for a specific purpose. An example of such provisions is 5 U.S. C. 3323a, which grants the President when in his judgement the public interest so requires, the power to exempt by Executive Order a civil service employment from the mandatory retirement age.

C. Executive Orders.

President Franklin Roosevelt, in order to provide some uniformity in the issuance and publication of Executive Orders issued Executive Order 7298 to be effective on March 12, 1936. This Executive Order prescribed the manner of preparing proposed Executive Orders and proclamations. Executive Order 7298 was superseded by Executive Order 10006 on October 1, 1948 and the latter by Executive Order 11030, issued by President Kennedy on June 19, 19, 1962. It is entitled "Preparation, Presentation, Filing, and Publication of Executive Orders and Proclamations.

D. Others.

As stated earlier in this report the United National Charter has been cited as authority for issuance of Executive Orders. President Truman issued Executive Order 10422 dated January 3, 1953.

III. Highlights of Legal Developments Affecting the Use of Executive Orders. The nature and limitations of Executive power have been a matter of controversy from the very beginning of our nation. Some of these controversies have involved Executive Orders.

Even Chief Executives have differed in the use of such powers:

President Theodore Roosevelt stated his views of the Presidential office as follows:

***I decline to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the

needs of the Nation demanded unless such action was forbidden by the Constitution or by the law. Under this interpretation of Executive power I did and caused to be done many things not previously done by the President and the heads of the Departments. I did not usurp powers, but I did greatly broaden the use of Executive power. *** (quoted in Rankin M. Gibson, the President's Inherent Emergency Powers in 12 Federal Bar Journal p. 113)

President Franklin D. Roosevelt expressed himself even more

strongly along the same lines as follows:

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"In the event that Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act... (Rankin M. Gibson, op. cit., p. 114).

In contrast, President William H. Taft expressed his views on the Presidential office in these words:

***that a President can exercise no power which cannot fairly and reasonably be traced to some specific grant of power, or justly implied and included within such grant of power and necessary to its exercise. Such specific grants must be either in the Federal Constitution, or in any act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest. (Rankin M. Gibson, op. cit., pp 113.)

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 Judiciary or by the Congress.

The order of President Truman, Executive Order 10340 dated April 8, 1952, which seized the steel industry was held by the Supreme Court to be without Constitutional or Congressional authority and therefore could not stand. [Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. C. 579 (1952).] The power sought to be exercised under it was a lawmaking power which the United States Constitution vests in 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

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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 Myer v. United States, 272 U. S. 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, it seems, 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 (1944), involved the Loyalty Review Board's action under Executive Order 9835. The Court stated that the, constitutionality of the Order did not come into issue, but Mr. Justice Black, in his concurring opinion, made the following pertinent statement (p. 349):

.I agree that it is generally better for this Court not to decide constitutional questions in cases which can be adequately disposed of on non-constitutional grounds. [but here] I think

it would be better judicial practice to reach and decide the con-
stitutional issues, although I agree with the Court that the Presi-
dential Order can justifiably be construed as denying the Loyalty
Review Board the power exercised in this case.
But I wish
it distinctly understood that I have grave doubt as to whether the
Presidential Order has been authorized by any Act of Congress.
That order and others associated with it embody a broad

.

far-reaching espionage program over government employees. These orders look more like legislation to me than properly authorized regulations to carry out a clear and explicit command of Congress. I also doubt that the Congress could delegate power to do what the President has attempted to do in the Executive Order under consideration here. And of course the Constitution does not confer lawmaking power on the President.

I have thought it necessary to add these statements to the Court's opinion in order that the President's power to issue the order might not be considered as having been decided sub silentio.

In Greene v. McElroy, 360 U.S. 474, 508 (1959), the question dealt with action taken under Executive Orders 10290 and 10501 dealing with the safeguarding of official information. In the opinion of the Court, Chief Justice Warren declared we do not "decide whether the President has inherent authority to create such a program, whether congressional action is necessary, or what the limits on executive or legislative authority may be...

In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) the Supreme Court indicated that, in the field of foreign relations, the President possesses certain inherent powers, apart from grants of power by ~~~ the Constitution, so that delegations of legislative power by Congress to the President to place embargoes on foreign commerce (a field specifically enumerated by the Constitution as one of the areas of Congressional power) will be more liberally construed by the courts than if the field of foreign relations were not involved.

The Congress has on numerous occasions repealed Executive Or

ders, even at times many years after their issuance.

Executive Order 27-A dated September 4, 1890, which created the

United States Board on Geographical Names was repealed by an Act of July 25, 1947 (61 Stat. 477 $6).

Executive Order 597 1/2 of March 22, 1907, which promulgated

the Code of Civil Procedure of the Canal Zone was repealed by the Act of February 27, 1933 (47 Stat. 1123 $1240).

Executive Order 1141 dated November 23, 1909, which made the enticing of laborers from the Canal Zone a misdemeanor was repealed by the Act of February 16, 1933 (47 Stat. 810).

Certain sections in Executive Orders 6098 and 6568 of March 31, 1933 and January 19, 1934, relating to veteran's pensions were canceled by the Act of August 25, 1937 (50 Stat. 798).

Executive Order 9250 dated October 3, 1942, limiting salaries to $25,000 after payment of taxes, was rescinded by the Act of April 11, 1943 (57 Stat. 63 $4(b)).

Just as Congress has the power to repeal Executive Orders, attention is called to the fact that even this power seems to have its limitations. The United States Supreme Court declared in Ex parte Milligan, 4 Wall. 2, 139 (1866), the following:

"The power to make the necessary laws is in the Congress; the power to execute is in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President Both are servants of the people, whose will is expressed in the fundamental law."

IV. Number of Executive Orders by Presidents.

A. General

As noted earlier in this memorandum, no Executive Orders were numbered and no systematic filing system was in existence prior to 1907. The Department of State during this year began numbering the Executive Orders