For twenty years, President Jimmy Carter held the record for the most number of 11th hour executive orders. Outgoing presidents have been notorious for stepping up their activity in the Oval Office just before they have to turn out the lights. But Jimmy Carter set the bar so high it seemed unlikely that anyone would surpass his record. President Bill Clinton, however, did just that. His flurry of last-minute executive orders broke the Carter record that stood for twenty years.
During his two terms as president, Bill Clinton averaged about one executive order each week. By doing so, he was able to effectively legislate from the Oval Office. He wrote executive orders to set aside large tracts of land as national monuments. He wrote executive orders to restructure federalism. He wrote executive orders adding "sexual orientation" to laws on federal hiring. He wrote executive orders prohibiting federal contractors from hiring permanent striker replacements. In other words, he exercised a legislative function: he made laws.
In the past, presidents have used executive orders in order to move the executive branch of government in a particular direction. Presidents have used executive orders to close banks during the Depression, desegregate the armed forces, intern Japanese-Americans during World War II, protect endangered species, and ban assassination of foreign leaders. President Clinton merely took an existing executive privilege and vastly expanded it to allow him to make laws while sitting in the Oval Office.
And President Clinton followed in the tradition of President Carter in putting out a rash of executive orders during his last few months in office. Just on Jimmy Carter's last day in office alone, the Federal Register (a daily summation of new rules for the executive branch) was three times its normal size. The regulations drafted by President Carter and numerous lame-duck regulators earned the nickname: midnight regulations. By the time all the dust settled, it was estimated that President Carter added about 24,500 pages of last-minute regulations. President Clinton surpassed that record with over 30,000 pages of new regulations in the last 90 days.
The cost of these regulations is still being calculated. One of President Clinton's last-minute regulations concerned "ergonomic standards" for employers. These rules require that typists have wrist pads, adjustable-height chairs, and good lumbar support. Failure to comply with these regulations can result in fines and various legal action. Industry groups estimate that these regulations alone will cost $40 billion a year or more.
Another expensive last-minute action by President Clinton was the executive order that banned new roads on nearly 60 million acres of public lands. For years, environmental groups tried to designate these lands as "wilderness areas." That would require congressional approval. With the stroke of the pen, President Clinton achieved the same result and effectively locked-up vast acres of land from logging, mining, and other commercial enterprises. In the past, President Clinton also locked up valuable natural resources when he created the Grand Staircase Escalante National Monument and the American Heritage Rivers Initiative. Both were the result of executive orders and will cost this country significantly in terms of unavailable resources.
The regulatory cost of executive orders is enormous. The National Center for Policy Analysis estimates that all of these executive regulations cost the economy more than $700 billion a year. That is more than the federal government spends on any budget item except Medicare, Social Security, and defense. The annual cost of federal regulations works out to about $7000 per household.
Critics have been calling for President Bush to overturn the flurry of executive orders signed by President Clinton. Doing so will be more difficult than most people realize. Consider the difficulties that President Reagan faced in overturning many of President Carter's executive orders.
President Reagan came into office and put an immediate freeze on Jimmy Carter's midnight regulations. But when it came time to begin to reverse these orders, President Reagan found himself thwarted by federal courts that ruled that existing regulations could not be arbitrarily ignored or revoked. Instead, they required that new regulations be crafted to reverse old ones. And this process is a lengthy one which requires advance notice and public comment.
President Bush will face many of these same obstacles. Like President Reagan, he put a freeze on Bill Clinton's last-minute executive orders. Over the next few months and years, his administration will face the daunting task of rewriting and revising these executive orders according to the dictates of federal court rulings.
By working at each area in a piecemeal fashion, President Bush will probably achieve a level of success. This will be a time-consuming process, but can be successful as long as his administration applies continuous pressure on the process.
President Bush will also be able to achieve greater success by signing his own executive orders that will move his agenda forward. Many of President Clinton's executive orders which are not tied to administrative regulations can be undone by the stroke of President Bush's pen. By following this process of revision and initiation, President Bush will begin to roll back some of the agenda of President Bill Clinton.