PREFACE The Committee on Government Operations, in the performance of its duties under the Rules of the House of Representatives, is continuously confronted with legal problems involving the exercise of powers by the Executive under the Constitution and under the laws. Some of these problems arise out of the issuance of Executive orders and Presidential proclamations. The Attorney General is charged by law with furnishing advice and opinion on questions of law to the President and to the heads of departments (5 U. S. C. 303, 304). Attorneys General have traditionally refrained from giving official opinions on questions of law or on the constitutionality or construction of legislation to the Congress or to the committees of the Congress. (See 39 Op. Atty. Gen. 343.) Hence it seems appropriate that such problems should be considered by the committee and its legal staff. Accordingly, this study has been made in order to augment the information available to the Congress on this important subject. This is one of a series of legal studies by the legal staff of the Committee on Government Operations designed to analyze and gather information useful in connection with the legislative and study functions of the Committee on Government Operations. It is hoped that this study will be helpful generally to the Members of Congress and to all who are interested in a closer examination of the operations of our governmental system. As a matter of organization, part I is devoted to a discussion of the general nature and legal status of Executive orders and proclamations and some of the basic legal and constitutional aspects of Presidential power involved in the use of such orders and proclamations. Part II is devoted primarily to the analysis and tabulation of Executive orders in the period from December 29, 1945, to September 1, 1956, together with general historical and descriptive material concerning Executive orders and their custody and use. Part II contains information concerning the characteristics and uses of Executive orders including the authority under which they were issued. This is derived from an examination of Executive orders in general and from an analysis in particular of Executive orders issued in the period between December 29, 1945, and September 1, 1956. Since the use of Executive orders involves many of the same legal problems and principles as does the use of proclamations, both have been treated herein. Part II was prepared by Emmet V. Mittlebeeler, consultant to the committee. III CONTENTS Preface-. Summary of the statutory and constitutional bases affecting Executive orders and proclamations_. Part I. Executive orders and proclamations and the Presidential powers involved A. Constitutional and statutory bases of Executive orders and proclamations: 1. What is an Executive order or proclamation? Page III IV 1 2. Law and statute governing Executive orders and proclama- 2 3. Effect of Federal Register Act on general law governing B. Authorities bearing on the exercise and extent of Presidential 1. The President, the Congress, and the department and 2. Highlights of certain constitutional and legal developments The 1793 controversy over Washington's Proclama- 15 The President and the Supreme Court in the Andrew Lincoln: The Commander in Chief, and the use of World War II and Korea: The "Aggregate of Powers" as a constitutional basis for Presidential action----Part II. Tabulation of Executive orders issued in the period December 29, 1945-September 1, 1956: A. Prior history of the Executive order---- C. Publication of Executive orders - . D. Authorities cited in Executive orders- E. Classified Executive orders-- F. Table of Executive orders, December 29, 1945, to September 1, 1956___ Executive orders, 1945-46-. 43* *Tables of Executive Orders have been omitted during the reproduction of this committee print as appendix material for this hearing. Fleming et al. v. Page (9 How. 603) _ Gratiot v. U. S. (4 How. 80, and Ex parte Reed, 100 U. S. 13). Mississippi v. Johnson (4 Wall. 475) Maresca v. U. S. [2 Cir.] (277 F. 727) Myers v. U. S. (272 U. S. 52, 71 L. Ed. 160, 47 S. Ct. 21). Panama Refining Co. v. Ryan (293 U. S. 388) Penhallow v. Doane (3 Dall. 54) Porter v. Coble [8 Cir.] (246 F. 244, 158 C. C. A. 404) Rathbun v. U. Š. (295 U. S. 602). Smith v. Whitney (116 U. S. 181) Swaim v. U. S. (28 Court of Claims, 173). The Brig Aurora (7 Cranch 382). The Three Friends (166 U. S. 1). U. S. ex rel. Dunlap v. Block (128 U. S. 40). U. S. v. Fletcher (148 U. S. 84, 13 S. Ct. 552, 37 L. Ed. 378). U. S. v. Grimaud (220 U. S. 506). U. S. v. Klein (13 Wall. 128). U. S. v. Midwest Oil Co. (236 U. S. 459, 59 L. Ed. 673, 35 S. Ct. 309). U. S. v. Symonds (120 U. S. 46). Wilcox v. Jackson (13 Pet. 498) Wolsey v. Chapman (101 U. S. 755, 25 L. Ed. 915). Woods v. Cloyd W. Miller Co. (333 U. S. 138) Worcester v. Georgia (6 Pet. 515). Youngstown Sheet and Tube Co. v. Sawyer (343 U. S. 579, 96 L. Ed. 1153) Page 10 25 14 20 10 5 8, 9 4 10, 34 7 7 14 9, 31 12 13 7 9 10 21 14 5 8 7 5 12 31 10 6 4, 6, 7 25 18 29 SUMMARY OF THE STATUTORY AND CONSTITUTIONAL BASES AFFECTING EXECUTIVE ORDERS AND PROCLAMATIONS 1. Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities and interests of private individuals. Since the President has no power and authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President's proclamations are at best hortatory so far as the general public is concerned unless they are based on statutory or Constitutional authority. Essentially an Executive order or proclamation is a written document issued by the President and titled as such by him or at his direction. Because of this, a precise and uniformly applicable differentiation between Executive orders and proclamations is impossible. The subject matter of each order or proclamation must be ascertained from an examination of the order or proclamation itself. The authority for its issuance is ordinarily stated in the document. 2. The statutes which govern Executive orders and proclamations specifically are concerned primarily with matters of publication, notice, and evidence. 3. The Constitution itself does not spell out the legal relationship between the President and the heads of departments. The law has recognized the special relationship of department heads to the President. An act by a department head, within the field of his jurisdiction, is considered in law to be the act of the President. This is so although no specific written delegation from the President is made and even where the statute authorizing the action speaks of the President performing the action. In spite of the special relationship of department heads to the President they are of course bound to obey the statutes. Where Congress makes the act to be performed ministerial, the performance of the act is judicially enforcible. A writ of mandamus may be issued by the judiciary commanding the official to perform the act required by law. Other remedies must be invoked where the act to be performed is discretionary. 4. The courts will strike down the legal effect of orders which contravene the provisions of a valid statute or of the Constitution. 6. When the Constitution specifically vests a function or office in the President, the Congress may not divest the President of such constitutional office or function by legislation. Thus it would take a constitutional amendment to assign the position of Commander in Chief to anyone other than the President. Similarly Congress cannot detract from the power of pardon granted to the President by the Constitution. VII |