Executive Order 13083 replaced with new one

By David M. Bresnahan

WASHINGTON, D.C. — There’s good news and bad news from the White House. The good news is that Executive Order 13083 has been officially revoked, but the bad news is that a new executive order on Federalism has replaced it.

Governors, mayors, and citizens from all political parties rallied together in an effort to abolish EO 13083 when it was signed in May 1998. WorldNetDaily first broke the news of what initially appeared to be a non-threatening document. Elected officials were not aware of EO 13083 until WorldNetDaily asked for comments, but they soon went to work to stop it.

Shortly after the nation’s governors voted in the National Governor’s Association convention in opposition to the order, President Clinton signed EO 13095 which suspended 13083. Many expressed concern that it was only suspended and not revoked.

The uprising of governors, who were joined by the nation’s mayors, was over the clever wording used by President Clinton in EO 13083. Gov. Mike Leavitt, R-Utah, protested loudly and claimed that EO 13083 did not clarify previous federalism executive orders — it destroyed them.

“This order (EO 13083) represents a 180-degree turn from all previous federalism aimed to restrain federal action over states,” said Leavitt in disagreement with the Clinton fact sheet issued at the time. “The current version of this new order is written to justify federal supremacy,” he stated last year.

The White House fact sheet claimed that President Clinton believed EO 13083 was necessary in order to “protect individual liberty.” Critics insisted he was taking liberty away.

Rep. Ron Paul, R-Texas, also spoke out strongly against EO 13083. He told WorldNetDaily that it gave further authority to government agencies to establish rules and regulations that would have the power and effect of law, even though Congress did not vote on such laws.

The new executive order is titled “Federalism,” and does not yet have a number. Both Leavitt and the Republican Governors Association were contacted after it was issued. Leavitt’s office has not yet responded to requests for comments. The RGA spokesperson was not aware of it, and Rep. Paul’s office could not be reached because it was late in the day.

Kristen Fedewa of the Republican Governors Association was not aware of the new executive order, but she remembered the problems with EO 13083 and the way President Clinton tried to sneak it through unnoticed.

“Well, they’re getting ready for NGA (National Governors Association convention) which is very fortuitous,” said Kristen Fedewa when contacted at RGA headquarters. “They issued it last time right before we were getting ready for NGA, and I don’t know if it was deliberate because they thought we’d all be busy, or they wanted us all to talk about it at NGA. My suspicion is the first one,” she told WorldNetDaily.

When President Clinton suspended EO 13083, he promised to involve the nation’s governors in the process of writing a better version. At the time, some questioned the need to do anything. In his limited remarks upon signing the new order yesterday, President Clinton claimed he had help with the revision, but he did not state where that help came from.

“As a former governor, I know how important it is for the American people that the Federal government and State and local governments work together as partners. The executive order on federalism I signed will strengthen our partnership with State and local governments and ensure that executive branch agencies are able to do their work on behalf of the American people. I want to thank the representatives of State and local governments who worked with my administration in developing an executive order that enables us to better serve all of the American people,” President Clinton stated.

A press release from the White House press office also stressed the desire to enhance the partnership between the federal government and the states. That release claims a bipartisan group from seven major intergovernmental organizations of state and local officials assisted in the draft of the new executive order.

A letter signed by the participants was sent to President Clinton. It said in part, “The executive order constructively responds to the concerns we raised during these consultations and provides to federal agencies strengthened guidance on the importance of federalism and state and local authority.”

The White House did not disclose who participated in the drafting of the new version of the order, nor did it provide a copy of the letter.

A comparison between EO 13083 and the new EO on federalism finds there were many changes made which would most likely please some former critics.

Definitions and policy were strengthened, and restrictions were placed on government agencies. There was no challenge to the ability of federal agencies to enact rules and regulations. They can still effectively do so as long as they consult with states first.

But, despite all the nice definitions contained in the revised version, many loopholes still exist to permit federal agencies to do virtually anything they wish.

The new version requires agencies to do some things in advance of enacting regulations that impact states, but there is nothing preventing those agencies from going forward with their plans after following the guidelines.

For example, section 3 (d) states,

    When undertaking to formulate and implement policies that have federalism implications, agencies shall:

    (1) encourage States to develop their own policies to achieve program objectives and to work with appropriate officials in other States;

    (2) where possible, defer to the States to establish standards;

    (3) in determining whether to establish uniform national standards, consult with appropriate State and local officials as to the need for national standards and any alternatives that would limit the scope of national standards or otherwise preserve State prerogatives and authority; and

    (4) where national standards are required by Federal statutes, consult with appropriate State and local officials in developing those standards.

Similarly, when a federal agency plans to create a regulation that will preempt existing state laws, the new executive order places requirements that “the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.”

Nothing in the order prevents an agency from enacting any rule desired. They are required to consult, encourage, and inform but the results of those efforts do not require the agency to follow any input given by elected officials. Despite all the consulting, agencies are not prohibited from doing what they chose to do.

Section 6 of the new order deals extensively with requirements placed on agencies in the rule-making process, but at the conclusion of that section the loopholes are given to enable an agency to do as they please.

Here are some of the ways an agency can create any rule they wish, even if elected officials do not want the rule, according to Section 6:

  • If funds to pay for costs incurred by local governments are paid for by the federal government, or if the agency consulted with the local officials prior to implementing the rule.
  • If the agency provides an explanation in the preamble to the regulation giving the objections offered by the local officials and the reasons to ignore those objections.
  • If the agency supplies copies of objections to the regulation to the Director of the Office of Management and Budget.

The press release from the White House points out one more loophole: “At the same time, the Order makes clear that federal action is appropriate in the presence of a problem of national scope or significance.”

A new bureaucrat will have a job in every federal agency because of the new order. That person will be required to be in place within the next 90 days with the responsibility of making sure the order is implemented properly in that agency. They must also sign off on any new proposed regulations to show that all requirements have been met.

Simultaneous with the issuance of EO 13083 last year, President Clinton also issued EO 13084 on Consultation and Coordination with Indian Tribal Governments. The White House did not give specifics, but indicated that it will also be changed in the near future.

The new order will go in effect on Nov. 4, 1999, unless the president is again persuaded to revoke or suspend it, or unless Congress takes action to stop it.