PRESIDENTIAL POWER:

Use and Enforcement of Executive Orders

[NOTRE DAME LAWYER, VOL. 39, 1963-64]

BY ROBERT B. CASH

INTRODUCTION

"The executive power shall be vested in a President of the United States of America." 1 With these words the framers of the Constitution created the office of the president, who is the head of the executive branch of the government-the administrative director to whom the heads of governmental departments and agencies are responsible.

As Chief Executive and administrative director, the president possesses the power to issue instructions and orders to executive officers concerning the performance of their duties. One of the first examples of such instructions was President Jefferson's order to Secretary of State Madison to withhold delivery of a judicial commission of appointment from Marbury. Such a directive has come to be termed an executive order. Closely related to executive orders are presidential proclamations. Although there has been no legal definition of the two terms. executive orders may be classified as all directives of the president which are directed to, and govern actions of, governmental officials and agencies. Because they are directed to governmental officials, executive orders generally have only an indirect 1U.S. CONST. art. II, § 1.

2 The president can appoint officers of the United States, with the advice and consent of Congress, and can require written reports from them on their official duties. U.S. CONST. art II, § 2. The law recognizes that a special relationship exists between the president and the department heads. The acts of department heads within the scope of their powers are in law the acts of the president. Wolsey v. Chapman, 101 U.S. 755 (1879). Department heads are also bound by statutes, and where Congress makes the act to be performed by the department head ministerial, the performance of the act is judicially enforceable. Dunlap v. United States, 173 U.S. 65 (1898). In fact, Congress may confer executive or administrative powers which are not Constitutionally reserved to the president upon other executive officers. Kendall v. United States ex rel. Stokes, 12 Pet. 524 (1839). A department head, therefore, may be the servant of two masters. 3 The president cannot force the department heads to disregard the statutes of Congress [Kendall v. United States ex rel. Stokes, 12 Pet. 524 (1839)], nor may he thus contravene public policy determined by Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

4 Marbury v. Madison, 1 Cranch 137 (1803).

5 Even Executive Order 10006 governing the issuance of Executive orders and proclamations does not define the two terms.

effect upon the individual. Proclamations, on the other hand, are directed at the individual. Because the president's power is more limited in the area of individual activities than governmental activities, proclamations are generally hortatory in nature and not legally binding. Although the difference between the two may be one of form rather than substance, this distinction is the one most often advanced.

I. HISTORY OF EXECUTIVE ORDERS

A. USE

8

Beginning with George Washington, presidents have issued documents which may be described as executive orders. The earlier executive orders were used for such purposes as the withdrawal of public lands for Indian use, for the erection of lighthouses, the establishment, transfer, and abolition of land districts and land offices, and for supplementing acts of Congress. Later executive orders were employed to set aside land for water, timber, fuel, hay, signal stations, target ranges, and bird sanctuaries. During World War I they were used to set up such agencies as the War Trade Board, the Committee of Public Information, the Food Administration, and the Grain Corporation. The greatest use of the executive order was made by Franklin D. Roosevelt in the early 1930's.10 This period was the high-water mark of the use of executive orders; since then their use has declined. However, a change in their character has accompanied this decline. The executive order, which has historically been an administrative directive, has assumed an ever increasing legislative character. In 1952 President Truman "seized" the steel mills; 11 in 1953 the heads of the contracting agencies were ordered to enforce the nondiscrimination clause in government contracts; 12 and in 1962 President Kennedy issued Executive Order 11063 entitled Equal Opportunity in Housing.13

These latter executive orders have met with varied success. The steel "seizure" was defeated; and the nondiscrimination clause has been successfully enforced by indirect and extralegal means. Executive

See, e.g., LAW DAY, U.S.A., 1962 27 Fed. Reg. 549 (1962) and MOTHER'S DAY, 1962 27 Fed. Reg. 4757 (1968).

"United States v. Midwest Oil Co., 236 U.S. 459, 470 (1915).

8

HOUSE COMM. ON GOVERNMENT OPERATIONS, 85TH CONG., 1ST SESS., EXECUTIVE ORDERS AND PROCLAMATIONS: A STUDY OF A USE OF PRESIDENTIAL POWERS 35 (Comm. Print 1957).

9 Id. at 36.

10 In 1933, 654 executive orders were issued. In 1934 and 1935 respectively, 467 and 383 executive orders were issued. In 1953, 1954, 1955, and 1956, there were issued 89, 72, 64, and 24 executive orders. Since President Kennedy has taken office, the number has risen.

"Executive Order 10340, 17 Fed. Reg. 3139 (1952). 12 Executive Order 10479, 18 Fed. Reg. 4899 (1953). 13 Executive Order 11063, 27 Fed. Reg. 11527 (1962).

Order 11063 is hardly a year old and has not been legally enforced; however, the ramifications of its provisions 11 are extensive.

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Section 101. I hereby direct all departments and agencies in the executive branch of the Federal Government, insofar as their functions relate to the provision, rehabilitation, or operation of housing and related facilities, to take all action necessary and appropriate to prevent discrimination because of race, color, creed, or national origin—

(a) in the sale, leasing, rental, or other disposition of residential property and related facilities (including land to be developed for residential use), or in the use of occupancy thereof, if such property and related facilities are—

(i) owned or operated by the Federal Government, or

(ii) provided in whole or in part with the aid of loans, advances, grants, or contributions hereafter agreed to be made by the Federal Government, or

(iii) provided in whole or in part by loans hereafter insured, guaranteed, or otherwise secured by the credit of the Federal Government, or

(iv) provided by the development or redevelopment of real property purchased, leased, or otherwise obtained from a State or local public agency receiving Federal financial assistance for slum clearance or urban renewal with respect to such real property under a loan or grant contract hereafter entered; and (b) in the lending practices with respect to residential property and related facilities (including land to be developed for residential use) of lending institutions, insofar as such practices relate to loans hereafter insured or guaranteed by the Federal Government.

Sec. 302. If any executive department or agency subject to this order concludes that any person or firm. . . or any State or local public agency has violated any rule . . . adopted pursuant to this order, or any nondiscrimination provision included in any agreement or contract pursuant to any such rule. . . it shall endeavor to end and remedy such violation by informal means. . . a department or agency may take such action as may be appropriate under its governing laws, including, but not limited to, the following:

It may

(a) cancel or terminate in whole or in part any agreement or contract with such person, firm, or State or local public agency providing for a loan, grant, contribution, or other Federal aid, or for the payment of a commission or fee;

(b) refrain from extending any further aid under any program administered by it and affected this order until it is satisfied that the affected person, firm, or State or local public agency will comply with the rules . . . adopted pursuant to this order, and any nondiscrimination provisions included in any agreement or contract;

(c) refuse to approve a lending institution or any other lender as a beneficiary under any program administered by it which is affected by this order or revoke such approval if previously given.

Sec. 303. In appropriate cases executive departments and agencies shall refer to the Attorney General violations of any rules. . . adopted pursuant to this order, or violations of any nondiscrimination provisions included in any agreement or contract, for such civil or criminal action as he may deem appropriate.

26-147-74-pt. 3- -9

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B. ORGANIZATION

Until the Federal Register Act of 1935,15 the state of executive orders was one of chaos, which, to a great degree, was due to the informality with which they were treated by the presidents. On a number of occasions a president wrote "I approve," "Approved," "Let it be done,” or other similar words on the bottom of a recommendation drawn up by a Cabinet member. Executive order 396 issued in 1906 was not even dated, and since the Federal Register Act had not yet been passed, it became effective as soon as the Secretary of State sealed and attested to it.16 Until 1907, executive orders were not even numbered.". Perhaps the best example of the disorder which reigned is well illustrated in the 1930's by the fact that on one occasion the United States Government was forced to ask the Supreme Court to dismiss a governmental appeal because it was based upon a regulation which no longer existed.18

In 1935 and 1936, two events occurred which gave order to the chaos into which executive orders had fallen. In 1935 President Roosevelt approved the Federal Register Act 19 which alleviated the problems of publication and notice by specifying that various documents, including any "Presidential proclamation or Executive order and any order . issued ... by a Federal agency" 20 shall be published in the Federal Register. This section of the act also defined the term "Federal agency" or "Agency" so as to include the President of the United States.21 Then, in 1936, President Roosevelt issued Executive

15 49 Stat. 500 (1935), 44 U.S.C. § 301 (1958).

10 Lapeyre v. United States, 17 Wall. 191 (1872).

17 Numbering seems to have begun in 1907 when the Department of State began to assign numbers to all executive orders which it had on file. Back orders which were later added were given in-between numbers, while some orders were never numbered at all because they were never discovered by the Dpartment of State. It has been estimated that the number of unnumbered executive orders is between 15,000 and 20,000. The executive order which is Executive Order 1 was issued by President Lincoln on October 20, 1862. COMMITTEE ON GOVERNMENT OPERATIONS, 85TH CONG., 1ST SESS., Op. Cit. supra note 8, at 37.

18 GOVERNMENT IN IGNORANCE OF THE LAW-A PLEA FOR BETTER PUBLICATION OF EXECUTIVE LEGISLATION, 48 HARV. L. REV. 198, 204 (1934).

19 49 Stat. 500 (1935), 44 U.S.C. § 301 (1958).

20

49 Stat. 501 (1953), 44 U.S.C. § 305 (1935).

21 Ibid.

21 Fed. Reg. 2284 (1936).

Order 7298 22 which prescribed the manner in which proposed executive orders and proclamations were to be prepared.23

II. SCOPE OF EXECUTIVE ORDERS

A. EXTENT OF PRESIDENTIAL POWER

From the nation's very beginning the nature and limitations of presidential power have been controversial. Article II, Section I of the Constitution states that "The executive power shall be vested in a President of the United States of America." Whether or not the term "executive power" is a mere summary description of powers which are granted in more specific terms in the following provisions of the article or is a specific grant of power has been a subject of dispute ever since the article was written.

One of the first controversies over the interpretation of the "executive power" clause arose in 1793. England had declared war against

23 Executive Order 7298 was superseded by Executive Order 10006 and then Executive Order 11030 27 Fed. Reg. 5067 (1962), which provides:

Section 1. Form. Proposed Executive orders and proclamations shall be prepared in accordance with the following requirements:

(a) The order or proclamation shall be given a suitable title.

(b) The order of proclamation shall contain a citation of authority under which it is issued.

(c) Punctuation, capitalization, spelling. . . .

Sec. 2. Routing and approval of drafts. (a) A proposed Executive order or proclamation shall first be submitted, with seven copies thereof, to the Director of the Bureau of the Budget, together with a letter, signed by the head or other properly authorized officer of the originating Federal agency, explaining the nature, purpose, background, and effect of the proposed Executive order or proclamation and its relationship, if any, to pertinent laws and other Executive orders or proclamations. (b) If the Director of the Bureau of the Budget approves the proposed Executive order of proclamation, he shall transmit it to the Attorney General for his consideration as to both form and legality.

Sec. 5. Proclamations of treaties excluded. Consonant with the provisions of Section 12 of the Federal Register Act (49 Stat. 503; 44 U.S.C. 312), nothing in this order shall be construed to apply to treaties, conventions, protocols, or other international agreements, or proclamations thereof by the President.