public to say, if you call this number, you contact this office or we can do it for you, however is best, you can get this information.

Part of the other problem is that some of the stuff that comes into congressional offices are hoaxes. They are just plain somebody made it up or there is a conspiracy going around the talk show circuit or something like that, which I presume is not in your database-I hope it is not in your database—and you probably are as puzzled as we are by some of those calls as well.

What I guess my question would be, since public access is so very important to this, are you satisfied that a member of the public who wants to get an executive order and review it for himself knows how to get it and can get it and that there are enough distribution points out there for-information points to advise the public on how to do this?

Mr. MOSLEY. Yes. I think there are, Mr. Chairman.

We get telephone calls and letters from the public, which—for these documents, for which we respond to, and we can direct them to the nearest depository library, which has a set of our publications. In certain instances, we will make copies of documents that are in our holdings, in our office here on North Capitol Street, and provide those to the public. Regrettably, we are limited in providing copies of lengthy documents because of the resources, the limitation on resources available to us. But if we are not able to provide an entire document we do make certain that we can direct the inquiry to an appropriate library or an appropriate source where they could get the entire document.

Mr. Goss. One of the questions we often get about executive orders is that, once they are written, they are in cement forever. The question is, can you briefly outline for us what does it take for an executive order to be revoked? How does that happen? How does the public know whether an executive order still is or still is not in effect, that part of the process?

Mr. MOSLEY. Generally, one of the things that we will look for in processing a new executive order is whether or not it is revoking previous executive orders, and that is—or provisions of previous executive orders, and that that is so stated.

In addition, on our Web site we provide an index of all executive orders that we have been able to make an accounting for and indicate whether or not they are still in effect or if they have been revoked or replaced by a provision of a more recent executive order. We have accounted for over 13,000 executive orders and can provide that information on virtually all of those.

Mr. Goss. If I had, say, a favorite subject and I wanted all executive orders on that subject, you could provide me that information? Mr. MOSLEY. That is a good question. I guess we could test-it would test the query capabilities of our system and, of course, given whether or not the information is standardized from one executive order to the next would go a long way toward determining if it was a reliable answer, but, yes, we could get you along the way for sure.

Mr. Goss. Part of the question is, it would be hard to know for sure what is in conflict and what isn't in a general area if you didn't have the full matrix, I would think.

Secondly, it seems to me, just in the area of good housekeeping, that at a point where a law is no longer useful-or an executive order, excuse me, is no longer useful, that there ought to be some way to compile all of those together and throw them out. Is that something that can happen?

Mr. MOSLEY. Right. Yes. That is what we are doing with the index that we have placed on-line and we have available in our office relating to all the executive orders that we have been able to account for, some 13,000 plus another 500 or so that are unnumbered.

Mr. Goss. Thank you.

Judge Price.

Ms. PRYCE. Why would they no be numbered?

Mr. MOSLEY. The tradition prior to this century was that executive orders were not numbered. There was not consistency in terms of numbering prior to this century. About 1907, the State Department undertook an effort to begin numbering all executive orders. That remained sporadic until President Hoover issued an executive order in the 1920s that began the standardization of the process. So, basically, since about 1907 they are all numbered. Prior to 1907, some are numbered, some are not. It is inconsistent.

Ms. PRYCE. The standardization is just a numbering system? Mr. MOSLEY. The standardization is a numbering system which has been essentially consistent since the 1960s, since about 1962. We are under Executive Order 11030, I believe, that provides the numbering and the processing manner for executive orders.

Ms. PRYCE. Following up on the Chairman's question, I mean, is it indexed at all by subject matter or is it a word search kind of thing that you do, a computerized search? How would you do a research of any particular area of law or executive order to determine? Is there a legal way of going about this?

Mr. MOSLEY. The on-line site provides a title to the executive order, and so one could inquire based on that information, but the reliability of that inquiry may not be very high because an executive order issued today on a subject matter could be similar to an executive order issued previously but used different terminology.

Our staff will go through the actual documents and will make these assessments in terms of updating this index information so we have we are not relying simply on the title or an abbreviation of this information. We are relying on the actual documents and the substance of the documents in order to create the index.

Ms. PRYCE. Is there any analysis or anything that is a part of the index or is it just straight subject matter index?

Mr. MOSLEY. Well, we don't, as a rule, provide analysis of the executive orders, but in terms of advancing the ability to index them we would look carefully at it for some common terms and common features in an executive order.

Ms. PRYCE. Thank you very much.

Mr. Goss. I was just trying to determine the antecedents of the National Archives and Records Administration. That is a quasi legislative branch, quasi executive branch or entirely one or the other? What are the antecedents?

Mr. MOSLEY. We are an independent agency of the executive branch. We became independent in 1985. Prior to that, we were

part of the General Services Administration from 1949. Prior to 1949, we were an independent agency of the executive branch known from-created in 1934, known from 1934 until 1949 as the National Archives Establishment.

Mr. Goss. So your budget comes through the OMB process?
Mr. MOSLEY. That is right.

Mr. Goss. You start there and your oversight presumably is one of the House committees?

Mr. MOSLEY. That is right. Government Reform, I believe, is our oversight.

Mr. Goss. I assumed that.

I want to tell you, this has been helpful. I don't know whether you have a legislative affairs office that has outreach, but if you do my suggestion would be that you could advise Members on how to instruct constituents to get the material of executive orders. It would be definitely a positive service effort I think most Members would appreciate.

We do foresee that there will continue to be executive orders and that they will be controversial from time to time. That causes a huge onrush of interest in congressional offices, and I guess my answer would be we would like to turn to the easiest, quickest source of information to help our constituents. It would appear that you are it, and I presume you are geared up to handle what I will call I guess an unusual situation or an emergency situation.

Mr. MOSLEY. Sure.

Mr. Goss. Is that true or not?

Mr. MOSLEY. We would be pleased to work with you and other Members of Congress.

Mr. Goss. It wouldn't be just us. Once something hits the fan it usually hits it across the board.

Mr. MOSLEY. I might add that we have just in recent days created a means by which the public might more readily obtain access to presidential documents. We created on our Web site a listing of the sources for presidential documents that are available on-line. Mr. Goss. Okay.

Mr. MOSLEY. So we could direct constituents very readily to that, and I think they would get essentially what you are suggesting they would want to have access to.

Mr. Goss. Thank you.

Judge Pryce, do you have anything further?

Ms. PRYCE. No.

Mr. Goss. I want to thank you gentlemen very much.

I particularly want to thank you for coming as well, Mr. White, and standing by. Obviously, we didn't have enough serious questions for Mr. Mosley to have him participate.

Mr. WHITE. Thank you, Mr. Chairman.

Mr. Goss. But I am sure we have forgotten something, and we will be hearing about it. And as we proceed down this, as I said at the beginning of this, you heard me say, I think, that we are trying to deal on the subject of awareness and attention here and create some interest in a subject that has already gotten plenty of interest to see what, if anything, Congress should be doing about this, and there will be legislation coming forward.

All that, as good as it may be in good time, doesn't mean that we aren't going to have questions from American citizens wanting to know what is going on, and I do think we have the responsibility to respond and give them satisfactory answers, and we will try the system and see how it works.

Thank you all very much. We will dismiss the third panel. [Questions and Answers submitted by witnesses:]

SUBMITTED QUESTIONS AND ANSWERS BY DOUGLAS COx

Question. 1. In your testimony, you mention the broad delegation of authority granted to the President by the Congress in the area of national security. Do you see any difference in the latitude that should be afforded a President for executive orders relating to national security as compared with other types of policymaking? Answer. The President's constitutional powers in the national security area are very great. See, e.g., Article II, Section 2 of the Constitution, United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936); The Federalist No. 64 (John Jay) (Jacob E. Cooke, ed., 1961). Thus, executive orders relating to national security should be considered by Congress in light of the President's unique constitutional role in national security matters, and in foreign affairs more generally. It is perhaps less a question of Congress affording the President greater latitude in these settings, than the recognition of the breadth of the President's constitutional powers. Question. 2. In your testimony, you discuss the "line between executing and legislating." Could you tell us your view of where that line is drawn?

Answer. This is one of the most profound and complex questions in the structural analysis of the Constitution, and I have no definitive, universally applicable guidance to offer.

Most observers would agree that certain functions fall clearly on the legislative side of the line such as appropriating funds-while other functions, such as receiving ambassadors, are clearly executive. In between the extremes there is a gray area where it is difficult to place the line with precision. As Justice Brandeis famously observed in his dissent in Myers v. United States, 272 U.S. 52,291 (1926), "The separation of the powers of government did not make each branch completely autonomous. It left each, in some measure, dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial." Thus, for example, the President does participate in the legislative process in several ways, most obviously through vetoing or signing a bill into law. See also Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv. L. Rev. 569, 570-71 (1953) ("It is fruitless, therefore, to try to draw any sharp and logical line between legislative and executive functions."), quoted in Bowsher v. Synar, 478 U.S. 714, 749 n.13 (1986) (Stevens, J., concurring); Morrison v. Olson, 487 U.S. 654, 725 (1988) (Scalia, J., dissenting) ("It has often been observed, correctly in my view, that the line between 'purely executive' functions and 'quasi-legislative' or 'quasi-judicial' functions is not a clear one or even a rational one."). I note also that former Senate Legal Counsel Thomas B. Griffith recently testified before the House Judiciary Committee's Subcommittee on Commercial and Administrative Law that "[t]here is an uncertain boundary between legislative and executive power in the area of executive orders." Griffith Testimony, October 28, 1999, at 2.

The difficulty in drawing the line between executing and legislating does not mean that there is no such line: rather, it means that the line cannot always be defined clearly or in the abstract. The lack of an absolute and readily ascertainable line between the legislative and executive functions should not be viewed as a flaw in the constitutional design. Rather, the Founders anticipated that both the executive branch and the legislative branch may seek to invade the powers of the other branch, and the resulting struggle between the branches could be used, through the separation of powers, to guarantee liberty. See e.g., The Federalist No. 51 at 349 (James Madison) (Jacob E. Cooke ed., 1961) (“[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. Ambition must be

made to counteract ambition."); see also INS v. Chadha, 462 U.S. 919, 951 (1983) ("The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.").

Question. 3. You discuss the option for Congress to require the President, when invoking statutory authority to issue an executive order, to submit his proposal to Congress for review. Do you think it is likely that any President would agree to this type of change in current practice? How would you structure such a change in the process?

Answer. Presidents are likely to resist any attempts to limit their powers. As noted above, that resistance was anticipated by the Framers and built into the constitutional plan. Nonetheless, a President could be led to agree to such a change, either in the interests of good governance, or as part of some larger political compromise with Congress.

There are many ways to structure such a change. In particular, Congress has had ample experience with "report and wait" provisions and could draw upon whichever version has worked best.

Question. 4. In a recent article for the Journal of Law, Economics and Organization, Terry Moe and William Howell argue that: "[E]ssentially. . . the constitutional and statutory powers of presidents are fundamentally ambiguous, and that this sets the stage for a relentless (and usually moderate and incremental) brand of presidential imperialism that Congress and the courts cannot be counted on to stop-in part because their incentives don't prompt them to want to, and in part because they both suffer from distinctive institutional weaknesses . . . [Congress] has also had a very difficult time responding when presidents have gone off on their own, and it has not done an effective job of protecting its own institutional interests." (Page 33)

Do you share the view that “Congress has not done an effective job of protecting" its interests? Do you have any thoughts on what Congress could/should be doing better in this regard?

Answer. In the context of executive orders specifically, Congress has not done an effective job of protecting its interests. There are many reasons for that, including the increased scope of the duties assigned by Congress to the executive branch, which inevitably reduces congressional oversight over any particular program. Congress has many mechanisms to protect its institutional interests, some of which were mentioned in my prepared testimony. Those mechanisms include increased oversight; enacting narrower, more specific legislation; structural reforms such as "report and wait" provisions for executive orders based on statutes; and the usual tools of political persuasion.

Question. 5. Scholars Moe and Howell argue in their article for the Journal of Law, Economics and Organization that it is wrong to say that the Congress makes the law and the President executes them-as if to imply that the President is an agent of the Congress. Instead, they argue that the President is "an independent authority under the Constitution, and thus has an independent legal basis for taking actions that may not be simple reflections of congressional will." (Page 4). Could you discuss your view of the "gray area" that exists between the realms of lawmaking and law-executing?

Answer. A summary of my views on the gray area between legislating and executing is set forth above in my response to question 3. More specifically, I agree that the President is an independent authority under the Constitution, and thus has powers and duties that are independent of Congress and, indeed, may be exercised in the fact of congressional opposition. Perhaps the most common and most obvious example of that power to override the will of Congress is the use of the veto power to reject a bill passed by both Houses. At the same time, the Constitution clearly requires that Congress enact the laws-and thus set the general policies that govern the Nation. both Congress and the President have great constitutional power, and it is important that both Congress and the President exercise their powers vigorously and properly.

Question. 6. Some scholars argue that the fact of presidents acting unilaterally to "make law" has been reality throughout the history of our country, but that the power of presidents in this regard has grown in recent history and has become more significant. What factors do you believe account for this trend? Do you see this trend as a positive or negative development from the perspective of the institutional prerogatives of the Congress, or just a neutral fact of modern life?

Answer. Although I am not a political scientist, I believe the trend has accelerated as the federal government has grown bigger and become more intrusive. As Congress has multiplied the number of federal programs to be executed, opportunities to "make law" through policy preferences in the execution of the laws have also multiplied. Congress may have further accelerated the trend, by writing overly-broad laws and relying on the President or the courts to fill in the details. This trend is a negative development for the institutional prerogatives of Congress.