The Clinton Presidency and the Constitutional System

Bill Clinton and Unilateral Executive Power

Bill Clinton and Unilateral Executive Power ryan j. barilleaux and christopher kelley In the waning weeks of his administration, President Bill Clinton took a number of actions that excited many who agreed with his policies, angered his conservative critics, and even shocked many of his supporters. He issued orders that declared large tracts of western lands off limits to development and made regulatory changes that tied the hands of the incoming Bush administration; in doing so, he cemented a policy agenda that was more extensive than much of his legislative record for the preceding eight years. Clinton employed an expansive reading of the 1906 American Antiquities Act to justify proclamations setting aside millions of acres of wilderness—including the Grand Staircase –Escalante National Monument in Utah, parts of the Florida Everglades, and Idaho’s Craters of the Moon National Monument—a move that was successfully defended in court by arguing for sweeping presidential authority to interpret the 1906 law.1 He also pardoned a number of controversial figures, including Susan McDougal and Marc Rich, leading to charges that he had sold his pardon power to a campaign contributor. These actions drew renewed attention to the issue of unilateral executive power. At a time when the Modern Presidency thesis suggested that he should have been at his weakest—after the election of his successor had already taken place—and only a few years after pundits had asked whether the presidency was still relevant in a Washington, DC, that was home to a new Republican congressional majority, Bill Clinton was wielding presidential power in a way that seemed to defy conventional expectations of executive influence. While President Clinton’s actions drew a considerable amount of media attention and charges from conservatives about excessive power, they were neither isolated nor merely the work of a liberal Democrat. Rather, they conform to a larger trend in the presidency of recent decades: since the Nixon administration, all presidents have pushed the envelope of executive power when the traditional skills of the president—bargaining and persuasion—have proved ineffective. 124 • barilleaux and kelley The Autonomous Presidency Bill Clinton came to the presidency nearly three decades after the bruising battles between the White House and Congress that some observers have called the “wars of Watergate” and the era of the “postimperial presidency,” but his conduct of the office reflected a consistent trend in presidential government since Richard Nixon left Washington in disgrace in 1974. Following a period of growing “presidential government” that had lasted from the 1930s to the 1970s, the White House faced a congressional backlash against executive power in the mid-1970s. During the Ford and Carter administrations, it seemed that the presidency was in decline and might even be reduced to a position of permanent weakness. Most observers reassessed this view when Ronald Reagan appeared to revive presidential power, and even a young Bill Clinton told Democrats that his party could learn from watching Reagan’s conduct in office, but there was more to the story than just the ebb and flow of individual officeholders.2 As one incumbent succeeded another in the post-Watergate years, it seemed that presidential power was dependent on the political strengths and weaknesses of the office’s occupant at any given time. Reagan’s rhetorical and visionary leadership was contrasted with George H. W. Bush’s emphasis on prudence, and Bill Clinton’s strategy of triangulation was opposed to George W. Bush’s presidency of decisiveness. While the unitary nature of the office certainly means that it does matter who is president and that what that person makes of the opportunities and challenges of the office will influence presidential power, it is not the case that each incumbent starts from scratch at the beginning of an administration. Indeed, what has served as a unifying theme in the presidency since the 1970s has been the quest for presidential autonomy. When Congress began its forceful reaction against the “imperial presidency” in the mid-1970s, it sought to curb executive autonomy through a series of laws aimed at preventing those aspects of presidential government that members of Congress found most objectionable. To overcome executive secrecy in the conduct of foreign policy, Congress passed the Case Act (1972).3 To prevent a repeat of Nixon’s impoundment of funds as a device to control spending and to give itself more leverage in the annual budget process, Congress passed the Budget and Impoundment Act of 1974. To prevent another Vietnam War, Congress passed...