- The Washington Times - Monday, February 19, 2001

A legal memorandum prepared for President Bush accuses Bill Clinton of having abused his presidential powers to issue executive orders, many of which are described as illegal, improper or political.
In a 24-page review of Mr. Clinton's numerous executive orders and federal regulatory rule-making, a senior legal analyst for the Heritage Foundation sharply questioned the legality of many of the outgoing president's actions and urged Mr. Bush to revoke or revise them..
Todd F. Gaziano, who wrote the lengthy legal memorandum, said Mr. Clinton aggressively used executive decrees "in situations where he failed to achieve a legislative objective. Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests."
A review of Mr. Clinton's orders showed that "a disproportionate number of these executive directives were either illegal or issued in the furtherance of an improper policy or political objective," said the memo, a copy of which was obtained by The Washington Times. Its findings, which are to be made public today, will be submitted to the White House.
"A president who abuses his executive order authority undermines the constitutional separation of powers and may even violate it," the memorandum said.
"History will show that President Clinton abused his authority in a variety of ways and that his disrespect for the rule of law was unprecedented. Given this pattern, no one should be surprised that Clinton sometimes abused his executive authority as well," the memo said.
Many of the abuses by Mr. Clinton were in his use of executive orders under the Antiquities Act of 1906, which he used to create seven national monuments comprising a million acres of land, as well as in directives in other areas of foreign, defense, environmental policy, regulatory review and civil rights, the memo said.
Congress considered legislation to prevent abuses of executive orders but ran into stiff opposition from the Clinton administration. However, the memo said it would be "a mistake to try to restrict a president's lawful and proper executive order authority because of one abusive president."
"Because few reforms can be imposed on a president over his veto, it makes sense for Congress to work with the new president on such reforms rather than overreact to the abuses of the last president," the memo said.
The hundreds of executive orders that Mr. Clinton signed in the closing months and weeks of his presidency sparked substantial controversy, and the Heritage analysis said much of the criticism was justified.
One of the most sweeping orders Mr. Clinton signed on Dec. 4 created the largest protected area in the United States, covering an 84 million-acre ecosystem around Hawaii that will be off-limits to oil exploration and will limit commercial fishing. In another sweeping action on Jan. 9, the Environmental Protection Agency approved regulations to protect tens of thousands of acres of wetlands, marshes, swamps and bogs.
All presidents have used executive orders under authority that in most cases Congress has given them, but in Mr. Clinton's case, "a baser motive seemed to prevail in the use of executive power," the memo said. Mr. Clinton, it added, pushed his authority beyond legal limits.
Every president since Harry S. Truman was "generally more careful to stay within their constitutional and statutory grants of authority in the exercise of their executive order authority until the administration of President Clinton," Mr. Gaziano wrote.
"Although the number of illegal executive orders issued by Clinton does not constitute a large percentage of his total 364, the pattern of illegal orders, often without any claim of statutory or constitutional authority, was still striking," he said.
The memo said the "clearest example of Clinton's lawlessness" was when he signed his " 'striker replacement' executive order" in 1993 after Congress refused to change labor law to prohibit businesses from permanently replacing workers who were on strike.
The executive order was unanimously overturned by the U.S. Court of Appeals.
One of the most "outrageous" orders signed by Mr. Clinton, under the Antiquities Act, was the establishment of the 1.7 million-acre Grand Staircase-Escalante National Monument in Utah, the memo said. When President Carter used this act, in most cases the areas covered only a small amount of land.
Mr. Clinton's order created this landmark area "with insufficient public participation and arguably without adequate due process," Mr. Gaziano said. While Mr. Clinton's sweeping use of the Antiquities Act is now facing legal challenge in court, the Heritage analysis concluded that Mr. Bush has the authority to "rescind any prior designation under the Antiquities Act."
"Each of the executive orders should be carefully reviewed to determine whether the current administration should: (1) allow it to continue; (2) revoke it with a new directive; (3) revise, supplement, or otherwise amend it; or (4) redirect agency implementation through a presidential memorandum or other action," the memo advised.

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