CONSTITUTIONALITY Since the President can make significant and effective policy by Executive order, the question of the propriety of this exercise of Presidential power is raised. None of the Executive orders studied in the preceding chapters has been overruled by the Supreme Court. Their constitutionality may thus be temporarily assumed, but it can nonetheless be questioned. The authority of the President, as Chief Executive and as Commander in Chief, to issue the orders banning discriminatory practices in government employment and in the Armed Forces is constitutionally incontestable. However, the President's authority to prohibit discriminatory practices in private enterprise operating under government contract and in federally aided housing is less clear. In these instances the President, under his interpretation of his responsibility to "take care that the laws be faithfully executed," established nondiscrimination requirements for receiving funds that had been appropriated by Congress. The fact that Congress had refused to pass legislation on these two subjects raises the question of whether or not it was proper for the President, under his implied constitutional authority, to have adopted such policies. In the Steel Seizure Case, in which a Presidential action by Executive order was declared unconstitutional, the Supreme Court relied heavily on congressional intent. However, in that instance Congress had provided alternate means for dealing with the type of emergency which the President met by issuing his order. This was not the case with regard to employment and housing discrimination. Congress had rejected legislation; but rejection is not necessarily equivalent to enactment of legislation of a different nature. Although it may be objected that policy-making by Executive order is a dangerous usurpation of legislative power in the American governmental system, this does not seem to be the case. Unless "law" is defined as all enactments of Congress, then the other branches of government also make law. If one defines according to function rather than structure, then whoever makes policy is legislating-Congress through statutory law, the Supreme Court through decisional law, the President through executive law, and the departments and agencies through administrative law. The framers of the Constitution used the principle of separation of powers and the intricately contrived system of checks and balances to prevent the concentration of power in any one place. The overlapping of function that permits each branch to check and balance the tyrannical tendencies of the other is not endangered by the Presidential use of the Executive order. Rather, the use of the Executive order is confined to an area bounded by the judgment of the President and the support of the American public. Furthermore, an Executive order may be invalidated by Congress or overruled by the Supreme Court. Another important consideration is the concept of representative government that is so fundamental to a democracy. Legislating is preeminently a representative function. The President, as well as Ĉongress, represents the nation. Each is popularly elected and must return periodically to the voters for a performance review. Each has its own constituency-the President a national one and Congress a state and local one. Each affords interest access to the policy-making process, and frequently groups that have no access to one process will enjoy privileged access to the other. Furthermore, there is evidence that a conscious effort was made to see that the Presidential committees charged with implementing the civil rights policies were themselves representative. For example, the Government Contract Committee was established as a 14-member group with 8 public members, so that "this will give us a chance to make Negro, Jewish, industry, and labor appointments." 2 Similarly, a balance of interests was maintained for the Committee on Government employment.3 FUTURE OF THE EXECUTIVE ORDER The future of the Presidential Executive order as an instrument for policy-making lies in its use as a tool for solving complex policy problems. The Executive order provides a more flexible, adaptive framework than the relatively permanent molds of statutory law. This is evident from the successive Executive orders that broadened and strengthened the national government's program for enforcing fair employment practices. The difficult issues that rend the fabric of our society require a variety of approaches. Obviously we have not found the answers to the civil rights dilemma. As various federal legislative programs are studied, they are found to be inadequate responses. Policies established by Executive order, however, can provide a good test, since a new policy may or may not have the desired effect. For example, it was uncertain if the ban on discrimination in federally aided housing would achieve its objectives. Many critics said that it would cause a shifting of financing to other sources or would have an adverse economic effect by holding back new building. These predictions proved unfounded, and Congress eventually covered by law the housing initially considered, but finally excluded, from the Executive order. A traditional claim has been made that state and local governments provide "laboratories for experiment." Whether or not this is the case, a need also exists for experimental programs at the national level, programs without the full-scale commitment to a particular course that frequently comes with congressional enactments. As noted in the preceding pages, much of the success of the Presidential programs stemmed from the resourcefulness of the committees in the absence of specific appropriations and stronger enforcement powers. For example, one of the arguments for continuing the work of the Committee on Government Contract Compliance was that it was an inexpensive operation and meant "getting a great deal for very little." * A more questionable practice is the use of the Executive order to control congressionally appropriated funds in such a way that con * Memorandum, Maxwell M. Rabb to Governor Adams, July 8, 1953, OF 102-I-2, Eisenhower Papers, Dwight D. Eisenhower Library. 3 Memorandum, Max Rabb to Mr. Willis, September 17, 1954, OF 103-U, Eisenhower Papers, Dwight D. Eisenhower Library. * Memorandum, Sherman Adams to Attorney General, April 14, 1953, OF 102-I-1, Eisenhower Papers, Dwight D. Eisenhower Library. gressional intent may be modified. The decision to use the government's economic power to enforce nondiscrimination practices in private employment through government contracts and in federally aided housing was an important new policy. The three Kennedy civil rights Executive orders were the first ones out of more than sixteen hundred orders issued since World War II to include a list of sanctions. Although the enforcement tools of canceling contracts and withholding funds were clearly backstops for previous Executive orders, these economic sanctions became an important part of the new policy, and were stated in the three orders themselves. The use of the economic power of the national government to enforce nondiscrimination practices was not adopted by Congress until the Civil Rights Law of 1964. Title VI of that law stipulates that no person in the United States shall be subjected to discrimination under any program or activity receiving federal financial assistance. This is a precedent that could have considerable future impact. Since some of the funds appropriated by Congress may be distributed to state and local governments under conditions partly determined directly by a President's prerogative power, such use of the Executive order may provide an additional avenue for executive control of state and local administrative policy. These conclusions regarding its future functions do not necessarily mean that the Executive order will be used with ever-increasing frequency. Presidents will continue to balance a multiplicity of considerations before issuing one. The same interacting influences of the President, Congress, the courts, special-interest groups, and voters will channel the use of the Executive order. Nevertheless, the President will doubtless continue to rely on the Executive order when he needs to move in advance of Congress in responding to wants acutely felt by interest groups and at least some congressmen, but insufficiently supported to overcome congressional inertia or opposition. This will be the case as long as congressional practices enable the thwarting of certain interests. For example, we have noted that no vote was ever taken on a fair employment practices bill in the Senate because of filibusters and the failure of cloture attempts. Similarly, in the House the Rules Committee never approved a fair employment practices bill for floor debate. Similar situations will undoubtedly arise in the future. As lawmakers, Congress and the President are not passive vehicles equally accessible to all citizens. If a strong want or need gets clogged in the congressional machinery, a safety valve is a necessity in a viable political system. In ours, this function is sometimes performed by the courts and sometimes by the President. What is clear is that when a policy void exists because of congressional inaction, the system can provide law for the nation if the President does not hesitate to move in advance of Congress and if he has sufficient national support. The President, therefore, not only plays an important role in transforming interests and demands into laws, but on occasion also makes those laws. EXECUTIVE ORDERS ON CIVIL RIGHTS The most important of the Presidential orders examined in this book are the following: E.O. 8802 (June 25, 1941)-Stated the policy of elimination of discrimination in the employment of workers and established a Committee on Fair Employment Practice (FEPC) to carry out the nondiscrimination policy on all defense contracts. E.O. 9346 (May 27, 1943)-Reconstituted the FEPC, charged it with preventing discrimination in the employment of persons in war industries and in government, and provided that contracting agencies of the federal government should include a nondiscrimination clause in all contracts. E.O. 9664 (December 18, 1945)-Extended the authority of the Committee to study and make recommendations on employment discrimination in reconverted industries. E.O. 9980 (July 26, 1948)-Declared a policy of nondiscrimination in government employment and established in the Civil Service Commission a Fair Employment Board with coordinating and advisory responsibilities. E.O. 9981 (July 26, 1948)-Declared a policy of equality of treatment and opportunity for all persons in the armed forces and created the President's Committee on Equality of Treatment and Opportunity in the Armed Services. E.O. 10308 (December 3, 1951)-Established the President's Committee on Government Contract Compliance to help make effective the nondiscrimination clause in government contracts since the FEPC had been killed by Congress. This is the only order listed that was established under statutory authority. E.O. 10479 (August 13, 1953)-Revoked E.O. 10308 and established the Government Contract Committee to ensure that contractors or subcontractors complied with the nondiscrimination provisions required in government contracts. E.O. 10557 (September 3, 1954)-Revised and strengthened the nondiscrimination clause mandatory in government contracts. E.O. 10590 (January 18, 1955)-Replaced the Fair Employment Board with the President's Committee on Government Employment Policy, and charged it to strengthen the program to ensure nondiscrimination in government employment. E.O. 10925 (March 6, 1961)-Replaced the Committee on Government Employment Policy and the Government Contract Committee with the President's Committee on Equal Employment Opportunity, whose purpose was to implement the nondiscrimination policies in both government employment and private employment under government contract. E.O. 11063 (November 20, 1962)-Declared an official national public policy of nondiscrimination in federally assisted housing, to be coordinated by a President's Committee on Equal Opportunity in Housing. E.O. 11114 (June 22, 1963)-Extended the authority of the President's Committee on Equal Employment Opportunity to include contracts for construction undertaken wholly or in part as a result of grant-in-aid programs. E.O. 11197 (February 5, 1965)-Established the President's Council on Equal Opportunity to review and assist in coordinating the activities of all departments and agencies of the government that are directed toward the elimination of discrimination. E.O. 11246 (September 24, 1965)-Abolished the President's Committee on Equal Employment Opportunity and transferred its functions to the Civil Service Commission and the Department of Labor |