President based this order on his authority under "the Constitution and the laws of the United States of America." Congress, however, explicitly nullified this order by stating that "the provisions of Executive Order 12806 shall not have any legal effect." Since the President's authority in this situation was on tenuous grounds, there was little, if anything, that could prevent Congress from affecting his order.
Congress may also retroactively repeal the statutory authority in which the President based his executive order or proclamation. This would render any executive order or proclamation, issued after the date established by Congress, invalid.
Another means by which Congress may affect executive orders and proclamations based on statutory authority, or where there is concurrent authority, is to amend such language to include a sunset provision. With a sunset provision, Congress may extend the effective period of the necessary provision or let it lapse. If Congress lets the provision lapse, the President will no longer have the authority, with regards to this statute, to act. An example of using a sunset provision involved the National Council on Indian Opportunity (NCIO). The NCIO was established by Executive Order 11399 and later amended by Executive Order 11688. In 1969, Congress appropriated funds to continue the NCIO for five years at which time it would terminate unless unauthorized by Congress. The NCIO is no longer in existence.
- Id. Although Justice Jackson's concurrence in Youngstown creates a standard primarily for the judiciary, it is indicative of the President's ability to stand behind an executive order. In a case, such as this one, where the President relies solely on his constitutional powers, his power is at is lowest ebb. There may be instances where the President's authority under the Constitution is truly strong and exclusive which would require a constitutional amendment in order to alter such authority. However, in this situation, the President relied upon very broad language in describing his authority to issue Executive Order 12806.
- P.L. 103-43, 107 Stat 133, § 121.
- See Youngstown, supra n. 19 (clause 3).
- Although not involving executive orders or proclamations, a good example of using a sunset provision to oversee the President's authority to act is with reorganization authority. On various occasions, Congress has given the President the authority to reorganize agencies through the use of reorganization plans. 5 U.S.C. § 903. The President was compelled to abide by certain requirements which included presenting the plan to Congress which would then vote, within a specified amount of time, to approve the plan as a whole. Sometimes a failure to vote indicated acceptance of the President's plan. However, this reorganization authority was effective until a specified date unless reauthorized. 9 U.S.C. § 905(b). The last day this authority was in effect was December 31, 1984. Since then no President has had the authority to present reorganization plans to Congress.
- 33 Fed. Reg. 4245, as amended by Exec. Order No. 11551, 35 Fed. Reg. 12885; Exec. order No. 11688, 37 Fed. Reg. 25815.
- 37 Fed. Reg. 25815 (Dec. 1, 1972).
- P.L. 91-125, 83 Stat. 220, 25 U.S.C. nt. prec. 1.