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. . . to the Korean Peninsula Energy Development Organization”.[1] This determination permitted the President, pursuant to section 614(a)(1) of the Foreign Assistance Act of 1961, to contribute $25 million to this organization. Although Presidents have chosen to issue presidential memoranda to make such determinations, there is no constitutional or statutory provision that would have prohibited them from issuing an executive order instead. Thus, there would be no substantive difference between an executive order and a presidential memorandum in this situation.
Presidential memoranda have also been used by the President to delegate his authority in certain instances. In a recent delegation of authority, President Clinton, citing the Constitution and 3 U.S.C. § 301, delegated to the Secretary of State the authority to set rates on compensation for U.S. representatives to the United Nations.[2] However, the use of presidential memoranda for this purpose is not exclusive. Previous presidents have relied on the same authority to make delegations of authority pursuant to executive orders. One example of this occurred in 1979, when President Carter issued an executive order in order to delegate certain functions to the Director of the Office of Management and Budget.[3] Once again, there appears to be no substantive difference between the use of these presidential mechanisms.
One of the more controversial uses of presidential memoranda, and for that matter, executive orders,[4] has been to effectuate action by the agencies. Although the term “executive order” usually comes to mind when a President directs an agency to act, there are many instances when a presidential memorandum was used for this purpose. One example of this involved a very controversial presidential memorandum, issued by President Clinton, directing the Secretary of Health and Human Services to remove the moratorium on Federal funding of research involving the transplantation of fetal tissue from induced abortions.[5] Although this action was reported by many as an executive order, it was actually done by presidential
- ↑ Presidential Determination No. 97-21, 62 Fed. Reg. 23939 (May 2, 1997). See Presidential Determination No. 97-20, 62 Fed. Reg. 15353 (March 31, 1997) (certifying that North Korea is complying with the Nonproliferation, Anti-Terrorism, Demining and Related Programs in Title II of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1997).
- ↑ Memorandum of April 1, 1997, 62 Fed. Reg. 18261 (April 5, 1997).
- ↑ See Executive Order No. 12152, 44 Fed. Reg. 48143 (Aug. 14, 1979).
- ↑ See President Reagan's Executive Orders 12291 (3 CFR 127 (1981)) and 12498 (3 CFR 323 (1985)) (These executive orders were very controversial because they were perceived as furthering the policy agenda of a President through control of the agency decision making process).
- ↑ Memorandum of January 22, 1993, 58 Fed. Reg. 7457 (February 5, 1993).
