A study of a use of Presidential powers
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EXECUTIVE ORDERS AND PROCLAMATIONS: A STUDY OF A USE OF PRESIDENTIAL POWERS
[COMMITTEE PRINT] 85TH CONGRESS 1st Session HOUSE OF REPRESENTATIVES EXECUTIVE ORDERS AND PROCLAMATIONS: A STUDY OF A USE OF PRESIDENTIAL POWERS COMMITTEE ON GOVERNMENT OPERATIONS, DECEMBER 1957 Printed for the use of the Committee on Government Operations 89166 UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1957
COMMITTEE ON GOVERNMENT OPERATIONS CLARE E. HOFFMAN• Michigan R. WALTER RIEHLMAN, New York CECIL M. HARDEN, Indiana CHARLES B. BROWNSON, Indiana GEORGE MEADER.Michigan CLARENCE J. BROWN, Ohio GLENARD P. LIPSCOMB, Califoinia VICTOR A. KNOX, Michigan WILLIAM E. MINSHALL• Ohio EDWIN H. MAY, Connecticut ROBERT H. MICHEL, Illinois H. ALLEN SMITH, California FLORENCE P. DWYER• New Jersey WILLIAM L. DAW8ON, Illinois, Chairman CHET HOLIFIELD, California JOHN W. McCORMACK, Massachusetts EARL CHUDOFF, Pennsylvania JACK BROOKS, Texas L. H. FOUNTAIN, North Carolina PORTER HARDY, jR.,'Vlrginla JOHN A. BLATNIK, Minnesota ROBERT E.JONES• Alabama EDWARD A. GARMATZ, Maryland JOHN E. MOSS, California JOE M. KILGORE, Texas DANTE B. FASCELL• Florida MARTHA W. GRIFFITHS• Michigan HENRY S. REUSS, Wisconsin OVERTON BROOKS, Louisiana ELIZABETH KEE• West Virginia CHBISTINE RAT DAVIS, Staff Director OKVILLE S. POLANO, General Counsel WILLIAM PINCUS, Associate General Counsel 1 JAMES A. LANIOAN, Associate General Counsel HELEN M. BOYEH, Minority Professional Ulaff EMMET V. MITTLEBKELER, Consul*ant ' Resigned from committee staff March 31•1967, after initial preparation of this study.
The Committee on Government Operations, in the performance of its duties under the Rules of the House of Representatives, is continuously confronted with legal problems involving the exercise of powers by the Executive under the Constitution and under the laws. Some of these problems arise out of the issuance of Executive orders and Presidential proclamations.
The Attorney General is charged by law with furnishing advice and opinion on questions of law to the President and to the heads of departments (5 U.S.C. 303, 304). Attorneys General have traditionally refrained from giving official opinions on questions of law or on the constitutionality or construction of legislation to the Congress or to the committees of the Congress. (See 39 Op. Atty. Gen. 343.)
Hence it seems appropriate that such problems should be considered by the committee and its legal staff. Accordingly, this study has been made in order to augment the information available to the Congress on this important subject.
This is one of a series of legal studies by the legal staff of the Committee on Government Operations designed to analyze and gather information useful in connection with the legislative and study functions of the Committee on Government Operations. It is hoped that this study will be helpful generally to the Members of Congress and to all who are interested in a closer examination of the operations of our governmental system.
As a matter of organization, part I is devoted to a discussion of the general nature and legal status of Executive orders and proclamations and some of the basic legal and constitutional aspects of Presidential power involved in the use of such orders and proclamations. Part II is devoted primarily to the analysis and tabulation of Executive orders in the period from December 29, 1945, to September 1, 1956, together with general historical and descriptive material concerning Executive orders and their custody and use.
Part II contains information concerning the characteristics and uses of Executive orders including the authority under which they were issued. This is derived from an examination of Executive orders in general and from an analysis in particular of Executive orders issued in the period between December 29, 1945, and September 1, 1956. Since the use of Executive orders involves many of the same legal problems and principles as does the use of proclamations, both have been treated herein.
Part II was prepared by Emmet V. Mittlebeeler, consultant to the committee.
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Summary of the statutory and constitutional bases affecting Executive orders and proclamations iv
Part I. Executive orders and proclamations and the Presidential powers involved—
A. Constitutional and statutory bases of Executive orders and proclamations:
1. What is an Executive order or proclamation? 1
2. Law and statute governing Executive orders and proclamations specifically 2
3. Effect of Federal Register Act on general law governing Executive orders and proclamations 4
B. Authorities bearing on the exercise and extent of Presidential authority:
1. The President, the Congress, and the department and agency heads 6
2. Highlights of certain constitutional and legal developments affecting the use of the Executive power 14
The 1793 controversy over Washington's Proclamation of Neutrality 15
The President and the Supreme Court in the Andrew Jackson nullification controversy and bank charter veto 18
Lincoln: The Commander in Chief, and the use of military power 19
World War II and Korea: The "Aggregate of Powers" as a constitutional basis for Presidential action 27
Part II. Tabulation of Executive orders issued in the period December 29, 1945-September 1, 1956:
A. Prior history of the Executive order 35
B. Numbering of Executive orders 37
C. Publication of Executive orders 37
D. Authorities cited in Executive orders 39
E. Classified Executive orders 40
F. Table of Executive orders, December 29, 1945, to September 1, 1956 41
Executive orders, 1945-46 43
Executive orders, 1947 69
Executive orders, 1948 87
Executive orders, 1949 105
Executive orders, 1950 117
Executive orders, 1951 135
Executive orders, 1952 155
Executive orders, 1953 171
Executive orders, 1954 186
Executive orders, 1955 198
Executive orders, 1956 210
CITATION OF CASES
Armstrong v. U. S. (13 Wall. 154).. 5 Arnold v. U. S. (9 Cranch 104) 4 Brown v. United States (8 Cr. 110) 25 Dunlap v. U. S. (173 U. S. 65) 8 Ex parte Merryman (17 F. 144) 22, 23 Ex parte Milligan (4 Wall. 2) 23, 25
vi CONTENTS CITATION OF CASES—Continued Page Ex parte Reed (100 U. S. 13) 10 Ex parte Vallandigham (1 Wall. 243) 25 Field v. Clark (143 U. S. 649) 14 Fleming et al. v. Page (9 How. 603) 20 Gratiot v. U. S. (4 How. 80, and Ex parte Reed, 100 U. S. 13) 10 Hirabayshi v. U. S. (320 U. S. 81) 5 Jenkins v. Collard (145 U. S. 546) 5 Kaser v. Leonard (102 P. (2d) 197, 129 ALR 1125) 5, 7 Kendall v. U. S. (12 Peters 524) 8, 9 Lapeyre v. U. S. (17 Wall. 191) 4 Little et al. v. Barreme et al. (2 Cr. 170) 10, 34 Ludecke v. Watkins (335 U. S. 160) 7 Marescav. U.S. [2 Cir.] (277 F. 727) 7 Mississippi v. Johnson (4 Wall. 475) 14 Myers v. U. S. (272 U. S. 52, 71 L. Ed. 160, 47 S. Ct. 21) 9, 31 Panama Refining Co. v. Ryan (293 U. S. 388) 12 Penhallow v. Doane (3 Dall. 54) 13 Porter v. Coble [8 Cir.] (246 F. 244, 158 C. C. A. 404) __. 7 Rathbun v. U. S. (295 U. S. 602) . 9 Smith v. Whitney (116 U. S. 181) 10 Swaim v. U. S. (28 Court of Claims, 173) 21 The Brig Aurora (7 Cranch 382) 14 The Three Friends (166 U. 8. 1) 5 U. S. ex rel. Dunlap v. Block (128 U. S. 40) 8 U. S. v. Fletcher (148 U. S. 84, 13 S. Ct. 552, 37 L. Ed. 378) 7 U. S. v. Grimaud (220 U. S. 506) 5 U. S. v. Klein (13 Wall. 128) 12 U. S. v. Midwest Oil Co. (236 U. S. 459, 59 L. Ed. 673, 35 S. Ct. 309) 31 U. S. v. Symonds (120 U. S. 46) 10 Wilcox v. Jackson (13 Pet. 498) 6 Wolsey v. Chapman (101 U. S. 755, 25 L. Ed. 915) 4, 6, 7 Woods v. Cloyd W. Miller Co. (333 U. S. 138) 25 Worcester v. Georgia (6 Pet. 515) 18 Youngstown Sheet and Tube Co. v. Sawyer (343 U. S. 579, 96 L. Ed. 1153).- 29
SUMMARY OF THE STATUTORY AND CONSTITUTIONAL BASES AFFECTING EXECUTIVE ORDERS AND PROCLAMATIONS
Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly.
Proclamations in most instances affect primarily the activities and interests of private individuals. Since the President has no power and authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President's proclamations are at best hortatory so far as the general public is concerned unless they are based on statutory or Constitutional authority.
Essentially an Executive order or proclamation is a written document issued by the President and titled as such by him or at his direction. Because of this, a precise and uniformly applicable differentiation between Executive orders and proclamations is impossible. The subject matter of each order or proclamation must be ascertained from an examination of the order or proclamation itself. The authority for its issuance is ordinarily stated in the document.
The statutes which govern Executive orders and proclamations specifically are concerned primarily with matters of publication, notice, and evidence.
The Constitution itself does not spell out the legal relationship between the President and the heads of departments.
The law has recognized the special relationship of department heads to the President. An act by a department head, within the field of his jurisdiction, is considered in law to be the act of the President. This is so although no specific written delegation from the President is made and even where the statute authorizing the action speaks of the President performing the action.
In spite of the special relationship of department heads to the President they are of course bound to obey the statutes. Where Congress makes the act to be performed ministerial, the performance of the act is judicially enforcible. A writ of mandamus may be issued by the judiciary commanding the official to perform the act required by law. Other remedies must be invoked where the act to be performed is discretionary.
The courts will strike down the legal effect of orders which contravene the provisions of a valid statute or of the Constitution.
When the Constitution specifically vests a function or office in the President, the Congress may not divest the President of such constitutional office or function by legislation. Thus it would take a constitutional amendment to assign the position of Commander in Chief to anyone other than the President. Similarly Congress cannot detract from the power of pardon granted to the President by the Constitution.
Nor may Congress enlarge the President's powers by delegating legislative power to the President.
And where standards are laid down by the Congress to control the exercise of functions conferred on him by statute the President must adhere to the standards in his actions.
Congress may empower or direct the President to declare the existence of specified facts or conditions by proclamation or otherwise and thereby make some provision of law operative, or to suspend the operation of certain provisions of law.
The nature and limitations of Executive power have been a matter of controversy from the very beginning of our Nation.
In President Washington's administration Alexander Hamilton argued that the Executive-power clause in article II of the Constitution was a grant of power in itself. James Madison's opposing position was that the Executive-power clause was not a grant of power in itself since ours is not a government involving royal prerogative.
President Jackson has sometimes been cited as a great exponent of broad Executive power. Jackson, however, never asserted any right to refuse to execute any law enacted according to constitutional processes.
An extraordinarily vigorous use of Executive power characterized President Lincoln's tenure of office. An example of such action was the President's use of his position as Commander in Chief, under a constitutional power which received increased significance upon the outbreak of hostilities within the borders of our Nation.
The President's position as Commander in Chief gains importance in periods of war or armed conflict affecting the United States.
The Supreme Court has stated that even with a declaration of war by the Congress the Commander in Chief's powers are restricted to military affairs. However, recognizing the possibility of a lag in statutory law, a President may be impelled to take actions which in fact require congressional authorization.
But when the lag in legislative action is finally overcome by action of Congress, except for criminal penalties, the Congress may ratify the actions of the President, thereby curing defects which may have existed by reason of his ultravires action.
There have been cases of emergency presidential actions which have been effective in times of national crisis. But the general effect of both congressional action and judicial interpretation has been to review such actions and to provide for their performance through the established legislative processes in manner prescribed by law.
There has been no judicial acceptance of the doctrine of "inherent" executive power in the Presidency.
The argument for "inherent" presidential powers, advanced by Hamilton in the dispute centering around Washington's proclamation of neutrality in 1793, is a persistent theme in America's constitutional history. It has been reasserted at times when a President has been confronted by an emergency and has either been unable or unwilling to find or seek authority for contemplated action either explicity in the Constitution or in existing statutes or to request enactment of new legislation. Despite the broad scope of congressional power under the "necessary and proper" clause of article I, section 8, of the Constitution Presidents have acted from time to time without waiting for the passage of legislation.
In more recent years there has been added to the controversy a so-called "aggregate of powers" theory of Presidential power. Briefly, the theory states that the President has and may exercise a reservoir of implied powers created by the accumulation of the total of express powers vested in him by the Constitution and the statutes.
The Supreme Court has rejected the doctrine that the President has any such special powers which can be described as an "aggregate of powers".
Where Congress by inaction leaves a vacuum, the natural tendency may be for the President to fill that vacuum by Executive action. The Congress may thus be required to legislate to prevent action by the Executive in areas where Congress has the constitutional authority to act.
EXECUTIVE ORDERS AND PROCLAMATIONS AND THE PRESIDENTIAL POWERS INVOLVED
A. CONSTITUTIONAL AND STATUTORY BASES OF EXECUTIVE ORDERS AND PROCLAMATIONS
1. WHAT IS AN EXECUTIVE ORDER OR PROCLAMATION?
Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law.
There is no law or even Executive order which attempts to define the terms "Executive order" or "proclamation". In the narrower sense Executive orders and proclamations are written documents denominated as such. Executive orders and proclamations are now issued in two separately numbered series.
Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly.
Proclamations in most instances affect primarily the activities of private individuals.
Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President's proclamations are not legally binding and are at best hortatory unless based on such grants of authority.
The difference between Executive orders and proclamations is more one of form than of substance since in each instance the effective action sought or directed by the document is an exercise of the Executive power under article II of the Constitution and must be based on authority derived from the Constitution or statute. Essentially an Executive order or proclamation is a written document issued by the President and titled as such by him or at his direction. Because of this, a precise statement uniformly applicable to the contents of Executive orders and proclamations is impossible. The subject matter of each order or proclamation must be ascertained from an examination of the order or proclamation itself. The authority for its issuance is frequently cited in the document itself.
2. LAW AND STATUTE GOVERNING EXECUTIVE ORDERS AND PROCLAMATIONS SPECIFICALLY
The statutes which govern executive orders and proclamations specifically are concerned primarily with matters of publication notice, and evidence. Section 30 of title 1 of the United States Code makes the bound copies of acts of Congress legal evidence of the laws and treaties contained therein in all Federal and State courts and provides that the Statutes at Large shall contain "proclamations." In this section the word "proclamations" stands alone but a in later statute (codified as 1 U.S.C. 112) it is provided that the Statutes at Large contain—
all proclamations by the President in the numbered series issued since the date of adjournment of the regular session of Congress next preceding.3
These statutes can be traced back to an act of Congress in 1874 by which printed copies of the acts of Congress were made legal evi- dence. All of these statutes deal with the problem of establishing evidence of the law as written by the Congress. The matter of Presidential proclamations is treated as part of this problem.
The Federal Register Act of 1935 is of a later school of thought. It is evidence of a growing concern, inside and outside the Congress, with the problem of regularizing and making generally available im- portant public documents which have legal force and effect. This encompassed the problem of giving to the general public adequate notice of rules and regulations issued under the statutes and the Constitution.4 The growth in use of Executive orders and agency regulations in the early days of the New Deal gave a tremendous im- petus to the movement for having a central publication of Presidential and agency-made law. President Roosevelt issued 674 Executive orders in the 15 months immediately following March 4, 1933. In one instance, even the United States Government itself had to ask the Supreme Court to dismiss an appeal by the Government based on a regulation which no longer existed.5
The Federal Register Act (44 U.S.C. 301 et seq.) requires the publication of specified documents in a serial publication designated the "Federal Register." Publication of the "daily issues" mentioned in the act began on March 14, 1936, approximately 8 months after approval of the act by the President. Meanwhile, on February 18, 1936, the President issued Executive Order 7298 to be effective on March 12, 1936, prescribing the manner of preparing proposed Exec- utive orders and proclamations. Executive Order 7298 was later superseded by Executive Order 10006 of October 11, 1948.6
, See 1 U. S. C. 112a making the publication entitled "United States Treaties and Other International Agreements" legal evidence of "proclamations by the President of such treaties and agreements" among other things. , The Administrative Procedure Act of 1946 was another development stemming from the same concerns. See note on the Federal Register in Massachusetts Law Quarterly, vol. XXI, No. 5, 1936, at p. 51, which indicates that the special committee on administrative law of the American Bar Association in its 1934 report recommended legislation for centralization and publication of all Presidential proclamations, Execu- tive orders, rules, regulations, etc., which have general applicability and legal effect. , See article by E. N. Qrlswold of the Harvard Law School entitled "Government In Ignorance of the Law—A Plea for Better Publication of Executive Legislation" in Harvard Law Review, vol. XLVIII, 1934-35, pp. 198 et seq.
, Executive Order 10006 provides in part as follows: "SEC. 1.92 Routing and approval of drafts. A proposed Executive order or proclamation shall first be
[[3 EXECUTIVE ORDERS AND PROCLAMATIONS 3
Section 4 of the Federal Kegister Act defines the term "document" to include any "Presidential proclamation or Executive order and any order, regulation, rule • * * or similar instrument issued, prescribed, or promulgated by a Federal agency." The same section of the act defines the term "Federal agency" or "agency" to mean, among others, the President of the United States.7 Section 5 of the act (44 U. S. C. 305) provides: (a) There shall be published in the Federal Register (1) all Presidential proc- lamations and Executive orders, except such as have no general applicability and legal effect or are effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof; (2) such documents or classes of documents as the President shall determine from time to time have general applicability and legal effect; and (3) such documents or classes of documents as may be required so to be published by Act of the Congress: Provided, That for the purposes of this chapter every document or order which shall prescribe a penalty shall be deemed to have general applicability and legal effect. (b) In addition to the foregoing there shall also be published in the Federal Register such other documents or classes of documents as may be authorized to be published pursuant hereto by regulations prescribed hereunder with the approval of the President, but in no case shall comments or news items of any character whatsoever be authorized to be published in the Federal Register. Section 7 of the act provides: No document required under section 305 (a) of this title to be published in the Federal Register shall be valid as against any person who has not had actual knowledge thereof until the duplicate originals or certified copies of the document shall have been filed with the Division and a copy made available for public inspection as provided in section 302 of this title; and, unless otherwise specifically provided by statute, such filing of any document, required or authorized to be published under section 305 of this title, shall, except in cases where notice by publication is insufficient in law, be sufficient to give notice of the contents of such document to any person subject thereto or affected thereby. The publication in the Federal Register of any document shall create a rebuttable presumption (a) that it was duly issued, prescribed, or promulgated; (b) that it was duly filed with the Division and made available for public inspection at the day and hour stated in the printed notation; (c) that the copy contained in the Federal Register is a true copy of the original; and, (d) that all requirements of this chapter and the regulations prescribed hereunder relative to such document have been com- plied with. The contents of the Federal Register shall be judicially noticed and, without prejudice to any other mode of citation, may be cited by volume and page number. It is to be noted that section 12 of the act exempts treaties, conven- tions, protocols, and other international agreements, or proclamations thereof by the President. This type of proclamation is, therefore, submitted, with seven copies thereof, to the Director of the Bureau of the Budget. If the Director of the Bureau of the Budget approves it, he shall transmit it to the Attorney General for his consideration as to both form and legality. If the Attorney General approves it, he shall transmit it to the Director of the Division of the Federal Register, the National Archives. After determining that it conforms to the require- ments of sec. 1.91 and is free from typographical or clerical error, the Director of the Division of the Federal Register shall transmit it and three copies thereof to the President. If it is disapproved by the Director of the Bureau of the Budget or by the Attorney General, it shall not thereafter be presented to the President unless it is accompanied by a statement of the reasons for such disapproval. "SEC. 1.93 Routing of originals and copies; seal. If the order or proclamation is signed by the President, the original and two copies thereof shall be forwarded to the Director of the Division of the Federal Register for appropriate action in conformity with the provisions of the Federal Register Act: Provided, That the seal of the United States shall be affixed, pursuant to the direction of the President, to the originals of all proclamations prior to such forwarding. "SEC. 1.94 Numbering and certification. The Division of the Federal Register shall number chronologically all Executive orders and proclamations and shall cause to be placed upon the copies thereof the following notation, to be signed by the Director or by some person authorized by him: ' Certified to be a true copy of the original'." ' See in this connection three letters of the President waiving certain provisions of law published in the Federal Register of Friday, January 4, 1957.
[[4 EXECUTIVE ORDERS AND PROCLAMATIONS
m placed in a separate category both by this statute and by title 1 United States Code, section 112a referred to above.
3. EFFECT OF FEDERAL REGISTER ACT ON GENERAL LAW GOVERNING EXECUTIVE ORDERS AND PROCLAMATIONS
The Federal Register Act, being a notice and publication statute, changed one principal aspect of the general law governing Executive orders and proclamations. Prior to the enactment of the Federal Register Act, the effective date of an Executive order or proclamation was the "first moment" of the day in which the Secretary of State sealed and attested to the document. This was the rule laid down by the Supreme Court in the case of Lapeyre v. U. S. in 1872 (17 Wall. 191).8
Under the Federal Register Act (44 U.S.C. 307) the documents are not valid against any person who does not have actual knowledge thereof until the duplicate originals or certified copies shall have been filed as specified.
In other respects the Federal Register Act did not change the general law. For example, there is no adjudicated distinction between an "Executive order" and a "proclamation" although the Supreme Court has not closed the door to some future distinction. In the case of Wolsey v. Chapman (101 U. S. 755; 1879) the Supreme Court considered the effect of a departmental order under a statute of 1841 recognizing the reservation of public land from sale "• * * by any law of Congress or proclamation of the President of the United States • * *" In addition to deciding on the validity of a depart- mental order as distinguished from a Presidential order, the Court considered the form of the Executive action document. Adopting the holding of an earlier court on the matter of the validity of the department's order, the Court had this to say about the form of the document:
• * * That case is conclusive of this, unless the word "proclamation," as used in the present statute, has a signification so different from "order" in the other as to raise a material distinction between the two cases • * *. We see no such intention on the part of Congress. A proclamation by the President, reserving lands from sale, is his official public announcement of an order to that effect. No
- The Court used the following language:
"There is no statute fixing the time when acts of Congress shall take effect, but it is settled that where no other time is prescribed, they take effect from their date. Where the language employed is 'from and after the passing of this act,' the same result follows. The act becomes effectual upon the day of its date. In such eases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible. See Welman's Case, where the subject is examined with learning and ability. "Publishing by outcry, in the market-place and streets of towns, as suggested by Chitty, has, we appre- hend, fallen into disuse in England. It is certainly unknown in this country. While it is said the procla- mation always appears in the gazette, he does not say that it cannot become operative until promulgated in that way. As no mode of publication is prescribed, and those suggested will answer, we do not see why applying the seal and depositing the instrument in the office of the Secretary of State, may not be held to have the same effect. The President and Secretary have then completed their work. It is there amidst the archives of the nation. The laws of Congress are placed there. All persons desiring it can have access, and procure authenticated copies of both. The President signs and the Secretary of State seals and attests the proclamation. The President and Congress make the laws. Both are intended to be published in the newspapers and in book form. Acts take effect before they are printed or published. "Why should not the same rule apply to proclamations? We see no solid reason for making a distinction. If it be objected that the proclamation may not then be known to many of those to be affected by it, the remark applies with equal force to statutes. The latter taking effect by relation from the beginning of the day of their date, may thus become operative from a period earlier than that of their approval by the Presi- dent, and indeed earlier than that at which they received the requisite legislative sanction. The legislative action may all occur in the latter part of the day of their approval. The approval must necessarily be still later. It may be added, as to both statutes and proclamations, that even after publication in the news- papers, there are in our country large districts of territory where actual knowledge does not usually pene- trate through that or any other channel of communication, until a considerably later period. It will hardly be contended that proclamations should take effect at different times, in different places, according to the speedier or less speedy means of knowledge in such places respectively." See Arnold v. 17. S., 9 Cranch 104 for doctrine on effective date of law.
[[5 EXECUTIVE ORDERS AND PROCLAMATIONS 5
Syracuse, N. Y.
particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained • * *.9
Similarly, the provision in the Federal Register Act that the con- tents of the Federal Register shall be judicially noticed (44 U. S. C. 307) did not alter the law to the effect that Executive orders and proclamations are public acts of which the courts must take judicial notice. The Supreme Court had stated that doctrine in the case of Armstrong v. U. S. (13 Wall. 154, 156; 1871) as follows:
• * * The (President's) proclamation of the 25th of December granted pardon unconditionally and without reservation. This was a public act of which all courts of the United States are bound to take notice, and to which all courts are bound to give effect.• * * 10
It should also be noted that if founded upon the constitutional powers given to the President or upon statute an Executive order or proclamation " • * * has the force of public law • * * " (Jenkins v. Collard 10). In fact it has been held that a valid Executive order has the same effect as if it had been incorporated hi the authoriz- ing act itself:
• * * We are satisfied that the two Executive orders of the President had the same effect as if they had been incorporated in the appropriation resolution itself • * *."
Moreover, Congress may give the same status of law to an Executive order or proclamation by "ratifying" a prior Executive order by statute.12 The result appears to be the same, dating from the enact- ment of the statute, as though the order was issued after the statute was enacted.
Executive orders and proclamations may not only have the same force and effect as law, but the violation of provisions thereof may be made a crime punishable by sanctions and penalties, if the Congress so provides, without being an unconstitutional delegation of legislative powers.13
To recapitulate, the Federal Register Act is primarily a notice and publication statute. One must look to the rulings of the courts to find the law concerning Presidential authority or powers, whether expressed in Executive order or proclamation or in some other form. The matter of Presidential authority or powers is one of the basic problems of con- stitutional law. Since Executive orders are addressed primarily to department (and agency) heads, it becomes pertinent to inquire into the legal relationship of the President, the Congress, and the depart- ment (and agency) heads. Since the President by proclamation or otherwise takes actions which may have the force and effect of law as regards private citizens, it is also pertinent to highlight and sum- c 101 U. S. 770. '» See also Jenkins v. Collard (145 U. S. 546, 560-561; 1891). "• * * As the general pardon and amnesty to all persons implicated in the rebellion are not pleaded by the defendant, to relieve the offending party, whose life estate in the premises in controversy was confiscated, from his disabilities respecting the reversionary interest, or naked fee in the premises, it is claimed that no benefit can be derived from them. But this result does not follow from the omission in pleading, for the pardon and amnesty were made by a public proclamation of the President, which has the force of public law, and of which all courts and officers must take notice, whether especially called to their attention or not." Also compare with the doctrine of The Three Friends (166 U. S. 1, 64-66; 1896) in which proclamations of the President calling attention to "serious civil disturbances" and "insurrection" in Cuba were deemed to hold the Supreme Court "judicially informed of the existence of an actual conflict of arms" although there was no recognition of belligerency. On the basis of these proclamations the court held that an Act of Con- gress prohibiting citizens of the U. S. from taking part in such disturbances adversely to the established government became applicable. In the light of subsequent opinions such as Ex parte Milligan, infra, the question may be raised as to whether the findings in the President's proclamations were conclusive although they were "information." 11 State ex rel. Kaaer v. Leonard, 102 P (2d) 197, 129 ALR 1125, 1136; 1940. 12 Birahayshi v. U. S., 320 U. S. 81, 91; 1943. « U. S. v. Qrimaud, 220 U. S. 506; ITirabayshi v. U. S., 320 U. S. 81, 88; 1943.
[[6 EXECUTIVE ORDERS AND PROCLAMATIONS
marize some of the fundamental constitutional and legal developments affecting the use of Executive power.
B. AUTHORITIES BEARING ON THE EXERCISE AND EXTENT OF PRESIDENTIAL AUTHORITY
I. THE PRESIDENT, THE CONGRESS, AND THE DEPARTMENT AND AGENCY HEADS
The Constitution itself does not spell out the legal relationship between the President and the heads of departments. Article II, section 2, of the Constitution provides that the Congress may vest the appointment of inferior officers in the heads of departments as an alternative to appointment by the President by and with the advice and consent of the Senate. Apart from this provision, article II, section 2, contains the following language concerning the Presi- dent's powers vis-a-vis department heads:
• * * he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices • * *.
Alexander Hamilton writing in the Federalist No. 74 had this to say about this provision of the Constitution:
This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.
Thus it would appear that the Constitution contemplated executive departments whose heads would be responsive to the President but who also would exercise functions vested directly in them by law by the Congress. As will be seen from the discussion below the law seems to have developed in both of the directions indicated rather vaguely in article II of the Construction.
The law has recognized the special relationship of department heads to the President. An act by a department head, within the field of his jurisdiction, is considered in law to be the act of the President. This is so although no specific written delegation from the President is made and even where the statute authorizing the action speaks of the President performing the action. This point was specifically treated by the Supreme Court in Wolsey v. Chapman (101 U. S. 755, 769-770; 1879):
The truth is, there can be no reservation of public lands from sale except by reason of some treaty, law, or authorized act of the Executive Department of the government; and the acts of the heads of departments, within the scope of their powers, are in law the acts of the President. In Wilcox v. Jackson (13 Pet. 498), the question was directly presented whether a reservation from sale by an order from the War Department was a reservation "by order of the President," and the court held it was. The language of the statute then under consideration was (p. 511), "or which is reserved from sale by act of Congress or by order of the President, or which may have been appropriated for any purpose whatever;" and in the opinion of the court it is said (p. 513): "Now, although the immediate agent in requiring this reservation was the Secretary of War, yet we feel justified in presuming that it was done by the approbation and direction of the President. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the War Department. Hence we consider the act of the War Department in requiring the reservation to be made, as being in legal contemplation the act of the President; and con- sequently that the reservation thus made was, in legal effect, a reservation made by order of the President, within the terms of the act of Congress." That case is conclusive of this, unless the word "proclamation," as used in the present statute, has a signification so different from "order" in the other as to raise a.
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material distinction between the two cases. We see no such intention on the part of Congress. A proclamation by the President, reserving lands from sale, is his official public announcement of an order to that effect. No particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained. If the President himself had signed the order in this case, and sent it to the registers and receivers who were to act under it, as notice to them of what they were to do in respect to the sales of the public lands, we cannot doubt that the lands would have been reserved by proclamation within the meaning of the statute. Such being the case, it follows necessarily from the decision in Wilcox v. Jackson that such an order sent out from the appropriate executive department in the regular course of business is the legal equivalent of the President's own order to the same effect. It was, therefore, as we think, such a proclamation by the President reserving the lands from sale as was contemplated by the act.
This doctrine was reiterated as a long standing doctrine in State ex rel. Kaser v. Leonard et al. (102 P. 2d 197, 204-205; 1940): We could greatly extend these quotations and citations, but shall close by now quoting from Maresca v. U. S. (2 Cir., 277 F. 727, 735): "The regulation was promulgated by the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury. Importance is attached, by counsel for defend- ants, to the fact that the President himself did not make or proclaim the regu- lation, and that it does not appear that he authorized either of the officials named to exercise the power delegated to him. The law is established that the President may exercise through the heads of departments the powers vested in him. He speaks and acts through the heads of the several departments in re- lation to subjects which appertain to their respective duties. Wilcox v. Jackson Ex dem. McConnel (13 Pet. 498, 10 L. Ed. 264); Wolsey v. Chapman (101 U. S. 755, 25 L. Ed. 915). And it must be presumed as matter of law that the Secretary of the Treasury, acting over his own signature, does so by direction of the Presi- dent. In U. S. v. Fletcher (148 U. S. 84, 13 S. Ct. 552, 37 L. Ed. 378), the President was required to act in the matter in controversy in a judicial capacity under the Articles of War in approving a report of a court martial, and it appeared that the Secretary of War had acted in the matter over his own signature. The court held that it must be presumed that he acted by direction of the President in so doing. And in Porter v. Coble [8 Cir.] (246 P. 244, 249, 158 C. C. A. 404), a postmaster who had been removed from office by the Postmaster General claimed that the power of removal was in the President, and that there was nothing to show that the man had been removed by the President or that the Postmaster General had ever been authorized by the President to make the removal. It was held that it may be presumed that the Postmaster General in ordering the removal acted by direction of the President. So it may be that the act of the Secretary of the Treasury in promulgating the regulation was the act of the President in the matter under consideration."
As we have shown, the Appropriation Act expressly authorized the President— or, if we may employ a different term having the same meaning, the executive department of the government—to prescribe whatever rules and regulations were necessary to carry into effect the purpose of the act. When the Appropriation Act said "The President shall require to be paid such rates of pay, • * *" Section 7, it did not, in our opinion, demand that the President should personally act, but that either he or some other member of the executive department of which he is the head should perform those duties • * *." Jn spite of the special relationship of department heads to the President, however, they are, of course, bound to obey the statutes. In the absence of discretion, or in other words, where Congress by its degree of specification, in writing the law makes the act to be per- " Attorney General Caleb Gushing had enunciated the same principle in 1864 as follows: "The act of a Head of Department is, in effect, an act of the President." (6 Op. A. G. 682). In this connection the following excerpt from Ludecke v. Watkins is pertinent (335 U. S. 160,165-66; 1947): "The power with which Congress vested the President had to be executed by him through others. He provided for the removal of such enemy aliens as were 'deemed by the Attorney General' to be dangerous. But such a finding, at the President's behest, was likewise not to be subjected to the scrutiny of courts. For one thing, removal was contingent not upon a finding that in fact an alien was 'dangerous.' The President was careful to call for the removal of aliens 'deemed by the Attorney General to be dangerous.' But the short answer is that the Attorney General was the President's voice and conscience. A war power of the President not subject to judicial review is not transmuted into a judicially reviewable action because the President chooses to have that power exercised within narrower limits than Congress authorized • * *." 89166—87 2 i 0 5
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formed ministerial, the performance of the act is judicially enforceable. A writ of mandamus may be issued in such circumstances by the judiciary commanding the official to perform the act required by law. Other remedies must be invoked where the act to be performed is discretionary.15
The relationship of the head of a department and the President in such circumstances was discussed at length by the Supreme Court in Kendall v. U. S. (12 Peters 524, 610-613; 1838):
We shall not, therefore, enter into any particular examination of the line to be drawn between the powers of the executive and judicial departments of the government. The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed.
The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the President. Such a principle, we apprehend, is not, and certainly cannot be claimed by the President.
There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.
It was urged at the bar, that the postmaster general was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law; and this right of the President is claimed, as grow- ing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanc- tion of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice. To contend that the obligation imposed on the President to see the laws faith- fully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible. But although the argument neces- sarily leads to such a result, we do not perceive from the case that any such power has been claimed by the President. The President has a method of controlling the discretionary acts of heads of executive departments. He may remove officers performing purely executive functions and Congress cannot interpose restrictions '« Dunlap v. U. S., 173 U. S. 65, 76; 1898: "If the duty of the Secretary to prescribe regulations was merely ministerial, and a mandamus could, under the circumstances, have issued to compel him to discharge it, would not the judgment at which he arrived, the action which he took, and his reference of the matter to Congress, have furnished a complete defence? But it is insisted that by reason of the exercise of discretionary power necessarily involved in prescribing regulations as contemplated, the Secretary could not have been thus compelled to act. We think the argument entitled to great weight, and that it demonstrates the intention of Congress to leave the entire matter to the Treasury Department to ascertain what would be needed in order to carry the section Into effect. Nothing could have been further from the mind of Congress than that, repayment must be made on the unregulated use of alcohol in the arts, if in the judgment of the Department, as the matter stood, such use could not be regulated." U. S. ex rel. Dlmliip v. Klnek, 128 U. S. 40, 48; 1888: "The principle of law deducible from these two cases is not difficult to enounce. The court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a case at all, or when, by special statute, or otherwise, a mere ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question, then, if they refuse, a mandamus may be issued to compel them."
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,on the President's removal power,16 except in the case of officers per- forming quasi-legislative or quasi-judicial functions.17 Nevertheless, as indicated in the Kendall case above, the President cannot legally force the heads of departments to disregard the statutes of Congress. The relationship between the President, the heads of departments, and the Congress has been summed up in this manner by one authority. But not only is it the moral duty of President and heads of departments to obey the laws. For the latter, though, not to be sure, for the former, it is a legal duty which is enforceable in the courts by mandamus, provided the act to be per- formed is ministerial in character. The duty was actually enforced against the postmaster general in Kendall v. U. S. How then shall we reconcile the opinion of Gushing, and the fact that through the power of removal the President has in practice a power of control, with the decision in the Kendall case? In the first place, that decision renders too broad the declaration of the attorney general that "no Head of Department can law- fully perform an official act against the will of the President." For the fact that the President ordered the postmaster general not to perform the ministerial act in question would not affect the power of the court to compel by mandamus the per- formance of such act if it were positively commanded by statute. The real distinction is between a mandatory duty to perform a nondiscretionary act and the permissive power to perform a discretionary act. The latter of course includes the discretionary formulation of a uniform rule creating rights and duties. The former is a duty over the performance of which the President has no control, because, while he can remove an officer who performs or threatens to perform it, the actual performance will, in a proper case, be compelled by the courts. But discretion by its very nature involves, as we have seen, a choice of alternatives. If and when Congress sees fit to delegate to the head of a department a dis- cretionary power, this means that that body leaves to such officer a choice; and since there is no judicial means of compelling the exercise of such a choice, it means further that Congress not only delegates a choice as to the content of the rule, but also makes it at the most a moral duty to exercise the choice at all. For where there is no means of enforcement there is no legal duty. And, by the same token, whether the power of removal be derived from the Constitution in such a manner as to be beyond the control of Congress or not, so long as the supreme law or the statutory law allows to the Chief Magistrate a power of removal, it allows to him, within certain limits, not only a practical, but also a legal, power of "adminis- trative control" over acts of department heads which involve a choice. Those limits are set by the extent to which the courts can, in the several forms of action at law or in equity, control abuse of power, or fraud, or excess of jurisdiction, or "vice of form," in the exercise of discretion, or by mandamus compel its exercise in some manner. Within those limits the fact that the law allows the President a method of control must be deemed to constitute a recognition of his legal right to control. In this manner it comes about that not only may the President, in most cases, allow the heads of departments to issue his ordinances for him, but conversely he may control the performance by them of their own ordinance making powers. Congress may specify that he or the head of the proper department must perform the act. But, after all, that requirement, while it may be necessary to follow it to make the act valid, is reducible to a matter of form. In all cases the act is the act ,of the President in contemplation of law; while it is jointly the act of the President and the head of the department if the latter formally participates. Any legal consequences fall upon the President in all cases, and upon the subordinate in the latter class of cases. • * * is i« Myers v. U. S., 272 U. S. 52. " Rathbun v. U. S., 295 U. S. 602 (1935). " Hart, op. cit., pp. 190-193. For a brief but incisive summary of some of the basic problems being treated here see also a memorandum prepared by Eli E. Nobleman for the Senate Committee on Expenditures in the Executive Departments (that committee's Staff Memorandum No. 82-1-60, November 29,1951). The following excerpt from the memorandum is particularly pertinent: "Although the President's general direction power is constitutional in its source, it is by no means abso- lute. On the contrary, all authorities agree that its exercise is subject to important limitations. Foremost among these is the well-settled rule that an Executive order, or any other Executive action, whether by formal order or by regulation, cannot contravene an act of Congress which is constitutional. Thus, when an Executive order collides with a statute which is enacted pursuant to the constitutional authority of the Congress, the statute will prevail. This rule, in turn, gives rise to a further limitation which finds its source in the power of the Congress to set forth specifically the duties of various officers and employees of the execu- tive branch. Since Ue President can control only those duties of his subordinates which are discretionary, to the extent that the Congress prescribes these duties in detail, these officials can exercise no discretion and their actions cannot be controlled by the President. In other words, if the Congress enacts a statute which is constitutionally within its authority, the President cannot lawfully, either by Executive order, regula- tion, or any other means, direct his subordinates to disobey that statute, regardless of whether it affects third persons or whether it is only a directive concerning the management of the executive branch of the Government • * *"
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Neither the President, nor a department head at the President's- direction or with his approval, has authority to act at variance with valid statutory provisions. The courts will strike down the legal effect orders which contravene the provisions of a statute or of the Constitution. This is true even hi an area where the President has a special con- stitutional status, such as Commander in Chief. In the leading case of U. S. v. Symonds (120 U. S. 46; 1886) the validity of an order issued by the Secretary of the Navy was challenged. The order was held to be invalid as contravening a statute governing the allowance of pay for sea duty even though the order purported to declare a state of events under the statute. The Supreme Court looked into the facts and struck down the effect of the Secretary's order: Assuming that the first clause of that regulation contemplates services at sea under the orders of the Department, in a vessel employed with authority of law, it is clear that all the different kinds of services described therein are services performed at sea in the meaning of sec. 1556. But they are to be deemed such, not because the Secretary of the Navy has announced that the Department will so regard them, but because they are, in fact, services performed at sea, and not on shore. If the regulations of 1876 had not recognized services "on board a practice ship at sea" as sea services, the argument in behalf of the government would imply that they could not be regarded by the courts, or by the proper accounting officers, as sea services; in other words, that the Secretary of the Navy could fix, by order, and conclusively, what was and what was not sea service. But Congress certainly did not intend to confer authority upon the Secretary of the Navy to diminish an officer's compensation, as established by law, by de- claring that to be shore service which was, in fact, sea service, or to increase his compensation by declaring that to be sea service which was, in fact, shore service. The authority of the Secretary to issue orders, regulations, and instructions, with the approval of the President in reference to matters connected with the naval establishment, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the Navy. He may, with the approval of the President, establish regulations in execution of, or supplementary to, but not in conflict with, the statutes defining his powers or conferring rights upon others. The contrary has never been held by this court. What we now say is entirely consistent with Gratiot v. U. S. 4 How. 80, and Ex parle Reed, 100 U. S. 13, upon which the government relies. Referring in the first case to certain army regulations, and in the other to certain navy regulations, which had been approved by Congress, the court ob- served that they had the force of law. See also Smith v. Whitney, 116 U. S. 181. In neither case, however, was it held that such regulations, when in conflict with the acts of Congress, could be upheld. If the services of Symonds were, in the meaning of the statute, performed "at sea," his right to the compensation estab- lished by law for sea service is as absolute as is the right of any other officer to his salary as established by law • * *.w In another leading case (Little et al v. Barreme et al, 2 Cranch 170; 1804) the commander of an American frigate was being sued for damages for illegal seizure of a Danish ship sailing from a French port. The nonintercourse act of 1799 prohibited traffic of United States vessels to French ports and authorized the President to instruct United States naval commanders to seize any vessel bound or sailing to any French port. American commanders received instructions together with a copy of the act of Congress transmitted by the Sec- retary of the Navy as "• * * the command of the President • * *." These instructions seemed to authorize seizure of vessels bound to or from a French port. Sir—Herewith you will receive an act of Congress further to suspend the com- mercial intercourse between the United States and France, and the dependencies thereof, the whole of which requires your attention. But it is the command of the <t U. S. v. Symondu, 120 U. S. at pp. 49-60.
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president, that you consider particularly the fifth section as part of your instructions, ,and govern yourself accordingly. A proper discharge of the important duties enjoined on you, arising out of this act, will require the exercise of a sound and impartial judgment. You are not only to do all that in your lies to prevent all intercourse, whether direct or circuitous, between the ports of the United States and those of France and her dependencies, in cases where the vessels or cargoes are apparently, as well as really, American, and protected by American papers only; but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and 'bound to or from French ports, do not escape you • * *.20 Chief Justice Marshall delivered the opinion of the Court. Interest- ingly enough he suggested that the President as Commander in Chief might have authorized seizure of American vessels without any special authority, but he held that since Congress had legislated, the law had to be followed, and the law did not authorize seizure of vessels bound from a French port. It is by no means clear that the President of the United States, whose high duty it is to "take care that the laws be faithfully executed," and who is commander in chief of the armies and navies of the United States, might not, without any special .authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that the general clause of the first section of the "act, which declares that such vessels may be seized, and may be prosecuted in any distrist or circuit court, which shall be holden within or for the district where the seizure shall be made," obviously contemplates a seizure 'within the United States; and that the 5th section gives a special authority to Oseize on the high seas, and limits that authority to the seizure of vessels bound, or sailing, to, a French port, the legislature seem to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port. Of consequence, however strong, the circum- .stances might be, which induced Captain Little to suspect the Flying Fish to be an American vessel, they could not excuse the detention of her, since he would not ,have been authorized to detain her had she been really American. • * *.21 The officer who seized the ship in question was held liable for ,damages even though he was following an order of the President and the Secretary of the Navy. These orders given by the executive under the construction of the act of congress made by the department to which its execution was assigned, enjoin the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages sustained by this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the law must take its course, and he must pay such damages as are legally awarded against him; if they excuse an act not otherwise excusable, it would then be necessary to inquire whether this is a case in which the probable cause which existed to induce » suspicion that the vessel was American, would excuse the captor from damages ,when the vessel appeared in fact to be neutral. I confess the first bias of my mind was very strong in favour of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this » 2 Cranch 171. « 2 Cranch 177-178 I I I
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opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass. It becomes, therefore, unnecessary to inquire whether the probable cause afforded by the conduct of the Flying Fish to suspect her of being an American would excuse Captain Little from damages for having seized and sent her into port, since, had she been an American, the seizure would have been unlawful? Captain Little, then, must be answerable in damages to the owner of this neutral vessel, and as the account taken by order of the circuit court is not objectionable on its face, and has not been excepted to by counsel before the proper tribunal, this court can receive no objection to it. • * * M While the Supreme Court has indicated that the power of Congress to deal with matters entrusted to it under the Constitution are ex- ceedingly broad, there are certain limitations on the right of Congress to act vis-a-vis the President. When the Constitution specifically vests a function or office in the President, the Congress may not divest the President of such consti- tutional office or function by legislation. Thus it would take a constitutional amendment to assign the position of Commander in Chief to anyone other than the President. Similarly Congress can- not detract from the power of pardon granted to the President by the Constitution ,23 Congress by legislation also may not enlarge the President's powers by delegating legislative power to the President. In this regard the President is in the same position as any other administrative agency of the Government. Thus the Court has refused to uphold the validity of a section of the National Industrial Recovery Act, under which the President had issued two Executive orders adopting rules and regulations the violation of which purported to carry a criminal penalty under the statute, because the statute had merely authorized the President to prohibit the transportation in: interstate and foreign commerce of petroleum in excess of quotas prescribed within a State by State law or regulation. Said the Court: • * * Thus, in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that sec. 9 (c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited. If sec. 9 (c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its lawmaking func- tion. The reasoning of the many decisions we have reviewed would be made vacuous and their distinctions nugatory. Instead of performing its lawmaking function, the Congress could at will and as to such subjects as it chose transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government.24 » 2 Cranch 179. » U. S. v. Klein, 13 Wall. 128,147O48; 1871: "• * * To the executive alone is Intrusted the power of pardon; and It is granted without limit. Pardon Includes amnesty. It blots out the offence pardoned and removes all its penal consequences. It may be granted on conditions. In these particular pardons, that no doubt might exist as to their character, restora- tion of property was expressly pledged, and the pardon was granted on condition that the person who availed himself of it should take and keep a prescribed oath. "Now it is clear that the legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the court to be instrumental to that end." « Panama Refining Co. v. Ryan, 293 U. S. 388, 430; 1934.
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And where standards are laid down by the Congress to control the exercise of functions conferred on him by statute the President must adhere to the standards in his actions: • * * There is another objection to the validity of the prohibition laid down by the Executive Order under sec. 9 (c). The Executive Order contains no find- ing, no statement of the grounds of the President's action in enacting the prohibi- tion. Both sec. 9 (c) and the Executive Order are in notable contrast with historic practice (as shown by many statutes and proclamations we have cited in the margin) by which declarations of policy are made by the Congress and delegations are within the framework of that policy and have relation to facts and conditions to be found and stated by the President in the appropriate exercise of the dele- gated authority. If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern the exercise of the authority conferred, the President could not act yalidly without having regard to those circumstances and conditions. And findings by him as to the existence of the required basis of his action would be necessary to sustain that action, for otherwise the case would still be one of an unfettered discretion as the qualification of authority would be ineffectual. • * *25 The Court concluded: • * * We cannot regard the President as immune from the application of these constitutional principles. When the President is invested with legislative au- thority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation. We see no escape from the conclusion that the Executive Orders of Jtily 11, 1933, and July 14, 1933, and the Regulations issued by the Secretary of the Interior thereunder, are without constitutional authority. • * * 26 The Court in its opinion emphasized that due process of law required adherence to these requirements and that determinations of fact had to be made and shown.27 By way of contrast it is well settled that the Congress may em- power or direct the President to declare the existence of specified facts or conditions by proclamation or otherwise and thereby to »Ibid., p. 411. »Ibid., p. 433. " Ibid, p. 432. But see the Cmtiss-Wright Case, 299 U. S. 304; 316-330; 1936, whereto the court indicates that it will allow more latitude in Congressional delegation of power to the President in the area of international relations. "• * * As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collec- tive and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency—namely the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army,, created a navy, and finally adopted the Declaration of Independence. Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sover- eignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union. See Penhallow v. -Donne, 3 Ball. 54, 80-81. That fact was given practical application almost at once. The treaty of peace, made on September 23, 1783, was concluded between his Brittanic Majesty and the "United States of America." 8 Stat.—European Treaties—80. "The Union existed before the Constitution, which was ordained and established among other things to form 'a more perfect Union.' "
- # *****
"It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude1 peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality * * '"
"• * * As a member of the family of nations, the right and power of the United States In that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign • * *"
"• * * It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised to subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrass- ment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved • * *"
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make some provision of law operative,28 or to suspend the operation of certain provisions of law.2* 2. HIGHLIGHTS OF CERTAIN CONSTITUTIONAL AND LEGAL DEVELOP- MENTS AFFECTING THE USE OF THE EXECUTIVE POWER It has been the practice, on occasion, to cite certain Executive actions as binding legal precedent even though never accepted as such by the courts and at the same time to minimize the adjudications by the courts in delineating the limits of Executive power under the actions as binding legal precedent even though never accepted as such Constitution.30 There have been however, a sufficient number of judicial decisions to enable us to see what the courts think of the nature and scope of the executive power, in addition to those already discussed. Further illustrations of the court's determinations are treated below. The nature and limitations of Executive power have been a matter of controversy from the very beginning of our Nation. It is ad- visable to quote what appear to be two differing attitudes toward the Presidential power held by former Presidents. It is also useful to bear in mind that both viewpoints have been reconciled in practice in our history by a larger interpretation of the office of President which recognizes that the people have given certain powers to the Federal Government and prescribed a mechanism for functioning according to the basic blueprint of the Constitution. Under this blue- print the authority vested in the President is not untrammeled or unlimited. President Theodore Roosevelt stated his views of the Presidential office as follows: • * * I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was 2» The Brig Aurora, 7 Crunch 382; 1813. » Field v. Clark, 143 U. S. 649, 693; 1891. The Court stated in part: "• * * But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforce- ment of the policy established by Congress. As the suspension was absolutely required when the Presi- dent ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the President was required to do was simply in execution of the act of Congress. It was not the making of law. He was the mere agent of the lawmaking department to ascertain and declare the event upon which its expressed will was to take effect. It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspensions certain duties should be imposed. • * *" «Illustrative of the comments by writers who tend to minimize the role of the courts is the following: ", * * The last control over the exercise of Presidential power to be mentioned lies in the practice of ju- dicial review. This form of control will not be discussed at length at this point because from time to time in discussing the instances of practical construction of constitutional ppwers by holders of the Presidential office, the limits drawn by the courts in reviewing these actions of the President may be appropriately indi- cated. It is sufficient to say generally that in effect judicial review has been of somewhat minor importance In determining the scope of the Presidential powers. While the courts have sometimes rebuffed Presidential pretensions, they have more often labored hard to rationalize them; most of all, they have sought on one pretext or another to keep out of this dread field. For example, in Mississippi v. Johnson, the Supreme Court confessed its inability to enjoin President Johnson from exceeding his constitutional powers or to order him to perform his constitutional duties • * *" (Rankin M. Gibson, The President's Inherent Emergency Powers, in the Federal Bar Journal, vol. XII1951-52, pp. 107, 117-18.) See in this connection mention of Mississippi v. Johnson, infra, wherein the court's opinion Is quoted. The court held that It would not enjoin the Executive or the legislative power but that the consequences of the exercise of either power would be reviewed and adjudicated.
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forbidden by the Constitution or by the law. Under this interpretation of Execu- tive power I did and caused to be done many things not previously done by the President and the heads of the Departments. I did not usurp powers, but I did greatly broaden the use of Executive power. • * * 31 In contrast, President William H. Taft expressed his views on the Presidential office in these words: • * * that a President can exercise no power which cannot fairly and reasonably be traced to some specific grant of power, or justly implied and included within such grant of power and necessary to its exercise. Such specific grants must be either in the Federal Constitution, or in any act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest.32 These assessments of the Executive power are in a sense later echoes of sentiments expressed in the early days of this Nation's history. One of the outstanding incidents involving a controversy over the nature of the Executive power occurred in connection with President George Washington's so-called Proclamation of Neutrality in 1793. The 1793 controversy over Washington's Proclamation of Neutrality When France declared war against Great Britain (and Holland) in February 1793, her action precipitated a crisis of substantial pro- portions within the Government of the United States and among the populace of the young Nation. Anti-British feeling ran high, as did pro-French sympathies. President Washington had two viewpoints represented strongly in his own Cabinet. Secretary of State Thomas Jefferson was anti- British and pro-French while Alexander Hamilton was pro-British.33 President Washington was firmly determined to keep the United States neutral. So were Jefferson and Hamilton although each strongly favored a different side in the war. A fierce struggle ensued in Washington's Cabinet over whether he should issue a proclama- tion "• * * for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Brit- ain • * *" and whether the proclamation should contain a declaration of neutrality.34 Jefferson opposed the issuance of a proclamation of neutrality on two grounds—one political and the other constitutional. As a politi- cal ground he urged holding back a proclamation as a device for bargaining with the belligerents. On constitutional grounds Jefferson argued that such a declaration was a declaration of no war and in his I' r
O r " Quoted in Rankin M. Gibson, op. cit., p. 113. President Franklin D. Roosevelt expressed himself per- haps even more strongly along the same lines: "In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.
"The President has the powers, under the Constitution and under congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.
"The responsibilities of the President in wartime to protect the Nation are very grave. This total war, with our fighting fronts all over the world, makes the use of Executive power far more essential than in any previous war.
"I cannot tell what powers may have to be exercised in order to win this war. "The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat. "When the war is won, the powers under which I act automatically revert to the people—to whom they belong" (Rankin M. Gibson, op. cit., pp. 114-116). » Ibid, p. 113. » Charles M. Thomas, American Neutrality in 1793, A Study in Cabinet Government, New York, Columbia University Press, 1931, pp. 18-20. " Ibid., p. 26. _
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view it was not for the Executive to decide the question of war on the negative or the affirmative side.35 Jefferson was supported in this view by Madison, Monroe, and others. Hamilton was of the opposing view. President Washington did issue a proclamation on April 22, 1793. His proclamation enjoined the citizens of the United States to "• * * avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition • * *" of "• * * a con- duct friendly and impartial toward the belligerent powers • * *" The President's proclamation also stated that he had "• * * given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the powers at war, or any of them." 36 The word "neutral" or "neutrality" was not used in the President's proclamation. But everyone recognized it as such a declaration and the Cabinet had another argument over the use of the term "neutral- ity" in drafting the President's speech to the Congress the next November. Washington closed the debate by stating that he never had any idea he could bind the Congress and that his proclamation could not look beyond the first day of their meeting. Moreover his speech to the Congress spoke of the proclamation merely as a declara- tion of the existing legal state of things.37 The struggle within the Cabinet and around President Washington found its reflection in a series of articles printed under the name of Pacificus (Hamilton) who supported Washington's actions in issuing the proclamation, and under the name of Helvidius (Madison) who opposed Washington's actions as unconstitutional. In a sense the arguments in these two series of letters, as they were called, have remained the lines of argument down through the years as will be seen in the discussion, infra, of the steel seizure case, the opinion in which was handed down by the Supreme Court in June 1952. Basically, Hamilton's argument was that the Executive-power clause in article II was a grant of power in itself and authorized Presi- dent Washington's action. Madison's opposing position was that the Executive-power clause was not a grant of power in itself since ours is not a government involving royal prerogatives. Hamilton also advanced other sources of authority for the President in the Con- stitution. The second article of the constitution of the United States, section first, estab- lishes this general proposition, that "the EXECUTIVE POWER shall be vested in a president of the United States of America." The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive anbassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities, as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restric- tions or limitations; as in regard to the co-operation of the senate in the appoint- ment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The ,,Ibid., p. 36. »Ibid, pp. 42-43. »' Ibid, pp. 47H18.
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,difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable, that a specification of certain particulars was designed as a substitute for those terms, ,when antecedently used. The different mode of expression employed in the con- stitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the the legislative powers of the government, the expressions are, "all legislative powers herein granted shall be vested in a congress of the United States." In that which grants the executive power, the expressions are, "the executive power shall be vested in a president of the United States." The enumeration ought therefore to be considered, as intended merely to specifiy the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the constitution and with the principles of free government. The general doctrine of our constitution then is, that the executive power of the nation is vested in the president; subject only to the exceptions and qualifi- cations, which are expressed in the instrument. Two of these have been already noticed: the participation of the Senate in 1;he appointment of offieers, and in the making of treaties. A third remains to be mentioned: the right of the legislature "to declare war," and "grant letters of marque and reprisal." With these exceptions, the executive power of the United States is completely .lodged in the president. This mode of construing the constitution, has indeed been recognized by Congress in formal acts, upon full consideration and debate: ,of which the power of removal from office, is an important instance. It will follow, that if a proclamation of neutrality is merely an executive act, as it is believed has been shown, the step which has been taken by the president is liable to no just exception on the score of authority • * * 38 Madison stated in part his opposing views as follows: The basis of the reasoning is, we perceive, the extraordinary doctrine, that the powers of making war and treaties, are in their nature executive; and therefore comprehended in the general grant of executive power, where not specially and strictly excepted out of the grant • * * M
2. If we consult, for a moment, the nature and operation of the two powers to declare war and to make treaties it will be impossible not to see that they can never fall within a proper definition of executive powers. The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts, therefore, properly executive, must pre-suppose the existence of the laws to be executed. A treaty is not an execution of laws; it does not pre- suppose the existence of laws. It is, on the contrary, to have itself the force of a law, and to be carried into execution, like all other laws, by the executive magistrate. To say then that the power of making treaties which are confessedly laws, belongs naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory, this is an absurdity • * * in practice a tyranny. The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws; It does not suppose pre-existing laws to be executed; it is not, in any respect, an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war; and of enacting as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy. In like manner, a conclusion of peace annuls all the tows peculiar to A state of war, and revives the general laws incident to a state of peace. These remarks will be strengthened by adding, that treaties, particularly treaties of peace, have sometimes the effect of changing not only the external laws of the society, but operate also on the internal code, which is purely municipal, and to which the legislative authority of the country is of itself competent and complete. From this view of the subject it must be evident, that, although the executive may be a convenient organ of preliminary communications with foreign govern- ments, on the subjects of treaty or war, and the proper agent for carrying info execution the final determinations of the competent authority, yet it can have ,"- « Ibid, pp. 556-556 »Ibid, p. 596.
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pretensions from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such deter- minations. It must be further evident that, if these powers be not in their nature purely legislative, they partake so much more of that, than of any other quality, that under a constitution leaving them to result to their most natural department, the legislature would be without a rival in its claim. Another important inference to be noted is, that the powers of making war and treaty being substantially of a legislative, not an executive nature, the rule of interpreting exceptions strictly, must narrow instead of enlarging executive pretensions on those subjects.40 • * *
• * * Whence then can the writer (Hamilton) have borrowed it? There is but one answer to this question. The power of making treaties and the power of declaring war, are royal preroga- tives in the British government, and are accordingly treated as. executive prerogatives by British commentators.*1 The President and the Supreme Court in the Andrew Jackson Nullifica- tion Controversy and Bank Charter Veto President Andrew Jackson's term of office is sometimes referred to in connection with appraisals of Executive power under the Constitution, particularly as concerns the relationship of the powers of the President to those of the Supreme Court. The impression is often created that President Jackson and Chief Justice John Marshall had a head-on collision in the form of a specific case or cases and that President Jackson defied the Court. This appears to be such a widely held misconception that it is worth while briefly to summarize the facts in order to clarify the record in considering the use of Executive powers. The overlapping and coincidence of two events appear to have com- bined to obscure President Jackson's attitude toward the Supreme Court and its powers. One was the series of actions by the State of Georgia to assert its sovereignty over the Cherokee Nation within its borders and to deny the right of the Supreme Court to review its actions. The other was the struggle over the renewal of the charter of the Bank of the United States which took place from January to June 1832. On March 3, 1832, Chief Justice John Marshall rendered the opinion of the Supreme Court holding a Georgia statute unconstitutional on the ground that the jurisdiction of the Federal Government over the Cherokees was exclusive, and that the State had no power to pass laws affecting them or their territory.42 The judgment of the Georgia Superior Court convicting (two missionaries who had defied the State law) was reversed and a special mandate ordered to issue to that Court, March 5, ordering their release. It was in connection with the uproar which followed the Court's decision that President Jackson has been quoted as saying: "Well, John Marshall has made his decision, now let him enforce it." TheO source of this alleged quotation is a book by Horace Greeley in which. Greeley quotes an alleged remark by a Member of Congress who is supposed to have heard President Jackson make the comment.43 There appears to be no substantiation for the quotation so often attributed to Jackson except that it was given an aura of likelihood «Ibid., pp. 598-599. « Ibid, p. 602. " Worcester v. Georgia, 6 Pet. 515. The material above concerning President Jackson and the Supreme Court is summarized from Charles Warren, The Supreme Court in United States History, Boston, Little, Brown & Co., 1935, vol. I. ch. 19. « Warren, op. cit., p. 759.
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by Jackson's veto message on the bill extending the charter of the Bank of the United States in July 1832, only a few months later. It is true that the State of Georgia resisted the effort of the Supreme Court to assert its jurisdiction but there is little to uphold the con- tention that Jackson would do anything to undermine the authority of the Federal judiciary. Jackson's interest in the Union and in national authority was demonstrated forcefully in November and December of 1832, when, after South Carolina passed its Nullifica- tion Ordinance, Jackson took forthright action and recommended enactment by the Congress of "vigorous and radical" legislation giving the Federal courts and officials authority to deal with the situation.44 President Jackson's attitude toward the Supreme Court should not be misconstrued as an argument for unlimited executive power particu- larly in view of his veto message on the bill to renew the charter of the Bank of the United States. In that message, however, Jackson merely emphasized his right to use the veto power given to him by the Constitution irrespective of anyone else's views on pending legis- lation. Jackson never asserted any right to refuse to execute any law enacted according to constitutional processes. Jackson said in response to the argument by advocates of the bill to the effect that the Supreme Court had upheld the constitutionality of the Bank's charter that such a decision- ought not to control the coordinate authorities of this Government. It is as much the duty of the House of Representatives, of the Senate, and of the Presi- dent, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges when it may be brought before them for judicial decision. The opinion of the Judges has no more authority over Congress than the opinion of Congress has over the Judges; and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress, or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.46 The eminent historian of constitutional law, Charles Warren, summarizes Jackson's viewpoint thus: Jackson never asserted a right to decline to carry out a Court decision, when acting in his Executive capacity. It was when exercising his part of the law- making function of the Nation, and when deciding upon signature or veto of a bill presented to him, that he claimed the privilege of determining for himself the constitutionality of the proposed measure.49 Lincoln: The Commander-in-Chief, and the Use of Military Power An extraordinarily vigorous use of executive power, characterized President Abraham Lincoln's tenure of office and the Civil War period. Some interesting aspects of Presidential power came to the fore as Lincoln waged his battle to preserve the Union. Primary among these was the President's use of his position as Commander « Warren, op. cit., p. 774. " Quoted in Warren, op. cit., pp. 761-762. « Warren, op. cit., p. 762. Chief Justice Taney explained Jackson's position as follows in a letter quoted in Warren at p. 763: "He has been charged with asserting that he, as an Executive officer, had a right to judge for himself whether an act of Congress was constitutional or not, and was not bound to carry it into execution if he believed it to be unconstitutional, even if the Supreme Court decided otherwise: and this misrepresentation has been kept alive for particular purposes of personal ill will, and has, I learn, been repeated in the Senate during its late session. Yet no intelligent man who reads the message can misunderstand the meaning of the President. He was speaking of his rights and his duty, when acting as a part of the Legislative power, and not of his right or duty as an Executive officer. For when a bill is presented to him and he is to decide whether, by his approval, it shall become a law or not, his power or duty is purely Legislative as that of a member of Congress, when he is called on to vote for or against a bill. If he has firmly made up his mind that the proposed law is not within the powers of the General Government, he may and he ought to vote against it, notwithstanding an opinion to the contrary has been pronounced by the Supreme Court. * * ,"
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in Chief, a constitutional power which received increased significance immediately upon the outbreak of hostilities within the very borders of our Nation. The President's position as Commander in Chief gains importance in periods of war or armed conflict affecting the United States. The Supreme Court has stated that even with a declaration of war by the Congress the Commander in Chief powers are restricted to military affairs. The words of the Court are these: • * * nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the Government for the expanses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief, he is authorized to direct the move- ments of the naval and military forces placed by law at his command, and to em- ploy them in the manner he may daem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. • * * 47 In practice President Lincoln and other Presidents have used this military office bestowed upon them by the Constitution to enlarge theO powers of the presidency, although with good faith and with noble motives, with greater impact upon the civilian population and our constitutional system than upon the military forces. One writer has summed up the situation in this manner: • * * Problems arise, however, from the nature of the grant of presidential power. This clause is unique in the Constitution in granting authority in the form of an office rather than in the form of a function. The President is not given the function "to command the Army and Navy"; he is given the office of "Com- mander in Chief." This difference in form is of considerable importance, for it left undefined the specific powers and functions. This eased the approval of the Constitution in the ratifying conventions, but it gave subsequent generations something to argue about. The powers of the Commander in Chief might range from the extremely broad power to conduct war to a narrowly restricted power of military command. They certainly exclude all powers specifically assigned to Congress or the states, and they probably include all purely military powers not so assigned. But does the office possess nonmilitary powers as well? The Framers themselves seemed to> hold conflicting opinions on this point. The Supreme Court in 1850, however, declared that the duty and power of the President as Commander in Chief were "purely military," and denied the similarity between the presidential authority and the royal prerogative. So long as the Commander in Chief power was inter- preted as p'urely military, it remained, in Professor Corwin's phrase, "the forgotten clause" of the Constitution. In the Civil War and in World War II, however, Lincoln and Roosevelt used the clause to justify an extraordinarily broad range of nonmilitary presidential actions largely legislative in nature. The justification of these actions by the Commander in Chief clause was persuasive, however, only because John Rutledge defined that power as an office rather than a function. It could be argued that the office of Commander in Chief possesses authority to seize a strike-bound war plant. It would be harder to argue that the function of com- manding the Army and Navy implied such authority. The Commander in Chief clause, in other words, has been of relatively little direct use in securing civilian control over the military. Indeed, in one respect it has been directly detrimental to such control. But because it was phrased as an office rather than a function, « Fleming et al. v. Page, 9 How. 603, 614-615; 1850. See H. Doc. No. 443,84th Cong., 2d sess., The Powers of the President as Commander in Chief of the Army and Navy of the United States, which cites this case at p. 4S for what appears to be a proposition not Indicated by the contents of the case and the holding of the court. This document is useful for the references it contains but some of the conclusions drawn from the' references do not appear to be warranted by the sources cited.
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it has been of great use to the President in expanding his power at the expense of Congress. This, in turn, has broadened the area of conflict between these two institutions and, consequently, if indirectly, has further impeded civilian control by increasing the likelihood that military leaders will be drawn into political controversy. • * * 4i No sooner had the first shots been fired at Fort Sumter than Presi- dent Lincoln was confronted with the most serious crisis in the Nation's history since the founding of the Republic. On April 25, 1861, fearful for the safety of the Nation's Capital in view of pro-Confederate activities in Maryland, Lincoln addressed a letter of instructions to General Scott telling him to watch the activi- ties of the Maryland State Legislature and to act to suppress insurrec- tion including "• * * in the extremest necessity, the suspension of the writ of habeas corpus." 49 On May 25, 1861, one John Merryman was arrested by Federal soldiers and confined in Fort McHenry under the command of General Cadwalader. Alerryman was alleged to be an officer of a company having arms and intending armed hostility against the United States. On May 26, 1861 a petition for habeas corpus was presented to Chief Justice Taney who thereupon ordered that the writ of habeas corpus issue and be returnable before the Chief Justice in the United States Circuit Court room in Baltimore on the following day, May 27, 1861. On May 27, 1861, General Cadwalader had the writ returned by a Colonel Lee. In the return to the writ General Cad- walader explained that Merryman was being held because of a charge 48 Samuel P. Huntington, Civilian Control and the Constitution, in the American Political Science- Review, vol. I/. No. 3, September 1956, p. 690. Mr. Huntington makes the point that the framers of the Constitution deliberately divided control over the military between the Congress and the President and gave the Congress the important function of declaring war among others important to the military functions such as raising and supporting armies, making rules for the government of military forces, etc. That Congress cannot take away the President's supreme command seems almost a truism particularly as it applies to the command of military forces. In the case of Swaim v. U. S. (28 Court of Claims, 173, 221; 1893) the Court of Claims stated its views as follows: "It may be historically true that the commander in chief during the Revolution ascribed his power to order courts-martial directly to the Continental Congress; and it may also be true that at the time of the adoption of the Constitution the annual consent of Parliament to the existence of a standing army was conditioned upon statutory provisions relating to such military tribunals, though upon these historical questions the court expresses no opinion; but nevertheless there remains the significant fact in our military system that the President is always the commander in chief. Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force Congress can not take away from the President the supreme command. It is true that the Constitution has conferred upon Congress the exclusive power 'to make rules for the government and regulation of the land and naval forces;' but the two powers are distinct; neither can trench upon the other; the President can not, under the disguise of military orders, evade the legislative regulations by which he in common with the Army must be governed; and Congress can not in the disguise of 'rules for the government' of the Army impair the authority of the President as commander in chief. • * *" 49 The text of Lincoln's order is as follows: WASHINGTON, April K, 1861. "Lieutenant-General SCOTT. "Mv DEAR SIR: The Maryland Legislature assembles tomorrow at Annapolis, and not improbably wilt take action to arm the people of that State against the United States. The question has been submitted to and considered by me whether it would not be justifiable, upon the ground of necessary defense, for you, as General in Chief of the United States Army, to arrest or disperse the members of that body. I think it would not be justifiable nor efficient for the desired object. " First. They have a clearly legal right to assemble, and we can not know in advance that their action will not be lawful and peaceful, and if we wait until they shall have acted their arrest or dispersion will not lessen the effect of their action. "Secondly. We cannot permanently prevent their action. If we arrest them, we can not long hold them as prisoners, and when liberated they will immediately reassemble and take their action; and precisely the same if we simply disperse them—they will immediately reassemble in some other place. "I therefore conclude that it is only left to the Commanding General to watch and await their action, which, if it shall be to arm their people against the United States, he is to adopt the most prompt and effi- cient means to counteract, even, if necessary, to the bombardment of their cities and, in the extremest necessity, the suspension of the writ of habeas corpus. "Your obedient servant, "ABRAHAM LINCOLN." (From a compilation of the Messages and Papers of the Presidents by James D. Richardson, Bureau of National Literature, Inc., New York, 1897, vol. VII, pp. 3218-3219.) On April 27, 1861, Lincoln authorized the suspension of the writ of habeas corpus by the Commanding General of the Army between the city of Philadelphia and Washington, D. C., and later extended the coverage of the authorization to New York and finally to Bangor, Maine, (Richardson, op. cit., vols- VII and VIII, pp. 3219, 3220, 3240.)
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of various acts of treason and that he, General Cadwalader, had been duly authorized by the President, in such cases, to suspend the writ of habeas corpus for the public safety. General Cadwalader asked the Chief Justice to postpone further action until the general could receive further instructions from the President. The Chief Justice forthwith ordered a writ of attachment to issue against General Cadwalader for contempt in refusing to produce the body of John Merryman, the writ to be returned on the following day, May 28, 1861. On the following day the marshal made the following return to the writ of attachment: • * * I hereby certify to the Honorable Roger B. Taney, Chief Justice of the supreme Court of the United States, that by virtue of the within writ of attach- ment, to me directed, on the 27th day of May 1861, I proceeded, on this 28th day of May 1861, to Fort McHenry, for the purpose of serving the said writ. I sent in my name at the outer gate; the messenger returned with the reply, "that there was no answer to my card," and therefore, could not serve the writ, as I was commanded. I was not permitted to enter the gate. So answers WASHINGTON BONIFANT, United States Marshal for the District of Maryland.® The Chief Justice rendered his opinion after stating: • * * that the marshal had the power to summon the posse comitatus to aid him in seizing and bringing before the court, the party named in the attachment, who would, when so brought in, be liable to punishment by fine and imprisonment; but where, as in this case, the power refusing obedience was so notoriously superior to any the marshal could command, he held that officer excused from doing anything more than he had done.61 In his opinion Taney concluded that the power to suspend the writ of habeas corpus is exclusively a legislative power and that the President cannot suspend the privilege nor authorize a military officer to do it. Taney based his argument on legal and constitutional history and the fact that the power to suspend the writ is contained in the first or legislative article of the Constitution.62 M Taney's Decisions in the Circuit Court of the United States for the District of Maryland, 1836-61, Philadelphia, Kay & Bro., 1871, p. 252. " Ibid., pp. 252-253. » Ex parte Merryman, Ibid., pp. 256-258: .., , * ,pne clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas carpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by provid- ing 'that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.' And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the leg- islative powers which it thereby grants; and at the conclusion of this specification, a clause is inserted giving congress 'the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.' "The power of legislation granted by this latter clause is, by its words, carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles, essential to the liberty of the citizen, and to the rights and equality of the states, by denying to congress, in express terms, any power of legis- lation over them. It was apprehended, it seems, that such legislation might be attempted, under the pre- text that it was necessary and proper to carry into execution the powers granted; and it was determined, that there should be no room to doubt, where rights of such vital importance were concerned; and accord- ingly, this clause is immediately followed by an enumeration of certain subjects, to which the powers of legislation shall not extend. The great importance which the framers of the constitution attached to the privilege of the writ of habeas corpm, to protect the liberty of the citizen, is proved by the fact, that its suspension, except in cases of invasion or rebellion, is first in the list of prohibited powers; and even in these cases the power is denied, and its exercise prohibited, unless the public safety shall require it. "It is true, that in the cases mentioned, congress is, of necessity, the judge of whether the public safety does or does not require It; and their judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it, and of the extreme caution they should exercise, before they give the government of the United States such power over the liberty of a citizen. "It is the second article of the constitution that provides for the organization of the executive depart- ment, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is not a word in It that can furnish the slightest ground to justify the exercise of the power * , *."
[[23 EXECUTIVE ORDERS AND PROCLAMATIONS 23 , Taney went on to state that the civil courts and processes were functioning and that Merryman should have been charged and tried according to those processes.53 Although Taney's position was later vindicated by the Supreme Court54 he had to content himself with addressing a plea to President Lincoln in the instant case.55 There is no evidence that the plea was heeded. Lincoln himself was not unaware of the legal problems involved and he specifically referred the matter to the Congress in his message to the extraordinary session of Congress convened on July 4, 1861.66 Lincoln left the matter of legislation to the Congress and defended his action in suspending the writ of habeas corpus by asking: "Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath (of the President) be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?" Lincoln himself underscored the fact in this message that "• * * nothing has been done beyond the con- stitutional competency of Congress." » Ex parte Merryman, Ibid, pp. 267-268. 54 See Ex parte Milligan, infra. " Ex parte Merryman, Taney's Decisions, op. cit., pp. 268-270: " • * * The constitution provides, as I have before said, that 'no person shall be deprived of life, liberty or property, without due process of law.' It declares that 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly de- scribing the place to be searched, and the persons or things to be seized.' It provides that the party accused shall be entitled to a speedy trial in a court of justice. "These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found. "In such a case, my duty was too plain to be mistaken. I have exercised all the power which the consti- tution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instruc- tions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in the fulfilment of his constitutional obligation to 'take care that the laws be faithfully executed.' to determine what measures he will take to cause the civil process of the United States to be respected and enforced." fiO The full passage from Lincoln's message is as follows: "• * * Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain without resort to the ordinary processes and forms of law such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very spar- ingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to 'take care that the laws be faithfully executed' should not himself violate them. Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws which were re- quired to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessarv to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itsell go to pieces lest that one be violated: Even in such a case, would not the official oath be broken if the Gov- ernment should be overthrown when it was believed that disregarding the single law would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was vio- lated. The provision of the Constitution that 'the privilege of the writ of habeas corpus shall not be sus- pended unless when, in cases of rebellion or invasion, the public safety may require it' is equivalent to a provision—is a provision—that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it. It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion • * *" (Richardson, op. cit., vol. VII, pp. 3225-3226.) 89166—57-
[[24 EXECUTIVE ORDERS AND PROCLAMATIONS
It was almost 2 years before the Congress passed legislation dealing with the matter of habeas corpus.57 The Habeas Corpus Act of March 3, 1863, authorized the President to suspend the writ when "• * * in his judgment, the public safety may require it • * *". The act went on, however, to provide that reports of persons so detained be furnished to the circuit and district courts of the United States (persons who are "• * * citizens of states in which the administration of the laws has continued unimpaired in the said Federal courts • * *" and who are held "• * * as state or political prisoners, or otherwise than as prisoners of war • * *"). The act provided that when a list had been furnished to the court and when a grand jury had terminated its session "• * * without finding an indictment or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged." The act made it a crime punishable by fine and imprisonment for any officer of the United States having custody of such persons to delay or refuse to execute the court's order. Thus without saying so in specific language, the Congress legalized Lincoln's actions. In addition, however, the Congress asserted its jurisdiction over the matter of habeas corpus suspension. It appears therefore, that in the face of most extreme emergency there may be a lag in statutory law as summarized above. As Pro- fessor Hart has pointed out "• * * in a really critical situation • * * President Lincoln could preserve the Union only by taking action of doubtful legality without waiting for legislative authorization." 5S When the lag in legislative action is overcome by action of Congress, except for criminal penalties, the Congress may ratify the actions of the President, thereby curing defects which may have existed. In The Prize Cases (2 Black 635; 1862) the Supreme Court dealt with the challenge to the President's right to proclaim a blockade which resulted in the capture of prizes by the public ships of the United States. President Lincoln had declared a blockade on the 27th and 30th of April 1861. The question was whether a state of war existed which authorized the use of blockade under the laws of nations. The Supreme Court pointed out that 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 insur- rection against the government of a State or of the United States." The Court stated: • * * 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 extraor- dinary 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." Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well- 87 For the story of congressional consideration and action see George Clarke Sellery, Lincoln's Suspension of Habeas Corpus as Viewed by Congress, a reprint from the Bulletin of the University of Wisconsin History Series, vol. I, No. 3; 1907. '» Hart, op. clt., p. 61.
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use. N. V.
,known principle of law, "omnis ratihabitio retrotrahitur et mandato equiparatur," this ratification has operated to perfectly cure the defect. In the case of Brown \. United States, (8 Cr. 131, 132, 133,) Mr. Justice Story treats of this subject, and cites numerous authorities to which we may refer to prove this position, and concludes, "I am perfectly satisfied that no subject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did, I would ask if the sovereign may not ratify his proceedings, and thus by a retroactive operation give validity to them?" Although Mr. Justice Story dissented from the majority of the Court on the whole case, the doctrine stated by him on this point is correct and fully sub- stantiated by authority. The objection made to this act of ratification, that it is ex post facto, and there- fore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal Court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law. On this first question therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in re- bellion, which neutrals are bound to regard • * *.59 The circumstances of emergency periling the very existence of the Nation may also give rise to a lag in the application of the law by the courts in the area of Presidential action. This is illustrated by the contrast of the actions of the Supreme Court in the cases of Ex parte Vallandigham and Ex parte Milligan, the first decided during the Civil War and the second decided after hostilities had ceased.60 Vallandigham, a civilian, was tried and convicted by a military commission appointed pursuant to an order of General Burnside, commanding the military department of Ohio. Vallandigham was arrested on May 6, 1863, for having spoken in public against the Union cause on May 1, 1863. His sentence was originally fixed at confinement for the remainder of the war, but Lincoln commuted the sentence and had Vallandigham put out beyond the Union lines in Tennessee. Vallandigham petitioned the Supreme Court for certiorari and the Court held it had no jurisdiction to issue the writ. It stated its authority to issue the writ must come from the Constitution and the statutes and concluded that in neither place had the Court been given appellate jurisdiction over military commissions. These, the Court stated, were not "courts" within the meaning of the 14th section of the Judiciary Act of 1789. Said the Court: Whatever may be the force of Vallandigham's protest, that he was not triable by a court of military commission, it is certain that his petition cannot be brought within the 14th section of the act; and, further, that the court cannot, without disregarding its frequent decisions and interpretation of the Constitution ia respect to its judicial power, originate a writ of certiorari to review or pronounce any opinion upon the proceedings of a military commission. It was natural, before the sections of the 3d article of the Constitution had been fully considered in connection with the legislation of Congress, giving to the courts of the United States power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their respective jurisdiction, that by some members of the profession it should have been thought, and some of the early judges of the Supreme Court also, thaJt the 14th section of the Act of 24th September, 1789, gave to this court a right to originate processes of habeas corpus ad subjiciendum, writs of certiorari to review the proceedings of the inferior courts as a matter of original jurisdiction, without being in any way restricted by the constitutional limitation, that in all cases affecting ambassadors, other public ministers and consuls, and those in which a 41 2 Black 670-671. It should be noted that while the President's actions may mark a recognition of de facto war enabling him to perform his duty to suppress insurrection or oppose undeclared war, the President by his proclamation of the end of hostilities cannot affect the exercise of the war power by the Congress. Woods v. Clovd W. Miller Co., 333 U. S. 138; 1947. » Ex parte Vallandigham, 1 Wall. 243; 1863. Ex parte Milligan, 4 Wall. 2; 18S6.
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State shall be a party, the Supreme Court shall have original jurisdiction. This limitation has always been considered restrictive of any other original jurisdiction. The rule of construction of the Constitution being, that affirmative words in the Con- stitution, declaring in what cases the Supreme Court shall have original jurisdiction, must be construed negatively as to all other cases. • * *6i Thus, the Supreme Court on procedural grounds refused to inject itself into the controversy presented to it in 1863-64 over the actions of military commissions. In 1866, the war over, the Supreme Court met the substantive issues presented in the Vallandigham case head on in the case of Ex parte Milligan. The case of Lambdin P. Milugan came to the Supreme Court on a certificate of divided opinion from the circuit court in Indiana. The Court recognized that a change in circumstances enabled it to deal more adequately with the issues involved. The importance of the main question presented by this record cannot be over- stated; for it involves the very framework of the government and the fundamental principles of American liberty. During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the «xercise of power; and feelings and interests prevailed which are happily termi- nated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case, fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation • * * * Milligan, a civilian, had been sentenced to be executed after a trial by a military commission in October 1864 on charges of insurrec- tionary activity. The sentence was approved by the President. Milligan petitioned the circuit court to be discharged from custody under the terms of the Habeas Corpus Act of 1863, supra, since a grand jury had met and been discharged since his confinement and had not returned any indictment against him. The Supreme Court held that Milligan was entitled to be discharged from custody under the terms of the act and that the military commission had no juris- diction legally to try and to sentence Milligan. In a sweeping opinion the majority refused to accept the contention that martial law could justify the proceedings of the military commis- sion. The majority stated that martial law could not be justified in Indiana since there was no actual invasion and the courts and civil administration were functioning. The majority stated that the basic safeguards for the individual written into the Constitution could not be disturbed by either the President, the Congress, or the judiciary save for the provision for the suspension of the writ of habeas corpus. The Court stated: It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the com- mander of an armed force (if in his opinion the exigencies of the country demand it, and of which, he is to judge), has the power, within the lines of his military district, to. suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military , ,' 1 Wall. 251-252. " 4 Wall. 109.
[[27 EXECUTIVE ORDERS AND PROCLAMATIONS 27
force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power"—the attempt to do which by the King of Great Britain was deemed by our fathers such an offense, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish • * * M
It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to estab- lish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration. It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evi- dence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law. It follows, from what has been said on this subject, that there are occasions ,when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war • * * M The Chief Justice and three other Justices with him agreed with the decision of the Court in the case of Milligan but argued that Congress, if it so wished, could authorize trial and punishment by military commission even in States where civil courts are open. These four Justices stated that Congress possessed the power, although it had not exercised it, to authorize the type of action by military com- mission which had taken place in Indiana. They based their argument on Congress' power to provide by law for carrying on war. World War II and Korea: The "Aggregate oj Powers" as a Constitutional Basis for Presidential Action Based on President Lincoln's experience and on related cases in- volving war and other great crises it may be said that there have been M 4 Wall. 124-25. " 4 Wall. 126-127. 1 I 1
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cases of temporary Presidential actions, which though of doubtful legality, have been effective in times of great national crisis. But the general effect of both congressional action and judicial interpretation has been to review such actions and to provide for their performance through the established legislative processes in the manner prescribed by law. A reading of the adjudicated cases yields the conclusion that the courts do not recognize the idea of "inherent" executive power in the Presidency under the Constitution. Nevertheless, while it has not received judicial acceptance, the doctrine of "inherent" Executive power or something approximating it has persisted throughout our history. The "executive grant" or "royal prerogative" argument for "inherent" Presidential powers, advanced by Hamilton in the dispute centering around Washington's proclamation of neutrality in 1793, is a persistent theme in America's constitutional history. It has been reasserted at times when a President has been con- fronted with an emergency and has been either unable or unwilling to find or seek authority for contemplated action either explicitly in the Constitution or in existing statutes or to request enactment of new legislation. Circumstances have dictated the course of Presi- dential action. Despite the broad scope of congressional power under the "necessary and proper" clause of article I, section 8 of the Con- stitution, Presidents have acted from time to time without waiting for the passage of legislation. In more recent years there has been added to the controversy a so-called "aggregate of powers" theory of Presidential power. Briefly, the theory states that the President has and may exercise a reservoir of implied powers created by the accumulation of the total of express powers vested in him by the Constitution and the statutes. Thus executive orders will often start with a recital of the so-called powers vested in the President as President, as Commander-in-Chief, etc. The "aggregate of powers" theory of Presidential power has been stated by Attorney General Biddle in an opinion to the President, dated April 22, 1944. After discussing the power of the President to order seizure and operation of Montgomery Ward plants and facilities in Chicago, Attorney General Biddle concluded: It is not necessary, however, to rely solely upon the provisions of section 3 of the War Labor Disputes Act. As Chief Executive and as Commander in Chief of the Army and Navy, the President possesses an aggregate of powers that are derived from the Constitution and from various statutes enacted by the Congress for the purpose of carrying on the war. The Constitution lays upon the President the duty "to take care that the laws be faithfully executed." The Constitution also places on the President the responsibility and invests in him the powers of Commander in Chief of the Army and Navy. In time of war when the existence of the nation is at stake, this aggregate of powers includes authority to take reason- able steps to prevent nationwide labor disturbances that threaten to interfere seriously with the conduct of the war. The fact that the initial impact of these disturbances is on the production or distribution of essential civilian goods is not a reason for denying the Chief Executive and the Commander in Chief of the Army and Navy the power to take steps to protect the nation's war effort. In modern war the maintenance of a healthy, orderly, and stable civilian economy is essential to successful military effort. The Congress has recognized this fact by enacting such statutes as the Emergency Price Control Act of 1942; the act of October 2, 1942, entitled "An Act to Amend the Emergency Price Control Act of 1942, to aid in preventing inflation, and for other purposes ; the Small Business Mobilization Law of June 11, 1942; and the War Labor Disputes Act. Even in the absence of section 3 of the War Labor Disputes Act. therefore, I believe that by the exercise of the aggregate of your powers as Chief Executive and Commander in Chief, you
[[29 EXECUTIVE ORDERS AND PROCLAMATIONS 29
could lawfully take possession of and operate the plants and facilities of Mont- gomery Ward and Company if you found it necessary to do so to prevent injury to the country's war effort. I conclude that in the circumstances of this case section 3 of the War Labor Dis- putes Act and your constitutional and statutory powers as Chief Executive and Commander in Chief of the Army and of the Navy, considered either separately or together, authorize you to direct the Secretary of Commerce to take possession of and to operate the plants and facilities of Montgomery Ward and Company in Chicago, Illinois. • * *6i In 1952 the Youngstown Steel seizure case gave the Supreme Court an opportunity to review Hamilton's doctrine of Presidential power derived from the grant of executive powers in article II of the Con- stitution as well as an opportunity to review the related theories of "inherent" Presidential powers.66 The case involved the seizure of the steel mills by the Secretary of Commerce on the basis of a Presidential directive contained in an Executive order. The order was not based on statutory authority but was apparently based primarily on the Commander in Chief authority of the Constitution at a time when American troops were fighting in Korea. A majority of the Court (six members) rejected the idea that the President had or could exercise any such authority especially when Congress had legislated on the matter by providing specific machinery for the settlement of such disputes. A minority (three members) held that the President could take action to preserve the defense program until Congress could act. For the purposes of this study, the most interesting aspect of the case is the occasion taken by several of the Justices to review constitu- tional history in respect to the theories of Presidential power. 65 40 Op. A. G. 319-320. See reference by Attorney General Clark to "inherent power of the President to deal with emergencies" in letter published in hearings on S. 249, Senate Committee on Labor and Public Welfare, 81st Cong., 1949,1st sess., p. 263. Attorney General Clark cites an opinion of Attorney General Murphy (39 Op. A. G. 344,347). A reading of the cited opinion does not show the use of the word "inherent" although i t speaks of powers derived from the Constitution. 66 Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S. 579, 96 L. ed. 1153, June 2, 1952. The following summary of the decision by the editors of Lawyers' Edition of Supreme Court Reports is useful in considering the excerpts quoted above: 14 A labor dispute between the steel industry and Its employees was referred by the President to the Federal Wage Stabilization Board. The Board's recommendation resulted in no settlement. When the union gave notice of a nationOwide strike, the President issued an executive order directing the Secretary of Commerce to take possession of and operate most of the steel mills throughout the country and to promulgate additional rules and regulations consistent with the policy proclaimed and needed to effectuate this policy. The order was not based upon any statutory authority. It contained a finding that the President's action was necessary to avoid a national catas*rophe, since a work stoppage would immediately imperil the national defense at a time when American armed forces were fighting in Korea. The President immediately informed Congress of his action and stated his intention to abide by the legislative will. " In proceedings instituted by the steel companies to challenge the validity of the seizure as not authorized by an act of Congress or any constitutional provision, the District Court Issued preliminary injunctions restraining the Secretary from continuing the seizure and possession of the plants and from acting under the authority of the executive order. "Six members of the Supreme Court affirmed, holding that (1) the constitutional issue was ripe for deci- sion; and (2) that the seizure order was not within the constitutional powers of the President. "The opinion of the Court, written by BLACK, J., proceeded on the theory that the President is without power to seize private property, even though an emergency exists. While four other Justices (FRANK- FURTER, DOUOLAS, JACKSON, and BURTON), concurred in the Court's opinion, they also wrote separate opinions, which, as stated by FRANKFURTER, J., show differences in attitude to the basic constitutional principles involved. The lack of constitutional authority supporting the President's action was empha- sized, not only in the Court's opinion, but also in the concurring opinion of DOUOLAS, 3. "On the other hand, the emphasis of the concurring opinions of FRANKFURTER, JACKSON, and BURTON, JJ., is on the fact that whatever the President's inherent power to seize private property to meet an emer gency may be, he was precluded from exercising such power in the present case by specific legislation designed to meet the emergency confronting him. "CLARK, J., concurred in the result, holding that, in the absence of action by Congress to deal with the type of crisis confronting the President, his independent power to act turns upon the gravity of the situa- tion confronting the nation, but that, when Congress has laid down specific procedures to deal with such a crisis, the President must follow these procedures, and that hi the present case, the President had not availed himself of his authority under the Selective Service Act of 1948 to seize plants which fail to produce goods required by the armed forces. VINSON, CH. J., with the concurrence of REEO and MINTON, JJ., dissented. They upheld the seizure as an appropriate method, not prohibited by the Labor Management Relations Act or any other act of Con- gress, of faithfully executing and preserving the defense program enacted by Congress, until the latter could take appropriate action."
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The Government's position was that, in seizing the steel mills, the President "• * * was acting within the aggregate of his consti- tutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States." 67
Rendering the opinion of the Court, Mr. Justice Black stated:
• * * It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive power shall be vested in a President • * *"; that "he shall take Care that the Laws be faithfully executed"; and that he "shall be Commander in Chief of the Army and Navy of the United States."
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military com- manders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forcss has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.
Nor can the ssizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nr equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. • * *" After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be exe- cuted in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a Government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.
It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof."
The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand • * *.68
In a concurring opinion, Mr. Justice Frankfurter stated that where Congress had acted the President was bound by the enactment; and that the leeway of the President is in that area of constitutional author-
67 343 U. S. 582.
68 343 U. S. 687-589.
[[31 EXECUTIVE ORDERS AND PROCLAMATIONS 31
ity where the President has acted with the knowledge of Congress to preserve the right of Congress to act. He put it this way:
• * * Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that "he shall take Care that the Laws be faithfully executed • * *" Art. 2, sec. 3. The nature of that authority has for me been comprehensively indicated by Mr. Justice Holmes. "The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." Myers v. United States, 272 U. S. 52, 177, 71 L. ed. 160, 191, 47 S. Ct. 21. The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to undefined provisions in the frame of our government.
To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give mean- ing to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive power" vested in the President by sec. 1 of Art. 2.
Such was the case of United States v. Midwest Oil Co., 236 U. S. 459, 59 L. ed. 673, 35 S. Ct. 309. The contrast between the circumstances of that case and this one helps to draw a clear line between authority not explicitly conferred yet authorized to be exercised by the President and the denial of such authority. In both instances it was the concern of Congress under express constitutional grant to make rules and regulations for the problems with which the President dealt. In the one case he was dealing with the protection of property belonging to the United States; in the other with the enforcement of the commerce clause and with raising and supporting armies and maintaining the Navy. In the Midwest Oil Case lands which Congress had opened for entry were, over a period of 80 years and in 252 instances, and by Presidents learned and unlearned in the law, temporarily withdrawn from entry so as to enable Congress to deal with such withdrawals. No remotely comparable practice can be vouched for execu- tive seizure of property at a time when this country was not at war, in the only constitutional way in which it can be at war • * * M
Mr. Justice Douglas stated in concurring:
• * * If we sanctioned the present exercise of power by the President, we would be expanding Article 2 of the Constitution and rewriting it to suit the the political conveniences of the present emergency. Article 2 which vests the "executive Power" in the President defines that power with particularity. Article 2, sec. 2 makes the Chief Executive the Commander in Chief,of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. Article 2, sec. 3 provides that the President shall "from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recom- mend and that it is the function of the Congress to legislate. Article 2, sec. 3 also provides that the President "shall take Care that the Laws be faithfully executed." But as Mr. Justice Black and Mr. Justice Frankfurter point out the power to execute the laws starts and ends with the laws Congress has enacted • * * 70
Mr. Justice Jackson, a former Attorney General, devoted his con- curring opinion to a broad review of Presidential power under the
69 343 U. S. 610-611.
70 343 U. S. 632-633.
[[32 EXECUTIVE ORDERS AND PROCLAMATIONS
Constitution. Referring by inference to his former status as the President's legal adviser he stated:
• * * That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant.
The tendency is strong to emphasize transient results upon policies—such as wages or stabilization—and lose sight of enduring consequences upon the balanced power structure of our Republic • * *.71
He characterized Presidential powers as follows:
• * * Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat oversimplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or im- plied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. • * * 72
Apropos the President's constitutional powers relied upon in the Government's argument, the following excerpts from Justice Jackson's opinion cover some of the highlights:
• * * The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, "The executive Power shall be vested in a President of the United States of America." Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: "In our view, this clause constitutes a grant of all the executive powers of which the Government is capa- ble." If that be true, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.
The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were
71 343 U. S. 635, Justice Jackson in a footnote referred to the debate between Hamilton and Madison. See discussion concerning Washington's proclamation of neutrality, supra.
72 343 U. S. 635-638.
[[33 EXECUTIVE ORDERS AND PROCLAMATIONS 33
no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated.
The clause on which the Government next relies is that "The President shall be Commander in Chief of the Army and Navy of the United States • * *." These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it begins or ends. It undoubtedly puts the Nation's armed forces under presi- dential command. Hence, this loose appellation is sometimes advanced as sup- port for any presidential action, internal or external, involving use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy • * *.73
There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander- in-Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the Pres- ident of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules of the "Govern- ment and Regulation of land and naval Forces," by which it may to some unknown extent impinge upon even command functions.
That military powers of the Commander-in-Chief were not to supersede repre- sentative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions • * *." Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy. Congress, fulfilling that function, has authorized the President to use the army to enforce certain civil rights. On the other hand, Congress has forbidden him to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress • * *." '«
• * * The third clause in which the Solicitor General finds seizure powers is that "he shall take Care that the Laws be faithfully executed • * *" That authority must be matched against words of the Fifth Amendment that "No person shall be • * * deprived of life, liberty or property, without due process of law • * *" One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.
The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.
Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. "Inherent" powers, "implied" powers, "inci- dental" powers, "plenary" powers, "war" powers and "emergency" powers are used, often interchangeably and without fixed or ascertainable meanings.
The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy.
" 343 U. S. 640-643.
" 343 U. S. 643-645.
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While it is not surprising that counsel should grasp support from such unadjudi- cated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test • * * 75
Finally, Justice Jackson called attention to the fact that emergencies require action and, that while Congress has, under the Constitution, ample authority to act in the interests of the Nation, the Congress must act to prevent that very power from being usurped.
• * * But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.
The essence of our free Government is "leave to live by no man's leave, under- neath the law"—to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. • * * 76
Mr. Justice Clark, concurring, thought the case was controlled by the Court's early opinion in Little v. Barreme.77
History shows that the Presidency is an extremely powerful office, if only by virtue of the powers and resources that are necessarily placed at the President's disposal through legislation and appropriations by the Congress. The legality of some Presidential actions may be doubtful but the fact is that the President's position may impel and enable him to act while at the same time the greater legal authority under the Constitution may reside in the Congress.
Where Congress by inaction leaves a vacuum, the natural tendency may be for the President to fill that vacuum by executive action. The Congress may thus be required to legislate to prevent action by the executive in areas where Congress has the constitutional authority to act.
75 343 U. S. 646-647.
76 343 U. S. 664-655.
77 See p. 17, supra. Justice Clark did reiterate his previous opinion as Attorney General concerning "inherent" power but qualified it with the condition that Congress must have failed to act. Justice Clark stated:
" * * * In my view—taught me not only by the decision of Mr. Chief Justice Marshall in Little v. Barreme, but also by a score of other pronouncements of distinguished members of this bench—the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be necessary to the very existence of the Constitution Itself. As Lincoln aptly said, ' [is] it possible to lose the Nation and yet preserve the Constitution?' In describing this authority I care not whether one calls it 'residual', 'inherent,' 'moral,' 'implied,' 'aggregate,' 'emergency,' or otherwise. I am of the conviction that those who have had the gratifying experience of being the President's lawyer have used one or more of these adjectives only with the utmost of sincerity and the highest of purpose.
"I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that In the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand. • * * " (343 U. S. 662).
See also in this connection the analysis by Prof. Charles S. Collier reprinted in H. Doc. 443, 84th Cong., at pp. 72-75.
[[37 EXECUTIVE ORDERS AND PROCLAMATIONS 37
TABULATION OF EXECUTIVE ORDERS ISSUED IN THE PERIOD DECEMBER 29, 1945-SEPTEMBER 1, 1956
A. PRIOR HISTORY OF THE EXECUTIVE ORDER
Beginning in 1789, with George Washington, Presidents have issued orders which can be described as Executive orders. There has been no set form with which orders should comply. Often a President would write “Approved,” “Let it be done,” or “I approve the accompanying recommendation and order that it be effected,” or similar words, at the end of a recommendation drawn up by a Cabinet member. Sometimes an Executive order was signed by a secretary at the order of the President. An example is Executive Order 113, February 8, 1899, when J. A. Porter, secretary to President McKinley, signed an order for flying the flag at half-mast during the removal of the remains of John A. Rawlins to Arlington National Cemetery.
Another instance of informality is that of two notes, of April 12, 1851, and February 8, 1853, written by President Millard Fillmore on different parts of a large colored manuscript map, 45 by 69 inches in size, showing a “Proposed Method of Laying Out the Public Grounds at Washington, February 1851.” The notes approved portions of the plan. Technically, these notes might be construed as Executive orders.
Other orders were signed by the Secretary of State in the absence of both the President and the Vice President, as in the case of Executive Order 7, signed by Secretary of State William H. Seward on July 28, 1868. It certified the 14th Amendment to the Constitution as in effect, and ordered publication. Others were orders signed by department heads, and they purported to have the same effect as if they had been signed by the President. Thus Secretary of War William Howard Taft signed Executive Order 348-A of August 29, 1905, which defined the boundaries of a proposed military reservation on reclaimed harbor land at Manila, Philippine Islands.
Even as late as 1906, Executive orders were treated with the utmost informality. Executive Order 396 of that year, for example, is not even dated. It is simply an endorsement on a letter written by Senator Knute Nelson, of Minnesota, making a certain woman eligible for reinstatement as a classified laborer in the Department of Agriculture.
The first administrations used Executive orders for such purposes as the withdrawal of public lands for Indian use, for military and naval functions, and for the erection of lighthouses, as well as for the establishment, transfer, and abolition of land districts and land offices and supplementing of acts of Congress. Later on, the device of the Executive order was employed for the creation, modification, or disposition of forest, oil, gas, or coal reserves and the withdrawal of public lands from sale or entry. It was also used for expansion of the civil service, allocations of direct Government funds for possessions
[[36 EXECUTIVE ORDERS AND PROCLAMATIONS
acquired during the Spanish-American War, and extraordinary measures during periods of emergency like depression and war.
In World War I Executive orders set up agencies like the War Trade Board, the Grain Corporation, the Committee on Public Information, and the Food Administration, but the real heyday of the Executive order came in the early 1930's. Reorganization of executive departments and independent offices was undertaken, codes of fair competition under the National Industrial Recovery Act were approved, the bank holiday was ended, and much of the administrative organization for farm loans and agricultural relief set up. Executive orders also created the National Labor Board and the War Labor Board.
With the devolution of duties from the top executive level to lower levels, especially during World War II, the need for Executive orders declined. The passing of the depression and war emergencies contributed to this trend.
The following table of the number of Executive orders issued since 1914 reveals the nature of this trend. The figures refer to orders in the numbered series only:
1914 242 1929 238 1944 97
1915 186 1930 267 1945 165
1916 211 1931 246 1946 148
1917 295 1932 213 1947 99
1918 281 1933 654 1948 111
1919 201 1934 467 1949 61
1920 174 1935 383 1950 104
1921 226 1936 264 1951 117
1922 173 1937 255 1952 104
1923 179 1938 248 1953 89
1924 188 1939 286 1954 72
1925 271 1940 308 1955 64
1926 188 1941 383 1956 24
1927 237 1942 289
1928 233 1943 66
The peak year is 1933, the first year of the New Deal, when the power of the President was expanded to an unprecedented degree to cope with the depression. The low year in this period is 1956.
A further decline in the number of Executive orders can be traced to an act of October 31, 1951 (3 U.S.C., sec. 301, ch. 655, sec. 10, 65 Stat. 713), which authorized the head of any agency in the executive branch to perform without action by the President,
(1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized to perform only with or subject to the approval, ratification, or other action of the President * * *
Orders and directives of agency heads, in large part, took the place of Executive orders emanating directly from the President.
One result of this statute was to cut down markedly the number of orders which were of a purely private and special nature. The Presidential practice of exempting certain named civil-service employees from compulsory retirement provisions stopped with Executive Order 10530 of May 10, 1954, which transferred the responsibility to the Civil Service Commission.
[[37 EXECUTIVE ORDERS AND PROCLAMATIONS 37
B. NUMBERING OF EXECUTIVE ORDERS
The earliest Executive orders were not numbered. Numbering seems not to have been instituted until 1907, when the Department of State started to assign numbers to all Executive orders which it had on file. Back orders later added were given in-between numbers, while orders which did not find their way to the Department of State were never numbered at all.
The order which was designated Executive Order 1 was issued by the authority of President Abraham Lincoln on October 20, 1862, and concerned the establishment of military courts in Louisiana. The last one issued in 1956 is Executive Order 10693, December 22, 1956, concerning the appointment of an emergency investigating board under the Railway Labor Act.
Although Executive orders were supposed to be deposited with the Department of State until 1935, a majority of the earlier orders were, in fact, never deposited. They were simply filed away in the agencies themselves, and were soon forgotten. Some orders were not numbered. Some of the unnumbered orders, when viewed in retrospect, seem to have been of great importance. An unnumbered Executive order of April 7, 1917, for example, issued on the day after war was declared on Germany, allowed the removal of any Government employee when his retention was deemed inimical to the public welfare.
Because of this lack of system in filing and in custody, no one knows exactly how many Executive orders have ever been issued. It is quite possible that some, even many, older ones, today lie in dusty files, untouched for decades. Some may be in unexplored Presidential papers. Former Secretary of the Interior Harold L. Ickes once estimated the number of unnumbered Executive orders as 15,000, while others have placed the figure as high as 50,000. Occasionally an unnumbered and forgotten Executive order is uncovered at this late date.
Now, as required by the Federal Register Act, every Executive order must be filed with the Division of the Federal Register, rather than the Department of State, and it is the Division which assigns numbers. The volume of unnumbered orders was substantially reduced when the Department of State began the assignment of numbers in 1907, and there have been virtually no unnumbered Executive orders in recent years.
Numbers run consecutively. In 1951, a proposal to change the numbering of Executive orders and proclamations to an annual series was abandoned, largely as the result of opposition from the Department of Justice and the National Archives.
C. PUBLICATION OF EXECUTIVE ORDERS
Executive orders now appear in the Federal Register and in bound volumes of title 3 of the Code of Federal Regulations, an annual publication.
Originally, as has been pointed out, Executive orders were issued in an unsystematic manner, and there was no complete central file of
[[38 EXECUTIVE ORDERS AND PROCLAMATIONS
all Executive orders. In 1895 there was started the “Documentary Catalog,” which listed every Executive order printed in slip form (i.e., as a single printed sheet) by the Government Printing Office, whether included in the numbered series or not, but there was no central publication or codification.
The Federal Register Act of 1935 (44 U.S.C. 301, et seq.) finally brought some order out of the chaos into which Executive orders had fallen. That act provided “for the custody of Federal proclamations, orders, regulations, notices, and other documents, and for the prompt and uniform printing and distribution” of them. Primary duty for custody was placed on the Archivist of the United States. With the Public Printer he was to undertake prompt and uniform printing and distribution of the documents referred to in the act, including Executive orders.
The Archivist thereupon established in the National Archives a new division entitled the Division of the Federal Register, whose Director was to be appointed by the President and who was to carry out the provisions of the act under directions of the Archivist. A Permanent Administrative Committee was also set up under the Federal Register Act, consisting of the Archivist or Acting Archivist as chairman, an officer of the Department of Justice designated by the Attorney General, and the Public Printer or Acting Public Printer.
The first Executive order to be published in the Federal Register was 7316 of March 14, 1936, which concerned a bird refuge in South Carolina.
The texts of numbered Executive orders, and a few unnumbered ones, issued prior to March 14, 1936, have been compiled in a 26-volume set now in the Library of Congress. Although the numbered series starts in 1862, the set contains two or three earlier orders that have never received numbers.
Reprints of the text of Executive orders for the prior year are published annually as supplements to title 3 of the Code of Federal Regulations. Each supplement issued at the present time is a continuation of a series of such reprints which began in the 1938 Supplement to the Code, with Executive Order 7906 of June 6, 1938, as the first entry. The series was cumulated in Book 1 of the Cumulative Supplement to the Code of Federal Regulations in 1943, and until 1948 Executive orders might be found in annual supplements, along with documents of a more general nature. Beginning hi 1948, Executive orders, proclamations, and other Presidential documents have been published in separate volumes as title 3.
No up-to-date revision of Executive orders, as distinguished from codification, exists, and no effort is being made to present a codification clear of orders which for one reason or another are not in force and effect today. A person interested, for example, in ascertaining whether an Executive order of 1930 is still of application is obliged to trace that order through all subsequent compilations. There is no table or digest to which he can turn, to learn quickly and conveniently if the order still has the force of law.
The Index Section of the Federal Register Division in the National Archives maintains a highly serviceable card index of Executive orders that have been expressly revoked, superseded, modified, extended,
[[39 EXECUTIVE ORDERS AND PROCLAMATIONS 39
or amended by subsequent Executive orders. Because of staff limitations, it has had to leave untouched the vast field of implied revocations, supersessions, modifications and amendments, and all changes wrought by judicial decision and executive documents other than Executive orders. It has also had to ignore largely the effect of legislative enactments on Executive orders. So far as can be learned, results of the activities of this office have never been published.
No overall index or digest of executive orders exists. The Work Projects Administration Historical Records Survey published hi 1944 a two-volume list and index of Executive orders in the numbered series, running up to Executive Order 8030, December 29, 1938. It is entitled, “Presidential Executive Orders.” In 1943 the New Jersey Historical Records Survey of the Work Projects Administration published its “List and Index of Presidential Executive Orders,” covering the unnumbered series from 1789 to 1941. Neither gives texts or complete summaries.
In 1955 the Legislative Reference Service of the Library of Congress published a “Table of Executive Orders Appearing in the Federal Register and the Code of Federal Regulations.” It shows only the volume and page numbers in the Federal Register and the years and page numbers in the code. It contains no titles, texts, or digests.
D. AUTHORITIES CITED IN EXECUTIVE ORDERS
This survey has covered the authorities cited by Executive orders as justification for their issuance. As will be seen from the table at the end of this report, virtually all Executive orders have cited some kind of authority. Those orders which have not cited authority (for example, Executive Order 10671, of June 26, 1956, directing that flags be flown at half-mast in honor of the late Adm. Ernest J. King) are of a transitory and noncontroversial nature.
A very large number of Executive orders cite only broad grants of authority, such as “By virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the Armed Forces of the United States,” or simply “By virtue of the authority vested in me as President of the United States.” Forms such as these appear to have been used when there was no express statutory authority, or when express statutory authority existed and it was desired to use a catch-all expression. In a very few cases the Charter of the United Nations was given as authority.
No complete analysis of authorities cited has ever been made. The Department of Justice in 1944 made a survey of Executive orders and proclamations which had been approved by the Attorney General between July 1, 1944, and December 31, 1944, and found that in this period 99 proposed Executive orders, proclamations, and public-land orders had been approved. Of these, 71 were authorized under, or chiefly under, express statutory provisions and 28 under the general power of the President as Chief Executive or Commander in Chief of the Army and Navy; 55 related to internal affairs of the Government and 44 to the public generally or to foreign matters. From Executive orders issued during the entire 10 year period covered by the present tabulation, it is apparent from the table below that a somewhat smaller percentage of orders rely exclusively upon the general powers of the
[[40 EXECUTIVE ORDERS AND PROCLAMATIONS 89168—57 4
President. An analysis of the 1,013 Executive orders included in the present tabulation shows citations of authorities as follows:
A. Orders citing statutory authority
Authorities cited: Statute. Number of order* in which cited 487 As President; statute 206 As President; Constitution and laws; statute 51 As President; Commander in Chief; statute 39 As President; Constitution and laws; Commander in Chief; statute__ 36 Constitution and Laws; statute 21 As President; Constitution and law (or statute); treaties of the United States, including the Charter of the United Nations 3 Commander in Chief; statute 2 Statute and the applicable provisions of law 4 Total citing statute.. 849
B. Orders not citing statutory authority
Authorities cited: As President As President; Constitution and laws; Commander in Chief. As President; Commander in Chief __ As President; Constitution and laws Constitution and laws Sec. 2 of art. II of the Constitution . No authority cited Number of orders in which cited 83 28 28 17 4 1 3 Total. 164
E. CLASSIFIED EXECUTIVE ORDERS
Thirty-one confidential Executive orders have been issued since September 14, 1915, when Executive Order 2245½ was signed by President Woodrow Wilson. Most of these have been declassified, usually years after the event, have been published, and are today accessible to the public. Thus, President Franklin D. Roosevelt's Executive Order 9153-A, of April 30, 1942, which withdrew certain public lands in Alaska for use of the War Department for military purposes, was declassified on June 27, 1946, and its text is found in the 1946 Supplement to the Code of Federal Regulations.
Three confidential orders were issued in the period covered by this survey:
10026-A, January 5, 1949.
10369-A, July 1, 1952.
10571-A, October 26, 1954.
Since an Executive order is an act of the President himself, the President makes the final decision as to classification, though a recommendation as to classification is made by the agency where the suggestion and draft of the Executive order originated. By the same token, the President may declassify an Executive order, or authorize declassification by someone else. For example, Executive Order 9153-A, referred to above, had its confidential status released by a letter of the Secretary of War dated June 27, 1946; the order itself had stated that it should “not be made public in any other manner except upon prior authorization by the Secretary of War.”
By its very nature, a confidential Executive order cannot be published, yet such instruments must be numbered. In the case of the three Executive orders covered by this study, the White House called
[[41 EXECUTIVE ORDERS AND PROCLAMATIONS 41
the Division of the Federal Register and inquired what the last number of the numbered series was. Upon receiving this information, the White House would assign an in-between number, which accounts for the letter “A” at the conclusion of a series of digits.
Original copies of all unclassified Executive orders are kept at the National Archives, but of the three confidential orders mentioned above, the original of 10026-A is in the custody of the Department of State, that of 10369-A is in the White House files, and that of 10571-A is kept by the Office of Defense Mobilization. The last two named originated in the Interdepartmental Radio Advisory Committee.
It would appear that if confidential Executive orders were issued now they would be governed by Executive Order 10501, of November 5, 1953, which prescribes regulations for the classification of documents.
“Confidential” is the lowest grade in classification. No higher grades of classification were discovered in this survey.
F. TABLE OF EXECUTIVE ORDERS, DECEMBER 29, 1945, TO SEPTEMBER 1, 1956
This table embraces the titles, numbers, and dates of all Executive orders in the numbered series, including confidential and unpublished ones, from December 29, 1945, the date of the first order appearing in the 1946 Supplement, title 3 of the Code of Federal Regulations, to September 1, 1956. It is the first such complete listing of all Executive orders for the period by title (published and not published, classified and unclassified).
It also indicates the authority cited in each Executive order for its own issuance, and shows the present status, insofar as could be ascertained, of each order. As will be seen from a perusal of the table, very few Executive orders have remained in full force and effect without modification of some kind.
The table does not provide a definitive coverage of implied or partial revocations, supersessions, or amendments by other Executive orders, proclamations, other acts of the Executive or agency heads acting under Presidential authority, legislative enactments, or judicial decision. Only in a few of the most obvious cases, and instances of great public interest in the subject matter, have implied changes been noted. A project to determine which of all Executive orders are still in effect would be one beyond the scope of this study.
Executive orders in the following categories have been listed in lower case type, without symbol indicating status or disposition:
1. Executive orders which by their own express statement are transitory and now obsolete, or obsolete due to changed conditions, or concerning an agency which does not exist, or obsolete for other reasons.
2. Executive orders which are applicable to one or more specifically named persons only.
3. Executive orders which are applicable to only one transaction, such as the transfer of real estate or of functions of an agency, which has already been executed.
4. Executive orders which claim as statutory authority provisions which are no longer in effect, in either original or amended form.
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5. Executive orders which terminate a general class of orders, regulations, or directives.
6. Executive orders which terminate an agency with or without transfer of its functions.
7. Executive orders which expressly revoke earlier Executive orders.
8. Executive orders which have been expressly amended by other Executive orders.
In categories other than the above, listing has been made in small capitals indicating that these Executive orders were intended to have continuing effect and to be of more than limited applicability.
Authorities cited for Executive orders are noted in the appropriate column or footnotes.
Though the table reveals that many Executive orders have cited as authority statutes which are no longer in effect, it must be borne in mind that such orders are not necessarily void or obsolete. They may contain references to other authority which is a valid basis for the order and which is of equal or even superior significance to the cited statute. Furthermore, the wording in the cited but nonexistent statute may have been transferred to another place, with a different number and reference. Enough appears in the table, however, to show that in such cases citation of the old statute would not provide sufficient authority if the Executive order were drafted and issued today.
Wherever there has been doubt as to whether or not an Executive order is still in effect, the doubt has been resolved in favor of continued validity.
Many Executive orders cite as their authority title I of the Selective Service Act of 1948, 62 Statute 604, as amended. The United States District Court for the Southern District of California, Central Division, has ruled that the act might be called either the Selective Service Act or the Universal Military Training and Services Act. U. S. v. Sutter (127 F. Supp. 109 (1954)). This table therefore assumes that the two designations are interchangeable, though a 1951 amendment discarded the division of the act into titles and altered specific sections.
“As President” means that the Executive order has cited as legal justification authority as President of the United States; “Constitution and laws” means that the President has cited the general authority conferred upon him by the Constitution and laws of the United States; and “Commander in Chief” means that the President has cited his authority as Commander in Chief of the Armed Forces of the United States or Commander in Chief of the Army and Navy.
Where specific statutory authority has been cited, the word “Statute” or “Statutes” denotes this fact, and footnotes, found at the end of each year's Executive orders, refer to the statutes in point.
- Executive Order 10006, October 11, 1948, governing Executive orders does not define the term "Executive order."
- For a fundamental treatment of the powers of the President in this regard see James Hart, The Ordinance Making Powers of the President of the United States, Baltimore, the Johns Hopkins Press, 1925.