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Since the establishment of the Federal government in 1789, Presidents of the United States have issued a variety of administrative and policy directives which can be described as Executive orders. There is no law

or Executive instrumentality which attempts to define the nature of an Executive order.* Not even E.0. 10006 of October 11, 1948, governing the use and purpose of such edicts provides a description of them as a legal entity. Based upon the general clauses of Article 11 of the Constitution which assign the President his duties of office or upon statutory authority, Executive orders are generally addressed to, and govern the actions of, Government officials and agencies of the Executive Branch. Ordinarily, their effect upon private individuals is largely indirect. A Federal civilian employee who disobeys the provisions of an Executive order, however, should not be surprised if they are dismissed from their position for such


*See Lawrence F. Schmeckebier and Roy B. Eastin. Government Publications and Their Use. Washington: The Brookings Institution, 161, pp. 318-319.

Beginning in 1907, Executive orders were assigned a serial number and this accountancy system now records directives reaching back into the era of the Lincoln Administration. Since 1935, with the enactment of the

Federal Register Act (49 Stat. 500), law has required the publication of

Executive orders in the Federal Register.

They are also compiled in annual and cumulative volumes of the Code of Federal Regulations (Title 3). Certain orders have been included in the annotations and notes of the U.S. Code. Classified Executive orders are assigned a serial number and, thereby, their existence is made known though knowledge of their actual contents remains restricted.

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Leaving aside presidential initiatives based upon constitutionally conferred powers, an Executive order cannot exceed statutory authority (see Kendall vs. United States, 12 Peters 524 (1838)). Accordingly, an order might be challenged in court (see Youngstown Sheet & Tube Company vs. Sawyer, 343 U.S. 579 (1952)) or otherwise overturned by legislation which specifies a different policy with regard to the matter in question. In the absence of a statutory declaration of policy, however, an Executive order may be presumed to be binding.

E.O. 11490

On October 30, 1969, President Nixon issued E.0. 11490 which he had signed two days earlier. The directive was purportedly a consolidation of some 21 prior Executive orders and 2 Defense Mobilization orders on emergency preparedness matters issued between 1951 and 1966 (and listed at the end of E.0. 11490). As authority for its issuance, the order cites the general provisions of Reorganization Plan No. 1 of 1958

(72 Stat. 1799) pertaining to civil defense organization, the National Security Act of 1947 (61 Stat. 495), the Defense Production Act of 1950

(64 Stat. 798), and the Federal Civilian Defense Act of 1950 (64 Stat. 1245). As issued, the order contains the following important provisio (§105):

The purpose and legal effect of the assignments
contained in this order do not constitute authority
to implement the emergency plans prepared pursuant
to this order. Plans so developed may be effectuated
only in the event that authority for such effectuation
is provided by a law enacted by the Congress or by an
order or directive issued by the President pursuant

to statutes or the Constitution of the United States.

These references to a subsequent instrumentality for causing the effectuation of this order are, presumably, a declaration of war by Congress and/or a proclamation of a condition of national emergency by the President. Under the Constitution, only Congress may declare war, the last occasion for so doing being the inauguration of American entry into World War II in 1941. Conditions of national emergency may be declared by Congress or, more often, by the President. The matter of proclaiming a national emergency generally derives from constitutional powers granted the Chief Executive and certain special statutes. Since the termination of World War II, presidential proclamations of a condition of national emergency have been made in 1950 (64 Stat. A454) on the occasion of the invasion of Korea by Communist Chinese troops, in 1970 (84 Stat. 2222) on the occasion of a halt in postal service, and in 1971 (7 P.D. 1174) on the occasion of a balance in payments crisis which). required the imposition of a supplemental duty surcharge on imports. During the 1970wand 1971 situations the provisions of E.0. 11490 did not go into effect.

Presumably E.0. 11490 is designed to be implemented under circumstances of total war, nuclear attack, or a similar circumstance bringing halocaust to the United States. It might be speculated that its provisions generally follow the provisions of the U.S. Code which are activated by an emergency proclamation. While this contention may not hold true for every provision of the order, the following list indicates general comparability for the sections cited.

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E.O. 11490 constitutes stand-by authority for Executive departments and agencies but it cannot be activated by any of these entities. In the event Congress should wish to eradicate its provisions, in whole or in

part, a new statute on emergency preparedness functions would have to be

enacted or a joint resolution rescinding the order would have to be passed. For the moment, E.O. 11490 remains dormant, awaiting activation by action

of Congress or the President.

The foregoing paragraphs raise certain points of consideration which are essential to any discussion of this subject. It is recognized that, in such a brief overview, some points could be analyzed from other perspectives and to a lengthier degree. There is no intention in bringing out these points to either advocate or oppose those aspects of the subject. which is under discussion.


Harold C. Relyea

Analyst, American National Government
Government and General Research Division
September 24, 1973

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