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38


THE LIBERTARIAN ENTERPRISE
Number 38, June 19, 1998

Further Comments on Executive Order 13083

By J.D. Tuccille
tooch@akula.com

Exclusive to The Libertarian Enterprise

          I've read the offending Executive Order 13083. The problem here goes deeper than the specifics of the apparent vast overreaching of one particular Executive Order.
          Executive Orders in general have a certain quasi-legal status -- which means no legal status at all, but nobody has really bothered to challenge them, so they've grafted themselves onto our constitutional system.
          Technically, Executive Orders are just orders to executive agencies (which have an uncertain constitutional status to begin with) dealing with how they should conduct themselves. That's fine, if all we're talking about is instructions on how to reserve vacation time and mandates not to waste paperclips, but we all know that Executive Orders have wandered far beyond such internal matters. Instead, we now have the President ordering agencies to act as if a law had been passed, in the absence of such a law.
          This is where the recent "ban" on importing military-style semi-automatic rifles comes from. U.S. Customs was instructed to refuse entry to shipments of such weapons, as if they were illegal, even though they are not. At best, such orders skate along as forced interpretations of laws actually passed by Congress.
          This new Executive Order, though, doesn't even appear to pretend to piggyback on matters of internal interest to agencies or on interpretations of statutory law -- it's simple rule by decree -- a nasty bit of work.
          Couched in phrases of respect for the Constitution and the principles of federalism is a formal structure for federal agencies to bind and bypass state governments. Technically, the order says that, "Agencies may limit the policymaking discretion of States and local governments only after determining that there is constitutional and legal authority for the action."
          In practice, this means that agencies will do as they please until a federal judge says otherwise.
          The order does set out some rather wide-ranging grounds under which federal agencies may act to circumvent state governments. One of them, "When States have not adequately protected individual rights and liberties," sounds good if we're talking about sending in the FBI to stop the KKK from lynching blacks. These days, though, it's more likely to apply to welfare claims and affirmative action.
          More troublesome are the provisions under which federal agencies may act, "When decentralization increases the costs of government," "When States would be reluctant to impose necessary regulations because of fears that regulated business activity will relocate to other States," and "When there is a need for uniform national standards." These are slippery criteria that provide no limitation at all -- in fact, they cover almost any situation.
          The order sets out a formal structure for "consultation" with state authorities who may object to federal action, but this boils down to meeting with state officials, filing their objections, and writing boilerplate justifications for federal actions.
          If this Executive Order is allowed to stand by the courts, permitting agencies to act with no statutory mandate or constitutional authority, then it would mean the end not just of federalism in the United States -- federalism is already well-eroded, but this would certainly drive the last nail in the coffin -- it would also mean the end of constitutional government. If the courts permit a president and executive agencies to effectively supplant state governments, then the legislative leg of the three-part separation of powers (legislative, executive, judicial) is consigned to secondary importance even at the federal level. The only effective restraint on executive power would be lawsuits on constitutional grounds, with policies presumably required to respect the much-eroded boundaries of the First Amendment and the like.
          I recommend a lawsuit at the first possible opportunity to test the validity of the order before it becomes part of the legal landscape. Any resident of an affected state should have standing to bring such a suit.
          This order is not good news.


          J.D. Tuccille, a New York-based writer and veteran of political campaigns, civil liberties groups, and wee-hours bitch-fests with clueless folk who see nothing wrong with treating mature adults like public resources and indentured servants, is almost certainly the only NRA member living in New York City's East Village.
          He is also the proprietor of the Civil Liberties site, a spot for no-holds-barred advocacy of personal freedom. Here gun owners meet free speech advocates and both sit down for a drink with tax resisters and drug legalizers. So come on in and hash out ideas about freedom and individuality in a world that sometimes seems to have lost faith in those ideals. Whether you're looking for a home-away-from home or just a good argument, the Civil Liberties site can accomodate you: http://civilliberty.miningco.com/.


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