and neutralizing the Financial 'Elite' who pull the strings, the 'Day of the Wizard' will end.

"Ref: 'Proclamation 4074,' and 'Executive Order 1615,' the Federal Register, Vol. 36, No. 159, Tuesday, August 17, 1971, pp. 15724–29."

NEW VENOM FOR AN OLD BOARD

(By Vern Countryman, professor of law, Harvard University, vice chairman, New England Region, National Committee Against Repressive Legislation)

(An Analysis of President Nixon's Executive Order 11605 regarding the SACB, signed July 2, 1971. NOTE: In a constitutional challenge of what the majority deemed the President's violation of Congressional prerogative, the U.S. Senate voted 51 to 37 on July 19th to deny the use of SACB funds to implement the Executive Order.)

By Executive Order 11605 President Nixon seeks to serve two objectives dear to his heart: (1) To provide employment for the Subversive Activities Control Board, which has been inactive for years because virtually all of the operative provisions of its charter-the Internal Security Act of 1950, as amended by a 1968 Act of the same name-are unconstitutional. (2) To expand the already vague and sweeping standards of the federal loyalty-security program for federal employees initiated by President Truman in 1947 with Executive Order 9835 and continued by President Eisenhower in 1953 with Executive Order 10450. The key provision of the loyalty-security program-which strikes directly at First Amendment freedoms of speech, belief and association-has always been what is now Section 8(a) (5) of Eisenhower's Order 10450, borrowed without significant change from Truman's Order 9835. Under that provision a federal employee could be, and many have been, dismissed for "membership in, or affiliation or sympathetic association with" organizations characterized as "totalitarian, fascist, communist, subversive or as advocating the use of force to deny others their rights under the federal Constitution, or as seeking to alter the form of government of the United States by unconstitutional means. Nixon's Order 11605 will expand those categories to include organizations characterized as advocating the use of force to deny others their rights under federal or state laws or as seeking to overthrow any government-federal, state or local-by any unlawful means.

These standards are hopelessly vague, but the accused employee would not be notably benefited by more precise standards. Under the loyalty-security program he gets no opportunity to challenge the characterization of any organization. Under the Truman and Eisenhower Orders the classification of organizations was done by the Attorney General without any opportunity for the employee to contest his determination. Indeed, until the Supreme Court held otherwise in 1951, the organization itself had no opportunity to contest the determination. And even thereafter, few found the resources to do so. As a consequence, employees embroiled in the loyalty-security program are bound by what has come to be known as the "Attorney General's list" and are confined to attempting to prove that they did not belong to, or affiliate or sympathetically associate with a listed organization.

Nixon's Order will preserve the Attorney General's list but will turn the business of future listing-under an even more ambiguous mandate to the SACB. And, lest the Board prove too unimaginative in its new task, each of the vague classifications of revised Section 8(a) (5) is further defined to intensify its ambiquity:

(1) An organization advocates force to deny rights of others, or (apparently, interchangeably) seeks to overthrow some federal, state or local government by unlawful means if it "engages in, unlawfully advocates, or has among its purposes or objectives, or adopts as a means of obtaining any of its purposes or objectives," among other things:

(a) The commission of unlawful acts to deny others rights or benefits guaranteed by federal, state or local law. This could include any union of governmental employees which engages in a strike forbidden by law.

(b) The unlawful damage or destructon of property; or injury to persons. This could include any group that engages in an altercation with the police, although the total damage is one broken nightstick.

(c) The commission of acts which "violate laws pertaining to" insurrec tion, riots or civil disorders, obstructing recruitment or enlistment, impeding federal officers, "or related crimes or offenses." Even without the "related crimes or offenses," this could include any group whose conduct in any instance, or whose planned conduct in any instance, was found to constitute a breach of the peace.

(2) An organization is “totalitarian” if it seeks by unlawful means to establish a system of government (apparently anywhere) in the United States which is "autocratic" and in which control is centered in a single political party. This could be a new manifestation of the "Southern strategy" designed to further the fortunes of the Republican Party in the South.

(3) An organization is "fascist" if it seeks the establishment of a system of government (apparently anywhere) in the United States characterized by (a) rigid one-party dictatorship, (b) forcible suppression of the opposition, (c) ownership of the means of production under centralized control and (d) which fosters racism." There are those presumably none now serving on the SACB— who feel that the Nixon Administration already qualifies on (b) and (d), is seeking (a), and will therefore be in trouble if it has to nationalize the railroads. (4) An organization which fails to qualify as "fascist" because it does not foster racism may qualify as "communist" if its particular route to the other objectives is "based upon the revolutionary principles of Marxism-Leninism" as those principles are neatly capsulated in the Nixon Order.

(5) Finally, an organization is "subversive" if it seeks the abolition or destruction of any government-federal, state or local-by any means found to be unlawful. Storming of the local welfare office will fit this description if the SACB is persuaded that the proscribed objective exists.

Under these amorphous standards, the Board will prepare its list to supplement the Attorney General's list. And the impact of the new list, like the old, will not be confined to federal employees. The official label will also seriously damage the organizations listed.

Not surprisingly, the Nixon Administration finds the old loyalty-security program unduly restrictive. In the first two decades of its operation, the bugaboo was communism and it was enough to operate under a variety of formulae most of which were intended as alternative descriptions of association with or sympathy for communism. Today the government is confronted with hordes of native dissidents whose beliefs and grievances cannot remotely be related to communism. Hence it is necessary to formulate additional descriptions broad enough to reach anyone who challenges the existing order. The Nixon objective is, in the language of this new Nixon Order, "suppression of the opposition." But the Nixon objective is also, in the language of the First Amendment, a forbidden law "abridging" freedom of speech, belief and association.

STATEMENT OF MELVIN L. WULF, LEGAL DIRECTOR, AMERICAN CIVIL LIBERTIES UNION, ON EXECUTIVE ORDER 11605

On Friday, July 2nd, [1971] the President of the United States signed Executive Order No. 11605 empowering the Subversive Activities Control Board to sit in judgment upon the political beliefs and affiliations of American citizens. The scheme of political thought-control contained in the new Executive Order is one of the most dangerous manifestations of the new McCarthyism to be generated by the Nixon administration.

The Executive Order empowers the Subversive Activities Control Board to blacklist political organizations almost at whim, to officially condemn membership in such organizations, to forbid any branch of the federal government from hiring members of those organizations, and to require federal agencies to fire any employee who joins those organizations.

These new powers threaten the traditional liberties and freedoms of American citizens and display callous indifference to the First Amendment.

The Subversive Activities Control Board was established by the infamous Internal Security Act of 1950. That statute established the Subversive Activities Control Board and empowered it to label organizations as "Communist action," "Communist front," and "Communist infiltrated" organizations. The purpose of the statute, in defiance of the First Amendment, was to destroy the Communist Party and organizations which had the slightest relationship to the Communist Party.

Though the Supreme Court, after protected litigation, upheld the fundamental scheme of the Internal Security Act in 1961 by a 5-4 vote, subsequent deci

sions of the Supreme Court and lower federal courts effectively emasculated the statute and made its enforcement impossible. Consequently, the Subversive Activities Control Board has had no function at all for the past decade. In testimony just last month in the Senate, the chairman of the Subversive Activities Control Board confessed that its members had nothing to do.

Unfortunately, the Subversive Activities Control Board, under the terms of the new Executive Order, will have far too much to do.

The main purpose of Executive Order 11605 is to revive and expand the socalled Attorney General's List of Subversive Organizations, and to make it a formal and integral part of the federal loyalty-security program. The loyaltysecurity program, a relic of the McCarthy era, is designed to exclude anyone with controversial political ideas from government employment.

The Attorney General's list, first published in the late Forties, contains the names of every organization deemed by the government during the last 35 years to be "subversive." Of the several hundred organizations on the list, all but a handful have long since passed out of existence. Nevertheless, the list is still submitted to all applicants for government employment and they are required to state whether they are members of any of the organizations on the list. If they are, they will not be hired. If they join any of them after being employed, they will be fired. We had hoped that the Attorney General's list would, by this time, have been assigned to the oblivion it deserves. Unfortunately, for the liberties of all Americans, the new Executive Order gives it new life.

Under the terms of the new Executive Order, the Attorney General is authorized to file petitions with the Subversive Activities Control Board requesting it to conduct appropriate hearings to determine whether any organization is "totalitarian, fascist, communist, subversive or whether it has adopted a policy of unlawfully advocating the commission of acts of force or violence to deny others their rights under the Constitution or laws of the United States or of any State, or which seeks to overthrow the government of the United States or any State or subdivision thereof by unlawful means."

The striking feature of the Executive Order is that the activities for which organizations will find themselves included in the Attorney General's list are not the commission of any unlawful acts, but merely the advocacy of political change. It is a matter of indifference to the Executive Order whether the organization actually engages in or incites acts of force or violence; it is enough that the organization merely advocates, no matter how abstractly, the commission of such acts for political objectives. But quite beyond that, the range of offenses encompassed by the Executive Order boggles the mind. Not only is advocacy of force and violence grounds for inclusion in the Attorney General's list, but advocacy of an “autocratic" government, advocacy of "rigid" one-party dictatorship," and advocacy of a system of government in which "control is centered in a single individual, group or political party, allowing no effective representation to opposing individuals, groups, or parties and providing no practical opportunity for dissent," is sufficient to warrant listing. Under these standards, support of some "allies" as well as some "enemies" of the United States could be grounds for being included on the list.

All of the provisions cited above are constitutionally objectionable because they seek to punish speech rather than illegal acts. But the entire purpose of the First Amendment is to protect American citizens in their right to advocate anything. Speech of any kind, no matter how obnoxious its content may seem to be to some people, is explicitly protected by the First Amendment. Only speech which directly incites individuals to illegal activity can be punished; even then it may be punished only if it is an integral part of the illegal conduct itself. Indeed, it is one of the fundamental principles of our form of government that society is served by permitting, indeed encouraging, as wide a variety of political ideas as the human mind can grasp. Some of them may strike us as evil, trivial, or foolish; but so long as they do not constitute an integral part of an illegal act, they are protected by the First Amendment.

As bad as the terms of the new Executive Order are in terms of prohibiting advocacy of illegal acts, the provisions of the Executive Order commit the cardinal constitutional sin of discouraging discussion of any form of government except one based upon the capitalist system.

Indeed, the purpose of the Executive Order, like the Star Chamber and the Spanish Inquisition, is to prohibit "evil thoughts," for Section 4(g) of the new Executive Order requires an organization to be included in the Attorney General's list if it seeks to establish a government in the United States which is "based upon the revolutionary principles of Marxism-Leninism, which interprets history as a relentless class war aimed at the destruction of the existing society

and the establishment of the dictatorship of the proletariat, the government ownership of the means of production of property and the establishment of a single authoritarian party." In short, the Executive Order declares Marxism illegal and prohibits its discussion or propagation within the United States. Furthermore, anyone who advocates public ownership of Consolidated Edison or the New York Telephone Company, would be fair game for the Subversive Activities Control Board.

Although the Executive Order specifies that the forbidden objectives must be pursued by "unlawful means" in order to warrant inclusion on the Attorney General's list, the "unlawful means" are not defined. Consequently, they could, and predictably they will, include such "crimes" as parading or meeting in a public park without a permit, violating a flag-desecration statute, organizing draft resistance, refusing to report for induction into the armed forces, burning a draft card, conducting illegal strikes, violating injunctions, disorderly conduct, committing harmless acts of civil disobedience or even jaywalking.

The reach of the Executive Order is frightening to contemplate. It reflects a fundamental ignorance at the basic constitutional premises upon which the Bill of Rights, particularly the First Amendment, rests. It equates departure from the status quo with disloyalty, sedition and subversion. It rejects the fundamental notion that a free society rests upon freedom of speech and freedom of assembly. It assumes that ideas distasteful to the present administration can be forbidden and driven out of existence by threatening whoever holds such ideas with public blacklisting. The Executive Order is the perfect embodiment of the McCarthy era, when the government made the fatal mistake of trying to stamp out intellectual freedom by thoughtless fiat.

Coming so close upon the administration's energetic but unsuccessful effort to censor the New York Times and other newspapers for publishing the Vietnam Papers, not long after the administration's callous violation of basic standards of due process during the Mayday demonstrations in Washington, and also not long after the administration's concerted attempts to intimidate the television networks for broadcasting material critical of the Vietnam War and other administration practices, we must seriously charge this administration with being guilty of gross insensitivity to and callous disregard of the constitutional standards.

The ACLU will file suit as soon as possible to challenge Executive Order 11605 in the courts. We are confident that the courts will swiftly acknowledge that the Executive Order is a gross violation of the First Amendment and will declare it unconstitutional. The Executive Order will also be attacked on the ground that the Subversive Activities Control Board, a creature established by an Act of Congress, has been illegally delegated functions not authorized by Congress.

The threat to civil liberties embodied in the new Executive Order can be overcome without a law suit if the Senate will vote in support of an amendment by Senators Hart and Proxmire to strike the $450,000 for the Subversive Activities Control Board contained in the appropriations for the Department of Justice. A motion to strike those funds from the appropriation will be made in the Senate either the end of this week or early next week. A vote in support of the motion to strike will be a vote for civil liberties.

[Feb. 2, 1961, Revised March 9, 1967]

THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, February 2, 1961.

EXECUTIVE ORDERS

A BRIEF HISTORY OF THEIR USE AND THE PRESIDENT'S POWER TO ISSUE THEM Under the Constitution of the United States, the President is vested with the executive power of the Government (Article II, Section 1, Clause 1), the power to preserve, protect and defend the Constitution (Article II, Section 1, Clause 8), and the power to see that the laws are faithfully executed (Article II, Section 3). From these powers is implied the authority to issue Executive Orders.

In subject matter executive Orders have covered a wide scope, ranging from the appointment of a charwoman in a local post office (No. 6420, November 9, 1933) to prescribing rules and regulations under the Trading-with-the-Enemy Act (No. 2796, January 26, 1918). Most Orders relate to the conduct of government business but many have a wider significance. An Executive Order has never been defined by Congress.

In use from the earliest days of the Republic, the Executive Order was at first employed mainly for the disposition of the public domain, the withdrawal of lands from federal reservations, and for other similar purposes. It was also used to create forest reserves, to establish land offices, to promulgate rule for civil service, to blanket-in additional positions, and to make individual exemptions from these rules.

During World War I the use of the Executive Order was widened, as executive authority and power increased. Agencies such as the Food Administration, the Grain Corporation, and the War Trade Board were set up by Executive Order (namely, E. O. 2679-A; E. O. 2681; and E. O. 2729-A); and during World II such agencies as the Office of Censorship, the War Shipping Administration, the National Housing Agency, and the War Manpower Commission, were established by Executive Order (E. O. 8985, December 19, 1941; E. O. 9054, February 1, 1942; E. O. 9070, February 24, 1942; and E.O. 9139, April 18, 1942).

In the early years Orders were not numbered, and, inasmuch as there was no uniform system for recording them the total of the unnumbered Orders is unknown. According to the Historical Records Survey in the List and Index of Presidential Executive Orders, Unnumbered Series, the "numbering was begun by the Department of State in 1907, at which time all of the relatively few Orders then on file in that Department were arranged chronologicaly and give a number." Of the numbered series the following figures show the number of Orders issued during each Presidential term beginning with William McKinley in 1901: March 4, 1901-March 3, 1905 (McKinley and Theo. Roosevelt). March 4, 1905-March 3, 1909 (Theo. Roosevelt) –– March 4, 1909-March 3, 1913 (William Howard Taft) March 4, 1913-March 3, 1917 (Woodrow Wilson) March 4, 1917-March 3, 1921 (Woodrow Wilson) March 4, 1921—March 3, 1925 (Harding and Coolidge). March 4, 1925-March 3, 1929 (Calvin Coolidge). March 4, 1929-March 3, 1933 (Herbert Hoover). March 4, 1933-January 20, 1937 (F. D. Roosevelt) –. January 20, 1937-January 20, 1941 (F. D. Roosevelt). January 20, 1941-January 20, 1945 (F. D. Roosevelt). January 20, 1945 January 20, 1949 (Roosevelt and Truman) January 20, 1949-January 20, 1953 (H. S. Truman). January 20, 1953-January 20, 1957 (Eisenhower) January 20, 1957-January 20, 1961 (Eisenhower) January 20, 1961-November 22, 1963 (Kennedy). November 22, 1963-December 31, 1966 (Johnson).

299

864

789

855

1001

782

957

1000

1699

1113

874

514

903

264

218

214

194

The validity of Executive Orders has been questioned many times, but a ruling as to the extent or limit to which they may be used has never been determined by the Courts or by Congress.

The Order of the President (E. O. 10340, April 8, 1952) seizing the steel industry, was held by the Supreme Court in Youngstown Co. v. Sawyer, 343 U.S. 579, 589 (1952), to be without Constitutional or Congressional authority and therefore could not stand. The power sought to be exercised under it was a lawmaking power which the Constitution vests in the Congress alone. "Nor," said the Court (p. 587), "can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. 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." Justice Frankfurter, in his concurring opinion (p. 613) quoted a statement made by Justice Brandeis in Myers v. United States, 272 U.S. 240, 293 (1926), that "The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy."

The Court, in sum, refused to recognize the "inherent powers" or "aggregate powers" doctrines as a basis of the claimed power of the President to seize private property in time of emergency.

Most of the Supreme Court cases in which Executive Orders are involved are concerned with the question of actions taken under an Order and not the constitutionality of the Order itself. However, references to the President's power have been made, by way of dicta, in a few cases which are quoted below.

Peters v. Hobby, 349 U.S. 331, 349 (1955), involved the Loyalty Review Board's