PART I

EXECUTIVE ORDERS AND PROCLAMATIONS AND THE PRESIDENTIAL POWERS INVOLVED

A. CONSTITUTIONAL AND STATUTORY BASES OF EXECUTIVE ORDERS AND PROCLAMATIONS

1. WHAT IS AN EXECUTIVE ORDER OR PROCLAMATION?

Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law.

There is no law or even Executive order which attempts to define the terms "Executive order" or "proclamation". In the narrower sense Executive orders and proclamations are written documents denominated as such. Executive orders and proclamations are now issued in two separately numbered series.

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.

Since 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.

The difference between Executive orders and proclamations is more one of form than of substance since in each instance the effective action sought or directed by the document is an exercise of the Executive power under article II of the Constitution and must be based on authority derived from the Constitution or statute.2 Essentially an Executive order or proclamation is a written document issued by the President and titled as such by him or at his direction. Because of this, a precise statement uniformly applicable to the contents of Executive orders and proclamations is impossible. The subject matter of each order or proclamation must be ascertained from an examination of the order or proclamation itself. The authority for its issuance is frequently cited in the document itself.

1 Executive Order 10006, October 11, 1948, governing Executive orders does not define the term “Executive order. 2 For a fundamental treatment of the powers of the President in this regard see James Hart, The Ordinance Making Powers of the President of the United States, Baltimore, the Johns Hopkins Press, 1925.

1

2. LAW AND STATUTE GOVERNING EXECUTIVE ORDERS AND PROCLAMATIONS SPECIFICALLY

The statutes which govern executive orders and proclamations specifically are concerned primarily with matters of publication notice, and evidence. Section 30 of title 1 of the United States Code makes the bound copies of acts of Congress legal evidence of the laws and treaties contained therein in all Federal and State courts and provides that the Statutes at Large shall contain "proclamations." In this section the word "proclamations" stands alone but a in later statute (codified as 1 U. S. C. 112) it is provided that the Statutes at Large contain—

all proclamations by the President in the numbered series issued since the date of adjournment of the regular session of Congress next preceding.3

These statutes can be traced back to an act of Congress in 1874 by which printed copies of the acts of Congress were made legal evidence. All of these statutes deal with the problem of establishing evidence of the law as written by the Congress. The matter of Presidential proclamations is treated as part of this problem.

The Federal Register Act of 1935 is of a later school of thought. It is evidence of a growing concern, inside and outside the Congress, with the problem of regularizing and making generally available important public documents which have legal force and effect. This encompassed the problem of giving to the general public adequate notice of rules and regulations issued under the statutes and the Constitution. The growth in use of Executive orders and agency regulations in the early days of the New Deal gave a tremendous impetus to the movement for having a central publication of Presidential and agency-made law. President Roosevelt issued 674 Executive orders in the 15 months immediately following March 4, 1933. one instance, even the United States Government itself had to ask the Supreme Court to dismiss an appeal by the Government based on a regulation which no longer existed."

In

The Federal Register Act (44 U. S. C. 301 et seq.) requires the publication of specified documents in a serial publication designated the "Federal Register." Publication of the "daily issues" mentioned in the act began on March 14, 1936, approximately 8 months after approval of the act by the President. Meanwhile, on February 18, 1936, the President issued Executive Order 7298 to be effective on March 12, 1936, prescribing the manner of preparing proposed Executive orders and proclamations. Executive Order 7298 was later superseded by Executive Order 10006 of October 11, 1948.6

3 See 1 U. S. C. 112a making the publication entitled "United States Treaties and Other International Agreements" legal evidence of "proclamations by the President of such treaties and agreements" among other things.

4 The Administrative Procedure Act of 1946 was another development stemming from the same concerns. See note on the Federal Register in Massachusetts Law Quarterly, vol. XXI, No. 5, 1936, at p. 51, which indicates that the special committee on administrative law of the American Bar Association in its 1934 report recommended legislation for centralization and publication of all Presidential proclamations, Executive orders, rules, regulations, etc., which have general applicability and legal effect.

See article by E. N. Griswold of the Harvard Law School entitled "Government in Ignorance of the Law-A Plea for Better Publication of Executive Legislation" in Harvard Law Review, vol. XLVIII, 1934-35, pp. 198 et seq.

Executive Order 10006 provides in part as follows:

"SEC. 1.92 Routing and approval of drafts. A proposed Executive order or proclamation shall first be

Section 4 of the Federal Register Act defines the term "document" to include any "Presidential proclamation or Executive order and any order, regulation, rule *** or similar instrument issued, prescribed, or promulgated by a Federal agency." The same section of the act defines the term "Federal agency" or "agency" to mean, among others, the President of the United States."

Section 5 of the act (44 U. S. C. 305) provides:

(a) There shall be published in the Federal Register (1) all Presidential proclamations and Executive orders, except such as have no general applicability and legal effect or are effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof; (2) such documents or classes of documents as the President shall determine from time to time have general applicability and legal effect; and (3) such documents or classes of documents as may be required so to be published by Act of the Congress: Provided, That for the purposes of this chapter every document or order which shall prescribe a penalty shall be deemed to have general applicability and legal effect.

(b) In addition to the foregoing there shall also be published in the Federal Register such other documents or classes of documents as may be authorized to be published pursuant hereto by regulations prescribed hereunder with the approval of the President, but in no case shall comments or news items of any character whatsoever be authorized to be published in the Federal Register.

Section 7 of the act provides:

No document required under section 305 (a) of this title to be published in the Federal Register shall be valid as against any person who has not had actual knowledge thereof until the duplicate originals or certified copies of the document shall have been filed with the Division and a copy made available for public inspection as provided in section 302 of this title; and, unless otherwise specifically provided by statute, such filing of any document, required or authorized to be published under section 305 of this title, shall, except in cases where notice by publication is insufficient in law, be sufficient to give notice of the contents of such document to any person subject thereto or affected thereby. The publication in the Federal Register of any document shall create a rebuttable presumption (a) that it was duly issued, prescribed, or promulgated; (b) that it was duly filed with the Division and made available for public inspection at the day and hour stated in the printed notation; (c) that the copy contained in the Federal Register is a true copy of the original; and, (d) that all requirements of this chapter and the regulations prescribed hereunder relative to such document have been complied with. The contents of the Federal Register shall be judicially noticed and, without prejudice to any other mode of citation, may be cited by volume and page number.

It is to be noted that section 12 of the act exempts treaties, conventions, protocols, and other international agreements, or proclamations thereof by the President. This type of proclamation is, therefore,

submitted, with seven copies thereof, to the Director of the Bureau of the Budget. If the Director of the Bureau of the Budget approves it, he shall transmit it to the Attorney General for his consideration as to both form and legality. If the Attorney General approves it, he shall transmit it to the Director of the Division of the Federal Register, the National Archives. After determining that it conforms to the requirements of sec. 1.91 and is free from typographical or clerical error, the Director of the Division of the Federal Register shall transmit it and three copies thereof to the President. If it is disapproved by the Director of the Bureau of the Budget or by the Attorney General, it shall not thereafter be presented to the President unless it is accompanied by a statement of the reasons for such disapproval.

"SEC. 1.93 Routing of originals and copies; seal. If the order or proclamation is signed by the President, the original and two copies thereof shall be forwarded to the Director of the Division of the Federal Register for appropriate action in conformity with the provisions of the Federal Register Act: Provided, That the seal of the United States shall be affixed, pursuant to the direction of the President, to the originals of all proclamations prior to such forwarding.

"SEC. 1.94 Numbering and certification. The Division of the Federal Register shall number chronologically all Executive orders and proclamations and shall cause to be placed upon the copies thereof the following notation, to be signed by the Director or by some person authorized by him: 'Certified to be a true copy of the original'."

7 See in this connection three letters of the President waiving certain provisions of law published in the Federal Register of Friday, January 4, 1957.

placed in a separate category both by this statute and by title 1 United States Code, section 112a referred to above.

3. EFFECT OF FEDERAL REGISTER ACT ON GENERAL LAW GOVERNING EXECUTIVE ORDERS AND PROCLAMATIONS

The Federal Register Act, being a notice and publication statute, changed one principal aspect of the general law governing Executive orders and proclamations. Prior to the enactment of the Federal Register Act, the effective date of an Executive order or proclamation was the "first moment" of the day in which the Secretary of State sealed and attested to the document. This was the rule laid down by the Supreme Court in the case of Lapeyre v. U. S. in 1872 (17 Wall. 191).8

Under the Federal Register Act (44 U. S. C. 307) the documents are not valid against any person who does not have actual knowledge thereof until the duplicate originals or certified copies shall have been filed as specified.

In other respects the Federal Register Act did not change the general law. For example, there is no adjudicated distinction between an "Executive order" and a "proclamation" although the Supreme Court has not closed the door to some future distinction. In the case of Wolsey v. Chapman (101 U. S. 755; 1879) the Supreme Court considered the effect of a departmental order under a statute of 1841 recognizing the reservation of public land from sale "* * * by any law of Congress or proclamation of the President of the United States In addition to deciding on the validity of a departmental order as distinguished from a Presidential order, the Court considered the form of the Executive action document. Adopting the holding of an earlier court on the matter of the validity of the department's order, the Court had this to say about the form of the document:

*** That case is conclusive of this, unless the word "proclamation," as used in the present statute, has a signification so different from "order" in the other as to raise a material distinction between the two cases ***. We see no such intention on the part of Congress. A proclamation by the President, reserving lands from sale, is his official public announcement of an order to that effect.

8 The Court used the following language:

Νο

"There is no statute fixing the time when acts of Congress shall take effect, but it is settled that where no other time is prescribed, they take effect from their date. Where the language employed is 'from and after the passing of this act,' the same result follows. The act becomes effectual upon the day of its date. In such cases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible. See Welman's Case, where the subject is examined with learning and ability.

"Publishing by outcry, in the market-place and streets of towns, as suggested by Chitty, has, we apprehend, fallen into disuse in England. It is certainly unknown in this country. While it is said the proclamation always appears in the gazette, he does not say that it cannot become operative until promulgated in that way. As no mode of publication is prescribed, and those suggested will answer, we do not see why applying the seal and depositing the instrument in the office of the Secretary of State, may not be held to have the same effect. The President and Secretary have then completed their work. It is there amidst the archives of the nation. The laws of Congress are placed there. All persons desiring it can have access, and procure authenticated copies of both. The President signs and the Secretary of State seals and attests the proclamation. The President and Congress make the laws. Both are intended to be published in the newspapers and in book form. Acts take effect before they are printed or published.

"Why should not the same rule apply to proclamations? We see no solid reason for making a distinction. If it be objected that the proclamation may not then be known to many of those to be affected by it, the remark applies with equal force to statutes. The latter taking effect by relation from the beginning of the day of their date, may thus become operative from a period earlier than that of their approval by the President, and indeed earlier than that at which they received the requisite legislative sanction. The legislative action may all occur in the latter part of the day of their approval. The approval must necessarily be still later. It may be added, as to both statutes and proclamations, that even after publication in the newspapers, there are in our country large districts of territory where actual knowledge does not usually penetrate through that or any other channel of communication, until a considerably later period. It will hardly be contended that proclamations should take effect at different times, in different places, according to the speedier or less speedy means of knowledge in such places respectively." See Arnold v. U. S., 9 Cranch 104 for doctrine on effective date of law.

particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained ***9

Similarly, the provision in the Federal Register Act that the contents of the Federal Register shall be judicially noticed (44 U. S. C. 307) did not alter the law to the effect that Executive orders and proclamations are public acts of which the courts must take judicial notice. The Supreme Court had stated that doctrine in the case of Armstrong v. U. S. (13 Wall. 154, 156; 1871) as follows:

*** The (President's) proclamation of the 25th of December granted pardon unconditionally and without reservation. This was a public act of which all courts of the United States are bound to take notice, and to which all courts are bound to give effect.*** 10

It should also be noted that if founded upon the constitutional powers given to the President or upon statute an Executive order or proclamation" *** has the force of public law * * *” (Jenkins v Collard 10). In fact it has been held that a valid Executive order has the same effect as if it had been incorporated in the authorizing act itself:

*** We are satisfied that the two Executive orders of the President had the same effect as if they had been incorporated in the appropriation resolution itself *** 11

Moreover, Congress may give the same status of law to an Executive order or proclamation by "ratifying" a prior Executive order by statute.12 The result appears to be the same, dating from the enactment of the statute, as though the order was issued after the statute was enacted.

Executive orders and proclamations may not only have the same force and effect as law, but the violation of provisions thereof may be made a crime punishable by sanctions and penalties, if the Congress so provides, without being an unconstitutional delegation of legislative powers.

13

To recapitulate, the Federal Register Act is primarily a notice and publication statute. One must look to the rulings of the courts to find the law concerning Presidential authority or powers, whether expressed in Executive order or proclamation or in some other form. The matter of Presidential authority or powers is one of the basic problems of constitutional law. Since Executive orders are addressed primarily to department (and agency) heads, it becomes pertinent to inquire into the legal relationship of the President, the Congress, and the department (and agency) heads. Since the President by proclamation or otherwise takes actions which may have the force and effect of law as regards private citizens, it is also pertinent to highlight and sum

101 U. S. 770.

10 See also Jenkins v. Collard (145 U. S. 546, 560-561; 1891).

66* *

*As the general pardon and amnesty to all persons implicated in the rebellion are not pleaded by the defendant, to relieve the offending party, whose life estate in the premises in controversy was confiscated, from his disabilities respecting the reversionary interest, or naked fee in the premises, it is claimed that no benefit can be derived from them. But this result does not follow from the omission in pleading, for the pardon and amnesty were made by a public proclamation of the President, which has the force of public law, and of which all courts and officers must take notice, whether especially called to their attention or

not."

Also compare with the doctrine of The Three Friends (166 U. S. 1, 64-66; 1896) in which proclamations of the President calling attention to "serious civil disturbances" and "insurrection" in Cuba were deemed to hold the Supreme Court "judicially informed of the existence of an actual conflict of arms" although there was no recognition of belligerency. On the basis of these proclamations the court held that an Act of Congress prohibiting citizens of the U. S. from taking part in such disturbances adversely to the established government became applicable. In the light of subsequent opinions such as Ex parte Milligan, infra, the question may be raised as to whether the findings in the President's proclamations were conclusive although they were "information."

11 State ex rel. Kaser v. Leonard, 102 P (2d) 197, 129 ALR 1125, 1136; 1940.

12 Hirabayshi v. U. S., 320 U. S. 81, 91; 1943.

13 U. S. v. Grimaud, 220 U. S. 506; Hirabayshi v. U. S., 320 U. S. 81, 88; 1943.