[Congressional Record Volume 143, Number 48 (Tuesday, April 22, 1997)]
[Senate]
[Pages S3408-S3409]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     LEGISLATING BY EXECUTIVE ORDER

  Mr. NICKLES. I would like to follow up on some of the statements that 
have been made by our colleagues concerning the executive branch's 
current willingness to legislate by Executive order. I have talked to 
the White House two or three times now. I have let it be known that I 
want to use whatever tools are available to get their attention and 
make sure they quit attempting to legislate by Executive order.
  Some of our colleagues may not be aware of what we are talking about, 
but we have had two or three disputes--maybe we should have had more--
with the administration over the last few years about executive actions 
that clearly should be implemented through legislation by Congress, the 
body elected by the people for legislative purposes. This 
administration, the Clinton administration, has tried to bypass 
Congress and legislate by Executive order. I think they have done so 
knowing full well in many cases they could not get their desired 
objective through Congress so they just decided to do it by fiat.
  I am here to say all of us, Democrats and Republicans, should reject 
that approach. We should uphold this institution, the legislative 
branch, the branch of the people, and say this is why our forefathers 
had separation of powers. The Constitution is very clear. If you read 
the Constitution, it states in article I, ``All legislative powers 
herein granted shall be vested in a Congress of the United States which 
shall consist of the Senate and the House of Representatives.'' ``All 
legislative powers.'' It does not say some. It does not say that if the 
administration cannot accomplish its objectives through the Congress it 
can go ahead and pass them by Executive order.
  In the 10th amendment it says all other powers are reserved to the 
States and to the people. So the executive branch has the power to 
enforce the law but not to write it. That is the responsibility of the 
legislative branch. And then if people do not like the laws we pass, 
they can vote for someone else. They have a chance to do that through 
the election process.
  There are a couple of cases where the administration has overstepped 
its bounds, and I think where Congress has spoken up, or should have 
spoken up. One example was a case where the administration tried to 
give organized labor a gift and issued an Executive order to prohibit 
hiring replacement workers during a strike. They tried to get Congress 
to pass a bill that would do that in 1993 and 1994--and actually passed 
legislation through the House but could not get it passed through the 
Senate. So after the 1994 elections, the administration tried to change 
the law by Executive order in March 1995. That was contested in the 
courts.
  I might make note that in the November elections of 1994, Republicans 
took control of the Senate and it was obvious that this legislation 
could not pass Congress. So President Clinton, in my opinion, 
overstepped his bounds and issued an Executive order in 1995 barring 
management from hiring replacement workers during a strike--a perfectly 
legal practice under the National Labor Relations Act. He issued this 
order knowing that Congress had twice rejected legislation that would 
have done the same thing. The courts didn't let him get away with it.
  On February 2, 1996, the U.S. court of appeals threw out President 
Clinton's Executive order ruling that the President's action was 
clearly unlawful and was preempted by the National Labor Relations Act. 
Clearly, the court's message was a reminder that the President does not 
have a blank check to adopt policies in direct conflict with Federal 
laws established by Congress.

  The President does not have legislative authority. I think that is 
what we are finding in a couple of his other Executive actions. Another 
example deals with the Grand Staircase-Escalante National Monument 
where the President in September 1996 unilaterally took a 2 million 
acre coal-rich block of land in Utah and made it a national monument. 
He did it without talking to Congress. He did it without consulting the 
Utah delegation. He did it without consulting the people who live and 
work in that area. He did it without consulting the Governor of Utah. 
He basically said we are going to take that 2 million acres and declare 
it a national monument.
  Maybe I would support such a thing, but again we have a committee, 
the Energy And Natural Resources Committee, that considers such bills. 
We should have had a hearing on that legislation. There has never been 
a hearing. There has never been a chance for the Utah delegation to 
speak out on that legislation. Is it good or not? I am not sure how I 
would vote. Maybe I would vote with the President.
  My point is he usurped congressional responsibility and basically 
said we are going to declare this a national monument by Federal fiat.
  I might mention that when he did this--it was in September 1996, 
during a campaign--he had a press conference around the Grand Canyon in 
Arizona. He did not do it at a press conference in Utah because his 
decision was quite unpopular.
  My point is not whether his decision is popular or not. He did it 
clearly for political purposes. But he did not allow the people to 
speak. The President is not king. He cannot do that. And maybe this 
will be contested. Probably we did not speak out enough on it.
  Another example where I seriously think he has exceeded his Executive 
authority and I think legislation is required, is the President's 
Executive action requiring that if you are under age 27, if you buy 
cigarettes, you are required to show an ID wherever you are buying 
them. And if retailers are found selling to minors or anybody under the 
age of 27, they face civil penalties of $250 or more and could be 
subject to other sanctions. Retailers reported to have sold cigarettes 
or smokeless tobacco to someone under 27, without checking their photo 
ID, risk compliance checks being conducted in the future.
  Maybe we should do that. I will tell my colleagues, I do not want 
kids smoking. I have four kids. I absolutely do not want them to smoke. 
This is hazardous to their health. I have a mother who has emphysema, 
lung cancer, which is very serious. I absolutely do not want anybody to 
smoke. But if the President wants to have ID checks for anybody under 
age 27, or age 40 for that matter, he can introduce it in Congress and 
maybe we can pass it. I think that is a proper prerogative of the 
States. But at least it should go through the legislative route. He did 
not do that.
  He has advocated other Executive rules dealing with advertising. I 
supported banning smoking on airplanes. I may support banning various 
types of advertising. But we should go through the legislative process. 
We should have hearings. We should let elected people make a decision. 
I think the President's Executive action goes so far as to ban outdoor 
billboards or baseball caps that say Marlboro, and so on. I think the 
President's actions and the FDA's rules have exceeded the 
constitutional authority of the executive branch. I think that is 
wrong.
  Finally, Mr. President, let me bring up the latest proposed Executive 
order, and I say proposed because it has been announced by the 
President that he is going to issue an Executive order that deals with 
Federal construction projects which will in practice screen out 
nonunion businesses from participating in Federal construction projects 
or force their employees to join a union, the so-called project labor 
agreements.

  Mr. President, this is an egregious power grab by organized labor. If 
they want to try to do this they should do it through the legislative 
branch. They should see if they have the votes. We have $239 billion of 
Federal construction spending available between now and 2002, and to 
come up with an Executive order and say you need not apply unless you 
have a union is totally wrong. Totally wrong. More than 80 percent of 
the workers that are doing Federal work on construction projects now, 
according to this proposal, need not apply; or if you are going to 
apply you need to join a union. What about free competition? What about 
competitive bidding? What about the taxpayers?
  For the administration to try to make this kind of behind-the-scenes

[[Page S3409]]

deal with organized labor--and we have reports that organized labor was 
writing this regulation, that they were involved in formulating this 
regulation--to come up with this type of a power grab I think is 
absolutely wrong. If they want to do it, they should do it through the 
legislative branch. Have somebody who supports this legislation 
introduce it. Let us debate it. Let us find out where the votes are. 
Let us go the legislative route. Let us go the constitutional route.
  And so I have contacted the White House and tried to let them know 
that I am very sincere about trying to protect the constitutional 
prerogatives of Congress. This is the legislative body and I am very 
sincere about making sure that the White House does not become the 
legislative body by Executive action.
  And so, Mr. President, I have told the White House we are willing to 
use what actions we have at our disposal to try to get their attention. 
We have the confirmation process. We also have the appropriations 
process. We have the judicial process. We have other tools available to 
try to convince the administration they cannot legislate by Executive 
order. That's very much my intention.
  I just noticed an article in the Thursday, April 17th Roll Call where 
Mr. Reed Hunt, the Federal Communications Commission Chairman, is 
talking about drafting a notice of proposed rulemaking to examine the 
idea of free broadcast time for Federal candidates and predicted that 
free time for candidates could be implemented in time for the 1998 
elections.
  Mr. President, we have campaign reform before this body, and there is 
certainly legitimate debate and we have talked about having free time 
for political candidates. Some people call it food stamps for 
politicians. That is a legitimate legislative item we should discuss. 
But the FCC Chairman does not have the authority to say by fiat, by 
direction from the administration, that we are going to give candidates 
free time and mandate that or dictate it or bribe the broadcasting 
authorities to enforce it.
  That is a serious mistake. If we are going to say politicians are 
entitled to free time, let us have that as part of a bill. Let us 
debate it. But Mr. Hunt cannot do it.
  We as a legislative body, Democrats and Republicans, need to reassert 
our legislative authority, our legislative responsibility, and we need 
to object. If we find the administration, the executive branch, trying 
to legislate, we need to object. At a different time I will speak about 
the need to object when the Supreme Court or courts are legislating as 
well, because we find that branch of Government is involved in the 
legislative process. Right now they are considering two cases 
legalizing assisted suicide. The Supreme Court does not have the 
authority to legalize anything. That is the responsibility of this 
body. That is called legislation. And that is a subject for a speech at 
another time. I am strongly opposed to the executive branch legislating 
as well as the judicial branch legislating. Both are wrong. This is the 
legislative branch. I as one Senator, whether I agree with the 
direction of the Executive order or the judicial decision, I am going 
to speak out loudly and strongly and use tools available to make sure 
the Congress remains the legislative branch of Government.

  Mr. President, I yield the floor and I thank my colleague from 
Connecticut for his patience.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, are we in morning business?
  The PRESIDING OFFICER. We are, with Senators allowed to speak for up 
to 5 minutes.
  Mr. DODD. I ask unanimous consent that I may be able to proceed for 
10 minutes as in morning business, and I may need a couple minutes 
beyond that, but I will try to move through the material fairly 
quickly.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. I thank the Chair.

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