McClaughry: Needed, stronger limits on executive power

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McClaughry: Needed, stronger limits on executive power

Tue, 01/03/2017 - 9:51am -- tim

by John McClaughry With a new President and Governor inaugurated this month, it’s a good time to rethink the limits of executive power to act without the authorization of the Constitution or the legislature – especially in view of the growing abuse of executive power.

The US Constitution bestows upon the President the power to make appointments, fill vacancies and commission officers, make and submit treaties to the Senate for approval, grant reprieves and pardons, serve as commander in chief of the armed forces (“the war power”), and the duty to “see that the laws are faithfully executed.”

The war power has become exceedingly broad. The faithful execution clause recognizes that the President may, by executive order, organize and direct the work of his subordinates. The borderline between such necessary direction and acting without authority to promote the President’s own ends has never been clearly defined.

For example, President Jefferson, the strictest of strict constitutionalists, ordered the construction of gunboats in private shipyards even though Congress had not voted funds to pay for them.

President Franklin Roosevelt issued Executive Order 6102 of 1933, "forbidding the hoarding of gold coin, gold bullion, and gold certificateswithin the continental United States". The effect of the order was to criminalize the possession of monetary gold by any individual, partnership, association or corporation.

By far the most extravagant use of the Executive overreach has come in President Obama’s second term. His actions were based on the Obama-invented doctrine of “We Can’t Wait!” for the Republican-controlled Congress to do his bidding.

Obama decreed that five million illegal aliens would be exempt from deportation, the law notwithstanding. An appeals court found this beyond the President’s powers, and the Supreme Court affirmed.

The Supreme Court ruled 9-0, including Obama’s own liberal appointees, that Obama could not constitutionally make recess appointments while the Senate was in session.

The Obama EPA decreed its Clean Power Plan to shut down carbon dioxide emissions, but it was promptly enjoined by a Federal court, and the case remains undecided.

The 6th Circuit Court struck down Obama’s decree that his administration could regulate any body of water that eventually drained into the navigable “waters of the United States”.

Another Federal judge ruled that if Congress does not appropriate funds for the Obamacare “premium reduction program”, the President may not redirect lawfully appropriated funds for that purpose.

All of these cases, and quite a few more, issued from either Executive Orders or other actions by an administration operating under the Obama’s “We Can’t Wait!” theory.  In Jefferson’s day, when Congress met infrequently, his decision to buy the gunboats and hope Congress would appropriate the money (it did), is pardonable. But in this day, the extralegal acts of the Obama administration pose a dangerous threat to Constitutional government.

The Vermont record is not nearly so bad, but recent Governors have done some high handed acts that went beyond the law.

Governor Dean noticed a sign at Exit 10 of I 89 announcing the existence of the Cold Hollow Cider Mill in Waterbury Center. The business owner had gone through the process for obtaining a permit and paid for the sign, only to have Dean direct the Transportation Department to take it down because it offended Dean’s sensibilities.

Just last month  Gov. Shumlin decided he could appoint a Supreme Court Justice to replace Justice John Dooley,  despite the obvious fact that there is no vacancy to fill until Dooley departs the Court, which he refuses to do until April.

On December 20 Shumlin issued a lame-duck Executive Order to put state contract bidders at a competitive disadvantage unless they adopt approved energy conservation and efficiency practices, promote electric vehicles, and purge their employee retirement funds of investments deemed unacceptable by Peter Shumlin, i.e., fossil fuel companies.

Can he do this? Legally, it’s an open question, but no constitutionally responsible governor would even think of doing this without obtaining authority from the General Assembly.

Incoming Governor Phil Scott ought to immediately rescind this order, and announce that if and when the General Assembly directs that state contracts be awarded with certain political conditions, it can put a bill for that purpose on his desk, which he will sign, or not.

There has also been some talk, from the camp of the Governor-elect,  that he intends to prohibit more wind towers in Vermont by Executive Order. Gov. Scott should think long and hard before succumbing to that temptation.

A far easier way would be for the General Assembly to cancel out the Federal Production Tax Credit subsidy, which it can easily do. That would be the end of Big Wind, and the new Governor would avoid a thoughtless and regrettable drift into the “I Can’t Wait!” camp.

John McClaughry is vice president of the Ethan Allen Institute (