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just as true to the original documents as the printed editions. OFR and GPO generate the on-line Federal Register, CFR and the Weekly Compilation from the same databases used to create the printed editions to ensure that we meet those standards. In our regulations, we assure the public that the on-line edition of the Federal Register has the same official legal status as the printed edition. This month, the Administrative Committee of the Federal Register passed a resolution to grant official status to the on-line editions of the CFR and Weekly Compilation of Presidential Documents. To guarantee future access to Executive orders and other Federal Register documents, GPO is committed to maintaining the on-line Federal Register, CFR, and Weekly Compilation of Presidential Documents on GPO Access as part of the permanent collection known as the "Core Documents of U.S. Democracy" series.

The task of sorting through the large volume of material available on web sites can also limit access to information. We use our National Archives and Records Administration (NARA) web site (http://www.nara.gov/fedreg/index.html) as a gateway to guide customers to the text of Executive orders available in various publications and to related ancillary information services. The ancillary services on the NARA web site include a historical Codification of Proclamations and Executive Orders (1945-1989) and our on-line index of Executive orders. The Codification directs users to the text of Executive orders by subject matter, series number and Presidential administration. The on-line index of Executive orders is possibly the only authoritative source of information on the current amendment status Executive orders. It has information on dates of issuance, amendments, revocations and dates of publication in the Federal Register. The staff in our Presidential documents unit converted the index from a card catalog that we used to respond to reference requests received by letter and telephone. Now the index is available on-demand to any member of the public, in a hypertext format for easy navigation among the various entries. During the first nine months of calendar year 1999, our customers retrieved a total of 557,657 individual items from these ancillary services.

Question 2. The NARA web site offers the public a wealth of primary source information about Presidential documents, specifically Executive orders. Is there also an objective source of analytical information available to the public concerning the impact that such orders have on the public?

Answer. I do not know of an objective source of analytical information relating to the impact that Executive orders have on the public. Analytical reporting would go beyond the scope of the OFR's statutory mission. In the past, we have been provided with reports prepared by the Congressional Research Service, which contained some analytical content. But I don't know whether CRS has done recent work on this subject, or whether the information would be made available to the public.

You asked me several [other] questions, to which I would [also] like to respond. 1. First, you asked me to elaborate on what I meant by the word "restraint" when I noted that some degree of restraint by both branches of government is needed. What I meant was that in order for a separation of powers system to work, especially in a time of divided government, both the President and Congress have to show the restraint of not taking their position to the most extreme lengths. Otherwise, there is a danger of governmental stalemate. The need for restraint runs to both ends of Pennsylvania Avenue.

2. Second, you asked me for my thoughts on proposed legislation pertaining to the issue of Executive orders. In general, I think it is better to deal with executive orders one-by-one, rather than to lay down in legislation general norms to prevent executive orders from being issued. Without discussing in detail the proposed legislation, I am concerned that it would not be effective, in part because the President does have constitutional power to act in many cases and, as we see in history, Presidents may well do so. It's also not clear to me that preventing a President from taking action is always a good thing, at least when we don't know what the action is. Also, legislation such as this can turn around and bite the hand that feeds it, especially if a Republican President were elected in the upcoming presidential contest. 3. Third, you asked about a passage from a recent article by Terry Moe and William Howell in which, among other things, they assert that "Congress has not done an effective job of protecting its interest in the context of unilateral presidential action." This may be an overstatement. As I said in my oral remarks, there are forces at work that make it difficult for Congress to take definitive action. It is easier for one person, namely, the President, to act than it is for both houses of Congress to take action. With the exception of the War Powers issue, it's not clear to me that Congress has dropped the ball. I would say that the passage of the Item Veto Statute in 1996 was a huge institutional mistake on the part of Congress, although I understand the political factors that went into the decision. In any event, that stat

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ute has been struck down as unconstitutional, as I believe it should have been, so it no longer stands as a monument to the expansion of executive power.

4. Fourth, you discussed the "gray" area that exists between the realm of lawmaking and law execution. There is no doubt that a gray area exists. As stated in my prepared statement, the President has vast lawmaking power in any colloquial sense. It simply is not true that all law is made by Congress. The main check that we have is the requirement that executive lawmaking be authorized by the Constitution or a statute. Also, Congress can take steps to reverse or limit the effects of executive lawmaking, as discussed in my prepared statement and oral remarks. I don't think it is reasonable to try to identify, as a definitional matter, a sphere of lawmaking that excludes the President and the executive branch agencies. Execution of the law involves the interpretation and application of statutes, and interpretation and application in any ordinary sense constitutes the development of law by executive officials.

5. Fifth, if there is a trend toward greater presidential lawmaking, it is a function of broad institutional change during the twentieth century. Many factors have contributed to the growth of executive power. The development of a multitude of executive agencies has been an important factor. These agencies were created because Congress determined that there was a need to have a separate bureaucracy address major social problems. For instance, the NLRB was created to address serious and ongoing problems in the relations between labor and management. As long as major social problems exist and something is sought to be done about them that involves governmental action, the proliferation of programs seems a likely consequence.

In addition, the growth of presidential power is a function of the increasing importance of the United States in world affairs since World War I. It would be hard to say that the position of the United States has declined since the end of the Cold War. As the only major superpower, the United States plays a unique role on the world's stage, and the President, as the nation's spokesperson in foreign affairs, necessarily achieves heightened power.

I don't think that any of this should be taken to mean that Congress is unimportant. After all, Congress is the national legislature; it has the power of the purse; and it has the major role in structuring and overseeing the power of executive agencies. I am concerned that Congress may have let the War Power given to it in the Constitution slip through its fingers, but in domestic life it is not fair to speak generally about a tremendous decline in the institutional position of Congress.

What has changed is the relative decline of a disciplined party system and seniority system that used to discipline members of Congress in reaching collective decisions. Many commentators who have studied the institution attribute an important role to internal changes as a cause of greater difficulties in developing coalitions of members to support a common result.

6. Sixth, I think that the basic policy for the nation should be set by Congress. That is why Congress is designated in Article I of the U.S. Constitution as having the legislative power therein granted. However, as noted above and in my written statement, this does not mean that policy pursuant to statute or constitutional grants of power is not also initiated by the executive.

7. Seventh, you ask whether the public has enough information about executive orders to make a judgment about their impact on them. I don't believe the public ever has enough information about government. Partly, this is a function of the fact that our media covers the government in very selective ways. Most of what the government does, as a matter of fact, the public may know little or nothing about. Studies about particular issues often show a dramatic lack of information on the part of the public. Accordingly, I strongly support efforts to promote public education in this and other areas. Both branches of government have an obligation to publicize presidential directives. This includes an obligation on the part of the executive branch to publicize executive orders.

8. Eighth, Congress does from time to time pass legislation after the fact to ratify some action that the President has taken by means of executive order. This practice goes back many years. It was, for example, a prominent development during the Civil War, when Congress came back into session at the beginning of the War and ratified unilateral actions taken by President Lincoln.

If you ask whether Congress should ratify presidential action taken unilaterally, I suppose the answer has to be, it depends. There are times when Presidents have acted unilaterally in response to emergency situations, and may have created a good deal of legal doubt about what was done. In those circumstances, it can be extremely useful for Congress to ratify what the President does by subsequent authorization. At the very least, this shows that when Congress looked at the matter, it agreed with the President.

The hope for subsequent authorization is not an excuse for a President to act in a reckless way. After all, Congress may not subsequently authorize some action. Presidents need, when they act unilaterally, to be sure that they have the requisite statutory and constitutional power before they act. Subsequent authorization does not cure a lack of initial authority.

A related point involves a situation, such as in Youngstown, when a President takes action by executive order and then says that he would obey any contrary direction by the Congress if it should make one. As you know, Congress did not subsequently disapprove of the seizure of the steel mills. That failure to disapprove did not in any way authorize the seizure. A failure by Congress to act can reflect a number of conditions, such as a lack of ability to achieve a majority vote, a preoccupation with other matters, a lack of leadership, or perhaps in some cases a lack of interest. The point is that Presidents cannot claim that the failure of Congress to disapprove a unilateral action after the fact provides authority to act at the time a decision is made.

SUBMITTED QUESTIONS AND ANSWERS BY WILLIAM J. OLSON

Question 1. At what point, in your view, did the trend begin to turn toward more aggressive use of the executive order by Presidents? What triggered this new direction?

Response. We recently completed a study on behalf of the Cato Institute entitled "Executive Orders and National Emergencies: How Presidents Have Come to 'Run the Country' by Usurping Legislative Power." This study is available at our internet site, www.wjopc.com. In this study, we trace the use of executive orders beginning with President Washington. In Table 1 of the study, we set out the number of executive orders issued by each president since Abraham Lincoln. It can be readily concluded that the explosion of executive orders is a 20th Century phenomenon.

No president from Lincoln to William McKinley issued more than 71 identified executive orders, and all 10 presidents during this span issued a combined total of only 158 executive orders. This all ended abruptly when Theodore Roosevelt ascended to the presidency upon the assassination of McKinley on September 14, 1901. During the seven and one-half years of Theodore Roosevelt's presidency, with neither a world war nor an economic catastrophe to supposedly force his hand, he issued 1006 executive orders—making him the third most prolific of all presidents, behind only Franklin Roosevelt at 3,723, and Woodrow Wilson at 1,791.

Theodore Roosevelt's autobiography revealed his revolutionary view of presidential powers, which has come to be known as the "stewardship theory" of executive power. His approach was unchecked by any regard for the form of government established by the U.S. Constitution.

Theodore Roosevelt ignored the fact that in our federal scheme the national government was intended to be a government of limited, enumerated powers, and he ignored the fact that the president's role was limited to execution of the laws that were written by Congress. In his autobiography, Roosevelt expressly "declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it." To the contrary, he stated that it was "his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws." These are not the words of a man who believes this is a nation of laws and not of men.

A president who observes his vow to preserve, protect, and defend the U.S. Constitution must find express authority for his actions-not just a personal preference combined with the absence of an express prohibition. During the rest of the 20th Century, the Theodore Roosevelt view of presidential authority has rarely been articulated in such stark terms, except perhaps by Franklin Roosevelt, but has often been the unspoken basis underlying the issuance of many executive orders.

As recently as 1995, when President Clinton unsuccessfully tried to defend the legality of his Executive Order 12954 prohibiting the hiring of permanent striker replacements by federal contractors, the U.S. Justice Department argued that "there are no judicially enforceable limitations on presidential actions, besides claims that run afoul of the Constitution or which contravene direct statutory prohibitions" as long as the president states that he has acted pursuant to a federal statute. Fortunately, the U.S. Court of Appeals for the D.C. Circuit, in only the second judicial invalidation of an executive order ever, rejected the position of the Clinton Administration.

Question 2. What role would you assign to the public in the process of maintaining a proper balance between the branches when it comes to executive orders? In your

view, is the current process transparent enough-and is the public engaged enough to allow for that role to be realized?

Response. The role of the public is to elect to the presidency only persons of character, who are capable of exercising self-control, and who view it as their supreme duty and responsibility to defend the U.S. Constitution and exercise only those limited powers provided to them under the U.S. Constitution. Further, the role of the public is to elect to Congress only persons of character, who themselves live under the limitations on their power set out in the U.S. Constitution, and who, therefore, without hesitation or impediment of hypocrisy, will make it their highest priority to meet power with power and stop in his tracks any president who exceeds his enumerated powers.

Having elected such persons to office, the public must hold those persons accountable to that trust that they have placed in them, demonstrating the willingness to throw out of office persons who prove unworthy of that trust. When presidents violate the Constitution, the public should support efforts by the House to impeach and the Senate to convict and remove from office, such unworthy presidents. Lastly, we have a Biblical duty to support our leaders in prayer (I Timothy 2:1-2).

I view the issue of making the executive order process more transparent as a red herring a diversion from that which is important. For those executive orders which the president can constitutionally issue those which provide proper direction to his subordinates within the executive branch of government-he should not have new additional, principally cosmetic, burdens imposed on him of notice, comment, or the like. With respect to those executive orders where the president has no authority, he must be stopped directly, certainly and rapidly by a Congress full of righteous indignation against a president who has violated his role.

When my father read the testimony that I provided to the House Rules Committee, he was concerned that I was too guarded and did not provide a sufficiently clear and forthright message as to the severity of the problem, and the need for action by Congress. To remedy that well-founded criticism, I would say that based on the study we have undertake, the United States is rapidly headed toward tyranny, defined as our founding fathers defined that term-the union of the power to write the laws in the same person as the power to execute the laws. As Montesquieu stated: "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates." Congress has not been on the sidelines, but rather has been a willing participant in this nation's march toward tyranny.

It is my earnest hope that a sufficient number of members of Congress take it upon themselves, as their highest priority, to return the government to its constitutional limitations. If Congress does not respond to this threat to liberty, it is my hope that as the people of the United States learn how badly the Constitution has been violated on both ends of Pennsylvania Avenue, they will vent their fury at the ballot box against all elected officials who have failed their sacred trust.

SUBMITTED QUESTIONS AND ANSWERS BY RAYMOND A. MOSLEY

Question 1. Could you briefly elaborate on the manner in which modern communications technology-specifically the Internet-has extended the public's access to Executive orders.

Answer. The Office of the Federal Register (OFR), in partnership with the Government Printing Office (GPO), has extended public access to Executive orders in several different ways. Since 1994, we have published the full text of all Executive orders in the daily on-line Federal Register on the GPO Access service (http:// www.access.gpo.gov/nara). Depending on the time of day that we receive them from the white House, Executive orders appear in the on-line Federal Register at 6 a.m. (ET) on the next business day, or at 6 a.m. on the following business day. In the past, people who had subscriptions to the printed edition of the Federal Register could expect to wait a week or more for the daily issue to arrive by second class mail.

Before the on-line era began, most people depended on clipping services, traveled to a library, or waited for a copy to filter down to hem through a distribution chain to gain access to Executive orders. Most general circulation newspapers have not carried the full text of Executive orders, not even those with significant impact. A handful of Washington news services and trade associations generally come to the Federal Register to obtain copies of documents from our public inspection desk to include in their reports. But by and large, and general public did not have ready access to Executive orders prior to the advent of our on-line service on GPO Access. Now, large and small businesses, State and local governments, and any interested

person can have free, on-demand access to Executive orders through a desktop computer.

Expanding access to information also involves making Internet services easy to use, especially for non-experts. In response to comments from customers and our own design criteria, we developed a separate "field" for Presidential documents which makes it much easier for users to find Executive orders. In addition, beginning in January 1998 we added hypertext tables of contents to the daily on-line Federal Register, which allows users to simply browse the contents for "Presidential Documents," click on the link and retrieve a listed Executive order. The OFR also worked with GPO to improve the means of navigating the 200 volume on-line Code of Federal Regulations (CFR), which includes a compilation of Executive orders for each year. We now offer CFR tables of contents with hypertext links, which identify Executive orders by their number designation and descriptive title. Users can browse the table of contents of title 3 for the 1997 through 1999 compilations, click on a link and retrieve any Executive order published during the prior year.

OFR and GPO have recently developed an on-line edition of the Weekly Compilation of Presidential Documents, an official serial record of Presidential statements, memoranda, messages to Congress and federal agencies, and other documents released by the White House. This publication also contains the text of Executive orders originally published in the Federal Register. Some of the documents published in the Weekly Compilation are related to the implementation of Executive orders. Historically, there have been relatively few subscribers to the paper edition of the Weekly Compilation, but a growing number of customers are discovering the on-line edition.

Comparisons between usage of paper and on-line publications are imprecise, but I believe that we are reaching far more citizens via the Internet than we ever have in the past through our paper and microfiche editions. We do not have a specific breakdown on the number of Executive orders retrieved from the on-line Federal Register and CFR, but overall, the public has been using on-line Federal Register publications in large and increasing numbers. When free online service began, wẹ had about 17,000 annual paid subscriptions to the Federal Register, and annual sales of about 1.3 million CFR volumes. During fiscal year 1999, the public retrieved 48 million individual documents from the on-line Federal Register and 88 million from the on-line CFR. Our customers retrieved 138,000 documents from the on-line Weekly Compilation of Presidential Documents during fiscal year 1999 as compared with 402 paid subscriptions to the paper edition.

In the Internet environment, the reliability of information providers can be problematic. Executive orders may be posted on-line by any number of organizations, but the material may not be current and accurate. It is particularly important that Executive orders be available from a reliable source to remove any doubt as to their content and effectiveness. The OFR adheres to the highest standards of accuracy and integrity for our on-line publications to fulfill our mandate as the official source for Presidential documents and administrative rules and notices. When we developed our Internet services with GPO, we specified that the on-line editions must be just as true to the original documents as the printed editions. OFR and GPO generate the on-line Federal Register, CFR and the Weekly Compilation from the same databases used to create the printed editions to ensure that we meet those standards. In our regulations, we assure the public that the on-line edition of the Federal Register has the same official legal status as the printed edition. This month, the Administrative Committee of the Federal Register passed a resolution to grant official status to the on-line editions of the CFR and Weekly Compilation of Presidential Documents. To guarantee future access to Executive orders and other Federal Register documents, GPO is committed to maintaining the on-line Federal Register, CFR and Weekly Compilation of Presidential Documents on GPO Access as part of the permanent collection known as the "Core Documents of U.S. Democracy" series.

The task of sorting through the large volume of material available on web sites can also limit access to information. We use our National Archives and Records Administration (NARA) web site (http://www.nara.gov/fedreg/index.html) as a gateway to guide customers to the text of Executive orders available in various publications and to related ancillary information services. The ancillary services on the NARA web site include a historical Condification of Proclamations and Executive Orders (1945-1989) and our on-line index of Executive orders. The Codification directs users to the text of Executive orders by subject matter, series number and Presidential administration. The on-line index of Executive orders is possibly the only authoritative source of information on the current amendment status Executive orders. It has information on dates of issuance, amendments, revocations and dates of publication in the Federal Register. The staff in our Presidential documents unit con

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