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APPENDIX

THE IMPORTANCE OF SUBSECTION 202(c)
A Case Study

[Excerpt from Congressional Record, Nov. 19, 1973]

SENATOR FRANK CHURCH'S AMENDMENT TO EMERGENCY ENERGY LEGISLATION LIMITING PRESIDENTIAL POWER TO ONE YEAR

Mr. CHURCH. Mr. President, I call to the attention of the Senate an important subsection of S. 2589, the energy emergency bill. Subsection 202 (c) terminates the declared nationwide energy emergency and the authority granted by the act 1 year after its date of enactment. The subsection also requires an interim report by the President to Congress 6 months after implementation of the act. The provision reads as follows:

The declared nationwide energy emergency and the authority granted by this Act shall terminate one year after the date of enactment of this Act. Six months after the date of enactment of this Act, the President shall submit to the Congress an interim report on the implementation of the Act, together with such recommendations for amending or extending the Act as he deems appropriate.

My intention, as sponsor of this provision, and the intention of the committee in adopting it, was to avoid an open-ended delegation of the authority contained in the bill, and of the actions taken pursuant thereto.

If enacted into law, this subsection will alter an old congressional habit of giving extraordinary power to Presidents to meet particular crises, either foreign or domestic, without reserving the means to retrieve the power. Especially since 1933, it has been Congress' habit to delegate extensive emergency authority and not to set a terminating date. Consequently, the United States now has on the books at least 470 significant emergency powers statutes without time limitations. These statutes delegate to the President extensive discretionary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all-encompassing ways. This vast range of powers, taken together, confer enough authority to rule this country without reference to normal constitutional processes. These laws make no provision for congressional oversight nor do they reserve to Congress a means for terminating the "temporary" emergencies which trigger them into use.

These emergency powers statutes are invoked by a Presidential declaration of a state of national emergency. The United States has been in such a state of declared national emergency since March 9, 1933. In fact, there are now in effect four Presidentially proclaimed states of national emergency. In addition to the national emergency declared by President Roosevelt, there is also the national emergency proclaimed by President Truman on December 16, 1950, during the Korean conflict, plus the states of national emergency declared by President Nixon on March 23, 1970, and August 15, 1971. When the energy emergency before us, declared by Congress, becomes law, it will be a fifth emergency, added on top of the four now in existence.

Along with my distinguished colleague from Maryland (Mr. Mathias), pursuant to Senate Resolution 9, I cochair the Special Senate Committee on the Termination of the National Emergency which has been studying and investigating the states of national emergency in which we now find ourselves and the plethora of emergency powers that Congress has passed over the years.

The Special Committee on the Termination of the National Emergency was created to examine the consequences of terminating the declared states of national emergency that now prevail; to recommend what steps the Congress should take to insure that the termination can be accomplished without adverse effect upon the necessary tasks of governing; and, also, to recommend ways in which the United States can meet future emergency situations with speed and effectiveness but without relinquishment of congressional oversight and control. In accordance with this mandate, the special committee-in conjunction with the executive branch, expert constitutional authorities, as well as former high officials of this Government-is now engaged in a detailed study to determine the most reasonable ways to restore normalcy to the operations of our Government.

Our work to date has influenced the inclusion of subsection 202 (c) in the energy emergency bill. If it becomes law, I hope it means that Congress has kicked at last its bad habit of delegating without retrieving. I hope the precedent will help turn the tide back toward the legislative branch where it belongs. For, unless Congress takes such steps to strengthen its capacity to make the laws through the representative political process as the Constitution intended, then the unmistakable flow toward one-man government will continue.

TITLE 44-PUBLIC PRINTING AND DOCUMENTS

CHAPTER 15-FEDERAL REGISTER AND

CODE OF FEDERAL REGULATIONS

Sec. 1501. 1502.

Definitions.

Custody and printing of Federal documents; appointment of Director. 1503. Filing documents with Office; notation of time; public inspection; transmission for printing.

1504. "Federal Register"; printing; contents; distribution; price.

1505.

1506.

Documents to be published in Federal Register.

Administrative Committee of the Federal Register; establishment and composition; powers and duties.

1507. Filing document as constructive notice; publication in Federal Register as presumption of validity; judicial notice; citation. Publication in Federal Register as notice of hearing.

1508.

1509. Cost of publication; appropriations authorized; penalty mail privilege. 1510. Code of Federal Regulations.

1511. International agreements excluded from provisions of chapter.

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in title 15 section 77sss.

44 U.S.C. 1501. DEFINITIONS

As used in this chapter, unless the context otherwise requires

"document" means a Presidential proclamation or Executive order and an order, regulation, rule, certificate, code of fair competition, license, notice, or similar instrument, issued, prescribed, or promulgated by a Federal agency;

"Federal agency" or "agency" means the President of the United States, or an executive department, independent board, establishment, bureau, agency, institution, commission, or separate office of the administrative branch of the Government of the United States but not the legislative or judicial branches of the Government;

"person" means an individual, partnership, association, or corporation.

(Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1273.)

HISTORICAL AND REVISION NOTES

Based on 44 U.S. Code, 1964 ed., § 304 (July 26, 1935, ch. 417, § 4, 49 Stat. 501). 44 U.S.C. 1502. CUSTODY AND PRINTING OF FEDERAL DOCUMENTS; APPOINTMENT OF DIRECTOR

The Administrator of General Services, acting through the Office of the Federal Register, is charged with the custody and, together with

26-147-74-pt. 3- -4

the Public Printer, with the prompt and uniform printing and distribution of the documents required or authorized to be published by section 1505 of this title. There shall be at the head of the Office a director, appointed by, and who shall act under the general direction of, the Administrator of General Services in carrying out this chapter and the regulations prescribed under it. (Pub. L. 90-620, Oct. 22, 1968, 82 Stat. 1273.)

HISTORICAL AND REVISION NOTES

Based on 44 U.S. Code, 1964 ed., § 301 (July 26, 1935, ch. 417, § 1, 49 Stat. 500; 1939 Reorg. Plan No. II, § 202, eff. July 1, 1939, 4 F.R. 2732, 53 Stat. 1435; June 30, 1949, ch. 288, title I, § 104 (a), 63 Stat. 381).

44 U.S.C. 1503. FILING DOCUMENTS WITH OFFICE; NOTATION OF TIME; PUBLIC INSPECTION; TRANSMISSION FOR PRINTING

The original and two duplicate originals or certified copies of a document required or authorized to be published by section 1505 of this title shall be filed with the Office of the Federal Register, which shall be open for that purpose during all hours of the working days when the National Archives Building is open for official business. The Administrator of General Services shall cause to be noted on the original and duplicate originals or certified copies of each document the day and hour of filing. When the original is issued, prescribed, or promulgated outside the District of Columbia, and certified copies are filed before the filing of the original, the notation shall be of the day and hour of filing of the certified copies. Upon filing, at least one copy shall be immediately available for public inspection in the Office. The original shall be retained in the archives of the National Archives of the United States and shall be available for inspection under regulations prescribed by the Administrator. The Office shall transmit immediately to the Government Printing Office for printing, as provided by this chapter, one duplicate original or certified copy of each document required or authorized to be published by section 1505 of this title. Every Federal agency shall cause to be transmitted for filing the original and the duplicate originals or certified copies of all such documents issued, prescribed, or promulgated by the agency. (Pub. L. 90-620, Oct. 22, 1968, 82 Stat. 1274.)

HISTORICAL AND REVISION NOTES

Based on 44 U.S. Code, 1964 ed., § 302 (July 26, 1935, ch. 417, § 2, 49 Stat. 500; June 30, 1949, ch. 288, title I, § 104 (a), 63 Stat. 381).

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1504, 1506, 1507 of this title.

44 U.S.C. 1504. "FEDERAL REGISTER"; PRINTING; CONTENTS; DISTRIBUTION; PRICE

Documents required or authorized to be published by section 1505 of this title shall be printed and distributed immediately by the Government Printing Office in a serial publication designated the "Federal Register." The Public Printer shall make available the facilities of the Government Printing Office for the prompt printing and distri

bution of the Federal Register in the manner and at the times required by this chapter and the regulations prescribed under it. The contents of the daily issues shall be indexed and shall comprise all documents, required or authorized to be published, filed with the Office of the Federal Register up to the time of the day immediately preceding the day of distribution fixed by regulations under this chapter. There shall be printed with each document a copy of the notation, required to be made by section 1503 of this title, of the day and hour when, upon filing with the Office, the document was made available for public inspection. Distribution shall be made by delivery or by deposit at a post office at a time in the morning of the day of distribution fixed by regulations prescribed under this chapter. The prices to be charged for the Federal Register may be fixed by the Administrative Committee of the Federal Register established by section 1506 of this title without reference to the restrictions placed upon and fixed for the sale of Government publications by sections 1705 and 1708 of this title. (Pub. L. 90-620, Oct 22, 1968, 82 Stat. 1274.)

HISTORICAL AND REVISION NOTES

Based on 44 U.S. Code, 1964 ed., § 303 (July 26, 1935, ch. 417, § 3, 49 Stat. 500).

44 U.S.C. 1505. DOCUMENTS TO BE PUBLISHED IN FEDERAL REGISTER

(a) Proclamations and Executive Orders; documents having general applicability and legal effect; documents required to be published by Congress.

There shall be published in the Federal Register—

(1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof;

(2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and

(3) documents or classes of documents that may be required so to be published by Act of Congress.

For the purposes of this chapter every document or order which prescribes a penalty has general applicability and legal effect.

(b) Documents authorized to be published by regulations; comments and news items excluded.

In addition to the foregoing there shall also be published in the Federal Register other documents or classes of documents authorized to be published by regulations prescribed under this chapter with the approval of the President, but comments or news items of any character may not be published in the Federal Register.

(c) Suspension of requirements for filing of documents; alternate systems for promulgating, filing, or publishing documents; preservation of originals.

In the event of an attack or threatened attack upon the continental United States and a determination by the President that as a result of an attack or threatened attack

(1) publication of the Federal Register or filing of documents with the Office of the Federal Register is impracticable, or

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