While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test *** 75

Finally, Justice Jackson called attention to the fact that emergencies require action and, that while Congress has, under the Constitution, ample authority to act in the interests of the Nation, the Congress must act to prevent that very power from being usurped.

***But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

The essence of our free Government is "leave to live by no man's leave, underneath the law"-to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. * * * 76

Mr. Justice Clark, concurring, thought the case was controlled by the Court's early opinion in Little v. Barreme."

History shows that the Presidency is an extremely powerful office, if only by virtue of the powers and resources that are necessarily placed at the President's disposal through legislation and appropriations by the Congress. The legality of some Presidential actions may be doubtful but the fact is that the President's position may impel and enable him to act while at the same time the greater legal authority under the Constitution may reside in the Congress.

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.

75 343 U. S. 646-647.

76 343 U. S. 654-655.

77 See p. 17, supra. Justice Clark did reiterate his previous opinion as Attorney General concerning "inherent" power but qualified it with the condition that Congress must have failed to act. Justice Clark stated:

"*** In my view-taught me not only by the decision of Mr. Chief Justice Marshall in Little v. Barreme, but also by a score of other pronouncements of distinguished members of this bench-the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be necessary to the very existence of the Constitution itself. As Lincoln aptly said, '[is] it possible to lose the Nation and yet preserve the Constitution?' In describing this authority I care not whether one calls it 'residual', 'inherent,' 'moral,' 'implied,' 'aggregate,' 'emergency,' or otherwise. I am of the conviction that those who have had the gratifying experience of being the President's lawyer have used one or more of these adjectives only with the utmost of sincerity and the highest of purpose.

"I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand. ** (343 U. S. 662).

See also in this connection the analysis by Prof. Charles S. Collier reprinted in H. Doc. 443, 84th Cong., at pp. 72-75.

PART II

TABULATION OF EXECUTIVE ORDERS ISSUED IN THE PERIOD DECEMBER 29, 1945-SEPTEMBER 1, 1956

A. PRIOR HISTORY OF THE EXECUTIVE ORDER

Beginning in 1789, with George Washington, Presidents have issued orders which can be described as Executive orders. There has been no set form with which orders should comply. Often a President would write "Approved," "Let it be done," or "I approve the accompanying recommendation and order that it be effected," or similar words, at the end of a recommendation drawn up by a Cabinet member. Sometimes an Executive order was signed by a secretary at the order of the President. An example is Executive Order 113, February 8, 1899, when J. A. Porter, secretary to President McKinley, signed an order for flying the flag at half-mast during the removal of the remains of John A. Rawlins to Arlington National Cemetery.

Another instance of informality is that of two notes, of April 12, 1851, and February 8, 1853, written by President Millard Fillmore on different parts of a large colored manuscript map, 45 by 69 inches in size, showing a "Proposed Method of Laying Out the Public Grounds at Washington, February 1851." The notes approved portions of the plan. Technically, these notes might be construed as Executive orders.

Other orders were signed by the Secretary of State in the absence of both the President and the Vice President, as in the case of Executive Order 7, signed by Secretary of State William H. Seward on July 28, 1868. It certified the 14th Amendment to the Constitution as in effect, and ordered publication. Others were orders signed by department heads, and they purported to have the same effect as if they had been signed by the President. Thus Secretary of War William Howard Taft signed Executive Order 348-A of August 29, 1905, which defined the boundaries of a proposed military reservation on reclaimed harbor land at Manila, Philippine Islands.

Even as late as 1906, Executive orders were treated with the utmost informality. Executive Order 396 of that year, for example, is not even dated. It is simply an endorsement on a letter written by Senator Knute Nelson, of Minnesota, making a certain woman eligible for reinstatement as a classified laborer in the Department of Agriculture. The first administrations used Executive orders for such purposes as the withdrawal of public lands for Indian use, for military and naval functions, and for the erection of lighthouses, as well as for the establishment, transfer, and abolition of land districts and land offices and supplementing of acts of Congress. Later on, the device of the Executive order was employed for the creation, modification, or disposition of forest, oil, gas, or coal reserves and the withdrawal of public lands from sale or entry. It was also used for expansion of the civil service, allocations of direct Government funds for possessions

acquired during the Spanish-American War, and extraordinary measures during periods of emergency like depression and war.

In World War I Executive orders set up agencies like the War Trade Board, the Grain Corporation, the Committee on Public Information, and the Food Administration, but the real heyday of the Executive order came in the early 1930's. Reorganization of executive departments and independent offices was undertaken, codes of fair competition under the National Industrial Recovery Act were approved, the bank holiday was ended, and much of the administrative organization for farm loans and agricultural relief set up. Executive orders also created the National Labor Board and the War Labor Board.

With the devolution of duties from the top executive level to lower levels, especially during World War II, the need for Executive orders declined. The passing of the depression and war emergencies contributed to this trend.

The following table of the number of Executive orders issued since 1914 reveals the nature of this trend. The figures refer to orders in the numbered series only:

The peak year is 1933, the first year of the New Deal, when the power of the President was expanded to an unprecedented degree to cope with the depression. The low year in this period is 1956.

A further decline in the number of Executive orders can be traced to an act of October 31, 1951 (3 U. S. C., sec. 301, ch. 655, sec. 10, 65 Stat. 713), which authorized the head of any agency in the executive branch to perform without action by the President,

(1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized to perform only with or subject to the approval, ratification, or other action of the President ***

Orders and directives of agency heads, in large part, took the place of Executive orders emanating directly from the President.

One result of this statute was to cut down markedly the number of orders which were of a purely private and special nature. The Presidential practice of exempting certain named civil-service employees from compulsory retirement provisions stopped with Executive Order 10530 of May 10, 1954, which transferred the responsibility to the Civil Service Commission.

B. NUMBERING OF EXECUTIVE ORDERS

The earliest Executive orders were not numbered. Numbering seems not to have been instituted until 1907, when the Department of State started to assign numbers to all Executive orders which it had on file. Back orders later added were given in-between numbers, while orders which did not find their way to the Department of State were never numbered at all.

The order which was designated Executive Order 1 was issued by the authority of President Abraham Lincoln on October 20, 1862, and concerned the establishment of military courts in Louisiana. The last one issued in 1956 is Executive Order 10693, December 22, 1956, concerning the appointment of an emergency investigating board under the Railway Labor Act.

Although Executive orders were supposed to be deposited with the Department of State until 1935, a majority of the earlier orders were, in fact, never deposited. They were simply filed away in the agencies themselves, and were soon forgotten. Some orders were not numbered. Some of the unnumbered orders, when viewed in retrospect, seem to have been of great importance. An unnumbered Executive order of April 7, 1917, for example, issued on the day after war was declared on Germany, allowed the removal of any Government employee when his retention was deemed inimical to the public welfare.

Because of this lack of system in filing and in custody, no one knows exactly how many Executive orders have ever been issued. It is quite possible that some, even many, older ones, today lie in dusty files, untouched for decades. Some may be in unexplored Presidential papers. Former Secretary of the Interior Harold L. Ickes once estimated the number of unnumbered Executive orders as 15,000, while others have placed the figure as high as 50,000. Occasionally an unnumbered and forgotten Executive order is uncovered at this late date.

Now, as required by the Federal Register Act, every Executive order must be filed with the Division of the Federal Register, rather than the Department of State, and it is the Division which assigns numbers. The volume of unnumbered orders was substantially reduced when the Department of State began the assignment of numbers in 1907, and there have been virtually no unnumbered Executive orders in recent years.

Numbers run_consecutively. In 1951, a proposal to change the numbering of Executive orders and proclamations to an annual series was abandoned, largely as the result of opposition from the Department of Justice and the National Archives.

C. PUBLICATION OF EXECUTIVE ORDERS

Executive orders now appear in the Federal Register and in bound volumes of title 3 of the Code of Federal Regulations, an annual publication.

Originally, as has been pointed out, Executive orders were issued in

all Executive orders. In 1895 there was started the "Documentary Catalog," which listed every Executive order printed in slip form (i. e., as a single printed sheet) by the Government Printing Office, whether included in the numbered series or not, but there was no central publication or codification.

The Federal Register Act of 1935 (44 U. S. C. 301, et seq.) finally brought some order out of the chaos into which Executive orders had fallen. That act provided "for the custody of Federal proclamations, orders, regulations, notices, and other documents, and for the prompt and uniform printing and distribution" of them. Primary duty for custody was placed on the Archivist of the United States. With the Public Printer he was to undertake prompt and uniform printing and distribution of the documents referred to in the act, including Executive orders.

The Archivist thereupon established in the National Archives a new division entitled the Division of the Federal Register, whose Director was to be appointed by the President and who was to carry out the provisions of the act under directions of the Archivist. Å Permanent Administrative Committee was also set up under the Federal Register Act, consisting of the Archivist or Acting Archivist as chairman, an officer of the Department of Justice designated by the Attorney General, and the Public Printer or Acting Public Printer.

The first Executive order to be published in the Federal Register was 7316 of March 14, 1936, which concerned a bird refuge in South Carolina.

The texts of numbered Executive orders, and a few unnumbered ones, issued prior to March 14, 1936, have been compiled in a 26volume set now in the Library of Congress. Although the numbered series starts in 1862, the set contains two or three earlier orders that have never received numbers.

Reprints of the text of Executive orders for the prior year are published annually as supplements to title 3 of the Code of Federal Regulations. Each supplement issued at the present time is a continuation of a series of such reprints which began in the 1938 Supplement to the Code, with Executive Order 7906 of June 6, 1938, as the first entry. The series was cumulated in Book 1 of the Cumulative Supplement to the Code of Federal Regulations in 1943, and until 1948 Executive orders might be found in annual supplements, along with documents of a more general nature. Beginning in 1948, Executive orders, proclamations, and other Presidential documents have been published in separate volumes as title 3.

No up-to-date revision of Executive orders, as distinguished from codification, exists, and no effort is being made to present a codification clear of orders which for one reason or another are not in force and effect today. A person interested, for example, in ascertaining whether an Executive order of 1930 is still of application is obliged to trace that order through all subsequent compilations. There is no table or digest to which he can turn, to learn quickly and conveniently if the order still has the force of law.

The Index Section of the Federal Register Division in the National Archives maintains a highly serviceable card index of Executive orders that have been expressly revoked, superseded, modified, extended,