CRS-18
House and Senate compromised by appropriating $350,000 to the SACB, but they specifically prohibited the SACB from using any of the funds to carry out the executive order.[1] Following this experience, the Administration did not request appropriations for the SACB in the 1974 budget.
Other than attempting to derail an executive order or proclamation which exists in the "zone of twilight," Congress may want to prop up such action by enacting legislation in support of the President's use of power. One strong reason for Congress to do this is so that it establishes its jurisdiction over that particular area of authority. Otherwise, continued acquiescence towards presidential action in a particular manner may be given great weight by the judiciary in determining who actually possesses such authority.[2]
The proclamations issued by Presidents Washington[3] and Lincoln,[4] and the executive orders issued by FDR[5] are prime examples of situations in which the President has acted in a manner which is highly dubious, yet is later sanctioned by congressional action. The Prize Cases[6] support the proposition that Congress may ratify actions of the President, thereby curing any defects which may have existed. In The Prize Cases, the Supreme Court heard a challenge to President Lincoln's right to proclaim a blockade which resulted in the capture of prizes by the public ships of the United States. At issue was whether a state of war existed which would have authorized the President to take such action.[7] The Supreme Court stated that ". . . if it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States."[8]
Congress may also act, where there is concurrent jurisdiction, in a manner similar to the President, yet tailored to its own purposes. Such was the case involving
- ↑ 86 Stat. 1134, sec. 706 (1972).
- ↑ See Midwest Oil v. U.S., 236 U.S. 459 (1915).
- ↑ Supra. 2.
- ↑ Supra. p. 3.
- ↑ Supra. p. 4.
- ↑ 2 Black 635 (1862).
- ↑ By Acts of Congress of February 28, 1795, and March 3, 1807, the President was authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, "... and to suppress insurrection against the government of a State or of the United states." See staff of House Comm. on Government Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Power (Comm. Print 1957).
- ↑ 2 Black 670-671 (1862).
