Existing Clearance of Executive Orders and Proclamations under Executive Order No. 7298

There is already provision for the clearance of Executive orders and proclamations under Executive Order No. 7298. This order transferred from the State Department to the National Archives the custody of the signed originals and copies of all Executive orders and proclamations hitherto promulgated. The card index which the State Department had made has likewise been transferred. No. 7298, however, does not apply to "treaties, conventions, protocols, and other international agreements, or proclamations thereof by the President."

This order provides, first, that proposed Executive orders and proclamations shall be prepared in accordance with requirements which correspond to the Federal Register requirements for other documents filed therewith. It then provides for the clearance of proposed Executive orders and proclamations before they are submitted to the President. Finally, it provides for their filing and publication by the Federal Register, and their custody in the National Archives.

Executive orders and proclamations regularly originate in some Federal agency. Executive Order No. 7298 provides for their clearance in the following terms:

The proposed Executive order or proclamation shall first be submitted to the Director of the Bureau of the Budget. If the Director of the Bureau of the Budget approves it, he shall transmit it to the Attorney General for his consideration as to both form and legality. If the Attorney General approves it, he shall transmit it to the Director of the Division of the Federal Register, the National Archives. If it conforms to the requirements of paragraph 1 hereof, the Director of the Division of the Federal Register shall transmit it and three copies thereof to the President. If it is disapproved by the Director of the Bureau of the Budget or the Attorney General, it shall not thereafter be presented to the President unless it is accompanied by the statement of the reasons for such disapproval.'

The document thus goes first from the originating agency to the Bureau of the Budget, which reviews it as to form primarily, but also as to "policy." Some actual examples may be cited. Budget looks at the title to make sure that it is pertinent. Once a heading "created" an agency not mentioned in the text of the order. This was not only bad form, but raised a legal question. Budget refers to the Department of Justice any legal questions which it desires to raise.

The Bureau of the Budget also examines proposed orders for various other defects. An order may come through in garbled form. Budget may then hold a hearing and recast it with the consent of the department of origin. The order may direct an allocation from a fund when the President has, by letter, directed that such allocations be made from another fund. The order may be retroactive.

Policy clearance may relate to coordination. An order that originated in a certain agency

For the full text of Executive Order No. 7298, see Appendix C.

was in good form, and the agency said no public lands were involved. But the States affected were public land States, so Budget "played a hunch" and sent the order to the Department of the Interior, which reported that it did affect public lands. There is now an arrangement by which orders of this type are regularly cleared through Interior.

Budget clearance is handled by the Division of Research and Investigation of the Bureau. A proposed order is referred to the assistant to the Director who handles the budget estimates of the originating department. It is also referred to counsel. If funds are involved, Budget naturally scrutinizes the proposal with especial care. If emergency funds are involved, the order is sent to the man in charge of such funds, to see if funds are available, and in any event for his information. If another department seems likely to be affected, the order is sent to it.

If the Bureau of the Budget has a serious question to raise, it will write a letter to the originating department. This letter goes to the department head, and then has to travel down the line until it reaches the official who drafted the proposed order. He writes a reply, which has to work its way back up to the department head before going to Budget. This naturally causes delay.

Clearance routine is sometimes altered and sometimes even short-circuited. Sometimes a department takes an order to the Department of Justice before sending it to the Bureau of the Budget. Occasionally, when Budget turns down an order, the department takes it to Justice, which then telephones to Budget to check up. Sometimes a draft order is taken directly to the White House, which sends it back to Budget. Rarely, the President signs it. Emergency cases may arise, in one of which the White House telephoned Budget it wanted the order at once. It had been delayed because a second department had been found to be concerned. But the White House call naturally caused the order to be carried personally by an assistant.

In the usual routine of clearance the proposed order goes from the Bureau of the Budget to the Department of Justice. Budget sends its. notations to Justice, and Justice prepares a memorandum in which it includes the opinions of Budget. In this way the President has one sheet which tells him what to look for.

In the Department of Justice, orders are cleared through an Assistant Solicitor, under whom a staff of six lawyers carries on this work along with other duties. They examine Executive orders and proclamations for legality and for form. Form is less important, although the President desires uniform style. Some orders are turned down. The substance of

One official stated that if he expected to get an order through in less than 8 months, he had to take off i or more days and carry it personally through the clearance routine. He said that once clearance officers understood what he was trying to do, he had little trouble.

some is changed. The form of most is changed. An order may not have the right title, or the title may be too long.

From the Department of Justice the order goes to the Federal Register. There the clearance does not relate to policy, but solely to the requirements as to preparation which are given in Executive Order No. 7298.

Even a Thanksgiving proclamation drawn up in the State Department has to be cleared as described above. This is reductio ad absurdum. When Executive Order No. 7298 was being drafted, one of the officials involved stood out for making exceptions to this routine as a means of avoiding unnecessary red tape. He was challenged to draft the exceptions without leaving them to the discretion of the department concerned, and was unable to do so. One out of four or five Executive orders is very important and needs to be cleared. If the department head could make exceptions, he might except an important one. Even to require submission of the question of exceptions to his legal adviser is an inadequate safeguard, for some department heads dominate their legal advisers.

From the Federal Register the proposed Executive order or proclamation, together with three copies, goes to the White House. If the President signs it, the original and two copies are forwarded back to the Federal Register for appropriate action under the Federal Register Act. However, if the document is a proclamation, the original must first be sent to the Department of State, together with a warrant, signed by the President, authorizing the Secretary of State to affix the seal of the United States.

Executive Order No. 7298 requires the Federal Register to cause to be placed upon the copies of all Executive orders and proclamations the following notation, to be signed by the Director or by some person authorized by him: "Certified to be a true copy of the original.

The Federal Register also numbers and supervises the promulgation, publication, and distribution of all Executive orders and proclamations. It files all originals in the National Archives. It publishes in the Federal Register all those of general applicability and legal effect, except where they relate solely to internal administrative management. It causes a limited number of copies of those not so published to be printed in slip form and made available to the appropriate agencies of the Government.

Criticism of Executive Order Clearance

There are three major criticisms of the existing clearance of Executive orders and proclamations through the Bureau of the Budget. The first is the delay. This is, of course, unavoidable. In emergencies, the authority of the President is sufficient to cut through this delay.

It is not, however, entirely satisfactory to have an official clear personally. It wastes his time and may prevent adequate examination of the proposed order by clearance officials; yet it may at times be the only practicable solution, if it is not allowed to be abused.

The second criticism is that the Bureau of the Budget does not clear proposed orders and proclamations with all departments as a matter of routine. It merely sends them to whatever departments it happens to realize would probably be concerned. This takes less time, of course, but it is apt to defeat the major purpose of clearance, which is coordination.

The third criticism is that although Budget clearance considers both general and financial "policy", its consideration of policy is not so well organized as it might be. While it may advise, in its letter of transmittal to the Department of Justice, that it approves or disapproves of the policy or expenditure embodied in a proposed order, it does not seem flatly to turn down an order on these grounds in the name of the President. The explanation is: "The President decides that." Of course, the Director cannot assume to exercise in the President's name a veto on the merits of a proposed order unless he has prior instructions which cover the case. But that is the point. Policy clearance should be so organized that Budget would have general instructions from the President concerning questions that constantly recur in clearance procedure.

Accordingly, it is proposed that Budget Bureau clearance initiate more thorough coordination by submitting all proposed Executive orders and proclamations to all departments, except where this is clearly unnecessary, as in the case of Thanksgiving proclamations. In order not to cause even more delay than at present, Budget should announce that it will assume that a department is not concerned if it does not submit at least a tentative memorandum within, say, 5 days. Delay should be further reduced to a minimum by enlargement of the clearance staff and by frequent use of informal hearings. To these hearings the department or departments concerned should be asked to send the officials most directly concerned. Multiplication of formal correspondence presumably takes longer than direct and informal contact, which can be arranged by telephone.

The Bureau of the Budget should be in a position to pass, in the name of the President, upon matters both of general and of financial policy which involve merely the routine application of general policies of the President. It should make a list of types of questions which constantly recur in the course of clearance procedure, and ask the President for instructions for all like cases. Thus it should be instructed to reject any proposed order which imposes

routine decisions on the President-such as No. 7070- or by the signing of which he would unnecessarily tie his hands for the future in matters of over-all management, until the proposed order is amended to delete this feature.

Whenever any novel question of policy arises, if it is one likely to recur, the Director should go personally to the President to seek directions not only for this case but for all similar situations, in order to establish a new series of routine decisions.

If such a novel question is unique, or of major importance, or one on which the President does not choose to give general instructions, then regular clearance procedure may be followed, but even then the Bureau of the Budget should always express its views, especially in matters of financial policy.

The procedure suggested should never preclude appeal to the President by department heads. It would be highly undesirable to turn the Bureau of the Budget into a bottle neck. It is merely intended that routine decisions should be made in the name of the President, and that his major decisions should be routed through the Bureau of the Budget in the first instance. Appeal is always proper on the latter class of cases, and, in the former, on the crucial first case, or if, after some time, the routine is claimed not to work out satisfactorily. But the custom should develop that otherwise appeal will be brought only in exceptional cases. In no event, however, should appeal be made without reference to Budget's objections.

On the whole, Budget Bureau clearance of Executive orders and proclamations is an improvement over the situation that previously existed. As one official put it, he was not anxious to have cleared the orders he originated, because of the delay, but he wanted those originated by other departments to be cleared. Clearance, in short, is needed for purposes of coordination, if for no other.

Justice Department clearance may operate as a safeguard, for the administration as well as for the citizen, against ultra vires orders. It may prevent future litigation which would be expensive for the Government as well as for the private party. The clearance officers of the Department of Justice also aid departments, upon request, during the preparation of Executive orders which they can anticipate that they may, a little later, need in a hurry.

This is all to the good. But there is also need for clearance through drafting experts. Both the Bureau of the Budget and the Department of Justice examine orders for form and legality, but there is no sufficient recognition anywhere in the Government of the problem of drafting aside from what the ordinary lawyer means by the term. It would be advantageous for draftsmen also to be lawyers. There are so few expert draftsmen, however, that they would need to be trained.

Extension of Clearance to Rules and
Regulations of Federal Administrative Agencies

On the whole, Executive order clearance is so definitely an advance that it raises the question whether it should also be applied in any form, or to any degree, to the rules and regulations issued by the several administrative agencies of the Federal Government.

This problem is much more difficult. The Special Committee on Administrative Law of the American Bar Association counts, in the regulations of the administrative committee of the Federal Register, 115 Federal agencies exercising rule-making authority under 964 statutory provisions (including amendments) and under 71 Executive orders or proclamations."

The idea of central drafting may, therefore, be rejected out of hand as utterly impracticable, for the combination of quantity, variety, and technicality of subject matter would make the task incomparably greater than that of central legislative drafting. Actual drafting at a central point, moreover, would result in intolerable delays.

The question of central clearance for form, draftsmanship, legality, and policy is less difficult, but still one to be approached cautiously, for it is certainly desirable to avoid needless red tape.

The problem of the administrative regulations of a department that affect only its internal management is different from the problem of departmental regulations that directly affect the public. In the former case, 10 all that is needed is to insure conformity with whatever uniform policy the President may have on personnel, matériel, budgetary control, or any other matter of public administration that may be concerned. It is therefore proposed that these purely administrative regulations be cleared only through the Bureau of the Budget, except where the Bureau sees fit to clear them through other agencies. The details would, mutatis mutandis, correspond with the Bureau's clearance of Executive orders.

As for regulations affecting the public, there are two alternatives. The first is to clear them all; the second is to clear only those that the Bureau of the Budget may direct to be cleared. It is proposed that, at least in the beginning, the second and less drastic alternative be adopted. This Bureau could, in the name of the President, direct the clearance through it of all regulations or proposed regulations which any line agency other than the one issuing them claimed were or would be in conflict with its own. It could also direct clearance of all regulations or proposed regulations which it had reason to believe might conflict with the policies of the President or with his long-range plans.

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Finally, it could direct automatic clearance of all rules and regulations issued or to be issued under any statutory delegation which it might designate.

Associated with this arrangement should go another which is based on the principle that coordination should take place in the formative stages, and that personnel is of supreme importance, if efforts at coordination are not to multiply friction and jealousies. There should be attached to the Bureau a small group of young and specially selected "trouble shooters", whose sole business it would be to anticipate conflicts between the policies of two or more line agencies, or between these and the policies or long-range plans of the President, to report their findings, and to carry out instructions in attempting to forestall such conflicts by informal conferences on a basis of comity. This task would require tact and diplomacy, and should be undertaken in an informal and inconspicuous manner.

The purpose of this last arrangement is to prevent the necessity of formal clearance, where possible, and in any event to furnish Budget the information necessary for its intelligent exercise of discretion as to what should be cleared. The latter purpose would also be

greatly facilitated if the practice were ordinarily followed of publishing draft regulations which should not go into effect for from 1 to 3 months. But this is not always feasible.

Where formal clearance is directed, it should correspond in purpose, machinery, and procedure with that now used for the clearance of Executive orders and proclamations, improved in accordance with the recommendations of the preceding section. This could be done by an Executive order supplementing No. 7298.

This enlargement of their tasks will require enlargement of the clearance staffs of the Bureau of the Budget and of the Department of Justice. It is proposed that there be attached to the Division of Investigation and Research of the Budget Bureau a "pool" of expert draftsmen who would, upon request, be lent to agencies during the drafting stage of rule making. These experts should actually draft all documents to be signed or approved by the President which are initiated by a "staff" as distinguished from a "line" agency. It is further proposed that the clearance unit of the Department of Justice should, upon request, advise departments on the legality of rules and regulations during the course of their preparation.

The fifth purpose for which it is proposed that the President employ the rule-making technique in the exercise of his general power of direction is the prescription of uniform regulations governing the service or institutional 1 activities of all Federal departments and agencies. This field includes such matters as budgetary practice, financial control, personnel and matériel administration, administrative organization, general administration (administrative practices and procedures and general efficiency), research, statistics, information, coordination, and planning.

If the President is effectively to play the role of general manager 2 of Federal administration, he must assume a larger responsibility in this field than he has hitherto done. This larger responsibility requires that more and more he shall initiate as well as pass upon administrative regulations.

The broader aspects of all these administrative matters are especially susceptible of uniform regulation. For while each functional activity is unique, all administrative agencies must necessarily engage in institutional activities which are fundamentally similar. similar features are properly dealt with by regulations which apply uniformly throughout the Federal administrative service.

These

For this role the President must have the assistance of the Bureau of the Budget as a staff agency. No single line agency can appropriately be employed for the task of preparing administrative regulations which are to apply uniformly to all line agencies. But each line agency will doubtless be empowered to adopt its own supplementary regulations; and hence such a staff agency is also needed for the clearance of all such supplementary regulations for conformity with the policy of the President.* At least in certain cases, moreover, this staff agency should be empowered to review, in the name of the President, though subject to appeal, particular acts of departmental administration for conformity with his regulations or with his instructions governing defined series of routine decisions. For this is the only method by which the President can check up on the concrete application of his administrative regulations without being swamped by an avalanche of routine decisions which would defeat their own purpose. It has already been pointed out that such a mass of routine decisions merely en

1 For the distinction between "institutional" and "functional" activities see W. F. Willoughby, Principles of Public Administration (Washington, D. C.: Brookings Institution, 1927), pp. 45-46.

2 Ibid., chs. III and IV.

albid., pp. 45-46.

See supra, p. 41.

croaches upon the valuable time of the President without increasing his real control of administration, since it is not humanly possible for him to give them any but the most perfunctory consideration.

For this role the President must also have adequate powers. To a degree, Congress has given him statutory powers of administrative direction. Thus it has authorized him to issue civil service rules and Executive orders relating to various other matters, including, quite recently, the standardization of annual and sick leave. In recent legislation it also granted him wide, if temporary, powers relating to administrative organization and reorganization and to the allocation of emergency funds. Ordinarily, however, his statutory powers of direction have been inadequate, and even those he has possessed have been narrowed down by the fact that Congress has itself enacted so many details.

Then there is the President's general power of direction. But it must be remembered that this is, after all, only the power to control the exercise of such discretion as Congress by statute vests in the several department heads. By Revised Statutes, section 161, Congress has already provided:

The head of each Department is authorized to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.3

"Not inconsistent with law" would be a proper limitation if the law dealt only with the principles and not with the details of public administration. But insofar as Congress writes administrative details into the statutes, it not only ties the hands of department heads with statutory red tape, but also curbs the President's general power of direction as a byproduct. Congress should strengthen the President, in carrying out his responsibility for effective over-all management, by directly providing that his uniform administrative regulations shall supersede conflicting statutory details.

Thus supplied with the necessary legal competence, as well as with an adequate staff agency, the President could fairly be held responsible for the progressive introduction into Federal administration of generally accepted principles of administrative practice and of over-all management. Then-but only thenhe could become in fact what he is recognized in theory to be the general manager of the business aspects of the Federal Government.

See Boske v. Comingore, 177 U. S. 459 (1900).