Stealth executive order trashes 10th Amendment 

By Sarah Foster 

     Ever since Americans got wind of the executive order on
"Federalism," which the president signed without fanfare in England, May
14, the Internet's been humming with warnings about the threat it poses
to the Constitution and our system of government. Word is out that EO
13083 represents a major power-grab by Clinton and his    
administration, and if it goes into goes into effect Aug. 12 as
scheduled -- 90 days after the signing -- the U.S. Constitution will be
so much confetti and Clinton can work his will on the body politic. 

     The home folks are way ahead of their elected officials on this
one. To date, Democrat and Republican lawmakers alike appear oblivious
to what this executive order does and have been quick to flick away
constituents' concerns. Yet Republicans in particular might not be so
sanguine if they realized that by issuing EO 13083 Clinton thumbed his
nose at the entire Republican Party -- from former president Ronald
Reagan to the GOP leadership, members of Congress, and everything they
claim to represent --- and they don't even know it. If ignorance is
bliss, Republicans on the Hill must be some of the happiest people
around. 

     A harsh judgment? Let's take a look. 

     Clinton's order actually revokes an earlier one -- EO 12612, issued
by President Reagan Oct. 26, 1987 -- and replaces it with a hideous
parody, an EO from hell. It also revokes EO 12875, which Clinton himself
issued on the same date, but six years later in 1993. EO 12875 promised
an end to unfunded mandates and was basically a    way to steal some
thunder from the Right and Newt Gingrich's Contract with America. Since
it was never really acted upon, we won't notice it's gone. 

     The revocation of the Reagan executive order is a different matter.
That's serious. 

     Both EO 12612 and its replacement deal with federalism, that is the
relationship of the states to the federal government and the
distribution of power between the two as established by the
Constitution. They are policy directives to executive departments and
agencies of the respective administrations -- guidelines to federal 
bureaucrats and law enforcement for determining when a regulation or
legislation has "federalism implications."

     Therefore, they address questions of jurisdiction, state
sovereignty, the degree to which the federal government can intervene in
state affairs, and the extent of federal regulatory activity allowable
within a state. In a word -- the limits, if any, to the power of the
federal government. 

     Whoever crafted EO 13083 used the framework of its predecessor and
borrowed some of its wording, but any resemblance between them stops
there. When it comes to policy and constitutional interpretation, the
two executive orders -- though about the same subject -- are opposed at
virtually every point. 

     For example, federalism itself -- according to Reagan's EO 12612 --
is "rooted in the knowledge that our political liberties are best
assured by limiting the size and scope of the national government." Not
surprisingly, EO 13083 doesn't talk about small government and political
liberty, nor is there any explanation as to why federalism was adopted
as a system in the first place, merely that it's somehow "premised" on a
system of checks-and-balances.

     According to the Clinton view of federalism it's OK for the
"supreme" government to be of gargantuan size and unlimited scope and
power so long as it's "balanced."  By issuing his executive order,
Reagan was trying to repair the damage to our political system wrought
by Supreme Court decisions and the "mission creep" of federal agencies.
Towards that end EO 12612 stresses state sovereignty, sets real limits
on how far regulatory agencies can go in carrying out mandates by
Congress, and above all, specifically reaffirms that the Tenth Amendment
-- the one that says that powers not delegated by the Constitution to
the national government, nor prohibited by it (the Constitution) to the
States, are reserved to the States respectively, or to the people. 

     Consider these quotes from EO 12612: 

     "The Constitutional relationship among sovereign governments, state
and national, is formalized in and protected by the Tenth Amendment to
the Constitution."

     "Acts of the national government ... that exceed the enumerated
powers of that government under the Constitution violate the principle
of federalism established by the framers." 

     "In the absence of clear constitutional or statutory authority, the
presumption of sovereignty should rest with the individual states.
Uncertainties regarding the legitimate authority of the national
government should be resolved against regulation at the national level." 

     Clinton's EO 13083, on the other hand, never mentions state
sovereignty, enumerated powers, nor for that matter the Tenth Amendment.
Here's a major pronouncement on federalism by a sitting president with
no reference to the Tenth Amendment! 

     The heart of both executive orders is the criteria for policymaking
-- the whys and wherefores that justify federal
intervention in state affairs. For Reagan this was to be undertaken only
if there were "clear and certain constitutional authority" for any
federal activity, and such activity must be necessitated by "a problem
of national scope." 

     That's way too restrictive for Clinton and his vision of
big-is-beautiful government. EO 13083 empowers bureaucrats and federal
agencies in his administration to "determine" for themselves if there is
"constitutional and legal authority" for whatever they want to do
without concerning themselves unduly about "clear and certain
constitutional authority." And why limit federal action to mere
problem-solving? For Clinton federal action is justified by a host of
"matters of national or multi-state scope." To quote a few: 

     When decentralization might increase the cost of government and
impose additional burdens on the taxpayer. 
     When States would be reluctant to impose necessary regulations
because of fears that regulated business activity will relocate to other
States. 
     When placing regulatory authority at the State or local level would
undermine regulatory goals because high costs or demands for specialized
expertise will effectively place the regulatory matter beyond the
resources of State authorities. 
     When the matter relates to Federally owned or managed property or
natural resources, trust obligations or international obligations. 


     That last is the worst of the lot. The agencies already claim they
have a right to manage natural resources on private land, and with EO
13083 in place as official policy it will be much harder for a property
owner to launch a challenge in court or for a "reluctant" state or local
government to tell the feds to go home to Washington. 

     As for the surreptitious reference to international obligations --
that should have set off alarm bells, at least among Republicans, but
didn't. The president's not talking only about treaties (though those
are bad enough, goodness knows), but about deals and arrangements he
makes with foreign governments like China, or decisions he makes on his
own. For instance, take the Kyoto Summit's Convention on Global Warming
-- one of many treaties that advance the agenda for world-wide
eco-fascism. Though unratified by the Senate, Clinton has adopted it as
a policy for his administration. Since the convention is a creature of
the UN, Clinton can put our country under its mandates and deflect
criticism by saying he's only following obligations. 

     And as if the green agenda weren't bad enough, the rationale of
international obligations increases Clinton's warmaking powers
exponentially. He's effectively given himself unlimited authority to
send the boys to Bosnia, Cyprus, India, Pakistan -- anywhere and
whenever he wants to do a show of force number. No need to ask    
Congress nor even the UN for a go-ahead. With EO 13083 he can just call
up the troops. 

     So what's the bottom line on EO 13083? Is it as bad as folks are
saying? Yes, it is. Can it completely wipe out what's left of the
Constitution? You bet. Can it be stopped? Sure. But don't count on it.
Most members of Congress -- including Republicans -- don't want to face
down the president, and that's what canceling this executive order would
require. Worse, our congressmen don't seem to give a zip about the
Constitution or the survival of this country. If they did, we wouldn't
be in the mess we are and Clinton wouldn't be on his way to China. With
EO 13083 in his pocket, you can bet he's laughing all the way to
Beijing. 

     © 1998 Western Journalism Center 
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