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placed in a separate category both by this statute and by title 1 United States Code, section 112a referred to above.

3. EFFECT OF FEDERAL REGISTER ACT ON GENERAL LAW GOVERNING EXECUTIVE ORDERS AND PROCLAMATIONS

The Federal Register Act, being a notice and publication statute, changed one principal aspect of the general law governing Executive orders and proclamations. Prior to the enactment of the Federal Register Act, the effective date of an Executive order or proclamation was the "first moment" of the day in which the Secretary of State sealed and attested to the document. This was the rule laid down by the Supreme Court in the case of Lapeyre v. U. S. in 1872 (17 Wall. 191).8

Under the Federal Register Act (44 U. S. C. 307) the documents are not valid against any person who does not have actual knowledge thereof until the duplicate originals or certified copies shall have been filed as specified.

In other respects the Federal Register Act did not change the general law. For example, there is no adjudicated distinction between an "Executive order" and a "proclamation" although the Supreme Court has not closed the door to some future distinction. In the case of Wolsey v. Chapman (101 U. S. 755; 1879) the Supreme Court considered the effect of a departmental order under a statute of 1841 recognizing the reservation of public land from sale "*** by any law of Congress or proclamation of the President of the United States * * In addition to deciding on the validity of a departmental order as distinguished from a Presidential order, the Court considered the form of the Executive action document. Adopting the holding of an earlier court on the matter of the validity of the department's order, the Court had this to say about the form of the document:

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*** That case is conclusive of this, unless the word "proclamation," as used in the present statute, has a signification so different from "order" in the other as to raise a material distinction between the two cases * * *. We see no such intention on the part of Congress. A proclamation by the President, reserving lands from sale, is his official public announcement of an order to that effect. No

8 The Court used the following language:

"There is no statute fixing the time when acts of Congress shall take effect, but it is settled that where no other time is prescribed, they take effect from their date. Where the language employed is 'from and after the passing of this act,' the same result follows. The act becomes effectual upon the day of its date. In such cases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible. See Welman's Case, where the subject is examined with learning and ability.

"Publishing by outcry, in the market-place and streets of towns, as suggested by Chitty, has, we apprehend, fallen into disuse in England. It is certainly unknown in this country. While it is said the proclamation always appears in the gazette, he does not say that it cannot become operative until promulgated in that way. As no mode of publication is prescribed, and those suggested will answer, we do not see why applying the seal and depositing the instrument in the office of the Secretary of State, may not be held to have the same effect. The President and Secretary have then completed their work. It is there amidst the archives of the nation. The laws of Congress are placed there. All persons desiring it can have access, and procure authenticated copies of both. The President signs and the Secretary of State seals and attests the proclamation. The President and Congress make the laws. Both are intended to be published in the newspapers and in book form. Acts take effect before they are printed or published.

"Why should not the same rule apply to proclamations? We see no solid reason for making a distinction. If it be objected that the proclamation may not then be known to many of those to be affected by it, the remark applies with equal force to statutes. The latter taking effect by relation from the beginning of the day of their date, may thus become operative from a period earlier than that of their approval by the Presi dent, and indeed earlier than that at which they received the requisite legislative sanction. The legislative action may all occur in the latter part of the day of their approval. The approval must necessarily be still later. It may be added, as to both statutes and proclamations, that even after publication in the newspapers, there are in our country large districts of territory where actual knowledge does not usually penetrate through that or any other channel of communication, until a considerably later period. It will hardly be contended that proclamations should take effect at different times, in different places, according to the speedier or less speedy means of knowledge in such places respectively." See Arnold v. U. S., 9 Cranch 104 for doctrine on effective date of law.

particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained * * *9

Similarly, the provision in the Federal Register Act that the contents of the Federal Register shall be judicially noticed (44 U. S. C. 307) did not alter the law to the effect that Executive orders and proclamations are public acts of which the courts must take judicial notice. The Supreme Court had stated that doctrine in the case of Armstrong v. U. S. (13 Wall. 154, 156; 1871) as follows:

*** The (President's) proclamation of the 25th of December granted pardon unconditionally and without reservation. This was a public act of which all courts of the United States are bound to take notice, and to which all courts are bound to give effect.*** 10

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It should also be noted that if founded upon the constitutional powers given to the President or upon statute an Executive order or proclamation *** has the force of public law * **" (Jenkins v. Collard 10). In fact it has been held In fact it has been held that a valid Executive order has the same effect as if it had been incorporated in the authorizing act itself:

* * * We are satisfied that the two Executive orders of the President had the same effect as if they had been incorporated in the appropriation resolution itself ** *.11

Moreover, Congress may give the same status of law to an Executive order or proclamation by "ratifying" a prior Executive order by statute.12 The result appears to be the same, dating from the enactment of the statute, as though the order was issued after the statute was enacted.

Executive orders and proclamations may not only have the same force and effect as law, but the violation of provisions thereof may be made a crime punishable by sanctions and penalties, if the Congress so provides, without being an unconstitutional delegation of legislative powers.1

13

To recapitulate, the Federal Register Act is primarily a notice and publication statute. One must look to the rulings of the courts to find the law concerning Presidential authority or powers, whether expressed in Executive order or proclamation or in some other form. The matter of Presidential authority or powers is one of the basic problems of constitutional law. Since Executive orders are addressed primarily to department (and agency) heads, it becomes pertinent to inquire into the legal relationship of the President, the Congress, and the department (and agency) heads. Since the President by proclamation or otherwise takes actions which may have the force and effect of law as regards private citizens, it is also pertinent to highlight and sum

101 U. S. 770.

10 See also Jenkins v. Collard (145 U. S. 546, 560-561; 1891).

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As the general pardon and amnesty to all persons implicated in the rebellion are not pleaded by the defendant, to relieve the offending party, whose life estate in the premises in controversy was confiscated, from his disabilities respecting the reversionary interest, or naked fee in the premises, it is claimed that no benefit can be derived from them. But this result does not follow from the omission in pleading, for the pardon and amnesty were made by a public proclamation of the President, which has the force of public law, and of which all courts and officers must take notice, whether especially called to their attention or not."

Also compare with the doctrine of The Three Friends (166 U. S. 1, 64-66; 1896) in which proclamations of the President calling attention to "serious civil disturbances" and "insurrection" in Cuba were deemed to hold the Supreme Court "judicially informed of the existence of an actual conflict of arms" although there was no recognition of belligerency. On the basis of these proclamations the court held that an Act of Congress prohibiting citizens of the U. S. from taking part in such disturbances adversely to the established government became applicable. In the light of subsequent opinions such as Ex parte Milligan, infra, the question may be raised as to whether the findings in the President's proclamations were conclusive although they were "information."

State ex rel. Kaser v. Leonard, 102 P (2d) 197, 129 ALR 1125, 1136; 1940.

12 Hirabayshi v. U. S., 320 U. S. 81, 91; 1943.

marize some of the fundamental constitutional and legal developments affecting the use of Executive power.

B. AUTHORITIES BEARING ON THE EXERCISE AND EXTENT OF PRESIDENTIAL AUTHORITY

1. THE PRESIDENT, THE CONGRESS, AND THE DEPARTMENT AND AGENCY HEADS

The Constitution itself does not spell out the legal relationship between the President and the heads of departments. Article II, section 2, of the Constitution provides that the Congress may vest the appointment of inferior officers in the heads of departments as an alternative to appointment by the President by and with the advice and consent of the Senate. Apart from this provision, article II, section 2, contains the following language concerning the President's powers vis-a-vis department heads:

*** he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices ***

Alexander Hamilton writing in the Federalist No. 74 had this to say about this provision of the Constitution:

This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.

Thus it would appear that the Constitution contemplated executive departments whose heads would be responsive to the President but who also would exercise functions vested directly in them by law by the Congress. As will be seen from the discussion below the law seems to have developed in both of the directions indicated rather vaguely in article II of the Construction.

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. This point was specifically treated by the Supreme Court in Wolsey v. Chapman (101 U. S. 755, 769-770; 1879):

The truth is, there can be no reservation of public lands from sale except by reason of some treaty, law, or authorized act of the Executive Department of the government; and the acts of the heads of departments, within the scope of their powers, are in law the acts of the President. In Wilcox v. Jackson (13 Pet. 498), the question was directly presented whether a reservation from sale by an order from the War Department was a reservation "by order of the President," and the court held it was. The language of the statute then under consideration was (p. 511), "or which is reserved from sale by act of Congress or by order of the President, or which may have been appropriated for any purpose whatever;" and in the opinion of the court it is said (p. 513): "Now, although the immediate agent in requiring this reservation was the Secretary of War, yet we feel justified in presuming that it was done by the approbation and direction of the President. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the War Department. Hence we consider the act of the War Department in requiring the reservation to be made, as being in legal contemplation the act of the President; and consequently that the reservation thus made was, in legal effect, a reservation made by order of the President, within the terms of the act of Congress." That case is conclusive of this, unless the word "proclamation," as used in the present statute, has a signification so different from "order" in the other as to raise a

material distinction between the two cases. We see no such intention on the part of Congress. A proclamation by the President, reserving lands from sale, is his official public announcement of an order to that effect. No particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained. If the President himself had signed the order in this case, and sent it to the registers and receivers who were to act under it, as notice to them of what they were to do in respect to the sales of the public lands, we cannot doubt that the lands would have been reserved by proclamation within the meaning of the statute. Such being the case, it follows necessarily from the decision in Wilcox v. Jackson that such an order sent out from the appropriate executive department in the regular course of business is the legal equivalent of the President's own order to the same effect. It was, therefore, as we think, such a proclamation by the President reserving the lands from sale as was contemplated by the act.

This doctrine was reiterated as a long standing doctrine in State ex rel. Kaser v. Leonard et al. (102 P. 2d 197, 204-205; 1940):

We could greatly extend these quotations and citations, but shall close by now quoting from Maresca v. U. S. (2 Cir., 277 F. 727, 735): "The regulation was promulgated by the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury. Importance is attached, by counsel for defendants, to the fact that the President himself did not make or proclaim the regulation, and that it does not appear that he authorized either of the officials named to exercise the power delegated to him. The law is established that the President may exercise through the heads of departments the powers vested in him. He speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Wilcox v. Jackson Ex dem. McConnel (13 Pet. 498, 10 L. Ed. 264); Wolsey v. Chapman (101 U. S. 755, 25 L. Ed. 915). And it must be presumed as matter of law that the Secretary of the Treasury, acting over his own signature, does so by direction of the President. In U. Š. v. Fletcher (148 U. S. 84, 13 S. Ct. 552, 37 L. Ed. 378), the President was required to act in the matter in controversy in a judicial capacity under the Articles of War in approving a report of a court martial, and it appeared that the Secretary of War had acted in the matter over his own signature. court held that it must be presumed that he acted by direction of the President in so doing. And in Porter v. Coble [8 Cir.] (246 F. 244, 249, 158 C. C. A. 404), a postmaster who had been removed from office by the Postmaster General claimed that the power of removal was in the President, and that there was nothing to show that the man had been removed by the President or that the Postmaster General had ever been authorized by the President to make the removal. It was held that it may be presumed that the Postmaster General in ordering the removal acted by direction of the President. So it may be that the act of the Secretary of the Treasury in promulgating the regulation was the act of the President in the matter under consideration."

The

As we have shown, the Appropriation Act expressly authorized the President— or, if we may employ a different term having the same meaning, the executive department of the government-to prescribe whatever rules and regulations were necessary to carry into effect the purpose of the act. When the Appropriation Act said "The President shall require to be paid such rates of pay, ***Section

7, it did not, in our opinion, demand that the President should personally act, but that either he or some other member of the executive department of which he is the head should perform those duties ** *1

14

In spite of the special relationship of department heads to the President, however, they are, of course, bound to obey the statutes. In the absence of discretion, or in other words, where Congress by its degree of specification, in writing the law makes the act to be per

14 Attorney General Caleb Cushing had enunciated the same principle in 1854 as follows: "The act of a Head of Department is, in effect, an act of the President." (6 Op. A. G. 682). In this connection the following excerpt from Ludecke v. Watkins is pertinent (335 U. S. 160, 165-66; 1947):

"The power with which Congress vested the President had to be executed by him through others. He provided for the removal of such enemy aliens as were 'deemed by the Attorney General' to be dangerous. But such a finding, at the President's behest, was likewise not to be subjected to the scrutiny of courts. For one thing, removal was contingent not upon a finding that in fact an alien was 'dangerous.' The President was careful to call for the removal of aliens 'deemed by the Attorney General to be dangerous.' But the short answer is that the Attorney General was the President's voice and conscience. A war power of the President not subject to judicial review is not transmuted into a judicially reviewable action because the President chooses to have that power exercised within narrower limits than Congress authorized ***.”

formed ministerial, the performance of the act is judicially enforceable. A writ of mandamus may be issued in such circumstances 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, 15

The relationship of the head of a department and the President in such circumstances was discussed at length by the Supreme Court in Kendall v. U. S. (12 Peters 524, 610-613; 1838):

We shall not, therefore, enter into any particular examination of the line to be drawn between the powers of the executive and judicial departments of the government. The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed.

The executive power is vested in a Fresident; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the President. Such a principle, we apprehend, is not, and certainly cannot be claimed by the President.

There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.

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It was urged at the bar, that the postmaster general was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law; and this right of the President is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice."

To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible. But although the argument necessarily leads to such a result, we do not perceive from the case that any such power has been claimed by the President.

The President has a method of controlling the discretionary acts of heads of executive departments. He may remove officers performing purely executive functions and Congress cannot interpose restrictions

15 Dunlap v. U. S., 173 U. S. 65, 76; 1898:

"If the duty of the Secretary to prescribe regulations was merely ministerial, and a mandamus could, under the circumstances, have issued to compel him to discharge it, would not the judgment at which he arrived, the action which he took, and his reference of the matter to Congress, have furnished a complete defence? But it is insisted that by reason of the exercise of discretionary power necessarily involved in prescribing regulations as contemplated, the Secretary could not have been thus compelled to act. We think the argument entitled to great weight, and that it demonstrates the intention of Congress to leave the entire matter to the Treasury Department to ascertain what would be needed in order to carry the section into effect. Nothing could have been further from the mind of Congress than that repayment must be made on the unregulated use of alcohol in the arts, if in the judgment of the Department, as the matter stood, such use could not be regulated."

U. S. ex rel. Dunlap v. Black, 128 U. S. 40, 48; 1888:

"The principle of law deducible from these two cases is not difficult to enounce. The court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a case at all, or when, by special statute, or otherwise, a mere ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question, then, if they refuse, a mandamus may be issued to compel them."

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