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The legality of an Executive Order is most certain when it is based solely on a specific congressional delegation of authority. In such cases, the Presidential order is regarded as of equal validity with the Act itself and has "the force and effect of law.” Maryland Casualty Co. v. United States, 251 U.S. 342, 349 (1919). The constitutional authority for such a delegated power is as broad as the power of Congress. This is only limited by the restriction that when the Constitution expressly vests a power in Congress, that body may not entirely relinquish its constitutional responsibility by delegating full discretion and authority in that area to any other body or person. Since the Presidential power to issue an order is, in such instances, based entirely on an Act of Congress, a subsequent act by Congress may supersede, annul, or modify such an order.
Where statutory delegation is relied upon, there is ample precedent to support the firm proposition that it must be invoked or the order will fail to meet the constitutional requirements of due process of law (see 16 Am. Jur. 2d $ 552). Unfortunately, a number of Executive Orders cite only "the statutes" as authority. This is, at least arguably, too vague to satisfy reasonable standards of due process.
At the other end of the spectrum are those Executive Orders based solely on the President's expressed or implied constitutional powers. Several points should be noted: Those powers which are within the exclusive domain of the President are few. Even the expressed powers of the President as Commander in Chief of the Army and Navy or in the field of foreign affairs overlap those of Congress, which is required by the Constitution to make rules and regulations governing the Armed Forces and to provide the means for their use.
In those instances where Congress has set unequivocal statutory standards, the Executive must abide by those standards. Youngstown Sheet & Tube v. Sawyer 343 U.S. 579°(1952).
The Youngstown Case, or as it is more commonly called, the Steel Seizure Case, provides useful guidelines for this problem. In that case, President Truman's Executive Order directing seizure of the steel mills, based on his position as Commander in Chief, was found to be in direct conflict with the express will of Congress; Executive action was declared illegal and revoked by decision of the Supreme Court. Situations can, of course, be cited where the will of Congress is by no means so clear, or where the Executive action only partially deviated, or only arguably deviated, from Congressional intent. In grey areas such as these the courts have in the past been reluctant to intervene and determine exactly what Congress did intend and to what extent the Executive had deviated from that intent.
The exact extent of Presidential authority poses a special problem in time of declared national emergency, when extraordinary powers are delegated by the Congress to the Executive.
When an Executive Order has been issued on the basis of both statutory and constitutionally derived authority, there arises the question of what effect a subsequent congressional action might have on the legality of the order. Since the President is required by the Constitution to adhere to properly enacted statutory guidelines, a requirement spelled out in the concurring opinions expressed in the Youngstown
Case, a subsequent properly enacted statute of Congress could modify or revoke an Executive Order even though Presidential powers have been invoked as authority. Congress has, indeed, done so on several occasions (for example, E.O. 9250 was rescinded by 57 Stat. 63 4(b)). But if there does exist exclusive constitutional authority for the President for a particular Executive Order the degree of congressional power of recission must be limited. As the decision in Ex parte Milligan 4 Wall. 2, 139 (1866) observed:
The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in
proper authority of Congress, nor can Congress upon the proper
authority of the President. In the case of a dispute between the legislative intent of a statute and the constitutional powers of the President, only the courts can resolve the dispute. In the case of a dispute, neither branch can legally impose its will, and both branches must abide by the decision of the courts.
Many statutes require the existence of a specific state of facts before they take effect. The authority to make a determination is frequently entrusted to the President, and has long been regarded as a legitimate delegation of authority (Field v. Clark 143 U.S. 649), although doubts have arisen in recent years as to the wisdom of the widespread use of this procedure. For example, although there is no constitutional provision to do so, it has been the practice over the past 40 years that the simple declaration by the President that a national emergency exists is all that is required to obtain extraordinary grants of authority contained in over 470 provisions of law. (See Proclamations 2914, 3972, and 4074.) More than 470 statutes currently in effect provide that the President upon declaration of a national emergency thereby receives the authority to use the extraordinary powers delegated to the President by the statutes.
To summarize the legal situation with regard to national emergencies: The President, at his own discretion, may declare that a state of national emergency exists. He thereby activates for his own use, without any congressional oversight, over 470 powers affecting every area of government and private life. Any Executive Orders or directives which he validly exercises pursuant to these statutes have themselves the force and effect of law. Yet the body of statutes providing emergency powers to the President almost without exception provide no standards to limit this authority. Nor is there in almost all of the over 470 statutes a requirement that the state of emergency be of limited duration.
Thus, whenever the President so decides, he may legitimately establish a Government rule not subject to many normal congressional checks. The Constitution and especially the Bill of Rights still provide significant restraints, but the institutional checks designed to protect the guarantees of the Constitution and Bill of Rights are significantly weakened by the growing tendency to give the President grants of
extraordinary power without provision for effective congressional oversight, or without any limitation upon the duration for which such awesome powers may be used.
The Special Committee's study of Executive Orders, Presidential Proclamations and Directives reveals considerable confusion in procedure, a decided absence of a comprehensive means for public accountability and an uncertain basis for determination of legal authority on which executive directives may be issued or challenged. This situation is reason for the gravest concern in periods of peace and stability. This concern is all the greater in times of war, national crisis, or emergency when many additional powers and responsibilities devolve on the President. Congress in particular can dispel this disorder and lessen dangers to constitutional government by establishing standards to be used by the Executive in time of a crisis and procedures for Congress itself to follow to assure effective oversight of the executive branch in times of national emergency.
In order to make those Executive decisions that have already been published more useful, the first task is one of codification. Although many Executive Orders now specify which orders they are modifying or superseding and at least some statutes do likewise, this practice is by no means uniform. The exact legal status of executive directives or procedure in many areas is virtually impossible to ascertain. Such a codification of all published Executive Orders is currently being undertaken by the Federal Register, although more support for this effort should be given by more adequate funding from Congress. When completed—and if it is kept properly updated—this codification will make it possible, for the first time, to have a definitive compilation of published Executive directives.
Unfortunately, a great many of the most significant Presidential decisions are not available for congressional or public scrutiny through the Federal Register. This lack is primarily due to a failure by Congress to specify substantive standards under which all presidential directives should be recorded. In addition, Congress has not yet enacted laws which would prevent the Executive from using classification to withhold information from Congress and the public. The problem of public accountability can affect, in a very profound sense, the viability of Constitutional Government. What the Executive does with public funds and who is entitled to know about Executive directives, are among the most important questions now being asked of our system of Government. Until Congress grapples with these issues directly, it will be faced with a continuing veil of secrecy and be unable to carry out its constitutional task of overseeing the Executive. The Indochina war and “Watergate” tragically illustrate the results of such congressional inattention.
The awesome power contained in delegated emergency powers involves the same fundamental questions being asked of Government. This much is, however, clear: In the grey areas of overlapping executive and legislative responsibility, the Executive must carry out the clearly expressed intentions of Congress, as indicated in Youngstown Sheet and Tube Co. v. Sawyer, when such properly enacted statutes
exist. The continuance of arbitrary presidential decisions made apart from the public record and thereby unaccountable during times of crisis or emergency could jeopardize essential freedoms and the strength of cherished free institutions. Congress, where possible, should legislate, therefore, in advance, standards to guide the President and to prevent, insofar as law can prevent, adverse authoritarian rule. Only Congress has the responsibility to strengthen constitutional means to bridle the possible future exercise of authoritarian power.
It is the intention of the Special Committee when its work is completed to recommend to Congress specific legislative remedies that if enacted would assure that all Presidential directives, by whatever name called, which have legal effect upon individuals or institutions will be published in the Federal Register. This recommended legislation will include provisions for a classified Federal Register to be used when appropriate.
The Special Committee on National Emergencies and Delegated Emergency Powers is now compiling a catalogue of all Proclamations and Executive Orders issued pursuant to statutory powers, triggered by the four states of national emergency now in effect. The Committee staff, over the past six months, has been engaged in a study of all relevant Executive Orders and Proclamations. Your office has been of immeasurable assistance and we wish to thank you for the intelligent and resourceful support that you and your able assistant, Mrs. Ruth Pontius, have given the staff of the Special Committee.
The Special Committee has one additional request. We would like a list of all Executive Orders and Proclamations now in force issued pursuant to the four now existing states of national emergency. We recognize that for various reasons it may be impossible to supply a complete listing, but we would like to have as complete a list as can be provided.
We thank you for your assistance. With kind regards we are
Charles McC. Mathias, Jr.