CRS-2
upon Article II of the Constitution as the sole basis for issuing executive orders and proclamations. For present purposes, Article II states that "the executive power shall be vested in a President of the United States," "the President shall be Commander in Chief of the Army and Navy of the United States," and "he shall take care that the laws be faithfully executed."[1] The President's ability to issue executive orders and proclamations is also derived from express or implied statutory authority from Congress.[2]
The ambiguity behind executive orders and proclamations poses a great concern for Congress and the public. At issue is the possibility that these presidential instruments may directly or indirectly affect the substantive rights, duties or obligations of persons outside the government. As a consequence, since executive orders and proclamations are a species of executive legislation, they have important constitutional implications, particularly with respect to the separation of powers. Furthermore, these instruments, if issued under a valid claim of authority and published,[3] have the force and effect of law[4] and courts are required to take judicial notice of their existence.[5] Thus, it is important to examine the legal basis for each executive order and proclamation issued and the manner in which the President has used these instruments.
The primary focus of this report is to determine the limits of the President's authority to issue executive orders and proclamations and to determine the role of the legislature and judiciary in shaping the President's use of these powerful instruments. This report will also compare presidential memoranda, a frequently used executive instrument, to executive orders.
Evolution of Executive Orders and Presidential Proclamations
The first use of proclamations can be traced back to George Washington. In 1793, the Washington Administration was wrestling with the idea of issuing a proclamation declaring the United States' neutral in the war between England and
- ↑ U.S. Const., Article II, Secs. 1, 2, & 3.
- ↑ Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952), discussed, infra, at pp. 5-8. In such instances where Congress statutorily grants the President the authority to act, his authority is at its peak.
- ↑ The Federal Register Act requires that executive orders and proclamations be published in the Federal Register. 44 U.S.C. § 1505. Moreover, the President is required to comply with the regulations, established by executive order, governing the preparation, presentation, filing, and publication of executive orders and proclamations. Exec. Order No. 11030, 27 Fed. Reg. 5847 (1962).
- ↑ Armstrong v. United States, 80 U.S. 154 (1871); see also Farkas v. Texas Instrument Inc., 375 F.2d 629 (5th Cir. 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3d Cir. 1964).
- ↑ Jenkins v. Collard, 145 U.S. 546, 560-561 (1893).
