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A study of Executive Orders made in 1957 by the House Committee on Government Operations concluded that “a precise and uniformly applicable differentiation between Executive Orders and Proclamations is impossible.” The situation is not any more precise today. In response to inquiries made by the staff of the Senate Special Committee on National Emergencies and Delegated Emergency Powers those responsible for the procedures relating to Executive Orders at both the Justice Department and the Federal Register acknowledged their inability to define with precision the difference between Executive Orders and Presidential Proclamations and emphasized the inconsistencies which pervade their usage. The arbitrariness of this system is illustrated by two instances of very similar situations of federallyenforced school integration in the South. In the first instance, President Eisenhower relied on an Executive Order, while, only a few years later, President Kennedy issued a Proclamation.
Executive Order 11030, as amended by Executive Order 11354 1 sets standards for the "preparation, presentation, filing, and publication” of Executive Orders and proclamations. Like the statutory regulations, these self-imposed Executive standards fail to prescribe criteria for the subject matter to be published as an Executive Order or as a proclamation. Section 2 of Order 11030 does, however, establish a procedure for the intra-executive clearance procedures of proposed Executive Orders and proclamations. According to Section 2, a proposed Executive Order must be sent first to the Director of the Office of Management and Budget, and then to the Attorney General. Only after their approval is obtained may an Executive Order be forwarded to the President for official sanction and subsequent publication. The Special Committee's study shows that this procedure has been usually followed in routine matters. It has not, however, been universally complied with. The Justice Department acknowledges that it has received notice of some important Executive Orders after their promulgations. The August 15, 1971, Executive Order issued from Camp David concerning America's international financial position is an example. In some cases the justification for not following regular procedures is explained as required by the exigencies of an "emergency”; bypassing regular clearance procedures appears to occur frequently in times of national emergency. The point that does not escape notice is that successive administrations have followed established procedures only when convenient to do so.
If the format and procedures for issuing Executive Orders and Proclamations appear inadequate and inconsistent, the situation regarding other Executive directives is even more so, bordering on the chaotic. Title 3 of the Code of Federal Regulations indicates that in issuing decisions and commands, Presidents have used such diverse forms as letters, memorandums, directives, notices, reorganization plans, administrative designation, and military orders. The decision whether to publish an Executive decision is clearly a result of the President's own discretion rather than any prescription of law. In recent years, the National Security Action Memorandums of Presidents Kennedy and Johnson and the National Security Action Direc
1 See Appendix, p. 52.
tives of President Nixon represent a new method for promulgating decisions, in areas of the gravest importance. Such decisions are not specifically required by law to be published in any register, even in a classified form; none have prescribed formats or procedures; none of these vital Executive decisions are revealed to Congress or the public except under irregular, arbitrary or accidental circumstances. For instance, the 1969–1970 secret bombing of Cambodia 1 has recently come before congressional and public notice. The public record reveals very little about how the commands for such far reaching actions were issued. What is most disturbing is the lack of access to any authoritative records in these matters. In short, there is no formal accountability for the most crucial Executive decisions affecting the lives of citizens and the freedom of individuals and institutions.
The problem is exacerbated by the classification of sensitive or important Executive decisions, classification which in most cases prevents even Congress from having access to these documents. While no one would wish to prevent sensitive documents from being classified for reasonable cause, the absolute discretion given to the Executive in this area has led to abuse. It has permitted and encouraged inclusion in this category of many documents in no way connected with essential national security. Moreover, not only are their contents kept secret, but even the extent of such documents is unascertainable. On the basis of the handling of past Presidential papers, many of these documents will, of course, in one manner or another, eventually be declassified, but many have been withheld by Executive discretion.
Until recently, classified Executive Orders were inserted chronologically in the prescribed serialization of the Federal Register by the use of a letter suffix after the number of the last preceding order, for example, Executive Order 7784-A. It seems evident that even this provision for recording classified Executive directives has, by and large, not been used because other less public forms of Executive directives have proven more convenient for executive branch purposes.
The legal record of executive decisionmaking has thus continued to be closed from the light of public or congressional scrutiny through the use of classified procedures which withhold necessary documents from Congress, by failure to establish substantive criteria for publication and by bypassing existing standards. As a result, the legality of a substantial area of operations of the Government has in large measure been immune from any oversight or scrutiny by Congress. And the situation is growing worse. The number of formal Executive Orders and Proclamations has, in recent years, declined from many hundreds to about 70 annually. Since it is certain that as the United States has grown in size and power the Executive has issued more and more decisions, many of which are of the greatest importance, it can only be surmised that such commands continue to be issued in irregular form and in ways unaccountable to Congress and the people. As the role of the Executive in Government continues to expand, this must be cause for the greatest concern.
See Emergency Powers Statutes, Nov. 19, 1973: The “Feed and Forage” Act of 1861; applicability under 41 U.S.C. 11, pp. 319-321.
TIE LEGAL STATUS OF EXECUTIVE DECISIONS Article I of the Constitution vests all legislative power in Congress. Nowhere in the Constitution is the President empowered to make law. Nevertheless, in the course of executing Acts of Congress and of directing the executive branch, the President must issue numerous orders to the bureaucracy which have a binding effect on subordinate officials, and, in many cases, on Congress, and on individuals from the general public as well. For all intents and purposes many of these Executive directives or orders constitute “law,” even though the parties affected may be unaware of their existence.
In its consideration of the legal status of Executive decisions, the Special Committee has concerned itself primarily with formally declared Executive Orders and proclamations designated as such, or with other documents published in the Federal Register. There is, at present, no way of knowing how and by what legal authority those Executive directives not recorded in the Federal Register affect the public. The primary conduct of individuals in their everyday lives presumably may not be regulated by such unpublished orders, since the statutes (44 U.S.C., Chapter 15) and normal standards of due process probably require publication before an order may be given direct legal effect. But many decisions within the Executive branch itself often have repercussions much more severe for the general public than any attempt to regulate its conduct directly. And there is often no means for the public, or its congressional representatives, to ascertain the content of these decisions, or even the fact that they are being made.
The legality of an Executive Order or a proclamation depends upon the applicability of the legal authority which the President cites at its issuance. This authority is of two kinds: That which Congress specifically delegates to the President by statute; and that which he asserts to derive from certain constitutional powers, express or implied, of the Presidency itself.
The legality of an Executive Order is most certain when it is based solely on a specific congressional delegation of authority. In such cases, the Presidential order is regarded as of equal validity with the Act itself and has “the force and effect of law.” Maryland Casualty Co. v. United States, 251 U.S. 342, 349 (1919). The constitutional authority for such a delegated power is as broad as the power of Congress. This
а is only limited by the restriction that when the Constitution expressly vests a power in Congress, that body may not entirely relinquish its constitutional responsibility by delegating full discretion and authority in that area to any other body or person. Since the Presidential power to issue an order is, in such instances, based entirely on an Act of Congress, a subsequent act by Congress may supersede, annul, or modify such an order.
Where statutory delegation is relied upon, there is ample precedent to support the firm proposition that it must be invoked or the order will fail to meet the constitutional requirements of due process of law (see 16 Am. Jur. 2d 8 552). Unfortunately, a number of Executive Orders cite only "the statutes" as authority. This is, at least arguably, too vague to satisfy reasonable standards of due process.
At the other end of the spectrum are those Executive Orders based solely on the President's expressed or implied constitutional powers. Several points should be noted : Those powers which are within the exclusive domain of the President are few. Even the expressed powers of the President as Commander in Chief of the Army and Navy or in the field of foreign affairs overlap those of Congress, which is required by the Constitution to make rules and regulations governing the Armed Forces and to provide the means for their use.
In those instances where Congress has set unequivocal statutory standards, the Executive must abide by those standards. Youngstown Sheet & Tube v. Sawyer 343 U.S. 579 (1952).
The Youngstown Case, or as it is more commonly called, the Steel Seizure Case, provides useful guidelines for this problem. In that case, President Truman's Executive Order directing seizure of the steel mills, based on his position as Commander in Chief, was found to be in direct conflict with the express will of Congress; Executive action was declared illegal and revoked by decision of the Supreme Court. Situations can, of course, be cited where the will of Congress is by no means so clear, or where the Executive action only partially deviated, or only arguably deviated, from Congressional intent. In grey areas such as these the courts have in the past been reluctant to intervene and determine exactly what Congress did intend and to what extent the Executive had deviated from that intent.
The exact extent of Presidential authority poses a special problem in time of declared national emergency, when extraordinary powers are delegated by the Congress to the Executive.
When an Executive Order has been issued on the basis of both statutory and constitutionally derived authority, there arises the question of what effect a subsequent congressional action might have on the legality of the order. Since the President is required by the Constitution to adhere to properly enacted statutory guidelines, a requirement spelled out in the concurring opinions expressed in the Youngstown Case, a subsequent properly enacted statute of Congress could modify or revoke an Executive Order even though Presidential powers have been invoked as authority. Congress has, indeed, done so on several occasions (for example, E.O. 9250 was rescinded by 57 Stat. 63 $ 4(b)). But if there does exist exclusive constitutional authority for the President for a particular Executive Order the degree of congressional power of recission must be limited. As the decision in Ex parte Milligan 4 Wall. 2, 139 (1866) observed :
The power to make the necessary laws is in Congress; the
proper authority of Congress, nor can Congress upon the proper
authority of the President. In the case of a dispute between the legislative intent of a statute and the constitutional powers of the President, only the courts can resolve the dispute. In the case of a dispute, neither branch can legally impose its will, and both branches must abide by the decision of the courts.
Many statutes require the existence of a specific state of facts before they take effect. The authority to make a determination is frequently entrusted to the President, and has long been regarded as a legitimate delegation of authority (Field v. Clark 143 U.S. 649), although doubts have arisen in recent years as to the wisdom of the widespread use of this procedure. For example, although there is no constitutional provision to do so, it has been the practice over the past 40 years that the simple declaration by the President that a national emergency exists is all that is required to obtain extraordinary grants of authority contained in over 470 provisions of law. (See Proclamations 2914, 3972, and 4074.) More than 470 statutes currently in effect provide that 'the President upon declaration of a national emergency thereby receives the authority to use the extraordinary powers delegated to the President by the statutes.
To summarize the legal situation with regard to national emergencies: The President, at his own discretion, may declare that a state of national emergency exists. He thereby activates for his own use, without any congressional oversight, over 470 powers affecting every area of government and private life. Any Executive Orders or directives which he validly exercises pursuant to these statutes have themselves the force and effect of law. Yet the body of statutes providing emergency powers to the President almost without exception provide no standards to limit this authority. Nor is there in almost all of the over 470 statutes a requirement that the state of emergency be of limited duration.
Thus, whenever the President so decides, he may legitimately establish a Government rule not subject to many normal congressional checks. The Constitution and especially the Bill of Rights still provide significant restraints, but the institutional checks designed to protect the guarantees of the Constitution and Bill of Rights are significantly weakened by the growing tendency to give the President grants of extraordinary power without provision for effective congressional oversight, or without any limitation upon the duration for which such awesome powers may be used.
The Special Committee's study of Executive Orders, Presidential Proclamations and Directives reveals considerable confusion in procedure, a decided absence of a comprehensive means for public accountability and an uncertain basis for determination of legal authority on which executive directives may be issued or challenged. This situation is reason for the gravest concern in periods of peace and stability. This concern is all the greater in times of war, national crisis, or emergency when many additional powers and responsibilities devolve on the President. Congress in particular can dispel this disorder and lessen dangers to constitutional government by establishing standards to be used by the Executive in time of a crisis and procedures for Congress itself to follow to assure effective oversight of the executive branch in times of national emergency.