[Congressional Record Volume 143, Number 46 (Thursday, April 17, 1997)]
[Senate]
[Pages S3316-S3317]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               ABUSE OF EXECUTIVE ORDERS AND REGULATIONS

  Mr. COVERDELL. Mr. President, a news flash to President Clinton: In 
America, you do not get to rule by Presidential decree.
  President Clinton is prepared to provide the ultimate payoff to labor 
bosses, an Executive order that essentially mandates that Government 
contractors toe the union line. Too bad about the millions of American 
workers who choose not to belong to a union. Now they are to be second-
class citizens.
  The policy substance of the President's gambit is sufficiently bad, 
but we suggest there is an even larger issue, one that goes to the very 
heart of our constitutional form of government.
  One of the great strengths of our Republic is a Constitution that 
reflects, and nicely balances, the tension between democratic 
representation in the legislative branch and the executive power of the 
President. The Founders established Congress in article I as the source 
of all legitimate authority, all legislative powers; that is, the 
authority granted by the people. The executive branch, at least in 
terms of domestic policy, is constrained by the requirement that the 
President take care that the laws be faithfully executed.
  Fairly elementary stuff. But in reality, of course, there has been a 
continuous struggle among the branches over where the legislative power 
begins and ends. Normally, these tensions erupt at times of great 
crisis: Lincoln during the Civil War, Truman and the steel mills. 
Typically they are bound up in questions of war and peace and the 
President's foreign policy role.
  What we face during the twilight of the Clinton era is something very 
different and much more worrisome. What we see now is a calculated 
strategy by the White House to ignore the unhappy reality that the 
President was reelected with less than a majority vote while the 
Republicans were reelected to a majority in Congress. Now, it appears 
his goal is to encourage gridlock in the Congress while issuing 
Executive orders and regulations that exceed his legal power to act.
  There is perhaps no area of Federal policy more contentious than 
labor issues. This has been true in fact for most of this century. It 
is also clear that labor bosses and leaders faced continued loss of 
power and declining membership. They have been stymied time and again 
in their efforts to expand their powers over unwilling American 
workers.
  So what has the President done here? He is issuing an Executive order 
that deprives nonunion employees of their right to choose whom they 
support in the political process. He attempted to bar, through an 
Executive order, any company that exercises its right to hire 
replacement workers during a strike, though the courts properly struck 
this down. He is now about to issue an Executive order that would allow 
agencies to bar--prohibit--Federal contractors if they do not use 
unionized labor.
  Most recently, he is playing with a change in procurement regulations 
that would bar companies from Federal contracts unless they had 
satisfactory labor relations. Determined by whom? The President. Unions 
could have a field day with that. All they would have to do is initiate 
a lawsuit under the National Labor Relations Act and, presto, you have 
a company that has unsatisfactory labor relations. This would be 
laughable if the impact were not so grave. Hundreds of billions of 
dollars and hundreds of thousands of jobs are at stake.

  In short, President Clinton's actions twist beyond recognition the 
role of the Presidency in the legislative process. The Framers were 
careful to ensure that the President's voice was a negative one by 
granting him the veto. They did not grant him the equal and opposite 
power--he did not get the power of decree. A negative power like a veto 
is more easily used to avert harm. The decree smacks of autocracy.
  But give the White House their due. The White House has carefully 
established precedents based on issues that are difficult to confront. 
Ironically, some of the most contentious issues are going to be the 
most difficult for the Congress to resolve. In some cases, perhaps a 
majority of Congress would agree, in others they will not. But we 
believe those are precisely the types of issues that are intended for 
legislative consideration and a majority vote. This is known as 
representative democracy. It might be messy. It might take longer than 
the pundits like. The results may not please everybody. But it is a 
process that is founded on the consent of our citizenry.
  This is a time when there are many questions on whether various 
individuals in the White House have been engaged in unlawful activity. 
Only time will tell how that plays out. What we do know right now is 
that even more than all these financial and campaign issues, the 
President's abuse of Executive orders and regulations is a direct 
threat to the rule of law in America.
  Mr. President, I now yield to my good colleague from New Hampshire 5 
minutes of my time.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. I thank the Senator from Georgia for his excellent 
statement, which sets the premise for this hour of discussion that has 
been reserved relative to the proposal by the administration and the 
President and the Vice President to unilaterally take control over what 
is clearly a legislative prerogative and determine, unilaterally, that 
89 percent--89 percent--of the work force in this country which would 
participate in Federal jobs will no longer be able to participate in 
those jobs. That is the practical effect of this proposal which is 
being put forward by the President and which was announced by the Vice 
President, was announced by the Vice President at a convention of a 
building trades union.
  One could be cynical and say, ``Well, the building trades unions in 
the last campaigns spent $35 million reported''--we suspect maybe it 
may be closer to twice that unreported--``spent $35 million reported 
for the purposes of electing this President and that therefore this 
decision by the President to exceed his authority, as announced by the 
Vice President, is a return of that favor.'' One could be cynical and 
one would be accurate, I suspect, in making that statement.

[[Page S3317]]

  But as the Senator from Georgia has pointed out, this goes well 
beyond the cynicism of this administration, which has already been 
displayed in a most significant way in a variety of other instances 
relative to campaign financing and fundraising and what will be done by 
this administration to benefit people who contribute to them. It goes 
well beyond that cynical approach and abuse of power which has become 
almost a hallmark of this administration. It goes to the essence of the 
separation of powers on which our Government is structured.
  This Congress is the Congress of the people. It is the Congress which 
is elected by the people. You may agree with it. You may disagree with 
it. But the fact is that the membership of this Congress is sent here 
for the purpose of writing the laws which govern the people whom we 
represent.
  As the Senator from Georgia has so adequately pointed out, the 
President's power in the legislative process is that of a negative, not 
of a creator of that law. In fact, ironically, the President does not 
even participate as a negative on some of the most significant laws 
that affect this country.
  For example, the budget of the United States is not signed or vetoed 
or subject to signature or veto by the President of the United States. 
It is purely a law driven by the body of the people of this country, 
which is the Congress. When a decision is going to be made to 
disenfranchise 89 percent of the people who presently participate in 
working for the Federal Government as contractors, that cannot be 
unilaterally done by the executive branch. That is a decision of such 
weight and of such importance that it is reserved clearly to the House 
of the people and to the Senate of the United States. And yet, this 
President has decided to do that and to, by fiat, by an arbitrary 
decision, put together who knows what.
  It certainly was not put together through the process of a 
legislative hearing. It was not put together through a process of a 
legislative debate. It was not put together through a process of a 
legislative vote in a committee, and a legislative vote on the floor of 
the Senate, and a legislative vote in the House, and a legislative 
conference, creating a bill which is sent to the President.
  No, it was put together by somebody sitting in a back row, writing an 
idea which was given to the Vice President of the United States, who 
went to a labor union annual meeting and announced, ``This will be the 
new law of the land.'' That is not the way we govern in a democracy.
  For that reason, I strongly support the initiative today put forward 
by our leader in the Senate, Senator Lott, which, said as I understand, 
the nomination of the Secretary of Labor shall not be brought before 
the body until this matter is cleared up, because that is our 
prerogative. That is our legal right as a representative of the people 
to advise and consent on the nominees for Cabinet positions. That is a 
legal and constitutional right. We have the legal and constitutional 
right to limit our advice and consent, and to not approve a member of 
this Cabinet, or to approve a member of the Cabinet.
  In this instance, we certainly have a right to hold up that 
nomination until this arbitrary act of excess on the part of the 
executive branch, done for whatever reason, is clarified and withdrawn. 
And, in fact, it would be my view that we should hold up probably just 
about every nomination which the administration wants to proceed with, 
because if they are not going to proceed in good faith in governing, if 
they are going to proceed in a manner which clearly exceeds the bounds 
of authority of the executive branch, then it is incumbent upon us as 
the legislative branch, as the branch elected by the people, to govern 
and to legislate, to make it clear to the President that that type of 
action will not be tolerated and cannot be tolerated if we are to 
maintain a constitutional democracy, a democracy built on the concept 
of checks and balances, a democracy which was designed by Madison and 
has survived so well for so many years.
  The issue has been laid out. The fight has been joined. I believe 
this Congress must assert its prerogative to retain its right as a 
legislative body of the people of this country.
  I yield back the balance of my time.
  Mr. COVERDELL. Mr. President, I thank the Senator from New Hampshire 
for his comments with regard to this very crucial and, in fact, 
constitutional issue.
  We have been joined by my good colleague from Arkansas. I yield such 
time as the Senator from Arkansas desires to address this issue.

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