or amended by subsequent Executive orders. Because of staff limitations, it has had to leave untouched the vast field of implied revocations, supersessions, modifications and amendments, and all changes wrought by judicial decision and executive documents other than Executive orders. It has also had to ignore largely the effect of legislative enactments on Executive orders. So far as can be learned, results of the activities of this office have never been published.

No overall index or digest of executive orders exists. The Work Projects Administration Historical Records Survey published in 1944 a two-volume list and index of Executive orders in the numbered series, running up to Executive Order 8030, December 29, 1938. It is entitled, "Presidential Executive Orders." In 1943 the New Jersey Historical Records Survey of the Work Projects Administration published its "List and Index of Presidential Executive Orders," covering the unnumbered series from 1789 to 1941. Neither gives texts or complete summaries.

In 1955 the Legislative Reference Service of the Library of Congress published a "Table of Executive Orders Appearing in the Federal Register and the Code of Federal Regulations." It shows only the volume and page numbers in the Federal Register and the years and page numbers in the code. It contains no titles, texts, or digests.

D. AUTHORITIES CITED IN EXECUTIVE ORDERS

This survey has covered the authorities cited by Executive orders as justification for their issuance. As will be seen from the table at the end of this report, virtually all Executive orders have cited some kind of authority. Those orders which have not cited authority (for example, Executive Order 10671, of June 26, 1956, directing that flags be flown at half-mast in honor of the late Adm. Ernest J. King) are of a transitory and noncontroversial nature.

A very large number of Executive orders cite only broad grants of authority, such as "By virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the Armed Forces of the United States," or simply "By virtue of the authority vested in me as President of the United States." Forms such as these appear to have been used when there was no express statutory authority, or when express statutory authority existed and it was desired to use a catch-all expression. In a very few cases the Charter of the United Nations was given as authority.

No complete analysis of authorities cited has ever been made. The Department of Justice in 1944 made a survey of Executive orders and proclamations which had been approved by the Attorney General between July 1, 1944, and December 31, 1944, and found that in this period 99 proposed Executive orders, proclamations, and public-land orders had been approved. Of these, 71 were authorized under, or chiefly under, express statutory provisions and 28 under the general power of the President as Chief Executive or Commander in Chief of the Army and Navy; 55 related to internal affairs of the Government and 44 to the public generally or to foreign matters. From Executive orders issued during the entire 10 year period covered by the present tabulation, it is apparent from the table below that a somewhat smaller percentage of orders rely exclusively upon the general powers of the

President. An analysis of the 1,013 Executive orders included in the present tabulation shows citations of authorities as follows:

39

36

21

As President; Commander in Chief; statute..
As President; Constitution and laws; Commander in Chief; statute_
Constitution and Laws; statute__.

As President; Constitution and law (or statute); treaties of the United
States, including the Charter of the United Nations..

Commander in Chief; statute____

Statute and the applicable provisions of law.‒‒‒‒

Total citing statute___

Authorities cited:

As President_

B. Orders not citing statutory authority

As President; Constitution and laws; Commander in Chief_

As President; Commander in Chief..

As President; Constitution and laws..

Constitution and laws...

Sec. 2 of art. II of the Constitution..

No authority cited____

Total....

E. CLASSIFIED EXECUTIVE ORDERS

324

849

Number of orders in which cited

83

28

28

17

4

1

3

164

Thirty-one confidential Executive orders have been issued since September 14, 1915, when Executive Order 22451⁄2 was signed by President Woodrow Wilson. Most of these have been declassified, usually years after the event, have been published, and are today accessible to the public. Thus, President Franklin D. Roosevelt's Executive Order 9153-A, of April 30, 1942, which withdrew certain public lands in Alaska for use of the War Department for military purposes, was declassified on June 27, 1946, and its text is found in the 1946 Supplement to the Code of Federal Regulations.

Three confidential orders were issued in the period covered by this

survey:

10026-A, January 5, 1949.
10369-A, July 1, 1952.

10571-A, October 26, 1954.

Since an Executive order is an act of the President himself, the President makes the final decision as to classification, though a recommendation as to classification is made by the agency where the suggestion and draft of the Executive order originated. By the same token, the President may declassify an Executive order, or authorize declassification by someone else. For example, Executive Order 9153-A, referred to above, had its confidential status released by a letter of the Secretary of War dated June 27, 1946; the order itself had stated that it should "not be made public in any other manner except upon prior authorization by the Secretary of War."

By its very nature, a confidential Executive order cannot be published, yet such instruments must be numbered. In the case of the three Executive orders covered by this study, the White House called

the Division of the Federal Register and inquired what the last number of the numbered series was. Upon receiving this information, the White House would assign an in-between number, which accounts for the letter "A" at the conclusion of a series of digits.

Original copies of all unclassified Executive orders are kept at the National Archives, but of the three confidential orders mentioned above, the original of 10026-A is in the custody of the Department of State, that of 10369-A is in the White House files, and that of 10571-A is kept by the Office of Defense Mobilization. The last two named originated in the Interdepartmental Radio Advisory Committee.

It would appear that if confidential Executive orders were issued now they would be governed by Executive Order 10501, of November 5, 1953, which prescribes regulations for the classification of documents. "Confidential" is the lowest grade in classification. No higher grades of classification were discovered in this survey.

F. TABLE OF EXECUTIVE ORDERS, DECEMBER 29, 1945, TO

SEPTEMBER 1, 1956

This table embraces the titles, numbers, and dates of all Executive orders in the numbered series, including confidential and unpublished ones, from December 29, 1945, the date of the first order appearing in the 1946 Supplement, title 3 of the Code of Federal Regulations, to September 1, 1956. It is the first such complete listing of all Executive orders for the period by title (published and not published, classified and unclassified).

It also indicates the authority cited in each Executive order for its own issuance, and shows the present status, insofar as could be ascertained, of each order. As will be seen from a perusal of the table, very few Executive orders have remained in full force and effect without modification of some kind.

The table does not provide a definitive coverage of implied or partial revocations, supersessions, or amendments by other Executive orders, proclamations, other acts of the Executive or agency heads acting under Presidential authority, legislative enactments, or judicial decision. Only in a few of the most obvious cases, and instances of great public interest in the subject matter, have implied changes been noted. A project to determine which of all Executive orders are still in effect would be one beyond the scope of this study.

Executive orders in the following categories have been listed in lower case type, without symbol indicating status or disposition:

1. Executive orders which by their own express statement are transitory and now obsolete, or obsolete due to changed conditions, or concerning an agency which does not exist, or obsolete for other reasons.

2. Executive orders which are applicable to one or more specifically named persons only.

3. Executive orders which are applicable to only one transaction, such as the transfer of real estate or of functions of an agency, which has already been executed.

4. Executive orders which claim as statutory authority provisions

5. Executive orders which terminate a general class of orders, regulations, or directives.

6. Executive orders which terminate an agency with or without transfer of its functions.

7. Executive orders which expressly revoke earlier Executive orders.

8. Executive orders which have been expressly amended by other Executive orders.

In categories other than the above, listing has been made in smal capitals indicating that these Executive orders were intended to have continuing effect and to be of more than limited applicability.

Authorities cited for Executive orders are noted in the appropriate column or footnotes.

Though the table reveals that many Executive orders have cited as authority statutes which are no longer in effect, it must be borne in mind that such orders are not necessarily void or obsolete. They may contain references to other authority which is a valid basis for the order and which is of equal or even superior significance to the cited statute. Furthermore, the wording in the cited but nonexistent statute may have been transferred to another place, with a different number and reference. Enough appears in the table, however, to show that in such cases citation of the old statute would not provide sufficient authority if the Executive order were drafted and issued today.

Wherever there has been doubt as to whether or not an Executive order is still in effect, the doubt has been resolved in favor of continued validity.

Many Executive orders cite as their authority title I of the Selective Service Act of 1948, 62 Statute 604, as amended. The United States District Court for the Southern District of California, Central Division, has ruled that the act might be called either the Selective Service Act or the Universal Military Training and Services Act. U. S. v. Sutter (127 F. Supp. 109 (1954)). This table therefore assumes that the two designations are interchangeable, though a 1951 amendment discarded the division of the act into titles and altered specific sections. "As President" means that the Executive order has cited as legal justification authority as President of the United States; "Constitution and laws" means that the President has cited the general authority conferred upon him by the Constitution and laws of the United States; and "Commander in Chief" means that the President has cited his authority as Commander in Chief of the Armed Forces of the United States or Commander in Chief of the Army and Navy.

Where specific statutory authority has been cited, the word "Statute" or "Statutes" denotes this fact, and footnotes, found at the end of each year's Executive orders, refer to the statutes in point.

1945-46

[NOTE: Titles in small capitals indicate that these Executive orders are apparently still in effect in unamended form.]