THE PRESIDENT AND CIVIL RIGHTS: BY RUTH P. MORGAN, Southern Methodist University CHAPTER I LEGAL BASIS OF EXECUTIVE ORDERS Americans usually think of the President's function under the constitutional doctrine of separation of powers as one of executing the laws that Congress has passed. This view, combined with a strong tradition of mistrust of executive power, engenders cries of "Encroachment!" during the administrations of activist Presidents. Some critics view the issuance of Executive orders independently of an explicit command of Congress as an example of the President overstepping the proper bounds of separation of powers. Such orders "look more like legislation to me than properly authorized regulations to carry out a clear and explicit command of Congress," observed Hugo L. Black, Associate Justice of the U.S. Supreme Court and former U.S. Senator. "And of course," he added, "the Constitution does not confer lawmaking power on the President." 1 Yet policies established by Executive order have the force of law, even if some scholars dispute their status as "law." They prescribe individual and institutional behavior. Their violation causes loss of government benefits, such as a contract, or brings about other sanctions, such as adverse publicity for failure to comply with an order. They can have nationwide effect. The Executive orders on civil rights, which were not issued under congressional authorization, had all these characteristics. What, then, was the President's authority for issuing them? CONSTITUTIONAL FRAMEWORK In the United States all public policy must ultimately be based upon authority derived from the Constitution. The framers of the Constitution believed that the division of power among three branches and the overlapping of functions through checks and balances were the surest ways to prevent tyranny. "No political truth is certainly of greater intrinsic value," James Madison contended, "than that... the accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny" (The Federalist, No. 47). *New York: St. Martin's Press, 1970. 1 Peters v. Hobby, 349 U.S. 331, 350 (1955). Traditionally, legislative power is the authority to make or repeal the laws, executive power is power to administer and enforce them, and judicial power is authority to interpret and apply them. The first three articles of the Constitution vest these powers in a Congress, a President, and courts. On the basis of explicit delegations of power, as well as implicit constitutional authority, Congress enacts laws that incorporate policies. These statutes are in turn the basis for further policy formulated as Presidential orders or as administrative rules and regulations. The Supreme Court, recognizing that the three articles of the Constitution which distribute power do not "divide fields of black and white" and that some legislative power must be delegated if government is to function, has upheld congressional delegations of discretionary power to the executive branch. Indeed, most authority that Presidents exercise to make policy in domestic matters is specifically delegated by Congress. Of the 1,769 Executive orders signed from 1945 through 1965, about 1,474, or 83 percent, were issued under specific statutory authority. Nevertheless, Presidents throughout the history of the country have also exercised power, legislative in nature, on the basis of the independent grants of authority in the Constitution. The courts have interpreted the President's authority to make policy in matters of foreign relations as being virtually exclusive and without limit. The limits to Presidential prerogative in domestic affairs, however, are not made so clear by court interpretations. NATURE OF THE EXECUTIVE ORDER No law, not even an Executive order, defines the term "Executive order." It is not mentioned in the Constitution. In many instances no material difference in style and form exists between Executive orders and other Presidential documents. Since 1945, Title 3 of the Code of Federal Regulations has included the following in the "Presidential documents" category: Executive orders, proclamations, reorganization plans, military orders, regulations, designations of officials (by letter, order, Presidential appointment), interpretations, trade agreement letters, reorganization plans and transfer plans, and administrative orders (including directives, memorandums, letters, notices, designations). But the President's two main formal instruments for promulgating domestic public policy have become, through repeated use, the Executive order and the Presidential proclamation. The courts have recognized no distinction between the two.2 Emancipation was a proclamation issued by President Lincoln. Since no proclamations have been used to enlarge civil rights in the twentieth century, they are not considered in this book. The Executive order has not always been recognized as a separate class of Presidential document. The earliest orders are not standardized in form or style. James D. Richardson, who was authorized by Congress to make a compilation of Presidential documents, did not discover Executive orders until after he had completed Volume I in 1895; he corrected this oversight by including them in Volume II, which was published in 1897. The inauguration of a numbering system around 1907 eliminated most of the confusion as to whether or not a document is an Executive order. All Executive orders on file at the time in the Department of State were arranged chronologically and given a number. Back orders, as they were added to this file, were assigned intermediate numbers.3 The Executive order officials designated "Number 1" was issued by President Lincoln on October 20, 1862, and concerned the establishment of military courts in Louisiana. An order dated March 10, 1862, ordering deserters from the armed forces to return to duty appears as No. 1 in the U.S. Statutes at Large, 1863, although it is not included in the official numbered series. Since 1929 Presidents have made an effort to coordinate Executive orders through interagency channels and to standardize their style. Nevertheless, there is no required form. And apparently to his surprise, Justice Black found President Truman's steel seizure order to be in a form like that of a statute. He observed that the preamble of the order, like those of many statutes, set out reasons why the President believed certain policies should be adopted. Next, he noted, the policies were proclaimed as rules of conduct to be followed, and again like a statute, the order authorized a government official to make additional rules necessary to carry those policies into execution.* The only statute that governs Executive orders is primarily a notice and publication statute. The Federal Register Act of 1935 requires that Executive orders "except such as have no general applicability and legal effect" be published in a serial publication, the Federal Register. Subsequently, Executive Order No. 10006, issued in 1948, required that all Executive orders be published in the Federal Register. In addition, Executive orders may be conveniently found in Title 3 of the Code of Federal Regulations. The Federal Register Act of 1935 also specifies that the contents of the Federal Register be judicially noticed. This reinforced an earlier Supreme Court ruling that Executive orders are "public acts of which all courts of the United States are bound to take notice, and to which all courts are bound to give effect." 5 6 The Supreme Court also has ruled that Executive orders have "the force of public law," and that the violation of provisions of an Executive order may be made a crime punishable by sanctions and penalties, if Congress so provides.' Even though the President may not define crimes, there are sanctions-such as the refusal of benefits and punitive publicity that may be imposed without court action. The constitutionality of particular Executive orders poses a more difficult problem than the judicial review of statutes. While a statute may be held unconstitutional only if it contravenes some provision of the Constitution, an Executive order is held invalid if it conflicts with 3 House Committee on Government Operations, Executive Orders and Proclamations: A Study of a Use of Presidential Power (Committee Print), 85th Cong., 1st Sess., 1957, p. 37. 4 Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 588 (1952). 5 Armstrong v. United States, 13 Wall. 154, 156 (1871). Jenkins v. Collard, 145 U.S. 546, 560-561 (1891). Also consult Glendon A. Schubert, Jr., The Presidency in the Courts (Minneapolis: University of Minnesota Press, 1957), p. 314, n. 38, for a "partial list" of twenty cases that uphold Presidential orders as a source of law binding on both citizens and courts. "United States v. Eaton, 144 U.S. 677, 688 (1892). provisions either of the Constitution or of a statute, or even with the implied intent of Congress. The invalidation of an order found to conflict with a statute has occurred even in an area where the President has a special constitutional status, such as Commander in Chief.10 On the other hand, Congress may "ratify" by statute a prior Executive order either by making direct reference to it 11 or by implication. For example, when Congress appropriates funds to support the activity authorized by an Executive order, that action "stands as confirmation and ratification of the action of the Chief Executive." 12 Furthermore, when an Executive practice has been pursued for a long period of time and Congress has known about it and has not objected, the Court accepts Congress's inaction as implicit ratification.13 The courts have exercised restraint in ruling on questions of the constitutionality of Presidential actions, and they have generally exempted themselves from jurisdiction over such questions on the grounds that the challenged action is a "political question." Nor does the Supreme Court claim any authority to direct Presidential acts.14 In cases where the enforcement of an Executive order infringes upon private rights, the limited value of judicial review is also apparent. As with many other matters that are taken to court, it is extremely difficult for the citizen to obtain a judicial ruling quickly enough to remedy a particular injustice arising from an Executive order. PRESIDENTIAL POWERS Since an Executive order is an exercise of Presidential authority under either the Constitution or a statute, the nature and limitations of Executive power under Article II of the Constitution are a fundamental point at issue. Because Article II is a mere outline of Presidential authority, what powers it vests in the President, to be exercised by him on his own initiative, are more difficult to define than those powers entrusted to him by statute. Presidential and judicial interpretations of Article II have favored a "broad" construction of the Constitution and have added to the reservoir of constitutional powers which the President can exercise. These powers at times have been called "inherent," "implied," "aggregate," "incidental," "war," and "emergency" powers. The provisions of Article II that have supported claims of broad Presidential authority include the clauses that the "executive Power shall be vested in a President of the United States of America," that the "President shall be Commander in Chief of the Army and Navy of the United States," and that "he shall take Care that the Laws be faithfully executed." One view of the "executive power" clause is that it adds nothing to Presidential authority but rather is a summary of the powers which Article II proceeds to specify. The other view. however, is that the clause is a grant of general executive power. The "power" theory has been predominant in the views and practices of recent Presidents. 8 Cole v. Young, 351 U.S. 536 (1956). 9 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 534 (1952). 10 Little v. Barreme, 2 Cr. 170 (1804). 11 Hirabayashi v. United States, 320 U.S. 81, 87, 88, 91 (1943). 12 Fleming v. Mohawk Wrecking & Co., 331 U.S. 111, 116 (1947). 13 United States v. Midwest Oil Co., 236 U.S. 459 (1915). 14 Mississippi v. Johnson, 4 Wall. 475 (1867). |