The terms of that delegation, in 28 CFR §0.25, are themselves instructive. OLC is responsible not only for reviewing proposed executive orders for "form and legality," but also for "making necessary revisions" to proposed orders before "their transmission to the President." Further, OLC offers its legal opinion in writing, so that there is a formal record that the executive order was reviewed for legality, and a formal document signed by a responsible official in OLC vouching for the lawfulness of the proposed action.

I understand that the Clinton administration continues to follow these procedures. There is thus nothing necessarily suspect or unlawful about executive orders. They are part of our constitutional order and of the long-established functioning of the executive branch. The vast majority of executive orders attract little attention or controversy. Given that the President is politically accountable for the performance of his administration, executive orders offer a valid and necessary mechanism for the President to exercise his lawful powers.

II. CONGRESSIONAL RESPONSES TO EXECUTIVE ORDERS

The President's authority to issue executive orders is subject to abuse, as are all government powers. Under the guise of directing the executive branch, a President may further policies contrary to statute, or may shift enforcement priorities in ways that frustrate the intentions of Congress. Some executive orders may cross the line between executing the law and legislating.

The threat of abuse may be particularly high when Congress and the executive branch are controlled by different parties. Certainly when administration_officials announce that they intend to adopt sweeping executive orders designed to circumvent Congress, or in reaction to a decision by Congress to reject parts of the President's program, Congress is right to be concerned that its legislative powers may be misappropriated.

The risk of such abuses, however, should not lead Congress to conclude that all executive orders are suspect. Nor should Congress attempt to constrain by legislation that part of the President's executive order authority that derives from the Constitution.

Rather, Congress should be vigilant to guard its legislative prerogatives and to maintain the separation of powers through its own constitutional authority. When Congress is confronted by an executive order that it believes exceeds the President's powers, it has many tools with which to respond.

First, by statute all substantive executive orders are required to be published in the Federal Register. 44 U.S.C.

§ 1505. Congress and the public thus receive notice of executive orders. Congress may respond to an executive order by exercising its legislative powers to enact contrary legislation, or to deny funding to carry out an executive order. Any subsequent contrary legislation will bind the President's discretion, assuming that the legislation does not impermissibly invade the President's constitutional powers.

Thus, for example, President Carter issued Executive Order 11,988 in May 1977. That executive order was interpreted by the Department of Housing and Urban Development as requiring the bank regulatory agencies to prohibit regulated institutions from making loans secured by real property within a flood plain unless flood insurance was available. Subsequent to the issuance of the executive order, Congress changed the law to permit such loans, and OLC not surprisingly concluded that "the statute takes precedence over" the executive order. 2 OP. OFF. L. C. 41 (1978).

Second, a President may respond to political pressure or complaint about an executive order. Executive Order 13,083, President Clinton's attempt to alter President Reagan's federalism order, elicited sufficient public outcry that President Clinton "Suspended" his own executive order by means of a subsequent executive order. E.O. 13, 095.

Third, Congress as a prophylactic matter can limit the President's ability to invoke statutory authority for executive orders by writing more specific, more precise laws. Although in certain areas it is often necessary or desirable for the President to have sufficient discretion to respond to changing circumstances, that is not true of all legislation. Congress fails to perform its essential legislative function when it allocates excessive discretion to the executive. A vague law that imposes on the executive the task of balancing costs and benefits removes the debate about that balancing from the people's representatives assembled in Congress, and relegates it to a technical world or regulation. A direction to the President, for example, to make highways "safer" without any legislative choice among the many competing policy options requiring different and more costly automobile engineering, or changing highway design, or using Federal funds to encourage the states to change their law

enforcement policies to concentrate on speeders-would grant the President a great deal of discretion to make policy choices that Congress failed to make.

Fourth, Congress could pass a statute that required the President, whenever he invoked a grant of statutory authority to justify an executive order, to identify that statute with particularity. That would avoid the phenomenon of executive orders based generically on unspecified "laws of the United States."

Fifth, Congress could also by legislation require the President, whenever he invoked a grant of statutory authority to justify an executive order, to send the executive order to Congress and delay enforcing the order for thirty days, to give Congress an opportunity to review the order and determine if a legislative response was necessary. Congress presumably would want to build into any such requirement an exception for bona fide emergencies.

Sixth, Congress has a host of other means to influence the President. Congress can conduct oversight hearings to press the administration to explain its legal reasoning; can restrict or reduce appropriations; and can take such indirect actions as slowing the confirmation of Presidential nominees in an attempt to persuade the President to withdraw a questionable order. According to press reports, for example, the Senate delayed a confirmation vote on one of President Clinton's Cabinet nominees until the President agreed to drop a planned executive order that would have instructed Federal agencies to contract with unionized companies. E.g., the Baltimore Sun, May 1, 1997 at 2A.

Further, in addition to Congress's own powers to restrain abuses, in some cases the President's issuance of an executive order can be subject to judicial review. The steel seizure case involved a challenge to an executive order. More recently, President Clinton's Executive Order 12,954, involving striker replacements, was held to be invalid by the Court of Appeals for the District of Columbia Circuit. Chamber of Commerce of the United States v. Reich, 74 F.3D 1322 (D.C. Cir. 1996). The possibility of judicial review cannot replace congressional oversight, however private parties are often unwilling to spend the time and money to challenge the Federal Government, and in some cases it may be difficult to identify parties with standing to

sue.

III. CONCLUSION

Executive orders are a part of the President's constitutional authority. Congress has often added to that authority by granting the President broad statutory discretion. The President must have such broad authority to direct and control his subordinates in the executive branch.

If an executive order exceeds the President's authority, Congress may act legislatively to correct the President, or may use any of numerous political tools. In a proper case, the judiciary is also able to strike down an executive order that is contrary to law.

When a President overreaches and uses executive orders to invade or supersede the legislative powers of Congress, Congress may be sufficiently provoked to consider an across-the-board approach to rein in those abuses. Although that reaction is understandable, Congress must be careful to understand the extent to which executive orders are a necessary adjunct of the President's constitutional duties. At all times, Congress has ample legislative and political means to respond to abusive or lawless executive orders, and thus Congress should resist the temptation to pursue more sweeping, more draconian and more questionable responses.

Mr. Goss. Mr. Kinkopf.

STATEMENT OF NEIL KINKOPF

Mr. KINKOPF. Thank you, Mr. Chairman.

This is, in fact, a very important hearing on a very important and timely and timeless topic. Every statute accords the officer charged with enforcing that statute, unavoidably, a certain amount of discretion, and the exercise of that discretion can aptly be termed lawmaking authority.

Consider, for example, a very simple, straightforward, seemingly specific statute: a speed limit of 55 miles an hour. In a world where it is not possible to pull over everyone who exceeds 55 miles an hour, the officer enforcing that statute must decide whom to pull over and whom to let go. If the officer decides only to pull over cars

going over 60 miles an hour because that will best effectuate the legislature's purpose, the officer certainly engages in lawmaking; as a practical matter, the speed limit has been raised to 60 miles an hour. But has the officer been faithless? No. The officer is seeking expressly to advance the purpose of the statute and faithfully to enforce it.

Discretion-yielding lawmaking power can also derive from statutes because of the fact that statutes are durable. They exist over time. And over time, circumstances change. An executive unavoidably has to decide how a statute applies to changed circumstances. In doing so, the executive officer necessarily engages in something that might be termed "lawmaking."

Finally, statutes interplay, they interact. And when statutes intersect with one another, if they don't themselves tell the officer how to respond, (which often they don't because their interaction is not foreseeable at the time they are enacted), the executive officer has to decide how the two statutes will mesh, how to enforce them consistently with one another. That, itself, can often involve executive lawmaking.

Given that some executive lawmaking is inevitable, Congress has to determine who should do the executive lawmaking. The options would be the President or someone subordinate to the President. It is my contention that in most, though perhaps not all, cases it is best to leave that lawmaking authority in the President or subject to the President's discretion, supervision and control.

The reason for that is that the President is accountable and is accountable to political pressures in ways that his subordinates, who have never stood for election, at least for their current position, have not. In essence, the choice boils down to the President or a faceless bureaucrat; and I think for reasons of accountability, it is generally preferable that the President have the supervision and control, rather than a faceless bureaucrat.

Now, recognizing then that inevitably there is executive lawmaking authority whenever Congress enacts statutes, and that that authority is generally best vested in the President, it does not follow that Congress has no means of keeping the President within the proper bounds. First, Congress can legislate more frequently than it does. It can legislate when circumstances change in order to make clear how the executive should respond to changed circumstances. It can speak specifically to issues of interaction and interplay between statutes when conflicts and tensions arise and become apparent; and as Mr. Cox pointed out, Congress can act to revise or eliminate, or supersede executive orders.

Congress can also engage in oversight through a variety of functions. As Mr. Cox has mentioned, Congress can engage in oversight hearings to educate itself on how, exactly, the executive branch is enforcing the laws and this would support its updating function, its legislating more frequently.

But there are other tools of oversight. An additional tool would be reporting requirements. Rather than going through the formal and time-consuming exercise of holding hearings on every subject, Congress could require executive agencies to submit reports talking about executive orders, how they impact the functions of the agency, what sorts of alternatives are eliminated, what sorts of alter

native enforcement mechanisms are eliminated by the executive order; and thereby Congress can keep itself informed without going to the extent of holding oversight hearings on how executive orders are functioning within the executive branch.

Finally, Congress can expressly state its disapproval of executive action through a resolution. It could be a committee resolution, a House resolution or a full Congress resolution.

Another alternative open is structural reform. In a statute such as the one that Mr. Cox cited, the Federal Procurement statute, Congress could set forth and define the basis on which the authority vested by that statute may be exercised. It could further require as to any statutorily-based order, findings be made and be made on the record and be explained.

In addition to these measures that Congress can pursue, there are checks on overreaching by the President. One Chairman Goss mentioned in his opening remarks is an activist judiciary. Judicial review is always available when an executive order reaches out and affects persons outside of the government.

In addition to judicial review, in the instances when that is not available, there are other law interpreters who can pass judgment on the President's contention that he has authority to issue an executive order. For example, Comptroller General opinions very often bear on questions underlying an executive order, especially executive orders issued pursuant to the authority of the Federal procurement statute. Other law interpreters would include the Congressional Research Service, and the House and Senate legal counsels offices.

Furthermore, public pressure and interest group vigilance can supply a very powerful check on executive orders. If the President overreaches his authority in a way that affects interest groups, and most executive orders do, those interest groups can bring pressure directly on the President and can also bring pressure on Congress to respond to the President.

Finally, there are internal checks available within the executive branch. The Office of Legal Counsel vigilantly ensures that executive orders are duly authorized. In addition, its opinions are generally published and provide precedent against which to adjudge any particular assertion of authority to issue an executive order.

Now, even if you are not terribly comfortable trusting the executive branch to police itself the fox to police the henhouse as it were—those mechanisms of internal checking, OLC's opinions and precedents, allow the external checks to function more effectively. The public, Congress and the courts can more effectively assess what the President has done when OLC issues opinions, and those opinions, as they generally do on close questions, become public.

I want to conclude with a caution against trying to legislate too specifically, which I suspect will be a temptation, given the way this problem has been couched. Not only for the reasons that I stated do I think it is futile, I think specific legislation is very often ineffective.

Criminal statutes aimed at the Mafia, for example, have been effective precisely because they are not specific. Criminal enterprises, like many problems that confront the government, are flexible and can change form overnight. If Congress legislates specifically, it

will codify forms that can be easily evaded and so in rightly focusing upon concerns about maintaining the proper balance of power between the executive branch and Congress, I would urge that Congress not overlook the importance of its ability to enact effective legislation.

Thank you, Mr. Chairman.

Mr. Goss. Thank you, Mr. Kinkopf.

[The statement of Mr. Kinkopf follows:]

PREPARED STATEMENT OF NEIL KINKOPF

The Constitution vests the legislative power in Congress and the executive power in the President, but it nowhere defines those powers. To be sure, the Constitution enumerates the subjects to which the legislative power extends,1 but it does not offer a definition of what that power is, nor does it define "executive power." This was not inadvertent. The framers were practical statesmen who understood that each branch of government would be ambitious and seek to secure as much power, at the expense of the other branches, as possible. The framers also understood that any attempt to stop this by marking clear boundaries on the executive and legislative powers would be futile. Madison derisively referred to such formal demarcations as "parchment barriers." The genius of the Constitution's structure lies in the practical response it adopted. Instead of assuming that angels would govern, it structures the branches so that, as Madison put it, “ambition will be made to counteract ambition"; each branch, in short, would act as the guardian of its own constitutional role. In holding these hearings the committee is fulfilling the Constitution's vision of how the government would and should work.

The Constitution creates a federal government of limited and enumerated powers. Therefore, considerations of any federal action must begin with an inquiry into whether the action is validly authorized. When the President acts unilaterally, such as by issuing an executive order, his authority must derive from either the Constitution or a law, typically a statute.2 If the President issues an executive order that is based entirely on authority that the Constitution's text grants exclusively to the President, that executive order, by definition, does not involve a deployment of a legislative power.3 I will confine my comments to the two contexts that implicate directly Congress's legislative role: where the President's authority to issue an executive order is founded on statute alone, and where the order is based on a combination of constitutional and statutory authority.

The relationship between the executive and legislative powers within these contexts is not fixed and definite, but is better conceptualized as a spectrum. The extent of each is a function of several mutable factors: the specific statute at issue, the nature of Congress's underlying constitutional powers vested in the President, and the specific facts surrounding the executive order.4 Consequently, it is difficult to offer general prescriptions for safeguarding the legislative power against executive overreaching. Nevertheless, I believe that there is support for a number of ob

servations:

I. As long as Congress legislates, its legislation will, unavoidably, vest the executive branch with discretion as to how to enforce Congress's laws.

II. As long as the executive branch holds executive discretion, it is generally desirable that this discretion be subject to some degree of presidential supervision and control.

III. Congress is amply equipped to protect its legislative role from presidential overreaching.

IV. Beyond Congress, there are significant, additional checks against presidential usurpation of the legislative role.

1 See, e.g., U.S. Const. Art. I, sec. 8.

2 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,585 (1952). The President may also derive authority from a duly ratified treaty.

3 Such an order may, however, have ramifications for legislative prerogatives. It may bring about circumstances that yield strong pressure on Congress to enact appropriations. Such an executive order can also serve an agenda-setting function, diverting attention from what may otherwise have been higher congressional priorities. Each of these occurs when the President orders the use of military force, short of war.

4 For the classic exposition of this view, see Youngstown Sheet & Tube, 343 U.S. at 634-55 (Jackson, J., concurring).