PRESIDENT AND CONGRESS*

Power and Policy

BY LOUIS FISHER

LEGISLATIVE POWERS

EXECUTIVE ORDERS

Still another instrument for the exercise of legislative power is the issuance of Executive Orders. In June 1941, President Roosevelt seized North American Aviation's plant in Inglewood, California, basing his action not on specific statutory authority but rather on the general powers vested in him "by the Constitution and laws of the United States, as President of the United States of America and Commander in Chief of the Army and Navy of the United States.. The same general powers were cited again when he seized a shipbuilding company and an aircraft plant in 1941, a cable company and a shell plant in 1942, and almost 4,000 soft and hard coal companies in 1943. The War Labor Disputes Act of June 25, 1943, finally provided statutory authority for seizing plants, mines, and other facilities.

On the basis of other Executive Orders, the Federal Government has threatened to withhold contracts from employers who fail to meet equal employment provisions in Federal contracts. This policy dates back to 1941, when President Roosevelt declared in an Executive Order that "there shall be no discrimination in the employment of workers in defense industries or government because of race, creed, color, or national origin. . . ." His policy was reaffirmed by Presidents Truman and Eisenhower. President Kennedy added the threat of contract cancellation to force compliance with Federal equal employment standards. Shortly after Kennedy issued his Executive Order, a decision by the Comptroller General stated that "So far as we are aware the propriety of [nondiscrimination] clauses. . . has never been seriously questioned by any responsible administrative or judicial tribunal; nor has the Congress seen fit to proscribe the use of such clauses by appropriate legislation." In still another Executive Order, issued by President Johnson, the administrative structure for executing the nondiscrimination clause was established.

Under President Nixon, Federal nondiscrimination policies evolved into what was called the "Philadelphia Plan." In order to work on Federally assisted projects, contractors had to set specific goals for hiring members of minority groups. On August 5, 1969, the Comptroller General issued a decision in which he held that the Plan conflicted

*Copyright © 1972 by The Free Press, A Division of The Macmillan Company, 866 Third Avenue, New York, N.Y. 10022.

with the 1964 Civil Rights Act, which prohibited the setting up of any kind of preferential treatment on the basis of race, color, or national origin. The Comptroller General said it did not matter whether one designated the hiring commitment as a "goal" or a "quota."

The Secretary of Labor promptly announced that the Administration would continue to press ahead with the Philadelphia Plan. He said that interpretation of the Civil Rights Act had been vested by Congress in the Department of Justice, and that the Department had approved the Plan as consistent with the Act. Moreover, the Secretary of Labor said that the Comptroller General had ignored the Executive Order "as an independent source of law."

A Senate subcommittee report charged in April 1971 that the Philadelphia Plan was a "blatant case of usurpation of the legislative function by the executive branch. . . ." However, the U.S. Court of Appeals for the Third Circuit upheld the legality of the Philadelphia Plan as well as the Executive Order under which the Plan was promulgated. The court justified this use of Presidential power partly on the Chief Executive's implied power-as it relates to economical procurement policy-to assure that "the largest possible pool of qualified manpower be available for the accomplishment" of Federal projects. It should be added that Executive Orders are a source of law only when founded upon the constitutional powers given to the President or upon statutory authority. In such cases the courts have held that Executive Orders have the same effect as if they had been incorporated in an act of Congress. On the other hand, there are cases where Executive Orders have exceeded the bounds of Presidential authority. On a number of occasions the Supreme Court has struck down this type of Order, the most prominent example being the Steel Seizure Case of 1952.

Executive Orders were not numbered in the early years. Beginning in 1907, the Orders on file in the State Department were arranged chronologically and given a number. As of August 15, 1971, the numbered series had reached 11,615. Estimates of the unnumbered Executive Orders range from 15,000 to as high as 50,000.

REFERENCES TO EXECUTIVE ORDERS

For general studies on Executive Orders, as well as on other forms of administrative legislation, see Robert B. Cash, "Presidential Power: Use and Enforcement of Executive Orders," 39 Notre Dame Lawyer 44 (Dec. 1963), and William D. Neighbors, "Presidential Legislation by Executive Order," 37 U. Colo. L. Rev. 105 (Fall 1964). Roosevelt's actions from 1941 to 1943 are cited as follows: Executive Order [hereafter E.O.] 8773, 6 Fed. Reg. 2777 (June 9, 1941); E.O. 8868, 6 Fed. Reg. 4349 (Aug. 23, 1941); E.O. 8928, 6 Fed. Reg. 5559 (Oct. 30, 1941); E.O. 9220, 7 Fed. Reg. 6413 (Aug. 13, 1942); E.O. 9225, 7 Fed. Reg. 6627 (Aug. 19, 1942); E.O. 9340, 8 Fed. Reg. 5695 (May 1, 1943); see also John L. Blackman, Jr., Presidential Seizure in Labor Disputes (Cambridge: Harvard University Press, 1967).

Equal employment policy, contained in Executive Orders from 1941 to 1965: E.O. 8802, 6 Fed. Reg. 3109 (June 25, 1941); E.O. 10308, 16 Fed. Reg. 12303 (Dec. 3, 1951); E.O. 10479, 18 Fed. Reg. 4899 (Aug. 13, 1953); E.O. 10925, 26 Fed. Reg. 1977 (March 6, 1961); E.O. 11246, 30 Fed. Reg. 12319 (Sept. 24, 1965). The Comptroller General decision issued after Kennedy's Executive Order is at 40 Comp. Gen. 593, Dec. B-145475 (April 21, 1961). See also James E. Remmert, "Executive Order 11,246; Executive Encroachment," 55 Am. Bar Asso. J. 1037 (Nov. 1969), and Ruth H. Morgan, The President and Civil Rights: Policy-Making by Executive Order (New York: St. Martin's Press, 1970).

190.

The Comptroller General decision issued during the Nixon Administration is 49 Comp. Gen. 59, Dec. B-163026 (Aug. 5, 1969), reprinted at 115 Cong. Rec. S9176-9179 (daily ed., Aug. 5, 1969). Announcement by Secretary of Labor is at 115 Cong. Rec. S9954 (daily ed., Aug. 13, 1969). Attorney General's opinion: 42 Op. A.G., No. 37 (Sept. 22, 1969), reprinted at 115 Cong. Rec. S11318 (daily ed., Sept. 25, 1969). The Senate subcommittee report in April 1971 is Congressional Oversight of Administrative Agencies: The Philadelphia Plan, Report of the Senate Judiciary Committee made by its Subcommittee on Separation of Powers, Senate Committee Print. 92d Cong., 1st Sess., p. 13 (1971). The Court of Appeals decision is reprinted at 117 Cong. Rec. S5998 (daily ed., April 30, 1971). On October 12, 1971, in Contractors Association of Eastern Pennsylvania v. Hodgson, the Supreme Court let stand the Court of Appeals ruling that had upheld the constitutionality of the Philadelphia Plan.

For an example where a court upholds the legality of an Executive Order, see State ex rel. Kaser v. Leonard, 102 P.2d 197, 129 A.L.R. 1125, 1136 (1949). Executive Orders struck down: Little v. Barreme, 2 Cr. 170 (1804); United States v. Symonds, 120 U.S. 46 (1887); Panama Refining Co. v. Ryan, 293 U.S. 388, 433 (1935); and Youngstown Co. v. Sawyer, 343 U.S. 579 (1952). On numbering of Executive Orders, see Presidential Executive Orders, comp. by W.P.A. Historical Records Survey (2 vols., New York: Hastings House, 1944), p. viii. Estimates of unnumbered Orders: Executive Orders and Proclamations: A Study of a Use of Presidential Powers, printed for the use of the House Committee on Government Operations, 85th Cong., 1st Sess., p. 37 (Dec. 1957); for a partial list of unnumbered Orders, see List and Index of Presidential Executive Orders (Unnumbered Series). 1789–1941. The New Jersey Historical Records Survey, Work Projects Administration (Newark, N.J., 1943).

Another controversial Executive Order, challenged by Members of Congress as a usurpation of legislative authority, is Executive Order 11605, issued by President Nixon on July 2, 1971. The Order expands the power of the Subversive Activities Control Board, which was established by statute in 1950. A resolution submitted by Senator Ervin declared that the President had no power "to alter by executive order the content or effect of legislation enacted by Congress." 117 Cong. Rec. $13511 (daily ed., Aug. 6, 1971). Executive Order 11605 is printed in Wkly Comp. Pres. Doc., Vol. 7, No. 28, p. 1026 (July 12, 1971). See also 117 Cong. Rec. S12211 (daily ed., July 27, 1971) and 117 Cong. Rec. H7178-7185 (daily ed., July 27, 1971). О