The President's power as Commander in Chief has been transformed from a simple power of military command to one of indeterminable powers in time of emergency. Hamilton believed that this power "would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy" (Federalist, No. 69). The full import of the Commander in Chief clause was not realized until President Lincoln used both it and the "take care” clause to derive what he termed the "war power." On this basis in a message to Congress he justified the series of measures that he took in the interval between the fall of Fort Sumter, April 14, 1861, and the convening of Congress in a special session on July 4, 1861. The Supreme Court sustained his interpretation of Presidential power in 1863 in the Prize Cases. Subsequently, especially while the war was still in progress, the Court continued to be reluctant to decide against Lincoln in cases involving his "war powers.' With "total war" came Presidential claims of "emergency powers" to justify the use of unusual measures to meet crises. The term "emergency" is not mentioned in the Constitution, but Presidential actions based upon a broad interpretation of constitutional provisions, and the Supreme Court's typical restraint where the Presidency is involved, have permitted a considerable expansion of governmental activity during the past 30 years.

From the clause "he shall take Care that the Laws be faithfully executed," the President derives his role as Chief Administrator. This provision has also been argued along two different lines through the years. One view is that the clause requires the President to carry out the laws of Congress; the other is that the clause is an independent grant of authority. In the Court opinion in the Steel Seizure Case, Justice Black expressed the restrictive view, saying, "The President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." Black argued that "the Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad."

On the other hand, a Supreme Court decision in 1899 interpreted this clause as a grant of authority to make policy. Justice Miller, writing for the Court, said that the President's constitutional duty to "take care that the laws be faithfully executed" is not "limited to the enforcement of acts of Congress or of treaties according to their express terms," but includes "the rights, duties, and obligations growing out of the Constitution itself. .. and all the protection implied by the nature of the government under the Constitution." 15 Presidents have claimed broad powers under this clause on many occasions.

Under the view that the "executive power" and "take care" clauses grant power, Presidents Roosevelt, Truman, Eisenhower, Kennedy, and Johnson issued Executive orders prohibiting discrimination in government employment, in private enterprise under government contract, and in federally assisted housing. The Commander in Chief clause provided the basis for the Presidential ban on segregation in the Armed Forces.

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CHAPTER V

TOOL FOR POLICY-MAKING

From the montage of policy-making in the American political system, this book has attempted to isolate one part-policy-making by Presidential Executive order and to determine the factors that prompt the use of that instrument for the "authoritative allocation of values" in our society. No effort was made to develop a checklist of all the variables that affect Presidential decision-making. In fact, all the influences on any one significant decision are probably indeterminable. Rather, the purpose in studying several decisions made by five Presidents was to examine the recurring ingredients that, when intermixed, prompt Presidents to make policy by Executive order.

DETERMINING FACTORS

Preliminary to or at least, coincident with a choice between alternative means for securing a policy objective is the decision to act at all. The factors or forces that converge to influence a President in making this choice include his own values, his awareness of a specific problem and a demand for its solution, his perception of the political ramifications of action, and the ability or willingness of other policymaking institutions to act on their own initiative.

The President's personal values, and the ways in which he perceives the national interest and his constitutional responsibilities, form the underpinning for Presidential decision-making. Presidents Roosevelt, Truman, Eisenhower, Kennedy, and Johnson each were committed to the general value of equality of treatment and opportunity for all. Consequently, they were more receptive to specific policy proposals than they would have been had they opposed efforts to further the cause of civil rights.

However, they differed in their views of the Presidential role. Eisenhower was the only one of the five to approach the Presidency in the tradition of Executive restraint. Claiming no constitutional prerogatives for the executive branch, he was concerned about restoring confidence between the President and Congress. This no doubt made him less responsive to proposals for exercising independent constitutional authority for making policy. As we have noted, his two civil rights Executive orders were to some extent forced by the commitments of a preceding administration. Of the other four Presidents, who all belonged to the tradition of Executive activism, only Roosevelt did not seek active participation by the federal government in the field of civil rights.

1 The familiar definition of politics is David Easton's. See his book The Political System (New York: Alfred A. Knopf, 1953), pp. 129-134.

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Another factor which may influence a President to act is his awareness of a specific problem that requires national governmental action for its solution. In the day-to-day press of events, if the President is to take action, a general value (such as civil rights) must be converted into a more specific objective (such as military desegregation). This conversion may be performed by special-interest groups or various advisory bodies. For example, some interested groups (such as the Commission on Race and Housing), as well as a number of government committees (such as the President's Committee on Civil Rights), made special studies of one or more of the three issues of military desegregation, fair employment practices, and open housing. They included specific recommendations for Executive action in their reports to the President. Likewise, the importance of the President's staff in recommending specific opportunities for action should not be overlooked. However, a Presidential decision is not invoked simply by bringing a particular problem to his attention; demand for a national governmental solution to that problem is another necessary force. For years special-interest groups, such as the National Council for a Permanent FEPC and the National Committee Against Discrimination in Housing, exerted pressure on the President and Congress for national bans on discrimination. In addition, both major political parties responded to civil rights interests by pledging to support various objectives— for example, fair employment practices legislation. And members of both parties introduced in Congress a continuous stream of bills on all three issues discussed here.

In weighing these demands, the President is intensely conscious of his sources of support. If he goes too far in suggesting policy goals, he becomes separated from some of his supporters. Yet if he stands still, he will surely alienate certain interests that could provide assistance. President Truman, for example, was aware that the Negro vote might be significant in the pivotal States in the 1948 election. Therefore, political party advantage was a controlling factor in his decision to desegregate the military and ban discrimination in Government employment. President Kennedy was cognizant of his political debt to the Negro in the election of 1960 and of his promises in that campaign to ban discrimination in housing. These were important factors in his decision to issue the fair housing order.

In addition to a consideration of political ramifications, the inaction of other policymakers frequently forces an issue to the President's desk. The reluctance of others to act may be at the administrative level: a program's executives may be unwilling or unable to put a policy into effect. This was true with regard to housing, for the few antidiscrimination rules and regulations adopted by the housing agencies had little effect. Furthermore, without a Presidential or congressional directive, some administrators showed a reluctance to interfere with the local control of occupancy patterns. In the case of the armed services, the Selective Service Act of 1940 stipulated nondiscrimination in the selection and training of men. Yet this was not interpreted as forbidding segregated units, but rather as requiring that Negroes be inducted in a proportion equal to their distribution in the general population. Therefore, further governmental action was needed to desegregate the military in the 1940's, especially since the "separate-butequal" doctrine was not overturned by the Supreme Court until 1954.

On the other hand, it may be congressional failure to enact legislation that prompts Presidential decision. This can be noted in the history of fair employment practices. For a period of more than two decades Congress refused to legislate on employment practices, even though members of both political parties introduced a steady flow of bills in both Houses.

These, then, are some of the major forces that impinge upon the President. All these factors, however, must pass through the filter of Presidential perspective. If he does decide to seek an authoritative policy, his two major alternatives are the formal Executive order and the recommendation of legislation to Congress. The choice between these hinges on (1) the relative importance of his various goals, (2) the degree to which his program can be implemented administratively, (3) the chances for enactment of legislation, and (4) the effect that Presidential pressure or action will have on other executive programs being considered by Congress. For example, legislation was not necessary in order to establish a nondiscrimination policy in federally aided housing. Consequently, none of the Presidents risked endangering housing legislation (which was also a matter of high priority) by pushing for statutory nondiscrimination provisions. Furthermore, a pessimistic view regarding the chances for any civil rights legislation, and concern over possible congressional reprisal on other executive programs, prompted President Kennedy, despite his campaign promises, to drop civil rights recommendations from his legislative program for two and one-half years after his inauguration.

Weighing the considerations listed above, the President may select the Executive order as the instrument for action in four types of situations. First, he may issue an order when Executive, rather than legislative, action is being demanded. This was the case with Roosevelt's FEPC orders. Second, he may select the Executive order when he can carry out the policy administratively and wants to avoid involving it in congressional controversy. Truman did this with regard to military desegregation. Third, if a politically important segment of the American public is demanding legislation, and if the President considers the risk of congressional defeat or reprisal to be too great, he may issue an Executive order rather than use his leadership to secure congressional action. President Kennedy's order to establish the Committee on Equal Employment Opportunity illustrates this point. Finally, the President may request legislation and then issue an Executive order if Congress does not respond with a law. President Truman's Executive orders on fair employment practices are an example of this situation.

A President will not attempt to publicize an Executive order if he wishes to avoid controversy that might create public resistance or might cause congressional reprisal against other programs. This was clearly the case when President Kennedy issued the fair housing order. On the other hand, if political party advantage is an important factor in issuing the order, then the President will announce it at a time and in a manner to attract attention. President Truman followed this course with the military desegregation and Government fair employment practices orders.

EFFECTIVENESS

Another question examined in this study was the effectiveness of the Executive order as an instrument for policy-making. In relation to other types of officially binding decisions, the Executive order is subordinate to statutory law and the decisional law of the Supreme Court. This, again, will be a factor that the President must weigh in considering whether to push Congress for legislation or to act on his own authority. The Executive order is subordinate, however, only if the other official policy-makers subsequently act. The President by Executive order can provide significant law in the void created by inaction.

In another sense, "effectiveness" means the degree to which the policies established by Executive orders accomplish their purpose. Armed services desegregation was indeed achieved. The goals of fair employment practices and open housing were not fully accomplished during the span of this study. Nevertheless, Executive orders in these areas did lay the groundwork for subsequent legislation. It is true that fair employment practices and fair housing statutes were a consequence of historical and political factors and did not arise from the necessity of regularizing the Executive orders by other types of action. But they indicated that the policies established by Executive order were successful to the extent that both political parties endorsed them and desired to increase their coverage. The Civil Rights Act of 1964 prohibited employment discrimination in the greater part of the nation's work force, and the Civil Rights Act of 1968 covered most of the nation's housing with an open occupancy provision. Furthermore, the Equal Employment Opportunity Commission, created by the Civil Rights Act of 1964, benefited from the many studies conducted by Presidential committees and from the pool of Government employees experienced in coping with the problems of minority employment. These Executive orders studied were also effective to the extent that the special-interest groups directly concerned were at least partially satisfied by the Presidential efforts. No organized opposition to any of the programs developed. On the contrary, the protest over Armed Forces segregation ceased. The interest groups concerned with fair employment practices and with open occupancy in housing expressed, if not complete satisfaction, at least qualified approval of the orders and the programs established to implement them.

It is sometimes said that Executive orders are ineffective in reaching the individual citizen. Certainly it is true that an Executive order does not direct a private citizen to cease a certain practice under penalty of fine or imprisonment. Executive orders are the President's directions to his subordinates. Nevertheless, if the President orders an agency to withhold contracts from private companies engaged in discriminatory employment practices, this has a direct effect upon the private citizen which is no different from a statutory prohibition of employment discrimination. Or if an individual purchases a home in a neighborhood of FHA housing, it makes little difference in its effect on him whether open occupancy was instituted by an Executive order or by a statute.