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In order to make those Executive decisions that have already been published more useful, the first task is one of codification. Although many Executive Orders now specify which orders they are modifying or superseding and at least some statutes do likewise, this practice is by no means uniform. The exact legal status of executive directives or procedure in many areas is virtually impossible to ascertain. Such a codification of all published Executive Orders is currently being undertaken by the Federal Register, although more support for this effort should be given by more adequate funding from Congress. When completed—and if it is kept properly updated—this codification will make it possible, for the first time, to have a definitive compilation of published Executive directives.
Unfortunately, a great many of the most significant Presidential decisions are not available for congressional or public scrutiny through the Federal Register. This lack is primarily due to a failure by Congress to specify substantive standards under which all presidential directives should be recorded. In addition, Congress has not yet enacted laws which would prevent the Executive from using classification to withhold information from Congress and the public. The problem of public accountability can affect, in a very profound sense, the viability of Constitutional Government. What the Executive does with public funds and who is entitled to know about Executive directives, are among the most important questions now being asked of our system of Government. Until Congress grapples with these issues directly, it will be faced with a continuing veil of secrecy and be unable to carry out its constitutional task of overseeing the Executive. The Indochina war and “Watergate” tragically illustrate the results of such congressional inattention.
The awesome power contained in delegated emergency powers involves the same fundamental questions being asked of Government. This much is, however, clear: In the grey areas of overlapping executive and legislative responsibility, the Executive must carry out the · clearly expressed intentions of Congress, as indicated in Youngstown
Sheet and Tube Co. v. Sawyer, when such properly enacted statutes exist. The continuance of arbitrary presidential decisions made apart from the public record and thereby unaccountable during times of crisis or emergency could jeopardize essential freedoms and the strength of cherished free institutions. Congress, where possible, should legislate, therefore, in advance, standards to guide the President and to prevent, insofar as law can prevent, adverse authoritarian rule. Only Congress has the responsibility to strengthen constitutional means to bridle the possible future exercise of authoritarian power.
It is the intention of the Special Committee when its work is completed to recommend to Congress specific legislative remedies that if enacted would assure that all Presidential directives, by whatever name called, which have legal effect upon individuals or institutions will be published in the Federal Register. This recommended legislation will include provisions for a classified Federal Register to be used when appropriate.
EMERY, Fred J.
re EXECUTIVE ORDERS
file FEDERAL REGISTER
March 6, 1974
Mr. Fred J. Emery
Dear Mr. Emery:
The Special Committee on National Emergencies and Delegated Emergency Powers is now compiling a catalogue of all Proclamations and Executive Orders issued pursuant to statutory powers, triggered by the fout states of national emergency now in effect, The Committee staff, over the past six months, has been engaged in a study of all relevant Executive Orders and Proclamations. Your office has been of immeasurable assistance and we wish to thank you for the intelligent and resourceful support that you and your able assistant, Mrs. Ruth Pontius, have given the staff of the Special Committee.
The Special Committee has one additional request. We would like a list of all Executive Orders and Proclamations now in force issued pursuant to the four now existing states of national emergency. We recognize that for various reasons it may be impossible to supply a complete listing, but we would like to have as complete a list as can be provided.
We thank you for your assistance. With kind regards we are
UNITED STATES OF AMERICA
Washington, DC 20408
Honorable Frank Church and
Dear Senator Church and Senator Mathia 8:
Thank you for your letter of March 6, 1974, and particularly for your kind words concerning Ms. Pontius. It is always nice to hear when the efforts of staff members to be of assistance are both successful and appreciated. I apologize for the delay in replying to your letter but, as you know from the work of your Committee, research in this area is difficult and time consuming.
We have attempted to comply with your request that we supply a list of all Executive orders and proclamations now in force issued pursuant to the four now existing states of national emergency. The attached listings represent the most complete information we have been able to assemble. Each list is based on the information contained in our card file. A definitive answer as to the applicability of any particular Executive order as of this time would, of course, have to come from the Attorney General.
The enclosed listings include:
-- List 1, which contains proclamations and Executive
orders that we have been able to identify as be ing issued under or related to Proclamation 2039 of March 6, 1933, and Public Law 1, 73rd Congress, 1st Session, March 9, 1933 (48 Stat. 1), and which appear to be still in effect.
--List 2, which contains a comparable listing with respect
to Proclamation 2914 of December 12, 1959.
We have found no additional information relating to Proclamation 3972 of March 23, 1970.
The only information we can find relating to Proclamation 4074 of August 15, 1971, was that it was modified by Proclamation 4098 of December 20, 1971.
Also enclosed as Attachment A is a description of finding aids that may be useful to the Committee staff in further researching this area.
I hope this information is useful to you. If I can be of any further assistance, please do not hesitate to contact me.