conflicts between agencies and OMB, and the appearance of improper influence over the review process.
Neither Executive Order 12866 nor, its predecessors, 12291 and 12498, have been directly challenged in the courts. Thus, it is difficult to say how much deference the courts would give to executive orders involving political issues. However, the courts may treat political issues in a manner similar to executive orders involving social or economic aspects of society.
Therefore, it appears that the current standard of review for an executive order or proclamation includes Justice Jackson's tripartite test espoused in Youngstown with a determination of whether the executive order is closely related to the statute upon which it relies. The courts may also look at congressional intent when necessary. However, the courts may also base their determination upon the topic of the presidential instrument. As has been demonstrated, the courts are more likely to give deference to the President when the issue involves foreign affairs or national security than when they involve economic, political or social matters.
Congressional Oversight of Executive Orders and Proclamations
The previous discussion described the judiciary's role in determining whether the President has validly issued an executive order or proclamation pursuant to his authority. The next question is, what is Congress' role in executive orders or proclamations? The role that Congress may play varies with the authority upon which the President bases his executive order or proclamation. As discussed in Justice Jackson's concurrence in Youngstown, the President's authority to issue executive orders and proclamations can be broken down into three categories. Briefly stated, these three categories include executive orders and proclamations that: (1) are issued pursuant to an express or implied authorization of Congress; (2) are based upon undefined powers that lay in a "zone of twilight" where the President acts solely on the basis of his independent power and Congress has not spoken; and (3) are incompatible with the expressed or implied will of Congress, and thus rely solely upon his constitutional authority. The standard propounded in Youngstown is primarily applicable to the judiciary when reviewing the validity of a presidential action. This standard does not necessarily reflect Congress' strong ability to affect presidential action.
Unless it is constitutionally based, Congress may directly affect a presidential action by either amending, nullifying, repealing revoking, or terminating the authority on which it is founded. The most recent example of Congress nullifying an executive order appears to have involved Executive Order 12806. Executive Order 12806, issued by President Bush, directed the Secretary of the Department of Health and Human Services to establish a human fetal tissue bank for research projects. The
- See Exec. Order No. 12866 § 6(b), supra n. 61.
- 3 CFR, 1992 Comp., p. 302 (March 19, 1992).