SPEAKERS CONTENTS INSERTS
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63–865
2000
CONGRESSIONAL LIMITATION OF
EXECUTIVE ORDERS
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
ON
H.R. 3131, H. Con. Res. 30 and H.R. 2655
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OCTOBER 28, 1999
Serial No. 64
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
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JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
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JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania, Chairman
LINDSEY O. GRAHAM, South Carolina
STEVE CHABOT, Ohio
SPENCER BACHUS, Alabama
MARY BONO, California
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JERROLD NADLER, New York
TAMMY BALDWIN, Wisconsin
MELVIN L. WATT, North Carolina
ANTHONY D. WEINER, New York
WILLIAM D. DELAHUNT, Massachusetts
RAYMOND V. SMIETANKA, Chief Counsel
SUSAN JENSEN-CONKLIN, Counsel
JAMES W. HARPER, Counsel
C O N T E N T S
HEARING DATE
October 28, 1999
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TEXT OF BILL
H.R. 3131
H. Con. Res. 30
H.R. 2655
OPENING STATEMENT
Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law
WITNESSES
Barr, Hon. Bob, a Representative in Congress from the State of Georgia
Cooper, Phillip, Gund Professor of Liberal Arts, Department of Political Science, University of Vermont, Burlington, VT
Griffith, Thomas B., Wiley, Rein & Fielding, Washington, DC
Metcalf, Hon. Jack, a Representative in Congress from the State of Washington
Mincbergca, Elliot, Vice President, Legal Director, and General Counsel, People for the American Way Foundation, Washington, DC
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Paul, Hon. Ron., a Representative in Congress from the State of Texas
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Barr, Hon. Bob, a Representative in Congress from the State of Georgia: Prepared statement
Cooper, Phillip, Gund Professor of Liberal Arts, Department of Political Science, University of Vermont, Burlington, VT: Prepared statement
Gekas, Hon. George, a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administratvie Law: Prepared statement
Griffith, Thomas B., Wiley, Rein & Fielding, Washington, DC: Prepared statement
Metcalf, Hon. Jack, a Representative in Congress from the State of Washington: Prepared statement
CRS Report for Congress by Louis Fisher
Nadler, Hon. Jerrold, a Representative in Congress from the State of New York: Prepared statement
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Paul, Hon. Ron., a Representative in Congress from the State of Texas: Prepared statement
Analysis of H.R. 2655 by Liberty Study Committee
APPENDIX
Material submitted for the record
CONGRESSIONAL LIMITATION OF EXECUTIVE ORDERS
THURSDAY, OCTOBER 28, 1999
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 10 a.m., in Room 2237, Rayburn House Office Building, Hon. George W. Gekas [chairman of the subcommittee] presiding.
Present: Representatives George W. Gekas and Jerrold Nadler.
Staff present: Raymond V. Smietanka, Subcommittee Chief Counsel; James W. Harper, Counsel; Sarah Zaffina, Staff Assistant; Diana Schacht, Full Committee Deputy Staff Director and Chief Counsel; and David Lachmann, Minority Professional Staff Member.
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OPENING STATEMENT OF CHAIRMAN GEKAS
Mr. GEKAS. The hour of 10 having arrived, the committee will come to order.
Pursuant to the rules of the House, as I am wont to repeat so often, we cannot proceed until a second member of the committee should appear, because this body's rules call for the presence of two members for the purposes of a hearing.
Again, we have kept faith with our contract with the American people that we will start every hearing and every markup on time.
Now, we have to recess, of course, but at least we have started on time. In the meantime, we will indulge ourselves by introducing the members of the panel so that when the second person appears for the committee, that we will have done some homework and we can proceed with the statements anon.
We have with us Jack Metcalf, who is serving his third term from Washington's 2nd Congressional District. Jack serves on the Banking Committee and the Transportation and Infrastructure Committee. Jack attended the University of Washington and Pacific Lutheran University, where he received two bachelor's degrees. He served in the U.S. Army from 1946 to 1947 and taught middle and high school students mathematics, history and government, in the Everett, Washington, school system for 29 years.
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Bob Barr represents Georgia's 7th Congressional District and is our colleague on the Judiciary Committee, of course. He was first elected in November 1994. Congressman Barr served previously with the Central Intelligence Agency and as the U.S. attorney for the Northern District of Georgia from 1986 to 1990.
Ron Paul represents the 14th Congressional District of Texas, and he serves on the Committee on Banking and Financial Services and the Committee on Education and the Workforce. Dr. Paul was born in Pittsburgh, Pennsylvania, and is a graduate of Gettysburg College. He is also a graduate of the Duke University School of Medicine.
I might add that the Chair has enjoyed a comfortable relationship with each of the members who will be providing testimony today. I remember times when Ron and I in the early days would agree on a lot of subjects and then find that we were the only two on a particular side on some issues. Ron took a leave of absence—I can't remember why—and then came back and is pursuing his quests for constitutionality of our system.
Jack was always interested in a lot of different things that both of us worked on, and he was always very supportive of the Chair's initiative on preventing government shutdown, as I recall, and we talked extensively about that.
Of course, Bob and I worked assiduously on the duty thrust upon us by the Constitution in the recent impeachment and on many other subjects that the Judiciary Committee brought to the table.
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I would say this to Bob: Many times the debate as it unwound found Bob pleading some of the experience which he had garnered as a U.S. attorney. I have to tell you that was very valuable. I was a prosecutor, but I was a local prosecutor, a county prosecutor. I did not have firsthand experience of U.S. courts with respect to the prosecutorial discretion and all the other issues that arise from that. That has been very helpful. And I think that Asa Hutchinson was also a U.S. attorney, and Ed Bryant. Although there were other prosecutors like myself, those three at least had the handbook in front of them or embedded in their brains on the workings of the U.S. attorney and, therefore, the relationship between Federal and State, and it was a great relief for these members of the Judiciary Committee.
We are going to give you step-by-step progress of Jerry Nadler of New York. He is now in the building, and he is in one of the hallways. We have sensors that will tell us when he approaches the door.
I must say that Jerry has been very faithful in attempting to meet the obligations of the committee and has attempted to be here at least on time most of the 5 1/2 years that we have been conducting the business of this committee.
I announce the arrival of the gentleman from New York. A quorum has been constituted. The committee will come to order for the purpose of indulging in the testimony of our distinguished witnesses.
There is no secret by now that the subject matter of this hearing is the controversial executive order, a part of our Federal Government system ever since its beginnings. Everyone recognizes the necessity for utilization of the ordinary and regular order of business of the executive to issue from time to time an executive order, to put two bureaus together and to put one chief in charge of three different units. All these kinds of executive orders in the management of the executive department are to be expected, and most of them need not be subjected to the scrutiny of Congress because they are purely and technically and actually a province of the executive. We all recognize that.
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But in recent years, I would say post-World War II really, the executive order has taken on many times a substitute for, or at least perceived as such, or an end run around congressional scrutiny and/or congressional action or congressional responsibility. It is in that vein that this hearing becomes even more important because we want to try to fashion that bright line that must exist between the rudimentary executive order and the one that tramples on or attempts to trample on or is perceived to trample on the separation of powers. That is what we are about here today in this hearing.
We note, and I think the witnesses will be filling out the impression of the Chair, that executive orders like the one that President Truman issued on the railway strike and the one that President Clinton issued on striker replacement were found to be exactly what is, crossing over of the bright line. The Chair, at least this member, holds those two cases as the standard against which we should measure and can measure the assertion of executive orders.
That is as far as I can go now to lay the groundwork for this hearing, but one other caveat. One other caveat from the Chair's standpoint is that this crosses party lines; that Republican Presidents, President Bush, President Ford and President Nixon, have joined Truman and Clinton and Carter in the issuance of executive orders.
With that, I will yield the floor to the gentleman from New York for any opening statement that he wishes to render.
[The prepared statement of Mr. Gekas follows:]
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PREPARED STATEMENT OF HON. GEORGE GEKAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATVIE LAW
Today, we are pleased to consider a trio of bills that address Executive orders.
Executive orders are the best known way that the President makes official statements about how the Executive Branch of the federal government is run. In the overwhelming majority of cases, Executive orders and proclamations are an appropriate, public way of guiding the actions of our numerous federal agencies and other components of the Executive Branch.
There are occasions, however, when Executive orders and similar documents apparently have gone beyond the President's authority under federal law and the Constitution. There are allegations that Executive orders have been used, are being used, and will be used to circumvent so-called ''intransigent'' Congresses.
The process for law-making established by the Constitution means that intransigence by the Congress—just like intransigence by the President—should stop the federal government from carrying out new and different policies or programs.
I know very well that trying to change national policy is a frustrating process, so I understand the temptation to use Executive orders for a quick policy victory. But each victory notched-up this way scratches and mars the constitutional law-making process that the American people rely on.
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Every Administration in recent history has issued controversial Executive orders. There is no need to single out any particular Administration or order. We can profit from examining the issue in light of our unknown future. I believe and hope that we, as Members of Congress, can protect the institution in which we serve without wasting too much time and effort on who did what to whom in the past.
I am interested by the proposals that will be put forth by our colleagues today, in addition to the comments, ideas, and submissions of our other panelists. We will also be studying the record from the hearing held yesterday by Mr. Goss of Florida, Chairman of the Rules Subcommittee on Legislative and Budget Process.
I have advocated before that the President holds powers that are constitutional and integral to his office. For example, I resisted allowing the Congress to second-guess the use of Executive Privilege. So I am on record as favoring certain Presidential powers and treating these matters with delicacy.
I support and advocate the President's power to issue orders, proclamations, and memoranda in pursuit of agreed and established federal policies. When Executive orders become a way of doing an end-run around the Congress, or a form of administration without administrative law, I will vigorously dissent.
Mr. NADLER. Thank you, Mr. Chairman. And first let me apologize to my colleagues for delaying them and arriving here late. There are two reasons. One is post-World Series euphoria. I was at the game last night with my son. And second, the 8 a.m. Shuttle, instead of arriving at 9 a.m. at Reagan Airport, or National Airport I prefer to call it, arrived at 9:45.
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Today we look at the use of Presidential orders, which include everything from proclamations to executive orders to national security directives. We examine the important questions about the limits of both the President's inherent powers under the Constitution and the powers delegated to him by the Congress under his duty to see that the laws are faithfully executed.
There have been instances when some in this body and some among the general public thought the President had exceeded his authority, including some of President Reagan's actions in the Iran-Contra affair, President Nixon's secret war on Cambodia, and, from the other side of the aisle, the designation of national monuments or other exercises of Presidential authority. Sometimes Congress has intervened to rein in a President as in the cases of Iran-Contra and the Roosevelt, that is Teddy Roosevelt—Taft gag orders. And sometimes the courts have stepped in, as they did in the steel seizure case with respect to President Truman.
Sometimes the bright line is in the eye of the beholder. One wonders whether there is, in fact, such a clear bright line. Nonetheless, the issues surrounding the separation of powers is one certainly worth investigating and attempting to gain a greater understanding.
I would just caution my colleagues on both sides of the aisle not to attempt to politicize this question. The White House does, much as it pains me to acknowledge it, change hands from time to time. While it may be natural for members of one party to attack the actions of the President of another party, I think it might just prove helpful for us to get a nonpartisan view of this important constitutional issue.
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The examples of overreaching by Presidents that I have just cited going back to the beginning of this century are from Presidents of both parties, in cases where it would now be generally acknowledged that they did, in fact, overreach. No one knows who is going to win the next one or two or three or six Presidential elections, and no one knows—who is going to be the next President or from which party they will be, or which President is going to do something that some will think overreaches his constitutional, inherent or delegated powers.
We should try to examine this in a nonpartisan light and see what, if any, action we can take of a general nature to clarify the authority of the President and how far it extends or how far it doesn't extend.
I thank the chairman for scheduling this hearing. I look forward to hearing from the witnesses. I yield back the balance of my time.
Mr. GEKAS. I thank the gentleman.
[The prepared statement of Mr. Nadler follows:]
PREPARED STATEMENT OF HON. JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Thank you, Mr. Chairman. Today we look at the use of Presidential Orders, which include everything from proclamations to Executive Orders, to National Security Directives. We ask the important question about the limits of both the President's inherent powers under the Constitution and the powers delegated to him by the Congress under his duty to see that the laws are faithfully executed.
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There have been instances when some in this body and among the general public thought the President had exceeded this authority, including some of President Reagan's actions in the Iran-Contra affair, President Nixon's secret war in Cambodia and, from the other side of the aisle, the designation of national monuments or other exercises of Presidential authority.
Sometimes Congress has intervened to reign in a President, as in the cases in Iran-Contra and the Roosevelt-Taft Gag Orders, and sometimes the courts have stepped in, as they did in the Steel Seizure Case. Sometimes the line is in the eye of the beholder. Nonetheless the issues surrounding the separation of powers is one worth investigating and worth attempting to gain a greater understanding.
I would just caution my colleagues on both sides of the aisle not to attempt to politicize this question. The White House does, must as it pains me, change hands from time to time. While it may be natural for members of one party to attack the actions of the President of another party, I think it might just prove helpful for us to get a non-partisan view of this important constitutional issue.
I thank the Chairman for scheduling this hearing and yield back the balance of my time.
Mr. GEKAS. We will begin with the testimony of Congressman Barr.
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STATEMENT OF HON. BOB BARR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
Mr. BARR. Thank you very much, Mr. Chairman, Mr. Nadler. I very much appreciate the honor of being allowed to testify before this subcommittee on a fundamentally important issue to all of us in whatever branch of government we operate or as citizens in that capacity.
By intent, history and express language, ours is a government of limited powers. This is enshrined in the Constitution itself. It is clear from reading papers as far back as the Federalists and the constitutional debates that this was clearly the intent of our Founding Fathers. It is also clear through the history of our country at least until recent years, as the chairman has pointed out, that the notion of express limited powers befalling both the Congress and the President has been one of the underpinnings of legislative enactments and Presidential administrations. However, in recent years, not certainly beginning with this administration or the immediately preceding one or the one before that, we have drifted quite far from that fundamental principle of limited express powers, going as far back, especially in modern times, as President Teddy Roosevelt and then sort of taking off to a new level of administrative or executive branch activism.
At the same time as we have seen Congress essentially in recent years backing away from asserting its authority, we have seen more and more executive orders that have broader and broader reach; some such as the current President's issuance of an executive order last year that was breathtaking in its scope, the executive order on federalism.
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The President, thankfully, rescinded that particular executive order, although it has resurfaced and will go into effect with a new number and somewhat modified on November 1st of this year, but that executive order, sort of, personified that federalism—that is, from 1998, personified the arrogance of the executive branch, and I don't speak of any particular President here, and I mean that very sincerely, but the arrogance of the executive branch purporting to subsume to itself any power it wants to have.
Notwithstanding the fact that courts have been, as the chairman and ranking member certainly know, very hesitant to involve themselves in even reviewing much less invalidating executive orders, there is very clear judicial authority, in particular the Youngstown Sheet & Tube v. Sawyer case, which both members here today have already referenced, that the President cannot simply subsume to himself or imply powers and operate on the basis that simply if there is no express prohibition in the Constitution or law, he is free to do whatever he wants by executive order. Yet that seems to be the basis on which many of these recent executive orders have been issued.
I believe, Mr. Chairman and Mr. Ranking Member, that Congress needs to reassert both itself and the primacy of the Constitution and pass legislation that addresses this issue of executive orders being used to usurp legislative authority. The vehicle that I have proposed to do this is H.R. 3131, the ''Presidential Order Limitation Act of 1999.'' This particular piece of legislation, I have crafted very narrowly. It, simply, provides that before an executive order, called by whatever name, has prescriptive effect, it will come to the Congress, to the leaders of the House and the Senate and the chairman and ranking members of each standing committee, for 30 days, and during that time, which provides time for the Congress to take whatever action, including legislative repeal, that it might deem appropriate.
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[The bill, H.R. 3131, follows:]
106TH CONGRESS
1ST SESSION
H. R. 3131
To permit congressional review of certain Presidential orders.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 21, 1999
Mr. BARR of Georgia introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To permit congressional review of certain Presidential orders.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Presidential Order Limitation Act of 1999''.
SEC. 2. FINDINGS.
(a) POWERS OF THE PRESIDENT.—The Congress finds that the President possesses only the following powers, as set forth in the Constitution:
(1) COMMANDER IN CHIEF.—''The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States'' (article II, section 2, clause 1).
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(2) OPINION OF DEPARTMENT HEADS.—''[H]e may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices'' (article II, section 2, clause 1).
(3) REPRIEVES AND PARDONS.—''[H]e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment'' (article II, section 2, clause 1).
(4) TREATIES.—''He shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur'' (article II, section 2, clause 2).
(5) APPOINTMENTS.—''[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which may be established by Law'' (article II, section 2, clause 2).
(6) VACANCIES.—''The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session'' (article II, section 2, clause 3).
(7) CONVENING OR ADJOURNING CONGRESS.—''[H]e may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper'' (article II, section 3).
(8) RECEIVING AMBASSADORS.—''[H]e shall receive Ambassadors and other public Ministers'' (article II, section 3).
(9) COMMISSIONING OFFICERS.—''[He] shall Commission all the Officers of the United States'' (article II, section 3).
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(b) DUTY TO EXECUTE LAWS DEPENDENT ON CONGRESS.—The Congress finds that the President's constitutional duty to ''take Care that the Laws be faithfully executed'' (article II, section 3) is wholly dependent upon the enactments of the Congress and therefore is subject to such limits and oversight as the Congress may by law provide.
SEC. 3. OPPORTUNITY FOR CONGRESSIONAL REVIEW OF PRESIDENTIAL ORDERS.
(a) TRANSMISSION OF PRESIDENTIAL ORDERS TO CONGRESS.—The President shall transmit a copy of each Presidential order to—
(1) the Speaker of the House of Representatives;
(2) the President pro tempore of the Senate; and
(3) the chairperson and ranking member of each standing and select committee of the House of Representatives and the Senate.
(b) TIME BEFORE TAKING EFFECT.—Except as provided in subsection (c), to the extent a Presidential order is issued under authority granted by any enactment of the Congress, such order shall not take effect earlier than 30 days after its transmission pursuant to subsection (a), during which time the Congress may review and take any action it deems appropriate with regard to such order (or portion thereof).
(c) EXCEPTION FOR EMERGENCIES.—The time limitation in subsection (b) shall not apply in the case of a Presidential order describing an emergency which requires the order to take effect at an earlier time to—
(1) protect the national security;
(2) prevent physical injury to any individual;
(3) provide disaster relief; or
(4) safeguard an American foreign policy interest.
(d) DEFINITION OF PRESIDENTIAL ORDER.—In this Act, the term ''Presidential order'' means—
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(1) any Executive order, Presidential proclamation, or Presidential directive; and
(2) any other Presidential or Executive action by whatever name described purporting to have prescriptive effect that is issued under the authority of the President or any other officer or employee of the executive branch.
(e) LIMITATION OF APPLICATION.—This Act does not apply in any circumstance in which the Constitution prevents its application.
Mr. BARR. I don't think that this legislative measure will run afoul of prior court decisions that have invalidated the legislative veto problem because we are simply saying that the Congress has to, other than in an emergency—and I provide for emergency executive orders that don't have to come to Congress first for the 30-day cooling off or review period—it simply provides that they will come to the Congress, and it doesn't require Congress to do anything. It does not prohibit the executive order from going into effect unless Congress does something, which is the essence of the invalidated legislative veto.
So we have, Mr. Chairman, Mr. Ranking Member, tried very hard in H.R. 3131 to put some teeth into proper legislative prerogatives, but without casting a net too broadly. And I would urge the committee's very careful consideration of this legislative proposal.
I appreciate the chairman indicating that my remarks, which are much more extensive, be included in the record, and I would be more than happy to answer whatever questions the chairman and ranking member might have.
[The prepared statement of Mr. Barr follows:]
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PREPARED STATEMENT OF HON. BOB BARR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
Mr. Chairman, thank you for holding these hearings today and allowing me to testify. While this is far from the most sensational issue in Washington, you would be hard pressed to find a more important, long-term use of your time. The use and abuse of Executive Orders goes straight to the issue of separation of powers, which is the fundamental backbone on which the rest of our governmental structure is built.
I am here today to testify on behalf of the Executive Order Limitation Act of 1999, H.R. 3131, which will help restore the original principles of the Framers, regarding the power of the President to issue executive orders.
Presidents have used executive orders throughout our history, beginning with George Washington. Those early executive orders were nothing more than internal memoranda, through which the President communicated with staff and department heads, detailing how the Executive branch would implement a new law or regulation. Over the years, however, this power has mutated into a pervasive pattern of activity that seriously threatens separation of powers between the Executive and Legislative branches of government.
In recent years, executive orders have wandered far from their original and limited purpose of simply exercising the inherent powers of the presidency and enforcing laws already passed by Congress. This is not a Democrat sin or a Republican sin. Presidents of both parties have, to varying degrees, misused executive orders.
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From the earliest days of our Republic, misuse of executive orders as a means of consolidating legislative and executive authority in the Executive Branch was a concern. James Madison called the accumulation of executive and legislative power in the same branch of government, ''the very definition of tyranny.''
The term ''Executive Order'' does not appear in the Constitution; it is implied, but only as a limited administrative power. Executive order authority derives from the President's power, defined in Article II, Section 3, to ''take care that the laws be faithfully executed.'' However, ''laws'' obviously and necessarily means laws that are already passed, not ''laws'' an executive order purports to create.
The validity of executive orders has often been questioned, but neither Congress nor the Supreme Court has ever definitively defined the extent of the power. Indeed, the courts have rarely reviewed, much less invalidated, executive orders.
Only in recent decades have presidents repeatedly used executive orders to create policy, and thereby circumvent the powers of Congress. President Clinton has issued more than 275 separate executive orders since coming into office. Many of these orders clearly bypass the legislative branch of our government, and create policy for the United States. This presidential power was not meant to be used as a blank check; rather as a narrow, administrative regulatory tool for running an efficient government. Unfortunately, President Clinton is simply expanding a precedent for setting policy by executive order that has been established in previous Administrations.
I have introduced the Executive Order Limitation Act of 1999, because the use of executive orders by modern presidents, including but not limited to President Clinton, constitutes an assault on the separation-of-powers doctrine that forms the underpinning of our government. It is relevant and timely this Subcommittee review these matters and include my bill in this very important hearing.
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Anyone who doubts the dangers of unchecked executive orders need look no further than Franklin D. Roosevelt's presidency. The notorious Executive Order 9066, under which some Japanese-Americans were interned during World War II, was subsequently upheld by the Supreme Court as an exercise of President Roosevelt's war power. To avoid similar miscarriages of justice, I urge your support of my legislation, which formally institutionalizes Congress' clear power to reject or modify executive orders that overstep executive authority.
Specifically, my legislation requires the President to provide Congress with copies of any executive order. It gives Congress a 30 day window within which to reject or modify the proposal. However, the legislation includes specific exemptions for orders that enforce inherent presidential powers, or which deal with legitimate emergencies.
The bill is narrow and carefully crafted; it respects separation of powers. However, it addresses a very real and immediate problem with a real solution; not just words, or a ''preference'' by Congress. A resolution will do nothing to address the usurpation of legislative powers by the executive; only a bill will do that. If the President has no desire or plans to continue this unconstitutional practice, he'll sign this bill, because it does nothing to restrict his lawful, legitimate power. If the President vetoes it, then we know he has an ulterior motive; one that clearly envisages a continued power grab at the expense of the Congress. Now is the time to stand up for the legislative branch, before it is too late.
As you consider this legislation, I hope you will remember that legal precedents do not have party affiliations attached to them. If we allow abuses by one president to continue unchecked, the next occupant of the office will inherit increased power. I urge you to draw the line now, and reassert the clear power possessed by Congress—not the President—to decide policy, which is the essence of the legislative power. What we're seeing today is the reverse of what would happen if Congress set up its own regulatory agencies and started enforcing the laws it passes. The President would not stand idly by if we so usurped his powers, and we should not do so as he usurps ours.
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Mr. GEKAS. We thank the gentleman.
Do you want to answer some questions now and then be dismissed?
Mr. BARR. I hate to draw on the good offices of my two colleagues here. I do have another hearing with Chairman Burton that is rather timely.
Mr. GEKAS. I only have one question, and I, on my part, would allow you to leave, and that is the bright line about which the Chair spoke in the opening remarks. The one that is always visible or invisible, depending on how one views it can be drawn, can it not, through the Constitution—or through the Supreme Court language in the two cases that we have before us? For instance, in the Truman case, the bright line, as far as I was concerned, was the seizure of property without constitutional authority, which was the essence of that executive order; that the President by that executive order seized property. That is an extremely bright line, so if we look at any executive order in the future in which property is seized, then a case can be made that that ought to be struck down, if not by courts—well, by the courts, of course, but by perhaps legislative action that would foresee the seizing of property as prohibited and, therefore, subject to some statutory law. Do you have any comments on that?
Mr. BARR. I think the chairman is correct. The seminal case of Youngstown Sheet & Tube in 1952 laid out very, very broad, but very relevant language, saying in essence that, ''the President's power for the executive order must arise either from an act of Congress or from the Constitution itself,'' furthermore, that the President claimed that such authority as he was attempting to exercise to seize property should be implied from the aggregate powers in the Constitution, which was the argument the President made, was invalid. That is very broad language, but very, very accurate language reflecting the intent of the framers of our Constitution.
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The later case that the chairman refers to, Chamber of Commerce v. Reich, which was the case involving the executive order that tried to circumvent Congress'—the failure of Congress or the refusal of Congress to pass striker replacement, while much more narrow, stands for the same proposition. The Court there, again, declined, as it did in the 1952 case, to allow the President to imply powers. While these two cases are exceptions to the general rule, the Supreme Court and our Federal courts generally do not interfere in the executive branch and are very loathe to involve themselves in even taking cases involving executive orders, and from time to time they have. These two cases do correctly stand very clearly for the proposition that there is indeed a bright line beyond which even a hesitant court will hold the executive branch.
Mr. GEKAS. Exactly.
Any questions of Mr. Barr?
Mr. NADLER. Yes. I am just looking at your bill. As far as I can tell, the only real effect your bill would have, aside from the findings which may be a little too drastic in that they seem to say that the only powers the President has, are those specified in the Constitution. You have rather short-shrifted powers derived by delegation from Congress. But aside from that, as far as I can tell, the only effect that your bill would have would be to say that all Presidential orders must be transmitted to the leaders of the House and the Senate, and it can't take effect for 30 days except for emergency situations. Is that correct?
Mr. BARR. That is correct, Mr. Nadler.
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Mr. NADLER. Now, I am just reading the staff memo. A 1988 GAO study found 1,042 Presidential directives since 1961 of which 247 have been publicly released. The balance or many of the balance were related to national security or national security decision directives directed to the CIA or the National Security Agency or the Armed Forces, and presumably were confidential. Would your bill require that they be public?
Mr. BARR. Absolutely not. That would not be my intent, Mr. Nadler. I would intend, through, for example, section 3(c), which provides for protection of national security, those orders that would relate to national security, and I would certainly anticipate that there would be and would urge sufficient legislative language to make clear that would not be the intent. However, if, in fact, there were an executive order that fell within categories that we believe ought to be transmitted, certainly there could be and should be a mechanism to allow for the nondisclosure of that.
Mr. NADLER. I would point out two things, sir. One, 3(c) in your bill says the time limitations shall not apply. It doesn't say the public transmittal that it has to be public shall not apply. You might want to take a look at that. Presumably, secret directives to the NSA or the CIA or the armed services not only should take effect immediately, but shouldn't be publicly released. I think that would be your intent. It is not what the bill says. You might want to take a look at that.
Secondly, there is a basic quandary here. I am not sure your bill or any bill can address it here. It is not meant as criticism of your bill. It is just a basic quandary, and that is if a President decides that some directive should be secret as affecting national security, maybe it shouldn't, maybe it doesn't affect national security, but he says it does, how will one ever know to judge it if it is not made public? That is the basic problem of secrecy that we inherited from the Cold War so far, but I am not sure this bill or any bill you could write would deal with that situation.
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Mr. BARR. The ranking member, as always, raises a very valid point. It might be that whatever language, if we do decide as a Congress to address this legislatively, that we specifically address the issue of secrecy. I think it could be dealt with simply by providing a mechanism, that I think would be implied here, that such matters as are properly classified ought not to be made public, simply because of this mechanism.
Mr. NADLER. Or perhaps it would be reported to the chairperson of the Armed Services Committee maybe?
Mr. BARR. And Intelligence Committee. That might be the way to do it. That would be a consideration.
What I have tried to do, Mr. Nadler, and our office has worked for many months on this issue, it would be very easy to draft up a piece of legislation that simply purported to invalidate executive orders or required preapproval by the Congress or whatnot. I have resisted that and tried to come up with language here that we worked with legislative counsel exhaustively and extensively on, so that we don't, in trying to address this problem in the Congress, fall prey to the same problem that we see in the executive branch that we are trying to address, and that is erosion of separation of powers.
It is not my intent to interfere with separation of powers. We are trying to protect it. We are not requiring the President to get preapproval by the Congress. We are simply saying here that Congress has a legitimate responsibility, and let's force Congress to exercise that responsibility.
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Mr. NADLER. Let me ask you one more question. I think this goes to the heart of the bill. The President issues an order, whether it is a national security directive or executive order, whatever these orders may be, the President issues an order, and that order either is valid pursuant to his powers delegated by Congress or by the Constitution, or it is not. That is one question. Presumably, if someone thinks it is not valid, that person can go to court and challenge it, and the court will decide it is or it isn't.
The second situation, the President issues an order, the validity is not questioned, or if it is questioned, it is decided it is valid, but as a matter of policy Congress doesn't like it. Congress has the authority in that case to overrule it by law. Of course, the President can veto it. We can override it, by a two-thirds vote. That is the system. What is the purpose of the 30-day delay? If the action is invalid in that it is beyond the President's power, a 30-day delay doesn't do any good, but only a court challenge will eliminate that. Congress has no power to declare something unconstitutional, though we seem to have adopted that recently, but it has no real power to do so. It is up to the courts. So if it is invalid, a 30-day delay doesn't stop it. Only a court challenge will stop it. And if as a matter of policy Congress doesn't like it, what is the point? Thirty days would seem to invade the President's valid power, if he had that valid power, to execute the law as it is, and if Congress wants to change it, Congress has that privilege.
Mr. BARR. The ranking member, of course, is right, and there are two ways to address an executive order that is unconstitutional. One is through a court challenge, through an appropriately aggrieved party that has standing, such as happened in the two cases we have cited here, or Congress. Congress has plenary authority to overrule or to provide for a legislative remedy to address any defects that it sees in any executive order at any time. Congress certainly has that authority.
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I think perhaps, Mr. Nadler, that this piece of legislation that I have proposed here, which is, I think, the minimal that we address, at least to some extent this problem is borne out of a sense perhaps of frustration with looking at the unwillingness perhaps of Congress over the years to stand up and address this problem and reassert its proper role.
Mr. NADLER. But if Congress is not willing——
Mr. BARR. This simply gives it the opportunity—forces it to address these issues. Now, if it wants to do nothing when it sees a proposed order come to it, that is fine. We know where Congress stands.
Mr. NADLER. I must say, Congressman, I could see the value in a requirement for notification, to appropriate committee chair people in the case of secret directives so Congress knows what is going on. But again, if it is a question of his legal authority to do it, the proper agency is the courts. If the Congress thinks it is not—maybe we should do something about standing, if there is a standing problem, to bring that into court. But if Congress thinks that the President's action is constitutionally invalid, Congress has no power to do anything about it other than to have someone go to court. If Congress thinks that it is wrong, I mean not invalid, but just wrong, Congress can do legislation.
I don't know what the 30 days does. It doesn't mandate Congress to take action. If what the President did is very popular, but in the opinion of Congress wrong, and Congress doesn't have the gumption to get up and pass action that says we don't want this, then your 30 days isn't going to do anything. And if Congress does have the gumption, what is the 30 days? I don't see the necessity, the point, of the 30 days either way. What does it do?
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Mr. BARR. It brings the issue into focus. It requires both parties, both branches of government, to focus on this and to recognize that there has to be some sort of limitation on what the executive branch is doing.
Now, if Congress sees an executive order, even if it is beyond the 30 days, it can always take action, that is absolutely correct, or it can take action before the 30 days. It can take action now without this legislation. But the problem that I was trying to come to—or address in drafting this particular piece of legislation this way, I am not sure that it would be constitutional for Congress to propose that the executive—proposed executive order come to the Congress in a way that requires Congress to do something. That might very well run afoul of the separation of powers doctrine, as it has in previous, ''legislative veto-type pieces of legislation.''
So the ranking member is absolutely correct. In a sense, this legislation does not cure the problem, but it does legislatively require Congress, I think, as a practical matter, perhaps not as a legal matter, but as a practical matter, to address these issues, and it also forces the executive branch to send to Congress its proposed order so Congress has an opportunity, full opportunity perhaps, which they simply haven't exercised up to this point, but they still have technically that opportunity now, to do it in a way that focuses legislative and executive branch attention on the importance of making sure that these have some sort of review, so that we can avoid crises later on.
Mr. NADLER. Thank you very much.
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Mr. BARR. Thank you, Mr. Nadler, and thank you, Mr. Chairman.
Mr. GEKAS. You are dismissed with our gratitude, Bob.
Mr. BARR. Thank you, sir.
Mr. GEKAS. Congressman Metcalf.
STATEMENT OF HON. JACK METCALF, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON
Mr. METCALF. Thank you, Mr. Chairman and members of the subcommittee. I consider this to be the most important statement that I have made in Congress. I think this is a very important issue. Before coming to Congress, I taught history and mathematics for 30 years in my home State. It doesn't take a historian, a lawyer or even a politician to realize that Congress has ceded to the executive branch a fundamental constitutional duty. I am alarmed by this action and by what I perceive to be a culture of deference within the Capitol. By that, I mean we allow the President to in effect legislate through executive orders and Presidential proclamations, which Congress tolerates, and I find this trend deeply disturbing.
The Framers expected national policy to be the result of open and full debate, hammered out by the legislative and executive branches. They believed in careful delineation conducted in a representative assembly, subject to all the checks and balances that characterize our constitutional system. Having broken with England in 1776, they rejected government by monarchy and one-man rule. Nowhere in the Constitution is the President specifically given the authority to issue any of these directives. The Founders specifically placed all legislative power in the Congress. In the legislative veto decision in 1983, that is INS v. Chadha, the Supreme Court insisted that congressional power be exercised in accordance with a single, finely-wrought and exhaustively considered procedure. The Court says that the records in the Philadelphia Convention and the State ratification debates provide, ''unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.''
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If Congress is required to follow this rigorous process, how absurd it is to argue that a President can accomplish the same result by unilaterally issuing an executive order or proclamation. When President Clinton issued his executive order on striker replacements, he attempted to do what had been denied him by the regular legislative process. That order was struck down by the Federal courts. However, this is only the second example in the history of the Republic of the courts practicing judicial activism and nullifying a Presidential order. More often, the courts fail to address these issues.
The American Heritage Rivers Initiative, Executive Order 13061, is another example of our current President attempting to take over legislative powers of Congress. The Rivers Initiative was born when President Clinton decided that he could take governing authority away from States and localities. The President's executive order required States to give up certain rivers to Federal control, and it was a threat to citizens' private property rights. The Rivers Initiative also gave the President the power to reprogram government funds and spend taxpayer money on projects without congressional approval.
In my district, I vigorously objected to this, and I was able to have the Snohomish River removed from Federal control under the Heritage River. I don't know how we did that, and I don't know what authority I had, but I just yelled loud enough, and we got it taken off.
It is a fact that the Constitution requires Congress to first approve all revenue spending following an oversight hearing. The Committee on Resources issued a report which criticized the Executive Order 13061, the Rivers Initiative, as a violation of the doctrine of separation of powers by completely bypassing the Congress.
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Failing to address this issue through the legislative process, Members of Congress turned again to the courts, which then dismissed the case saying Members did not have standing to maintain their suit.
In addition, when President Clinton issued his Presidential proclamation establishing a national monument in Utah, he again tried to do what he had been unable to achieve through Congress. That proclamation still stands, and Congress has the right to repeal it, but it hasn't done so.
These executive orders and proclamations skirt the constitutional process, offend the values announced by the Court in the legislative veto case, and do serious damage to our commitment to representative government under the rule of law.
It is important to note that our current President is not the only one at fault. I am criticizing many of the Presidents. A steady increase in controversy over Presidential directives has arisen since FDR's administration. The use of these directives is a constitutional issue, and I am not distinguishing between Republican or Democrat Presidents. They all have been guilty, as have those of us in Congress who sometimes find it politically convenient to allow the President to wield such broad power just with a stroke of a pen.
Mr. Chairman, at this time I would ask that Louis Fisher's CRS Report for Congress, which summarizes controversial executive orders and proclamations from 1933 to 1999, be inserted in the record.
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Mr. GEKAS. Without objection, it will be so included.
[The information referred to follows:]
CRS REPORT FOR CONGRESS—JULY 23, 1999. EXECUTIVE ORDERS AND PROCLAMATIONS, 1933–99: CONTROVERSIES WITH CONGRESS AND IN THE COURTS
—Louis Fisher, Senior Specialist in Separation of Powers, Government and Finance Division
SUMMARY
From the administration of George Washington to the present, Presidents have issued executive orders and proclamations to establish uniform policies within the executive branch. Often these actions have impacts on the private sector and on the prerogatives of Congress, provoking litigation and legislative action. Many of these controversial executive orders and proclamations are described in this report, which covers the period from the presidencies of Franklin D. Roosevelt to Bill Clinton. Also included are major congressional studies on executive orders and proclamations.
EXECUTIVE ORDERS AND PROCLAMATIONS, 1933–1999: CONTROVERSIES WITH CONGRESS AND IN THE COURTS
Presidents issue executive orders and proclamations to establish uniform policies to be followed by executive departments and agencies.(see footnote 1) At times these instruments can affect private citizens and encroach upon congressional prerogatives, provoking litigation in the federal courts and efforts by Congress to revoke or restrict the presidential action.
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This report describes many of the executive orders and proclamations issued by Presidents from 1933 to the present time that have provoked such controversy. The inauguration of Franklin D. Roosevelt in 1933 is often taken as a convenient reference point for the expansion of presidential activism and power. Objections to the use of these presidential initiatives have been directed at both Democratic and Republican administrations, with checks coming from the courts, Congress, and the public.
President Roosevelt (1933–45)
Economic Recovery. During his first 15 months in office, President Roosevelt signed 674 executive orders as part of his administration's effort to stimulate economic recovery. Many of these administrative regulations were needed to implement statutory policy. In its first year, the National Recovery Administration (NRA) approved hundreds of codes and released 2,998 administrative orders that approved or modified the codes. Almost 6,000 NRA press releases, some of them having a legislative effect, were issued during this period. 59 A.B.A. Rep. 553–54 (1934). So many orders were issued that departmental officials were often unaware of their own regulations. At one point the government discovered that it had brought an indictment and taken an appeal to the Supreme Court without realizing that the portion of the regulation on which the proceeding was based had been eliminated by an executive order. Panama Refining Co. v. Ryan, 293 U.S. 388, 412–13 (1935).(see footnote 2)
Congress created the NRA to obtain from industrial and trade associations a variety of regulations designed to minimize competition, raise prices, and restrict production. If the President regarded the codes as unacceptable, he could prescribe his own and enforce them as law. This regulatory system was challenged in court.
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In the first NRA case, the Supreme Court struck down a section of the statute governing controls on petroleum production because it failed to establish a ''criterion to govern the President's course.'' The Court said that Congress ''has declared no policy, has established no standard, has laid down no rule.'' Panama Refining Co. v. Ryan, 293 U.S. at 430. The rest of the NRA was invalidated in Schechter Corp. v. United States, 295 U.S. 495 (1935). These decisions also struck down the executive orders that President Roosevelt had issued to implement the NRA.
Establishing Defensive Sea Area. In 1941, President Roosevelt issued Executive Order 8684 to establish a defensive sea area around Cuba Island, Cuba. Residents of the island claimed in court that the order was illegal in extending the defensive sea area out to the three mile limit. In upholding the order, a district court said that Congress could have revoked the order had it wished to do so. Feliciano v. United States, 297 F.Supp. 1356, 1358 (D. Puerto Rico 1969). That decision was affirmed by the First Circuit. Feliciano v. United States, 422 F. 2d 943 (1st Cir. 1970), cert. denied, 400 U.S. 823 (1970).
Nondiscrimination. In 1941, President Roosevelt issued Executive Order 8802 to announce the policy of encouraging full participation in the national defense program by all U.S. citizens ''regardless of race, creed, color, or national origin.'' At the same time, he created a Committee on Fair Employment Practice (FEPQ to implement this policy for defense contracts. 6 Fed. Reg. 3 109 (1941). Two years later he issued another executive order, redefining the powers and duties of the FEPC. 8 Fed. Reg. 7183. Opposition to the FEPC came from Members of Congress who objected to the creation of agencies by executive order (see Russell Amendment below) and from Southern conservatives who were offended when the committee held hearings in Birmingham, Alabama.(see footnote 3) In 1945, Congress used a funds cutoff to terminate the functions and duties of the committee, putting it out of business as of June 30, 1946. 59 Stat. 473 (1945). Future Presidents would use executive orders to create similar committees to implement nondiscrimination clauses in federal contracts.
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Japanese-Americans. In 1942, President Roosevelt issued Executive Order 9066, requiring the transfer of more than 100,000 Americans of Japanese descent (about two-thirds of them natural-born U.S. citizens) from their homes to ''relocation centers.'' Roosevelt acted in part on ''the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy.'' 7 Fed. Reg. 1407 (1942). With no evidence of disloyalty or subversive activity, and without the benefit of any form of hearing, these individuals were imprisoned solely because of their ancestry. Congress enacted legislation ratifying the executive order. 56 Stat. 173 (1942).
This treatment of Japanese-Americans became the subject of extensive litigation. The first issue to reach the Supreme Court concerned a curfew order directed against Japanese-Americans, upheld by a unanimous Court. However, concurring in this decision, Justice Murphy said that the curfew action ''bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe.'' Hirabayashi v. United States, 320 U.S. 81, 111 (1943). The following year, in a 6 to 3 decision, the Court upheld the exclusion of Japanese Americans and their relocation to detention camps. In one of the dissents, Justice Murphy protested that the exclusion order resulted from an erroneous assumption of Racial gulf' found in the commanding general's report, which referred to all individuals of Japanese descent as ''subversives'' belonging to ''an enemy race'' and whose ''racial strains are undiluted.'' Justice Jackson, in another dissent, commented that ''here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents to whom he had no choice, and belongs to a race from which there is no way to resign.'' Korematsu v. United States, 323 U.S. 214, 243 (1944).
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On February 20, 1976, President Gerald Ford issued a proclamation declaring the internment of Japanese-Americans ''wrong'' and rescinding President Roosevelt's executive order. Proclamation No. 4417, 41 Fed. Reg. 7741 (1976). Congress enacted legislation in 1988 acknowledging the fundamental injustice of the evacuation, relocation, and internment of Japanese-Americans and providing restitution payments to camp survivors and their families. 102 Stat. 903 (1988).
Russell Amendment. By 1944, uneasy with the expansion of executive power, Congress used the power of the purse to prevent President Roosevelt from using executive orders to create agencies and carry out agency activities that had no legislative authority. Senator Richard Russell added to a bill language that prohibited the use of any appropriation or find to pay the expenses of ''any agency or instrumentality including those established by Executive Order after such agency or instrumentality has been in existence for more than one year'' if Congress has not appropriated money specifically for it or authorized the expenditure of funds by it. 58 Stat. 387, sec. 213 (1944). During the debate, Russell noted: ''No person who is interested in maintaining the powers of the Congress could fail to be concerned with the authority which is being asserted by the boards, bureaus, and agencies which have been created by fiat or by proclamation.'' Although Russell was a Democrat, like Roosevelt, he said that the President was not vested ''with one scintilla of authority to create by an Executive order an action agency of Government without the approval of the Congress of the United States.'' Reviewing the language of one of Roosevelt's executive orders, Russell concluded that ''it has not a leg to stand on or even a finger with which to catch hold of anything.'' 90 Cong. Rec. 6022 (1944).
The Russell amendment remains part of current law (31 U.S.C.§ 1347), although Presidents have occasionally circumvented it. President John F. Kennedy issued an executive order to establish the Peace Corps. Not until seven months later did Congress appropriate funds for the agency. In the meantime, Kennedy founded Peace Corps activities by drawing more than a million dollars from a contingency fund created by the Mutual Security Act. Executive Order 10924, 26 Fed. Reg. 1789 (1961); 75 Stat. 721 (1961); H. Rept. No. 1115, 87th Cong., 1st Sess. 66 (1961).
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President Truman (1945–53)
Executive Branch Loyalty. President Truman issued Executive Order 9835 in 1947 on the premise that ''maximum protection must be afforded the United States against infiltration of disloyal persons into the ranks of its employees, and equal protection from unfounded accusations of disloyalty must be afforded the loyal employees of the Government.'' 12 Fed. Reg. 1935 (1947). This executive order required a loyalty investigation of every person entering the federal executive branch. Individuals subject to these investigations were entitled to hearings before departmental loyalty boards. Objections were raised regarding the lack of basic due process protections, such as the opportunity to confront and cross-examine secret accusers. Nonetheless, Executive Order 9835 was upheld by the D.C. Circuit and affirmed by the Supreme Court on a tie vote. Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), afrd per curium by an equally divided Supreme Court, 341 U.S. 918(1951).
Within a few years, the Supreme Court began to place restrictions on administration removals of so-called security risks. In 1955, the Court held that the removal of a special consultant to a federal agency by the Civil Service Commission's Loyalty Review Board, established under Executive Order 9835, was invalid because the board's action was beyond its jurisdiction under the executive order and marked an unwarranted assumption of power. Peters v. Hobby, 349 U.S. 331 (1955). Two years later, the Court ruled that the discharge of a Foreign Service officer, based on Executive Order 983 5 and Executive Order 1024 1, was invalid because it violated State Department regulations that were binding on the secretary. Service v. Dulles, 354 U.S. 363 (1957). These disputes over the application of executive orders to national-security dismissals would continue into the Eisenhower administration.
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Nondiscrimination. In 1948, President Truman issued Executive Order 9980 to create an administrative structure for fair employment practices within the federal government. Each department would designate a Fair Employment Officer to implement the principle that federal employment be without regard to race, color, religion, or national origin. 13 Fed. Reg. 4311 (1948). Efforts were made to recreate the FEPC, either by executive order or by legislation. However, action by executive order seemed blocked by the Russell amendment and there was no congressional support for legislative action. In 1951, President Truman issued Executive Order 10308 to improve efforts for obtaining compliance with the nondiscrimination provisions of federal contracts. To carry out the executive order, he created a Committee on Government Contract Compliance. The 11-member committee was composed of representatives from participating agencies, including the Defense Department and the Department of Labor. 16 Fed. Reg, 12303 (1951).
To avoid problems with the Russell amendment, President Truman relied on statutory language adopted by Congress in 1945, stating that appropriations would be available for the expenses of committees, boards, or other interagency groups ''engaged in authorized activities of common interest to such departments and establishments and composed in whole or in part of representatives thereof who receive no additional compensation by virtue of such membership.'' 59 Stat. 134, sec. 214 (1945).
Desegregation in the Armed Forces. Also in 1948, President Truman issued Executive Order 9981 to assure equality of treatment and opportunity in the armed services without regard to race, color, religion, or national origin. The policy was to be put into effect ''as rapidly as possible.'' 13 Fed. Reg. 4313 (1948). Progress went well in the Air Force and the Navy, but was much slower in the Army. Full desegregation did not take place until 1954, in the Eisenhower administration.
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Patent Policy. In 1950, President Truman issued Executive Order 10096 to provide a uniform patent policy for the federal government with respect to inventions made by government employees. 15 Fed. Reg. 389 (1950). Decades later, in 1976, a district court held that President Truman lacked authority-either statutory or constitutional-to promulgate the executive order, and therefore violated the doctrine of separation of powers. Kaplan v. Johnson, 409 F. Supp. 190, 202–06 (D. Ill. 1976). However, that decision was overturned by an appellate court, which held that President Truman had statutory authority to issue the executive order. The court also noted: ''Since the promulgation of Executive Order 10096 on January 23, 1950, there has been Congressional acquiescence in the order by the fare of Congress to modify or disapprove it.'' Kaplan v. Corcoran, 545 F.2d 1073, 1077 (7th Cir. 1976).
Steel Seizure. In 1952, President Truman faced a nationwide strike of steelworkers, threatening his ability to prosecute the war against North Korea. He reacted by issuing Executive Order 10340, directing the secretary of Commerce to take possession of and operate the plants and facilities of 87 major steel companies. As justification for averting a work stoppage, the order referred to Truman's Proclamation 2914 of December 16, 1950, declaring the existence of a nationwide emergency and justifying the dispatch of American soldiers to Korea. The order called steel ''indispensable'' for producing weapons and war materials. 17 Fed. Reg. 3139 (1952).
In the order, President Truman cited as authority ''the Constitution and laws of the United States, and as President of the United States and Commander-in-Chief of the armed forces of the United States.'' In court, however, the Justice Department argued that he had acted solely on inherent executive power without any statutory support. Assistant Attorney General Homer Baldridge told federal Judge David A. Pine that courts were powerless to control the exercise of presidential power when directed toward emergency conditions.(see footnote 4)
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Initially, President Truman advocated a broad reading of executive power. When asked at a news conference if his inherent powers permitted him to seize newspapers and radio stations, he replied: ''Under similar circumstances the President of the United States has to act for whatever is for the best of the country.'' Public Papers of the Presidents, 1952, at 273. Recognizing that this broad claim of power had backfired with the public, Truman later stated that presidential powers are derived from the Constitution and are limited by provisions in the Constitution, ''particularly those that protect the rights of individuals.'' Id. at 301.
Judge Pine rejected the Justice Department's analysis of inherent presidential power. In holding Truman's seizure of the steel mills to be unconstitutional, Judge Pine acknowledged that a nationwide strike could do extensive damage to the country but believed that a strike ''would be less injurious to the public than the injury which would flow from a timorous judicial recognition that there is some basis for this claim to unlimited and unrestrained Executive power, which would be implicit in a failure to grant the injunction.'' Youngstown Sheet & Tube Co. v. Sawyer, 103 F.Supp. 569, 577 (D.D.C. 1952). The Supreme Court, split 6 to 3, sustained Judge Pine's decision. Youngstown Co. v. Sawyer, 343 U.S. 579 (1952). Each of the five concurring Justices wrote separate opinions, advancing different views of the President's emergency power. Only Justices Black and Douglas insisted on specific constitutional or statutory authority to support presidential seizure of private property. The other four concurring Justices (Frankfurter, Jackson, Burton, and Clark) and the three dissenters left presidential power more open-ended in responding to future emergencies.
Submerged Lands. In 1946 and again in 1952, President Truman vetoed bills that conceded title of offshore lands to the states. A veto override failed in 1946; there was no override attempt in 1952. On January 16, 1953, with a few days remaining in his administration, President Truman issued Executive Order 10426, setting aside submerged lands of the continental shelf as a naval petroleum reserve. 18 Fed. Reg. 405 (1953). As part of the Submerged Lands Act of 1953, Congress revoked Executive Order 10426 ''insofar as it applies to any lands beneath navigable waters as defined in section 2 hereof '' 67 Stat. 33, sec. 10 (1953).
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President Eisenhower (1953–61)
Executive Branch Loyalty. In 1953, President Eisenhower issued Executive Order 10450 to provide uniform standards and procedures for suspending and removing employees on national-security grounds. 18 Fed. Reg. 2489 (1953). Kendrick Cole was removed from his position with the Department of Health, Education, and Welfare after an administrative investigation disclosed that he had associated with groups on the attorney general's ''subversive Est.'' The removal was taken pursuant to Executive Order 10450. The Court held that the failure of the executive order to state explicitly what was meant by some loyalty determinations was the fault of the federal government and any ambiguity should be resolved against the government. Moreover, the Court decided that the term ''national security,'' as used in the statute supporting the executive order, related only to activities directly concerned with the protection of the nation from internal subversion or foreign aggression. Cole v. Young, 351 U.S. 536 (1956).
In 1959, the Court held that the security-related dismissal of an Interior Department employee, based partly on Executive Order 10450, was illegal and he was entitled to reinstatement. Vitarelli v. Seaton, 359 U.S. 535 (1959). In that same year, the Court reviewed the case of a general manager of a private corporation who had been discharged from his job after administrative hearings by the Defense Department charged him with communist associations and sympathies. The Court held that neither Executive Order 10290 (issued by President Truman in 195 1) nor Executive Order 10501 (issued by President Eisenhower in 1953)-both dealing with the safeguarding of official information-empowered any executive agency to fashion security programs that deprived civilian employees of continued employment without an opportunity to challenge effectively the evidence and testimony upon which an adverse security detennination might rest. Greene v. McElroy, 360 U. S. 474 (1959).
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Nondiscrimination. In 1953, President Eisenhower issued Executive Order 10479 to promote equal opportunity for all qualified persons employed or seeking employment on government contracts. He established a Government Contract Committee to carry out more effectively the nondiscrimination provisions of government contracts. 18 Fed. Reg. 4899 (1953). In 1954, he issued Executive Order 10557 to strengthen the nondiscrimination policy. 19 Fed. Reg. 5655 (1954). In 1955, he issued Executive Order 10590 to establish the President's Committee on Government Employment Policy. The objective was to assure that federal employment be open to all without regard to race, color, religion, or national origin. 20 Fed. Reg. 409 (1955).
Tariff Duties. In 1955, President Eisenhower issued Proclamation 3108 to promulgate rates of duty for certain imported bicycles. 20 Fed. Reg. 6113 (1955). The U.S. Customs Court held that the President could not promulgate rates different from those found and recommended by a majority of the Tariff Commission. He was limited, by law, to accepting or rejecting the commission's findings and records. Schmidt Pritchard & Co. v. United States, 167 F.Supp. 272 (Cust. Ct. 1958). The Court of Customs and Patent Appeals affirmed, holding that ''insofar as Presidential Proclamation No.3018 sets a rate of duty on the class of bicycles here in issue other than that recommended by the Tariff Commission, it exceeds the authority delegated to the President and such portion of the proclamation is void.'' United States v. Schmidt Pritchard & Co., 47 C.C.P.A. 152, 163 (1960), cert. denied, 364 U.S. 919 (1960)..
Little Rock. In 1957, Governor Orval Faubus defied three court orders to integrate the Little Rock Central High School. Mobs gathered in front of the school to prevent the court orders from being carried out. On September 23, President Eisenhower issued Proclamation 3204, calling upon the mob to disperse. When that proclamation was not observed, on the following day he issued Executive Order 10730 to announce his decision to send in armed troops to prevent the obstruction of justice. 22 Fed. Reg. 7628 (1957). In 1958, after calling a special term in August, the Supreme Court affirmed the lower court orders in the Little Rock crisis. Cooper v. Aaron, 358 U.S. 1 (1958).
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House Committee Print. In December 1957, the House Committee on Government Operations published a committee print entitled ''Executive Orders and Proclamations: A Study of a Use of Presidential Powers.'' The committee print analyzed the statutory and constitutional bases affecting executive orders and proclamations, provided an historical overview, and summarized the leading court cases.
President Kennedy (1961–63)
Federal Personnel Policy. In 1962, President Kennedy issued Executive Order 10988 setting forth certain policies for executive officers and agencies in dealing with federal employees and the organizations representing them. 27 Fed. Reg. 551 (1962). A postal employee and postal union filed a lawsuit for declaratory and injunctive relief against the postmaster general for refusing to recognize an organization to represent postal employees. A district court dismissed the complaint. On appeal, the D.C. Circuit affirmed, holding that the action was one against the United States that could not be maintained without its consent. Moreover, the rights that plaintiffs sought to assert were not appropriate for judicial vindication. The appellate court remarked: ''Congress has given the District Court many important functions to perform, but they do not include policing the faithful execution of Presidential policies by Presidential appointees.'' Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451, 457 (D.C. Cir. 1965), cert. denied, 382 U.S. 978 (1966).
The Seventh Circuit reached a similar result in 1973 regarding implementation of Executive Order 10988. After a district court held that it had no subject matter jurisdiction over a case brought before it, the Seventh Circuit affirmed by saying that neither an executive order giving federal employees collective bargaining rights nor the fact that the action might be said to involve matters peculiarly federal in nature furnished a basis for finding subject matter jurisdiction in the federal courts. Stevens v. Carey, 483 F.2d 188 (7' Cir. 1973). The court further noted that Executive Order 10988 ''did not contemplate a judicial remedy.'' Id. at 191.
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Nondiscrimination. At a news conference in 1961, President Kennedy was asked whether he would seek civil rights legislation from Congress. He replied that he would recommend legislation when it would be useful, but ''that there are a good deal of things we can do now in administering laws previously passed by the Congress, particularly in the area of voting, and also by using the powers which the Constitution gives to the President through Executive orders.'' Public Papers of the Presidents, 1961, at 15657. Two days earlier he had issued Executive Order 10925, establishing the President's Committee on Equal Employment Opportunity and restating the policy that federal employment and bidding on government contracts be without regard to race, creed, color, or national origin. Much more specific guidance was given to the obligations of government contractors and subcontractors. 26 Fed. Reg. 1977 (1961).
In 1963, President Kennedy issued Executive Order 11114, extending the authority of the President's Committee on Equal Employment Opportunity. This time he used the language that it is the policy of the U.S. government to encourage ''by affirmative action 'the elimination of discrimination because of race, creed, color, or national origin in employment on work involving federal financial assistance. 28 Fed. Reg. 6485 (1963).
Nondiscrimination in Housing. During the 1960 presidential campaign, John F. Kennedy pledged to use a ''stroke of the presidential pen'' to issue an executive order on fair housing. Once elected, however, objections to the order came from some Southern politicians, the chairmen of the House and Senate subcommittees on housing, and the National Association of Home Builders, which emphasized that new building would be sharply reduced if the executive order were issued. Ruth P. Morgan, The President and Civil Rights 66, 69 (1970).
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Twenty-two months into his presidency, Kennedy finally issued Executive Order 11063 to prohibit racial, ethnic, and religious discrimination in federally assisted housing. At the same time, he established the Committee on Equal Opportunity in Housing and charged it with coordinating federal activities under the order. 27 Fed. Reg. 11527 (1962). The executive order included federally owned housing, public housing, urban renewal, and housing financed with the aid of FHA-insured or Veterans Administration-guaranteed loans. It did not include conventional loans and mortgages issued by financial institutions regulated by the federal government. Congress enacted the Civil Rights Act of 1964 to prohibit racial discrimination in federally assisted housing, including public housing, but Executive Order 11063 continued to apply to the FHA and VA programs. Congress took the next step in 1968 by passing the Fair Housing Act to cover those programs.
President Johnson (1963–69)
Nondiscrimination. Building on earlier executive orders, President Johnson issued Executive Order 11197 in 1965, establishing the President's Council on Equal Opportunity. 30 Fed. Reg. 1721 (1965). In that same year, he issued Executive Order 11246, creating the administrative structure for carrying out the nondiscrimination clause. 30 Fed. Reg. 12319 (1965). Opponents argued that this order violated statutory policy.(see footnote 5) However, the previous year, in Title VII of the Civil Rights Act of 1964, Congress had prohibited employment discrimination on the basis of race, color, religion, sex, or national origin. This dispute would continue into the Nixon administration. Court cases defined the reach of Executive Order 11246. For example, the Fourth Circuit decided in 1981 that the application of the executive order to private insurance companies (as subcontractors) was in this case outside the scope of the grant of legislative authority. Liberty Mutual Ins. Co. v. Friedman, 639 F.2d 164 (4th Cir. 1981).
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President Nixon (1969–74)
Philadelphia Plan. During the Nixon years, the ''Philadelphia Plan'' (promulgated pursuant to Executive Order 11246) required contractors to set specific goals for hiring members of minority groups as a condition for working on federally assisted projects. The Comptroller General decided that the plan conflicted with Title VII of the Civil Rights Act. To the Comptroller General, it was immaterial whether the administration designated the hiring commitment a ''goal'' or ''quota.'' Whatever the name, he said the practice violated the 1964 statute. 49 Comp. Gen. 59 (1969).
The Secretary of Labor disagreed. He said that interpretation of the Civil Rights Act had been vested by Congress in the Department of Justice, which had approved the plan as consistent with the act. The Secretary also argued that the Comptroller General failed to recognize executive orders ''as an independent source of law.'' 115 Cong. Rec. 23740 (1969); 42 Op. Att'y Gen. 402 (1969). Certain Members of Congress declared their opposition to the plan. A Senate subcommittee charged in 1971 that the plan was a ''blatant case of usurpation of the legislative function by the executive branch.''(see footnote 6)
Federal courts upheld the legality of the plan as well as the executive order that placed it in operation. This use of presidential power was supported partly by the chief executive's implied power-as it relates to economical procurement policy-to ensure that ''the largest possible pool of qualified manpower be available for the accomplishment'' of federal projects.(see footnote 7)
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Responding to these decisions, Senator Sam I Ervin Jr. offered an amendment to prohibit any federal agency from requiring any employer to practice ''discrimination in reverse7 by employing persons of a particular race, religion, national origin, or sex in either fixed or variable numbers, proportions, percentages, quotas, goals, or ranges. The amendment was rejected on a vote of 22 to 44. 118 Cong. Rec. 1661, 1676 (1972).
Subversive Activities Control Board (SACB). Congress created the SACB in 1950 to investigate communist activities. 64 Stat. 997 (1950). The board required the public registration of ''communist-action'' and ''communist-front'' organizations. A series of court decisions held that the registration feature violated the Fifth Amendment prohibition against self-incrimination.(see footnote 8) Facing extinction, the board gained a new lease on life in 1971 when President Nixon issued Executive Order 11605 to expand the board's power and field of inquiry. 36 Fed. Reg. 12831 (1971).
Senator Ervin, challenging the executive order, introduced S. Res. 163 in 1971, stating that the President had no power ''to alter by Executive order the content or effect of legislation enacted by Congress.'' The Senate adopted Ervin's amendment to prohibit the use of appropriated funds to implement the order. 117 Cong. Rec. 25898–902 (1971). Congressman Don Edwards attempted to instruct House conferees to accept the Ervin amendment, but his motion was tabled. Id. at 2730512.
The following year, the House passed a bill to legitimate the executive order. 118 Cong. Rec. 19075–103 (1972). However, Senator William Proxmire offered an amendment to delete $450,000 from the SACB (its entire budget). Id. at 21053–74. After the Senate adopted that amendment, House and Senate conferees compromised by providing the board with $350,000 but expressly prohibiting it from using any of the finds to carry out the executive order. 86 Stat. 1134, sec. 706 (1972). Beginning with the fiscal 1974 budget, the administration did not even bother requesting funds for the SACB.
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Tariff Surcharge. In 1971, President Nixon unveiled his ''New Economic Policy,'' which included a 10-percent surcharge placed on articles imported into the United States. To implement the surcharge, he issued Proclamation 4074. 36 Fed. Reg. 15724 (1971). Importers turned to the Customs Court for relief, contending that the surcharge went beyond the scope of any authority delegated to the President by Congress. In 1974, the Customs Court agreed with the importers and declared the surcharge invalid. The proclamation ''arrogated unto the President a power beyond the scope of any authority delegated to him by the Congress.'' Yoshida Int'l, Inc. v. United States, 378 F.Supp. 1155, 1167 (Cust. Ct. 1974). Had this decision stood, the federal government would have had to repay about $500 it had collected.
A year later, however, the Court of Customs and Patent Appeals reversed the decision, concluding that President Nixon had acted within the power delegated to him by the Trading with the Enemy Act (TWEA). Neither Proclamation 4074 nor the administration's legal defense (Opinion of the General Counsel of the Treasury, September 29,1971) had referred to the TWEA. Nothing in the TWEA specifically authorized a surcharge. The appeals court was not surprised that Congress ''did not specify that the President could use a surcharge in a national emergency. Having left the battlefield, it would hardly do to dictate all the weapons to be used in the fight.'' It was also ''self-evident'' to the court that the surcharge had overtones of foreign relations and foreign policy, pointing to other decisions that Congress could delegate more broadly in foreign affairs than in domestic affairs. United States v. Yoshida, Int'l, Inc., 526 F.2d 560, 576, 580–82 (Ct. Cust. & Pat. App. 1975).
''Quality of Life'' Review. Although not an executive order or proclamation, an initiative by the Nixon administration led to subsequent executive orders on agency regulations. In 1971, the Office of Management and Budget (OMB) instituted a ''Quality of Life'' procedure to review environmental regulations. The Environmental Protection Agency (EPA) would circulate proposed regulations to other agencies for comment and respond to their criticisms. This process gave other agencies, like the Department of Commerce, an opportunity to register industry opposition to proposed EPA rules. Harold H. Bruff, ''Presidential Power and Administrative Rulemaking,'' 88 Yale L. J. 451, 464–65 (1979).
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Senate Committee Print. In June 1974, the Senate Special Committee on National Emergencies and Delegated Emergency Powers published a committee print entitled ''Executive Orders in Times of War and National Emergency.'' Largely on executive orders that related to national emergencies, the print also included a number of presidential proclamations on the same subject.
President Ford (1974–1977)
Agency Rulemaking. In 1974, President Ford issued Executive Order 11821 to require all major legislative proposals, regulations, and rules emanating from the executive branch to include a statement certifying that the inflationary impact of such actions had been rarely considered. The order empowered the OMB director to develop criteria for identifying the legislative proposals, regulations, and rules that might have a significant impact on inflation to prescribe procedures for their evaluation. 39 Fed. Reg. 41501 (1974). Two years later the order was extended by Executive Order 11949. 42 Fed. Reg. 10 17 (1976).
A meat packers association and other plaintiffs brought an action seeking declaratory and injunctive relief from the promulgation and enforcement of Department of Agriculture rules revising the grading standards for beef. One issue was the adequacy of the department's action relative to Executive Order 11821. Unlike the executive order struck down by the Supreme Court in Youngstown Co. v. Sawyer (1952), a district court held that Executive Order 11821 ''is supported by, and not in conflict with, constitutional language, and is within the Congressional purpose of the Agricultural Marketing Act of 1946.'' Independent Meat Packers Association v. Butz, 395 F.Supp. 923, 932 (D. Neb. 1975). The court denied that the executive order was a mere ''housekeeping'' order, enforceable only by the President. The order ''falls within the judicial review'' contemplated by law. Id. Finally, the court ruled that there was a material and substantial noncompliance by the department with the mandate of Executive Order 11821. Id.
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On appeal, the Eighth Circuit held that the President did not undertake or intend to create any role for the judiciary in the implementation of Executive Order 1182 1. The district court therefore erred in setting aside the USDA regulations. The Eighth Circuit said that Executive Order 11821 was intended ''primarily as a managerial tool for implementing the President's personal economic policies and not as a legal framework enforceable by private civil action.'' Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 236 (WhCir. 1975), cert. denied, 424 U.S. 966 (1976).
Fee on Imported Oil. In 1975, President Ford responded to the Arab oil embargo by placing a fee on imported oil that would generate an estimated $4.8 billion a year-an amount larger than the total 1974 revenue derived from customs. The announced purpose of Proclamation 4341 was to promote energy conservation, encourage domestic production, and reduce U.S. dependence on foreign sources. 40 Fed. Reg. 3965 (1975). The administration acknowledged that taxes and tariffs were legislative prerogatives, requiring specific authorization by statute, but argued that a ''fee'' on imported materials need not be legislated.
Congressman Robert Drinan, joined by other parties in litigation, regarded the fee as a circumvention of the duty system established by the Constitution. However, a district court decided that the fee program was one of several actions covered by the Trade Expansion Act, which permitted the President to ''adjust imports.'' For those who criticized the statute as an undue delegation of legislative authority, the court observed that the ''non-delegation doctrine is almost a complete failure.'' Commonwealth of Massachusetts v. Simon, Civil Action No. 74–0129 (D.D.C. 1975) and Algonquin Sng., Inc. v. Simon, Civil Action No. 75–0130 (D.D.C. 1975), reprinted as an appendix at 518 F.2d 1051, 1064–69 (D.C. Cir. 1975).
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The D.C. Circuit reversed this decision, holding that the Trade Expansion Act did not constitute authority for the fees imposed by President Ford. Also rejected was the administration's interpretation of a fee on imported materials. Algonquin Sng., Inc. v. Federal Energy Admin., 518 F.2d 1051 (D.C. Cir. 1975). In upholding Ford's proclamation, the Supreme Court did not try to distinguish between fees and taxes. It merely decided that the fees were within the general scope of the Trade Expansion Act, although that statute did not expressly give the President any power to impose fees. FEA v. Algonquin Sng. Inc., 426 U.S. 548 (1976).
President Carter (1977–81)
Draft Evaders. On January 21, 1977, President Carter issued Proclamation 4483 granting a ''full, complete and unconditional'' pardon to Vietnam-era draft resisters. On the same day, he issued Executive Order 11967 implementing his pardon order. 42 Fed. Reg. 4391–94. In anticipation of this pardon order, Senator James Allen prepared a Senate resolution expressing the opposition of the Senate to a pardon for those who violated the draft laws. The resolution was discussed and debated from January 4 to January 25, at which point a motion to lay the resolution on the table was agreed to, 48 to 46. 123 Cong. Rec. 46–47, 453–55, 1136–50, 164546, 1934, 2127–29.
Congressman John Myers added language to two appropriations bills, providing that funds appropriated in those statutes shall not be obligated or expended for salaries or expenses in connection with the dismissal of any pending indictments for draft evaders, or the termination of any pending investigation alleging violations of the selective service law, or permitting any person to enter the United States who, under federal law, was precluded from entering because of violating the selective service law. By a vote of 220 to 187, that language was added to the supplemental appropriations bill for fiscal 1977 on March 16 and enacted into law. 123 Cong. Rec. 774850; 91 Stat. 114, §306 (1977). The same language was added to the State Justice-Commerce appropriations bill. It passed the House on June 13 by a division vote of 26 to 21. 123 Cong. Rec. 18575–76. An effort in the Senate on June 24 to delete that language failed by a vote of 3 8 to 44. 123 Cong. Rec. 2083 3–3 9. The language was enacted into law. 91 Stat. 444, §706 (1977).
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A number of retired military officers and enlisted men, an active duty military officer, a civilian former prisoner of war, a minor child of a prisoner of war who died in captivity, a civilian, the wives of two of the military appellants, and two members of the House of Representatives (George Hansen and Lawrence McDonald) went to court to object to Proclamation 4483 and Executive Order 11967. Their principal complaint was that President Carter had exceeded the Emits of his constitutional pardon power and had usurped powers assigned to Congress. The D.C. Circuit held that the plaintiffs did not have standing to sue because their interest was too generalized and the injury too abstract. Daughtrey v. Carter, 584 F.2d 1050 (D.D.C. 1978).
Agency Rulemaking. In 1978, President Carter issued Executive Order 12044 to direct each executive agency to adopt procedures to approve existing and future regulations. The goal was to make regulations clearer, less burdensome, and more cost-effective. 43 Fed. Reg. 12661 (1978).
Federal Contracts. In 1978, President Carter issued Executive Order 12092, directing the Council on Wage and Price Stability to establish voluntary wage and price standards for noninflationary behavior. To implement the order, federal agencies could deny federal contracts to violators of the wage and price guidelines. 43 Fed. Reg. 51375 (1978). A federal appellate court upheld the executive order, holding that the guidelines were ''voluntary'' rather than mandatory. American Federation of Labor, etc. v. Kahn, 618 F.2d 784 (D.C. Cir. 1979), cert. denied, 443 U.S. 915 (1979).
Fee on Imported Oil. In 1980, President Carter issued Proclamation 4744 to impose a fee on imported oil. By increasing the price of gasoline by 10 cents a gallon, the administration hoped to lower domestic gasoline consumption. A district court ruled that the proclamation ''does not fall within the inherent powers of the President, is not sanctioned by the statutes cited by the Defendants [the Department of Energy], and is contrary to manifest Congressional intent.'' Independent Gasoline Marketers Council v. Duncan, 492 F.Supp. 614, 620–21 (D.D.C. 1980). At the time the court handed down its decision, Congress was about to strip Carter of his authority to impose fees or quotas on imported oil. ''Oil Import Fees: The Adminis- tration of the Program and Its Impact,'' hearings before the House Committee on Ways and Means, 96th Cong., 2d Sess. (1980).
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Military Registration. On July 2, 1980, President Carter issued Proclamation 4771 to implement a statute that Congress had passed on registration under the Military Selective Service Act. 45 Fed. Reg. 45247. In signing the proclamation, he emphasized that the ''registration act is not a draft.'' Public Papers of the Presidents, 1980–81, 11, at 1274. Men born in 1960 and 1961 were required to register as a precautionary measure in case it became necessary, in an emergency, to call them into the service.
David Alan Wayne was indicted on July 22, 1982, for failure to register. Among other arguments, he claimed that Proclamation 4771 had been illegally promulgated because it was effective immediately upon publication. He argued that it should have been issued under a 30-day notice and comment procedure required by the Military Selective Service Act. A district judge agreed. United States v. Wayte, 549 F. Supp. 1376 (D.Cal. 1982). However, that decision was reversed by the Ninth Circuit, which held that the 30-day notice and comment procedure did not apply to presidential proclamations. United States v. Wayte, 710 F. 2d 13 8 5 (9th Cir. 1983), aff d on other grounds, Wayte v. United States, 470 U.S. 598 (1985). A district court in Iowa also decided that the 30-day notice and comment period did not apply to presidential proclamations. United States v. Martin, 557 F.Supp. 681 (D. Iowa 1982).
Iranian Assets. In 1979, after Iran had taken American personnel as hostages at the American Embassy in Tehran, President Carter issued Executive Order 12170 to declare a national emergency and block all property and interests in property of the Government of Iran subject to the jurisdiction of the United States. 44 Fed. Reg. 65729 (1979). Executive Order 12279 in 1981 revoked all licenses permitting the exercise of ''any right, power, or privilege'' with regard to Iranian funds, securities, or deposits; nullified all non-Iranian interests in such assets acquired subsequent to the earlier executive order; and required banks holding Iranian assets to transfer them to the Federal Reserve of New York, to be held or transferred as directed by the Secretary of the Treasury. 46 Fed. Reg. 7919 (1981). These executive orders were challenged in the courts and upheld by the Supreme Court. Dames & Moore v. Regan, 453 U.S. 654 (1981). On January 20, 1981, the American hostages were released by Iran pursuant to an agreement of the previous day. President Carter issued a series of executive orders (Nos. 12276 to 12285) to implement the terms of the agreement. 46 Fed. Reg. 7913–32. On February 24, 1981, President Reagan issued Executive Order 12294 to suspend litigation against Iran. 46 Fed. Reg. 14111. The Court's decision also upheld that executive order.
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President Reagan (1981–89)
Decontrolling Oil and Gas Prices. On January 28, 1981, President Reagan issued Executive Order 12287 to lift all remaining price and allocation controls on crude oil, gasoline, and propane. 46 Fed. Reg. 9909 (1981). The executive order was challenged in court by Senators Howard Metzenbaum, Joseph Biden, Edward Kennedy, Spark Matsunaga, Harrison Williams, Claiborne Pell and Donald Riegle, along with Congressmen Toby Moffett and John Seiberling and the states of Minnesota and New York, the attorney general of Rhode Island, the AFL–CIO and four international unions, the NAACP, and six consumer or energy groups. The plaintiffs argued that the executive order was invalid because it was not preceded by formal notice, hearing, and other procedures mandated by the Administrative Procedure Act, the Emergency Petroleum Allocation Act, and the Department of Energy Organization Act. A district court denied the motion for preliminary injunction partly on the ground that it was ''extremely unlikely'' that those statutes were intended to apply to executive orders by the President. Metzenbauni v. Carter, 510 F. Supp. 609, 611 (D.D.C. 1981).
Agency Rulemaking. Presidents from Ford to Clinton have tried to create a system to monitor government regulations that impose heavy costs on businesses and consumers. The most ambitious effort to centralize control over agency regulations was Executive Order 12291, issued by President Reagan in 1981. He designated OM]B as the central agency to review regulations and subject them to cost-benefit analysis. The purpose was to ''reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.'' 46 Fed. Reg. 13J93 (1981). This executive order was challenged by some legislators as a violation of due process and the procedures governing ex parte contacts between federal officials and private interests. Threats were made to cut off funds to prevent implementation of the executive order, but these statutory limitations were not enacted. Louis Fisher, The Politics of Shared Power: Congress and the Executive 36–38 (1998).(see footnote 9)
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In 1985, President Reagan issued Executive Order 12498 to provide further instruction for the regulatory planning process. The order directed each executive agency subject to Executive Order 12291 to submit to OMB a statement of its regulatory policies, goals, and objectives for the coming year and information concerning ''all significant regulatory actions underway or planned.'' 50 Fed. Reg. 1036 (1985). Thus, this order covered not only regulations in draft form but also those being contemplated.
Intelligence-Gathering. On December 4, 1981, President Reagan issued Executive Order 12233 to establish a framework for governmental and military intelligence-gathering functions. 46 Fed. Reg. 59941 (1981). Congressman Ronald Dellums and several other plaintiffs brought a lawsuit claiming that the executive order was without express congressional authorization. A district court held that the plaintiffs lacked standing to challenge the executive order. United Presbyterian Church in U.S.A. v. Reagan, 557 F.Supp. 61 (D.D.C. 1982). That ruling was affirmed upon appeal. United States Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).
Security Classification Policy. In 1982, the House Committee on Government Operations issued a report entitled ''Security Classification Policy and Executive Order 12356.'' The committee recommended that any future plans to revise security classification rules, whether by executive order or other executive action, be announced publicly. It further recommended that any proposals to change security classification rules be circulated publicly for a period of at least 60 days and that public comments be accepted and considered by the President. H. Rept. No. 97–731 97th Cong., 2d Sess. 35 (1982).
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President Bush (1989–93)
Davis-Bacon. In 1992, President Bush was under pressure to declare a national emergency and suspend the Davis-Bacon statute, which provides for the payment of locally prevailing wages. Under the statute, the President may suspend its provisions in the event of a ''national emergency.'' After hurricanes hit three states that summer, he issued Proclamation 6491 to suspend the statute as it applied to the three states. 57 Fed. Reg. 47553 (1992). On March 6, 1993, by Proclamation 6534, President Clinton revoked the Bush proclamation and restored Davis-Bacon to its full force. 58 Fed. Reg. 13189 (1993).
Open Shop Bidding. In 1992, President Bush issued Executive Order 12818 to promote and ensure open bidding on federal and federally funded construction projects. The order upheld ''the associational rights of workers freely to select, or refrain from selecting, bargaining representatives and to decide whether or not to be union members. It thus barred union-only project agreements. 57 Fed. Reg. 48713 (1992). On February 1, 1993, President Clinton issued Executive Order 12836 to rescind the Bush executive order. 58 Fed. Reg. 7045 (1993).
Posting of ''Beck'' Rights. In 1992, President Bush issued Executive Order 12800 requiring federal contractors to post a notice to employees informing them of their ''Beck'' rights. Those rights were articulated by the Supreme Court in 1988. Employees who object to the use of their agency shop dues for political purposes must have their dues reduced by a pro rata share attributable to political expenses. Communications Workers of America v. Beck, 487 U.S. 735 (1988). The order issued by President Bush required a posted notice to employees that they ''cannot be required to join a union or maintain membership in a union to retain their jobs,'' and that employees who are not union members ''can object to the use of their payments for certain purposes.'' 57 Fed. Reg. 12985 (1992). On February 1, 1993, President Clinton issued Executive Order 12836 to revoke the Bush executive order. 58 Fed. Reg. 7045 (1993).
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Fetal Tissue Bank. During Senate debate on March 31, 1992, Senator Orrin Hatch offered an amendment to provide for the establishment of a fetal tissue bank for research purposes, established with tissue obtained from spontaneous abortions (miscarriages) and ectopic (outside the womb) pregnancies. The amendment was defeated, 77 to 23. 138 Cong. Rec. 7625–38 (1992). About two months later, President Bush issued Executive Order 12806 to direct the secretary of Health and Human Services (HHS) to establish a human fetal tissue bank. The fetal tissue in the banks ''shall be obtained exclusively from ectopic pregnancies and spontaneous abortions.'' 57 Fed. Reg. 21589 (1992). On June 23, he vetoed a bill that would have lifted a moratorium on the use of federal funds for fetal tissue research where the tissue is obtained from induced abortions. Congress was unable to override the veto.
On January 22, 1993, President Clinton issued a memorandum for the HHS secretary, directing the lifting of the moratorium on federal funding of research involving transplantation of fetal tissue from induced abortions. 58 Fed. Reg. 7457 (1993). Legislation enacted on June 10, 1993, directed that the provisions of Executive Order 12806 ''shall not have any legal effect.'' 107 Stat. 133, sec. 121(c) (1993). The statute also provided that no official of the executive branch may impose a policy that HHS ''is prohibited from conducting or supporting any research on the transplantation of human fetal tissue for therapeutic purposes.'' 107 Stat. 132, sec. 113(a). After passage of this legislation, the National Institutes of Health withdrew its interim guidelines regarding fetal tissue research because of the superseding provisions of the public law. 58 Fed. Reg. 45495 (1993).
President Clinton (1993–99)
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Striker Replacements. President Clinton requested legislation to prohibit companies from permanently replacing striking workers. The bill passed the House in 1993 by a vote of 239 to 190, but in both 1993 and 1994 it was blocked in the Senate by a Republican-led filibuster. Republican victories in the 1994 fall elections gave them control over both houses of Congress and convinced the administration that successful legislation would be unlikely. In 1995, President Clinton issued Executive Order 12954 to achieve administratively what he had been unable to do legislatively. The order declared that it was the policy of the executive branch ''in procuring goods and services that, to ensure the economical and efficient administration and completion of Federal Government contracts, contracting agencies shall not contract with employers that permanently replace lawfully striking employees.'' 60 Fed. Reg. 13023 (1995).
Congress proposed legislation that would let companies continue to ythire permanent replacements for striking workers and drafted an amendment to prohibit the Labor Department from spending appropriated funds to enforce the executive order. Another filibuster, this time by Senate Democrats, prevented action on the legislation to authorize the hiring of permanent replacements, and Clinton said he would veto any bill that attempted to overturn his order.
Meanwhile, the Chamber of Commerce had taken the issue to court to challenge the legality of Clinton's order. On May 9, 1995, a district court held that the case was not ripe for review. The D.C. Circuit ruled that the plaintiffs had met both ''fitness'' and ''hardship'' requirements for standing in order to challenge the executive order. On July 31, 1995, the district court concluded that the executive order was authorized by law, but stayed enforcement of its order pending appeal. On February 2, 1996, the D.C. Circuit reversed the district court's ruling. The appellate court decided that the National Labor Relations Act, as interpreted by the National Labor Relations Board, preempted the executive order regarding the right of management to hire permanent replacements during labor strikes.(see footnote 10) The administration did not appeal this ruling.
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Utah Lands. In 1995, Congress considered legislation to designate as wilderness 1.8 million acres owned by the federal government in Utah. The proposal cleared House and Senate committees but was not enacted. On September 18, 1996, President Clinton issued Proclamation 6920 to establish the Grand Staircase-Escalante National Monument in Utah. Acting under the Antiquities Act of 1906, as amended, he set aside approximately 1.7 million acres. 61 Fed. Reg. 50223–27 (1996).
In 1997, legislation was introduced to limit future presidential actions in establishing national monuments. The bill provided that for any national monument in excess of 5,000 acres, the President would need an act of Congress and the concurrence of the governor and state legislature. That legislation was reported from the House Committee on Resources and passed the House (after increasing the maximum acreage to 50,000) by a vote of 229 to 197. H. Rept. No. 105191; 143 Cong. Rec. H8502 (daily ed. October 7, 1997). Although President Carter had created a national monument in Alaska of around 53 million acres, and President Theodore Roosevelt used the Antiquities Act in 1908 to proclaim the Grand Canyon as a national monument, other uses of this presidential power were usually well under 50,000 acres. 14th Cong. Rec. H8398, H8400 (daily ed. October 6, 1997); H. Rept. No. 105–101, 105th Cong., 1st Sess. 1 (1997). The Senate did not act on this legislation (H.R. 1127).
In 1999, bills were introduced in both chambers (H.R. 1487 and S. 729) to change the procedures for declaring national monuments. Both measures provide that federal, state, and local governments will have the right to participate in these declarations by being given adequate notice and an opportunity to comment before the declaration becomes final. The House Resources Committee approved H.R. 1487 on June 30, 1999.
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American Heritage Rivers. In a dispute that started with proposed agency regulations and ended with executive orders, the Council on Environmental Quality (CEQ) on May 19, 1997 provided notice of a program to support communities in their efforts to restore and protect America's rivers. Comments were needed by June 9 (less than 30 days). 62 Fed. Reg. 27253 (1997). On June 10, Representative Helen Chenoweth and several colleagues introduced H.R. 1842 to prohibit the use of any funds to develop, implement, or carry out the American Heritage Rivers Initiative. On June 20, CEQ provided notice for the rivers initiative, asking for comments by August 20 (60 days). On September 11, President Clinton issued Executive Order 13061 to set forth the policy for the rivers initiative. 62 Fed. Reg. 48445 (1997).(see footnote 11) During this period, the House Committee on Resources held two days of hearings on the rivers initiative, meeting on July 15 and again on September 24.(see footnote 12)
On September 18, Senator Tim Hutchinson offered an amendment to the Interior appropriations bill, providing that the rivers initiative could be implemented only in accordance with certain conditions, including: (1) the President would have to submit to Congress nominations of the 10 rivers proposed for designation as American Heritage Rivers, (2) the comments of private property owners along the river would have to be considered, (3) the rivers initiative could be implemented only with respect to rivers designated as American Heritage Rivers by act of Congress, and (4) the term ''river community'' used in Executive Order 13061 would include all persons that own property, reside, or regularly conduct business with ten miles of the river. The amendment was tabled, 57 to 42. 143 Cong. Rec. S9537–53 (daily ed. September 18, 1997).
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On October 22, 1997, the House Committee on Resources held a markup session on H.R. 1842 and ordered the bill reported. After reconsideration, the bill was again ordered to be reported on November 5. However, it was not actually reported from committee until October 6, 1998. The committee report criticized Executive Order 13061 as a violation of the doctrine of separation of powers ''by completely bypassing the Congress.'' H. Rept. No. 105–781, 105th Cong., 2d Sess. 2 (1998). There was no further action on H.R. 1842 during the 105th Congress.
On March 2, 1998, a federal court decided a case brought by Representative Chenoweth and several other Members of Congress against President Clinton, charging that Executive Order 13061 violated the Constitution by attempting to create legislation without an express delegation by Congress. The court held that the Members did not allege sufficiently concrete injury to establish standing to maintain the suit. The injuries were ''clearly institutional, rather than personal'' and the quality of their injury was ''too abstract and not sufficiently specific to support a finding of standing.'' Chenoweth v. Clinton, 997 F.Supp. 36, 38, 39 (D.D.C. 1998). That decision was affirmed by the D.C. Circuit on July 2, 1999. Chenoweth v. Clinton, No. 98–5095.
Federalism. On May 14, 1998, President Clinton issued Executive Order 13 083, setting forth principles of federalism to be followed by executive departments and agencies. The order identified nine conditions to justify federal intervention or preemption. 63 Fed. Reg. 27651 (1998). A number of state and local government organizations objected to the principles expressed in the order and asked that the order be withdrawn. The White House offered to rewrite the order, with state-local input, but later withdrew the order. By a vote of 417 to 2, the House passed an amendment to prohibit any funds to be used to implement the order. 144 Cong. Rec. H7247–55, H7263–64 (daily ed. August 5, 1998). The funds cutoff became law as Section 623 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for fiscal 1999. 112 Stat. 2681–116 (1998).
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Sexual Orientation. On May 28, 1998, President Clinton issued Executive Order 13087 to prohibit discrimination based on ''sexual orientation'' in the federal civilian workforce. His order built on two earlier executive orders. In 1969, President Nixon issued Executive Order 11478 to state the policy of the federal government that there shall be no discrimination in employment because of ''race, color, religion, sex, or national origin.'' 34 Fed. Reg. 12985 (1969). Those categories had been included in the Civil Rights Act of 1964. In 1978, President Carter amended the Nixon order to reflect further statutory change: enactment of the Age Discrimination in Employment Act of 1969 and the Rehabilitation Act of 1973. President Carter's Executive Order 12106 added the words ''handicap, or age.'' 44 Fed. Reg. 1053 (1979).
President Clinton's executive order further amended the Nixon order. Thus, although Presidents Nixon and Carter acted after Congress had legislated specific categories, there was no statutory basis for President Clinton's executive order. Most federal agencies had already adopted a policy of nondiscrimination regarding sexual orientation, but the policy was not consistent across the executive branch. That was the purpose of the Clinton executive order. On August 5, 1998, Congressman Joel Hefley offered an amendment to prohibit the use of any appropriated funds ''to implement, administer, or enforce'' Executive Order 13087. The amendment was defeated, 252 to 176. 144 Cong. Rec. H7256–61, H7263 (daily ed. August 5, 1998).(see footnote 13)
Mr. METCALF. Thank you, Mr. Chairman.
It is time to clarify the scope of executive authority vested in the Presidency by Article II of the Constitution. The Supreme Court has failed to address this issue, and it is time for Congress to invoke the powerful weapons at its command. Through its ability to authorize programs and appropriate funds, Congress can define and limit Presidential powers. As members, we must participate in our fundamental duty of overseeing executive policies, passing judgment on them and behaving as the legislative branch should.
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We in Congress have taken an oath to uphold the Constitution and to protect the balance it established. That is why I introduced House Concurrent Resolution 30. It basically states that any executive order which infringes on the powers and duties of Congress, Article 1, Section 8, or purports to spend money not appropriated by Congress is null and void and has no force and effect.
[H. Con. Res. 30 follows:]
106TH CONGRESS
1ST SESSION
H. CON. RES. 30
To express the sense of the Congress that any Executive order that infringes on the powers and duties of the Congress under article I, section 8 of the Constitution, or that would require the expenditure of Federal funds not specifically appropriated for the purpose of the Executive order, is advisory only and has no force or effect unless enacted as law.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 10, 1999
Mr. METCALF (for himself, Mr. HYDE, Mr. TANCREDO, Mr. ISTOOK, Mr. HERGER, Mr. GILMAN, Mr. TRAFICANT, Mr. ENGLISH, and Mr. SCARBOROUGH) submitted the following concurrent resolution; which was referred to the Committee on the Judiciary
CONCURRENT RESOLUTION
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To express the sense of the Congress that any Executive order that infringes on the powers and duties of the Congress under article I, section 8 of the Constitution, or that would require the expenditure of Federal funds not specifically appropriated for the purpose of the Executive order, is advisory only and has no force or effect unless enacted as law.
Whereas some Executive orders have infringed on the prerogatives of the Congress and resulted in the expenditure of Federal funds not appropriated for the specific purposes of those Executive orders: Now, therefore, be it
Resolved by the House of Representatives (the Senate concurring), That it is the sense of the Congress that any Executive order issued by the President before, on, or after the date of the approval of this resolution that infringes on the powers and duties of the Congress under article I, section 8 of the Constitution, or that would require the expenditure of Federal funds not specifically appropriated for the purpose of the Executive order, is advisory only and has no force or effect unless enacted as law.
Mr. METCALF. This vital legislation reasserts the role and responsibility of Congress to enact laws and to appropriate Federal dollars. Further, it is a signal that executive infringement on legislative power will prompt Congress to protect its constitutional prerogatives.
In closing, I would like to quote former Supreme Court Justice Robert Jackson. He said, with all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the executive be under the law and the law be made by parliamentary deliberations, end quote.
The road to tyranny does not begin by egregious use of patience, but by those which appear logical and meant to gain public support. We must not be lulled into complacency by these, because with absolutely certainty the ones that come later will be aimed directly at our fundamental liberties and at representative self-government.
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As I have often said, eternal vigilance is still the price of liberty. Mr. Chairman, thank you for the opportunity to testify and for holding this important hearing.
Mr. GEKAS. Thank you, Jack.
[The prepared statement of Mr. Metcalf follows:]
PREPARED STATEMENT OF HON. JACK METCALF, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON
Thank you Mr. Chairman and Members of the Subcommittee. Your efforts to address this vital issue are greatly appreciated by me as well as the American people.
Before coming to Congress, I taught history for 30 years in my home state of Washington. But it doesn't take an historian, a lawyer or even a politician, to realize that Congress has ceded, to the Executive Branch, its fundamental Constitutional duty. I am alarmed at this action and by what I perceive to be a ''culture of deference'' within the Capitol. By that I mean we allow the President to in effect legislate through executive orders and proclamations. I find this trend deeply disturbing.
The framers expected national policy to be the result of open and full debate, hammered out by the legislative and executive branches. They believed in careful deliberation conducted in a representative assembly, subject to all the checks and balances that characterize our constitutional system. Having broken with England in 1776, they rejected government by monarchy and one-man rule. Nowhere in the Constitution is the President specifically given the authority to issue these 'directives.' The founders specifically placed all legislative power in the Congress.
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In the legislative veto decision in 1983 (INS v. Chadha), the Supreme Court insisted that congressional power be exercised ''in accord with a single, finely wrought and exhaustively considered, procedure.'' The Court said that the records of the Philadelphia Convention and the state ratification debates provide ''unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.''
If Congress is required to follow this rigorous process, how absurd it is to argue that a president can accomplish the same result by unilaterally issuing an executive order or proclamation. When President Clinton issued his executive order on striker replacements, he attempted to do what had been denied him by the regular legislative process. Fortunately, that order was struck down by the federal courts. However, this is only the second example, in the history of country, of the courts practicing judicial activism and nullifying a presidential order. More often, the courts fail to address these issues.
The American Heritage Rivers Initiative—Executive Order 13061—is another example of our current President's attempted takeover of the legislative powers of the Congress. The river initiative was born when President Clinton decided that he could take governing authority away from states and localities. The President's executive order required states to give up certain rivers to federal control and it is a threat to citizens' private property rights. The river initiative also gave the President the power to reprogram government funds and spend taxpayer money for projects without Congressional approval. It is a fact that the Constitution requires Congress to first approve all revenue spending. Following an oversight hearing, the Committee on Resources issued a report which criticized Executive Order 13061 as a violation of the doctrine of separation of powers, ''by completely bypassing the Congress.'' Failing to address this issue through the legislative process, Members of Congress turned again to the courts which dismissed the case, saying Members did not have standing to maintain their suit.
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In addition, when President Clinton issued his proclamation establishing a national monument in Utah, he again tried to do what he had been unable to achieve through Congress. That proclamation still stands. These types of executive orders and proclamations skirt the constitutional process, offend the values announced by the Court in the legislative veto case, and do serious damage to our commitment to representative government and the rule of law.
It is important to note, that our current President is not the only one at fault. A steady increase in controversy over presidential directives has arisen since FDR's administration. See Louis Fisher, Executive Orders and Proclamations, 1933–399: Controversies with Congress and the Courts, CRS Report for Congress, (July 23, 1999). The use of these directives is a Constitutional issue and I am not distinguishing between Democrat or Republican presidents. They have all been guilty—as have those of us in Congress, who sometimes find it politically convenient to allow the president to wield such broad power, with a stroke of his pen.
It is time to clarify the scope of executive authority vested in the Presidency by Article II of the Constitution. The Supreme Court has failed to address this issue and it is time for Congress to invoke the powerful weapons at its command. Through its ability to authorize programs and appropriate funds, Congress can define and limit presidential power. As members we must participate in our fundamental duty of overseeing executive policies, passing judgement on them and behaving as the legislative branch should.
We in Congress have taken an oath to uphold the Constitution and protect the balance it established—that is why I introduced H.Con.Res.30. This vital legislation reasserts the role and responsibility of Congress to enact laws and appropriate federal dollars. Further, it is a signal that executive infringements, on legislative power, will prompt Congress to protect its Constitutional prerogatives.
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In closing, I would like to quote former Supreme Court Justice Robert Jackson, ''With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and the law be made by parliamentary deliberations.''
As I've often said . . . eternal vigilance is still the price of liberty. Mr. Chairman thank you for the opportunity to testify today and for holding this important hearing.
Mr. GEKAS. Representative Paul.
STATEMENT OF HON. RON PAUL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. PAUL. Thank you, Mr. Chairman. In addition to my printed testimony, I would like to ask permission to submit an analysis of H.R. 2655, by the Liberty Study Committee, if I may.
Mr. GEKAS. Without objection, it will be included in the record.
[The information follows:]
CONSTITUTIONAL ANALYSIS
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H.R. 2655—THE SEPARATION OF POWERS RESTORATION ACT
PUBLISHED BY LIBERTY STUDY COMMITTEE
I. INTRODUCTION
H.R. 2655—The Separation of Powers Restoration Act is designed to restore the separation of powers between Congress and the president as set forth in Article I and Article 11 of the Constitution of the United States of America by: (1) terminating all existing states of national emergency and removing from the executive branch any power to declare national emergencies; (2) vesting power in Congress alone to declare states of national emergency; (3) restricting presidential power to issue executive orders by denying to them any force of law except as provided for by Congress; and (4) repealing the War Powers Resolution of 1973.
II. CONGRESS SHOULD ACT NOW TO RESTORE THE ORIGINAL CONSTITUTIONAL PLAN FOR SEPARATION OF POWERS.
At the heart of the Constitution of the United States of America is the separation of legislative, executive and judicial powers. James Madison, the father of our constitution, wrote in Federalist 47, ''there can be no liberty'' when those powers are united in one ''person or body of magistrates.'' Supreme Court Justice Louis Brandeis echoed this view in 1926 when he observed that separation of powers was written into our constitution ''to save the people from autocracy.'' Yet, throughout most of the 20th century, presidents have usurped legislative power by means of unconstitutional executive orders, presidential proclamations and undeclared wars. For too long, Congress has stood silent and, worse yet, aided and abetted these usurpations through legislation granting broad powers to the president. Only by repealing those statutes and by placing express limits on presidential power will such constitutional abuses by stopped.
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The powers delegated to the national government by our constitution are distributed to three separate branches of government: the legislative, the executive and the judicial. These are co-equal branches of government. Each branch has unique and limited powers and each has a co-equal duty to uphold and sustain the Constitution of the United States of America.
Whenever one branch exercises powers properly belonging to another branch (e.g., if the president was to legislate) it constitutes a usurpation of the powers of that branch as established by our constitution.
This separation of powers was of great concern to our country's founding fathers. For example, James Madison, quoting Montesquie, stated in Federalist 47, ''There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.'' Supreme Court Justice Louis Brandeis observed, ''The doctrine of the separation 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.'' Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting)
However, in the 20th century, most American presidents (beginning with Theodore Roosevelt) have usurped legislative authority using ''presidential orders'' executive orders, proclamations, etc. President Clinton has made usurpation of legislative power by executive order an art form.
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President Clinton issued an executive order (later struck down by the courts) seeking to prohibit federal contractors from hiring permanent striker replacements after Congress had repeatedly considered and rejected related legislation.
President Clinton also established a 1.7 million acre national monument in Utah (Grand Staircase-Escalante) by proclamation as legislation was pending regarding the future status of the affected parcels of land.
President Clinton has appropriated funds for pet projects, such as the American Heritage Rivers Initiative, which have not received appropriations from Congress.
President Clinton has also conducted war against the Federal Republic of Yugoslavia without a congressional declaration of even passage of a concurrent resolution in support.
The judiciary cannot be relied upon to defend the prerogatives of the Congress as it has struck down only two executive orders in the history of the country—one under President Truman and one under President Clinton.
Our country's founding fathers clearly expected that each branch of government (including Congress) would defend its prerogatives from encroachment by the other branches, setting power against power. See, e.g., Federalist 48 (Madison). Congress has occasionally acted to protect its legislative powers. The War Powers Resolution, the National Emergencies Act, and the International Emergency Economic Powers Act, enacted in the 1970s, all sought the restoration of the constitutional separation of powers. Likewise, the Tenure of Office Act was enacted in the 1860s in an effort to reduce the excessive presidential powers assumed during the Civil War.
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The courts can and do resolve cases and controversies that arise from a separation of powers issue. However, under the ''political question'' doctrine, the courts ordinarily do not intervene in disputes that are perceived as strictly between the legislative and executive branch.
Moreover, in recent cases the United States Supreme Court has virtually closed the courtroom door to members of Congress who seek to challenge congressional delegations of power to the president. Raines v. Byrd, 521 U.S. 811 (1997) (The court found that individual members of Congress lacked standing to litigate the constitutionality of the line item veto granted by Congress to the president.) More recently, in July 1999, the United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of a lawsuit filed by four members of the U.S. House of Representatives in which they sought a declaratory judgment and an injunction against President Clinton's executive order establishing the American Heritage Rivers Initiative without any authority from Congress.
Thus, Congress must act to protect its constitutional prerogatives. Congress cannot depend upon the courts to protect the separation of powers principle.
III. H.R. 2655 RESTORES THE ORIGINAL CONSTITUTIONAL PLAN FOR SEPARATION OF POWERS.
H.R. 2655 restores the original constitutional plan for separation of powers. It repeals the War Powers Resolution of 1973 that has proved ineffective to check the unilateral conduct of wars by the president. It terminates all existing national emergencies and brings to an end the 20th century practice of unconstitutional delegation of broad powers to the president to declare such national emergencies, returning such powers to Congress where they belong. It restricts the power of the president to issue executive orders, providing that such orders have the force of law only as expressly declared by Congress. It creates statutory rules governing the standing of members of Congress and other aggrieved persons to litigate separation of powers issues in the courts. Finally, it legislatively defines the term ''presidential order'', thereby removing from the president the power to determine the extent of executive powers under our constitution.
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A. Bill Section 3(a)— Repeal the War Powers Resolution
The War Powers Resolution, enacted in 1973, requires the president to notify congressional leaders when he is sending troops into combat or potential combat where there is no declaration of war. Without congressional action (i.e., a declaration of war, or an extension of the time American troops may continue to participate in combat), the president must then withdraw the troops within 60 days of his notification to Congress.
The ineffectiveness of the War Powers Resolution has been exposed during the Clinton administration's war in Kosovo. The Congress did not declare war or extend the 60 days within which American troops could be used for combat, yet their participation in combat continued. When members of Congress, led by Rep. Tom Campbell (R–CA), Go attempted to sue in the United States District Court for the District of Columbia to enforce the War Powers Resolution, the federal courts refused to hear the suit. The War Powers Resolution has failed to constrain the unilateral conduct of wars by the president, has been counter-productive, and would be repealed by H.R. 2655.
B. Bill Section 3(b)—Termination of Presidential Declarations of States of National Emergency
One major source of presidential powers by presidents of both parties has been the exercise of emergency powers in peacetime. Starting with the inauguration of Franklin Roosevelt in March 1993, the United States has been under a constant state of national emergency—except for a brief 14-month period between September 14, 1978 and November 14, 1979. The concept of presidents having additional powers only in wartime has been lost, and presidents enjoy almost all powers in peacetime as well. In 1973, the U.S. Senate's Special Committee on the Termination of the National Emergency, chaired by Senators Frank Church (D–ID) and Charles Mathias (R–MD), determined that 470 provisions of federal law gave special powers to the executive branch when a national emergency has been proclaimed. (See William J. Olson and Alan Woll, ''Memorandum for the President: Presidential Powers to Use the U.S. Armed Forces to Control Potential Civilian Disturbances'' Gun Owners of America: Springfield, Virginia, 1999 available at www.wjopc.com.) We currently live under 13 concurrent states of national emergency. If emergency powers are delegated, however unwisely, it would not technically constitute a usurpation of a legislative function.
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Congress has terminated the exercise of emergency powers pursuant to declarations of national emergencies in the past. The National Emergencies Act terminated all such emergency powers as of September 14, 1978. However, Congress left the power to declare subsequent states of national emergency with the president—a power exercised by President Jimmy Carter on November 14, 1979, after the seizure of the U.S. Embassy in Iran.
Under H.R. 2655, the powers and authorities possessed by the president, agencies, or federal officers and employees that are derived from the currently existing states of national emergency would once again be terminated. However, learning from past mistakes, this bill would vest the authority to declare future national emergencies in Congress alone.
C. Bill Sections 4 & 5—Limiting the Legal Force of Presidential Orders
Where a presidential order is clearly authorized by our constitution or by statute, it has the force of law. Armstrong v. United States, 80 U.S. 154 (1871). However, many presidential orders lack such authority. Executive Order 10422, issued by President Harry Truman on January 3, 1953, cited the United Nations' charter as authority. Executive Orders 12276–85, issued by President Carter, and Executive Order 12294, issued by President Ronald Reagan, were based on executive agreements (i.e., unratified treaties) with Iran. Commonly, presidential orders are issued under the intentionally vague authority of titles and responsibilities granted to the president, as when President Truman issued Executive Order 10340 ''by virtue of the authority invested in [him] by the Constitution and laws of the United States.'' Executive Order 10340 was challenged in court; the resulting decision, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), found there was no constitutional authority for President Truman's action.
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H.R. 2655 would require that each presidential order identify the specific statutory or constitutional provision that empowers the president to take the action embodied in the presidential directive. The bill further states that any presidential directive derived from statutory authority that does not identify that statutory authority is invalid. H.R. 2655 would make it the law that any and all presidential orders lack the force of law and are limited in their application and effect to the executive branch, unless the directive: (1) constitutes a constitutionally authorized reprieve or pardon for an offense against the United States; (2) constitutes an order given to military personnel pursuant to duties specifically related to actions taken as commander-in-chief of the armed forces; or, as discussed above, (3) cites the specific congressional enactment relied upon for the authority exercised in such order, is issued pursuant to such authority, is commensurate with the limit imposed by the plain language of such authority, and is not issued pursuant to a ratified or unratified treaty or bilateral or multilateral agreement that either violates the Ninth Amendment or Tenth Amendment to the Constitution of the United States of America or delegates power to a foreign government or international body when no such delegating authority exists under our constitution.
Under this bill, any alleged basis for the presidential order must be evident. Further, the bill would define what is a constitutional power that may be exercised by presidential order.
D. Bill Section 6—Clarification of Standing to Challenge Executive Actions
As noted above, the U.S. Supreme Court, in Raines v. Byrd, held that individual members of Congress have very limited access to the federal courts where presidential actions cause institutional injury to Congress. One Supreme Court case found that a majority of legislators must approve bringing the case for the members of Congress to have standing. This requirement offers no protection to the rights of minorities. H.R. 2655 seeks to remove the barriers to access to the federal courts.
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Specifically, H.R. 2655 provides that the following persons may bring an action in an appropriate United States court to challenge the validity of any presidential order that exceeds the power granted to the president by the relevant authorizing statute or the Constitution of the United States of America:
The U.S. House of Representatives, the U.S. Senate, any senator, and any representative, if the challenged presidential directive
1. infringes on any power of Congress;
2. exceeds any power granted by a congressional enactment;
3. does not state the statutory authority that in fact grants the president the power claimed for the action taken in such presidential order.
The highest governmental official of any state, commonwealth, district, territory, or possession of the United States, or any political subdivision thereof, or the designee of such person, if the challenged presidential directive infringes on the powers afforded to the states under the Constitution of the United States of America.
Any person aggrieved in a liberty or property interest adversely affected directly by the challenged presidential directive.
By providing statutory rules determining standing, the courtroom door can be opened to members of Congress and state and local officials pursuant to court precedents applying comparable statutory provisions. See, e.g., Association of Data Processing Services Organizations v. Camp, 397 U.S. 150 (1970) and Sunstein, ''Standing and the Privatization of Public Law,'' 88 Columbia Law Review 1432 (1988).
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Currently, most presidential usurpations are not subject to judicial redress due to the standing limitations established by the U.S. Supreme Court. If H.R. 2655 is enacted, the court will at least be forced to re-examine its standing precedents, if not to accede to the will of Congress.
E. Bill Section 7—Defining Most Recent Presidential Orders
Currently, there is no constitutional or statutory definition of ''proclamation,'' or ''executive order,'' or any other form of presidential order. The limited statutory requirements that do govern presidential orders, such as the requirement that executive orders and proclamations be published in the Federal Register, are easily circumvented by changing the nomenclature used. H.R. 2655 would remove that loophole.
H.R. 2655 would provide a statutory definition of a presidential directive: any executive order, presidential proclamation, or presidential directive; and any other presidential or executive action by whatever name described purporting to have normative effect outside the executive branch that is issued under the authority of the president or any other officer or employee of the executive branch.
IV. CONCLUSION
If we want our children and grandchildren to know and enjoy liberty, we must make certain that the constitutional separation of powers is given full effect. The president's usurpation of legislative power and the president's power to make war must be stopped. H.R. 2655 is an essential step in restoring our constitutional government.
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Mr. PAUL. Thank you, Mr. Chairman. I appreciate very much you holding these hearings. This is a subject that I have been very interested in, and I have had quite a few people contact my office because of their interest in it. So the American people, I think, are as interested in this as some of us here in the Congress.
We were all taught very early in our years about the separations of powers and why that was unique for our government, and we were taught, and I strongly believe this, it is a very good part of our Constitution. I think history has shown, especially in the 20th century, that it has essentially been eliminated or severely eroded.
The debate occurred early on. We had the Hamiltonians and the Jeffersonians arguing the case of a strong Presidency versus a strong Congress. But even today, as far as we have gone, I think Hamilton looks pretty good, you know, in light of what has happened. So I think even Hamilton would be aghast at what has happened in this century.
But this has happened not only through executive orders, but we have had abuse by the courts. We complained, many of us have complained, about how the courts have taken over the legislative process. Not only do they just rule on constitutionality, but frequently they go much further and they write law themselves.
And we are talking today about the abuse of the executive and Congress, our Constitution was designed to strictly limit the executive and put a lot more power into the legislative branch. Yes, we can complain about the current administration, but I think the chairman pointed out correctly that this covers both parties and over a long period of time.
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We also must recognize that much of this has happened because of the negligence of Congress. It isn't just the President who takes over. The administration of the various parties takes over because of our negligence, and we have to recognize that.
Currently we have an administration—and I want to quote not for the purpose of being partisan, but just to show an attitude of what—of how it is looked at from the administration point of view, one of the representatives of the administration not too long ago was quoted as saying, ''Stroke of the pen, law of the land, kind of cool.'' and you know, that sort of gives you a feeling for how they feel about this.
Even recently in the U.S. News and World Report, there was another quote of a high administrator in the Clinton administration. He said, Clinton plans a series of executive orders and changes to Federal rules that he can sign into law without first getting the okay from the Congress. This executive officer said further, there is a pretty wide sweep of things we are looking to do, and we are going to be very aggressive in pursuing it.
Now, these may be words that he did not really mean, but I think it does convey an attitude that we should not totally ignore.
I think the important words that we as members of Congress ought to remember when we are trying to assume our responsibility is we do take an oath of office, and we should take it seriously, and article I, section 1 is important. It says, all legislative powers herein granted shall be vested in the Congress of the United States; all. So this means the regulatory bodies would not be writing regulations, and executive orders dealing with one policy would not be written, and we would not be fighting wars without declaration. I mean, we would be living in a different type of system. And although we seem to have limped through rather well in the 20th century, I think the underpinnings of our constitutional system of government and rule of law have been undermined, and I don't think we have yet seen the full detriment of that undermining, because on the surface people probably go by more what Wall Street is doing rather than the underpinnings of a free society.
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In dealing with this subject, I have introduced legislation that I would like to just briefly summarize.
[The bill, H. R. 2655, follows:]
106TH CONGRESS
1ST SESSION
H. R. 2655
To restore the separation of powers between the Congress and the President.
IN THE HOUSE OF REPRESENTATIVES
JULY 30, 1999
Mr. PAUL (for himself and Mr. METCALF) introduced the following bill; which was referred to the Committee on International Relations, and in addition to the Committees on the Judiciary, and Rules, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To restore the separation of powers between the Congress and the President.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Separation of Powers Restoration Act''.
SEC. 2. FINDINGS.
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Congress finds the following:
(1) As a limit on governmental power, Constitutional framers vested Federal powers in three coequal branches of government, each with unique and limited powers and each with a coequal duty to uphold and sustain the Constitution of the United States.
(2) A Supreme Court justice stated, ''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.'' Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).
(3) James Madison, quoting Montesquieu, stated in Federalist 47, '' 'There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.' ''
(4) Article I of the Constitution provides, ''All legislative powers herein granted shall be vested in a Congress of the United States.''
(5) A congressional committee print has noted that, ''[b]ecause the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President's proclamations are not legally binding and are at best hortatory unless based on such grants of authority.''
85th Cong., 1st Sess.,
Executive Orders and Proclamations: A Study of a Use of Presidential Powers
(Comm. Print 1957).
(6) The Supreme Court has stated that, even if Presidents have, without congressional authority, taken actions only the Congress may take, ''Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution 'in the Government of the United States, or any Department of Officer thereof.' '' (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).
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(7) Treaties or Executive Agreements which purport to assign powers not amongst those specifically granted to the Federal Government by the Constitution are non-binding and cannot constitute law.
SEC. 3. SEPARATION OF POWERS RESTORING RESCISSIONS.
(a) REPEAL OF WAR POWERS RESOLUTION.—The War Powers Resolution (50 U.S.C. 1541 et seq.) is repealed.
(b) TERMINATION OF STATES OF EMERGENCY.—
(1) IN GENERAL.—All powers and authorities possessed by the President, any other officer or employee of the Federal Government, or any executive agency (as defined in section 105 of title 5) as a result of the existence of any declaration of national emergency in effect on the date of enactment of this Act are terminated 90 days after such date. Such termination shall not affect—
(A) any action taken or proceeding pending not finally concluded or determined on such date;
(B) any action or proceeding based on any act committed prior to such date;
or
(C) any rights or duties that matured or penalties that were incurred prior to such date.
(2) DEFINITION.—For the purpose of this subsection, the term ''national emergency'' means a general declaration of emergency made by the President or any other officer or employee of the executive branch.
(d) TERMINATION OF AUTHORITY TO DECLARE EMERGENCY.—To the extent that any Act of Congress in effect on the date of enactment of this Act grants to the President or any other officer or employee of the executive branch the power to declare a national emergency, such power is hereby divested to the Congress alone.
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SEC. 4. REQUIREMENT OF STATEMENT OF AUTHORITY FOR PRESIDENTIAL ORDERS.
(a) STATEMENT OF AUTHORITY.—The President shall include with each Presidential order a statement of the specific statutory or constitutional provision which in fact grants the President the authority claimed for such action.
(b) INVALIDITY OF NONCONFORMING ORDERS.—A Presidential order which does not include the statement required by subsection (a) is invalid, to the extent such Presidential order is issued under authority granted by a congressional enactment.
SEC. 5. EFFECT OF PRESIDENTIAL ORDERS.
(a) LIMITED EFFECT OF PRESIDENTIAL ORDERS.—A Presidential order neither constitutes nor has the force of law and is limited in its application and effect to the executive branch.
(b) EXCEPTIONS.—Subsection (a) does not apply to—
(1) a reprieve or pardon for an offense against the United States, except in cases of impeachment;
(2) an order given to military personnel pursuant to duties specifically related to actions taken as Commander in Chief of the Armed Forces;
or
(3) a Presidential order citing the specific congressional enactment relied upon for the authority exercised in such order and—
(A) issued pursuant to such authority;
(B) commensurate with the limit imposed by the plain language of such authority;
and
(C) not issued pursuant to a ratified or unratified treaty or bilateral or multilateral agreement which—
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(i) violates the ninth or tenth amendments to the Constitution;
or
(ii) makes a delegation of power to a foreign government or international body when no such delegating authority exists under the Constitution.
SEC. 6. STANDING TO CHALLENGE PRESIDENTIAL ORDERS WHICH IMPACT SEPARATION OF POWERS INTEGRITY.
The following persons may bring an action in an appropriate United States court to challenge the validity of any Presidential order which exceeds the power granted to the President by the relevant authorizing statute or the Constitution:
(1) CONGRESS AND ITS MEMBERS.—The House of Representatives, the Senate, any Senator, and any Representative to the House of Representatives, if the challenged Presidential order—
(A) infringes on any power of Congress;
(B) exceeds any power granted by a congressional enactment;
or
(C) violates section 4 because it does not state the statutory authority which in fact grants the President the power claimed for the action taken in such Presidential order.
(2) STATE AND LOCAL GOVERNMENTS.—The highest governmental official of any State, commonwealth, district, territory, or possession of the United States, or any political subdivision thereof, or the designee of such person, if the challenged Presidential order infringes on the powers afforded to the States under the Constitution.
(3) AGGRIEVED PERSONS.—Any person aggrieved in a liberty or property interest adversely affected directly by the challenged Presidential order.
SEC. 7. DEFINITION OF PRESIDENTIAL ORDER.
In this Act, the term ''Presidential order'' means—
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(1) any Executive order, Presidential proclamation, or Presidential directive;
and
(2) any other Presidential or Executive action by whatever name described purporting to have normative effect outside the executive branch which is issued under the authority of the President or any other officer or employee of the executive branch.
Mr. PAUL. This legislation, 2655, says that a President can't issue an order unless he cites a constitutional or statutory authority for it. It also says that treaties and executive agreements that are not ratified are not binding. So they should be totally ignored. The bill repeals the War Powers Resolution, which I think is one of the most dangerous trends that we have had in the century where Presidents can literally wage war without congressional approval.
One thing more it does, it suspends all declared emergencies. Now, that sounds rather radical, but there are quite a few emergencies declared, limited emergencies for dealing with foreign policy around the world. But this was done in 1976, so it is not totally strange for the Congress to do this. This bill would suspend all these emergencies, and it also would discontinue the power for the President to declare the emergency. That should be a congressional function, not an executive function. And most importantly, it gives Congress, Governors, county commissioners, all citizens, to have standing in the court and go and challenge any executive order that they feel is unconstitutional.
I don't know whether time will permit, but I hope that we have a few minutes. I would sort of like to address, if possible, this issue of secret directive for foreign policy dealing with the CIA and the military.
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Mr. GEKAS. Why don't you proceed.
Mr. PAUL. Since Mr. Nadler brought that subject up, my bill doesn't directly deal with that, but it implies that those kind of directives wouldn't really exist. If we looked at the Constitution strictly, we would permit the President to issue orders to the military, and security purposes would be under the military as it was prior to World War II. We wouldn't have a secret government that, quite frankly, I don't think there are very many Members of Congress who know what is going on. The whole notion that a CIA can exist to wage illegal wars in South America, Central America and to undermine governments around the world and kill individuals, as has been known to happen, that should all be removed. So if we need secrecy, which I do believe that we would, it would be very strict, very limited. It would be for national security and would be through the military, because the military should have the responsibility of providing national security.
So I don't know for sure that my bill is clear enough on that, but I think it is a very important issue, and if it isn't clear enough, it should be made that way, because I can't—if we deal with executive orders domestically and ignore some of these international things in secrecy, those things occur in secret, I think we are ignoring a big area that deserves close attention.
Mr. GEKAS. We thank the gentleman.
[The prepared statement of Mr. Paul follows:]
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PREPARED STATEMENT OF HON. RON PAUL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Chairman, thank you for the opportunity to address what I believe is a most serious matter threatening the very structural foundation of freedom established by this nation's founders. James Madison, quoting Montesquieu in the Federalist Papers no. 47, stated ''There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.''
One of the chief complaints of the American colonists against King George was that he had usurped powers that were not rightfully his, and then used those powers to the disadvantage of the people. As a limit on governmental power, Constitutional framers vested Federal powers in three coequal branches of government, each with unique and limited powers and each with a coequal duty to uphold and sustain the Constitution of the United States.
This system of ''checks'' has grown drastically out of balance. Justice Brandeis wrote in 1926 in the Myers v. United States decision, ''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.''
H.R. 2655—The Separation of Powers Restoration Act is designed to restore the separation of powers between Congress and the president as set forth in Articles I and II of the United States Constitution by: (1) terminating all existing states of national emergency and removing from the executive branch any power to declare national emergencies; (2) vesting power in Congress alone to declare states of national emergency; (3) restricting presidential power to issue executive orders by denying to them any force of law except as provided for by Congress; and (4) repealing the 1973 War Powers Resolution.
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The most glaring example of our out-of-balance system is the power of the president to create laws through the use of the ''Executive Order.'' Article I, Section 1 of the Constitution provides, ''All legislative powers herein granted shall be vested in a Congress of the United States.''
My legislation, HR 2655 requires that executive orders issued pursuant to Constitutional authority or Statutory authority cite the specific Constitutional provision or Statutory authority or the effect of law is denied the order. A congressional committee print by the 85th Congress reported that, ''[b]ecause the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President's proclamations are not legally binding and are at best hortatory unless based on such grants of authority.'' Also, under my legislation, treaties or international executive Agreements which purport to assign powers not amongst those specifically granted to the Federal Government by the Constitution are non-binding and cannot constitute law.
While there is a role for Executive Orders so that the president may faithfully execute laws passed by Congress, execute those powers specifically granted in Article II and, in so doing, direct Executive Branch employees, for far too many years, the illegitimate uses have overshadowed the legitimate. Presidents have issued Executive Orders that have mistakenly taken on the semblance of law.
Most recently, the November 1st, 1999 issue of U.S. News & World Report states that—Clinton plans a series of executive orders and changes to federal rules that he can sign into law without first getting the ok from GOP naysayers. White House Chief of Staff John Podesta was quoted as saying ''There's a pretty wide sweep of things we're looking to do, and we're going to be very aggressive in pursuing it.''
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It is, of course, a mistake to place all blame with any single president or the presidency itself for abuse of this power. After all, presidents have had many willing accomplices in Congress. A great number of congressmen and senators quietly appreciate the assumed presidential authority to create and enact legislation because it allows them to see their goals accomplished without having to assume political responsibility.
In addition, my legislation repeals the 1973 War Powers Act, which—despite the constitutional prohibition—granted broad war-making authority to the Office of the President. With the ''power'' of the Executive Order, presidents can commit our troops to undeclared wars, destroy industries or make unprecedented social-policy changes.
The ineffectiveness of the War Powers Resolution has been exposed during the Clinton administration's war in Kosovo. The Congress did not declare war or extend the 60 days within which American troops could be used for combat, yet their participation in combat continued. When members of Congress, led by Rep. Tom Campbell (R-CA), attempted to sue in the United States District Court for the District of Columbia to enforce the War Powers Resolution, the federal courts refused to hear the suit. The War Powers Resolution has failed to constrain the unilateral conduct of wars by the president, has been counter-productive, and would be repealed by HR 2655.
One major source of presidential powers abused by presidents of both parties has been the exercise of emergency powers in peacetime. And they remain unaccountable because often these actions occur behind the door of the Oval Office, are distributed without notice, and then executed in stealth. My legislation suspends all of the ''national emergencies'' which have been declared since 1976 (when Congress last canceled them). For example, still on the books are ''emergencies'' relating to Iraq and the Soviet bloc. These emergency declarations give presidents great authority, even if the situation no longer presents a threat to our national security.
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Finally, and perhaps most significantly, my legislation grants legal standing to individual Members of Congress and Senators, state officials and, of course, private citizens who believe a president's Executive Order has overstepped constitutional bounds and negatively impacted them, their rights, their property or their businesses. HR 2655 also would provide a statutory definition of a presidential directive: any executive order, presidential proclamation, or presidential directive; and any other presidential or executive action by whatever name described purporting to have normative effect outside the executive branch that is issued under the authority of the president or any other officer or employee of the executive branch.
That powers have been usurped is undeniable, and that our system is out of balance is evident to the most casual of observers. We have the opportunity to more perfectly balance our system and restrict potential abuses.
While kings may have the right to promulgate laws simply by decree, it is Rule of Law which is king in our form of government. By clearly defining the lines of power, while restricting the ability of a single person to arbitrarily impose law, we will further secure the blessings of liberty upon our nation. Mr. Chairman, thank you again for holding these hearings.
Mr. GEKAS. We thank our colleagues for the testimony that they have offered. We dismiss them with our gratitude.
The committee will recess pending the finalization of the vote now on the floor. We will return to this committee room at or near 10 minutes after 11. We stand in recess.
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[Recess.]
Mr. GEKAS. The time of the recess having expired, the committee will come to order.
Pending the arrival of another member of the committee, we will indulge in the introduction of the members of the next and last panel, and then when the next member appears, we will begin the testimony.
Phillip Cooper is the Gund Professor of Liberal Arts in the University of Vermont's Political Science Department. He holds a Ph.D. in political science from Syracuse University. Mr. Cooper is a recipient of numerous honors and awards, and he has written numerous books and articles in the field of public administration. Professor Cooper served in the United States Air Force from 1967 to 1974.
Thomas Griffith is a partner with Wiley, Rein & Fielding here in Washington. He served as Legal Counsel for the United States Senate from 1995 until earlier this year. He currently serves as general counsel to the Advisory Commission on Electronic Commerce, which was established by the Internet Tax Freedom Act. We are watching the progress of that commission keenly.
Elliot Mincberg is vice president, legal director and general counsel of People for the American Way. He has been with that organization for 10 years. Previously he was a partner in Hogan & Hartson. Mr. Mincberg earned a bachelor of arts from Northwestern and his law degree from Harvard.
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Some of the housekeeping now has been accomplished. We will await the arrival of Mr. Nadler or any other member of the committee.
Staff suggested that I reminisce about my connection to each of you three, and there is none. So we can wax eloquent about that.
I served in the U.S. Army, which is, of course, superior of the Air Force and a patriarch of the Air Force.
When I was elected to the senate of Pennsylvania, I was in the house, and then I was elected to the senate. A member of the house with whom I had served invited me to speak at a function in his district, and his introduction began with how George Gekas, with one stroke, by his election to the senate, leaving the house, elevated the IQ of both chambers.
The arrival of the gentleman from New York constitutes a hearing quorum. The introductions having been accomplished, we begin with the testimony in the order in which the members of the panel were introduced. Professor Cooper.
STATEMENT OF PHILLIP COOPER, GUND PROFESSOR OF LIBERAL ARTS, DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF VERMONT, BURLINGTON, VT
Mr. COOPER. Thank you, Mr. Chairman, Mr. Nadler. I am Phillip Cooper. I am, as the Chair indicated, at the University of Vermont. I have been engaged in research on this particular subject for more than 15 years now and have had the privilege of participating with other committees and other discussions on this subject over that period of time.
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I have submitted to staff a few pieces which provide a fairly good summary with a lot of documentation, and as a result of that, decided to keep my prepared testimony rather brief, if you wish to proceed that way.
Mr. GEKAS. Yes. I might offer the same general statement, that the written statements will become a part of the record automatically without objection, and your oral statements can demonstrate a review of your written statement.
Mr. COOPER. Fine. Thank you very much. And the items that I submitted to staff, would they be acceptable?
Mr. GEKAS. Without objection.
Mr. COOPER. Good. Thank you very much.
I am honored to participate in this particular hearing also, not only because of the importance of the topic, but because unlike many of the other hearings in this general area, it doesn't focus on one particular order, one particular action by a President that resulted in a great deal of controversy, but rather tries to look more broadly at this issue. This is indeed a broad area, and one that does require that kind of attention, as you and as the minority member indicated this morning in both of your opening statements.
With that in mind, I would, though, like to start with a brief case study that I think might highlight some of the issues that we are talking about here today and get us down to a little bit of the detail that comes up as a result of the consideration of this legislation.
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It starts with the issuance by President Clinton in February 1994 of Executive Order 12989. It was entitled Federal Actions to Address Environmental Justice and Minority Populations and Low-Income Populations. This was a very broad and general executive order, calling for consideration of what we have come to call environmental justice matters, when the government acts such that the impact of those decisions will not be discriminatory, will not always be in somebody's backyard, as it were, and doing so particularly where the people involved happen to be a minority community or in a poor community. This is certainly a laudable goal. No one would disagree with that general proposition.
However, it was a very broad statement. It did not specify precisely what is to happen, except for communication and consultation within the Federal Government. It was based on the authority ''vested in me,'' the President said, ''by the Constitution and law,'' which has come to be the very common formation for so many of the orders to which you both referred earlier. It did not make any mention of title VI of the Civil Rights Act. It did not make any mention of permit decisions by State or local governments. In fact, it didn't say in particular what any agency was to do. But that same day, a Presidential memorandum was issued, and that memorandum did refer to title VI, and it did speak to the requirement for agencies to make sure that organizations using Federal funds ought not to be engaged in discriminatory activity.
Then, from there the order went to the Environmental Protection Agency's actions in which it decided to develop something called an interim guidance on environmental justice, which was produced in the spring of 1998. EPA decided not to use the normal Administrative Procedure Act process, but to call this an interim guidance so that it would be under the aegis of what we would refer to as a policy statement in administrative law. Such a statement isn't required to go through the normal rulemaking process under section 553.
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They really didn't have very many conversations about this matter until the statement was released in the spring of 1998. At that point, as you might expect, State and local governments around the country read it and found out that it essentially said that any of their permitting processes would be challengeable as a matter of title VI discrimination, if their actions had a kind of disproportionate impact. Well, you can imagine that the States and localities responded very strongly to this, starting with a wish that they could have been involved in the discussion of the development of the policy along the way.
The policy also set forth the position that there should be an implied private right of action for others to bring suit against State and local officials as well, and indicated, and since there was an agency policy, intent need not be proven, only discriminatory effect. As a result of all of that, the policy became a very controversial matter and resulted in hearings before the Subcommittee on Oversight and Investigations of the Committee on Commerce in August 1998. As a result, EPA pulled back its policy.
Mr. GEKAS. The gentleman wishes to ask a question right at this point, without objection.
Mr. NADLER. I appreciate the indulgence of the Chair, and of the witness. So EPA comes out and says, without any particular proceeding and without congressional authority, if you have a disparate impact, we are going to consider it a violation of title VI, and you said three things. What were those three things?
Mr. COOPER. Implied private right of action, and under the implied private right, given the existence of the regulation, no proof of intent would be required.
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Mr. NADLER. Okay. And this it calls administrative action, or something.
Mr. COOPER. Interim guidance is its label.
Mr. NADLER. Forgetting the merits for the moment of those decisions, what impact do they have? Can a State say, it is nice that you think so, but the courts haven't said so? I mean, to what extent should we care, if at all, about those opinions or dictates of—in other words, what is the impact of this?
Mr. COOPER. If I may answer in two parts. Let me answer the first part. There was actually judicial activity at the time. There had been a decision out of the third circuit which was the first one to address the private right of action question. And EPA then actively became involved in the discussion about which there were pending cases, so it was an important discussion with impact.
Mr. NADLER. You can certainly have a court decision. What I am asking is, the fact that the EPA said there is a private right—an implied private right of action, what effect does that have? Does the court say, oh, gee, it said so; therefore, it is there? Is it simply an opinion of some bureaucrat that nobody cares about? In other words, to what extent does this matter?
Mr. COOPER. I will try to respond without getting into too deep detail, but, of course, under the Choate ruling, it means, among other things, that the parties who bring cases can invoke the policy issued by the agency to support their case, and it reduces their burden. That is the immediate impact. By being able to do that, that statement——
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Mr. NADLER. It reduces their burden in court?
Mr. COOPER. Yes, it does.
Mr. NADLER. The court can't simply say, we don't agree with EPA?
Mr. COOPER. The Supreme Court had previously said in the Choate decision, this is taking us off into a substantive area which is quite different from what we are talking about today, but the Court had said if an agency has existing regulations, then a party may invoke those regulations, and if the agency means them to describe the conditions necessary for a complaint, that will be all that is required.
Mr. NADLER. I see.
Mr. COOPER. So it had a very substantive impact. Plus, EPA had pending before it a significant number of complaints that had been made to the agency for violation of the policy, the environmental justice policy. So its guideline then would become also the basis for its disposition of the cases then pending before it from a number of different——
Mr. NADLER. Which would then be given broad discretion by the courts?
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Mr. COOPER. It is a parallel process. These would be administrative decisions, sir; and, of course, they would then be appealable on judicial review. This is quite separate from the implied private action.
Mr. NADLER. But the grounds for appeal would be abuse of discretion. The courts give the agency wide latitude, so what you are saying is that once it had decided this, that it has a real impact, because to challenge it in court, you are not just challenging whether they should have done it in the first place, but you are challenging it on a standard of arbitrary and capricious action.
Mr. GEKAS. Let's return to regular order.
Mr. COOPER. My original point in raising this was not so much to debate the merits of the environmental justice claims; it is a complex area, and I have dealt with this in greater detail elsewhere. But what is important is that the agency had not invoked any kind of participative process; it had not invoked a normal administrative law process to generate its rule; it had not relied primarily on the statute, but on an executive order and a memorandum tied together, the Executive Order not having mentioned the statute, but the memorandum did mention the statute. All of these got tied together.
The agency tried to respond by creating an advisory committee to get input. Then some of the parties who had disputes with the agency said, yes, but if you do that, we are going to sue you under the Advisory Committee Act. The moral of the story is if they had used the statute from the beginning, and if they had invoked the administrative law process, given the assumptions in law, it is highly unlikely that any of the problems that eventually resulted here in Congress or in the EPA having to put back its policy would have occurred.
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As you said, it is not about the merits really of the policy. It is about how we make policy and then how the branches work together in the making of policy, as your statements indicated.
But the example also raises some other questions, and I would like to point to them. They are rather detailed because if I could, I would like to get beneath the very general discussion we were having before about separation of powers to how we make it work.
The first problem is definitional. If we look at the number of executive orders, we find that they have actually gone down a bit in recent years, except for President Carter, who had lot more than the others, but each of the recent Presidents has had a relatively similar number. What has happened that is different is the use of the wide variety of tools, particularly Presidential memoranda, Presidential signing statements, other things called directives. Sometimes the question of just what kind of instrument is involved gets rather confusing. Indeed, on one occasion, President Clinton was giving a statement on the signing of the gun-free schools implementation direction to the Secretary of Education. In the speech he talked about the ''executive order he was signing today.'' But if one examines it, it turns out the instrument was a memorandum, not an executive order. But at the bottom of the memorandum it says, I hereby direct the Secretary to take the following action. In other words, whatever we call it, it still is an executive order.
But the Federal Register doesn't see it that way. It is a different kind of thing. Some memoranda contain a statement that it is acceptable for the administrator to publish this memorandum. That presumably implies that other memoranda do not have to be published.
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The same thing with signing statements. In many of the signing statements, we find at the end a directive—and this is true not just of this administration, but of previous administrations—that as a result of President's disagreement with the statute, I direct the Secretary ''to take a certain set of actions.''
So the question becomes how to define the implements that we are talking about, which we refer to loosely as executive orders. It is a bit of a continuum, one end of which is too general and we risk losing an understanding of what these devices really are, why they are necessary, where they can be effectively used, and then how to control them a little bit, at least procedurally. At the other end we get so specific that we find ourselves unable to make a general—have a general kind of policy.
I see that my time is up.
Mr. GEKAS. We will return to it after the testimony when we go back to questioning.
Mr. NADLER. I don't want to question, I was just going to ask that in view of my question, the gentleman be given an additional 2 minutes.
Mr. GEKAS. I had given him an additional 3 minutes, and now I will give him 2.
Mr. COOPER. I will conclude very quickly.
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I would just say that it is an interesting thing to note that the policy for the process by which we develop executive orders is an executive order. It is not in statute. It was developed in 1962, and that remains the control. Even on that ground alone, it would seem worthwhile to take a look at the question of whether such things as notice under the provisions of the Federal Register Act or whether other kinds of procedural issues might be examined to consider whether existing statues could be updated to ensure whether Congress is at least given notice as to the existence of each of these devices.
You had asked the question before, Mr. Nadler, about national security directives. One of the problems is not so much the disclosure, but at least the ability of Congress to know that they exist and the ability to operate, for example, within the intelligence committees to have the normal kinds of exchanges that take place. So disclosure is important.
Finally I would mention that there are many issues here that cross over to regular administrative law matters, and we can talk about those perhaps later, one of which is judicial review. It is not just a question of standing. There are many other questions that arise having to do with such things as judicial rulings overruling executive orders. It is important to talk not only about standing to challenge, but also about scope of review and about presumptions about deference, for example, the normal Chevron deference doctrine.
With that, thank you very much.
Mr. GEKAS. Thank you.
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[The prepared statement of Mr. Cooper follows:]
PREPARED STATEMENT OF PHILLIP COOPER, GUND PROFESSOR OF LIBERAL ARTS, DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF VERMONT, BURLINGTON, VT
Good morning, Mr. Chairman. I am Phillip Cooper and I hold the Gund Chair in the Department of Political Science at the University of Vermont. I have been engaged in research and writing on public law issues throughout my career and have focused considerable effort for more than a decade on the uses and abuses of executive orders and other instruments of presidential direct action. Copies of three of the articles that I have produced on that subject have been provided for the record. Since they are available, I have taken the liberty of making this testimony relatively brief and free of excessive citations. Full documentation is available in the pieces provided. Each of the three articles, and a book that I am completing presently on this subject to be published by the University Press of Kansas, identifies different kinds of problems and issues that have arisen in the use of the tools of presidential direct action, but each also recognizes that there has long been a variety of important and even necessary uses of these instruments by presidents of both political parties throughout our history.(see footnote 14)
It is an honor to participate in this hearing in part because it is more than an effort to react simply to a particularly controversial executive order. It is certainly the case that there have been many hearings held in response to a specific executive directive or type of order, but it has only been relatively rarely that efforts have been made to address the wider use of executive orders across the full range of policy spaces in which they are employed. It is an important topic that deserves congressional attention and, one would hope, serious consideration by the president as well.
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Before turning to the specific legislation that is the focus of this hearing and offering additional recommendations for the committee's consideration, I would like to turn briefly to some of the reasons why executive orders are such an important subject, why this is a particularly important time to address the issues presented by their use, and indicate more precisely what some of those difficulties are.
THE IMPORTANCE OF EXECUTIVE ORDERS AND THE COMPLEXITY OF THE FAMILY OF INSTRUMENTS OF PRESIDENTIAL ACTION
Few Americans, even those normally considered part of the informed public, know anything about executive orders. That is true even for many experienced public service professionals at all levels of government. When informed that there are now some 13,140 numbered executive orders in which the chief executive has sought to issue directives having binding legal force to agencies in the executive branch, a very common response is that no one ever told them the president could make law with the stroke of a pen. Of course, there are many more orders than the numbered series would indicate, but just how many is still not known. The numbering process began only in the early years of this century with numbers being applied retroactively to an order issued in 1862 by Abraham Lincoln designated as order number 1. It has been estimated that there may be as many as 50,000 more than the numbered list indicates.
The numbers alone do not paint a full picture of the quantity or importance of executive orders. While many are very narrow or even largely hortatory, others are broad and significant. Although many orders make relatively minor amendments to existing orders, others have much broader impact. Thus Executive Order 12553 revoked some 385 preexisting orders issued from 1909 to 1984.(see footnote 15) Louis Fisher of the Congressional Research Service has provided a description of the important controversies that were engendered by the issuance of executive orders and proclamation from 1933–1999.(see footnote 16)
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In some cases, executive orders provide the primary policy tools employed. One of the most obvious examples is the matter of security classification which has long been governed by executive orders. The security orders provide an example of another factor that makes executive orders so significant. It is what I have termed the decree inertial principle. That is, there have been certain lines of executive orders that have continued from one administration to the next and have had a tendency to grow over the years. An examination of move from E.O. 10501 in the Eisenhower years, to the Nixon E.O. 11652,(see footnote 17) to Carter's 12065,(see footnote 18) to the Reagan administration's 12356,(see footnote 19) to the current 12958(see footnote 20) issued in 1995 provides an example of the growing scope and complexity of policies generated by executive orders over the years. Another example of growing importance and expanding scope over time is the series of regulatory review orders. These began with a very brief order during the Ford administration calling for an inflation impact statement to accompany new rules.(see footnote 21) That was dramatically expanded by Carter's E.O. 12054 that imposed a hybrid rulemaking process on all executive branch agencies, required regulatory analyses, including cost/benefit calculations, and institute a regulatory planning obligation on these agencies.(see footnote 22) This body of rulemaking policy was again significantly expanded during the Reagan years with the issuance of the controversial E.O. 12291 at the beginning of his first term(see footnote 23) and E.O. 12498 at the outset of the second term.(see footnote 24) The former expanded and strengthened the cost/benefit requirement while the latter extended preclearance requirements and OMB authority to so-called pre-rulemaking activities. During the Clinton years, despite rhetoric critical of the Reagan orders, the administration issued an equally complex E.O. 12866(see footnote 25) which has since grown with the additional requirements of E.O. 12875 entitled ''Enhancing Intergovernmental Partnerships,''(see footnote 26) E.O. 13083 on ''Federalism''(see footnote 27) (subsequently suspended by E.O. 13095(see footnote 28)), and E.O. 13084 ''Consultation and Coordination With Indian Tribal Governments.''(see footnote 29)
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Even with all of this, it is still difficult to grasp the full scope and significance of executive orders because an administration may use another type of instrument to accomplish a particular task or may even create new labels for devices that in fact like executive orders. In its now classic 1957 study on executive orders, the Committee on Government Operations observed that:
In the narrower sense Executive Orders are written documents denominated as such . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals.(see footnote 30)
The traditional interpretation, of course, has been that executive orders are used internally while proclamations are directed to those outside government. That formulation appears relatively simple, but there are several complicating factors. First, the Supreme Court said more than a century ago that in terms of their legal effect, there is no significant difference between proclamations and orders.(see footnote 31)
Second, there are several other instruments that have increasingly been used in addition to the traditional order and proclamation devices. The National Security Directive (NSD) is an important and controversial example. Originally developed as National Security Council policy papers during the Truman and Eisenhower years, these decisions came to be known as National Security Action Memorandums (NSAM) during the Kennedy and Johnson years. The Nixon administration renamed them National Security Decision Memorandums, but President Carter later termed them Presidential Directives (PDs). President Bush changed the name again, this time to National Security Directives (NSDs). The Clinton Administration uses Presidential Decision Directives (PDDs). Many, though not all, of these directives are classified. While many are clearly aimed at foreign policy and military affairs, some of the limited studies that have been done to date indicate that some have significant domestic impact.(see footnote 32) Most administrations have refused to notify Congress of the existence of NSDs, to provide copies if they are specifically requested by Congress, or to send witnesses to testify at hearings on the subject. The Clinton administration has used its PDDs flexibly, with some published and others classified. They clearly have many of the same effects as other executive orders, but they are not counted as executive orders.
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Then there are what are termed presidential memoranda. Until relatively recently, presidential memoranda were employed largely in connection with foreign policy for the purpose of making findings where required by legislation. Some of these are still numbered as ''Presidential Determinations'' such as Presidential Determination 99–42, issued on September 29, 1999 as a Memorandum for the Secretary of State on the subject of ''Use of $18.1 Million in Unallocated Nonproliferation, Anti-terrorism, Demining and Related Programs Funds for a U.S. Contribution to the Korean Peninsula Energy Development Organization (KEDO).
They were also sometimes used as a formal notice for the initiation of a process. Hence, when the Clinton administration took office, it issued a memorandum to the Secretary of Health and Human Services, calling upon her to undertake a rulemaking process to reconsider HHS rules restricting disclosure of information concerning abortion services by federally funded family planning clinics. From that very first memorandum, the administration has made it a point to include a statement in some of the documents permission to publish the memorandum, which presumably suggests a view that not all such instruments are required to be publicly disclosed.
However, for more than a decade now, presidents had used memoranda to set policy either by themselves or in a process in which these instruments are issued at the same time as executive orders on the same subject. In several cases, they contain significant additions to or interpretations of the provisions of the executive order itself. One such example came during the Clinton administration with the development of the policy on environmental justice.
President Clinton issued Executive Order 12989 entitled ''Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations'' on February 11, 1994, citing his ''the authority vested in me as President by the Constitution and the laws of the United States.''(see footnote 33) It did not make mention of Title VI of the Civil Rights, nor did it refer to state or local permitting processes. However, on the same day, the administration released ''Memorandum for the Heads of All Departments and Agencies'' that required inter alia:
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In accordance with Title VI of the Civil Rights Act of 1964, each Federal agency shall ensure that all programs or activities receiving Federal financial assistance that affect human health or the environment do not directly, or through contractual or other arrangements, use criteria, methods, or practices that discriminate on the basis of race, color, or national origin.
The Environmental Protection Agency then developed an Interim Guidance document through a process other than the APA requirements for substantive rulemaking though the agency clearly intended that is guidance document would be the basis for processing environmental justice complaints submitted to the EPA. It provided a policy for deciding whether state or local permitting processes violated the environmental justice policy, citing the executive order as authority, but also citing the memorandum, since it was after all the memorandum rather than the executive order that invoked the authority of Title VI. The agency also supported the idea that there would be an implied private right of action under Title VI for those with complaints against local officials. When state and local officials learned that this policy had been developed at the agency level without consultations beyond a limited opportunity for comment, there was a political explosion that resulted in hearings before the Subcommittee on Oversight and Investigations of the Committee on Commerce in August 1998 and produced a decision by EPA to pull back from its initial guidance, with a final document slated to be released early in 2000.
The terms of art can become confusing even to some of those involved. Clinton gave a speech in October of 1994 discussing an executive order that he was going to sign, instructing the Secretary of Education to withhold funds from states that had not implemented a policy that actively attacked guns in the schools, ''Remarks to the Students at Carlmont High School in Belmont, California,''(see footnote 34) but what he actually signed was a memorandum to the Secretary concerning the implementation of the Gun Free Schools Act and the Safe and Drug Free Schools and Community Act.(see footnote 35) On this and other occasions, the administration has used grouped memoranda and executive orders under the general heading of presidential directives.
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Another device that functions in practice very much like an executive order is the presidential signing statement. These statements, issued when the president signs legislation, usually contains congratulatory recognitions for those involved in the passage of the bill, but it may also have a section that expresses the president's disagreement with aspects of the statute that are considered so serious as to justify a directive to the agency head charged with implementation of the new law to ignore certain provisions or to administer them in ways that clearly department from the language of the legislation. The Reagan administration worked diligently to develop the signing statement into a systematic practice with the statements themselves published in U.S. Code Congressional and Administrative News as well as in the Weekly Compilation of Presidential Documents.
Often the signing statements took issue with Congress on constitutional grounds, as when President Bush challenged the minority contracting provisions associated with the Superconducting Super Collider referred to in the Energy and Water Development Appropriations Act of 1992. He instructed the Secretary to administer the statute so as to avoid that constitutional infirmity. However, presidents sometimes take oppose the legislative wording on other grounds as well. In that same signing statement, President Bush chose to reject a specific spending prohibition and indicated that he would undertake such studies as he saw fit to support the program notwithstanding the restriction. More recently there has been a conflict over President Clinton's statement on signing the National Defense Authorization Act for Fiscal Year 2000(see footnote 36) concerning the implementation of the National Nuclear Security Administration. Some signing statements, then, clearly are intended to serve in part at least as presidential directives. The agency head receiving such a directive understands not only that this it indicates the political position of the administration, but also that the Justice Department will not be prepared to support the administration should he or she seek to depart from the mandated course of action.
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Finally, there are numerous cases from the 1970s to the present in which several of these instruments are used in concert with one another or even cited as authority for other presidential mandates. The environment justice example above provides one example. Others include:
The use by President Nixon of E.O. 11615 in conjunction with Proclamation 4974 to implement a wage/price freeze;
The use by President Reagan of E.O. 12356 as the authority to support a number of NSDDs that imposed confidentiality requirements, required personal disclosure, and placed other restrictions on the release of information by civil servants whether they had security clearances or not;
The use of an executive agreement as the basis for executive orders and proclamations issued by Presidents Reagan, Bush, and Clinton with respect to Haitian boat people;
The use of an executive agreement as the basis for executive orders and proclamations issued by Presidents Carter and Reagan to manage claims associated with the Iran Hostage Crisis.(see footnote 37)
Given the fact that there are several different types of instruments that are used for purposes often thought to be addressed by executive orders or proclamation, and the fact that these devices are often used in concert with one another or even as justification for one another, means that any serious effort to address presidential direct action must comprehend the full set of instruments.
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THE CONTEMPORARY TENDENCY TO CHOOSE EXECUTIVE ORDERS FIRST AND STANDARD ADMINISTRATIVE LAW PROCESS LAST
In addition to the complexities associated with these tools of presidential direct action, there is the additional problem that they have increasingly been seen not as exceptional devices to be used relatively infrequently, but as an approach preferable to traditional administrative law techniques. The National Performance Review report issued in October 1993 argued repeatedly that administrative rules and the processes for issuing them was very much at the heart of the red tape that needed to be eliminated.(see footnote 38) In this, the administration was very much following the lead of writers who advocated ''Reinventing Government.''(see footnote 39) And more broadly it has been a time when some scholars of public management have attacked the importance of public law as creating barriers to innovation.(see footnote 40) While there have been a number of important responses to that approach,(see footnote 41) the general trend has produced a tendency to reach for whatever solutions appear promising whether they are attentive to important principles of public law and public administration or not. In such a context, it becomes more important than ever to be watchful and to ensure that systems and procedures are in place to monitor the use presidential directives.
THE DANGERS OF THE USE AND ABUSE OF EXECUTIVE ORDERS
Given all of these factors, there are a number of dangers that can flow from the wide use of executive orders and related instruments. First, there has been an increasing tendency since the 1970s for presidents to make sweeping claims of constitutional authority as the basis for their directives. In some cases in which references are made to statutes, they are very general in nature and implicate relatively ambiguous legislative provisions. It becomes difficult to hold officials accountable when the precise basis for their actions is unclear.
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Second, the process for creating executive orders is itself an executive order. Executive order 11030 was first promulgated in 1962, though it has been amended by a number of later orders, including 11354 (1967), 12080 (1978), and 12608 (1987). Apart from these orders, the only other major constraint is for publication of regular executive orders and proclamations under the provisions of the Federal Register Act. However, the use of NSDs, memoranda, other types of directives, letters of agreement, and other devices can serve as means for evading even the minimal existing requirements, including the requirements for publication.
Given the substantial burdens that have been added to normal agency rulemaking under the APA, and the willingness of presidents to use alternatives to standard administrative law practices, it is tempting for agencies to seek to move forward through presidential direct action. On the other hand, where the White House takes action without sufficient consultation with the administrators who will be responsible for implementation, a variety of difficulties can result. William Lockhart's explanation of the difficulties involved in implementing President Ford's amnesty program for Vietnam draft evaders provides a case in point.(see footnote 42)
There is certainly the danger that excessive use of broad application of executive orders can increase tensions with the Congress and injure the important formal and informal relationships that are essential even in periods in which the two branches have very different ideological and partisan perspectives. It is ironic but true that at various points of tension, some of those involved seem to forget that it is likely that the other party or officials with different ideological tendencies will be moving into and out of power in their respective institutions over time. The party in power now in the White House will at some point be interested in maintaining accountability when the other party occupies the presidency and the same is true in Congress. But the basic relationships need to be maintained throughout if the tasks of government are to be accomplished.
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The tendency to go it alone because it seems easier can be damaging inside Washington, but similar concerns also exist with respect to state and local governments. Many executive orders address issues and agency practices that have significant intergovernmental impacts. If there is the sense, as there has been in recent years, that executive orders have been used to avoid communication with or input from states or localities, then natural tensions can be pushed to dangerous levels of conflict. The recent example of the environmental justice policy provides an example.
Finally, there are several threats to administrative law posed by inappropriate or excessive uses of the instruments of presidential direct action. While it is sometimes tempting for legislators to seek to block rulemaking and other administrative actions with which they disagree by piling on procedural burdens, such actions only add to the temptation for administration to use executive orders as back door policymaking. On the other hand, in some instances executive orders have been used to get control of administrative agencies. This is an acceptable use of those devices provided that in so doing the White House is not attempting either to subvert agency compliance with the requirements of administrative law or to undermine the ability of those agencies to meet the substantive requirements imposed upon them by statute.
Administrative law has evolved over a long period precisely to provide processes that are open, orderly, and participative with respect to rulemaking and that seek to ensure fundamental fairness in adjustications. The nature of executive orders and the processes by which they are issued run in a very different direction. They are usually not open, provide little or no procedural regularity, and have limited participation. Indeed, they invite political appeals to do off the record and behind closed doors that which would be on the record and public in an agency proceeding.
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The standard administrative law processes are also designed to allow the other branches to play their proper roles by permitting judicial review both to achieve accountability and to integrate the legal decisions emerging from agencies into the larger body of law. They support legislative oversight by ensuring that decisions are on the record and that it is a record adequate to permit meaningful oversight. The use of executive orders to confound or circumvent normal administrative law processes is often counterproductive and may ultimately be dysfunction in a number of important respects.
One of the difficulties is that administrative law establishes an important role for judicial review, but there are few well established rules for a process by which executive orders are to be reviewed. Indeed, the implicit assumption in light of the so-called internal/external distinction between executive orders and proclamations, that there really should not be anything like judicial review of executive orders. However, the more obvious it is that the internal/external dichotomy does not realistically present the nature and function of executive orders, and the wider the use of presidential instruments, whether they are termed executive orders or not, the less tenable the assumption becomes that judicial review is not necessary. Why should it be the case that a president can issue a signing statement that to all intents and purposes directs an agency not to implement a statute as it was enacted by the Congress and then not face judicial review?
To this point at least there have been a number of difficulties in obtaining judicial review. Certainly the tightening of the standing doctrine has in several respects made an already difficulty situation that much more complex. While it is certainly appropriate to craft reasonable rules of standing to protect against frivolous litigation or litigation that does not otherwise satisfy the case or controversy requirements, there seems little reason why such presidential actions should not be subject to review. A reading of the opinion for the D.C. Circuit in the striker replacement order case, Chamber of Commerce v. Reich(see footnote 43) reveals some of the existing difficulties. Another case, Xin-Chan Zhang v. Slattery,(see footnote 44) provides a slightly different lesson. In that case, the Second Circuit blocked efforts by the plaintiff to force the government to honor its own executive order. Thus, in addition to standing to sue, there is a question whether an aggrieved party who should have a right of action to compel an agency to honor a lawful executive order that has been issued to it. There is also a question of the degree to which a reviewing court would consider that review is precluded because the statutory authority claimed by the president appears to grant broad discretionary authority.(see footnote 45)
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One of the difficulties with some of the instruments is the problem of ensuring that Congress receives the information it needs, including the participation of White House officials in hearings. While it is clear that agencies can normally be required to participate, there is a history over a number of administrations of a refusal to do so where the White House has taken direct action.
One of the factors that can made matters difficult for those who may wish to conduct oversight, to those who must consider judicial review of executive orders, and for those who must comply with the orders, even if indirectly through their interactions with agencies affected by orders, if the difficulty of integrating the relevant body of directives. The normal processes of administrative law produce a comprehensible, if often complex, body of authorities. However, while there has been an attempt by the National Archives through the Executive Order Disposition Tables to address the status of executive orders, this effort is not really a codification of executive orders and proclamations, let alone a full integration of the several different types of instruments of presidential direct action. There was a codification of at least the executive orders and proclamations that covered the period from 1945 to 1988, but it had not been produced since then and even then it did not cover the other devices discussed here. AS is well known by those who use the materials, Part 3 of the C.F.R. is not a codification as such but a listing of materials developed during a particular period.
THE NEED TO PROTECT PROPER USE OF THE TOOLS
For all of the criticisms and problematic examples cited to this point, it is still important to recall that executive orders, proclamations, and national security directives are essential tools. The challenge is to address the problems posed by the inappropriate or excessive use of these, and related devices, and not to destroy them. After all, the Congress has frequently found it useful to construct legislation in such a way as to make use of most of the devices discussed above. Moreover, comity suggests that whatever is done must recognize the constitutional powers of the executive.
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POSSIBLE RESPONSES TO OBVIOUS PROBLEMS
The difficulties noted above suggest several possible future policy directions. First, there is clearly a need to ensure access to information. There needs to be an effort to ensure that as much material as possible is published in an orderly and accessible form. In addition to the pending proposals, it may be appropriate to consider amendments to the Federal Register Act to achieve that purpose. Given the importance of NSDs (or whatever they may be called by the sitting administration), it also would appear to be important to provide a vehicle to ensure that Congress, through its intelligence committees, could at least be informed of the existence of the directives and that mechanisms be created for the exchange of information in ways consistent with other existing intelligence, military affairs, or foreign policy arrangements.
At some point, it seems necessary to evolve a means of codifying these pronouncements to make them usable and to integrate them into the larger body of public law.
While there is clearly an effort to define executive order broadly to encompass a number of the other tools, it is important to consider the degree to which the tools should be differentiated in an effort to restore them to their particular purposes. This is difficult in light of the accidental or perhaps even deliberate confusion of these implements in recent decades. Thus, it would seem useful to seek to prevent the simultaneous issuance of memoranda and executive orders on the same subject that convey often quite different (though related) directives. Similarly, it appears to be past time to seek to address directly the concept of signing statements at least where they contain specific directives to administrators responsible for implementation of the statute involved.
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It seems clearly important to address the difficulties that have existed to this point in obtaining meaningful judicial review of executive orders. This problem includes the issue of standing, but there is also the question whether an agency can be required to take action that was directed by an executive order or face a judicial response for agency action unlawfully withheld within the meaning of the APA. In discussions of the nature and scope of review, it would be reasonable to address the issue raised but not resolved in the striker replacement decision concerning the degree to which the Chevron deference doctrine is applicable in this type of review as it is in a standard agency review.
To the degree that Congress wishes to enhance its own oversight work or to take an even more active role, it would seem appropriate to consider how to ensure the institutional capacity to ensure a consistent, regular, and, one would hope, constructive interaction between congressional and White House staff.
CONCLUSION
To adopt the view that the president should do whatever he or she thinks necessary to accomplish what may very well be laudable goals is to embrace quite literally the philosophy that the ends justify the means. In a constitutional republic designed to endure under the rule of law through carefully designed procedures and institutions, such an idea is repugnant. It is appropriate and one would think necessary for the Congress to focus carefully and in an ongoing manner on the use of instruments of presidential direct action. In so doing, it is of course important for both branches to respect the constitutional integrity of the other and to seek to improve both effective policymaking and enhanced accountability in ways that are supportive not only of the policy drafting process but also of public administration.
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The materials referenced in Mr. Cooper's oral statement can be found on file with the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary. They include:
Utter, Jennifer A. and Cooper, Phillip J. 1997. ''Executive Direct Administration'' Handbook of Public Law and Administration pp. 186–210.
Cooper, Phillip J. 1997. ''Tower Tools for an Effective and Responsible Presidency.'' Administration & Society, Vol. 29 No. 5, November, pp. 529–556.
Cooper, Phillip J. 1986. ''By Order of the President.'' Administration & Society, Vol. 18, No. 2, August 1986, pp. 233–262.
Mr. GEKAS. We turn to Mr. Griffith.
STATEMENT OF THOMAS B. GRIFFITH, WILEY, REIN & FIELDING, WASHINGTON, DC
Mr. GRIFFITH. Thank you, Chairman Gekas and Representative Nadler, for this opportunity to testify about H. Con. Res. 30, H.R. 2655 and H.R. 3131, each of which deal with executive orders. I applaud the efforts of this subcommittee to discuss the use of executive orders and think through the fundamental questions they raise about how authority granted by the Constitution is distributed among the legislative, executive and judicial branches.
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First, a word about my bias. From 1995 through April of this year, I served as Senate legal counsel. My statutory responsibilities included the duty to ''defend vigorously the constitutional power of Congress to make all laws necessary and proper for carrying into execution the constitutional powers of Congress.'' It is from this perspective that I address the balance of power among the branches.
I believe that it is indispensable to the health of the doctrine of the separation of powers for Congress to make certain that it does not cede its authority to the executive. Congress has many tools at hand with which to respond to objectionable executive orders that are based on statutory authority. I will mention two.
First, Congress can cabin the process by which the President issues statutorily-based orders. Already, the President must publish executive orders in the Federal Register. There is no reason, therefore, why Congress cannot do what H.R. 2655 proposes in section 4: require that the President specifically identify the source of the statutory authority claimed.
Likewise, it is appropriate for Congress to require a period of prior notice, like that proposed in section 3 of H.R. 3131, before the order can take effect. It seems to me that both these proposals would have salutary effects. They would increase executive accountability and underscore that the President is using authority delegated to him by Congress.
Second, Congress can respond directly to the substance of an executive order through legislation that amends the underlying statute to limit or exclude the asserted authority, repeals the underlying granted authority itself, or nullifies the objectionable order. Of course, Congress can always use its constitutional control over the country's purse strings to deny the funds necessary to carry out an executive order. But these tools are only responses to objectionable orders.
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To maintain the Framers' vision of separated powers, Congress must guard its own authority well, by delegating to the executive no more authority than is essential to accomplish a set task. As Senate legal counsel, I was directed by the Senate to defend the Line Item Veto Act in court. The central feature of the act was delegation to the President of significant discretion over raising and spending Federal funds. Our strategy in defending the act, by the way a strategy that failed, was to convince the Supreme Court that the act was not a true line item veto, but rather that it fully complied with the Presentment Clause. If we could do that, which it turns out we could not, we were hopeful that we might prevail, because the remaining argument against the act was that it was too broad a delegation of authority to the President. On that ground, we took comfort that Congress has routinely delegated broad authority of the President; for example, allowing an executive agency to make decisions ''in the public interest,'' charging the executive to take action to eliminate ''unfair competitive practices and conserve natural resources,'' permitting an administrator to fix prices that will ''be generally fair and equitable,'' and granting authority to set ''just and reasonable rates.'' .
Congress should not be surprised that the executive will fully use any authority delegated by Congress and then some. The Framers expected an ongoing tug and pull among the branches, a continual wrestling in which, according to Federalist Number 51, ''ambition would counteract ambition.'' Attempting to withdraw delegated authority once the President has used broad grants of power is more difficult by limiting such a grant in the first place. If Congress does not limit its grant of power initially, it must devote considerable time and energy to an additional piece of legislation to later restrict that grant. More importantly, the vitality of the system of separated powers depends upon Congress's willingness to retain its own legislative power.
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The hope that Congress can broadly delegate these functions and then counteract any specific undesirable results does not address the principal concern. The most fruitful approach, it seems to me, is that Congress carefully limit the statutory authority it extends to the executive in the first place. In this case an ounce of prevention is well worth a pound of cure. Thank you.
Mr. GEKAS. We thank the gentleman.
[The prepared statement of Mr. Griffith follows:]
PREPARED STATEMENT OF THOMAS B. GRIFFITH, WILEY, REIN & FIELDING, WASHINGTON, DC
There is no concept more fundamental to the values protected by our constitutional system of government than the separation of powers. James Madison warned, in Federalist No. 47, that the ''accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.'' Our system of ''[s]eparation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty.'' Clinton v. City of New York, 118 S. Ct. 2091, 2109 (1998) (Kennedy, J., concurring). For the Framers, the separation of powers provided the primary safeguard of liberty. The Framers ''viewed the principle . . . as the absolutely central guarantee of a just Government.'' Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting).
I. THE PRIMACY OF THE LEGISLATIVE BRANCH
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For that reason, I applaud the efforts of this Subcommittee to examine carefully the use of executive orders and to think through the fundamental questions executive orders raise about the structure of our national government and how authority granted by the Constitution is distributed among the legislative, executive, and judicial branches. The Framers expected and anticipated an ongoing tug-and-pull among the branches; a continual wrestling in which ''ambition would counteract ambition.'' J. Madison, Federalist No. 51. It is therefore indispensable to the health of the Nation for Congress to do what this Subcommittee has undertaken and ensure that Congress does not cede its authority to the Executive.
A witness at a congressional hearing should reveal any biases at the outset. From March of 1995 through April of 1999, I served in the Office of Senate Legal Counsel. The last three and one-half of those years I was the Legal Counsel. My duties were set forth in statute. They included the duty to ''defend vigorously the constitutional power of Congress to make all laws . . . necessary and proper for carrying into execution the constitutional powers of Congress and all other powers vested by the Constitution in the Government of the United States, or in any department or office thereof. . . . '' 2 U.S.C. 288c, 288h(5). It is from this perspective that I address the balance of power among the branches. My proclivity for the Legislative Branch is not entirely one of personal custom or habit, however. The primacy of the Legislative Branch is established in the very structure of the Constitution. The creation of the Legislative Branch and the comparatively lengthy description of its powers appear first, in Article I, preceding those of both the Executive and Judicial Branches.
II. EXECUTIVE ORDERS PROVIDE FERTILE GROUND FOR DISPUTATION WITH CONGRESS
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There is an uncertain boundary between legislative and executive power in the area of executive orders. That uncertainty provides fertile soil for disputation. Although it is estimated that thousands of executive orders have been issued, the Constitution does not include any reference to executive orders, and therefore neither authorizes their use nor demarcates their limitations. While individual orders have caused contention between the Congress and the President, however, the legitimacy of their general use is no longer uncertain; a lengthy history originating with President George Washington and continuing under sufficient Congressional acquiescence has provided a recognized pedigree.
Any individual executive order does, of course, require the exercise of legitimate presidential authority, either constitutional or statutory. Constitutional authority is found primarily in three clauses of Article II: ''The executive Power shall be vested in a President of the United States,'' Art. II, § 1, cl. 1, who ''shall take Care that the Laws be faithfully executed,'' Art. II. §3, and who ''shall be Commander in Chief of the Army and Navy of the United States.'' Art. II, §2, cl. 1. The Constitution does not define ''executive Power'' or illustrate the meaning of ''faithfully executed,'' so the specific scope of presidential action taken pursuant to constitutional power is indeterminate.
The scope of power granted to a president pursuant to a statutory delegation is, of course, dependent upon the wording of the statute. Therefore, it is within Congress's power to cabin the scope of statutory authority upon which a president can rightfully act. Indeed, it is Congress's responsibility to do so. ''The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow.'' Clinton v. City of New York, 118 S. Ct. at 2109 (Kennedy, J., concurring). The separation of powers doctrine allots to each branch guardianship over its own powers, but also allows for healthy rivalry over the powers of the other branches.
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The history of executive orders itself justifies the Framers' expectation that each branch would attempt to exercise as much power as the others would allow. But it is not a history of infrequent power grabs by a few boorish presidents; some of our most venerated presidents have issued executive orders, to the recurrent objection of Congress. George Washington's 1793 ''neutrality order'' prohibited American citizens from intervening in foreign disputes, most notably in the war between England and France. President Washington encountered difficulty in enforcing the order, however, until Congress supported his decision and passed the corresponding Neutrality Act of 1794. See Charles M. Thomas, American Neutrality in 1793, A Study in Cabinet Government 42–43 (1931). During the Civil War, President Lincoln issued a proclamation that authorized, among other acts, the suspension of the writ of habeas corpus. Chief Justice Taney ruled that the ability to suspend the writ was exclusively within the legislative power, but Congress again validated the proclamation by passing the Habeas Corpus Act of 1863. See Taney's Decisions in the Circuit Court of the United States for the District of Maryland, 1836–61, p.252.
From Lincoln's presidency to Theodore Roosevelt's, Congress maintained stringent control over executive actions, and executive orders primarily supplemented acts of Congress with relatively minor particulars. See John Contrubis, Executive Orders and Proclamations, CRS Report for Congress, 3–4 (March 9, 1999). President Roosevelt championed what is known as the ''stewardship'' theory of the presidency. As explained in his autobiography, he felt it was the president's ''duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.'' Theodore Roosevelt, An Autobiography 388 (Scribner's, 1931). Despite this expansive view, Roosevelt did not issue executive orders commensurate with his perceived power.
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President Woodrow Wilson, by contrast, issued numerous orders under the auspices of national emergencies during World War I. He left a lasting procedural legacy by issuing the first presidential proclamation declaring a national emergency in order to activate dormant statutory provisions delegating emergency authority to the president. While President Wilson's use of the executive order to address emergency action marked the beginning of its extensive use, Franklin Roosevelt signed the most at over 3,500 orders, the majority of which dealt with World War II or the Great Depression. See Frank Green, Executive Orders: A tradition as old as America, San Diego Union-Tribune, Dec. 13, 1992. During World War II, President Roosevelt issued perhaps the most infamous executive order ever promulgated, directing the internment of 110,000 Japanese-Americans into camps. The Supreme Court did not endorse the order, but held that it did not have the power to review the civilian laws effectuating it. Korematsu v. United States, 323 U.S. 214 (1944). This restraint illustrates the judiciary's reserved attitude toward patrolling executive orders. Only twice has an executive order been directly nullified by a federal court. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996).
More recent presidents have increasingly issued executive orders addressing issues other than military and national emergencies. For example, in 1981, President Ronald Reagan launched an ambitious effort to concentrate executive agency decision-making by issuing Executive Order 12291. The Order required the Office of Management and Budget to subject agency regulations to cost-benefit analysis. President Bill Clinton has issued several executive orders that address issues of national domestic policy, such as Executive Order 13083, which detailed principles of federalism and federal intervention to guide executive agencies and departments, and Executive Order 12954, commonly known as the Striker-Replacement Order, which directed executive agencies not to contract with employers who replaced lawfully striking workers. In addition, President Clinton has issued orders addressing the preservation of natural resources, such as the American Heritage Rivers Initiative (''AHRI''), which established both a process by which rivers could be nominated and designated ''American Heritage Rivers'' and an Interagency Committee to oversee the process; and Proclamation 6920, which set aside 1.7 million acres of land in south central Utah to establish the Grand Staircase-Escalante National Monument.
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III. POTENTIAL CONGRESSIONAL RESPONSES TO EXECUTIVE ORDERS
Congress can respond to an objectionable or overreaching executive order in multiple ways. The appropriate response will vary with the source of presidential authority being exercised. A helpful framework for analyzing executive orders is found in Justice Jackson's concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), commonly referred to as the Steel Seizure Case, in which the Supreme Court found that President Truman had exceeded his authority by confiscating and operating the country's steel mills in an effort to avoid a strike. The President argued that the exigencies of the Korean War made the seizure necessary, and that such a national imperative in turn afforded him the power to act. The Supreme Court disagreed, and held that the order was an unconstitutional distention of the President's power.
Justice Jackson's concurrence, which has since become the framework for the Court's analysis of executive orders, see Dames & Moore v. Regan, 453 U.S. 654 (1981), identified three distributions or balances of legislative and executive power under which a president could act: (1) with express or implied Congressional authorization; (2) in the face of ''congressional inertia, indifference, or quiescence;'' or (3) in contradiction to the express or implied Congressional will. Youngstown, 343 U.S. at 637. When an executive order is properly based on the president's constitutional power there is little Congress can do to respond to this last category. This is most apparent in the realm of national security or foreign affairs, where the president's position as Commander-in-Chief provides unquestioned authority.
When an executive order is statutorily-based, however, there is often much Congress can do to reassert its own power. If an order is exclusively grounded in statutory authority, and so does not rely on any independent constitutional power inherent in the Executive, Congress may amend, retroactively repeal, or nullify the underlying authority. First, Congress may amend the underlying statute to exclude the asserted area of authority, often by clarifying the original intention of the scope of the authority. In addition, Congress may append a sunset provision limiting the timeframe of the delegation. Of course, if a sunset provision is provided for in the original legislation, Congress can accomplish the same reassertion of authority by inaction, instead of new legislation.
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Second, the underlying grant of authority can itself be repealed, thereby withdrawing the basis for any attendant executive orders. Of course, like all legislation the repeal will have to be presented to the president for signing and if the president does not accept the new display of political will, Congress will need the determination to override the president's veto or to accept the order. Third, a recent example of nullification is President George Bush's Executive Order 12806 establishing a fetal tissue bank. Congress passed a law stating that the Order ''shall not have any legal effect,'' which President Bush accepted. P.L. 103–43, 107 Stat. 133, §121.
There are two additional approaches that can be successfully applied even if the president is acting under a statutory grant, or in a ''twilight'' region where the Executive and the Congress may have concomitant powers. First, Congress can use its constitutional control over the country's purse-strings to deny the funds necessary to realize an executive order. The Congress can simply fail to allocate any funds for the order, or, where appropriate, employ statutes such as the Russell Amendment, 31 U.S.C. §1347, which states that an agency ''may not use amounts otherwise available for obligation to pay its expenses without a specific appropriation or specific authorization by law.''
Second, Congress can reaffirm its jurisdiction over the ''twilight'' domain by passing related legislation, including legislation approving an executive order. As described above, several early Congresses employed this approach to either modify satisfactory executive orders or to demonstrate the Congress's position that the Executive was acting pursuant to their continued approval only. This latter purpose is not one of showmanship, but may have concrete consequences; if a court is later asked to curtail creeping encroachments, Congress cannot be said to have ''acquiesced'' or otherwise abdicated its authority.
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IV. CONGRESSIONAL CONTROL AT THE DELEGATION STAGE
Because a president will often be acting under either statutory authority exclusively or in the shared ''twilight'' area, Congress may take advantage of the fact that it is responsible, at least in part, for the initial delegation. In fact, successful separation of powers relies on Congress to delegate with specificity and control; once power has been transferred to another branch, the balance of power has already been upset. To maintain the Framers' vision of shared but separate power, the Congress must guard its own authority well by delegating no more than is essential to accomplish a set task. Neither intervention by the courts nor the hope of a self-restraining executive can replace the independent check of congressional self-preservation. Overly broad delegations of legislative power augment the relative strength of both the Executive and the courts. The less precise and delimited a grant of authority, the more interpretive power courts must exercise; in extreme cases, the gaps in precision will be so wide as to allow courts to ''legislate'' in substitution, thereby assuming power meant to have been exercised by the Congress.
Instances of broad delegations come not simply from the intent to delegate broadly, but frequently from the use of nebulous language. For example, in 1920 Congress granted the Secretary of Labor the authority to deport aliens whom he determined to be ''undesirable residents.'' See Immigration Act of February 5, 1917 (39 Stat. 889, 4289). When Congress later objected to the Secretary's categorizations of who fell into this ''undesirable'' group, the Supreme Court found that a ''common understanding'' allowed the Secretary to continue without congressional interference. Mahler v. Eby, 220 U.S. 32, 40 (1924). Similarly vague language has frequently left Congress with regret but with little power to reassert its authority. These instances include allowing an executive agency to make decisions ''in the public interest''; charging the executive to take action ''to eliminate unfair competitive practices'' and ''to conserve natural resources;'' and permitting an agency administrator to fix prices that ''in his judgment will be generally fair and equitable.'' See, respectively, 49 U.S.C. §5(2); National Industrial Recovery Act, ch. 90, §1, 48 Stat. 195 (1935); and Emergency Price Control Act of 1942, §2(a), 56 Stat. 23, 24–25.
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Charged with interpreting such general and inexact language, the Supreme Court has upheld every challenged congressional delegation to the executive branch since 1935. See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Chief Justice Rehnquist has noted that the difficulty the Court has had identifying a standard by which to judge executive decisions demonstrates ''that Congress, the governmental body best suited and most obligated to make the choice . . . has improperly delegated that choice to the [the executive] and, derivatively, to this Court.'' Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 672 (1980) (Rehnquist, J., concurring). While the courts are much less willing to strike down an overbroad delegation of authority than they once were, the judicial standard that Congress must lay down ''an intelligible principle'' from which the executive can follow remains a desirable yardstick.
Attempting to withdraw delegated authority once a president has used broad grants of power is procedurally more difficult than appropriately limiting such a grant in the first place. If Congress does not limit its grant of power initially, it must then devote time and energy to an additional piece of legislation to later restrict that grant. In addition, the specter of a presidential veto looms larger when attempting to diminish power under which a president has already chosen to act. But in addition to these pragmatic concerns, the structure of separation of powers depends upon Congress's willingness to retain its own legislative power and authority. The hope that Congress can delegate these functions and then counteract any specific undesirable results does not address the principle concern. As Justice Kennedy has cautioned, ''[i]t is no answer . . . to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute . . . could restore to Congress the power it [ ] seeks to relinquish.'' Clinton v. City of New York, 118 S. Ct. 2091, 2109 (1998) (Kennedy, J., concurring). ''Abdication of responsibility is not part of the constitutional design.'' Id.
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Mr. GEKAS. Mr. Mincberg.
STATEMENT OF ELLIOT MINCBERG, VICE PRESIDENT, LEGAL DIRECTOR, AND GENERAL COUNSEL, PEOPLE FOR THE AMERICAN WAY FOUNDATION, WASHINGTON, DC
Mr. MINCBERG. Thank you, Mr. Chairman and Representative Nadler, for inviting me to be here today. I want to thank both of you gentlemen in particular for your efforts throughout this hearing to, as you put it, lower the partisan temperature on this issue and look at the issue as it should be, as one involving the separation and division of powers among our branches of government and how best to deal with that issue.
The vast majority of executive orders, as you pointed out, Mr. Chairman, are routine, noncontroversial, and don't really cause any problem. And indeed, some of the more controversial orders in history have gone down in history as very positive. For example, President Truman's executive order desegregating the military, or indeed the Emancipation Proclamation was in essence an executive order in its day.
There is a small percentage that has been controversial: Both the examples that were given under President Clinton that were talked about earlier; and we can look under Presidents Reagan and Bush at many examples. Depending on your definition, the so-called abortion gag rule might be considered an executive order, and many, many others.
The question is what is the right way to make sure that the balance among the branches is maintained effectively, and I think we have to look first, at the limits that already exist. Again, as you pointed out, Mr. Chairman, all executive orders must come from the Constitution or from power delegated by Congress. And the courts have drawn bright lines, not just in the two cases you mentioned, the Steel Seizure case and the Reich case.
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There was a recent study that indicated that 86 executive orders have been challenged, and only actually 72 have been fully upheld; about 14 of them have been struck down, in whole or in part, by the courts. When there is a violation of somebody's rights, the courts are not going to let the President, any more than they will let the Congress, violate rights that people have under the Constitution, and, as the Wright case points out, also will make sure that there is not a violation of statutory rights, because in the Wright case, the Court didn't look at the constitutional issues simply, but said that what the President had done on striker replacements violated the National Labor Relations Act. So we have that check as well.
As was pointed out already, there are procedural checks that exist in terms of publication. When it is a formal executive order, it goes to the Office of Legal Counsel, which, except in cases of secrecy, does publish or make publicly available its rationale for upholding or for issuing an executive order.
Perhaps one of the most important checks is public pressure. We have heard two examples already of where public pressure does produce results in terms of executive orders. The federalism executive order that was criticized was retracted under public pressure, partly from Congress. The EPA order that was referred to by Professor Cooper, as he pointed out, was rescinded in 1998 and is now being reconsidered.
Finally, and most importantly, as Mr. Griffith points out, Congress has specific power that it can and should use, both in advance and after the fact where necessary, to cabin executive orders on a case-by-case basis, looking specifically at what Congress is trying to do, determining just how much power you do want to delegate to the executive branch, whether it is to an administrative agency or to the President, and trying in advance to limit it where necessary, and then afterwards, where necessary, cutting off money if you don't like what is being done, changing the substantive law. Indeed the Cato Institute reports that there are about 239 executive orders over time that have been fully or partially revoked as a result of action by Congress.
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So certainly, things can and have been done where it is necessary, although as I pointed out before, many executive orders are undertaken with the express, if not implied, approval of Congress and accomplish very important objectives.
Let me talk briefly about a couple of features of the bills that are under consideration today that I think need to be considered. I am not taking a position for or against these bills at this point, but they do raise some serious concerns.
The first question is definition. Both the Paul bill and the Barr bill have very broad definitions that arguably would include anything issued by the executive branch that has any kind of an effect outside strict executive branch officials. Now, that raises the question, first of all, does that get into areas where the President has constitutional power, that Congress presumably doesn't have the constitutional authority to restrain; and second of all, just how far does it go? Does it include, for example, orders that are adopted by administrative agencies under the Administrative Procedure Act, under which there already are a lot of procedural regulations that exist and which may not make sense to add additional restraints onto. So the question of the definition, I think, is very important.
Representative Paul's bill talks about standing. It is not clear whether Congress has the authority to increase that.
Let me conclude very briefly. The question of infringing on executive powers in the Franklin decision in 1992, the Supreme Court specifically declined to apply the APA to the Presidency because of the constitutional questions that would come up, and there are questions about how appropriate it is for Congress to set conditions on the executive power.
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Representative Barr's bill ironically could in some ways have the opposite effect, because if Congress doesn't take action within that 30-day window, a court might later assume that Congress had impliedly approved what the President did. So the effect of that has to be looked at.
I want to close with a quote from Justice Jackson who said that the constitutional text and history on Presidential power, and he said this in the Steel Seizure case, is almost as enigmatic as the dreams Joseph was called upon to interpret for the Pharaoh. None of us, I suspect, have Joseph's power, but all of us, I think, are going to do our best to try to look at this issue in a calm, careful way, and to take the steps that are necessary in the area of Presidential power. Thank you.
[The information referred to follows:]
The materials referenced in Mr. Mincberg's oral statement can be found on file with the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary. They include:
Olson, William J. and Woll, Alan 1999 ''Executive Orders and National Emergencies House Presidents Have Come to 'Run the Country' by Usurping Legislative Power'' Cato Institute Policy Analysis, October 28, No. 358.
Mr. GEKAS. I think we are going to have to subpoena Joseph and have him come before us.
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The question that your last statement brings to mind is, I have always felt that perhaps the Congress has the authority and should exercise the authority of creating a standing to sue in these questions; that is, in the authorizing legislation to actually grant a standing to sue on the part of Congress, to allow Congress to have the standing to sue. Is that feasible?
Mr. MINCBERG. Well, Professor Cooper should comment on this as well, but a couple of points should be raised. First of all, I think it makes more sense to look at it, again, on a bit of a case-by-case basis than more broadly and prophylactically. Congress does have power to expand standing. For example, under the Fair Housing Act, Congress expanded standing to include testers, who aren't directly injured by acts of discrimination. But there are constitutional limits in terms both of case or controversy, and the ability to grant itself standing. And again, I think we would have to look at this on a case-by-case basis.
Mr. GRIFFITH. If I might, Professor Cooper has deferred to me on this. In the Line Item Veto Act case, Raines v. Byrd, you may recall the first challenge to the act was brought by Senator Byrd. I was in the awkward position of being Senate legal counsel and going into court against Senator Byrd on behalf of the Senate. The Supreme Court ruled in fairly clear terms there that there is no such thing as congressional standing.
Mr. MINCBERG. Per se.
Mr. GRIFFITH. Per se.
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Mr. MINCBERG. Right.
Mr. GRIFFITH. For a Member of Congress to bring an action, there needs to be a personal injury, and the Court said fairly clearly that the institutional injury to the power of Congress—at least that was being alleged in the Line Item Veto Act—was not sufficient to create standing.
So one of the comments that I was going to point out about H.R. 2655 is I think the standing provision there is problematic in light of Raines v. Byrd.
Mr. MINCBERG. I would agree with that as well.
Mr. COOPER. If I could speak to the other parts of that provision, perhaps. There is a question that came up not only during this administration, but it came up particularly during the Reagan years, with State and local officials who were very concerned about some of the actions being taken in Washington. That is happening again today, and also with regret to some individuals. First, why should it be the case that a President can direct a Secretary of a Cabinet department not to obey the statute, the result of which is for someone or some State or local government to find themselves unable to do what they should be doing under the law that was passed by Congress, and not be able to get into court to challenge that? When, if an administrative agency had done the same thing on its own, through the administrative process, it would be challengeable.
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The answer usually is, in addition to the one that was just raised by Mr. Griffith, that there is an internal/external distinction. That is, historically and theoretically, the executive order is an order directing an administrative agency to act, not a person outside government; whereas a proclamation is, of course, directed to someone outside of government. Therefore, to be able to get standing to challenge something within an agency creates a real problem of showing causation. Why are you convinced that the agency did what it did or failed to do what you wanted because of the order?
It turns out in practice that it doesn't work that way. It is much more complicated, because these things overlap a bit. So the standing problem turns out to be tough in terms of causation.
But there is a related point. That is, there was a third circuit case that has not been mentioned today so far concerning the question of whether a private individual—this came out of an immigration dispute in New York—whether a private individual can go after the government because an agency failed to implement an executive order of the President. In that particular case the third circuit held that the citizen did not have an implied right of action to say the Justice Department erred because it didn't obey the President's executive order.
There seems to be a bit of a Catch-22 here that requires a little further discussion and consideration. It seems to kind of get us around—it gives an incentive to administrative agencies to get around—the APA and normal judicial review by having things done through this other means. I would add to the point that Mr. Griffith made about incentives and statutes that it might be worth looking at the question of whether some of the statutes that govern the administrative process give people incentives to try the back-door and avoid the APA process.
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Mr. GEKAS. I believe that the Court decisions, the opinions of the Supreme Court in the Truman case and in the Clinton case, will themselves act as deterrents to future Presidents to meddle in those kinds of issues, the taking of property or messing around with the Fair Labor Relations Act in this second one. So they apply stare decisis for the purpose of a President seeking to assert, and maybe that is as far as we can go. I don't know. The bright lines that exist in case law are the bright lines of what an executive order is or is not. I am worried about this whole issue.
The gentleman from New York.
Mr. NADLER. Thank you, Mr. Chairman. You all raise some very interesting questions.
Let me ask Professor Cooper, to what extent can we broaden the definition of executive order so that in the immortal phrase of someone, if it looks like a duck and walks like a duck and quacks like a duck, it would be considered an executive order; in other words, so that it has to be published and otherwise treated like a conventional executive order to avoid some of this back-door searching that you were talking about.
Mr. COOPER. I think it is a complicated problem, but there are a couple of things that can be done. One is to specifically refer to the names of the instruments that have traditionally been used. The one that becomes a problem is what we sometimes call these days a PDD, a Presidential decision directive or a national security directive. Each administration has changed the name. In a way, one could make the cynical argument that it has been changed to avoid someone catching up to them with a modification to the Federal Register Act, which was, in fact, tried in the late 1980's. It didn't succeed here in Congress, but at that time Representative Brooks was leading the charge in that respect.
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Mr. NADLER. I am sorry. What were they trying to do?
Mr. COOPER. They were trying to modify, and I would suggest it is worth taking a look at, the Federal Register Act, to ensure that, for example, memoranda are published if they direct an agency to take action. That is one thing.
Related to that point is the fact that it would make it much easier for you to do oversight and for the courts if we had some codification, some collection somewhere. Right now there is no collection of these executive orders to which one can refer. The closest we can do right now is to look at the disposition tables that are published on the Internet by the Archives that tell us which executive orders are supposedly still in force. But there is no document we can go to, no part of the Code that shows us, that the following orders supplement the statutes, or the following statutes.
So in defining these things, we can use the traditional titles. We can try to add that language about directing an agency——
Mr. NADLER. I appreciate what you are saying. I am intrigued by what you just said. There is no codification of these at all?
Mr. COOPER. Correct.
Mr. NADLER. So what is to prevent some agency from announcing that it is taking some action pursuant to the previously unknown directive issued by President Kennedy 40 years ago which we just happen to have a copy of sitting in the files that no one else ever heard of.
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Mr. COOPER. The answer is that even today, we are discovering some of those documents. Remember that we didn't start numbering these things until 1909, and then we back-dated it so that the first number is attributed to Abraham Lincoln in 1862. The last time a codification was published, sir, was in 1989. There was a codification done by the Office of the Federal Register of at least executive orders and proclamations, but it has not been done since then.
Fortunately, the disposition tables at least let us track within the last 50 or 60 years where somebody has actually called something an executive order, whether it has been amended. In the case during the Reagan years, for example, in an attempt to clean out some of this stuff, one executive order was issued that repealed 385 other executive orders, but, of course, all we have is numbers. So there is no way of knowing what in there was garbage and what in there perhaps was slipped in along the way.
So if we could just codify the things that purport to have effect——
Mr. NADLER. When you say codify, this executive order that repealed 300 some odd other executive orders, and you say it did it by number?
Mr. COOPER. Yes.
Mr. NADLER. Are you implying that we don't know the text of those documents that were repealed?
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Mr. COOPER. Well, we can track down some of them. Certainly the ones after the Federal Register Act we can. We finally located some materials that can help us with earlier documents, but it is interesting, if we are talking about things that are called memoranda, signing statements, for example, weren't published anywhere until the 1980's.
Mr. NADLER. What statements?
Mr. COOPER. Signing statements; for example, there has been a great deal of discussion about the signing statement concerning the Department of Energy last week. Well, there have been a number of these signing statements in which the President at the end—and this goes back—certainly Presidents Reagan and Bush did this a good deal, where they would find objectionable provisions of a statute, not just on constitutional grounds but also on policy grounds, and announce that they were directing the Secretary not to implement those provisions in that way.
Mr. NADLER. As they signed it?
Mr. COOPER. Correct.
Mr. NADLER. On what authority does the President order a subordinate agency of the executive branch of government not to implement part of a law that he just signed?
Mr. COOPER. I know of no such authority, sir, except the argument was made by Mr. Bush, for example, concerning the superconducting supercollider. He objected to two provisions in the statute in 1992. One was that he didn't like the minority contracting provision, although at that time the prevailing Supreme Court rulings had upheld the affirmative action contracting rulings. The second piece was he didn't like a spending restriction that said he couldn't use money for certain kinds of studies. He announced that he thought as President, under his general executive authority, he was to operate the branch efficiently, and therefore, he would do what he thought necessary to implement the policy efficiently.
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Mr. NADLER. And could someone go to court to enjoin him?
Mr. COOPER. I don't know how anyone would get standing to do that on a signing statement. More than that, one of the things about a signing statement is it leaves no fingerprints. It is highly unlikely that anybody down the road would know that.
Mr. MINCBERG. All I was going to say about that is, if you look at the Reich case, the one that the chairman referred to involving the National Labor Relations Act, what the Court said there was you may not be able to go after the President, but if the subordinate agencies are doing something that is contrary to law, and if there is an individual whose rights are being violated by that, that person can go after the agency, regardless of why the agency is not doing what it is supposed to be doing.
If there is a law passed by Congress that says the agency is supposed to be doing X, and I am injured by its failure to do that, presumably, the signing statement doesn't deal with that. But I do agree with Professor Cooper that there are serious questions. I remember when I think it was President Nixon started the whole idea of these signing statements. There are serious questions I think about the validity of interpreting anything from the signing statement, even on the question of what the law means.
Mr. NADLER. With the indulgence of the Chair, I just have one further question.
When you said President Nixon started these—I am a little intrigued. Do you mean that before that Presidents didn't declare things when they signed bills, or do you mean that prior to that, they didn't have reservations about the bills?
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Mr. MINCBERG. At least as I understood it, President Nixon began the practice of, at the occasion of signing, trying in an explicit way to either, as Professor Cooper says, limit what the President would and would not do in terms of the law, and to try to influence the interpretation of the law, to make the signing statement something like legislative history.
Mr. NADLER. My last question is, since President Nixon began that tradition, how have the courts dealt with attempts by Presidents in their signing statements to influence the interpretation of the law? Have the courts given that much impact or effect, or have they said until the Congress determines the law, the President signs it or does not sign it?
Mr. GRIFFITH. I am not aware of any treatment certainly at the Supreme Court level. I can venture a guess as to what a court would do if faced with that argument. I think you are onto it, Mr. Nadler.
Mr. MINCBERG. Frankly, this Supreme Court, as you know, there are some Supreme Court Justices that don't want to pay too much attention to what Congress says on legislative history, so you would think they would be hard-pressed to accept what a President said at signing, but I do agree.
Mr. GRIFFITH. It is an attempt to get around the requirement of the Presentment Clause. In effect, it is an attempt to do a line item veto.
Mr. COOPER. It is also a line item veto, exactly.
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One of the problems is causation. Under current rules, to be able to challenge that, one would have to be able to trace what the agency did back to the signing statement, and that becomes quite difficult under the current laws.
Mr. NADLER. So if the agency did something you object to, and you object to it on the grounds that it is against the statutes, is there any point to trace—let's assume you could trace causation to the signing statement. Is there any point to doing that, or do you simply say it is against the statute and let the court interpret the statute; what is the difference what he said?
Mr. COOPER. There is a legal answer and the practical answer. I will give the practical answer and defer to my colleagues on the other.
The practical answer is one of the problems. Once an agency begins implementing a statute, as you know, down the road, the agency is moving in the direction for reasons that are often lost in the mists of antiquity. It becomes very difficult to trace why a particular interpretation and practice exists. So it becomes difficult as a practical matter to get one's hands on what was driving the agency's behavior and what it means to be doing.
Mr. NADLER. You are missing my point. You are a citizen, you don't like what the agency is doing, you think it is contrary to law, you have standing, you sue. Does it matter why it started doing it. From a practical point of view at that point, does it matter whether you can trace it back to that signing statement, or is it simply the fact that you go in, you say it is contrary to law, the court interprets the law, and the signing statement for all practical purposes is irrelevant.
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Mr. GRIFFITH. I would certainly throw it in my brief as an extra point to get a judge very angry.
Mr. MINCBERG. Right. I think that is exactly right. I mean ultimately, it is the administrative agencies, not the office of the President, that implement the statutes, and either they are implementing them in accord with the statutes or not, and if, as you say, Congressman Nadler, if they injure somebody by violating the law, that person certainly would have the ability to challenge it.
Mr. GEKAS. The time of the gentleman has expired.
I want to tell this panel that this has been scintillating dialogue and examination and cross-examination. You may be surprised, but we have learned something from your testimony, and it goes to demonstrate the necessity and the utility of having hearings like this.
We are going to pursue this in some fashion, minimal or maximum, but at least to take some—some feel for it a little farther than this hearing. We thank you for your participation.
The committee stands adjourned.
[Whereupon, at 12 p.m., the subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
APPENDIX 1
EXECUTIVE ORDERS ISSUED BY PRESIDENT CLINTON
1993
12834 Ethics Commitments by Executive Branch Appointees (January 20, 1993)
12835 Establishment of the National Economic Council (January 25, 1993)
12836 Revocation of Certain Executive Orders Concerning Federal Contracting (February 1, 1993)
12837 Deficit Control and Productivity Improvement in the Administration of the Federal Government (February 10, 1993)
12838 Termination and Limitation of Federal Advisory Committees (February 10, 1993)
12839 Reduction of 100,000 Federal Positions (February 10, 1993)
12840 Nuclear Cooperation with EURATOM (March 9, 1993)
Page 149 PREV PAGE TOP OF DOC
12841 Adjustments to Level IV and V of the Executive Schedule (March 9, 1993)
12842 International Development Law Institute (March 29, 1993)
12843 Procurement Requirements and Policies for Federal Agencies for Ozone-Depleting Substances (April 21, 1993)
12844 Federal use of Alternative Fueled Vehicles (April 21, 1993)
12845 Requiring Agencies to Purchase Energy Efficient Computer Equipment (April 21, 1993)
12846 Additional Measures with Respect to the Federal Republic of Yugoslavia (Serbia and Montenegro) (April 25, 1993)
12847 Amending Executive Order No. 11423 (May 17, 1993)
12848 Federal Plan to Break the Cycle of Homelessness (May 19, 1993)
12849 Implementation of Agreement with the European Community on Government Procurement (May 25, 1993)
12850 Conditions for tRenewal of Most-Favored-Nation Status for the People's Republic of China in 1994 (May 28, 1993)
12851 Administration of Proliferation Sanctions, Middle East Arms Control, and Related Congressional Reporting Responsibilities (June 11, 1993)
Page 150 PREV PAGE TOP OF DOC
12852 President's Council on Sustainable Development (June 29, 1993)
12853 Blocking Government of Haiti Property and Prohibiting Transactions with Haiti (June 30, 1993)
12854 Implementation of the Cuban Democracy Act (July 4, 1993)
12855 Amendment to Executive Order
12852 (July 19, 1993)
12856 Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements (August 3, 1993)
12857 Budget Control (August 4, 1993)
12858 Deficit Reduction Fund (August 4, 1993)
12859 Establishment of the Domestic Policy Council (August 16, 1993)
12860 Adding Members to the Committee on Foreign Investment in the United States (September 3, 1993)
12861 Elimination of one-half of Executive Branch Internal Regulations (September 11, 1993)
Page 151 PREV PAGE TOP OF DOC
12862 Setting Customer Service Standards (September 11, 1993)
12863 President's Foreign Intelligence Advisory Board (September 13, 1993)
12864 United States Advisory Council on the National Information Infrastructure (September 15, '1993)
12865 Prohibiting Certain Transactions Involving UNITA (September 26, 1993)
12866 Regulatory Planning and Review (September 30, 1993)
12867 Termination of Emergency Authority for Certain Export Controls (September 30, 1993)
12868 Measures to Restrict the Participation by United States Persons in Weapons Proliferation Activities* T1(September 30, 1993)
12869 Continuance of Certain Federal Advisory Committees (September 30, 1993)
12870 Trade Promotion Coordinating Committee (September 30, 1993)
12871 Labor-Management Partnerships (October 1, 1993)
12872 Blocking Property of Persons Obstructing Democratization in Haiti (October 18, 1993)
Page 152 PREV PAGE TOP OF DOC
12873 Federal Acquisition, Recycling, and Waste Prevention (October 20, 1993)
12874 Establishing an Emergency Board to Investigate a Dispute between the Long Island Rail Road and Certain of Its Employees Represented by the United Transportation Union (October 20, 1993)
12875 Enhancing the Intergovernmental Partnership (October 26, 1993)
12876 Historically Black Colleges and Universities (November 1, 1993)
12877 Amendment to Executive Order 12569 (November 3, 1993)
12878 Bipartisan Commission on Entitlement Reform (November 5, 1993)
12879 Order of Succession of Officers to Act as Secretary of the Navy (November 8, 1993)
12880 National Drug Control Program (November 16, 1993)
12881 Establishment of the National Science and Technology Council (November 23, 1993)
12882 President's Committee of Advisors on Science and Technology (November 23, 1993)
12883 Delegating a Federal Pay Administration Authority (November 29, 1993)
12884 Delegation of Functions under the Freedom Support Act and Related Provisions of the Foreign Operations, Export Financing and Related Programs Appropriations Act (December 1, 1993)
Page 153 PREV PAGE TOP OF DOC
12885 Amendment to Executive Order No. 12829 (December 14, 1993)
12886 Adjustments of Rates of Pay and Allowances for the Uniformed Services (December 23, 1993)
12887 Amending Executive Order No. 12878 (December 23, 1993)
12888 Amendments to the* Manual for Courts-Martial, United States, 1984 (December 23, 1993)
12889 Implementation of the North American Free Trade Agreement (December 27, 1993)
12890 Amendment to Executive Order No. 12864 (December 30, 1993)
1994
12891 Advisory Committee on Human Radiation Experiments (January 15, 1994)
12892 Leadership and Coordination of Fair housing in Federal Programs: Affirmatively Furthering Fair Housing (January 17, 1994)
12893 Principles for Federal Infrastructure Investments (January 26, 1994)
12894 North Pacific Marine Science Organization (January 26, 1994)
Page 154 PREV PAGE TOP OF DOC
12895 North Pacific Anadromous Fish Commission (January 26, 1994)
12896 Amending the Civil Service Rules Concerning Political Activity (February 3, 1994)
12897 Garnishment of Federal Employees' Pay (February 3, 1994)
12898 Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations (February 11, 1994)
12899 Establishing an Emergency Board to Investigate a Dispute between the Long Island Rail Road and Certain of Its Employees Represented by the United Transportation Union (February 15, 1994)
12900 Educational Excellence for Hispanic Americans (February 22, 1994)
12901 Identification of Trade Expansion Priorities (March 3, 1994)
12902 Energy Efficiency and Water Conservation at Federal Facilities (March 8, 1994)
12903 Nuclear Cooperation with EURATOM (March 9, 1994)
12904 Commission for Environmental Cooperation, Commission for Labor Cooperation, Border Environment Cooperation Commission, and North American Development Bank (March 16,1994)
12905 Trade and Environment Policy Advisory Committee (March 25, 1994)
Page 155 PREV PAGE TOP OF DOC
12906 Coordinating Geographic Data Acquisition and Access: The National Spatial Data Infrastructure (April 11, 1994)
12907 Amending Executive Order No. 12882 (April 14, 1994)
12908 Order of Succession of Officers to Act as Secretary of the Army (April 22, 1994)
12909 Order of Succession of Officers to Act as Secretary of the Air Force (April 22, 1994)
12910 Providing for the Closing of Government Departments and Agencies on April 27, 1994 (April 23, 1994)
12911 Seal for the Office of National Drug Control Policy (April 25, 1994)
12912 Amendment to Executive Order No. 12878 (April 29, 1994)
12913 Revocation of Executive Order No. 12582 (May 2, 1994)
12914 Prohibiting Certain Transactions with Respect to Haiti (May 7, 1994)
12915 Federal Implementation of the North American Agreement on Environmental Cooperation (May 13, 1994)
12916 Implementation of the Border Environment Cooperation Commission and the North American Development Bank (May 13, 1994)
Page 156 PREV PAGE TOP OF DOC
12917 Prohibiting Certain Transactions with Respect to Haiti (May 21, 1994)
12918 Prohibiting Certain Transactions with Respect to Rwanda and Delegating Authority with Respect to Other United Nations Arms Embargoes (May 26, 1994)
12919 National Defense Industrial Resources Preparedness (June 3, 1994)
12920 Prohibiting Certain Transactions with Respect to Haiti (June 10, 1994)
12921 Amendment to Executive Order No. 12864 (June 13, 1994)
12922 Blocking Property of Certain Haitian Nationals (June 21, 1994)
12923 Continuation of Export Control Regulations* (June 30, 1994)
12924 Continuation of Export Control Regulations (August 19, 1994) (EO 12923 revoked)
12925 Establishing an Emergency Board to Investigate a Dispute between the Soo Line Railroad Company and Certain of Its Employees Represented by the United Transportation Union (August 29, 1994)
12926 Implementation of the National Voter Registration Act of 1993 (September 12, 1994)
Page 157 PREV PAGE TOP OF DOC
12927 Ordering the Selected Reserve of the Armed Forces to Active Duty (September 15, 1994)
12928 Promoting Procurement with Small Businesses Owned and Controlled by Socially and Economically Disadvantaged Individuals, Historically Black Colleges and Universities, and Minority Institutions (September 16, 1994)
12929 Delegation of Authority Regarding the Naval Petroleum and Oil Shale Reserves (September 29, 1994)
12930 Measures to Restrict the Participation by United States Persons in Weapons Proliferation Activities* September 29, 1994) (EO 12868 revoked)
12931 Federal Procurement Reform (October 13, 1994)
12932 Termination of Emergency with Respect to Haiti (October 14, 1994)
12933 Nondisplacement of Qualified Workers under Certain Contracts (October 20, 1994)
12934 Blocking Property and Additional Measures with Respect to the Bosnian Serb Controlled Areas of the Republic of Bosnia and Herzegovina* (October 25, 1994)
12935 Amending Executive Order No. 11157 As It Relates to the Definition of ''Field Duty'' (October 28, 1994)
12936 Amendments to the Manual for Courts-Martial, United States, 1984 (November 10, 1994)
Page 158 PREV PAGE TOP OF DOC
12937 Declassification of Selected Records within the National Archives of the United States (November 10, 1994)
12938 Proliferation of Weapons of Mass Destruction* (November 14, 1994)
12939 Expedited Naturalization of Aliens and Noncitizen Nationals Who Served in an Active Duty Status during the Persian Gulf Conflict (November 22, 1994)
12940 Amendment to Civil Service Rule VI (November 28, 1994)
12941 Seismic Safety of Existing Federally Owned or Leased Building (December 1, 1994)
12942 Addition to Level V of the Executive Schedule-Commissioner, Administration for Native Americans (December 12, 1994)
12943 Further Amendment to Executive Order No. 117 55 (December 13, 1994)
12944 Adjustments of Certain Rates of Pay and Allowances (December 28, 1994)
1995
12945 Amendment to Executive Order No. 12640 (January 20, 1995)
12946 President's Advisory Board on Arms Proliferation Policy (January 20, 1995)
Page 159 PREV PAGE TOP OF DOC
12947 Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process* (January 24, 1995)
12948 Amendment to Executive Order No. 12898 (January 30, 1995)
12949 Foreign Intelligence Physical Searches (February 9, 1995)
12950 Establishing an Emergency Board to Investigate a Dispute between Metro North Commuter Railroad and Its Employees Represented by Certain Labor Organizations (February 22, 1995)
12951 Release of Imagery Acquired by Space-Based National Intelligence Reconnaissance Systems (February 22, 1995)
12952 Amendment to Executive Order No. 12950 (February 24, 1995)
12953 Actions required of all Executive Agencies to Facilitate Payment of Child Support (February 27, 1995)
12954 Ensuring the Economical and Efficient Administration and Completion of Federal Government Contracts (March 8, 1995)
12955 Nuclear Cooperation with EURATOM (March 9, 1995)
12956 Israel-United States Binational Industrial Research and Development Foundation (March 13,1995)
Page 160 PREV PAGE TOP OF DOC
12957 Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources* (March 15, 1995)
12958 Classified National Security Information (April 17, 1995)
12959 Prohibiting Certain Transactions with Respect to Iran (May 6, 1995)
12960 Amendments to the Manual for Courts-Martial, United States, 1984 (May 12, 1995)
12961 Presidential Advisory Committee on Gulf War Veterans' Illnesses (May 26, 1995)
12962 Recreational Fisheries (June 7, 1995)
12963 Presidential Advisory Council on HIV/AIDS (June 14, 1995)
12964 Commission on United States-Pacific Trade and Investment Policy (June 21, 1995)
12965 Further Amendment to Executive Order No. 12852 (June 27, 1995)
12966 Foreign Disaster Assistance (July 14, 1995)
12967 Establishing an Emergency Board to Investigate Disputes between Metro North Commuter Railroad and Its Employees Represented by Certain Labor Organizations (July 31,1995)
Page 161 PREV PAGE TOP OF DOC
12968 Access to Classified Information (August 2, 1995)
12969 Federal Acquisition and Community Right-to-Know (August 8, 1995)
12970 Further Amendment to Executive Order No. 12864 (September 14, 1995)
12971 Amendment to Executive Order No. 12425 (September 15, 1995)
12972 Amendment to Executive Order No. 12958 (September 18, 1995)
12973 Amendment to Executive Order No. 12901 (September 27, 1995)
12974 Continuance of Certain Federal Advisory Committees (September 29, 1995)
12975 Protection of Human Research Subjects and Creation of National Bioethics Advisory Commission (October 3, 1995)
12976 Compensation Practices of Government Corporations (October 5, 1995)
12977 Interagency Security Committee (October 19, 1995)
12978 Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers* (October 21, 1995)
12979 Agency Procurement Protests (October 25, 1995)
Page 162 PREV PAGE TOP OF DOC
12980 Further Amendment to Executive Order No. 12852, As Amended (November 17, 1995)
12981 Administration of Export Controls (December 5, 1995)
12982 Ordering the Selected Reserve of the Armed Forces to Active Duty (December 8, 1995)
12983 Amendment to Executive Order 12871 (December 21, 1995)
12984 Adjustments of Certain Rates of Pay and Allowances (December 28, 1995)
1996
12985 Establishing the Armed Forces Service Medal (January 11, 1996)
12986 International Union for Conservation of Nature and Natural Resources (January 18, 1996)
12987 Amendment to Executive Order No. 12964 (January 31, 1996)
12988 Civil Justice Reform (February 5, 1996)
12989 Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Naturalization Act Provisions (February 13, 1996)
12990 Adjustments of Rates of Pay and Allowances for the Uniformed Services, Amendment to Executive Order No. 12984 (February 29, 1996)
Page 163 PREV PAGE TOP OF DOC
12991 Adding the Small Business Administration to the President's Export Council (March 6, 1996)
12992 President's Council on Counter-Narcotics (March 15, 1996)
12993 Administrative allegations against Inspectors General (March 21, 1996)
12994 Continuing the President's Committee on Mental Retardation and Broadening its Membership and Responsibilities (March 21, 1996)
12995 Amendment to Executive Order No. 12873 (March 25, 1996)
12996 Management and General Public Use of the National Wildlife Refuge System (March 25, 1996)
12997 Korean Peninsula Energy Development Organization (April 1, 1996)
12998 Amendment to Executive Order No. 11880 (April 5, 1996)
12999 Educational Technology: Ensuring Opportunity for All Children in the Next Century (April 17, 1996)
13000 Order of Succession of Officers to Act as Secretary of Defense (April 24, 1996)
Page 164 PREV PAGE TOP OF DOC
13001 Establishing an Emergency Board to Investigate a Dispute between Certain Railroads Represented by the National Railway Labor Conference and Their Employees represented by the Transportation Communications International Union (May 8, 1996)
13002 Termination of Combat Zone Designation in Vietnam and Waters Adjacent Thereto (May 13,1996)
13003 Establishing an Emergency Board to Investigate Disputes between Certain Railroads Represented by the National Carriers' Conference Committee of the National Railway Labor Conference and Their Employees Represented by the Brotherhood of Maintenance of Way Employees (May 15, 1996)
13004 Establishing an Emergency Board to Investigate Disputes between Certain Railroads Represented by the National Railway Labor Conference and Their Employees Represented by Certain Labor Organizations (May 17, 1996)
13005 Empowerment Contracting (May 21, 1996)
13006 Locating Federal Facilities on Historic Properties in Our Nation's Central Cities (May 21, 1996)
13007 Indian Sacred Sites (May 24, 1996)
13008 Amending Executive Order No. 12880 (June 3, 1996)
Page 165 PREV PAGE TOP OF DOC
13009 Amendment to Executive Order No. 12963 Entitled Presidential Advisory Council on HIV/AIDS (June 14,1996)
13010 Critical Infrastructure Protection (July 15, 1996)
13011 Federal Information Technology (July 16, 1996)
13012 Establishing an Emergency Board to Investigate a Dispute between the Southeastern Pennsylvania Transportation Authority and Their Employees Represented by the Brotherhood of Locomotive Engineers (July 18, 1996)
13013 Amending Executive Order No. 10 163, the Armed Forces Reserve Medal (August 6, 1996)
13014 Maintaining Unofficial Relations with the People on Taiwan (August 15, 1996)
13015 White House Commission on Aviation Safety and Security (August 22, 1996)
13016 Amendment to Executive Order No. 12580 (August 28, 1996)
13017 Advisory Commission on Consumer Protection and Quality in the Health Care Industry (September 5, 1996)
13018 Amending Executive Order No. 12975 (September 16, 1996)
13019 Supporting Families: Collecting Delinquent Child Support Obligations (September 28, 1996)
Page 166 PREV PAGE TOP OF DOC
13020 Amendment to Executive Order 12981 (October 12, 1996)
13021 Tribal Colleges and Universities (October 19, 1996)
13022 Administration of the Midway Islands (October 31, 1996)
13023 Amendments to Executive Order 12992, Expanding and Changing the Name of the President's Council on Counter-Narcotics (November 6, 1996)
13024 Amending Executive Order 12015, Relating to Competitive Appointments of Students Who Have Completed Approved Career-Related Work Study Programs (November 7, 1996)
13025 Amendment to Executive Order 13010, the President's Commission on Critical Infrastructure Protection (November 13, 1996)
13026 Administration of Export Controls on Encryption Products (November 15, 1996)
13027 Establishing an Emergency Board to Investigate a Dispute between the Southeastern Pennsylvania Transportation Authority and Its Employees Represented by the Brotherhood of Locomotive Engineers (November 15, 1996)
13028 Further Amendments to Executive Order No. 12757—Implementation of the Enterprise for the Americans Initiative (December 3, 1996)
Page 167 PREV PAGE TOP OF DOC
13029 Implementing, for the United States, the Provisions of Annex 1 of the Decision Concerning Legal Capacity and Privileges and Immunities, Issued by the Council of Ministers of the Conference on Security and Cooperation in Europe on December 1, 1993 (December 3, 1996)
13030 Administration of Foreign Assistance and Related Functions and Arms Export Controls (December 12, 1996)
13031 Federal Alternative Fueled Vehicle Leadership (December 13, 1996)
13032 Further Amendment to Executive Order No. 12964 (December 26, 1996)
13033 Adjustments of Certain Rates of Pay and Allowances (December 27, 1996)
1997
13034 Extension of Presidential Advisory Committee on Gulf War Veterans' Illnesses (January 30, 1997)
13035 Advisory Committee on High-Performance Computing and Communications, Information Technology, and the Next Generation Internet (February 11, 1997)
13036 Establishing an Emergency Board to Investigate a Dispute between American Airlines and Its Employees Represented by the Allied Pilots Association (February 15, 1997)
13037 Conurtission to Study Capital Budgeting (March 3, 1997)
Page 168 PREV PAGE TOP OF DOC
13038 Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (March 11, 1997)
13039 Exclusion of the Naval Special Warfare Development Group from the Federal Labor Management Relations Program (March 11, 1997)
13040 Amendment to Executive Order 13017, Advisory Commission on Consumer Protection and Quality in the Health Care Industry (March 25, 1997)
13041 Further Amendment to Executive Order 13010, As Amended (April 3, 1997)
13042 Implementing for the United States Article VII of the Agreement Establishing the World Trade Organization Concerning Legal Capacity and Privileges and Immunities (April 9, 1997)
13043 Increasing Seat Belt Use in the United States (April 16, 1997)
13044 Amending Executive Order 12752, Implementation of the Agricultural Trade Development and Assistance Act of 1954, As Amended, and the Food for Progress Act of 1985, as Amended (April 18, 1997)
13045 Protection of Children from Environmental Health Risks and Safety Risks (April 21, 1997)
13046 Further Amendment to Executive Order 12975, Extension of the National Bioethics Advisory Commission (May 16,1997)
Page 169 PREV PAGE TOP OF DOC
13047 Prohibiting New Investment in Burma* (May 20, t997)
13048 Improving Administrative Management in the Executive Branch (June 10, 1997)
13049 Organization for the Prohibition of Chemical Weapons (June It, 1997)
13050 President's Advisory Board on Race (June 13, 1997)
13051 Internal Revenue Service Management Board (June 24, 1997)
13052 Hong Kong Economic and Trade Offices (June 30, 1997)
13053 Adding Members to and Extending the President's Council on Sustainable Development (June 30, 1997)
13054 Eligibility of Certain Overseas Employees for Noncompetitive Appointments (July 7, 1997)
13055 Coordination of United States Government International Exchanges and Training Programs (July 15, 1997)
13056 Further Amendment to Executive Order 13017, Advisory Commission on Consumer Protection and Quality in the Health Care Industry (July 21, 1997)
Page 170 PREV PAGE TOP OF DOC
13057 Federal Actions in the Lake Tahoe Region (July 26, 1997)
13058 Protecting Federal Employees and the Public from Exposure to Tobacco Smoke in the Federal Workplace (August 9, 1997)
13059 Prohibiting Certain Transactions with Respect to Iran (August 19, 1997)
13060 Establishing an Emergency Board to Investigate Disputes between Amtrak and Its Employees Represented by the Brotherhood of Maintenance of Way Employees (August 21, 1997)
13061 Federal Support of Community Efforts along American Heritage Rivers (September 11, 1997)
13062 Continuance of Certain Federal Advisory Committees and Amendments to Executive Orders 13038 and 13054 (September 29, 1997)
13063 Level V of the Executive Schedule: Removal of the Executive Director, Pension Benefit Guaranty Corporation, Department of Labor (September 30, 1997)
13064 Further Amendment to Executive Order 13010, As Amended, Critical Infrastructure Protection (October 11, 1997)
13065 Further Amendment to Executive Order 13038, Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (October 22, 1997)
Page 171 PREV PAGE TOP OF DOC
13066 Amendment to Executive Order 13037, Commission to Study Capital Budgeting (October 29, 1997)
13067 Blocking Sudanese Government Property and Prohibiting Transactions with Sudan* (November 3, 1997)
13068 Closing of Government Departments and Agencies on Friday, December 26, 1997 (November 25, 1997)
13069 Prohibiting Certain Transactions with Respect to UNITA (December 12, 1997)
13070 The Intelligence Oversight Board, Amendment to Executive Order 12863 (December 15, 1997)
13071 Adjustments of Certain Rates of Pay (December 29, 1997)
1998
13072 White House Millennium Council (February 2, 1998)
13073 Year 2000 Conversion (February 4, 1998)
13074 Amendment to Executive Order 12656 (February 9, 1998)
13075 Special Oversight Board for Department of Defense Investigations of Gulf War Chemical and Biological Incidents (February 19, 1998)
Page 172 PREV PAGE TOP OF DOC
13076 Ordering the Selected Reserve to Active Duty (February 24, 1998)
13077 Further Amendment to Executive Order 130 10, Critical Infrastructure Protection (March 10,1998)
13078 Increasing Employment of Adults with Disabilities (March 13, 1998)
13079 Waiver under the Trade Act of 1974 With Respect to Vietnam (April 7, 1998)
13080 American Heritage Rivers Initiative Advisory Committee (April 7, 1998)
13081 Amendment to Executive Order No. 13038, Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (April 30, 1998)
13082 Joint Mexican-United States Defense Commission (May 8, 1998)
13083 Federalism (May 14,* 1998)
13084 Consultation and Coordination with Indian Tribal Governments (May 14, 1998)
13085 Establishment of the Enrichment Oversight Committee (May 26, 1998)
13086 1998 Amendments to the Manual for Courts-Martial, United States (May 27, 1998)
Page 173 PREV PAGE TOP OF DOC
13087 Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government (May 28, 1998)
13088 Blocking Property of the Governments of the Federal Republic of Yugoslavia (Serbia and Montenegro), the Republic of Serbia, and the Republic of Montenegro, and Prohibiting New Investment in the Republic of Serbia in Response to the Situation in Kosovo (June 09, 1998)
13089 Coral Reef Protection (June 11, 1998)
13090 President's Commission on the Celebration of Women in American History (June 29, 1998)
13091 Administration of Arms Export Controls and Foreign Assistance (June 29, 1998)
13092 President's Information Technology Advisory Committee, Amendments to Executive Order 13035 (July 24, 1998)
13093 American Heritage Rivers, Amending Executive Order 13061 and 13080 (July 27, 1998)
13094 Proliferation of Weapons of Mass Destruction (July 28, 1998)
13095 Suspension of Executive Order 13083 (August 5, 1998)
13096 American Indian and Alaska Native Education (August 6, 1998)
13097 Interparliamentary Union (August 7, 1998)
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13098 Blocking Property of UNITA and Prohibiting Certain Transactions with Respect to UNITA (August 18, 1998)
13099 Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process (August 20, 1998)
13100 President's Council on Food Safety (August 25, 1998)
13101 Greening the Government through Waste Prevention, Recycling, and Federal Acquisition (September 14, 1998)
13102 Further Amendment to Executive Order 13038, Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (September 25, 1998)
13103 Computer Software Piracy (September 30, 1998)
13104 Amendment to Executive Order 1302 1, Tribal Colleges and Universities (October 19, 1998)
13105 Open Enrollment Season for Participants in the Foreign Service Retirement and Disability System and the Central Intelligence Agency Retirement and Disability System (November 2, 1998)
13106 Adjustments of Certain Rates of Pay and Delegation of a Federal Pay Administration Authority (December 7, 1998)
Page 175 PREV PAGE TOP OF DOC
13107 Implementation of Human Rights Treaties (December 10, 1998)
13108 Further Amendment to Executive Order 13037, Commission to Study Capital Budgeting (December 11, 1998)
13109 Half-Day Closing of Executive Departments and Agencies of the Federal Government on Thursday, December 24, 1998 (December 17, 1998)
1999
13110 Nazi War Criminal Records Interagency Working Group (January 11, 1999)
13111 Using Technology to Improve Training Opportunities for Federal Government Employees (January 12, 1999)
13112 Invasive Species (February 3, 1999)
13113 President's Information Technology Advisory Committee, Further Amendments to Executive Order 13035, As Amended (February 10, 1999)
13114 Further Amendment to Executive Order 12852, As Amended, Extending the President's Council on Sustainable Development (February 28, 1999)
13115 Interagency Task Force on the Roles and Missions of the United States Coast Guard (March 25, 1999)
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13116 Identification of Trade Expansion Priorities and Discriminatory Procurement Practices (March 31, 1999)
13117 Further Amendment to Executive Order 1298 1, As Amended (March 31, 1999)
13118 Implementation of the Foreign Affairs Reform and Restructuring Act of 1998 (March 31, 1999)
13119 Designation of Federal Republic of Yugoslavia (Serbia/Montenegro), Albania, the Airspace above, and Adjacent Waters as a Combat Zone (April 13, 1999)
13120 Ordering the Selected Reserve and Certain Individual Ready Reserve Members of the Armed Forces to Active Duty (April 27, 1999)
13121 Blocking Property of the Governments of the Federal Republic of Yugoslavia (Serbia and Montenegro), the Republic of Serbia, and the Republic of Montenegro, and Prohibiting Trade Transactions Involving the Federal Republic of Yugoslavia (Serbia and Montenegro) in Response to the Situation in Kosovo (April 30, 1999)
13122 Interagency Task Force on the Economic Development of the Southwest Border (May 25, 1999)
13123 Greening the Government through Efficient Energy Management (June 3, 1999)
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13124 Amending the Civil Service Rules Relating to Federal Employees with Psychiatric Disabilities (June 4, 1999)
13125 Increasing Participation of Asian Americans and Pacific Islanders in Federal Programs (June 7, 1999)
13126 Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor (June 12, 1999)
13127 Amendment to Executive Order 13073, Year 2000 Conversion (June 14, 1999)
13128 Implementation of the Chemical Weapons Convention and the Chemical Weapons Convention Implementation Act (June 25, 1999)
13129 Blocking Property and Prohibiting Transactions with the Taliban* (July 4, 1999)
13130 National Infrastructure Assurance Council (July 14, 1999)
13131 Further Amendments to Executive Order 12757, Implementation of the Enterprise for the Americans Initiative (July 22, 1999)
13132 Federalism (August 5, 1999)
13133 Working Group on Unlawful Conduct on the Internet (August 5, 1999)
Page 178 PREV PAGE TOP OF DOC
13134 Developing and Promoting Biobased Products and Bioenergy (August 12, 1999)
13135 Amendment to Executive Order 12216, President's Committee on the International Labor Organization (August 27, 1999)
13136 Amendment to Executive Order 13090, President's Commission on the Celebration of Women in American History (September 3, 1999)
13137 Amendment to Executive Order 12975, As Amended, National Bioethics Advisory Commission (September 15,1999)
*Executive orders declaring states of national emergency are in boldface.
All of President Clinton's EOs are available online from the National Archives and Records Administration, http://www. access. gpo. gov/su-docslaceslaces 140. html. EOs since January 1, 1995, are available through the Federal Register or The Weekly Compilation of Presidential Documents; EOs before 1995 are available only through The Weekly Compilation of Presidential Documents.
APPENDIX 2
EXCERPTS FROM YOUNGSTOWN AND REICH
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YOUNGSTOWN SHEET & TUBE V. SAWYER, 343 U.S. 579 (1952) JUSTICE BLACK'S DECISION JOINED BY JUSTICES BURTON, CLARK, DOUGLAS, FRANKFURTER AND JACKSON CHIEF JUSTICE VINSON'S DISSENT JOINED BY JUSTICES REED AND MINTON
Justice Black, decision of the court:
We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. The mill owners argue that the President's order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government's position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States. [Ibid. at 582.]
The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. [The authors have added boldface to certain passages for emphasis.] There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. There are two statutes which do authorize the President to take both personal and real property under certain conditions. However, the Government admits that these conditions were not met and that the President's order was not rooted in either of the statutes. The Government refers to the seizure provisions of one of these statutes (201 [b] of the Defense Production Act) as ''much too cumbersome, involved, and timeconsuming for the crisis which was at hand.''
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Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. Consequently, the plan Congress adopted in that Act did not provide for seizure under any circumstances. [Ibid. at 585–86]
It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that ''The executive Power shall be vested in a President . . . '',that ''he shall take Care that the Laws be faithfully executed''; and that he ''shall be Commander in Chief of the Army and Navy of the United States.'' [Id. at 587.]
Even though ''theater of war'' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.
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Nor 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 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. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that ''All legislative Powers herein granted shall be vested in a Congress of the United States. . . . '' After granting many powers to the Congress, Article I goes on to provide that Congress may ''make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.''
The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress-it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.
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It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution ''in the Government of the United States, or any Department or Officer thereof.''
The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. [Ibid. at 587–89.]
Justice Frankfurter, concurrence:
The Founders of this Nation were not imbued with the modem cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed.
To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded-too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These longheaded statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority. [Ibid. at 593–94.]
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When Congress itself has struck the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.
Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that ''he shall take Care that the Laws be faithfully executed . . .'' Art. II, ' 3. The nature of that authority has for me been comprehensively indicated by Mr. Justice Holmes. ''The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.'' Myers v. United States, 272 U.S. 52, 177. The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to undefined provisions in the frame of our government. [Ibid. at 609–10.]
Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ''executive Power'' vested in the President by '1 of Art. II. [Ibid. at 6 10–11.]
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Thus the list of executive assertions of the power of seizure in circumstances comparable to the present reduces to three in the six-month period from June to December of 1941. We need not split hairs in comparing those actions to the one before us, though much might be said by way of differentiation. Without passing on their validity, as we are not called upon to do, it suffices to say that these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution revealed in the Midwest Oil case. Nor do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.
A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this subject than those of Mr. Justice Brandeis:
''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 govemmental powers among three departments, to save the people from autocracy.'' Myers v. United States, 272 U.S. 52, 240, 293.
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It is not a pleasant judicial duty to find that the President has exceeded his powers and still less so when his purposes were dictated by concern for the Nation's well-being, in the assured conviction that he acted to avert danger. But it would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world. [Ibid. at 613–14.]
Justice Douglas, concurrence:
There can be no doubt that the emergency which caused the President to seize these steel plants was one that bore heavily on the country. But the emergency did not create power; it merely marked an occasion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act. Pid. at 629.]
We therefore cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution. That in turn requires an analysis of the conditions giving rise to the seizure and of the seizure itself. Pid. at 630.]
The method by which industrial peace is achieved is of vital importance not only to the parties but to society as well. A determination that sanctions should be applied, that the hand of the law should be placed upon the parties, and that the force of the courts should be directed against them, is an exercise of legislative power. In some nations that power is entrusted to the executive branch as a matter of course or in case of emergencies. We chose another course. We chose to place the legislative power of the Federal Government in the Congress. The language of the Constitution is not ambiguous or qualified. It places not some legislative power in the Congress; Article 1, Section I says ''All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.'' [Ibid.]
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The President has no power to raise revenues. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize and the Congress by subsequent action might ratify the seizure. But until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected. That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment. It squares with the theory of checks and balances expounded by MR. JUSTICE BLACK in the opinion of the Court in which I join.
If we sanctioned the present exercise of power by the President, we would be expanding Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency. Article II which vests the ''executive Power'' in the President defines that power with particularity. Article II, Section 2 makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. Article III, Section 3 provides that the President shall ''from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.'' The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. Article II, Section 3 also provides that the President ''shall take Care that the Laws be faithfully executed.'' But, as MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER point out, the power to execute the laws starts and ends with the laws Congress has enacted.
The great office of President is not a weak and powerless one. The President represents the people and is their spokesman in domestic and foreign affairs. The office is respected more than any other in the land. It gives a position of leadership that is unique. The power to formulate policies and mold opinion inheres in the Presidency and conditions our national life. The impact of the man and the philosophy he represents may at times be thwarted by the Congress. Stalemates may occur when emergencies mount and the Nation suffers for lack of harmonious, reciprocal action between the White House and Capitol Hill. That is a risk inherent in our system of separation of powers. The tragedy of such stalemates might be avoided by allowing the President the use of some legislative authority. The Framers with memories of the tyrannies produced by a blending of executive and legislative power rejected that political arrangement. Some future generation may, however, deem it so urgent that the President have legislative authority that the Constitution will be amended. We could not sanction the seizures and condemnations of the steel plants in this case without reading Article II as giving the President not only the power to execute the laws but to make some. Such a step would most assuredly alter the pattern of the Constitution.
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We pay a price for our system of checks and balances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many. Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomorrow another President might use the same power to prevent a wage increase, to curb trade-unionists, to regiment labor as oppressively as industry thinks it has been regimented by this seizure. Pid. at 631–34.]
Justice Jackson, concurrence:
That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies-such as wages or stabilization-and lose sight of enduring consequences upon the balanced power structure of our Republic. [Ibid. at 634.]
Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
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1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite,' measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. [Ibid. at 635–38.] In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties.
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This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court's first review of such seizures occurs under circumstances which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.
I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications instead of the rigidity dictated by a doctrinaire textualism.
The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, ''The executive Power shall be vested in a President of the United States of America.'' Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: ''In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.'' If that be true, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.
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The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated. [Ibid. at 639–41.]
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of ''war powers,'' whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the ''Government and Regulation of land and naval Forces,'' by which it may to some unknown extent impinge upon even command functions.
That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, ''No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.'' Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to ''provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions . . . '' Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy. Congress, fulfilling that function, has authorized the President to use the army to enforce certain civil rights. On the other hand, Congress has forbidden him to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress. [Ibid. at 643–45.]
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The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modem nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.
Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored. [Ibid. at 649–51]
In the practical working of our Government we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. In 1939, upon congressional request, the Attorney General listed ninety-nine such separate statutory grants by Congress of emergency or wartime executive powers. They were invoked from time to time as need appeared. Under this procedure we retain Government by law-special, temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers that can be asserted, and persons affected may be informed from the statute of their rights and duties. [Ibid. at 652–53.]
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I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.
But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that ''The tools belong to the man who can use them.'' We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can,prevent power from slipping through its fingers.
The essence of our free Government is ''leave to live by no man's leave, underneath the law''—to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. [Ibid. at 654–55.]
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CHAMBER OF COMMERCE OF THE U.S. V. REICH, 74 F.3D 1322 (D.C. CIR. 1996) SILBERMAN, SENTELLE, AND RANDOLPH, CIRCUIT JUDGES.
The government, for its part, claims that a cause of action under the APA is not available, even were appellants to rely on it, because a challenge to the regulation should be regarded as nothing more than a challenge to the legality of the President's Executive Order and therefore not reviewable. It would seem that the government's position is somewhat in tension with its previous claim that the Secretary's regulations were necessary to ''flesh out'' the Executive Order. And we doubt the validity of its unsupported interpretation of the APA; that the Secretary's regulations are based on the President's Executive Order hardly seems to insulate them from judicial review under the APA, even if the validity of the Order were thereby drawn into question. See Public Citizen v. United States Trade Representative, 303 U.S. App. D.C. 297, 5 F.3d 549, 552 (D.C. Cir. 1993) (''Franklin's denial of judicial review of presidential action] is limited to those cases in which the President has final constitutional or statutory responsibility for the final step necessary for the agency action directly to affect the parties.''), cert. denied, 126 L. Ed. 2d 652, 114 S. Ct. 685 (1994) (emphasis added). Still, recognizing the anomalous situation in which we find ourselves-not able to base judicial review on what appears to us to be an available statutory cause of action-we go on to the issue of whether appellants are entitled to bring a non-statutory cause of action questioning the legality of the Executive Order. [Ibid. at 1326–27.)
The message of this line of cases is clear enough: courts will ''ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command.'' Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681, 90 L. Ed. 2d 623, 106 S. Ct. 2133 (1986). [Ibid. at 1328.]
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Since ''the [Secretary of Labor's] powers are [allegedly] limited by [the NILRA], his actions beyond those limitations [viz., enforcing the Executive Order] are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do . . .'' Larson, 337 U.S. at 689. So, there is no sovereign immunity to waive-it never attached in the first place.
Although the government's brief advanced a breathtakingly broad claim of nonreviewability of presidential actions, the government does not seriously press its argument that we may not exercise jurisdiction over appellants' claim because they lack a cause of action or cannot point to a waiver of sovereign immunity. At oral argument counsel relied instead on the more limited notion, also advanced in the brief, that the Procurement Act delegated wide discretion to the President and we were not authorized to review his exercise of that discretion so long as he did not violate a direct prohibition of another statute (or the Constitution). [Ibid. at 1329, parentheses in original.]
In sum, we think it untenable to conclude that there are no judicially enforceable limitations on presidential actions, besides actions that run afoul of the Constitution or which contravene direct statutory prohibitions, so long as the President claims that he is acting pursuant to the Procurement Act in the pursuit of governmental savings. Yet this is what the government would have us do. Its position would permit the President to bypass scores of statutory limitations on governmental authority, and we therefore reject it. [Ibid. at 1332]
It does not seem to us possible to deny that the President's Executive Order seeks to set a broad policy governing the behavior of thousands of American companies and affecting millions of American workers. The President has, of course, acted to set procurement policy rather than labor policy. But the former is quite explicitly based-and would have to be based—on his views of the latter. For the premise of the Executive Order is the proposition that the permanent replacement of strikers unduly prolongs and widens strikes and disrupts the proper ''balance'' between employers and employees. Whether that proposition is correct, or whether the prospect of permanent replacements deters strikes, and therefore an employer's right to permanently replace strikers is simply one element in the relative bargaining power of management and organized labor, is beside the point. Whatever one's views on the issue, it surely goes to the heart of United States labor relations policy. [Ibid. at 1337.]
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No state or federal official or government entity can alter the delicate balance of bargaining and economic power that the NLRA establishes, whatever his or its purpose may be.
If the government were correct, it follows, as the government apparently conceded, that another President could not only revoke the Executive Order, but could issue a new order that actually required government contractors to permanently replace strikers, premised on a finding that this would minimize unions' bargaining power and thereby reduce procurement costs. Perhaps even more confusing, under the government's theory, the states would be permitted to adopt procurement laws or regulations that in effect choose sides on this issue, which would result in a further balkanization of federal labor policy. Yet the whole basis of the Supreme Court's NLRA pre-emption doctrine has from the outset been the Court's perception that Congress wished the '' 'uniform application,' of its substantive rules and to avoid the 'diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.' '' NLRB v. Nash-Finch Co., 404 U.S. 138, 144, 30 L. Ed. 2d 328, 92 S. Ct. 373 (197 1) (quoting Garner v. Teamsters Union, 346 U.S. 485, 490, 98 L. Ed. 228, 74 S. Ct. 161 (1953).
The government insists that the President's intervention into the area of labor relations is quite narrow. In contrast to the Wisconsin debarment scheme in Gould, the Executive Order does not provide for automatic contract termination or debarment of contractors. The government emphasizes the discretion that the Secretary and contracting agencies have in deciding whether to impose the Executive Order's penalties on contractors who hire permanent replacements. The Secretary may terminate a contract if a contractor has permanently replaced strikers and only if the agency head does not object. The Secretary is also given discretion as to whether to debar a contractor and cannot debar a contractor if an agency head concludes that there is a compelling reason not to do so. The Executive Order's flexibility is said to ensure that intervention into labor relations only occurs to the extent necessary to guarantee efficient and economical procurement.
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We do not think the scope of the President's intervention into and adjustment of labor relations policy is determinative, but despite the government's protestations, the impact of the Executive Order is quite far-reaching. It applies to all contracts over $ 100,000, and federal government purchases totaled $437 billion in 1994, constituting approximately 6.5% of the gross domestic product. STATISTICAL ABSTRACT OF THE UNITED STATES 451 (1995). Federal contractors and subcontractors employ 26 million workers, 22% of the labor force. GAO REPORT. The Executive Order's sanctions for hiring permanent replacements, contract debarment and termination, applies to the organizational unit of the federal contractor who has hired permanent replacements. The organizational unit includes ''any other affiliate of the person that could provide the goods or services required to be provided under the contract.'' 60 Fed. Reg. at 27,861 (emphasis added). If a local unit of Exxon had a contract to deliver $100,001 worth of gas to a federal agency, the organizational unit would include all the other affiliates of Exxon that could have provided the gas; no doubt a significant portion of the Exxon corporation. The broad definition of ''organizational unit'' will have the effect of forcing corporations wishing to do business with the federal government not to hire permanent replacements even if the strikers are not the employees who provide the goods or services to the government. Indeed, corporations who even hope to obtain a government contract will think twice before hiring permanent replacements during a strike. It will be recalled that in Kahn, 618 F.2d at 792–93, the government itself asserted that controls imposed on government contractors-given the size of that portion of the economy-would alter the behavior of non-govemment contractors.
Not only do the Executive Order and the Secretary's regulations have a substantial impact on American corporations, it appears that the Secretary's regulations promise a direct conflict with the NLRA, thus running afoul not only of Machinists but the earlier Garmon pre-emption doctrine. Under the regulations, the Secretary assumes responsibility for determining when a ''labor dispute'' ends, thereby permitting an employer who is debarred because he used permanent replacements to be declared eligible. But the regulations contemplate that the Secretary will not declare the ''labor dispute'' over without the striking union's approval (which enables either strikers to return to work thus ousting the replacements or a collective bargaining agreement to be reached, both of which are factors listed in the regulations for supporting the conclusion that a ''labor dispute'' has ended. See 60 Fed. Reg. at 27,862). Under the NLRA, however, an employer's duty to bargain with a striking union after the strikers have been replaced ends if a year has passed since certification and he has a good faith doubt as to the union's majority status, or the union does not in fact have majority status. See Curtin Matheson, 494 U.S. at 778. If after a union lost majority status an employer were to continue to recognize the union as the exclusive representative-the recognition of which the Secretary's regulations would seem to induce-the employer would be committing an unfair labor practice. See International Ladies Garment Workers v. NLRB, 366 U.S. 731, 6 L. Ed. 2d 762, 81 S. Ct. 1603 (1961).
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We, therefore, conclude that the Executive Order is regulatory in nature and is preempted by the NLRA which guarantees the right to hire permanent replacements. The district court is hereby reversed. [Ibid. at 1337–39.]
APPENDIX 3
EXECUTIVE ORDERS THAT HAVE BEEN MODIFIED OR REVOKED BY STATUTE, WITH THE STATUTE IDENTIFIED (PARTIAL LIST)
President Grover Cleveland
EO 27–A by 61 Stat. 477 §6
President Theodore Roosevelt
EO 589 by 66 Stat. 279
EO 597 1/2 by 47 Stat. 1123 §1240
President William Taft
EO 1141 by 47 Stat. 8 10
EO 1712 by 66 Stat. 279
President Woodrow Wilson
EO 2834 by 41 Stat. 1359
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President Warren Harding
EO 3550 by 96 Stat. 907
EO 3578 by 96 Stat. 907
President Calvin Coolidge
EO 4049 by 66 Stat. 163
President Herbert Hoover
EO 5869 by 66 Stat. 163
President Franklin Roosevelt
EO 6098 by 50 Stat. 798
EO 6568 by 50 Stat. 798
EO 6715 by 96 Stat. 1073
EO 6868 by 87 Stat. 779
EO 6981 by 52 Stat. 437
EO 7057 by 67 Stat. 584
EO 7180 by 67 Stat. 584
EO 7493 by 67 Stat. 584
EO 7554 by 67 Stat. 584
EO 7689 by 67 Stat. 584
EO 7784A by 87 Stat. 779
EO 8033 by 87 Stat. 779
EO 8185 by 60 Stat. 1038
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EO 8294 by 67 Stat. 584
EO 8557 by 80 Stat. 650
EO 8734 by 56 Stat. 23
EO 8766 by 66 Stat. 280
EO 8802 by 59 Stat. 473
EO 8823 by 59 Stat. 473
EO 8888 by 67 Stat. 584
EO 8902 by 79 Stat. 113
EO 8972 by 62 Stat. 865, 868
EO 9001 by 80 Stat. 651
EO 9023 by 80 Stat. 651
EO 9054 by 60 Stat. 501
EO 9055 by 80 Stat. 651
EO 9058 by 80 Stat. 651
EO 9070 by 80 Stat. 651
EO 9082 by 80 Stat. 651
EO 9111 by 59 Stat. 473
EO 9116 by 80 Stat. 651
EO 9142 by 80 Stat. 651
EO 9177 by 80 Stat. 651
EO 9195 by 70A Stat. 666
EO 9210 by 63 Stat. 839
EO 9219 by 80 Stat. 651
EO 9221 by 80 Stat. 651
EO 9233 by 80 Stat. 651
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EO 9241 by 80 Stat. 651
EO 9244 by 60 Stat. 501
EO 9250 by 57 Stat. 63 4(b)
EO 9253 by 80 Stat. 651
EO 9264 by 80 Stat. 651
EO 9269 by 80 Stat. 651
EO 9278 by 67 Stat. 584
EO 9279 by 80 Stat. 651
EO 9296 by 80 Stat. 651
EO 9299 by 80 Stat. 651
EO 9346 by 59 Stat. 473
EO 9330 by 80 Stat. 651
EO 9347 by 58 Stat. 792
EO 9344 by 87 Stat. 779
EO 9350 by 60 Stat. 501
EO 9410 by 80 Stat. 651
EO 9685 by 57 Stat. 163
EO 9425 by 58 Stat. 785
EO 9686 by 80 Stat. 651
EO 9427 by 58 Stat. 785
EO 9689 by 80 Stat. 651
EO 9458 by 70A Stat. 666
EO 9690 by 60 Stat. 341
EO 9460 by 63 Stat. 839
EO 9692 by 61 Stat. 450
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EO 9472 by 61 Stat. 450
EO 9707 by 80 Stat. 651
EO 9487 by 68A Stat. 933
EO 9722 by 80 Stat. 651
EO 9491 by 68A Stat. 933
EO 9726 by 55 Stat. 31
EO 9495 by 80 Stat. 651
EO 9727 by 60 Stat. 341
EO 9519 by 80 Stat. 651
EO 9728 by 57 Stat. 163
EO 9524 by 70A Stat. 666
EO 9736 by 60 Stat. 341
EO 9744A by 80 Stat. 651
President Harry Truman
EO 9750 by 63 Stat. 973
EO 9550 by 63 Stat. 839
EO 9758 by 57 Stat. 163
EO 9556 by 80 Stat. 651
EO 9760 by 68 Stat. 804
EO 9557 by 63 Stat. 839
EO 9766 by 80 Stat. 651
EO 9570 by 60 Stat. 341
EO 9768 by 80 Stat. 651
EO 9571 by 62 Stat. 342
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EO 9772 by 64 Stat. 147
EO 9581 by 80 Stat. 651
EO 9797 by 80 Stat. 651
EO 9592 by 80 Stat. 651
EO 9802 by 68A Stat. 933
EO 9599 by 60 Stat. 664
EO 9804 by 96 Stat. 2556
EO 9602 by 60 Stat. 341
EO 9817 by 68 Stat. 1114
EO 9605 by 80 Stat. 651
EO 9820 by 61 Stat. 193
EO 9609 by 59 Stat. 658
EO 9821 by 80 Stat. 651
EO 9610 by 59 Stat. 658
EO 9828 by 61 Stat. 193
EO 9612 by 79 Stat. 113
EO 9829 by 61 Stat. 193
EO 9616 by 47 Stat. 761 and 48 Stat. 4601
EO 9836 by 63 Stat. 404 and 80 Stat. 651
EO 9618 by 67 Stat. 584
EO 9839 by 80 Stat. 651
EO 9621 by 80 Stat. 651
EO 9842 by 80 Stat. 651
EO 9639 by 57 Stat. 163
EO 9843 by 60 Stat. 539
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EO 9643 by 80 Stat. 651
EO 9846 by 70A Stat. 666
EO 9651 by 60 Stat. 664
EO 9850 by 63 Stat. 839
EO 9658 by 80 Stat. 651
EO 9853 by 76 Stat. 473
EO 9661 by 60 Stat. 341
EO 9871 by 63 Stat. 839
EO 9664 by 59 Stat. 473
EO 9901 by 67 Stat. 584
EO 9665 by 80 Stat. 651
EO 9903 by 80 Stat. 651
EO 9666 by 90 Stat. 2519
EO 9909 by 64 Stat. 320
EO 9673 by 80 Stat. 651
EO 9916 by 87 Stat. 779
EO 9676 by 68A Stat. 933
EO 9930 by 82 Stat. 1277
EO 9946 by 80 Stat. 653
EO 10012 by 63 Stat. 973
EO 9976 by 63 Stat. 859
EO 10053 by 76 Stat. 451
EO 9998 by 94 Stat. 2159
EO 10059 by 63 Stat. 839
EO 10009 by 66 Stat. 279
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EO 10079 by 88 Stat. 1210
EO 10102 by 76A Stat. 701, 702
EO 10487 by 67 Stat. 400
EO 10128 by 87 Stat. 779
EO 10492 by 72 Stat. 432
EO 10131 by 80 Stat. 654
EO 10498 by 70A Stat. 680
EO 10141 by 70A Stat. 660
EO 10510 by 93 Stat. 668
EO 10149 by 64 Stat. 147
EO 10516 by 75 Stat. 318
EO 10155 by 70A Stat. 660
EO 10522 by 94 Stat. 2078
EO 10159 by 68 Stat. 832
EO 10567 by 70 Stat. 786
EO 10197 by 72 Stat. 806
EO 10617 by 94 Stat. 2880
EO 10199 by 65 Stat. 729
EO 10629 by 77 Stat. 134
EO 10209 by 80 Stat. 650
EO 10632 by 90 Stat. 1255 (National
EO 10210 by 80 Stat. 651 (Emergencies Act)
EO 10216 by 80 Stat. 651
EO 10667 by 77 Stat. 134
EO 10227 by 80 Stat. 651
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EO 10677 by 77 Stat. 134
EO 10231 by 80 Stat. 651
EO 10725 by 94 Stat. 2897
EO 10240 by 94 Stat. 2887
EO 10764 by 76 Stat. 360
EO 10243 by 80 Stat. 651
EO 10780 by 94 Stat. 2897
EO 10251 by 76 Stat. 360
EO 10781 by 94 Stat. 2897
EO 10260 by 70 Stat. 786
EO 10807 by 90 Stat. 472
EO 10262 by 90 Stat. 1255 (National)
EO 10824 by 96 Stat. 976 9Emergencies Act)
EO 10857 by 73 Stat. 141
EO 10272 by 65 Stat. 729
EO 10861 by 94 Stat. 2897
EO 10282 by 76 Stat. 360
EO 10907 by 92 Stat. 1043
EO 10294 by 70 Stat. 786
EO 10298 by 80 Stat. 656
President John Kennedy
EO 10299 by 70 Stat. 786
EO 10945 pursuant to 63 Stat. 7
EO 10351 by 94 Stat. 3459
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EO 11071 by 89 Stat. 59
EO 10369 by 70 Stat. 786
EO 11096 by 92 Stat. 1119
EO 10382 by 80 Stat. 654
EO 11175 by 90 Stat. 1814
EO 10396 by 67 Stat. 131
EO 11198 by 90 Stat. 1814
EO 10398 by 90 Stat. 1255 (National)
EO 11211 by 90 Stat. 1814 (Emergencies Act)
EO 10416 by 76 Stat. 366
President Lyndon Johnson
EO 10426 by 67 Stat. 462
EO 11254 by 79 Stat. 10 18
EO 10428 by 70A Stat. 680
EO 11270 by 90 Stat. 1255 (National Emergencies Act)
President Dwight Eisenhower
EO 11285 by 90 Stat. 1814
EO 10443 by 76 Stat. 360
EO 11313 by 84 Stat. 719
EO 10468 by 67 Stat. 584
EO 11357 by 84 Stat. 1739
EO 11368 by 90 Stat. 1814
EO 11381 by 90 Stat. 472
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EO 11399 pursuant to 83 Stat. 220
EO 11401 by 87 Stat. 779
President Richard Nixon
EO 11464 by 90 Stat. 1814
EO 11751 by 87 Stat. 707
EO 11754 by 90 Stat. 1814
EO 11766 by 90 Stat. 1814
EO 11509 by 86 Stat. 770
EO 11523 by 86 Stat. 770
EO 11551 pursuant to 83 Stat. 220
EO 11571 by 87 Stat. 779
EO 11599 by 86 Stat. 65
EO 11614 by 86 Stat. 770
EO 11688 pursuant to 83 Stat. 220
President James Carter
EO 12155 by 101 Stat. 1247
President George Bush
EO 12806 by 107 Stat. 133
TOTAL NUMBER, FOR EACH PRESIDENT, OF EXECUTIVE ORDERS MODIFIED OR REVOKED BY STATUTE
President Grover Cleveland 1
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President Theodore Roosevelt 2
President William Taft 2
President Woodrow Wilson 1
President Warren Harding 2
President Calvin Coolidge 1
President Herbert Hoover 1
President Franklin Roosevelt 64
President Harry Truman 104
President Dwight Eisenhower 23
President John Kennedy 6
President Lyndon Johnson 9
President Richard Nixon 1
President James Carter 1
President George Bush 1
Total 239
(Footnote 1 return)
John Contrubis, ''Executive Orders and Proclamations,'' Congressional Research Service Report No. 95–772 A (March 9, 1999); Harold C. Relyea, ''Presidential Directives: Background and Overview,'' Congressional Research Service Report No. 98–611 GOV (July 16,1998).
(Footnote 2 return)
The discovery by administrative officials that an executive order had inadvertently deleted penalties is discussed in Peter H. Irons, The New Deal Lawyer 70–71 (1982).
(Footnote 3 return)
Ruth P. Morgan, The President and Civil Rights: Policy-Making by Executive Order 36–40 (1970)?
(Footnote 4 return)
''U.S. Argues President Is Above Courts,'' The New York Times, April 25, 1952, at 1.
(Footnote 5 return)
James E. Rernmert, ''Executive Order 11,246: Executive Encroaclunent,'' 55 Am. Bar Asso. J. 1037 (1969). See Ruth H. Morgan, The President and Civil Rights: Policy-Making by Executive Order (1970).
(Footnote 6 return)
''Congressional Oversight of Administrative Agencies: The Philadelphia Plan,'' report of the Senate Judiciary Committee prepared by its Subcommittee on Separation of Powers, 92d Cong., Pt Sess. 13 (Comm. Print 1971).
(Footnote 7 return)
Contractors Ass'n of Eastern Pa. v. Secretary of Labor, 442 F.2d 159, 171 (3d Cir. 1971), cert. denied, 404 U.S. 854 (197 1). See also Contractors Ass'n of Eastern Pa. v. Secretary of Labor, 311 F.Supp. 1002 (E.D. Pa. 1970) and Robert P. Schu-vverk, ''The Philadelphia Plan: A Study in the Dynamics of Executive Power,'' 39 U. Chi. L. Rev. 723 (1972).
(Footnote 8 return)
E.g., Communist Party of the United States v. SACB, 367 U.S. 1 (1961); Albertson v. SACB, 382 U.S. 70 (1965); United States v. Robel, 389 U.S. 258 (1967); Boorda v. SACB, 421 F.2d 1142 (D.C. Cir. 1969), cert. denied, 397 U.S. 1042 (1970).
(Footnote 9 return)
See Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291,'' 80 Mich. L. Rev 193 (1981).
(Footnote 10 return)
Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996); Chamber of Commerce v. Reich, 897 F.Supp. 570 (D.D.C. 1995); Chamber of Commerce of U.S. v. Reich, 57 F.3d 1099 (D.C. Cir. 1995); Chamber of Commerce of U.S. v. Reich, 886 F.Supp. 66 (D.D.C. 1995).
(Footnote 11 return)
Supplemental guidelines for the rivers program Nvere provided in Executive Order 13080 on April 7, 1998, and in Executive Order 13093 on July 27, 1998. 63 Fed. Reg. 17667, 40357 (1998).
(Footnote 12 return)
''American Heritage Rivers Initiative,'' oversight hearing before the House Committee on Resources, 105th Cong., V Sess. (1997); ''The American Heritage Rivers Initiative,'' hearing before the House Committee on Resources, 105th Cong., 1st Sess. (1997).
(Footnote 13 return)
See also Charles v. Dale, ''Legal AMIYSLS of E.O. 13087 to Prohibit Discrimination Based on Sexual Orientation in Federal Employment,'' Congressional Research Service Report No. 98–691 A, August 14, 1998.
(Footnote 14 return)
See U.S. House of Representatives, Committee on Government Operations, Executive Orders and Proclamations: A Study of the Use of Presidential Power, 85th Cong., 1st Sess. (1957). Committee Print.
(Footnote 15 return)
51 Fed.Reg. 7237 (1986).
(Footnote 16 return)
''Executive Orders and Proclamation, 1933–99: Controversies with Congress and in the Courts,'' Congressional Research Service Report (July 23, 1999).
(Footnote 17 return)
37 Fed.Reg. 5209 (1972).
(Footnote 18 return)
43 Fed.Reg. 28949 (1978).
(Footnote 19 return)
47 Fed.Reg. 14874 (1982).
(Footnote 20 return)
60 Fed.Reg. 19825 (1995).
(Footnote 21 return)
E.O. 11821, 39 Fed.Reg. 41501 (1974).
(Footnote 22 return)
43 Fed.Reg. 12661 (1978).
(Footnote 23 return)
46 Fed.Reg. 13193 (1981).
(Footnote 24 return)
50 Fed.Reg. 1036 (1985).
(Footnote 25 return)
58 Fed.Reg. 51735 (1993).
(Footnote 26 return)
58 Fed.Reg. 58093 (1993).
(Footnote 27 return)
63 Fed.Reg. 27651 (1998).
(Footnote 28 return)
63 Fed.Reg. 42565 (1998).
(Footnote 29 return)
63 Fed.Reg. 27655 (1998).
(Footnote 30 return)
Supra note 1, at 1.
(Footnote 31 return)
Wolsey v. Chapman, 101 U.S. 755, 770 (1879).
(Footnote 32 return)
See e.g., U.S. House of Representatives, Hearing Before a Subcommittee of the Committee on Government Operations, Presidential Directives and Records Accountability Act, 100th Cong., 2d Sess.. (1988).
(Footnote 33 return)
59 Fed.Reg. 7629 (1994).
(Footnote 34 return)
30 Weekly Compilation of Presidential Documents 2099 (1994).
(Footnote 35 return)
Implementation of the Gun-Free Schools Act of 1994, and the Safe and Drug-Free Schools and Communities Act, 30 Weekly Compilation of Presidential Documents 2150 (1994).
(Footnote 36 return)
35 Weekly Compilation of Presidential Documents 1887 (1999).
(Footnote 37 return)
See Dames & Moore v. Regan, 453 U.S. 654 (1981).
(Footnote 38 return)
See Al Gore, From Red Tape to Results: Creating a Government That Works Better & Costs Less. The Report of the National Performance Review (Washington, D.C.: Government Printing Office, 1993).
(Footnote 39 return)
See e.g. David Osborne and Ted Gaebler, Reinventing Government (New York: Penguin, 1992).
(Footnote 40 return)
See Barry Bozeman, All Organizations Are Public. (San Francisco: Jossey-Bass, 1987); ''Exploring the Limits of Public and Private Sectors: Sector Boundaries as Maginot Line,'' 48 Public Administration Rev. 672 (1988).
(Footnote 41 return)
See Ronald C. Moe and Robert S. Gilmour, ''Rediscovering Principles of Public Administration: The Neglected Foundation of Public Law,'' 55 Public Administration Rev. 135 (1995); Ronald C. Moe, '''Law' Versus 'Performance' as Objective Standard,'' 48 Public Administration Rev. 675 (1988); ''Exploring the Limits of Privatization,'' 47 Public Administration Rev. 453 (1988).
(Footnote 42 return)
''Discretionary Clemency: Mercy at the Prosecutor's Option,'' 1976 Utah L. Rev. 55 (1976).
(Footnote 43 return)
74 F.3d 1322 (D.C.Cir. 1996).
(Footnote 44 return)
55 F.3d 732 (2d Cir. 1995).
(Footnote 45 return)
See Dalton v. Specter, 511 U.S. 462 (1994).