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Summary of the statutory and constitutional bases affecting Executive
Part I. Executive orders and proclamations and the Presidential powers
A. Constitutional and statutory bases of Executive orders and proc-
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
affecting the use of the Executive power.---
The 1793 controversy over Washington's Proclama-
The President and the Supreme Court in the Andrew
Jackson nullification controversy and bank charter
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,
A. Prior history of the Executive order..
E. Classified Executive orders_____
F. Table of Executive orders, December 29, 1945, to September 1,
Field v. Clark (143 U. S. 649).
Fleming et al. v. Page (9 How. 603)
Gratiot v. U. S. (4 How. 80, and Ex parte Reed, 100 U. S. 13)
Maresca v. U. S. [2 Cir.] (277 F. 727)
Mississippi v. Johnson (4 Wall. 475)
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).
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).
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.
7. Nor may Congress enlarge the President's powers by delegating legislative power to the President.
And where standards are laid down by the Congress to control the exercise of functions conferred on him by statute the President must adhere to the standards in his actions.
8. Congress may empower or direct the President to declare the existence of specified facts or conditions by proclamation or otherwise and thereby make some provision of law operative, or to suspend the operation of certain provisions of law.
9. The nature and limitations of Executive power have been a matter of controversy from the very beginning of our Nation.
In President Washington's administration Alexander Hamilton argued that the Executive-power clause in article II of the Constitution was a grant of power in itself. James Madison's opposing position was that the Executive-power clause was not a grant of power in itself since ours is not a government involving royal prerogative. President Jackson has sometimes been cited as a great exponent of broad Executive power. Jackson, however, never asserted any right to refuse to execute any law enacted according to constitutional processes.
An extraordinarily vigorous use of Executive power characterized President Lincoln's tenure of office. An example of such action was the President's use of his position as Commander in Chief, under a constitutional power which received increased significance upon the outbreak of hostilities within the borders of our Nation.
10. The President's position as Commander in Chief gains importance in periods of war or armed conflict affecting the United States. The Supreme Court has stated that even with a declaration of war by the Congress the Commander in Chief's powers are restricted to military affairs. However, recognizing the possibility of a lag in statutory law, a President may be impelled to take actions which in fact require congressional authorization.
But when the lag in legislative action is finally overcome by action of Congress, except for criminal penalties, the Congress may ratify the actions of the President, thereby curing defects which may have existed by reason of his ultravires action.
11. There have been cases of emergency presidential actions which have been effective in times of national crisis. But the general effect of both congressional action and judicial interpretation has been to review such actions and to provide for their performance through the established legislative processes in manner prescribed by law.
12. There has been no judicial acceptance of the doctrine of "inherent" executive power in the Presidency.
The argument for "inherent" presidential powers, advanced by Hamilton in the dispute centering around Washington's proclamation of neutrality in 1793, is a persistent theme in America's constitutional history. It has been reasserted at times when a President has been confronted by an emergency and has either been unable or unwilling to find or seek authority for contemplated action either explicity in the Constitution or in existing statutes or to request enactment of new legislation. Despite the broad scope of congressional power under the "necessary and proper" clause of article I, section 8, of the Constitution Presidents have acted from time to