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the part of the Congress or the public of determining whether such orders are lawful and in the spirit of our constitutional system of checks and balances.
A BRIEF HISTORICAL SKETCH CONCERNING EXECUTIVE ORDERS
Presidential directives issued to officials and agencies of the executive branch to carry out the laws made by Congress follow a tangled historical path almost impossible to trace. From the time of the birth of the Nation, the day-to-day conduct of Government business has, of necessity, required the issuance of Presidential orders and policy decisions to carry out the provisions of the Constitution that specify that the President, "shall take Care that the Laws be faithfully executed.” For many decades, however, the process was a haphazard, if not chaotic, one. The earliest Executive Orders sometimes took the form of hastily scribbled Presidential endorsements on legal briefs or upon the margins of maps. Successive Presidents wrote, "Approved," "Let it be done,” or other short comments and these jottings sufficed to stamp a proposal with the authority of the Presidential imprimatur. Although such on-the-spot pragmatic moments of Executive decision predominated, formal“Executive Orders” or “Proclamations” were vested with the full trappings and dignity associated with official national documents—the use of highly formulaic language, and the impression of the Great Seal of the United States executed by the Secretary of State. Yet, the criteria for deciding exactly which orders would be selected for such formal treatment were, and still remain, capricious and arbitrary.
In 1907, the first attempt was made to impose a measure of order on this process with the initiation of a numbering system for all Executive Orders and Proclamations. At that time, the system was backnumbered to President Lincoln's order of October 20, 1862, establishing military courts in Louisiana. Unfortunately, many (how many will probably never be known) eighteenth and nineteenth century Presidential orders-issued both before and after 1862—had never been deposited with the Department of State for recording and retention. Consequently, the backnumbering was incomplete. Estimates made by officials of the National Archives, the Library of Congress, and the Department of Justice, of the number of pre-1907 orders which were never serialized and deposited for the record range from 15,000 to 50,000.
As long as Federal Departments and Agencies were relatively small, the task of systematizing Executive directives was also relatively manageable. With the burgeoning of the bureaucracy that accompanied the expansion of the Government during the New Deal, however, the problem of keeping track of and maintaining any degree of oversight concerning the legality of Executive Orders took on a new dimension. President Roosevelt issued hundreds of Executive Orders each year to implement his many new programs; the programs themselves generated an unprecedented volume of governmental regulations. For instance, the National Recovery Administration disseminated its regulations in the form of 5,991 press releases constituting in all over 10,000 pages of "law."
To regulate this flood of documents reporting executive directives, Congress passed the Federal Register Act of 1935 [44 U.S.C. 1501 et seq.fi. This Act required the publication in the Federal Register of all Executive Orders and Proclamations, and provided that the President might designate other classes of documents to be similarly published. A variety of indices and tables were designed to accompany the actual publication of the documents and provide a means for ascertaining the exact status of any particular order or regulation.
In the Federal Register Act of 1935, however, there were no substantive standards set specifying which Executive directives had to be incorporated in the form of Executive Orders or Proclamations, or, indeed, in any other express format. Nor did past practice offer useful guidelines. Early administrations had used Executive Orders and Proclamations to give legal force to directives to regulate everything from the erection of lighthouses to personnel decisions in the Civil Service to the performance of major military functions. In World War I, a number of very important executive agencies such as the War Trades Board and the Grain Corporation were established by such orders. This practice of creating new agencies by Executive fiat was continued by Franklin D. Roosevelt. However, many important decisions were issued in other forms not easily accessible to the public, while many trivial matters were given full legal form in Executive Orders or Proclamations. The fundamental ambiguity and arbitrariness in the use of Executive Orders remains one of the most troubling problems of public administration yet to be resolved by Congress.
CURRENT PROCEDURES FOR ISSUING EXECUTIVE ORDERS
The Federal Register Act of 1935 provides the present statutory guidelines for the issuance of Executive decisions or orders. It is supplemented by a series of Executive orders by which the Executive prescribes for itself additional procedures to be observed. Both the statutory and the self-imposed regulations, however, fail to diminish significantly the fundamental arbitrariness of the system, and the Executive's own procedures appear to be followed only insofar as it is convenient to the Executive's purpose at the time.
The Federal Register Act (44 U.S.C. 1505] ? provides for the publication of:
1. Presidential Proclamations and Executive Orders, except those not having general applicability and legal effect or effective only against Federal Agencies or persons in their capacity as officers, agents or employees thereof;
2. Documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and
3. Documents or classes of documents that may be required so to be published by Act of Congress. The categories enumerated herein are not all-inclusive. First of all, there is the problem of terminology. If a document is not specifically designated as an "Executive Order” or “Presidential Proclamation,"
the decision of whether or not it will be published as a part of the public record is left to the discretion of the President and his advisers. If he wishes a document to have "general applicability and legal effect," he will presumably have it published. If, however, the order is directed only to an official or an agency and does not purport to regulate the conduct of private citizens, there is no legal necessity for its publication. Most Executive directives fall into this category. Although most Executive directives pertain to exclusively internal bureaucratic operations, many others have great consequences for the Government, the Nation, and individuals as well. One need cite only the decisionmaking which governed the war in Indochina to illustrate the point most vividly. Although clause 3 of 44 U.S.C. 1505 permits Congress to designate classes of documents for publication, Congress has never addressed itself directly to this question in the broad sense here considered.
Even among the two classes of documents, Proclamations and Executive Orders, which are published, there is a considerable degree of confusion. In general, it appears that Proclamations are issued when it is felt that the decree is addressed to the public at large. They tend to be hortatory in nature, proclaiming national days of celebration or ceremonial events. Many Executive Orders are addressed to subordinates in Executive Agencies. But in practice the distinction is not clear.
A study of Executive Orders made in 1957 by the House Committee on Government Operations concluded that "a precise and uniformly applicable differentiation between Executive Orders and Proclamations is impossible.” The situation is not any more precise today. In response to inquiries made by the staff of the Senate Special Committee on National Emergencies and Delegated Emergency Powers those responsible for the procedures relating to Executive Orders at both the Justice Department and the Federal Register acknowledged their inability to define with precision the difference between Executive Orders and Presidential Proclamations and emphasized the inconsistencies which pervade their usage. The arbitrariness of this system is illustrated by two instances of very similar situations of federallyenforced school integration in the South. In the first instance, President Eisenhower relied on an Executive Order, while, only a few years later, President Kennedy issued a Proclamation.
Executive Order 11030, as amended by Executive Order 11354 1 sets standards for the “preparation, presentation, filing, and publication” of Executive Orders and proclamations. Like the statutory regulations, these self-imposed Executive standards fail to prescribe criteria for the subject matter to be published as an Executive Order or as a proclamation. Section 2 of Order 11030 does, however, establish a procedure for the intra-executive clearance procedures of proposed Executive Orders and proclamations. According to Section 2, a proposed Executive Order must be sent first to the Director of the Office of Management and Budget, and then to the Attorney General. Only after their approval is obtained may an Executive Order be forwarded to the President for official sanction and subsequent publication. The Special Committee's study shows that this procedure has been usually
See Appendix, p. 210.
followed in routine matters. It has not, however, been universally complied with. The Justice Department acknowledges that it has received notice of some important Executive Orders after their promulgations. The August 15, 1971, Executive Order issued from Camp David concerning America's international financial position is an example. In some cases the justification for not following regular procedures is explained as required by the exigencies of an "emergency”; bypassing regular clearance procedures appears to occur frequently in times of national emergency. The point that does not escape notice is that successive administrations have followed established procedures only when convenient to do so.
If the format and procedures for issuing Executive Orders and Proclamations appear inadequate and inconsistent, the situation regarding other Executive directives is even more so, bordering on the chaotic. Title 3 of the Code of Federal Regulations indicates that in issuing decisions and commands, Presidents have used such diverse forms as letters, memorandums, directives, notices, reorganization plans, administrative designation, and military orders. The decision whether to publish an Executive decision is clearly a result of the President's own discretion rather than any prescription of law. In recent years, the National Security Action Memorandums of Presidents Kennedy and Johnson and the National Security Action Directives of President Nixon represent a new method for promulgating decisions, in areas of the gravest importance. Such decisions are not specifically required by law to be published in any register, even in a classified form; none have prescribed formats or procedures; none of these vital Executive decisions are revealed to Congress or the public except under irregular, arbitrary or accidental circumstances. For instance, the 1969–1970 secret bombing of Cambodia 1 has recently come before congressional and public notice. The public record reveals very little about how the commands for such far reaching actions were issued. What is most disturbing is the lack of access to any authoritative records in these matters. In short, there is no formal accountability for the most crucial Executive decisions affecting the lives of citizens and the freedom of individuals and institutions.
The problem is exacerbated by the classification of sensitive or important Executive decisions, classification which in most cases prevents even Congress from having access to these documents. While no one would wish to prevent sensitive documents from being classified for reasonable cause, the absolute discretion given to the Executive in this area has led to abuse. It has permitted and encouraged inclusion in this category of many documents in no way connected with essential national security. Moreover, not only are their contents kept secret, but even the extent of such documents is unascertainable. On the basis of the handling of past Presidential papers, many of these documents will, of course, in one manner or another, eventually be declassified, but many have been withheld by Executive discretion.
Until recently, classified Executive Orders were inserted chronologically in the prescribed serialization of the Federal Register by the use of a letter suffix after the number of the last preceding order, for
" See Emergency Powers Statutes, Nov. 19, 1973: The “Feed and Forage" Act of 1861; applicability under 41 U.S.C. 11, pp. 319–321.
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example, Executive Order 7784-A. It seems evident that even this provision for recording classified Executive directives has, by and large, not been used because other less public forms of Executive directives have proven more convenient for executive branch purposes.
The legal record of executive decisionmaking has thus continued to be closed from the light of public or congressional scrutiny through the use of classified procedures which withhold necessary documents from Congress, by failure to establish substantive criteria for publication and by bypassing existing standards. As a result, the legality of a substantial area of operations of the Government has in large measure been immune from any oversight or scrutiny by Congress. And the situation is growing worse. The number of formal Executive Orders and Proclamations has, in recent years, declined from many hundreds to about 70 annually. Since it is certain that as the United States has grown in size and power the Executive has issued more and more decisions, many of which are of the greatest importance, it can only be surmised that such commands continue to be issued in irregular form and in ways unaccountable to Congress and the people. As the role of the Executive in Government continues to expand, this must be cause for the greatest concern.
THE LEGAL STATUS OF EXECUTIVE DECISIONS Article I of the Constitution vests all legislative power in Congress. Nowhere in the Constitution is the President empowered to make law. Nevertheless, in the course of executing Acts of Congress and of directing the executive branch, the President must issue numerous orders to the bureaucracy which have a binding effect on subordinate officials, and, in many cases, on Congress, and on individuals from the general public as well. For all intents and purposes many of these Executive directives or orders constitute “law,” even though the parties affected may be unaware of their existence.
In its consideration of the legal status of Executive decisions, the Special Committee has concerned itself primarily with formally declared Executive Orders and proclamations designated as such, or with other documents published in the Federal Register. There is, at present, no way of knowing how and by what legal authority those Executive directives not recorded in the Federal Register affect the public. The primary conduct of individuals in their everyday lives presumably may not be regulated by such unpublished orders, since the statutes (44 U.S.C., Chapter 15) and normal standards of due process probably require publication before an order may be given direct legal effect. But many decisions within the Executive branch itself often have repercussions much more severe for the general public than any attempt to regulate its conduct directly. And there is often no means for the public, or its congressional representatives, to ascertain the content of these decisions, or even the fact that they are being made.
The legality of an Executive Order or a proclamation depends upon the applicability of the legal authority which the President cites at its issuance. This authority is of two kinds: That which Congress specifically delegates to the President by statute; and that which he asserts to derive from certain constitutional powers, express or implied, of the Presidency itself.