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possess similar authority. If issued under a valid claim of authority and published,[1] executive orders and presidential memoranda have the force and effect of law[2] and courts are required to take judicial notice of their existence.[3] Thus, it is important to examine the legal basis for each executive order and presidential memoranda issued and the manner in which the President has used these instruments.
Conclusion
In summary, the President's authority to issue executive orders and proclamations is neither explicitly stated in the Constitution nor in statute. However, it is generally accepted that the President derives his authority to act from Article II of the Constitution. The President's authority is primarily based upon the following language of Article II: "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."[4]
Because the Framers of the Constitution left the question of executive authority open to interpretation, there has been much confusion and controversy since the first proclamation was issued by President George Washington.[5] Although this confusion and debate persists, some clarifying guideposts have been developed. Youngstown has enlightened the situation by providing a tripartite standard which simply states three degrees of presidential authority in issuing executive orders and proclamations. Briefly stated, these three categories include executive orders and proclamations issued pursuant to: (1) an express or implied authorization of Congress (presidential authority is at its maximum); (2) are incompatible with the expressed or implied will of Congress, and thus rely solely upon his constitutional authority (presidential power is at its lowest ebb); and (3) undefined powers that lay in a "zone of twilight" (presidential power is uncertain). The judiciary has also expanded its examination of executive orders and proclamations to include a review of legislative history when necessary.
- ↑ 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 Circuit 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3d Circuit 1964).
- ↑ Jenkins v. Collard, 145 U.S. 546, 560-561 (1893).
- ↑ U.S. Constitution, Article II, Sections 1, 2, & 3.
- ↑ For an example of the confusion that existed see the correspondence between Alexander Hamilton and James Madison concerning President Washington's desire to issue a proclamation declaring this country's neutrality in the French and British War in 1793. See Charles M. Thomas, American Neutrality in 1793, A Study in a Cabinet Government, (New York, Columbia University Press 1931).
