GAZIANO. There's even a third category. There is generally a 3-day lag, at least, between sending something over to the Federal Register and it actually being printed. But, in addition to that, the Card memo froze—Actually, there's more than three categories. So different action was taken on them.
Proposed rules, there was an instruction to sort of freeze certain of those, except those that were required by statute to be promulgated on a certain date. There was another category of rules that were in their final form but the effective date was some day in the future. Pursuant to your Congressional Review Act, one segment of that Act and some other legislation requires—and there is some general provisions of the APA—that for certain rules, require a 30-day effective delay. The Card memo, as to them, extended the effective date. The action—and there are some Supreme Court cases, and two D.C. Circuit Courts of Appeals cases, on how long you can extend them.
The administration has to make a decision—can't extend them indefinitely—needs to make a decision and republish in the Federal Register with regard to that category. We're either going to go forward with them or we're going to begin a process of reconsidering them for good reasons, and then go through the notice and comment procedure as well.
Mr. MAYER. And there's an additional category of executive action, which all Presidents try to do, and that is, when they get into office, to put their stamp on policy in a hurry.
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One of the first things that the current President did upon taking office was reverse a number of Clinton administration policies on—for example, the Mexico City policy, various executive orders dealing with——
Mr. WATT. Those are things that are short of executive orders?
Mr. MAYER. These were——
Mr. WATT. Or just policies, or is there some category——
Mr. MAYER. These were acts that were, I think, committed solely to presidential discretion and not formal agency regulations. On those things, the President can move more quickly. But it's also the case that President Reagan, when he took office in 1981, issued a similar moratorium on regulations that had been promulgated in the last few months of the Carter administration.
Mr. WATT. Let me just get one final question in, just for purposes of clarification. I'm going back to this 1996 proclamation. The President says it applies only to Federal lands, lands that belong already to the American people.
Does that make a difference?
Mr. GAZIANO. Well, it does. The Antiquities Act, and many of your land management laws, apply to Federal land. But in my mind, that doesn't really affect the central question. It would have been obviously worse, and even more illegal, if he tried to seize some other people's land.
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But even with regard to Federal land, you have a variety of statutes—the Wild and Scenic Rivers, the National Parks, various other—and the issue still with regard to Federal lands is whether the Antiquities Act purposes and size limitations were met, even with regard to Federal lands.
As Bruce has explained the converse—and I mentioned in response to Representative Flake's question—by freezing certain development on Federal land that had preexisting mining, grazing, timber, logging and other restrictions on it—some of that was allowed to continue, by the way, with these proclamations—that changed the character, withdrew those lands, withdrew the character of those lands, and may expose the United States to some claims for just compensation.
Mr. WATT. Thank you, Mr. Chairman.
Mr. BARR. Thank you.
The gentlelady from Wisconsin is recognized for 5 minutes.
Ms. BALDWIN. Mr. Chairman, I have no further questions.
Mr. BARR. Thank you. I recognize myself for 5 minutes.
Professor Mayer, I think you said that there's been a long line of Presidents that have used executive orders to ''assert control over administration policy.''
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Given that that seems to be, in your view—and I don't want to put words in your mouth—but if that is your view of the various presidential directives, proclamations and executive orders that we're talking about here, what was there in Proclamation 6920, on the Grand Escalante, that served to assert control over administration policy?
Mr. MAYER. Well, the argument I was trying to make through that statement is to place any particular action in the context of this is something the Presidents have long done to try to control a policy in a variety of different ways.
As Bruce mentioned, the authority to issue executive actions come either pursuant to constitutional or statutory authority, and oftentimes—and this issue over the Antiquities Act is not the first time this has happened. But Congress will commit an act to the discretion of the President, specifying some standards by which the President must act in order to promulgate decisions, whether it's—another example would be the Federal Property Administrative Services Act, which gives the President to issue regulations to enhance the economy and efficiency of government contracting. That was the authority that President Clinton cited in his replacement workers order.
It is very common for Presidents to really push the envelope of those delegations.
Mr. BARR. But isn't it—and I understand that, and I understand that all Presidents virtually have used various executive directives to, as you say very eloquently, assert control over administration policy.
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But what we seem to have had, in particular with the prior administration, and in particular Proclamation 6920, is something that went far beyond asserting control over administration policy, which I think is a very legitimate exercise of executive authority.
Is there anything that troubles you about Proclamation 6920?
Mr. MAYER. Well, I think it represents a difference in degree, certainly. I think the size—and, frankly, I think it's arguable about whether that was intended by the Antiquities Act, and there are obviously going to be disputes over the wisdom of that decision.
But in another context, it's an example of a President really pushing the envelope, and it's not the first time that has happened. You know, I am not a public lands lawyer; I don't know enough about the specifics of that particular case. In listening to Representative Hansen, it's understandable why there are questions arising over the process.
But I don't think that that represents, on its face, an absolute case for a violation of the law. I think it falls into an area in which there are questions about process. But that authority has been delegated and this is what a President can do. To push the envelope and interpret those delegations of authority in ways that——
Mr. BARR. If Congress delegates authority to the President to perform certain acts within certain bounds, such as ensuring that the designation is the minimal amount necessary to achieve a specific result—that is, identifying and designating a monument. Congress has not ceded to the President to do whatever he wants under the name, as long as he uses the name ''I'm doing this under the authority delegated under the Antiquities Act''. I mean, Congress certainly reserves, if nothing else, the implied power to step in and say no, you've gone too far with that, don't they?
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Mr. MAYER. Well, it seems to me that would be—that Congress could assert that authority, but they would have to do that through the legislative process.
On the issue of the smallest area, that's somewhat of a fluid standard that's open to judgment. If the statute had said that, as has been recommended, that there be an acreage limit, that the President may not designate an area larger than 50,000 or 5,000 or 100,000 acres, then it would be clear that a designation of 1.8 or 1.9 million acres would exceed that threshold. But without that kind of concrete marker, I think we're in sort of a grey area, where you can argue about whether or not it was, in fact, the smallest area consistent with the protection of that, or whether it wasn't.
I don't know if that's responsive to your question.
Mr. FEIN. Mr. Chairman, I think——
Mr. BARR. Can you really argue that with a straight face?
Mr. MAYER. Well, I guess, what I can say with a straight face is that I understand why there are differences of opinion about this. I can also say with a straight face that I don't see it as an absolute, on it's face, violation. But I can appreciate the arguments that are made, about why it may not have been consistent with the spirit and why it may have, you know, sort of been an eye-opener. I think it would be perfectly legitimate for Congress to respond by changing the statute, to make sure that doesn't happen again. And the fact that the legislation last session, to require public participation and so forth, passed by such overwhelming majority, suggests there is a lot of support for that.
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Mr. BARR. Did you have something to add, Mr. Fein?
Mr. FEIN. Yes. I think, Mr. Chairman, you have hit upon a kernel, a very critical point here, and it doesn't necessarily relate to just the Clinton administration.
I recall when I first came to Washington, just at the time the Nixon administration's inauguration in '68, at that time they set up the Domestic Policy Council. Since that time, I think there's been a slow accretion, whether you have Presidents who pledge cabinet government or not, of power, policy power, in the White House, nominally through the various domestic councils, but also the National Security Council taking over a lot of the decision making that formerly was made at the State Department.
Remember at one time Henry Kissinger was both National Security Adviser and Secretary of State, and when he was there as just the National Security Adviser, William Rogers, who was Secretary of State as a titular matter, was basically his ''cup bearer''.
The consequence of this, I think, has been over the years a vast, at least incentive, an ability of the White House in making decisions that formerly were made at the agency level, to circumvent the customary government in the sunshine that operates when an agency decides: notice and comment, rulemaking, decisions have to be on the record; you have the Government in the Sunshine Act that requires certain consultations to be made open to the public.
That seems to me an institutional problem that's not going to fade away, whether we have George W. Bush for two terms or one term, and you have someone else, because the nature of politics, I think, and the growth in power of the presidency makes the White House sort of the coveted place to serve. And if you serve in a coveted place, you've got to do things that make you feel that you're strong and powerful. So you make up these regulations.
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I don't want to exaggerate these things, but having worked around the White House and in politics for over two decades, there are those sort of subconscious pressures. The same reason why the pardons—I mean, when I was at the Justice Department, the idea that you would go directly to the White House for a pardon and not go through the pardon attorney and get a recommendation from the Attorney General, it would just be outlandish. And yet, it's happened, and that seemed not to be troubling to anybody, including former White House counsels.
So that's something that I think justifies holding hearings on the sensibility of making the White House, the Executive Office, an agency under the APA. Maybe you need to treat it a little bit differently for some reasons.
But certainly on its face, and because we have two Supreme Court holdings that say that, under the existing APA, the White House is not an agency, it certainly seems to me to address a problem that's not just here for this day and train only, the Antiquities Act, but really is going to be something that will encroach ever increasingly on congressional power unless there is a tougher oversight and subjection to what that White House does that doesn't obtain at present.
Mr. BARR. Thank you.
Does anybody else have other questions? I had a couple more, but I don't want to monopolize the time if other members have questions.
Mr. WATT. I was just going to observe, Mr. Chairman, that Mr. Fein may, in fact, have put his finger on the reason that this administration has not acted as promptly as some people would have expected, because they may well see that there will be a time when they will use all of this centralized power in their own ways——
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Mr. FEIN. They'll have successors.
Mr. WATT. So it's kind of hard to react as quickly as some people might under those circumstances. That's just an observation.
Mr. BARR. I think it's an accurate one.
Mr. Gaziano, are you familiar with the 1938 Attorney General opinion that relates to the Antiquities Act?
Mr. GAZIANO. I am.
Mr. BARR. This had to do with the Castle Pinkney National Monument established by the President in 1924 under the Antiquities Act. The question arose in 1938 apparently as to whether or not a subsequent President had authority to abolish a monument previously so designated.
The Attorney General's opinion says, ''While the President, from time to time, has diminished the area of national monuments established under the Antiquities Act,'' and then there's some other language, ''it does not follow from his power so to confine that area that he has the power to abolish a monument entirely.''
Let's assume that that's accurate, that that's sound legal reasoning. Is there other, though, independent authority, or authority elsewhere, either express or implied, that would give a President the authority to abolish a monument entirely under the Antiquities Act—a subsequent President, let's say.
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Mr. GAZIANO. I don't think there is other statutory authority. With due deferences I do to the Attorney General's opinion, I think it still might be an error with regard to even rescinding normal monuments.
But it might be right, for this reason. The President's power to make designations doesn't flow from any of this constitutional authority; it flows from your authority under Article IV, section 3, Clause 2, to regulate the Federal lands. If you all had made clear in the Antiquities Act that, once you make a designation, Mr. President, they can't be revoked, if you've been clear about that in 1906, then that would be final. So the Attorney General's interpretation is plausible.
My reason for suspecting, without going into why I think that might not be the case, at least with regard to the designations that were improper, I think a President today, a current President, is in the same position as a court, when there is litigation contesting the legality of prior designations. I think, at least with regard to those, the President can confess error and can rescind them. So that's a sort of——
Mr. BARR. Why hasn't there been a challenge to Proclamation 6920, the Grand Escalante?
Mr. GAZIANO. There are three lawsuits—and again, I apologize for not knowing exactly this month where they stand. One of them had some standing problems as to the parties. But I think those three cases, to my knowledge, are still pending.
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So this administration has got to make a decision on whether to defend it. And normally, the President's obligation, when it's a challenge to a statute, is to try to defend if any reasonable argument can be made. I think that's a wise decision.
But with regard, I think, to a prior executive action, a President doesn't have the same obligation to defend it, if any reasonable argument can be made. I think he has more latitude in those cases to confess error, to say that——
Mr. BARR. In other words, in those areas that relate to the President's exercise of either an expressed constitutional grant of authority or a power implied or inferred directly from that.
Mr. GAZIANO. Right. This challenge is not to the Antiquities Act itself. He would have to try to defend the Antiquities Act's constitutionality, if a reasonable argument could be made. And there is one, so he would have to defend it.
But when the challenge is to the President's lawful exercise of that power, I don't think he's obligated to make every reasonable argument he can, that the prior President acted lawfully. I think he can straight up answer the question—actually, has a duty, it seems to me, in responding to the litigation that the counties have brought, and I think local government was one. If you want, I have it somewhere tabbed who the three suits are pending.
Mr. BARR. If you could furnish that.
So really what you're saying then is, the answer to my initial question regarding the 1938 Attorney General opinion, is—and referring just to his final conclusion, that it does not follow from his power so to confine that area that he has the power to abolish a monument entirely—what you're saying is, yes, you believe that's an accurate reflection of presidential power and the law——
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Mr. GAZIANO. It's a close case, I think——
Mr. BARR [continuing]. Insofar as the initial exercise or the initial designation, was a lawful exercise or lawful designation?
Mr. GAZIANO. I think it's a close case. I think good arguments—I try to acknowledge where I think there is some open issue there. I don't think the Congress was clear in 1906, that you can't revoke it. And the Attorney General opinion is due what deference its persuasiveness has on courts and other people outside the Executive Branch. I find it somewhat persuasive, but not completely persuasive.
So, actually, I think maybe there's a 50-50 chance that a current President can revoke any prior designation. If you all had said he can't, he can't. But you all weren't clear, so you have to infer from the 1906 Act whether he can revoke any prior lawful designation. I think that's a rather close question.
Mr. BARR. Ultimately, I guess—Professor Mayer, we get back to your point, that politics really dictates a lot of this; that if a subsequent administration wants to, sort of on the other side of the equation, push the limits, what it can do to overturn or rescind a prior executive action, they certainly can do so. But a lot of times, or I guess most times, they don't. Maybe it's a political——
Mr. MAYER. I'm not sure—A lot of times they do, and we've seen that in the first month, first several months of this administration. You saw that in the first months of the Clinton administration——
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Mr. BARR. I mean, the current administration really has not moved aggressively to undo any prior executive action.
Mr. MAYER. Oh, actually, they have. They have reversed Clinton's decision on the Mexico City policy; they reversed a Clinton era order that—the current order now requires notification of—I forget what the exact language is—but notification that members of a union can ask for a refund of the portion of their dues that goes for political activities; reversed an order on the...here I'm sort of searching my mind—on whether or not unions have an advantage when competing for Federal contracts in particular areas. There are a variety of examples from many administrations about them.
The very first thing that Clinton did when he took office in January, 1993, was to reverse a series of Bush administration orders dealing with fetal tissue research and interpretation of the Title IX—abortion counseling and so forth.
But to get to the point about pushing the powers, or pushing the envelope, it's not inconceivable to me that a successor President could push this issue of simply trying to or asserting the power to reverse a proclamation or the establishment of a national monument, because right now we've got a 65 year old opinion of the Attorney General which I think establishes that the power to designate doesn't automatically confer to the power to disestablish. But that's something that a President might be willing to take on, and that, to me, would be part of a continuing pattern of Presidents of both parties really probing the boundaries of their executive power and to see how far they can push it to accomplish their goals and to assert control over policy.
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Mr. BARR. Thank you.
Just one final question, Mr. Fein. You mentioned a couple of times the APA. Is there specific language that you think would be appropriate to consider legislatively to look at using the APA as a vehicle to perhaps clarify and assert some limitations on the problem that brings us here today?
Mr. FEIN. Well, if you amended the language to say that, you know, unless Congress specifies otherwise, an agency under the APA includes the Executive Office of the President, because there may be certain unique features of the Office of the President that you wouldn't want to have all APA rules apply to, then the rulemaking procedures apply to the Executive Office, which would include decisions relating to proclamations, executive orders, or otherwise. You leave in there the possibility that, on a case-by-case basis, Congress may carve out an exception for the President. But the ordinary rule is, yeah, you want government in the sunshine every bit as much in the White House as you want in the various agencies. I find it difficult to conclude why that wouldn't be appropriate.
I recall—I believe yourself had a problem under the Privacy Act claim, was it an agency or not, you know, under the Freedom of Information Act, to gather information that the Executive Branch presumably may have assembled for purposes, nefarious or otherwise. You know, we weren't able to get it because of the narrowness of at least the prevailing understanding of what an agency was subject to the Privacy Act.
But I think our country has thrived, despite the possibilities of abuses, on strong reason to believe government should be in the sunshine, unless there's a really strong reason why it shouldn't be. Too many—right now, the White House office functions too often times not in the sunshine but in the old back door situations.
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Mr. BARR. Is—the legislative vehicle that you suggested, amending the APA with regard to the Executive Office, is that, in your view, a better way of addressing this than some of the other legislative remedies that have been proposed over the last couple of years, including a couple that have been before this Subcommittee?
Mr. FEIN. I'm not sure I would choose that, because it does—it's going to limit to some degree flexibility that a President might find productive in some circumstances.
You know, the equally, it seems to me, compelling idea of requiring the Executive Office of the President to present before Congress at least 90 or 120 days, 180 days in advance of any decisions taking effect, basically requiring a clear notice of what's going to happen, that then gives Congress ample time and the press ample time to mount political pressure, so that the President either backs down or Congress has time to enact a statute that overrides the President, that might work. We really haven't tried it in a serious way, so we don't know. But if that political response is satisfactory, then you wouldn't need to go to what is a more stark and less flexible effort and making the Office of the President an agency under the APA, with all the attendant baggage.
Mr. GAZIANO. Mr. Chairman, if you don't mind, there would be some constitutional issues of grave concern if you did try to apply all of the APA to the Executive Office. The Supreme Court case, Franklin versus Massachusetts, which is the most recent decision that says they're not covered by the APA, did so.
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When a plain reading of the text might lead to the opposite conclusion, the Supreme Court said we're going to interpret the APA not to include the Executive Office of the President or the President because that would raise serious constitutional issues. Without elaborating on what they are, unless you want me to, I think, at least in application, in some instances, it would create constitutional problems.
I think this Congress has in the past recognized a sort of small protection to those who are closest advisers to the President, out of deference to him, with the same regard you have to your senior staff members. You have a sort of privacy. You operate on the floor in public, but all of your discourse and deliberations in your chambers, in your office, are not subject to full disclosure, either. So I think those are at least—It's a good idea, but it should be carefully done, I think.
Mr. BARR. I agree. And I don't think Mr. Fein was suggesting that——
Mr. FEIN. No, and I think the way——
Mr. BARR [continuing]. Everything that happens within the Executive Office of the President would be subject to the APA.
Mr. FEIN. Right. Well, it would be those that culminated in rules, as defined in the—something that's the equivalent of a rule or an adjudication. And the way in which Congress has addressed the problem, that I think Todd rightfully raises, is simply to put in ''except where the Constitution requires otherwise,'' so and so and so and so. That's what they did with certain national security wiretap oversights, and that simply is an indication of Congress that there may be a constitutional problem, and if the court does find one, then interpret the statute to exclude that particular instance.
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Mr. BARR. Thank you.
Are there any other questions from other Subcommittee members? Anything else that any of you all would like to impart to the Subcommittee?
Mr. FEIN. Well, if you just want a historical footnote that's somewhat humorous with regard to the Attorney General's opinion, there was one of our former Attorney Generals who became Supreme Court Justice, Robert Jackson, and he had advised President Roosevelt on a certain issue relating to the military and had given an Attorney General opinion. It related to whether aliens could be drafted under the particular law.
He subsequently became a Supreme Court Justice and sat on a case challenging the legality of his Attorney General opinion. He wrote a concurring opinion in this case, called Christianson, in which he said ''Well, on second thoughts—'' he had looked at what he had done previously, and he was astonished that a man of his intelligence ever could have been guilty of such foolishness and voted that he was clearly wrong. So Attorney General opinions aren't always found in Heaven.
Mr. BARR. That's probably the last Supreme Court opinion that was so frank. [Laughter.]
Thank you. On behalf of the Subcommittee, I would like to thank the witnesses for being here today. If there is any more material that you all would like to submit to us, please feel free to do so.
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Counsel, is there any time limit within which they would do that, to include it in the record? Within 7 days. The record will remain open for 7 days.
Thank you all very much. We stand adjourned.
[Whereupon, at 1:36 p.m., the Subcommittee adjourned.]
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(Footnote 1 return)
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(Footnote 2 return)
Although I was the principal author of the memorandum, the review of President Clinton's executive orders and proclamations was a collaborative effort involving others at Heritage.