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The Federal Register Act was passed on July 26, 1935. Since then Proclamations and Executive Orders have been published in the Federal Register in order to give public notice of directives issued by the President which have legal effect; that is, which require compliance by the bureaucracy or private individuals, or which require the expenditure of public funds. Through Executive directives of various kinds issued by the President, the laws passed by the Congress are executed. The Federal Register was created in order to provide an accountable record of orders given by the President to carry out the will of the people, as enacted by the Legislature, according to processes prescribed by the Constitution. Executive Orders, in order to be lawful, must be pursuant to authorities delegated to the President by statute or by specific provisions of the Constitution. The Federal Register as a part of National Archives is intended to serve as the repository for Proclamations and Executive Orders, and these documents cite the authorities upon which the lawfulness of Presidential actions are based. The Special Committee was fortunate to receive on November 28, 1973, the testimony and advice of former Solicitor-General Erwin Griswold,i whose Harvard Law Review article written in 1934, was in large measure the inspiration for the Federal Register Act. Dr. Griswold's views have proved to be most helpful to the work of the Special Committee.
The Special Committee on National Emergencies and Delegated Emergency Powers has been engaged in a study, over the past year, of all Proclamations and Executive Orders that have been issued pursuant to the authorities contained in provisions of Federal law delegating to the Executive extraordinary authority in time of national emergency. This has been a very difficult task. In this regard, a Library of Congress study prepared by Grover S. Williams, entitled "Executive Orders: A Brief History" was of great assistance to the Special Committee. That study and a comprehensive bibliography of Executive Orders will be found in the appendix to this compilation. Prior to 1935, directives issued by the President were not collected in any central official depository. While the listing of unclassified Executive Orders-issued since 1935 when the Federal Register Act was passed— is complete, there is, unfortunately, no way of knowing with certainty the legal status of Executive Orders issued prior to the passage of the Federal Register Act.
The Special Committee, in close cooperation with the executive branch, the Library of Congress, and legal scholars, has brought to
1 See Hearings before the Special Committee on the Termination of the National Emergency, Part 3-Constitutional Questions Concerning Emergency Powers, Nov. 28, 1973.
Ibid., p. 831.
gether in this compilation as complete a collection as possible of Executive Orders and Proclamations issued pursuant to states of war or national emergency. The Office of the Federal Register of GSA's National Archives and Records Service was most helpful in the preparations of the compilation (see Appendix) and the Special Committee is particularly grateful to Fred J. Emery, director of the Federal Register and to his able assistant Ruth Pontius for the thorough and scholarly assistance they have given over the past year. The following compilation, with its introductory and explanatory matter, is intended to give Congress and the public an educated insight into the general extent of Executive Orders issued by the President concerning emergency powers. The compilation is also intended to illustrate the principal areas of concern with regard to emergency powers.
It is our hope that this compilation, in addition to the compilation of Emergency Powers Statutes (S. Rept. 93-549), will be of assistance to the Legislature, the Executive, and the public when the Special Committee makes its final recommendations and proposed legislation concerning how delegated emergency powers can most effectively be provided to the Executive in time of necessity and yet maintain the integrity of constitutional processes.
During the course of the Special Committee's study of Executive Orders, it has become evident that many Presidential directives of great importance are not a part of the public record contained in the Federal Register or anywhere else. A practice has grown up in recent decades whereby Presidential directives, if called anything other than an Executive Order, are not recorded for the purposes of public notice or legislative accountability. In the view of the Special Committee, this practice-evident in the area of emergency powers-affects every area of our national life, and remedial legislation to correct this recent practice of public administration should be a priority for Congress.
This Special Committee study contains a listing of all Proclamations and Executive Orders related to national emergencies that we were able to discover, as well as introductory and explanatory matter. The document was compiled and written by the staff under the direction of Staff Director William G. Miller and Thomas A. Dine.
The Special Committee is also grateful for the valuable assistance provided by the American Law Division of the Library of Congress; to Lester S. Jayson and many members of his Congressional Research Service of the Library of Congress who responded so promptly and courteously to requests for specific materials and copies of Executive Orders; and to Patrick M. Norton, Patrick A. Shea, Roland Moore, William K. Sawyer, Audrey Hatry, Martha Mecham, David J. Kyte and Paul Spatz.
The Special Committee is now in the process of editing a history of the use of emergency powers from the beginning of the Republic to the present, as well as concluding work which will lead to recommendations for legislative action. These two reports will be issued in the very near future.
Mr. CHURCH (for himself, and Mr. MATHIAS) as cochairmen of the Special Committee on National Emergencies and Delegated Emergency Powers, submitted the following
[Pursuant to S. Res. 242, 93d Cong., 2d Sess.]
A. STRENGTHENING THE INSTITUTIONAL MEANS FOR THE LEGAL ACCOUNTABILITY OF DECISIONS MADE BY THE EXECUTIVE
The means used by the executive branch to carry out the law and the policy goals set by Congress helps to explain the dominance of the Presidency in the government of the United States. The President is now the head of the most powerful executive complex in the world. In addition to his power as the Chief Executive of the largest superstate the world has ever seen, the President possesses, through congressional delegation, a growing amount of legislative or quasi-legislative power. This enormous power is sufficient reason to determine in exactly what ways the Executive gives directions to "take care that the laws be faithfully executed." It is important that the different ways in which the President gives orders to carry out the law be understood and studied because it has become evident in recent years that many Executive directives are given without any means on