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memorandum.[1] The confusion, however, is understandable since there is no reason why the President could not have issued an executive order in this case.
The interchangeability of presidential memoranda and executive orders can be seen more clearly in the following examples. In April 1995, President Clinton issued a presidential memorandum directing specific agency heads to implement new policies, outlined by the President, “to give compliance officials more flexibility in dealing with small business and to cut back on paperwork.”[2] Several months later, the President issued an executive order requiring agencies that conduct, support, or regulate research involving human subjects to review, and report on, the protections of the rights and welfare of human research subjects that are afforded by existing policies and procedures.[3] Although these two actions are not directly related they both involve policy initiatives initiated by the President. Once again, either presidential mechanism would have been sufficient to direct the agencies to act.
One function where Presidents have almost exclusively relied on executive orders has been for the establishment of advisory committees and other similar bodies.[4] Another has been to establish emergency boards to investigate certain labor disputes. Most recently, President Clinton issued an executive order creating such a board to help avert a strike between American Airlines and its pilots.[5] Neither of these actions require that an executive order be issued. The President could have issued a presidential memorandum in both these instances. The only time a President is required to use an executive order rather than another instrument is when Congress so requires in statute. One example of such a requirement is where the apprehension, detention,. or conditional release of individuals is necessary to “prevent the introduction, transmission, or spread of communicable diseases as may . . . be specified in Executive orders of the President . . . .”[6] Otherwise, executive orders and presidential memoranda may be, and appear to be, used interchangeably.
Presidential memoranda and executive orders appear to be very closely related, if not identical. However, the lack of a definition for either of these mechanisms has made it difficult to make a clear distinction between them. Although a clear distinction cannot be made, they are both forms of executive legislation that must
- ↑ See, Amy Goldstein, Richard Morin, Clinton Cancels Abortion Restrictions of Reagan-Bush Era, Washington Post, January 23, 1993, at A1; See also, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 Am.J.L. & Med. 433 (January 1996) (refers to President Clinton's presidential memorandum suspending the “gag rule” as an executive order).
- ↑ Memorandum of April 21, 1995, 60 Fed. Reg. 20621 (April 26, 1995).
- ↑ Executive Order No. 12975, 60 Fed. Reg. 52063 (Oct. 5, 1995).
- ↑ See, Executive Order No. 13038, 62 Fed. Reg. 12065 (March 13, 1997) (Establishing an advisory committee for public interest obligations of digital television broadcasters).
- ↑ Executive Order No. 13036, 62 Fed. Reg. 7653 (Feb. 19, 1997); See, Executive Order No. 13004, 61 Fed. Reg. 25771 (May 22, 1996) (Establishing an emergency board to investigate disputes between certain railroads and their employees).
- ↑ 42 U.S.C. § 264(b) (emphasis added).
