13. In more recent years there has been added to the controversy a so-called "aggregate of powers" theory of Presidential power. Briefly, the theory states that the President has and may exercise a reservoir of implied powers created by the accumulation of the total of express powers vested in him by the Constitution and the statutes.

The Supreme Court has rejected the doctrine that the President has any such special powers which can be described as an "aggregate of powers".

14. Where Congress by inaction leaves a vacuum, the natural tendency may be for the President to fill that vacuum by Executive action. The Congress may thus be required to legislate to prevent action by the Executive in areas where Congress has the constitutional authority to act.

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?

Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law.

There is no law or even Executive order which attempts to define the terms "Executive order" or "proclamation". In the narrower sense Executive orders and proclamations are written documents denominated as such. Executive orders and proclamations are now issued in two separately numbered series.

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 of private individuals.

Since the President has no power or 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 not legally binding and are at best hortatory unless based on such grants of authority.

The difference between Executive orders and proclamations is more one of form than of substance since in each instance the effective action sought or directed by the document is an exercise of the Executive power under article II of the Constitution and must be based on authority derived from the Constitution or statute. 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 statement uniformly applicable to the contents of 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 frequently cited in the document itself.

1 Executive Order 10006, October 11, 1948, governing Executive orders does not define the term "Executive order." 2 For a fundamental treatment of the powers of the President in this regard see James Hart, The Ordinance Making Powers of the President of the United States, Baltimore, the Johns Hopkins Press, 1925.

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2. LAW AND STATUTE GOVERNING EXECUTIVE ORDERS AND PROCLAMATIONS SPECIFICALLY

The statutes which govern executive orders and proclamations specifically are concerned primarily with matters of publication notice, and evidence. Section 30 of title 1 of the United States Code makes the bound copies of acts of Congress legal evidence of the laws and treaties contained therein in all Federal and State courts and provides that the Statutes at Large shall contain "proclamations.' In this section the word "proclamations" stands alone but a in later statute (codified as 1 U. S. C. 112) it is provided that the Statutes at Large contain—

all proclamations by the President in the numbered series issued since the date of adjournment of the regular session of Congress next preceding.3

These statutes can be traced back to an act of Congress in 1874 by which printed copies of the acts of Congress were made legal evidence. All of these statutes deal with the problem of establishing evidence of the law as written by the Congress. The matter of Presidential proclamations is treated as part of this problem.

The Federal Register Act of 1935 is of a later school of thought. It is evidence of a growing concern, inside and outside the Congress, with the problem of regularizing and making generally available important public documents which have legal force and effect. This encompassed the problem of giving to the general public adequate notice of rules and regulations issued under the statutes and the Constitution. The growth in use of Executive orders and agency regulations in the early days of the New Deal gave a tremendous impetus to the movement for having a central publication of Presidential and agency-made law. President Roosevelt issued 674 Executive orders in the 15 months immediately following March 4, 1933. In one instance, even the United States Government itself had to ask the Supreme Court to dismiss an appeal by the Government based on a regulation which no longer existed.5

The Federal Register Act (44 U. S. C. 301 et seq.) requires the publication of specified documents in a serial publication designated the "Federal Register." Publication of the "daily issues" mentioned in the act began on March 14, 1936, approximately 8 months after approval of the act by the President. Meanwhile, on February 18, 1936, the President issued Executive Order 7298 to be effective on March 12, 1936, prescribing the manner of preparing proposed Executive orders and proclamations. Executive Order 7298 was later superseded by Executive Order 10006 of October 11, 1948.6

3 See 1 U. S. C. 112a making the publication entitled "United States Treaties and Other International Agreements" legal evidence of "proclamations by the President of such treaties and agreements" among other things.

4 The Administrative Procedure Act of 1946 was another development stemming from the same concerns. See note on the Federal Register in Massachusetts Law Quarterly, vol. XXI, No. 5, 1936, at p. 51, which indicates that the special committee on administrative law of the American Bar Association in its 1934 report recommended legislation for centralization and publication of all Presidential proclamations, Execu. tive orders, rules, regulations, etc., which have general applicability and legal effect.

See article by E. N. Griswold of the Harvard Law School entitled "Government in Ignorance of the Law-A Plea for Better Publication of Executive Legislation" in Harvard Law Review, vol. XLVIII, 1934-35, pp. 198 et seq.

Executive Order 10006 provides in part as follows:

"SEC. 1.92 Routing and approval of drafts. A proposed Executive order or proclamation shall first be

Section 4 of the Federal Register Act defines the term "document" to include any "Presidential proclamation or Executive order and any order, regulation, rule *** or similar instrument issued, prescribed, or promulgated by a Federal agency." The same section of the act defines the term "Federal agency" or "agency" to mean, among others, the President of the United States."

Section 5 of the act (44 U. S. C. 305) provides:

(a) There shall be published in the Federal Register (1) all Presidential proćlamations and Executive orders, except such as have no general applicability and legal effect or are effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof; (2) such documents or classes of documents as the President shall determine from time to time have general applicability and legal effect; and (3) such documents or classes of documents as may be required so to be published by Act of the Congress: Provided, That for the purposes of this chapter every document or order which shall prescribe a penalty shall be deemed to have general applicability and legal effect.

(b) In addition to the foregoing there shall also be published in the Federal Register such other documents or classes of documents as may be authorized to be published pursuant hereto by regulations prescribed hereunder with the approval of the President, but in no case shall comments or news items of any character whatsoever be authorized to be published in the Federal Register.

Section 7 of the act provides:

No document required under section 305 (a) of this title to be published in the Federal Register shall be valid as against any person who has not had actual knowledge thereof until the duplicate originals or certified copies of the document shall have been filed with the Division and a copy made available for public inspection as provided in section 302 of this title; and, unless otherwise specifically provided by statute, such filing of any document, required or authorized to be published under section 305 of this title, shall, except in cases where notice by publication is insufficient in law, be sufficient to give notice of the contents of such document to any person subject thereto or affected thereby. The publication in the Federal Register of any document shall create a rebuttable presumption (a) that it was duly issued, prescribed, or promulgated; (b) that it was duly filed with the Division and made available for public inspection at the day and hour stated in the printed notation; (c) that the copy contained in the Federal Register is a true copy of the original; and, (d) that all requirements of this chapter and the regulations prescribed hereunder relative to such document have been complied with. The contents of the Federal Register shall be judicially noticed and, without prejudice to any other mode of citation, may be cited by volume and page number.

It is to be noted that section 12 of the act exempts treaties, conventions, protocols, and other international agreements, or proclamations thereof by the President. This type of proclamation is, therefore,

submitted, with seven copies thereof, to the Director of the Bureau of the Budget. If the Director of the Bureau of the Budget approves it, he shall transmit it to the Attorney General for his consideration as to both form and legality. If the Attorney General approves it, he shall transmit it to the Director of the Division of the Federal Register, the National Archives. After determining that it conforms to the requirements of sec. 1.91 and is free from typographical or clerical error, the Director of the Division of the Federal Register shall transmit it and three copies thereof to the President. If it is disapproved by the Director of the Bureau of the Budget or by the Attorney General, it shall not thereafter be presented to the President unless it is accompanied by a statement of the reasons for such disapproval.

"SEC. 1.93 Routing of originals and copies; seal. If the order or proclamation is signed by the President, the original and two copies thereof shall be forwarded to the Director of the Division of the Federal Register for appropriate action in conformity with the provisions of the Federal Register Act: Provided, That the seal of the United States shall be affixed, pursuant to the direction of the President, to the originals of all proclamations prior to such forwarding.

"SEC. 1.94 Numbering and certification. The Division of the Federal Register shall number chronologically all Executive orders and proclamations and shall cause to be placed upon the copies thereof the following notation, to be signed by the Director or by some person authorized by him: 'Certified to be a true copy of the original'."

7 See in this connection three letters of the President waiving certain provisions of law published in the