to certain officials which may never be reissued in any of the regular series.

There is no approach to uniformity in nomenclature. Rules, Regulations, Instructions, General Orders, Orders, Circulars, Bulletins, Notices, Memoranda and other terms are given to different series of publications by different government offices, with no clear distinction as to the meaning of these terms. In some cases an attempt seems to be made to separate regulations which impose mandatory orders from circulars of information or advice; but even this distinction often breaks down in practice. Further difficulties arise from the frequency of changes and modifications; and here again there is no uniformity in the form and methods of issuing such amendments.

Subordinate officials may ordinarily be supposed to receive the official publications from their own superiors bearing on their own work. Yet even here, there is sometimes a failure to prepare or to carry out an adequate system of distributing orders and regulations. In some cases the number and variety of instructions issued are more than can be taken care of by individual officers, especially in the absence of regular and frequent indices, digests and summaries. More difficult is the problem of one branch securing publications issued by another branch which may have an important bearing on its work. For the citizen outside the government service, the problem of securing and keeping track of the administrative regulations which may affect his affairs is even more difficult. It is not easy to learn which of the government services are responsible for particular matters. One would not expect the Commissioner of Internal Revenue to issue regulations for the sale of narcotics, nor the Secretary of Agriculture to regulate importations of certain commodities. Large business enterprises need to keep in touch with many of the numerous government services, which may issue duplicating or even conflicting orders. There is also, sometimes, the difficulty of securing regular distribution for important regulations which affects subordinate officials.

These criticisms are not directed at the present administration. They represent conditions that have existed for a long time, and have been accentuated in recent years with the increasing mass of legislation and administrative regulations affecting others than government officials. They have been further emphasized by the great extension of government control and the enormous pressure of work in the government during the war. But the fundamental difficulties are of long standing; and even after some relaxation since the close of the war, the permanent difficulties demand attention.

There is need first, within each department and in the government service as a whole, for more systematic and uniform methods in the preparation and publication of administrative regulations. There should be in each department an agency for supervising the preparation and issue of all such regulations within the department. The number of classes of publications should be reduced, and a more uniform terminology established. Finally there should be an official publication which will record all regulations and instructions issued by all branches of the government service.

GOVERNMENT IN IGNORANCE OF THE LAW

A Plea For Better Publication

Of Executive Legislation

[HARVARD LAW REVIEW, VOL. XLVIII, DEC. 1934]
BY ERWIN N. GRISWOLD, Harvard Law School

We hear of tyrants, and those cruel ones: but, whatever we
may have felt, we have never heard of any tyrant in such sort cruel
as to punish men for disobedience to laws or orders which he had
kept them from the knowledge of.

Administrative regulations "equivalent to law" have become important elements in the ordering of our lives today. Many cases have reiterated the rule that executive regulations properly made have "the force and effect of law". The volume of these rulings has so increased that full, accurate, and prompt information of administrative activity is now quite as important to the citizen and to his legal advisor as is knowledge of the product of the Congressional mill. There should consequently be no need to demonstrate the importance and necessity of providing a reasonable means of distributing and preserving the texts of this executive-made law.

3

Administrative rules and regulations in all their varied forms cross our paths in myriad ways. The President alone issued 674 Executive Orders, aggregating approximately 1400 pages, in the first fifteen months after March 4, 1933. This was a greater volume than that of the preceding four years, and nearly six times as great as that for

1 This characterization is by the Supreme Court in Hampton & Co. v. United States, 276 U.S. 394, 409 (1928).

'Maryland Casualty Co. v. United States, 251 U.S. 342, 349 (1920). It is of course true that the regulation must be authorized by act of Congress and must be at least not inconsistent with existing statute (unless Congress has granted express authority to change the law; see notes 9-12, infra). These requirements, often expressed, doubtless serve to curb the ambit of executive activity. Few regulations, however, have actually been held to be invalid by the Supreme Court. Cf. Waite v. Macy, 246 U.S. 606 (1918); Burnet v. Chicago Portrait Co., U.S. 1 (1932). 3 'We are not concerned here with the propriety of such delegations of legislative power, nor with the dangers to which they may lead even though published in a form which all may read. These questions have received much attention in England. See HEWART, THE NEW DESPOTISM (1929); REPORT OF THE COMMITTEE ON MINISTERS' POWERS (1932). See also CARR, DELEGATED LEGISLATION (1921); CHEN, PARLIAMENTARY OPINION OF DELEGATED LEGISLATION (1933); WILLIS, THE PARLIAMENTARY POWERS OF ENGLISH GOVERNMENT DEPARTMENTS (1933).

Report of the Special Committee on Administrative Law, in ADVANCE PROGRAM OF THE 57TH ANNUAL MEETING OF THE AM. BAR ASS'N (1934) 214. From March 4, 1933, to Oct. 15, 1934, the number of Executive Orders was 949. N. Y. Times, Oct. 21, 1934, § 8, at 3.

26-147-74-pt. 3- -8

the thirty-nine years from 1862 through 1900. Moreover, we are told by a committee of the American Bar Association:

The practice of filing Executive Orders with the Department of State is not uniformly or regularly followed, and the totals are really greater than above indicated. Some orders are retained or buried in the files of the government departments, some are confidential and are not published, and the practice as to printing and publication of orders is not uniform. Some orders are made known and available rather promptly after their approval; the publication of others may be delayed a month or more, with consequent confusion in numbering. The comparatively large number of recent orders which incorporate provisions purporting to impose criminal penalties by way of fine and imprisonment for violation is without numerical precedent in the history of the government.5

In the first year of the National Recovery Administration, 2,998 administrative orders were issued. In addition to these, the Recovery Administration has adopted numerous regulations and sets of regulations which are to be found scattered among 5991 press releases during this period. It has been estimated that the total amount of "law" evolved during the first year of the NRA's activities exceeds 10,000 pages, probably a greater volume than the total amount of statute law contained in the United States Code."

But this activity does not stop with the President and the NRA. There are many other departments and officials of the government in Washington who have authority to promulgate rules and regulations. The Agricultural Adjustment Administration has issued many series of regulations, more than usually complicated by supplements and amendments. The Treasury Department issues many regulations under the internal revenue laws and also under the customs acts; the Labor Department has its series of Immigration Rules and Regulations. The Postal Rules and Regulations fill a considerable volume and are frequently amended. The regulations of the Veterans' Bureau have been compiled into two large volumes, already much out of date. There is an elaborate series of regulations under the Pure Food and Drug Act and related legislation. New boards and commissions have been established, such as the Securities and Exchange Commission and the Federal Communications Commission, whose regulations are of great importance. But included in this enumeration are only a few of the more important sources of administrative legislation. It is scarcely Report of the Special Committee on Administrative Law, supra note 4, at

215.

6 Id. at 215-16.

Cf. United States v. Antikamnia Chemical Co., 231 U.S. 654 (1914); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77 (1932). The regulations are prescribed by a Board consisting of the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce. See Act of June 30, 1906, c. 3915, § 3, 34 Stat. 768, 21 U.S.C.A. § 3 (1927).

the beginning of a complete list. There are literally dozens of agencies of the Federal Government which have power to promulgate rules and regulations.

Administrative rules and regulations are scarcely susceptible of accurate classification. It is obvious enough, however, that they must be considered frequently in order to determine the real statutory law upon a question. Congress may authorize executive officers to decide when a statute shall go into effect or when its operation shall be suspended. Provisions of this sort have been upheld from the beginning of our government,10 and they are frequently encountered at

8 A list of a few of the rules and regulations issued during the past three years, made at random from the Monthly Catalogue of Public Documents, contains, e.g.: Revised regulations for cotton warehouses; Treas. Reg. 76, relating to shipment or delivery of manufactured tobacco, etc., for consumption outside the United States; many amendments to the Army Reg. ; National Guard Reg. ; plant quarantine regulations; Reg. 7 of the War Claims Arbiter; plant inspection and certification regulations to meet foreign sanitary requirements; regulations governing establishment and certification of aeronautical lights; insurance regulations of Federal Farm Loan Board; War Dept. Reg. under the general bridge law; regulations relative to loans for feed for livestock; amendment to regulations respecting game animals, etc., in Alaska; regulations and rulings affecting agricultural, experiment stations; Dept. of Commerce Reg. governing entry and clearance of aircraft; regulations governing deposit of postal savings funds; regulations for establishment of governing deposit of postal savings funds; regulations for establishment of load lines for merchant vessels; Treas. Reg. 44, relating to taxes on lubricating oil, matches, soft drinks, and other products; Treas. Reg. 71, relating to stamp taxes; general regulations under the Agricultural Adjustment Act; field corn, jute, paper, and wheat regulations under the Agricultural Adjustment Act; Federal Radio Commission Rules governing operators' licenses; Treas. Reg. 79, relating to the gift tax; rules and regulations relating to the navigable waters of the United States; Agriculture Dept. Reg. governing sanitary handling and control of hides, etc., offered for entry in the United States; regulations relating to highway construction under the NIRA, etc.; Civil Service Rules and Reg.; Rules and Reg. 7, governing medical care provided in the home to recipients of unemployment relief; Federal Radio Commission Rules governing amateur radio stations and operators; regulations under Cotton Act of April 21, 1934; regulations of the Farm Credit Administration governing loans in drought stricken areas; regulations governing exportation of silver; Federal Reserve Board Reg. relating to margin requirements; regulations of the Federal Housing Administration covering operations under Title II of the National Housing Act.

Many earlier instances of the issuance of administrative rules and regulations pursuant to statutory authority are discussed in Fairlie, Administrative Legislation (1920) 18 MICH. L. REV. 181.

9

English statutes not infrequently include provisions under which administrative officers have power to amend or repeal an act of Parliament. See Report of Committee on Ministers' Powers (1932) 36-38; Willis, Parliamentary Powers of English Government Departments (1933) 200-03.

10

Cargo of the Brig Aurora v. United States, 7 Cranch 382 (U.S. 1813), involved § 4 of the Act of May 1, 1810, c. 39, 2 Stat. 605, 606, which provided that certain embargo acts which had previously expired should "be revived and have full force and effect" upon a proclamation of the President. The Court upheld a forfeiture following the proclamation by the President provided for in the statute. Instances of similar legislation are collected in Field v. Clark, 143 U. S. 649 (1892).

the present time.11 Other statutes grant to executive officers the power in effect to amend or repeal acts of Congress.12 It is clear, therefore, that no search of the statutes can be complete until the applicable executive pronouncements have been examined. When the legal effect of a statute depends upon an administrative ruling, the order bringing the statute to life or tolling its existence should be as readily available as the statute itself.

The sphere of administrative activity is of course not limited to instances of the sort just mentioned. Congress has power to provide that the violation of an executive regulation shall be a criminal offense, though the regulation was not announced until after the enactment of the statute.13 The first act passed by the Seventy-Third Con

"See Act of Aug. 19, 1890, c. 802, § 3, 26 Stat. 320, 328, 33 U. S. C. A. § 61 (1928) ("this act shall take effect at a time to be fixed by the President by proclamation"). Recent examples are rather numerous. The National Industrial Recovery Act, c. 90, § 2(c), 48 Stat. 195, 15 U. S. C. A. § 702 (c) (1933), provides that it shall expire two years after its enactment "or sooner if the President shall by proclamation . . . declare that the emergency recognized by section 1 has ended." A similar provision is contained in the Agricultural Adjustment Act, c. 25, § 13, 48 Stat, 31, 39, 7 U. S. C. A. § 613 (1933). The Corporation of Foreign Bondholders Act, c. 38, § 211, 48 Stat. 74, 92, 95, 15 U. S. C. A. § 7711 (1933), provides that it "shall not take effect until the President finds that its taking effect is in the public interest and by proclamation so declares." The Act of May 28, 1934, c. 365, 48 Stat. 811, forbids the exportation of arms to the Chaco on proclamation of the President. See also Act of March 3, 1931, c. 411, § 1, 46 Stat. 1494, 40 U. S. C. A. § 276a (President may suspend "prevailing rate of wages" law); §§ 401, 402 of the Act of March 9, 1933, c. 1, 48 Stat. 6-7, 12 U. S. C. A. §§ 445, 347b (§ 402 gives the President power to extend the operation of the statute for one year); Act of April 21, 1934, c. 157, 48 Stat. 598, 599, 7 U. S. C. A. § 701 (same-Cotton Act); Act of March 24, 1933, c. 8, § 1, 48 Stat. 20, 12 U. S. C. A. § 347d; § 12A (1) of the Federal Reserve Act, as amended by § 8 of the Act of June 16, 1933, c. 89, 48 Stat. 162, 172, 12 U. S. C. A. § 264; Act of Jan. 20, 1934, c. 3, 48 Stat. 318, 15 U. S. C. A. § 601a; Act of June 19, 1934, c. 674, 48 Stat. 1178, 1179, 31 U. S. C. A. § 316b.

Statutes frequently make reference to Executive Orders or regulations already issued, so that the effect of the statute cannot be determined without examination of executive acts which are now quite inaccessible. See e.g., § 704 of the Revenue Act of 1928, c. 852, 45 Stat. 880, 26 U. S. C. A. § 2704; Act of Feb. 27, 1933, c. 128, § 7, 47 Stat. 1124; Act of March 2, 1934, c. 38, 48 Stat. 262, 391.

13 Thus, the Act of Sept. 7, 1916, c. 451, §3, 39 Stat. 729, 46 U. S. C. A. § 804 (1928), established the United States Shipping Board and defined its powers. Although Congress has never repealed that statute, the Shipping Board no longer exists. It was abolished by Executive Order No. 6166, issued under the authority of the Act of March 3, 1933, c. 212, 47 Stat. 1489, 1517-18, U. S. C. A. §§ 124, 126. Similarly, §§ 349 and 350 of the Revised Statutes (1878), as amended, 38 Stat. 497 (1914), 5 U. S. C. A. § 297 (1927), provide that the Solicitors of the Treasury and of the Departments of Labor and of Commerce are officers of the Department of Justice and responsible to the Attorney General. This statute has never been amended or repealed by any act of Congress. Nevertheless, pursuant to Executive Order No. 6166, supra, these Solicitors are now officers of their respective departments, and responsible to the heads of those departments. A number of other similar illustrations may be derived from the same executive order. The Securities Exchange Act of 1934, c. 404, 48 Stat. 881, 15 U. S. C. A. §§ 78a et seq., gives the Federal Reserve Board, in paragraphs (b) and (e) of § 7, and the Securities and Exchange Commission, in § 12(e), power to prescribe regulations "notwithstanding the provisions" of other sections of the Act. See also the Act of Feb. 23, 1934, c. 23, 48 Stat. 354, providing that on certification by the President, that a locality is a "distressed emergency area", loans may be made "without regard to the foregoing limitations" of the statute.

18 United States v. Grimaud, 220 U.S. 506 (1911); McKinley v. United States, 249 U.S. 397 (1919); Avent v. United States, 266 U.S. 127 (1924).