CRS-17
Congress may also play a role in the President's ability to issue an executive order or proclamation when the President relies on authority which exists in a "zone of twilight." In this "zone of twilight," the President and Congress may have concurrent authority or there may be uncertainty as to the distribution of such authority. In either situation, "congressional inertia, indifference or quiescence"[1] may leave the door open for the President to act. Congress may either close the door or prop it open further.
If Congress wishes to close the door on the President in the "zone of twilight," it may legislate in contradiction to the executive order or proclamation. Such was the case at the end of World War II (a period where Congress had acquiesced in expanded presidential authority due to a time of national emergency). By 1944, Congress grew uncomfortable with the expanse of executive power and decided to use its power of the purse to prevent FDR from using executive orders to create agencies and carry out agency activities that had no legislative authority.[2] Subsequently, Congress passed the "Russell Amendment" which prohibits the use of any appropriation or fund to pay the expenses of "any agency or instrumentality including those established by Executive Order" if Congress tins not appropriated money specifically for it or authorized the expenditure of funds by it.[3]
Another instance where Congress has used its appropriation power involved the Subversive Activities Control Board (SACB) which required the public registration of "communist action" and "communist front" organizations.[4] After the registration requirement was held to violate the Fifth Amendment,[5] Congress revitalized the SACB by authorizing it to determine, through hearings, whether individuals and organizations were communist.[6] This too was found to violate the Constitution (First Amendment).[7] President Nixon later got involved by issuing an executive order which expanded the board's authority and field of inquiry.[8] Senator Sam Ervin took exception to this use of executive power and introduced a resolution to prohibit the use of appropriated funds to implement the executive order.[9] His contention in this issue was based on the sentiment that the President had no power "to alter by Executive order the content or effect of legislation enacted by Congress." This resolution was passed by the Senate, but was tabled by the House. The next year the House passed a bill which supported the executive order while the Senate entertained an amendment to delete the SACB's entire budget of $450,000. In conference, the
- ↑ Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
- ↑ Louis Fisher, Laws Congress Never Made, 5 Constitution 59, 63 (Fall 1993).
- ↑ 31 U.S.C. § 1347; 58 Stat. 387, ch. 286, sec. 213 (1944).
- ↑ 64 Stat. 987 (1950).
- ↑ Albertson v. Subversive Civilities Control Board, 382 U.S. 70 (1965).
- ↑ 81 Stat. 765 (1968).
- ↑ Boorda v. SACB, 421 F.2d 1142 (D.C.Cir. 1969), cert. denied, 397 U.S. 1042 (1970).
- ↑ Exec. Order No. 11605, 36 Fed. Reg. 12831 (1971).
- ↑ S.Res. 163, 92d Cong., 1st Sess. (1971).
