Presidential Power Grab or Pure State Might? A Modern Debate over Executive Interpretations on Federalism

I. INTRODUCTION President William J. Clinton recently addressed prominent state and local officials as well as many foreign dignitaries at a conference on federalism. In his opening remarks, he observed, "I think it is quite an interesting thing that we have this impressive array of people to come to a conference on federalism, a topic that probably 10 or 20 years ago would have been viewed as a substitute for a sleeping pill."1 Yet President Clinton's position on federalism has received sizable attention as of late. Federalism is a hot topic in the executive branch, as well as other branches of the government, with the Supreme Court hearing several cases dealing specifically with the limits of congressional power in its 1999-2000 term,2 and Congress pushing federalism bills through the House and the Senate to codify federalism philosophy.3 It was President Clinton's enactment of Executive Order 13,083 in 1998, however, that united, as well as enraged, state and local groups in an effort to return to federalism policy as set by President Ronald Reagan in 1987. Over the course of the past year, President Clinton has issued not one, but three, executive orders delineating the executive branch's policy on federalism. Executive Order 13,083 ("1998 Order")4 was the first and most provocative. Quietly issued in May, the 1998 Order changed, without consulting state and local officials, the executive branch federalism policy that had been in place since President Reagan's Executive Order 12,612 ("Reagan Order").5 It was originally scheduled to take effect on August 12, 1998;6 however, under a barrage of criticism from members of Congress and state and local interest groups,7 President Clinton issued Executive Order 13,095 ( "Suspension Order" ),8 indefinitely suspending the implementation of the 1998 Order. Opponents claimed that the 1998 Order was "wrongheaded and unacceptable," a "serious step backward" from the previous Reagan Order signed in 1987, and demanded that the order be withdrawn.9 The Clinton camp responded by stating, "'We thought there were no real substantive changes... but in retrospect, it wouldn't have hurt' to review the new language with the state and local officials."10 The suspension of the 1998 Order allowed time for state and local governments to consult with the Clinton administration about federalism policy issues.11 After over a year of negotiations between state leaders and the White House,12 Executive Order 13,132 ("1999 Order")13 was issued in August of last year. It has been touted as "strengthening the partnership with state and local government,"14 and "a very positive development" by state and local leaders.15 In a letter to President Clinton, Clarence Anthony, President of the National League of Cities, stated that state and local groups have been "encouraged by your commitment to crafting an enforceable executive order that seeks to balance the needs of federal, state, and local governments in order to achieve that true partnership among all levels of government envisioned by America's founding fathers."16 As it happened, however, the "balance" struck by the 1999 Order was actually a near-complete reinstatement of the Reagan Order. With few exceptions, every change attempted by the 1998 Order has been changed back to the original language of the Reagan Order, and much of the Reagan language has even been strengthened. This Comment traces the evolution of the 1999 Order. Part II gives a brief history of the use of executive orders and describes how they are used today. Part III gives an introduction to the major ideological contents of the Reagan Order and the 1998 and 1999 Clinton Orders and describes the events surrounding their creation. Part IV compares the orders' major substantive aspects, and demonstrates how state and local groups' wishes have prevailed. It also argues that had the 1998 Order remained in place, the Order would have allowed the executive branch to regulate in areas traditionally outside its regulatory authority and wrongly impinged on state self government. …