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The Federal Register Act was passed on July 26, 1935. Since then Proclamations and Executive Orders have been published in the Federal Register in order to give public notice of directives issued by the President which have legal effect; that is, which require compliance by the bureaucracy or private individuals, or which require the expenditure of public funds. Through Executive directives of various kinds issued by the President, the laws passed by the Congress are executed. The Federal Register was created in order to provide an accountable record of orders given by the President to carry out the will of the people, as enacted by the Legislature, according to processes prescribed by the Constitution. Executive Orders, in order to be lawful, must be pursuant to authorities delegated to the President by statute or by specific provisions of the Constitution. The Federal Register as a part of National Archives is intended to serve as the repository for Proclamations and Executive Orders, and these documents cite the authorities upon which the lawfulness of Presidential actions are based. The Special Committee was fortunate to receive on November 28, 1973, the testimony and advice of former Solicitor-General Erwin Griswold, whose Hamard Law Review article 2 written in 1934, was in large measure the inspiration for the Federal Register Act. Dr. Griswold's views have proved to be most helpful to the work of the Special Committee.
The Special Committee on National Emergencies and Delegated Emergency Powers has been engaged in a study, over the past year, of all Proclamations and Executive Orders that have been issued pursuant to the authorities contained in provisions of Federal law delegating to the Executive extraordinary authority in time of national emergency. This has been a very difficult task. In this regard, a Library of Congress study prepared by Grover S. Williams, entitled "Executive Orders: A Brief History was of great assistance to the Special Committee. That study and a comprehensive bibliography of Executive Orders will be found in the appendix to this compilation. Prior to 1935, directives issued by the President were not collected in any central official depository. While the listing of unclassified Executive Orders-issued since 1935 when the Federal Register Act was passed is complete, there is, unfortunately, no way of knowing with certainty the legal status of Executive Orders issued prior to the passage of the Federal Register
Act. The Special Committee, in close cooperation with the executive branch, the Library of Congress, and legal scholars, has brought to
See Hearings before the Special Committee on the Termination of the National Emergency. Part 3—Constitutional Questions Concerning Emergency Powers, Nov. 28, 1973.
*Ibid., p. 831.
gether in this compilation as complete a collection as possible of Executive Orders and Proclamations issued pursuant to states of war or national emergency. The Office of the Federal Register of GSA's National Archives and Records Service was most helpful in the preparations of the compilation (see Appendix) and the Special Committee is particularly grateful to Fred J. Emery, director of the Federal Register and to his able assistant Ruth Pontius for the thorough and scholarly assistance they have given over the past year. The following compilation, with its introductory and explanatory matter, is intended to give Congress and the public an educated insight into the general extent of Executive Orders issued by the President concerning emergency powers. The compilation is also intended to illustrate the principal areas of concern with regard to emergency powers.
It is our hope that this compilation, in addition to the compilation of Emergency Powers Statutes (S. Rept. 93–549), will be of assistance to the Legislature, the Executive, and the public when the Special Committee makes its final recommendations and proposed legislation concerning how delegated emergency powers can most effectively be provided to the Executive in time of necessity and yet maintain the integrity of constitutional processes.
During the course of the Special Committee's study of Executive Orders, it has become evident that many Presidential directives of great importance are not a part of the public record contained in the Federal Register or anywhere else. A practice has grown up in recent decades whereby Presidential directives, if called anything other than an Executive Order, are not recorded for the purposes of public notice or legislative accountability. In the view of the Special Committee, this practice-evident in the area of emergency powers—affects every area of our national life, and remedial legislation to correct this recent practice of public administration should be a priority for Congresø.
The Special Committee is now in the process of editing a history of the use of emergency powers from the beginning of the Republic to the present, as well as concluding work which will lead to recommendations for legislative action. These two reports will be issued in the very near future.
STRENGTHENING THE INSTITUTIONAL MEANS FOR THE LEGAL ACCOUNTABILITY OF DECISIONS
MADE BY THE EXECUTIVE
The means used by the executive branch to carry out the law and the policy goals set by Congress helps to explain the dominance of the Presidency in the government of the United States. The President is now the head of the most powerful executive complex in the world. In addition to his power as the Chief Executive of the largest superstate the world has ever seen, the President possesses, through congressional delegation, a growing amount of legislative or quasi-legislative power. This enormous power is sufficient reason to determine in exactly what ways the Executive gives directions to "take care that the laws be faithfully executed.” It is important that the different ways in which the President gives orders to carry out the law be understood and studied because it has become evident in recent years that many Executive directives are given without any means on the part of the Congress or the public of determining whether such orders are lawful and in the spirit of our constitutional system of checks and balances.
A BRIEF HISTORICAL SKETCH CONCERNING EXECUTIVE ORDERS
Presidential directives issued to officials and agencies of the executive branch to carry out the laws made by Congress follow a tangled historical path almost impossible to trace. From the time of the birth of the Nation, the day-to-day conduct of Government business has, of necessity, required the issuance of Presidential orders and policy decisions to carry out the provisions of the Constitution that specify that the President, "shall take Care that the Laws be faithfully executed.” For decades, however, the process was a haphazard, if not chaotic, one. The earliest Executive Orders sometimes took the form of hastily
, scribbled Presidential endorsements on legal briefs or upon the margins of maps. Successive Presidents wrote, Approved," "Let it be done," or other short comments and these jottings sufficed to stamp a proposal with the authority of the Presidential imprimatur. Although such on-the-spot pragmatic moments of Executive decision predominated, formal"Executive Orders" or "Proclamations" were vested with the full trappings and dignity associated with official national documents—the use of highly formulaic language, and the impression of the Great Seal of the United States executed by the Secretary of State. Yet, the criteria for deciding exactly which orders would be selected for such formal treatment were, and still remain, capricious and arbitrary.
In 1907, the first attempt was made to impose a measure of order on this process with the initiation of a numbering system for all Executive Orders and Proclamations. At that time, the system was backnumbered to President Lincoln's order of October 20, 1862, establishing military courts in Louisiana. Unfortunately, many (how many will probably never be known) eighteenth and nineteenth century Presidential orders-issued both before and after 1862—had never been deposited with the Department of State for recording and retention. Consequently, the backnumbering was incomplete. Estimates made by officials of the National Archives, the Library of Congress, and the Department of Justice, of the number of pre-1907 orders which were never serialized and deposited for the record range from 15,000 to 50,000.
As long as Federal Departments and Agencies were relatively small, the task of systematizing Executive directives was also relatively manageable. With the burgeoning of the bureaucracy that accompanied
, the expansion of the Government during the New Deal, however, the problem of keeping track of and maintaining any degree of oversight concerning the legality of Executive Orders took on a new dimension. President Roosevelt issued hundreds of Executive Orders each
to implement his many new programs; the programs themselves generated an unprecedented volume of governmental regulations. For instance, the National Recovery Administration disseminated its regulations in the form of 5,991 press releases constituting in all over 10,000 pages of "law."
To regulate this flood of documents reporting executive directives, Congress passed the Federal Register Act of 1935 [44 U.S.C. 1501 et seq.fi. This Act required the publication in the Federal Register of all Executive Orders and Proclamations, and provided that the President might designate other classes of documents to be similarly published. A variety of indices and tables were designed to accompany the actual publication of the documents and provide a means for ascertaining the exact status of any particular order or regulation.
In the Federal Register Act of 1935, however, there were no substantive standards set specifying which Executive directives had to be incorporated in the form of Executive Orders or Proclamations, or, indeed, in any other express format. Nor did past practice offer useful guidelines. Early administrations had used Executive Orders and Proclamations to give legal force to directives to regulate everything from the erection of lighthouses to personnel decisions in the Civil Service to the performance of major military functions. In World War I, a number of very important executive agencies such as the War Trades Board and the Grain Corporation were established by such orders. This practice of creating new agencies by Executive fiat was continued by Franklin D. Roosevelt. However, many important decisions were issued in other forms not easily accessible to the public, while many trivial matters were given full legal form in Executive Orders or Proclamations. The fundamental ambiguity and arbitrariness in the use of Executive Orders remains one of the most troubling problems of public administration yet to be resolved by Congress.
1 See Appendix, p. 49.
CURRENT PROCEDURES FOR ISSUING EXECUTIVE ORDERS
The Federal Register Act of 1935 provides the present statutory guidelines for the issuance of Executive decisions or orders. It is supplemented by a series of Executive orders by which the Executive prescribes for itself additional procedures to be observed. Both the statutory and the self-imposed regulations, however, fail to diminish significantly the fundamental arbitrariness of the system, and the Executive's own procedures appear to be followed only insofar as it is convenient to the Executive's purpose at the time.
The Federal Register Act (44 U.S.C. 1505] · provides for the publication of:
1. Presidential Proclamations and Executive Orders, except those not having general applicability and legal effect or effective only against Federal Agencies or persons in their capacity as officers, agents or employees thereof;
2. Documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and
3. Documents or classes of documents that may be required so to be published by Act of Congress. The categories enumerated herein are not all-inclusive. First of all, there is the problem of terminology. If a document is not specifically designated as an “Executive Order” or “Presidential Proclamation," the decision of whether or not it will be published as a part of the public record is left to the discretion of the President and his advisers. If he wishes a document to have "general applicability and legal effect,” he will presumably have it published. If, however, the order is directed only to an official or an agency and does not purport to regulate the conduct of private citizens, there is no legal necessity for its publication. Most Executive directives fall into this category. Although most Executive directives pertain to exclusively internal bureaucratic operations, many others have great consequences for the Government, the Nation, and individuals as well. One need cite only the decisionmaking which governed the war in Indochina to illustrate the point most vividly. Although clause 3 of 44 U.S.C. 1505 permits Congress to designate classes of documents for publication, Congress has never addressed itself directly to this question in the broad sense here considered.
Even among the two classes of documents, Proclamations and Executive Orders, which are published, there is a considerable degree of confusion. In general, it appears that Proclamations are issued when it is felt that the decree is addressed to the public at large. They tend to be hortatory in nature, proclaiming national days of celebration or ceremonial events. Many Executive Orders are addressed to subordinates in Executive Agencies. But in practice the distinction is not clear.
See Appendix, p. 51.
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