Page:CRS Report 98-611.djvu/2

CRS-2

contender for the position of first executive order, dated March 10, 1863, and concerning soldiers absent without leave, appeared in the United States Statutes at Large.^[1] Furthermore, the instrument selected as the second executive order, dated April 4, 1865, and concerning rewards for the arrest of felons from foreign countries committing felonies in the United States, was signed by Secretary of State William H. Seward rather than the President.^[2] The sixth executive order, dated July 20, 1868, and concerning the ratification of the Fourteenth Amendment to the Constitution, was also signed by Secretary Seward and has the form of a proclamation. The same was true of the seventh executive order, dated July 28, 1868, certifying the ratification of the Fourteenth Amendment and ordering its publication. Indeed, both of these last two instruments appeared in the Statutes at Large as proclamations.^[3] Such were the confused beginnings of bringing order out of the chaos surrounding the issuance of presidential directives.

As happened during the years prior to the Lincoln Administration, a President might inscribe upon a sheet of paper words establishing new policy, decreeing the commencement or cessation of some action, or ordaining that notice be given to some declaration. Dated and signed by the Chief Executive, the result was a presidential directive. Such instruments have come to be known by various names, and some have prescribed forms and purposes. Executive orders and proclamations are probably two of the best known types, largely because of their long-standing use and publication in the Federal Register and the Code of Federal Regulations (CFR). Others are less familiar, some because they are cloaked in official secrecy. There is, as well, the oral presidential directive, the sense of which is captured in an announcement which records what the President has prescribed or instructed.

Introduction

This report provides an overview of the different kinds of directives that have been utilized primarily by twentieth century Presidents. It presents background on their historical development, accounting, use, and effect. Turning to the last of these considerations before discussing each type of presidential directive, it may be generally said that most of these instruments establish policy, and many have the force of law. Policy, in this context, is understood as a statement of goals or objectives which a President sets and pursues. Whether these directives have the force of law depends upon such factors as the President’s authority to issue them, their conflict with constitutional or statutory provisions, and their promulgation in accordance with prescribed procedure. Indeed, as history has shown, presidential directives may be challenged in court or through congressional action. In the latter case, however, difficulties may arise if Congress, through legislative action, attempts to supersede or nullify a presidential directive issued, in whole or in part, pursuant to the Executive’s constitutional authority, the result being a possible infringement by one constitutional branch upon the powers of another. Congress has been more

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1. See 13 Stat. 775.
2. See 13 Stat. 776.
3. See 15 Stat. 706, 708.