... [and see Bell v. Hood, 327 U.S. 678 (1946)] plaintiff man- Since no express private right of action was granted and since he felt private action was not to be implied, Judge Luongo granted defendant's motion to dismiss. 91 92 Although the case never reached the merits, plaintiff's claim for damage as a third party beneficiary is not entirely without substance or support. In United States v. Carpenter 22 the government asserted a right against the defendant which arose out of an executive agreement. The United States, pursuant to its farm program, had been supporting the price of table stock potatoes when it discovered that such potatoes were being imported from Canada and thus injuring the program. In order to curtail the imports, the United States and Canada entered into an executive agreement whereby Canada agreed to force all Canadian growers to acquire permits to export potatoes to the United States and to make assurances that any potatoes exported to the United States would be used only as seedlings and not as table stock. Defendant, after promising the seller that he would use them only as seedling, imported potatoes from Canada and proceeded to use them as table stock, whereupon the United States brought suit for damages and an injunction. Although the defendant was really challenging the validity of the executive agreement, the Court avoided this issue by deciding that the contract between the defendant and the Canadian grower was made for the benefit of the United States, and that the United States was a third party beneficiary to the contract. The Carpenter rationale could readily be applied to the set of facts in the Philadelphia Electric Co. case. Whereas the court in Carpenter was forced to stretch the beneficiary doctrine in order to avoid the executive agreement issue, it could apply the doctrine in cases of discrimination with much greater ease. It appears that only one obstacle can prevent plaintiff's recovery. In order for a cause of action to be created in a third party beneficiary there must have existed such an intent in the minds of the parties to the contract.93 In the case of the nondiscrimination clause, it appears that this intent was lacking.94 90 Farmer v. Philadelphia Electric Co., 215 F. Supp. 729, 731–2 (E.D. Pa. 1963). 91 WILLISTON, CONTRACTS § 357 (3rd ed. 1959): A person is a donee beneficiary when "it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed or asserted to be due from the promisee to the beneficiary." CONCLUSION The history of executive orders is, to a great extent, a narrative of the evolution of presidential power. From a rather humble beginning, the president has become the head of a giant executive complex. As head of the executive department he rarely and only indirectly affects the rights of the individual. But in addition to his power as chief executive, he possesses a certain amount of legislative or quasi-legislative power which has devolved upon him, such as the power to seize property (in spite of Youngstown Sheet & Tube Co.95), to conclude executive agreements, and to regulate government contracts. Of particular importance is his control over government contracts, by which he may extensively and directly affect the individual, as a glance at the contract and housing orders will indicate. Thus far the power of enforcement of these executive orders has been confined to the government. Although it is extremely doubtful whether the president could expressly grant a cause of action to an individual in order to enforce the orders, there appears to be no reason why a private individual could not be given third party rights which would arise not from any actual or supposed presidential power, but from common law contract principles. If such rights are ever given, or if the Philadelphia Electric Co. case holds that they have already been given, a new dimension will be added to the enforcement of executive orders. 89166 COMMITTEE ON GOVERNMENT DECEMBER 1957 Printed for the use of the Committee on Government Operations UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON: 1957 COMMITTEE ON GOVERNMENT OPERATIONS WILLIAM L. DAWSON, Illinois, Chairman CHET HOLIFIELD, California JOHN W. MCCORMACK, Massachusetts EARL CHUDOFF, Pennsylvania JACK BROOKS, Texas L. H. FOUNTAIN, North Carolina CLARE E. HOFFMAN, Michigan R. WALTER RIEHLMAN, New York CECIL M. HARDEN, Indiana CHARLES B. BROWNSON, Indiana GEORGE MEADER, Michigan CLARENCE J. BROWN, Ohio GLENARD P. LIPSCOMB, California, WILLIAM E. MINSHALL, Ohio CHRISTINE RAY DAVIS, Staff Director WILLIAM PINCUS, Associate General Counsel 1 1 Resigned from committee staff March 31, 1957, after initial preparation of this study. II |