I. Background of the Executive Order.

A. General

From 1789 Presidents have issued orders and directives which in general terms may be termed and described as Executive Orders. The se orders in the early years of the Republic differed extensively as to form and substance from what we know as Executive Orders today.

Essentially, an Executive Order is a written document issued by

the President and titled as such by him or at his direction. The subject matter of each Executive Order must be ascertained from an examination of the order

itself.

The Executive Order in the last fifty years has become a governmental instrument of broad and increasing importance, a fact which has been made particularly obvious since 1933.

Since Executive Orders are directives or actions by the President and when such documents are founded on the authority of the President derived from the United States Constitution or a Federal Statute they have the force and effect of law.

Executive Orders may be repealed or modified by the President issuing them or by a following President even if many years have passed. Executive Orders may be repealed or modified by an act of the Congress or by a decision of the Judiciary. Some Executive Orders become obsolete by the

passage of time, as when it bears an expiration date or when the purpose for which it was issued no longer exists.

Otherwise, an Executive Order once

issued remains in effect until repealed or modified or expires.

There is no law or even an Executive Order which attempts to

define the term "Executive Order".

In the narrower sense Executive Orders

are written documents denominated as such.

Generally, Executive Orders are directed to, and govern actions

by Government officials and agencies. They usually affect private individuals

only indirectly.

B. Form

All Presidents beginning with George Washington in 1789 have issued orders which in general terms can be described as Executive Orders.

During the early period of the Republic there was no set form with which such orders were required to comply and consequently such orders varied widely as to form and substance.

Often a President would merely write "approved", "Let it be done", or "I approve the accompanying recommendation and order that it would be effected," or similar words, at the end of a recommendation drawn up by a Cabinet member. Many times such an order was not signed by the President but by a Secretary at the order of the President. In fact, seven of the first 33 Executive Orders in the numbered series were signed by the Secretary of State. An example is Executive Order No. 2 dated April 4, 1865, which offered a reward for the capture and conviction of certain felons and their abettors. Executive Order 113, dated February 8, 1899, which ordered the

flying of the flag at half-mast during the removal of the remains of John A. Rawlins to Arlington National Cemetery, was signed by J. A. Porter who was. a secretary to President McKinley.

Some orders that have been considered Executive Orders have been signed and issued during the absence of both the President and the Vice President. For example, Executive Order 7 was issued and signed by Secretary of State William H. Seward on July 28, 1868. This Executive Order certified

the 14th Amendment to the Constitution as in effect, and ordered its publication. Other orders have been signed by other department heads, and they purported to have the same effect as if they had been signed by the President. For example, Secretary of War William Howard Taft signed Executive Order 348-A, dated August 29, 1905, to define the boundaries of a proposed military reservation on reclaimed harbor land at Manila, Philippine Islands.

As late as 1906, Executive Orders were treated with the utmost informality. Executive Order 396 dated in 1906 (but not by month and day) is simply an endorsement on a letter written by Senator Knute Nelson, making a certain woman eligible for re-instatement as a classified laborer in the Department of Agriculture.

On February 18, 1936, President Roosevelt issued Executive Order 7298 to be effective on March 12, 1936. It prescribed a uniform manner of preparing proposed Executive Orders and proclamations including their filing and publication. Executive Order 7298 was later superseded by Executive Order 10006 of October 11, 1948; this in turn was superseded by Executive Order 11030, issued on June 19, 1962. The latter Order remains in effect. C. Subject Matter of Executive Orders.

In use from the earliest days of the Republic the Executive Order was at first employed mainly for the disposition of the public domains, for the withdrawal of lands for Indian, military, naval, and lighthouse reservations, or for other similar public purposes. Later it was used frequently for the creation, alteration, or disposition of forest, oil, gas and coal reserves, and for the withdrawal of public lands from sale or entry for purposes of accurate classification. It was also used to establish, transfer, and abolish land offices

and land districts, supplementing acts of the Congress.

The Executive Order became an essential instrument in the evolution of the Civil Service, blanketing into the classified service additional positions as authorized by law, promulgating rules for the service, and exemptions from those rules, both with and without the approval of the Civil Service Commission. It was used to effect various regulations applying to governmental employees outside as well as inside the growing classified service. It established days of mourning for the death of famous citizens. It extended Indian trust period allotments.

The Executive Order was also employed to give public notice of changes of general interest in the regulations governing the consular and diplomatic service. Customs districts and offices were set up or altered by Executive Orders. Army regulations on punishments, both in peace and war, and allowances for subsistence and housing are set forth by the President through this vehicle.

During World War I, the use of the Executive Order was widened, as executive authority and power increased and its scope greatly broadened. Important agencies such as the Food Administration, the Grain Corporation, the War Trade Board and the Committee on Public Information were set up by Executive Orders. Also, Presidential powers, which vastly increased in wartime, were specifically delegated to subordinate officers by Executive Orders.

During the New Deal era in the 1930's, the use of Executive Order was widened, both in the administration of the recovery from the depression and in reform programs and in the evolution of the defense and war projects.

Important agencies with great powers, such as the National Labor Board and the War Trade Board, were created by Executive Orders. Relief funds were allocated to specific agencies, NRA codes were approved, and part of the machinery for farm loans and the establishment of the AAA were set up by Executive Orders.

The use of Executive Orders has decreased in number from the 1930's and 1940's but their scope as to their function and powers has been broadened. Executive Order 11605, dated July 2, 1971 granted to the Subversive Activities Control Board new, sweeping powers to investigate various organzations and groups in America to determine if they are intelligently or politically dangerous to the security of the Nation. Executive Order 11708,

dated March 23, 1973, which relates to the Executive Salary Schedules, may involve millions of taxpayers' dollars, notwithstanding the fact that under it the Congress does have a veto if it acts before a specified date.

Executive Order 11748, dated December 4, 1973 created a Federal Energy Office with powers over Energy matters which affect the lives of all citizens of the United States.

D. Numbering of Executive Orders.

The earliest Executive Orders were not numbered. The numbering of Executive Orders seems not to have been instituted until 1907, when the Department of State began to assign numbers to all Executive Orders which it then had in its files and as it received new orders as issued. The order which it designated as Executive Order 1 was issued by the authority of President Lincoln on October 20, 1862 and concerned the establishment of military courts in Louisiana.