From: wdstarr@athena.mit.edu (William December Starr)
Subject: Re: executive orders
Organization: Northeastern Law, Class of '93
Distribution: usa
Date: Sun, 24 Jan 1993 13:28:02 GMT


In article <1993Jan24.060929.11298@athena.mit.edu>, 
jfc@athena.mit.edu (John F Carr) said:

> 1. "ethics rules" for his advisors prohibiting them from lobbying for
> 5 years after leaving government.
>
> When corporations try this, the courts don't allow it.  Does Clinton
> have the authority to indefinitely restrict former employees from
> working in a certain field?  (He said 5 years, but how is that legally
> different from 50 years, or forever?)  What's the punishment for
> violating this rule?

When corporations try this, the courts sometimes allow it and sometimes
flush it.  It depends upon how restrictive the "non-competition" clause
(for lack of a better term) in the contract is, and how much of a burden
it places upon the person who is banned from taking certain sorts of
jobs in certain sorts of geographic areas for certain amounts of time.
Courts also like to take into account a certain intangible concept
called variously "public policy" or "the public interest" in deciding
these things; I suspect that that's the hook upon which Clinton would
hang most of his defense of this executive order.  (I also suspect, but
do not know, that any person already in government service who's
affected by the E.O. would be "grandfathered," that is, would have his
or her status controlled by the state of the law/E.O. as of the time
that they took the job.)

> 2. reversal of ban on abortion counseling at federally funded clinics
> 
> I thought this was a law, not a regulation?  Or is there a law that
> authorizes but does not require such restrictions?  I know Congress
> tried to reverse the ban but failed.

I dunno.

> 3. end to ban on gays in military
>
> The reports on this issue that I heard last year said this would
> require an act of Congress.  Would a Clinton order preventing
> enforcement of the anti-gay regulations be illegal?

An Act of Congress would be required to modify the Uniform Code of
Military Regulations to eliminate the parts that criminalize homosexual
activity by members of the U.S. military.  What Clinton is (probably)
planning on doing via an E.O. is to order the military to stop asking
current soldiers and candidates for enlistment about their sexual
orientation and to stop expelling people from the military because their
sexual orientation is such that they would be in violation of the UCMR
_if_ they practiced it.

> I'm not looking for a discussion of whether any of these actions are
> good or bad, but I have no idea where Clinton gets the legal authority
> for them.

Executive Orders are weird little beasties.  Basically, they are derived
from the idea of "separation of powers" -- that the Chief Executive
shall have pretty much full control over his own branch of the
government, save where the Constitution dictates otherwise (thus the
fact that the Senate must approve the President's nominations to his own
Cabinet).  The "ethics rules" that you mentioned are (probably)
supported by that doctrine -- that the President can set rules for the
people that are going to be working for him.  And Executive Orders
regarding the military pretty clearly are derived from the Chief
Executive's other job title: "Commander in Chief of the Army and Navy of
the United States."

As stated above, I don't  know what the story is regarding the federal
abortion "gag rule."

-- William December Starr <wdstarr@athena.mit.edu>

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