I got to thinking recently about the role models of liberals and conservatives - those who tend to be the standard bearers of the competing philosophies. There doesn't seem to be much in the way of argument. Conservatives revere President Reagan and liberals definitely revere President Clinton.

As a Federalist myself, I decided to have a look at the federalist philosophies of these two men side by side. It was pretty easy. Both had written executive orders dealing directly with Federalism.

I tried to put together a chart with both presidents' executive orders on the matter side by side, but it just didn't work out. So President Reagan's quotes are in normal text, while President Clinton's are in italics. My comments are in bold. Hopefully it's readable enough.

EO 12612 - Reagan

Federalism
October 26, 1987

By the authority vested in me as President by the Constitution and laws of the United States of America, and in order to restore the division of governmental responsibilities between the national government and the States that was intended by the Framers of the Constitution and to ensure that the principles of federalism established by the Framers guide the Executive departments and agencies in the formulation and implementation of policies, it is hereby ordered as follows:

Section 1. Definitions.

For purposes of this Order:

(a) "Policies that have federalism implications" refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

(b) "State" or "States" refer to the States of the United States of America, individually or collectively, and, where relevant, to State governments, including units of local government and other political subdivisions established by the States.

EO 13083 - Clinton

May 14, 1998
FEDERALISM

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to guarantee the division of governmental responsibilities, embodied in the Constitution, between the Federal Government and the States that was intended by the Framers and application of those principles by the Executive departments and agencies in the formulation and implementation of policies, it is hereby ordered as follows:

Section 1.Definitions.

For purposes of this order:

(b) "Policies that have federalism implications" refers to Federal regulations, proposed legislation, and other policy statements or actions that have substantial direct effects on the States or on the relationship, or the distribution of power and responsibilities, between the Federal Government and the states.

(a) "State" or "States" refer to the States of the United States of America, individually or collectively, and, where relevant, to State governments, including units of local government and other political subdivisions established by the States.

(c) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

President Reagan would have viewed any "Agency" as part of the federal government, or part of the branch under whose jurisdiction the agency would fall.

Sec. 2. Fundamental Federalism Principles.

In formulating and implementing policies that have federalism implications, Executive departments and agencies shall be guided by the following fundamental federalism principles:

Sec. 2. Fundamental Federalism Principles.

In formulating and implementing policies that have federalism implications, agencies shall be guided by the following fundamental federalism principles:

President Clinton does not mention "executive departments". I wonder if these are mentioned in 44 U.S.C 3502. Something to possiby check out at a later date, I suppose.

(a) The structure of government established by the Constitution is premised upon a system of checks and balances.

President Clinton's logic in this statement is flawed. As you will see, the checks and balances among the three branches of government become somewhat convoluted by including checks and balances between the state and federal governments.

(a) Federalism is rooted in the knowledge that our political liberties are best assured by limiting the size and scope of the national government.

(c) Federalism reflects the principle that dividing power between the Federal Government and the States serves to protect individual liberty. Preserving State authority provides an essential balance to the power of the Federal Government, while preserving the supremacy of Federal law provides an essential balance to the power of the States.

President Clinton's remarks on this point can be summed up in one word: BULLSHIT. Anyone asserting the "supremacy of Federal law" is committing a treasonous act. Quite frankly, there is no "balance of power" between the States and the federal government, nor is there supposed to be. Instead, the States' power SUPERCEDES that of the federal government, per the Tenth Amendment.

(b) The people of the States created the national government when they delegated to it those enumerated governmental powers relating to matters beyond the competence of the individual States. All other sovereign powers, save those expressly prohibited the States by the Constitution, are reserved to the States or to the people.

(b) The Constitution created a Federal Government of supreme, but limited, powers.The sovereign powers not granted to the Federal Government are reserved to the people or to the States, unless prohibited to the States by the Constitution.

The Constitution is a piece of paper. It did not create anything. President Reagan asserts that "the people of the States created the national government", and that "all other sovereign powers, save those expressly prohibited the States by the Constitution, are reserved to the States or the people." President Reagan's words echo those of the Tenth Amendment almost verbatim.

Furthermore, President Clinton's assertion that the Federal Government has "supreme" powers doesn't even resemble anything in the Constitution at all. According to the Constitution, the States and the People are the most powerful level of government. Under this philosophy (that of the Founders), there is no room for any concept of a federal government with supreme powers, however limited.

(c) The constitutional relationship among sovereign governments, State and national, is formalized in and protected by the Tenth Amendment to the Constitution.

I am under no illusions as to why President Clinton doesn't even mention the Tenth Amendment in his "Executive Order on Federalism".

(d) The people of the States are free, subject only to restrictions in the Constitution itself or in constitutionally authorized Acts of Congress, to define the moral, political, and legal character of their lives.

(d) The people of the States are at liberty, subject only to the limitations in the Constitution itself or in Federal law, to define the moral, political, and legal character of their lives.

Notice here that President Clinton authorizes "Federal Law" as a legitimate means of dictating to the States and the people. President Reagan requires "constitutionally authorized Acts of Congress", a concept which places more stringent limitations on the federal government, and thus retaining more power for the States and the people.

(e) In most areas of governmental concern, the States uniquely possess the constitutional authority, the resources, and the competence to discern the sentiments of the people and to govern accordingly. In Thomas Jefferson's words, the States are "the most competent administrations for our domestic concerns and the surest bulwarks against antirepublican tendencies."

(f) Effective public policy is often achieved when there is competition among the several States in the fashioning of different approaches to public policy issues. The search for enlightened public policy is often furthered when individual States and local governments are free to experiment with a variety of approaches to public issues. Uniform, national approaches to public policy problems can inhibit the creation of effective solutions to those problems.

President Reagan again gives the States the power to make their own decisions, while President Clinton makes a philosophical statement that basically says that it's sometimes best for the federal government to allow the States to make their own decisions.

The major difference between these two statements is the SOURCE of the power. According to Reagan, the States and the people are that source, while according to Clinton, it is the federal government.

(f) The nature of our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires. In the search for enlightened public policy, individual States and communities are free to experiment with a variety of approaches to public issues.

(e) Our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires.States and local governments are often uniquely situated to discern the sentiments of the people and to govern accordingly.

While these two statements seem similar on the surface, President Reagan is clearly submitting to the power of the States and the people to govern themselves, while it's pretty obvious that President Clinton is simply saying that the federal government should, in some cases, allow the States to govern themselves.

(g) Acts of the national government - whether legislative, executive, or judicial in nature - that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers.

(h) Policies of the national government should recognize the responsibility of--and should encourage opportunities for--individuals, families, neighborhoods, local governments, and private associations to achieve their personal, social, and economic objectives through cooperative effort.

(i) In the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual States. Uncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level.

(g) Policies of the Federal Government should recognize the responsibility of -- and should encourage opportunities for -- States, local governments, private associations, neighborhoods, families, and individuals to achieve personal, social, environmental, and economic objectives through cooperative effort.

Without acknowledging that powers enumerated under the Constitution cannot be exceeded and recognizing State sovereignty, the "cooperative effort" clause gives the federal government carte blanche to implement whatever socialist policy it wants. Furthermore, without these limitation placed on the government, the philosophical basis for the statement becomes the supremacy of the federal government.

Sec. 3. Federalism Policymaking Criteria. In addition to the fundamental federalism principles set forth in section 2, Executive departments and agencies shall adhere, to the extent permitted by law, to the following criteria when formulating and implementing policies that have federalism implications:

(a) There should be strict adherence to constitutional principles. Executive departments and agencies should closely examine the constitutional and statutory authority supporting any Federal action that would limit the policymaking discretion of the States, and should carefully assess the necessity for such action. To the extent practicable, the States should be consulted before any such action is implemented. Executive Order No. 12372 ("Intergovernmental Review of Federal Programs") remains in effect for the programs and activities to which it is applicable.

Sec. 3. Federalism Policymaking Criteria. In addition to adhering to the fundamental federalism principles set forth in section 2 of this order, agencies shall adhere, to the extent permitted by law, to the following criteria when formulating and implementing policies that have federalism implications:

(a) There should be strict adherence to constitutional principles. Agencies should closely examine the constitutional and statutory authority supporting any Federal action that would limit the policymaking discretion of States and local governments, and should carefully assess the necessity for such action.

No one should be under any illusions as to why President Clinton would not require the States to be consulted. He views the federal government as "supreme". President Reagan's EO 12372 outlines procedures to be followed in such consultations, and in all relevant sections acknowledges State supremacy. President Clinton merely requires that action not be taken until after examining constitutional and statutory authority. If such examination reveals that the States hold the true authority, he offers no requirement that that authority be respected.

(b) Federal action limiting the policymaking discretion of the States should be taken only where constitutional authority for the action is clear and certain and the national activity is necessitated by the presence of a problem of national scope. For the purposes of this Order:

(1) It is important to recognize the distinction between problems of national scope (which may justify Federal action) and problems that are merely common to the States (which will not justify Federal action because individual States, acting individually or together, can effectively deal with them).

(2) Constitutional authority for Federal action is clear and certain only when authority for the action may be found in a specific provision of the Constitution, there is no provision in the Constitution prohibiting Federal action, and the action does not encroach upon authority reserved to the States.

(b) Agencies may limit the policymaking discretion of States and local governments only after determining that there is constitutional and legal authority for the action.

Reagan again emphasizes the importance of respecting State authority under the Constitution and the Tenth Amendment. All of his statements here are directly supportive of this theme.

Clinton? Determine, by whatever means you like, that actions violating States' rights are constitutional and legal before violating States' rights. After all, the federal government is "supreme".

(c) With respect to national policies administered by the States, the national government should grant the States the maximum administrative discretion possible. Intrusive, Federal oversight of State administration is neither necessary nor desirable.

(c) With respect to Federal statutes and regulations administered by States and local governments, the Federal Government should grant States and local governments the maximum administrative discretion possible. Any Federal oversight of such State and local administration should not unnecessarily intrude on State and local discretion.

Reagan takes the stand that federal oversight of State matters is "neither necessary nor desirable", period. Clinton allows plenty of federal oversight, but says it should not "unnecessarily intrude. Of course, the "supreme" federal government gets to decide what comprises a "necessary intrusion".

(d) When undertaking to formulate and implement policies that have federalism implications, Executive departments and agencies shall:

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

(2) Refrain, to the maximum extent possible, from establishing uniform, national standards for programs and, when possible, defer to the States to establish standards.

(3) When national standards are required, consult with appropriate officials and organizations representing the States in developing those standards.

(d) It is important to recognize the distinction between matters of national or multi-state scope (which may justify Federal action) and matters that are merely common to the States (which may not justify Federal action because individual States, acting individually or together, may effectively deal with them). Matters of national or multi-state scope that justify Federal action may arise in a variety of circumstances, including:

(1) When the matter to be addressed by Federal action occurs interstate as opposed to being contained within one State's boundaries.

(2) When the source of the matter to be addressed occurs in a State different from the State (or States) where a significant amount of the harm occurs.

(3) When there is a need for uniform national standards.

(4) When decentralization increases the costs of government thus imposing additional burdens on the taxpayer.

(5) When States have not adequately protected individual rights and liberties.

(6) When States would be reluctant to impose necessary regulations because of fears that regulated business activity will relocate to other States.

(7) When placing regulatory authority at the State or local level would undermine regulatory goals because high costs or demands for specialized expertise will effectively place the regulatory matter beyond the resources of State authorities.

(8) When the matter relates to Federally owned or managed property or natural resources, trust obligations, or international obligations.

(9) When the matter to be regulated significantly or uniquely affects Indian tribal governments.

Reagan basically says that any federal involvement in State matters must include direct consultation with those States, and emphasizes encouraging States to be independent, and deferring to the States as often as possible. Clinton simply gives a list explaining where his "supreme" federal government will simply take over.

Sec. 4 Special Requirements for Preemption.

(a) To the extent permitted by law, Executive departments and agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only when the statute contains an express preemption provision or there is some other firm and palpable evidence compelling the conclusion that the Congress intended preemption of State law, or when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute.

(b) Where a Federal statute does not preempt State law (as addressed in subsection (a) of this section), Executive departments and agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rule-making only when the statute expressly authorizes issuance of preemptive regulations or there is some other firm and palpable evidence compelling the conclusion that the Congress intended to delegate to the department or agency the authority to issue regulations preempting State law.

(c) Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated.

(d) As soon as an Executive department or agency foresees the possibility of a conflict between State law and Federally protected interests within its area of regulatory responsibility, the department or agency shall consult, to the extent practicable, with appropriate officials and organizations representing the States in an effort to avoid such a conflict.

(e) When an Executive department or agency proposes to act through adjudication or rule-making to preempt State law, the department or agency shall provide all affected States notice and an opportunity for appropriate participation in the proceedings.

Sec. 4. Consultation.

(a) Each agency shall have an effective process to permit elected officials and other representatives of State and local governments to provide meaningful and timely input in the development of regulatory policies that have federalism implications.

(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that is not required by statute, that has federalism implications, and that imposes substantial direct compliance costs on States and local governments, unless:

(1) funds necessary to pay the direct costs incurred by the State or local government in complying with the regulation are provided by the Federal Government; or

(2) the agency, prior to the formal promulgation of the regulation,

(A) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a description of the extent of the agency's prior consultation with representatives of affected States and local governments, a summary of the nature of their concerns, and the agency's position supporting the need to issue the regulation; and

(B) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by States or local governments.

Reagan's words are obviously geared toward discouraging federal intrusion into State matters, period. He requires documentation proving that the federal government has the authority to involve itself in the given matter.

Under Reagan's Federalism doctrine, the States simply CANNOT be left out of ANY process unless the federal department or agency can conclusively prove its authority using the actual Constitution and those laws applicable to the situation.

While President Clinton provides some "lip service" to staying out of State matters, but then goes on to basically say that the "supreme" federal government can trample all over State authority as long as they communicate with the States on the matter. In other words, President Clinton's federal government can do whatever it wants, without regard for constitutional limitations, as long as there is communication about it.

Sec. 5. Special Requirements for Legislative Proposals. Executive departments and agencies shall not submit to the Congress legislation that would:

(a) Directly regulate the States in ways that would interfere with functions essential to the States' separate and independent existence or operate to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions;

(b) Attach to Federal grants conditions that are not directly related to the purpose of the grant;

(c) Preempt State law, unless preemption is consistent with the fundamental federalism principles set forth in section 2, and unless a clearly legitimate national purpose, consistent with the federalism policymaking criteria set forth in section 3, cannot otherwise be met.

Sec. 5. Increasing Flexibility for State and Local Waivers.

(a) Agencies shall review the processes under which States and local governments apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes.

(b) Each agency shall, to the extent practicable and permitted by law, consider any application by a State or local government for a waiver of statutory or regulatory requirements in connection with any program administered by that agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the State or local level in cases in which the proposed waiver is consistent with applicable Federal policy objectives and is otherwise appropriate.

(c) Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application by the agency. If the application for a waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor.

(d) This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency.

Reagan's instructions sound an awful lot like the words of the Bill of Rights ("Executive departments and agencies shall not submit to Congress legislation that ..."). Clinton allows States to ask for waivers if they don't like a decision made by a federal agency. In effect, this would simply put an "appeals process" into place for States that wished to challenge an intrusion into their rights. Of course, who gets to adjudicate the appeal? That's right. The "supreme" federal government.

Sec. 6. Agency Implementation.

(a) The head of each Executive department and agency shall designate an official to be responsible for ensuring the implementation of this Order.

(b) In addition to whatever other actions the designated official may take to ensure implementation of this Order, the designated official shall determine which proposed policies have sufficient federalism implications to warrant the preparation of a Federalism Assessment. With respect to each such policy for which an affirmative determination is made, a Federalism Assessment, as described in subsection (c) of this section, shall be prepared. The department or agency head shall consider any such Assessment in all decisions involved in promulgating and implementing the policy.

(c) Each Federalism Assessment shall accompany any submission concerning the policy that is made to the Office of Management and Budget pursuant to Executive Order No. 12291 or OMB Circular No. A-19, and shall:

(1) Contain the designated official's certification that the policy has been assessed in light of the principles, criteria, and requirements stated in sections 2 through 5 of this Order;

(2) Identify any provision or element of the policy that is inconsistent with the principles, criteria, and requirements stated in sections 2 through 5 of this Order;

(3) Identify the extent to which the policy imposes additional costs or burdens on the States, including the likely source of funding for the States and the ability of the States to fulfill the purposes of the policy; and

(4) Identify the extent to which the policy would affect the States' ability to discharge traditional State governmental functions, or other aspects of State sovereignty.

Sec. 6. Independent Agencies.

Independent regulatory agencies are encouraged to comply with the provisions of this order.

While President Clinton merely "encourages federal agencies to comply with the few limitations placed upon them by this order, Reagan requires each agency to designate someone to be responsible for complying with the restrictions set forth in his order. This person is required to review all policies within his agency and prepare assessments regarding them, including any violations of Federalist principles as set forth in the order. Given President Reagan’s emphasis in the Constitution and the Tenth Amendment earlier in the order, it would be safe to assume that President Reagan also meant to apply these principles with regard to the Constitution as well.

Sec. 7. Government-wide Federalism Coordination and Review.

(a) In implementing Executive Order Nos. 12291 and 12498 and OMB Circular No. A-19, the Office of Management and Budget, to the extent permitted by law and consistent with the provisions of those authorities, shall take action to ensure that the policies of the Executive departments and agencies are consistent with the principles, criteria, and requirements stated in sections 2 through 5 of this Order.

(b) In submissions to the Office of Management and Budget pursuant to Executive Order No. 12291 and OMB Circular No. A-19, Executive departments and agencies shall identify proposed regulatory and statutory provisions that have significant federalism implications and shall address any substantial federalism concerns. Where the departments or agencies deem it appropriate, substantial federalism concerns should also be addressed in notices of proposed rule-making and messages transmitting legislative proposals to the Congress.

In this section, President Reagan basically gives the order "teeth", outlining his expectation that federal agencies identify provisions that have federalism concerns and address them.

Sec. 8 Judicial Review. This Order is intended only to improve the internal management of the Executive branch, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

RONALD REAGAN

THE WHITE HOUSE

October 26, 1987

Sec. 7. General Provisions.

(a) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

(b) This order shall supplement but not supersede the requirements contained in Executive Order 12866 ("Regulatory Planning and Review"), Executive Order 12988 ("Civil Justice Reform"), and OMB Circular A-19.

(c) Executive Order 12612 of October 26, 1987, and Executive Order 12875 of October 26, 1993, are revoked.

(d) The consultation and waiver provisions in sections 4 and 5 of this order shall complement the Executive order entitled, "Consultation and Coordination with Indian Tribal Governments," being issued on this day.

(e) This order shall be effective 90 days after the date of this order.

WILLIAM J. CLINTON

THE WHITE HOUSE,

May 14, 1998.

Most EOs that I have read end with this disclaimer (Reagan). Its purpose is to simply protect the government from lawsuits resulting from the order. Clinton's order closes with a similar disclaimer followed by a coupling to other orders and, more importantly, a direct revocation of President Reagan's Executive Order on Federalism.

It is clear that President Clinton was trying to make a statement modeled after President Reagan's order. The wording is often similar to the point of plagiarism. With something like this, however, if what Clinton means is exactly what Reagan said, I don't have a problem with it.

The problem is with Clinton's convoluted idea of what constitutes federalism. The Framers had absolutely NO intention of creating a "supreme" federal government, nor was there to be any "balance of powers" between the federal government and the States. The whole concept of Federalism (which is reflected in the philosophy of the New Federalists today) is that the federal government is supposed to be the WEAKEST of the levels of government, with the people themselves being the "supreme" power, local and county governments next, then the States, again with the federal government the WEAKEST link in the chain of command.


Well, that's my take on all this. For his attempts to restore the Founders' vision through more strict application of federalist principles, and his clear understanding of what federalism actually is and is supposed to be, there can be no doubt as to his superiority as President over Clinton, who included such concoctions as a "supreme federal government" and "balance of power between the states and the federal government" in his definition of federalism.

Either Clinton didn't know what he was talking about, or he was trying to deliberately usurp the Constitution and the Founders' vision. There simply aren't any other options.

RWR