far-reaching espionage program over government employees. These orders look more like legislation to me than properly authorized regulations to carry out a clear and explicit command of Congress. I also doubt that the Congress could delegate power to do what the President has attempted to do in the Executive Order under consideration here. And of course the Constitution does not confer lawmaking power on the President. I have thought it necessary to add these statements to the Court's opinion in order that the President's power to issue the order might not be considered as having been decided sub silentio. In Greene v. McElroy, 360 U.S. 474, 508 (1959), the question dealt with action taken under Executive Orders 10290 and 10501 dealing with the safeguarding of official information. In the opinion of the Court, Chief Justice Warren declared we do not "decide whether the President has inherent authority to create such a program, whether congressional action is necessary, or what the limits on executive or legislative authority may be... ་་ In United States V. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) the Supreme Court indicated that, in the field of foreign relations, the President possesses certain inherent powers, apart from grants of power by the Constitution, so that delegations of legislative power by Congress to the President to place embargoes on foreign commerce (a field specifically enumerated by the Constitution as one of the areas of Congressional power) will be more liberally construed by the courts than if the field of foreign relations were not involved. The Congress has on numerous occasions repealed Executive Or ders, even at times many years after their issuance. Executive Order 27-A dated September 4, 1890, which created the United States Board on Geographical Names was repealed by an Act of July 25, 1947 (61 Stat. 477 $6). 41-118 O 74-4 Executive Order 597 1/2 of March 22, 1907, which promulgated the Code of Civil Procedure of the Canal Zone was repealed by the Act of February 27, 1933 (47 Stat. 1123 $1240). Executive Order 1141 dated November 23, 1909, which made the enticing of laborers from the Canal Zone a misdemeanor was repealed by the Act of February 16, 1933 (47 Stat. 810). Certain sections in Executive Orders 6098 and 6568 of March 31, 1933 and January 19, 1934, relating to veteran's pensions were canceled by the Act of August 25, 1937 (50 Stat. 798). Executive Order 9250 dated October 3, 1942, limiting salaries to $25,000 after payment of taxes, was rescinded by the Act of April 11, 1943 (57 Stat. 63 §4(b)). Just as Congress has the power to repeal Executive Orders, attention is called to the fact that even this power seems to have its limitations. The United States Supreme Court declared in Ex parte Milligan, 4 Wall. 2, 139 (1866), the following: "The power to make the necessary laws is in the Congress; the power to execute is 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 peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President Both are servants of the people, whose will is expressed in the fun- ̈ damental law. IV. Number of Executive Orders by Presidents. A. General As noted earlier in this memorandum, no Executive Orders were numbered and no systematic filing system was in existence prior to 1907. The Department of State during this year began numbering the Executive Orders it had on file and those it received after that date. For the Presidents listed prior to 1907 the following table does not purport to be complete. It lists only the number of Executive Orders which have been assigned numbers for this period. Also, as discussed earlier, for various reasons many Executive Order Numbers carry other Executive Orders under the prime numbers such as 350A, 350B, 502 1/2, 600-1 etc. This will account for the differences in the totals for some years showing more executive orders in the total column then the differences between the number for the first of the year and the last number for the end of the year. The table lists the President issuing the orders; term of service by the President, year issued, number of first and last Executive Order issued during the year, total number for the year, and the total number of Executive Orders issued by the President during his term of service. The number of Executive Orders covered are Executive Order 1 issued by President Lincoln dated October 20, 1862 through Executive Order 11766 issued by President Nixon dated January 29, 1974. |