[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
EXECUTIVE ORDERS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
LEGISLATIVE AND BUDGET PROCESS
of the
COMMITTEE ON RULES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
THE IMPACT OF EXECUTIVE ORDERS ON THE LEGISLATIVE PROCESS:
EXECUTIVE LAWMAKING?
__________
OCTOBER 27, 1999
__________
Printed for the use of the Committee on Rules
U.S. GOVERNMENT PRINTING OFFICE
62-209 WASHINGTON : 2000
COMMITTEE ON RULES
DAVID DREIER, California, Chairman
PORTER GOSS, Florida JOHN JOSEPH MOAKLEY, Massachusetts
JOHN LINDER, Georgia MARTIN FROST, Texas
DEBORAH PRYCE, Ohio TONY P. HALL, Ohio
LINCOLN DIAZ-BALART, Florida LOUISE M. SLAUGHTER, New York
DOC HASTINGS, Washington
SUE MYRICK, North Carolina
PETE SESSIONS, Texas
THOMAS REYNOLDS, New York
Vince Randazzo, Staff Director
Eric Pelletier, Deputy Staff Director
George C. Crawford, Minority Staff Director
David Pomerantz, Deputy Minority Staff Director
Bryan H. Roth, Office and Systems Manager
------
Subcommittee on Legislative and Budget Process
PORTER GOSS, Florida, Chairman
DEBORAH PRYCE, Ohio MARTIN FROST, Texas
DOC HASTINGS, Washington JOHN JOSEPH MOAKLEY, Massachusetts
SUE MYRICK, North Carolina
DAVID DREIER, California
Wendy Selig, Staff Director
Kristi Walseth, Minority Staff Director
C O N T E N T S
----------
October 27, 1999
Page
Opening statement of the Hon. Porter J. Goss, chairman of the
Subcommittee on Legislative and Budget Process................. 1
Opening statement of the Hon. David Dreier, chairman of the
Committee on Rules............................................. 5
Opening statement of the Hon. Deborah Pryce, a member of the
Subcommittee on Legislative and Budget Process................. 6
Statement of:
Cox, Douglas, Principal Deputy Assistant Attorney General,
U.S. Department of Justice, 1992-1993; Partner, Gibson,
Dunn and Crutcher LLP (prepared statement p. 9)............ 7
Kinkopf, Neil, Special Assistant, Office of Legal Counsel,
U.S. Department of Justice, 1993-1997; Professor of Law,
Georgia State University (prepared statement p. 15)........ 12
Bedell, Robert, Administrator, Office of Federal Procurement
Policy, Office of Management and Budget, 1986-1988; Deputy
and Acting Administrator, Office of Information &
Regulatory Affairs, 1983-1986; Deputy and Acting General
Counsel, 1973-1983; President, RPB Company (prepared
statement p. 23)........................................... 19
Sargentich, Tom, Senior Attorney Adviser, Office of Legal
Counsel, U.S. Department of Justice, 1978-1983; Professor
of Constitutional and Administrative Law, Washington
College of Law, American University (prepared statement p.
30)........................................................ 28
Olson, William, Co-Author, CATO Study Entitled ``Executive
Orders and National Emergencies''; Attorney-At-Law, William
Olson P.C., McLean Virginia (prepared statement p. 132).... 44
Mosley, Ray, Director, Office of the Federal Register,
National Archives and Records Administration (prepared
statement p. 138).......................................... 137
.............................................................
Additional information submitted for the record:
Policy Analysis: Executive Orders and National Emergencies,
How Presidents Have Come to Run the Country by Usurping
Legislative Power, by William J. Olson and Alan Woll....... 46
Questions and answers submitted for the record:
Cox, Douglas................................................. 144
Kinkopf, Neil................................................ 146
Bedell, Robert............................................... 151
Sargentich, Tom.............................................. 155
Olson, William............................................... 158
Mosley, Ray.................................................. 159
EXECUTIVE ORDERS
----------
WEDNESDAY, OCTOBER 27, 1999
House of Representatives,
Subcommittee on Legislative and Budget Process,
Committee on Rules,
Washington, DC.
The subcommittee met, pursuant to call, at 10:00 a.m., in
room H-313, the Capitol, Hon. Porter J. Goss (chairman of the
subcommittee) presiding.
Mr. Goss. The subcommittee will come to order. I want to
advise all members and witnesses before we begin that the audio
from today's hearing will be placed on the Rules Committee Web
site, which is why we are using these microphones. And also
advise that the full transcript and witness testimony will be
available on the Web site.
Having said that, I want to welcome our witnesses to what I
hope will be an important original jurisdiction hearing of the
Subcommittee on Legislative and Budget Process. Our
subcommittee's jurisdiction, which is most often associated
with topics related to the budget process, also includes
responsibility for reviewing matters of concern about the
relationship between the legislative and the executive
branches, a matter of some concern inside the Beltway and,
hopefully, outside the Beltway, too.
In my relatively short tenure on this committee, I recall
that my predecessor in this position, the distinguished former
member from South Carolina, Butler Derrick, used the
jurisdiction of our subcommittee to consider the important
issue of the pocket veto.
In that tradition, we are here today to consider the
subject of executive orders and the manner in which they impact
on the legislative process. Executive orders are, at their
simplest, meant to be instructions by the President to his
subordinates. In their most benign form, they are management
tools, means by which a chief executive can establish
conformity and consistency across the many far-flung elements
of his or her administration. Yet things have rarely been that
simple in the realm of Federal governance.
Since the first executive order was issued in 1789 by
President George Washington, there have been occasions where
orders issued by the President have engendered public debate
and controversy, sometimes leading to congressional or judicial
reaction. We have seen this trend increase in recent decades as
the scope and reach of the Federal Government have broadened,
increasing the probability that policies implemented across the
entire executive branch end up impacting the lives of the
citizenry. Some have termed the active use of executive order
``executive lawmaking''.
It also appears to me that we have encountered significant
creativity and ingenuity on the part of Presidents to use
executive orders to advance their agendas when the legislative
process has proven unwilling or unable to yield the desired
results. Members may recall that as Ronald Reagan was preparing
the take office as President in 1981 the Heritage Foundation
published a book entitled, quote, ``Mandate for Leadership,''
unquote, which included a list of proposals to implement more
conservative policies through executive order. That list
comprised 22 areas of policy, covering a broad range of issues
and controversies.
On the flip side of the ideological spectrum, we can note
that it was a senior advisor to President Clinton who summed up
the tremendous power of the President to make policy via
executive order when he said, and I quote, ``Stroke of the pen,
law of the land, kind of cool,'' unquote.
Additionally, a by-product of modern technology appears to
have been greater public awareness of and interest in the
unilateral actions taken by the executive. Today we have cable
television, talk radio and the Internet as a means to provide
unprecedented access to a wealth of information for the average
citizen with an interest. I have found in recent years that
more and more of the people that I represent in southwest
Florida are contacting me to discuss concerns with executive
orders, and indeed I would say that every time I go to a town
hall or radio talk show we now have questions about executive
orders. So it is something that has captured the imagination of
the people we serve.
When you consider the topic of executive orders, there are
almost as many subject areas possible under this heading as
there are policies of the Federal Government, and that's a lot.
Executive orders have touched upon a broad range of issue
areas, and I know that we will get into some of those specific
cases as we proceed today.
I should point out that there is a whole category of
executive orders relating to implementing policies for our
national security, an area of particular concern to me. Today,
these are known as presidential decision directives, or PDDs,
and they are mostly classified due to their sensitive content.
I wish to assure my colleagues that as chairman of the
Intelligence Committee I know that congressional oversight in
this area is vigorous and thorough, and in fact we spend an
awful lot of time focused on those PDDs. We have chosen for a
starting point in today's hearing the broader view.
We are looking at the process of executive orders: Where do
they come from and under what authority are they issued? What
are the procedures undertaken by the various elements of the
executive branch with responsibility for executive orders? What
have the trends been over recent history with respect to
executive orders? To what extent does the public need to know
or even care about executive orders? What is the proper role of
the Congress in guarding their legislative prerogatives? And
how well has Congress been doing in conducting oversight in
this area? Obviously there are additional questions, but these
are questions to guide our discussions today.
These are some of the questions that we have directed to
our witnesses, and I am grateful for their participation.
We will start off with a panel of experts. First, we'll
hear from Douglas Cox who is currently a partner at the law
firm of Gibson, Dunn and Crutcher and formerly was the
Principal Deputy Assistant Attorney General in the Office of
Legal Counsel at the Department of Justice under President
Bush.
Joining him on this panel is Neil Kinkopf, who until 1997
served as Special Assistant in the Office of Legal Counsel at
the Department of Justice and currently teaches law at Georgia
State University.
We also have Robert Bedell, whose career at OMB included
serving as Administrator of the Office of Federal Procurement
Policy, Deputy and Acting Administrator of the Office of
Information and Regulatory Affairs, and Deputy and Acting
Counsel of the OMB. Bob's tenure spanned 15 years and four
Presidents, and today he is the President of the RPB Government
Affairs Company.
Lastly on this panel we will hear from Tom Sargentich,
currently Professor of Constitutional and Administrative Law at
the Washington College of Law at American University. Tom
formerly served as a Senior Attorney Advisor in the Office of
Legal Counsel at the Department of Justice under Presidents
Carter and Reagan.
We will then hear from William Olson, who has just
completed a study for CATO on the issue of executive orders;
and we will conclude the hearing with a presentation by Raymond
Mosley, the Director of the Office of the Federal Register at
the National Archives and Records Administration. I am
particularly interested in this subject.
I would like to note that we have extended to the Clinton
administration, through our minority, the opportunity to
participate in today's hearing. Our staff has told us this
offering was declined, which is certainly their right. Perhaps
as this project of review proceeds, they will wish to become
involved in sharing their thoughts on some of these important
matters; and I hope so.
Before I turn to our witnesses, I also want to advise
members that this topic is one of interest to many of our House
colleagues. In fact, I understand that the House Judiciary
Committee's Subcommittee on Commercial and Administrative Law
has scheduled a hearing on executive orders for tomorrow. They
plan to consider two legislative proposals that have been
introduced on this subject, that I am aware of; and there, in
fact, may be more than those two.
At this time, in the absence of our ranking member, Mr.
Frost, it gives me pleasure to yield to the distinguished
chairman of the Rules Committee, the Honorable David Dreier of
California, without whose support and interest this
subcommittee hearing would not have been possible.
[The statement of Mr. Goss follows:]
Prepared Statement of the Honorable Porter J. Goss, a Representative in
Congress From Florida
The subcommittee will come to order. Welcome to an important
original jurisdiction hearing of the subcommittee on legislative and
budget process. Our Subcommittee's jurisdiction, which is most often
associated with topics related to the budget process, also includes
responsibility for reviewing matters of concern about the relationship
between the legislative and executive branches.
In my relatively short tenure on this committee, I recall that my
predecessor in this position--the distinguished former member from
South Carolina, Butler Derrick--used the jurisdiction of our
subcommittee to consider the important issue of the pocket veto.
In that tradition, we are here today to consider the subject of
executive orders and the manner in which they impact on the legislative
process.
Executive orders are at their simplest meant to be instructions by
the president to his subordinates. In their most benign form, they are
management tools, means by which a chief executive can establish
conformity and consistency across the many far-flung elements of his
administration.
Yet things have rarely been that simple in the realm of federal
governance. Since the first executive order was issued in 1789 by
President George Washington, there have been occasions where orders
issued by the president have engendered public debate and controversy,
sometimes leading to congressional or judicial reaction. We have seen
this trend increase in recent decades, as the scope and reach of the
federal government has broadened--increasing the probability that
policies implemented across the entire executive branch end up
impacting upon the lives of the citizenry. Some have termed the active
use of executive order ``executive lawmaking.''
It also appears to me that we have encountered significant
creativity and ingenuity on the part of presidents to use executive
orders to advance their agendas when the legislative process has proven
unwilling or unable to yield the desired results. Members may recall
that, as Ronald Reagan was preparing to take office as president in
1981, the Heritage Foundation published a book entitled Mandate For
Leadership, which included a list of proposals to implement more
conservative policies through executive order. That list comprised 22
areas of policy, covering a broad range of issues and controversies. On
the flip side of the ideological spectrum, we can note that it was a
senior adviser to President Clinton who summed up the tremendous power
of the president to make policy via executive order when he said
``stroke of the pen, law of the land. Kind of cool.''
Additionally, a by-product of modern technology appears to have
been greater public awareness of and interest in the unilateral actions
taken by the executive. Today we have cable television, talk radio, and
the Internet as means to provide unprecedented access to a wealth of
information for the average citizen with an interest. I have found in
recent years that more and more of the people I represent in southwest
Florida are contacting me to discuss concerns with executive orders.
When you consider the topic of executive orders there are almost as
many subject areas possible under this heading as there are policies of
the federal government. Executive orders have touched upon a broad
range of issue areas, and I know that we will get into some of those
specific cases as we proceed today. I should point out that there is a
whole category of executive orders relating to implementing policies
for our national security. Today these are known as Presidential
Decision Directives--or P-D-D's--and they are mostly classified due to
their sensitive content. I wish to ensure my colleagues that, as
Chairman of the Intelligence Committee, I know that congressional
oversight in this area is vigorous and thorough.
We have chosen for our starting point in today's hearing the
broader view: we are looking at the process of executive orders--where
do they come from and under what authority are they issued? What are
the procedures undertaken by the various elements of the executive
branch with responsibility for executive orders? What have the trends
been over recent history with respect to executive orders? To what
extent does the public need to know or even care about executive
orders? What is the proper role of the congress in guarding its
legislative prerogatives? And, how well has Congress been doing in
conducting oversight in this area?
These are some of the questions that we have directed to our
witnesses today. I am grateful for their participation.
We'll start off with a panel of experts--first we'll hear from
Douglas Cox, who is currently a partner at the law firm Gibson, Dunn
and Crutcher and formerly was principal deputy assistant attorney
general in the Office of Legal Counsel at DoJ under President Bush.
Joining him on this panel is Neil Kinkopf, who until 1997 served as
special assistant in the Office of Legal Counsel at DoJ and currently
teaches law at Georgia State University. We also have Robert Bedell,
whose career at OMB included serving as administrator of the Office of
Federal Procurement Policy, deputy and acting administrator of the
Office of Information and Regulatory Affairs, and deputy and acting
general counsel of the OMB. Bob's tenure spanned 15 years and four
presidents and today he is the president of the RPB Government Affairs
Company. Lastly on this panel we will hear from Tom Sargentich,
currently professor of constitutional and administrative law at the
Washington College of Law at American University. Tom formerly served
as a senior attorney advisor in the office of legal counsel at DoJ
under Presidents Carter and Reagan.
We will then hear from William Olson who has just completed a study
for CATO on the issue of executive orders. And we'll conclude the
hearing with a presentation by Raymond Mosley, the director of the
Office of the Federal Register at the National Archives and Records
Administration.
I would like to note that we had extended to the Clinton
Administration, through our minority, the opportunity to participate in
today's hearing. Our staff was told this offer was declined, which is
certainly their right. Perhaps as this project of review proceeds, they
will wish to become involved in sharing their thoughts on some of these
important issues.
Before I turn to our witnesses, I also want to advise members that
this topic is one of interest to many of our house colleagues. In fact,
I understand the House Judiciary Committee's Subcommittee on Commercial
and Administrative Law has scheduled a hearing on executive orders for
tomorrow. They plan to consider two legislative proposals that have
been introduced on this subject.
Mr. Dreier. Thank you very much, Mr. Chairman.
I would say at the outset that I think it is more than kind
of cool that you are holding this hearing, and I believe that
this is an issue which is, in fact, gaining widespread public
interest. Late last night, after I had left here, I went
through my three weekly magazines and picked the Washington
Whispers column of this week's U.S. News and World Report.
After I read about George Bush and the stinginess of the
campaign and several other things, I got to an item called
``Project Podesta,'' which says, ``White House Chief of Staff
John Podesta, frustrated with the balky Republican Congress,
thinks it is time for President Clinton to show who's boss,''
how Clinton plans a series of executive orders and changes to
Federal rules that he can sign into law without first getting
the okay from GOP naysayers. Since it is Podesta's idea, aides
have dubbed it ``Project Podesta.''
The namesake told our Kenneth T. Walsh, quote, ``There is a
pretty wide sweep of things we are looking to do and we are
going to be very aggressive in pursuing it. Up first, new rules
to protect medical privacy and health records and providing
paid leave for parents to take care of their newborns.''.
Now, obviously many of these things are very well intended,
but it does seem to me that, as they go further than even those
things that we have authorized here, that we need to take a
very close look at this issue. I will say that at the beginning
of the 106th Congress, I worked closely with Speaker Hastert in
trying to expand Congress' involvement in programmatic and
policy oversight, which is a very important constitutional
responsibility which we hold here, and it is often forgotten.
Frankly, executive orders are a significant and yet less
frequently examined tool for carrying out legislative intent.
That's one of the reasons that this hearing is so important.
And even though I raised this issue that was in this week's
news magazine, I would like to say that we are not with this
hearing focusing on one particular executive order--or one
particular administration, quite frankly--but we just want to
better understand the very important relationship, as it was
envisaged by the Founders, between the executive and the
legislative branches.
The President's executive order authority is not something
that we seek to undermine at all. As I said, we are not focused
on the actions of just one President. We do want to make sure
that executive orders continue to be written with the
appropriate constitutional or statutory authority, and they are
not used to subvert the legislative process or implement
policies that are not in the public interest.
So let me say that I appreciate the time and effort that
has gone into this hearing by Chairman Goss and staff and to
the witnesses who have taken time to prepare their thoughts on
this very important issue, and I express my appreciation also.
Thank you, Mr. Chairman.
[The statement of Mr. Dreier follows:]
Prepared Statement of the Honorable David Dreier, a Representative in
Congress From California
At the urging of Speaker Hastert, House committees have been
expanding their programmatic oversight activities to ensure that the
Executive Branch is properly implementing the public policies enacted
by Congress. Executive Orders are a significant, yet less frequently
examined, tool for carrying out legislative intent.
This hearing is not intended for focus on one particular Executive
Order but to shine light on the whole practice and to better understand
its implications for Executive Branch and Legislative Branch relations.
The President's executive order authority is not something we have
an interest in undermining. And this hearing is not focused on the
actions of just one President. We, do, however, want to make sure that
Executive Orders continue to be written with the appropriate
constitutional or statutory authority, and that they are not used to
subvert the legislative process, or to implement policies that are not
in the public interest.
Mr. Goss. Thank you, Mr. Chairman.
I again--in the absence of the ranking member at this time,
I am going to directly to the panel. I do want to bring to the
attention of members who are here--and I am grateful for the
participation of Judge Pryce and Doc Hastings from Washington--
that the staff has done really excellent background work on
this, and I would recommend, if you have the opportunity to go
through the materials that have been provided, at your leisure,
there is quite a wealth of very provocative subject matter.
Sometimes we talk about the activist court and deal with
that issue and the separation of powers in the three branches.
Now we are talking about the other two players today. That
doesn't mean we have to suspend from our minds the activist
court. We would never want to do that. But I think it is sort
of in that atmosphere that we are looking for balance, as the
chairman has said.
With that, we look forward to the expert testimony ahead.
Mr. Dreier. They have some statements they want to submit
for the record.
Mr. Goss. I am sorry. We would be very happy to hear them.
Would you like to make the statements publicly?
Ms. Pryce. I don't care to. I will just submit it.
Mr. Goss. Without objection, Judge Pryce's statement will
be accepted for the record and Doc Hastings' will be submitted
for the record.
[The statement of Ms. Pryce follows:]
Prepared Statement of the Honorable Deborah Pryce, a Representative in
Congress From Ohio, Member of the Subcommittee on Legislative and
Budget Process
Mr. Chairman, thank you for holding today's hearing on the power of
the president to establish policy through executive order. As the use
of executive orders becomes more prevalent and the policy they
establish has a more tangible impact on the lives of the people we
represent, I think it is appropriate for Congress to examine the
process by which these orders are developed and whether the
legislature's lawmaking responsibility is being encroached.
Judging by my constituent mail, I think it is fair to say that the
public awareness of the power of executive order has increased, and
Congress should be able to explain to the public why the President is
establishing policy without congressional approval. We have a
responsibility to ensure transparency of the process by which executive
orders are established and respond when the executive branch oversteps
its constitutional or statutory authority.
This can be accomplished, in part, through vigilant congressional
oversight in any effort to preserve a balance of power and protect our
legislative prerogative. In doing so, we will protect the power of the
people we represent, to whom we are accountable. I think this hearing
is an important first step in that process.
So, I thank Chairman Goss, again, for holding this hearing, and I
look forward to the testimony of our witnesses who have given much more
thought to this subject than I or many of my colleagues. I appreciate
the time you all are taking to share your knowledge with us this
morning.
Mr. Goss. Do you wish to speak?
Mr. Hastings. No. I will wait for the questions.
I will just say, though, Mr. Chairman, that I concur with
you about the documents that were given to our offices from the
staff. I think they were very enlightening for me as I was
reviewing that, so I look forward to the testimony of our
witnesses, and hopefully that will--I am sure it will spark
some more thoughts in my mind and questions.
So thank you, Mr. Chairman.
Mr. Goss. Thank you. We will begin with the first panel and
please excuse the designation of the panel. We recognize you
are all individuals. We have grouped the thought, we hope, into
the three panels in order to provide ourselves the opportunity
for appropriate questioning at the appropriate beaks.
I believe Mr. Cox is going to start, to be followed by Mr.
Kinkopf, Mr. Bedell, Mr. Sargentich, in that order.
STATEMENTS OF DOUGLAS COX, PRINCIPAL DEPUTY ASSISTANT ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE, 1992-1993, AND PARTNER,
GIBSON, DUNN & CRUTCHER LLP; NEIL KINKOPF, SPECIAL ASSISTANT,
OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, 1993-1997,
AND PROFESSOR OF LAW, GEORGIA STATE UNIVERSITY; ROBERT BEDELL,
ADMINISTRATOR, OFFICE OF FEDERAL PROCUREMENT POLICY, OFFICE OF
MANAGEMENT AND BUDGET, 1986-1988, DEPUTY AND ACTING
ADMINISTRATOR, OFFICE OF INFORMATION & REGULATORY AFFAIRS,
1983-1986, DEPUTY AND ACTING GENERAL COUNSEL, 1973-1983; AND
PRESIDENT, RPB COMPANY; AND TOM SARGENTICH, SENIOR ATTORNEY
ADVISER, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE,
1978-1983, AND PROFESSOR OF CONSTITUTIONAL AND ADMINISTRATIVE
LAW, WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY
Mr. Goss. If that's agreeable with you, Mr. Cox, the floor
is yours.
STATEMENT OF DOUGLAS COX
Mr. Cox. Thank you, Chairman Goss, for inviting me to
testify today on the important topic of executive orders.
Rather than repeat my written testimony, with your permission,
I will underscore a few key points regarding the role of
executive orders in our constitutional system and the tools
available to Congress to respond to unlawful executive orders
in defense of its own constitutional powers.
The President does not have broad authority to issue
executive orders, to guide and control the work of the
executive branch. As the Supreme Court recognized in the Steel
Seizure case, that authority flows from the Constitution itself
and also from statutes. Although executive orders are not
explicitly mentioned in the Constitution, the authority to
direct the executive branch is inherent in the President's role
as the head of a unitary executive branch.
That authority is also found in the President's duty to
take care that the laws are faithfully executed, in the
appointments clause, in the commander-in-chief clause, and in
other clauses of the Constitution.
In addition, Congress often grants the President statutory
authority to issue executive orders, either expressly or by
granting the President significant discretion in implementing
the statutory scheme.
Whether the President grounds an executive order on the
Constitution or on a statute, it is vitally important to the
Nation that the executive power be exercised forcefully and
consistently and that the chief executive's lawful policy
preferences be carried out by subordinates within the executive
branch. There is, thus, nothing suspect about executive orders,
per se. They offer a valid mechanism for the President to
direct and control the executive branch, and the vast majority
of executive orders attract little attention or controversy.
Broad as the President's power is, it is, of course,
subject to limitations. It is limited by the Constitution and
the principle of separation of powers that is embodied in the
Constitution. It is often limited by statutes that grant the
President only a narrow discretion, and the President's
exercise of the power may in certain circumstances be subject
to judicial review.
The President's power may be abused, as all government
powers may be abused. The threat of abuse may be particularly
high when Congress and the executive branch are controlled by
different parties. The Framers assumed that each of the
political branches would seek to maximize its power and
believed that the resulting struggle between the branches would
help guarantee liberty.
Certainly when administration officials announce that they
intend to adopt sweeping executive orders designed to
circumvent Congress, Congress must be vigilant in order to
protect its own powers and the constitutional plan. Congress
may control executive orders based on statutory authority in a
number of ways.
First, Congress can respond to a particular executive order
by enacting a contrary statute. In such cases, the statute
would control and the executive order would be invalid.
Second, Congress can create general mechanisms to increase
congressional oversight of executive orders. For example,
Congress could, by legislation, require that any statute-based
executive order be submitted to Congress 30 days before it goes
into effect so as to enable Congress to consider whether a
legislative response is necessary.
Third, Congress can restrain the President's statutory
authority by writing narrower, more precise laws. To given one
example, Presidents of both parties have found in the broad
purposes of the Federal Procurement Act convenient
justification for a range of sweeping executive orders. Those
executive orders do not necessarily change the legal rights and
obligations of anyone outside the executive branch, but to the
extent that offer an incentive, amounting nearly to compulsion
to the very large number of companies that wish to contract
with the Federal Government, such executive orders greatly
extend the reach of the President's authority beyond the
executive branch and into private companies across the Nation.
Congress could narrow the President's discretion under the
Federal Procurement Act by amending the act to preclude such
efforts to influence the internal policies to private companies
seeking to qualify as Federal contractors.
And, of course, Congress can use any of its usual powers of
political persuasion--oversight hearings, confirmation holds
and many other forms of legislative pressure short of
legislation--in order to convince the President to drop or
redraft an abusive executive order.
But just as there are limits on the President's power to
issue executive orders, there are limits on the ability of
Congress to rein in the President's exercise of his
constitutional powers. There is a core of constitutional
authority given to the President that cannot be reached by
legislation. Congress, in considering how to respond to the
threat of abusive executive orders, must thus proceed with
caution. When a President abuses his constitutional authority,
Congress has an obligation to respond. Congress has ample
constitutional means, including its political tools, to respond
to lawless executive orders. Thus, Congress need not resort to
assertions to legislative authority that would themselves raise
serious constitutional problems.
Thank you, Mr. Chairman.
Mr. Goss. Thank you very much, Mr. Cox.
[The statement of Mr. Cox follows:]
Prepared Statement of Douglas R. Cox
Thank you, Chairman Goss, for inviting my submission on the
important subject of the impact of executive orders on the legislative
process. The specific questions I will address are the role of
executive orders within our constitutional system, and the tools
available for Congress to respond to executive orders.
i. executive orders
As an initial matter, it is important to recognize that the
President has broad authority to issue executive orders, to guide and
control the functioning of the executive branch. As the Supreme Court
recognized in the steel seizure case, Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 585 (1952), the President's executive order has
two potential sources: The Constitution, and Federal statutes.
Although executive orders are not explicitly mentioned in the
Constitution, the authority to direct the executive branch is inherent
in the President's constitutional role as the head of a unitary
executive branch. That authority is also a necessary part of the
President's power to perform his constitutional duty to ``take care
that the laws be faithfully executed.'' Article II, section 3.
Some executive orders may also be rooted in other clauses of the
Constitution, such as the appointments clause and the commander-in-
chief clause. President Truman based Executive Order 9981, ordering the
desegregation of the armed forces, on his commander-in-chief powers.
Congress itself often grants the President additional authority to
issue executive orders, either expressly or by granting him significant
discretion in executing the laws. When Congress grants the President
substantial discretion, executive orders provide an appropriate
mechanism for the President to inform his subordinates within the
executive branch as to the way in which that discretion is to be
exercised.
For example, 22 U.S.C. Sec. 287c explicitly contemplates that the
President will issue executive orders to give effect to United Nations
Security Council resolutions. It is a very generous grant of
discretion, and authorizes the President, among other things, to
``investigate, regulate, or prohibit, in whole or in part, economic
relations or rail, sea, air, postal, telegraphic, radio, and other
means of communication between any foreign country or any national
thereof or any person therein and the United States. . . .'' 22 U.S.C.
Sec. 287c(a).
Similarly, 40 U.S.C. Sec. 471 et seq., the Federal property and
Administrative Services Act, specifically authorizes the President to
issue policies and directives ``as he shall deem necessary to
effectuate the provisions'' of the act. 40 U.S.C.
Sec. 486. The act's general purpose of furthering the ``economic
and efficient'' performance of the Federal Government's procurement
functions may plausibly support a wide range of presidential policies.
And as an historical matter, Presidents have frequently relied on the
act to justify executive orders.
The President, in issuing an executive order based on a statute, is
engaging in a process similar to administrative rulemaking: Both
processes require and permit executive branch officials to exercise
discretion within the statutory framework created by Congress. The
concept of ``chevron deference'' to rulemaking by Cabinet departments
is a familiar one. But it is also an acknowledgment of Presidential
discretion in the interpretation of very many statutes. Although
rulemaking differs from executive orders in many ways--chiefly by being
subject to the procedural requirements of the Administrative Procedure
Act--the concept of executive branch discretion that is uncontroversial
in the rulemaking setting should not be dramatically more controversial
in the highly similar context of executive orders.
Whether the President is relying on his constitutional powers or on
statutory authority, it is vitally important to the Nation that the
executive power be exercised forcefully and consistently, and that the
Chief Executive's lawful policy preferences be carries out by his
subordinates within the executive branch. Executive orders are binding
on officials within the executive branch.
Presidents have exercised their authority to issue executive orders
throughout our history. President Washington, for example, issued
directives that today would be classified as executive orders, using
them to manage the business of the executive branch in such areas as
prosecutorial priorities, and harmonizing the public positions of the
Cabinet departments. Subsequent Presidents, including President Adams
and President Jefferson, followed suit. By tradition, the distinction
of issuing executive order number one is awarded to President Lincoln,
although in fact the practice of numbering executive orders did not
arise until this century.
The historical practice is significant in this instance because it
gives content to ``the executive power'' granted to the President by
the Constitution. As Justice Frankfurter stated in his concurrence in
the steel seizure case, ``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 . . . may be treated as a gloss on `executive power'
vested in the President by Sec. 1 of art. II.'' 343 U.S. at 610-11
(Frankfurter, J., concurring).
Broad as the President's powers are, they are plainly not
unlimited. They are limited by the Constitution's text; they are
limited by the principle of separation of powers embodies in the
Constitution; they are limited by the non-delegation doctrine; and they
are often limited by statutory terms that grant the President only a
narrow discretion.
In recent decades, Presidents have relied on the Attorney General
to review and approve proposed executive orders. Executive order 11,030
issued in 1962 and which continues (as amended) to govern the form of
executive orders and the procedures to be followed in issuing executive
orders, provides that the Attorney General is to review proposed
executive orders for ``form and legality.''
The Attorney General still performs that function in certain
exceptional cases: Attorney General Civiletti, for example chose to
approve President Carter's executive orders for dealing with the
Iranian hostage crisis in an opinion over his own signature. 4a Op.
Off. L. C. 302 (1981). But the Attorney General has formally delegated
the responsibility to approve executive orders to the Justice
Department's Office of Legal Counsel (``OLC''), in which I was
privileged to serve during the administrations of President Reagan and
President Bush.
The terms of that delegation, in 28 CFR Sec. 0.25, are themselves
instructive. OLC is responsible not only for reviewing proposed
executive orders for ``form and legality,'' but also for ``making
necessary revisions'' to proposed orders before ``their transmission to
the President.'' Further, OLC offers its legal opinion in writing, so
that there is a formal record that the executive order was reviewed for
legality, and a formal document signed by a responsible official in OLC
vouching for the lawfulness of the proposed action.
I understand that the Clinton administration continues to follow
these procedures.
There is thus nothing necessarily suspect or unlawful about
executive orders. They are part of our constitutional order and of the
long-established functioning of the executive branch. The vast majority
of executive orders attract little attention or controversy. Given that
the President is politically accountable for the performance of his
administration, executive orders offer a valid and necessary mechanism
for the President to exercise his lawful powers.
ii. congressional responses to executive orders
The President's authority to issue executive orders is subject to
abuse, as are all government powers. Under the guise of directing the
executive branch, a President may further policies contrary to statute,
or may shift enforcement priorities in ways that frustrate the
intentions of Congress. Some executive orders may cross the line
between executing the law and legislating.
The threat of abuse may be particularly high when Congress and the
executive branch are controlled by different parties. Certainly when
administration officials announce that they intend to adopt sweeping
executive orders designed to circumvent Congress, or in reaction to a
decision by Congress to reject parts of the President's program,
Congress is right to be concerned that its legislative powers may be
misappropriated.
The risk of such abuses, however, should not lead Congress to
conclude that all executive orders are suspect. Nor should Congress
attempt to constrain by legislation that part of the President's
executive order authority that derives from the Constitution.
Rather, Congress should be vigilant to guard its legislative
prerogatives and to maintain the separation of powers through its own
constitutional authority. When Congress is confronted by an executive
order that it believes exceeds the President's powers, it has many
tools with which to respond.
First, by statute all substantive executive orders are required to
be published in the Federal Register. 44 U.S.C.
Sec. 1505. Congress and the public thus receive notice of executive
orders. Congress may respond to an executive order by exercising its
legislative powers to enact contrary legislation, or to deny funding to
carry out an executive order. Any subsequent contrary legislation will
bind the President's discretion, assuming that the legislation does not
impermissibly invade the President's constitutional powers.
Thus, for example, President Carter issued Executive Order 11,988
in May 1977. That executive order was interpreted by the Department of
Housing and Urban Development as requiring the bank regulatory agencies
to prohibit regulated institutions from making loans secured by real
property within a flood plain unless flood insurance was available.
Subsequent to the issuance of the executive order, Congress changed the
law to permit such loans, and OLC not surprisingly concluded that ``the
statute takes precedence over'' the executive order. 2 OP. OFF. L. C.
41 (1978).
Second, a President may respond to political pressure or complaint
about an executive order. Executive Order 13,083, President Clinton's
attempt to alter President Reagan's federalism order, elicited
sufficient public outcry that President Clinton ``Suspended'' his own
executive order by means of a subsequent executive order. E.O. 13, 095.
Third, Congress as a prophylactic matter can limit the President's
ability to invoke statutory authority for executive orders by writing
more specific, more precise laws. Although in certain areas it is often
necessary or desirable for the President to have sufficient discretion
to respond to changing circumstances, that is not true of all
legislation. Congress fails to perform its essential legislative
function when it allocates excessive discretion to the executive. A
vague law that imposes on the executive the task of balancing costs and
benefits removes the debate about that balancing from the people's
representatives assembled in Congress, and relegates it to a technical
world or regulation. A direction to the President, for example, to make
highways ``safer'' without any legislative choice among the many
competing policy options--requiring different and more costly
automobile engineering, or changing highway design, or using Federal
funds to encourage the states to change their law enforcement policies
to concentrate on speeders--would grant the President a great deal of
discretion to make policy choices that Congress failed to make.
Fourth, Congress could pass a statute that required the President,
whenever he invoked a grant of statutory authority to justify an
executive order, to identify that statute with particularity. That
would avoid the phenomenon of executive orders based generically on
unspecified ``laws of the United States.''
Fifth, Congress could also by legislation require the President,
whenever he invoked a grant of statutory authority to justify an
executive order, to send the executive order to Congress and delay
enforcing the order for thirty days, to give Congress an opportunity to
review the order and determine if a legislative response was necessary.
Congress presumably would want to build into any such requirement an
exception for bona fide emergencies.
Sixth, Congress has a host of other means to influence the
President. Congress can conduct oversight hearings to press the
administration to explain its legal reasoning; can restrict or reduce
appropriations; and can take such indirect actions as slowing the
confirmation of Presidential nominees in an attempt to persuade the
President to withdraw a questionable order. According to press reports,
for example, the Senate delayed a confirmation vote on one of President
Clinton's Cabinet nominees until the President agreed to drop a planned
executive order that would have instructed Federal agencies to contract
with unionized companies. E.g., the Baltimore Sun, May 1, 1997 at 2A.
Further, in addition to Congress's own powers to restrain abuses,
in some cases the President's issuance of an executive order can be
subject to judicial review. The steel seizure case involved a challenge
to an executive order. More recently, President Clinton's Executive
Order 12,954, involving striker replacements, was held to be invalid by
the Court of Appeals for the District of Columbia Circuit. Chamber of
Commerce of the United States v. Reich, 74 F.3D 1322 (D.C. Cir. 1996).
The possibility of judicial review cannot replace congressional
oversight, however private parties are often unwilling to spend the
time and money to challenge the Federal Government, and in some cases
it may be difficult to identify parties with standing to sue.
iii. conclusion
Executive orders are a part of the President's constitutional
authority. Congress has often added to that authority by granting the
President broad statutory discretion. The President must have such
broad authority to direct and control his subordinates in the executive
branch.
If an executive order exceeds the President's authority, Congress
may act legislatively to correct the President, or may use any of
numerous political tools. In a proper case, the judiciary is also able
to strike down an executive order that is contrary to law.
When a President overreaches and uses executive orders to invade or
supersede the legislative powers of Congress, Congress may be
sufficiently provoked to consider an across-the-board approach to rein
in those abuses. Although that reaction is understandable, Congress
must be careful to understand the extent to which executive orders are
a necessary adjunct of the President's constitutional duties. At all
times, Congress has ample legislative and political means to respond to
abusive or lawless executive orders, and thus Congress should resist
the temptation to pursue more sweeping, more draconian and more
questionable responses.
Mr. Goss. Mr. Kinkopf.
STATEMENT OF NEIL KINKOPF
Mr. Kinkopf. Thank you, Mr. Chairman.
This is, in fact, a very important hearing on a very
important and timely and timeless topic. Every statute accords
the officer charged with enforcing that statute, unavoidably, a
certain amount of discretion, and the exercise of that
discretion can aptly be termed lawmaking authority.
Consider, for example, a very simple, straightforward,
seemingly specific statute: a speed limit of 55 miles an hour.
In a world where it is not possible to pull over everyone who
exceeds 55 miles an hour, the officer enforcing that statute
must decide whom to pull over and whom to let go. If the
officer decides only to pull over cars going over 60 miles an
hour because that will best effectuate the legislature's
purpose, the officer certainly engages in lawmaking; as a
practical matter, the speed limit has been raised to 60 miles
an hour. But has the officer been faithless? No. The officer is
seeking expressly to advance the purpose of the statute and
faithfully to enforce it.
Discretion-yielding lawmaking power can also derive from
statutes because of the fact that statutes are durable. They
exist over time. And over time, circumstances change. An
executive unavoidably has to decide how a statute applies to
changed circumstances. In doing so, the executive officer
necessarily engages in something that might be termed
``lawmaking.''
Finally, statutes interplay, they interact. And when
statutes intersect with one another, if they don't themselves
tell the officer how to respond, (which often they don't
because their interaction is not foreseeable at the time they
are enacted), the executive officer has to decide how the two
statutes will mesh, how to enforce them consistently with one
another. That, itself, can often involve executive lawmaking.
Given that some executive lawmaking is inevitable, Congress
has to determine who should do the executive lawmaking. The
options would be the President or someone subordinate to the
President. It is my contention that in most, though perhaps not
all, cases it is best to leave that lawmaking authority in the
President or subject to the President's discretion, supervision
and control.
The reason for that is that the President is accountable
and is accountable to political pressures in ways that his
subordinates, who have never stood for election, at least for
their current position, have not. In essence, the choice boils
down to the President or a faceless bureaucrat; and I think for
reasons of accountability, it is generally preferable that the
President have the supervision and control, rather than a
faceless bureaucrat.
Now, recognizing then that inevitably there is executive
lawmaking authority whenever Congress enacts statutes, and that
that authority is generally best vested in the President, it
does not follow that Congress has no means of keeping the
President within the proper bounds. First, Congress can
legislate more frequently than it does. It can legislate when
circumstances change in order to make clear how the executive
should respond to changed circumstances. It can speak
specifically to issues of interaction and interplay between
statutes when conflicts and tensions arise and become apparent;
and as Mr. Cox pointed out, Congress can act to revise or
eliminate, or supersede executive orders.
Congress can also engage in oversight through a variety of
functions. As Mr. Cox has mentioned, Congress can engage in
oversight hearings to educate itself on how, exactly, the
executive branch is enforcing the laws and this would support
its updating function, its legislating more frequently.
But there are other tools of oversight. An additional tool
would be reporting requirements. Rather than going through the
formal and time-consuming exercise of holding hearings on every
subject, Congress could require executive agencies to submit
reports talking about executive orders, how they impact the
functions of the agency, what sorts of alternatives are
eliminated, what sorts of alternative enforcement mechanisms
are eliminated by the executive order; and thereby Congress can
keep itself informed without going to the extent of holding
oversight hearings on how executive orders are functioning
within the executive branch.
Finally, Congress can expressly state its disapproval of
executive action through a resolution. It could be a committee
resolution, a House resolution or a full Congress resolution.
Another alternative open is structural reform. In a statute
such as the one that Mr. Cox cited, the Federal Procurement
statute, Congress could set forth and define the basis on which
the authority vested by that statute may be exercised. It could
further require as to any statutorily-based order, findings be
made and be made on the record and be explained.
In addition to these measures that Congress can pursue,
there are checks on overreaching by the President. One Chairman
Goss mentioned in his opening remarks is an activist judiciary.
Judicial review is always available when an executive order
reaches out and affects persons outside of the government.
In addition to judicial review, in the instances when that
is not available, there are other law interpreters who can pass
judgment on the President's contention that he has authority to
issue an executive order. For example, Comptroller General
opinions very often bear on questions underlying an executive
order, especially executive orders issued pursuant to the
authority of the Federal procurement statute. Other law
interpreters would include the Congressional Research Service,
and the House and Senate legal counsels offices.
Furthermore, public pressure and interest group vigilance
can supply a very powerful check on executive orders. If the
President overreaches his authority in a way that affects
interest groups, and most executive orders do, those interest
groups can bring pressure directly on the President and can
also bring pressure on Congress to respond to the President.
Finally, there are internal checks available within the
executive branch. The Office of Legal Counsel vigilantly
ensures that executive orders are duly authorized. In addition,
its opinions are generally published and provide precedent
against which to adjudge any particular assertion of authority
to issue an executive order.
Now, even if you are not terribly comfortable trusting the
executive branch to police itself--the fox to police the
henhouse as it were--those mechanisms of internal checking,
OLC's opinions and precedents, allow the external checks to
function more effectively. The public, Congress and the courts
can more effectively assess what the President has done when
OLC issues opinions, and those opinions, as they generally do
on close questions, become public.
I want to conclude with a caution against trying to
legislate too specifically, which I suspect will be a
temptation, given the way this problem has been couched. Not
only for the reasons that I stated do I think it is futile, I
think specific legislation is very often ineffective.
Criminal statutes aimed at the Mafia, for example, have
been effective precisely because they are not specific.
Criminal enterprises, like many problems that confront the
government, are flexible and can change form overnight. If
Congress legislates specifically, it will codify forms that can
be easily evaded and so in rightly focusing upon concerns about
maintaining the proper balance of power between the executive
branch and Congress, I would urge that Congress not overlook
the importance of its ability to enact effective legislation.
Thank you, Mr. Chairman.
Mr. Goss. Thank you, Mr. Kinkopf.
[The statement of Mr. Kinkopf follows:]
Prepared Statement of Neil Kinkopf
The Constitution vests the legislative power in Congress and the
executive power in the President, but it nowhere defines those powers.
To be sure, the Constitution enumerates the subjects to which the
legislative power extends,\1\ but it does not offer a definition of
what that power is, nor does it define ``executive power.'' This was
not inadvertent. The framers were practical statesmen who understood
that each branch of government would be ambitious and seek to secure as
much power, at the expense of the other branches, as possible. The
framers also understood that any attempt to stop this by marking clear
boundaries on the executive and legislative powers would be futile.
Madison derisively referred to such formal demarcations as ``parchment
barriers.'' The genius of the Constitution's structure lies in the
practical response it adopted. Instead of assuming that angels would
govern, it structures the branches so that, as Madison put it,
``ambition will be made to counteract ambition''; each branch, in
short, would act as the guardian of its own constitutional role. In
holding these hearings the committee is fulfilling the Constitution's
vision of how the government would and should work.
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\1\ See, e.g., U.S. Const. Art. I, sec. 8.
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The Constitution creates a federal government of limited and
enumerated powers. Therefore, considerations of any federal action must
begin with an inquiry into whether the action is validly authorized.
When the President acts unilaterally, such as by issuing an executive
order, his authority must derive from either the Constitution or a law,
typically a statute.\2\ If the President issues an executive order that
is based entirely on authority that the Constitution's text grants
exclusively to the President, that executive order, by definition, does
not involve a deployment of a legislative power.\3\ I will confine my
comments to the two contexts that implicate directly Congress's
legislative role: where the President's authority to issue an executive
order is founded on statute alone, and where the order is based on a
combination of constitutional and statutory authority.
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\2\ See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,585
(1952). The President may also derive authority from a duly ratified
treaty.
\3\ Such an order may, however, have ramifications for legislative
prerogatives. It may bring about circumstances that yield strong
pressure on Congress to enact appropriations. Such an executive order
can also serve an agenda-setting function, diverting attention from
what may otherwise have been higher congressional priorities. Each of
these occurs when the President orders the use of military force, short
of war.
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The relationship between the executive and legislative powers
within these contexts is not fixed and definite, but is better
conceptualized as a spectrum. The extent of each is a function of
several mutable factors: the specific statute at issue, the nature of
Congress's underlying constitutional powers vested in the President,
and the specific facts surrounding the executive order.\4\
Consequently, it is difficult to offer general prescriptions for
safeguarding the legislative power against executive overreaching.
Nevertheless, I believe that there is support for a number of
observations:
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\4\ For the classic exposition of this view, see Youngstown Sheet &
Tube, 343 U.S. at 634-55 (Jackson, J., concurring).
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I. As long as Congress legislates, its legislation will,
unavoidably, vest the executive branch with discretion as to how to
enforce Congress's laws.
II. As long as the executive branch holds executive discretion, it
is generally desirable that this discretion be subject to some degree
of presidential supervision and control.
III. Congress is amply equipped to protect its legislative role
from presidential overreaching.
IV. Beyond Congress, there are significant, additional checks
against presidential usurpation of the legislative role.
i.
Executive branch lawmaking, to refer back to the title of this
hearing, is inevitable. Faithful execution of the laws demands it In a
recent article, two important presidential scholars have argued that
the ability to act unilaterally is the defining feature of modern
American presidency.\5\
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\5\ See Terry Moe & William Howell, The Presidential Power of
Unilateral Action, 15 J.L. Econ. & Org. 132 (1999).
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Statutes are not self-enforcing. Every statute unavoidably conveys
some discretion. When any officer charged with the execution of a law
decides how to exercise that discretion, the officer engages in
something that can well be called lawmaking. Imagine a specific and
straightforward law, one that declares a speed limit of 55 mph on a
given highway. An officer charged with enforcing that law will have to
determine whether to pull over a car for going 56 mph. An officer who
does will have to leave his patrol car to write out the ticket and may
then miss a car going by at 85 mph. In a world where it is impossible
to catch every offender, the executive will have to determine which
offenders to ticket and which to let pass. The executive may well
determine that if it is most faithful to the legislature's purpose by
adopting a policy that it will not pull over anyone who goes less than
60 mph. Has the executive made law? Certainly. Has the executive been
irresponsible or unfaithful to the legislature? Certainly not.
Moreover, executive discretion flows from the durability of
duration of statutes. Because statutes remain operative over time, they
apply in the context of circumstances that will have changed in ways
that are unforeseeable to even the most conscientious legislature.
Applying a statute under significantly changed circumstances from those
the enacting Congress faced necessarily involves executive judgment.
Whatever course the executive chooses to take, including the choice to
take no course of action, when confronted with changed circumstances
can be termed executive lawmaking. Consider, for example, the
government shutdown. The statute that required the cessation of
government functions was the Anti-Deficiency Act.\6\ The Congress that
passed this ancient statute did not have in mind the circumstance of a
complete lack of appropriations.\7\ Yet Presidents have been duty bound
to apply the Anti-Deficiency Act in that very unforeseen situation.\8\
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\6\ See 31 U.S.C. secs. 1341-1342.
\7\ See GAO Redbook.
\8\ For an attempt to construe the Anti-Deficiency Act in the
context of a complete failure of appropriations, see 43 Op. Att'y Gen.
29 (1981).
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The interplay of distinct statutes also occasions a great deal of
execution lawmaking. Congress often passes inconsistent statutes. For
example, a law may require a program to run at a specified level, but
the appropriations made for the program may permit it to run at 80% of
the mandated level. The executive's determination of how to proceed
involves what might be deemed lawmaking. Although such examples are
common, Congress does not always enact language stating how to resolve
plain and direct statutory conflicts.
Often, the interplay of statutes if not so readily apparent. Again,
the government shutdown provides a useful example. The Food and Forage
statute \9\ was enacted to ensure that military personnel who found
themselves cut off from supplies could provide for themselves. It
allows military personnel to secure food and necessary materiel. The
Anti-Deficiency Act forbids incurring an obligation in advance of an
appropriation. These statutes were enacted without apparent regard to
one another, yet they come into tension during a lapse of
appropriations. Resolution of that tension involves executive
lawmaking.
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\9\ 3 Stat. 567, 568 (March 2, 1861).
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It should not be surprising then that our history is full of
examples of executive lawmaking, stretching continuously from George
Washington through the present. Moreover, some of the most historically
significant governmental laws have been issued by the President acting
unilaterally. Some of these solitary acts deserve our praise as
courageous, others merit approbation, the value of others is still
debated. For example, President Washington issued the Neutrality
Proclamation, declaring U.S. neutrality in the war between Britain and
France and forbidding U.S. citizens from acting inconsistently with a
state of neutrality.\10\ Andrew Jackson effectively eliminated the Bank
of the United States by ordering that the assets of the federal
government be withdrawn. President Lincoln issued the Emancipation
Proclamation freeing the slaves in the States of the Confederacy;
Theodore Roosevelt withdrew public lands and set them aside to create a
system of national parks; Franklin Roosevelt ordered the internment of
Japanese Americans during World War II; President Truman desegrated the
military and ordered the seizure of steel mills; and President Lyndon
Johnson ordered the nation's first affirmative action program on the
strength of the federal procurement statute.
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\10\ For example, privateers were not permitted to sail from ports
of the United States. The proclamation nearly led to war with France.
The Neutrality Proclamation also spawned the famous Pacificus-Helvidius
debate over the extent of the President's constitutional authority to
conduct foreign affairs. For an excellent discussion, see H. Jefferson
Powell, The Founders and the President's Authority over Foreign Affairs
40 Wm. & Mary L. Rev. 1471 (1999).
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ii.
Given that lawmaking discretion is inevitable, it is proper and
desirable that the discretion be exercised subject to the President's
supervision, which is to say subject to executive orders. Unlike
agencies, which tend to focus on a limited subset of federal laws and
of policy concerns, the President enjoys a fairly panoramic view of
both the executive branch and the United States Code. The President is
thus uniquely situated to bring about enforcement actions that are
consistent across the executive branch and to set rational enforcement
priorities. When a decision will have important consequences for more
than one agency or department, the President alone can call upon the
legal and policy advice of all interested agencies and weigh that input
without being distracted by concern over agency jurisdiction or ``turf
battles.'' \11\
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\11\ An exception to this may arise when the disputing agencies
include an independent agency. Here the President's institutional, or
``turf,'' interest would yield an incentive to disfavor the independent
agency.
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Most importantly, presidential supervision means presidential
accountability. If Congress were to deprive the President supervisory
control over the exercise of discretion by a federal agency, Congress
and the public could not hold the President responsible for abuses of
power. Moreover, the President by virtue of his high political office
and of being elected, is responsive to the public in ways that no other
executive branch official is. Thus, popular concern about regulation by
``faceless bureaucrats.'' would be heightened were the President unable
to control the lawmaking discretion vested in the executive branch.
iii.
Recognizing that even broad executive discretion is inevitable and
possibly beneficial does not undermine my basic point about about the
Committee's inquiry. It is legitimate, indeed important, for Congress
to remain vigilant that necessary and proper executive discretion is
not carried too far. I would like briefly to canvass some of the
measures that Congress might consider to protect its legislative role.
1. Legislating more specifically. That it may be impossible to
eliminate all discretion does not mean it will impossible to constrict
more narrowly the extent of discretion. It may be possible and even
salutary to study options for reducing executive discretion,\12\ but
ultimately this is a dead end. The President does not possess broad
because Congress is lazy or slothful. The President possesses broad
discretion because it is necessary for any statutory regime to be
effective. For example, federal criminal laws are phrased in broad,
even capacious, terms. Making them more specific would limit the
possibility of prosecutorial abuse and harassment, all the better from
the standpoint of individual liberty. However, precisely phrased
federal criminal laws allow dangerous and flexible criminal enterprises
to change the form of their dealings in order to evade the formal
categories. For example, the first federal criminal role included
approximately twenty crimes, including the crime of maiming, which
Congress defined very precisely to apply:
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\12\ For example, when Richard Nixon asserted and exercised broad
authority, based on the Constitution and on statutes, to decline to
expend appropriated funds, Congress responded to protect its
appropriations power by enacting the Impoundment Control Act. See Pub.
L. No. 93-344, 88 Stat. 297 (1974).
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``If any person . . . shall unlawfully cut off the ear on ears, or
cut out or disable the tongue, put out an eye, slit the nose, cut off
the nose or a lip, or cut off or disable any limb or member of any
person, with intention in so doing to maim or disfigure such person in
any of the manners before mentioned. . . .'' \13\
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\13\ 1 Stat. 112, 115, 1st Cong., 2d Sess. (April 30, 1790).
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This statue is remarkably specific, but for that reason fails to
reach such obvious maimings as a stab wound to the ear or a blow to the
nose with a club. The founders themselves were familiar with this
problem. In setting forth the permissible grounds for an impeachment,
they realized that a precise list of crimes would inevitably exclude
misconduct that is just as harmful to the republic as bribery and
treason, but that do not satisfy the formally required elements of the
crimes they might have listed. Favoring effectiveness over precision,
the Constitution's drafters settled on the famously vague formulation,
``high crimes and misdemeanors.'' \14\
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\14\ See II Joseph Story, Commentaries on the Constitution, paras.
794-802 (1833).
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Federal law enforcement has been able to devastate the mafia and
other criminal organizations precisely because it has at its disposal
broad and vaguely worded statutes. Take away the flexibility and
adaptability of federal law enforcement, and it cannot combat crime as
effectively as it does.
Indeed, Congress's ability to accord lawmaking authority to the
executive is generally viewed not as a derogation from its legislative
power, but as one of the most important tools by which Congress can
perform its legislative role. Again, history is instructive. To combat
the Great Depression, Congress granted broad authority to the President
to respond to economic conditions. When the Supreme Court struck down
these delegations, its decisions were not viewed as promoting the power
and authority of Congress. Its decisions were viewed instead as
preventing Congress from enacting an effective remedy to a national
crisis.
2. Legislating more frequently. Rather than trying to craft
enduringly and unfailingly specific legislation, Congress should
legislate more frequently. First, Congress must be vigilant in
overseeing the rules that the executive branch promulgates. Congress
should then repeal or amend executive branch lawmaking whenever it
disapproves of the executive branch's rules. Second, Congress should be
vigilant in overseeing its own statutes. Congress should seek to
identify antiquated statutes, like the Anti-Deficiency Act and the
Vacancies Act, before their application becomes problematic and it
should keep abreast of how statutes it enacts come to interact with
other statutory regimes. Where there is interplay, Congress may assert
its legislative power to dictate the accommodation it prefers.
3. Oversight. Just as executive lawmaking occurs outside the
framework of bicameralism and presentment, that is where Congress must
look for methods to keep the executive in check. First and foremost is
Congress's power to conduct oversight hearings. It would be risible to
expect the President personally to participate in oversight hearings.
Nevertheless, the President's executive orders on unclassified matters
are publicly available. In addition, the President does not personally
carry out his own executive orders. The agencies charged with doing so
are themselves generally amenable to the oversight process. It is thus
well within Congress's ability to inform itself as to how its statutes,
and the discretion they confer, are being enforced and to discern
whether there are any abuses.
Congress can supplement oversight hearings by requiring that
agencies submit periodic reports describing the executive orders to
which they are subject and conveying whatever other information
Congress might find useful in performing its oversight function. It
might, for example, call on the agency to discuss exactly how the
executive order bears on or shapes the agency's enforcement of affected
statutes, the order's impact on the allocation of agency resources, and
alternative enforcement regimes that the order requires the agency to
forgo.
Having armed itself with information, Congress may consider several
types of responses. First, it may legislate to alter or supplant
completely the directives of a given executive order. Second, either or
both houses can pass a resolution calling upon the President to rescind
or amend any executive order. A third, drastic measure is censure. If
Congress believes that the President has overstepped the proper bounds
of his executive role and usurped the legislative function, it may pass
a resolution of censure. This is what Congress did in response to
President Andrew Jackson's decision to withdraw federal assets from the
Bank of the United States, with the intent and practical effect of
closing the bank.\15\
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\15\ From the perspective of protecting congressional power, this
episode does not have an encouraging conclusion. Cowed by Jackson's
continuing political popularity, congress three years later rescinded
the censure resolution. See Register of Debates, 24th Cong., 2d Sess.
379-418, 427-506 (1837); Senate Journal, 24th Cong., 2d Sess. 123-24
(April 15, 1834). In a particularly egregious case of repeated,
dangerous, and contumacious usurpation of the legislative power,
impeachment and removal would be available to protect the
constitutional structure of government. As 210 years of constitutional
practice show, this is merely a theoretical possibility.
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At this point an institutional symmetry appears. Much as Congress
is (rightly) concerned about protecting its legislative role from
presidential overreaching, the executive periodically complains that
mechanisms such as those set forth above thwart the constitutionally
proper executive role.\16\ In each case, the point is balance.
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\16\ For a representative objection, see ``Common Legislative
Encroachments on Executive Branch Constitutional Authority,'' 13 Op.
O.L.C. 299 (1989) (preliminary print). Not all administrations have
shared this restrictive view of the constitutional relationship between
the executive and Congress. See, e.g., ``The Constitutional Separation
of Powers between the President and Congress'' (Opinion of the Office
of Legal Counsel, May 7, 1996) (superceding 13 Op. O.L.C. 299).
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4. Structural reform. Congress might consider extending the
Administrative Procedure Act to cover executive orders. This, however,
would raise serious constitutional questions.\17\ Rather than
attempting such a general structural reform, Congress could impose
tighter structural requirements as a precondition to issuing certain
executive orders. Where the President's authority to issued an
executive order is based exclusively on a statute, the statute might
enumerate a list of findings that must be made before the power can be
exercised and require that the basis for the findings be published in
the Federal Register.\18\
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\17\ The Supreme Court so held in Franklin v. Massachusetts, 505
U.S. 788 (1992). For this reason, it declined to interpret the term
agency to include the President.
\18\ Where the President's power is established in the
Constitution's text, for example the appointments power or the pardon
power, it would raise serious constitutional questions for Congress to
regulate the Present's exercise of the power in this way. See, e.g.,
Public Citizen v. United States Department of Justice, 491 U.S. 440
(1989).
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Even though not subject to the APA, executive orders are subject to
important internal and external (to the executive branch) checks.
Externally, the courts will conduct an independent review of any order
that affects an individual with standing to bring a lawsuit.\19\ Even
when review in an Article III court is not available, there are other
vehicles that can serve to provide external review of the legal basis
for the President's assertion of authority to issue an executive order.
For many types of executive orders, the opinions of the Comptroller
General stand as an independent source of legal analysis. The
Congressional Research Service, and the House and Senate Legal Counsel
are also capable of providing members of Congress with an independent
assessment of presidential assertions of authority. Aside from legal
analysis, interest groups closely watch executive orders and raise
policy objections if they disagree on policy grounds with the approach
of an executive order. Finally, in the ways discussed above, Congress
remains actively vigilant against the President overstepping the bounds
of his authority. Indeed, the current majority in Congress has been, by
at least one measure, the most active guardian of its legislative role
against presidential incursions. In the twenty-five years from January
1973 through the end of 1997, legislation to overturn an executive
order was introduced on 37 occasions. Of these, 11 occurred in the last
three years, 1995-1997.\20\
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\19\ Eighty-six executive orders have been subject to court
challenge. Of these, the President's authority to issue the order has
been upheld in seventy-two (approximately 84%). Moe & Howell, at 175.
\20\ Moe & Howell, at 166.
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Before an executive order is submitted to the President for his
signature, it is sent to the Office of Legal Counsel for approval of
its form and legality.\21\ The order proceeds to the President only if
OLC agrees that the order is validly based on legal authority and a
form memorandum stating the approval as to form and legality
accompanies the order when it is presented to the President for his
signature. Where the order presents a colorable issue as to the
authority of the President, OLC will prepare a memorandum setting forth
its analysis of the question. In the case of an order that does not
involve classified material, the OLC analysis is generally made public.
This allows Congress and the public to determine for themselves whether
the order is validly based on legal authority, found either in the
Constitution or in statues. In addition, past opinions of OLC stand as
guides, or precedent, by which to judge the reasoning that supports
current executive orders. These internal procedures enable the external
checks--expecially the vigilance of Congress, interest groups, and the
courts--to function more effectively.
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\21\ See 28 C.F.R. 0.25(b).
Mr. Goss. Mr. Bedell.
STATEMENT OF ROBERT BEDELL
Mr. Bedell. Thank you, Mr. Chairman, I too will not repeat
what is in my written statement. Nor will I address the
subjects that are being addressed by the others on the panel
here.
Mr. Goss. I will state that, without objection, all of the
testimony that's been written and prepared will be accepted
into the record. I look forward to your flying as far from it
as you wish.
Mr. Bedell. Thank you. I just wanted to make a couple of
points.
First of all, OMB, the Office of Management and Budget, in
the Executive Office of the President has the responsibility to
process executive orders for the consideration of the
President; and for about 10 years, that was among my
responsibilities in the General Counsel's Office in OMB. It has
been the job of OMB and its predecessors for about 50 years, as
best I can tell, to specifically review and process these
executive orders. The process has about four major points.
One, everybody knows that OMB controls this process and
runs it, and that is the way by which the formal executive
orders are considered and processed and presented to the
President. Again, part of this process is run by the General
Counsel's Office, and we take a quick look to make sure that
the head of an agency has indeed proposed it, not somebody who
is thinking on the way home on the bus that ``hey, I have got
an idea and let's send it over to OMB.'' So we review it to
make sure that it is indeed an agency proposal that comes over.
Secondly, we make sure that it has what appears to be the
appropriate legal basis for doing what it proposes and that it
is roughly consistent with what we understand to be the policy
of the President and the administration on a particular matter.
If we have questions on any of that, we pursue those as well.
We then coordinate these draft proposals with other people
within the Executive Office of the President and with the
concerned departments and agencies, those we know should have
an interest in this; and we attempt to rationalize and to
settle any differing views that there may be within the
executive branch with regard to the substance of these orders.
And then, as has been mentioned, and I am sure Tom will
mention as well, the Office of Legal Counsel in the Department
of Justice plays a critical role throughout all of these
proceedings. If we have questions early on in the review
process of these executive orders about the legality of a
particular idea or proposal, we involve the Office of Legal
Counsel in an informal fashion very early on.
We don't need to waste a whole lot of time processing
something and hammering out details if there isn't the basic
legal authority to continue in the first place. But always at
the end of the process, on the routing from the Director of the
Office of Management and Budget to the White House, the Office
of Legal Counsel is involved speaking on behalf of the Attorney
General with regard to form and legality of any executive
order--that, again, being another check to make sure that the
President has the requisite authority before we present it to
him and to his staff as well.
And then finally, an order, once considered by the
President and signed, is sent to the Federal Register, where it
is then published, codified and made available to everyone to
see.
So there is a process. It has been basically the same
process for 40 or 50 years. It may vary depending upon the
attitudes of the people, but basically, all the folks who
process this stuff are career employees of the Executive Office
of the President. They guard the fact of an executive order, or
that one is in process, very closely. It is not something which
is a public process at all. We don't discuss that orders are
under review. That, in itself, would bring undue attention and
pressure by others into a process that frankly doesn't need it.
Is there ever any interaction with the public on this? I am
sure there is, but it just isn't done by OMB, or it wasn't done
during my time there. It may be done by those who advise the
President and it may be done at the Department or at an agency
level, but it is simply not done by us, or wasn't done by us, I
should say.
Another thing I wanted to mention was the fact that the
executive order is a used, useful means by which the law
governing how executive branch officials work is handled. It is
a key component to that, but is only one. The President makes
orders of a different nature every day. He decides on
appointees. He decides on whether particular legislation should
contain this element or that. He makes budget decisions. He
makes orders on a continual basis, and people who have been
delegated authority by him also do so in his name.
Those too are orders but of a different sense: executive
orders are the ones with the legal effect and with general
applicability and don't just simply apply to the departments
and agencies. They affect other things as well, as has been
mentioned, but they are just one part of this activity.
Just to give you an idea of the complexities with which
some of these things occur, there is also a Reorganization
Authority that Congress has enacted, and while it lapses
periodically--I have often observed it lapsed during Republican
administrations and was in effect during most of the Democratic
administrations, it seemed. The way that it works is that the
President is authorized to submit a Reorganization Plan to
Congress, and then, at one point in time it was subject to a
one-House vote--veto, rather--until that was determined to be
an unconstitutional process; and now it requires approval by
both Houses under expedited procedures.
But the point is that this is yet another means by which
something other than ``pure'' lawmaking out of the legislative
branch, as you know it, takes place.
Now, the Office of Management and Budget itself can be kind
of a study of all of this stuff combined. Prior to about 1939
or so, the Bureau of the Budget existed as part of the Treasury
Department, and carried out the Budget and Accounting Act,
Budget and Accounting Procedures Act, and several other
statutes that primarily focused on its budget responsibilities.
It was then transferred over to the Executive Office of the
President. I think that too was done by an executive order.
Additional statutory responsibilities were assigned to it, such
as the Federal Reports Act of 1946, its paperwork reduction
authority and its process came when it was part of the
Executive Office of the President. So the Congress continued to
pass statutes giving it additional responsibilities.
In 1970, there was a presidential study by Roy Ash, called
the Ash Report, which dealt with the organization of the
Executive Office of the President. As a result of that, in
reorganization plan number two, of 1970, President Nixon
proposed that all of the authorities of the Bureau of the
Budget be transferred back to him and that a new office--called
the Office of Management and Budget--be created. That
Reorganization Plan was approved by Congress. It became the
law, just as a statute, because that's what the authority
provides.
As soon as that became effective, the President issued
Executive Order 11541, which then delegated back to the Office
of Management and Budget all of the authorities that had been
transferred to him by this Reorganization Plan, the legal
effect of which was that at that point in time the President
could have the next day signed another executive order
assigning all of those previous statutory authorities of the
Office of Management and Budget around wherever he wanted.
Well, since that time, several other things have happened.
Congress has passed additional statutes concerning the Office
of Management and Budget, some of them dealing with the very
same subject matters as had been transferred by this
Reorganization Plan and then delegated down. So in a sense now
Congress has reentered the picture here and solidified many of
these authorities of OMB, so that it is very questionable
whether the President still could reassign these things,
Congress having now spoken on that issue again after the
Reorganization Authority.
And then, pursuant to all of these authorities, OMB engages
in some limited rulemaking, certainly not as active as many of
the other agencies, that binds them in certain ways; and they
also issue certain non-binding instructions that apply only to
departments and agencies--at least, are supposed to--and those
are called OMB Circulars. And I know that you have looked into
those and confronted those in the past, but they deal with
hundreds of different subjects all the way from overhead for
nonprofit institutions to the procedures for preparing the
budget, for contracting out under OMB's Circular A-76, which
has been a very controversial issue in the past. So there are
also those kinds of actions.
So the executive order then, taking several steps back, is
just one of the mechanisms that a President uses to provide
guidance and instructions to his appointees, but there are lots
of others as well; and over time they have gotten intertwined,
and it is difficult in many instances to sort out the authority
of one from another.
The last point I want to make is that with regard to the
many things that could be done to improve congressional
oversight, if that is the purpose, I have a quick story. I
remember back in the early part of the Carter Administration,
again dealing with a reorganization plan, they had worked and
worked and worked and they had a Reorganization Plan and they
had coordinated it with the Chairman of the Government
Operations Committee and they were all relatively comfortable
with what it would do.
The Reorganization Plan was issued. It took effect, and
shortly thereafter an executive order was issued which
basically turned the reorganization plan on its head and
changed a lot of the policy views--at least in the opinion of
the Chairman of the House Government Operations Committee--on
things that had been hammered out. Effective oversight took
place. There was not another Reorganization Plan approved for
quite some time.
The Authority itself was amended to make sure, if I
recall--and I didn't have a chance to check this--to make sure
that draft executive orders implementing Reorganization Plans
had to be submitted with the Reorganization Plan or they would
not have effect. The legislative agenda of the committee--and
of the administration for the next couple of years, at least as
it pertained to Government Operations--was radically altered
and there were some very, very uncomfortable hearings, more so
than that administration wanted at that period of time.
So sometimes traditional means of congressional oversight
can be very, very effective. And that is the last thing that I
wanted to say.
Mr. Goss. Thank you, Mr. Bedell.
[The statement of Mr. Bedell follows:]
Prepared Statement of Robert P. Bedell
I am Bob Bedell and the Subcommitee invited me to testify during
these hearings entitled ``The Impact of Executive Orders on the
Legislative Process: Executive Lawmaking?'' My perspective on the
Executive Order process was gained from the 15 years I spent as an
employee of the Office of Management and Budget from 1973 until 1988.
The OMB's General Counsel's Office is responsible for preparing
Executive Orders for the President's consideration. From 1983 through
most of 1986, I was the Deputy and often Acting Administrator of the
Office of Information and Regulatory Affairs (OIRA) at OMB, where I
carried out President Reagan's Executive Order No. 12291 establishing
his regulatory policies. And from 1986 until 1988, I was the
Administrator of the Office of Federal Procurement Policy at OMB.
There are orders by the Chief Executive and there are Executive
Orders. Executive Orders are only one of several ways by which
Presidents have communicated their policies and instructions to the
heads of Executive departments and agencies.
Executive Orders are defined by statute to include documents issued
by Presidents that have ``general applicability and legal effect.''
They do not include orders that are ``effective only against Federal
agencies or persons in their capacity as officers, agents, or employees
thereof.'' Since the enactment of the Federal Register Act in 1936,
these Executive Orders have been required to be published in the
Federal Register so that the public and Congress may be informed of the
President's policies and instructions.
Orders of the President that do not have general applicability and
legal effect, or that apply only to Federal agencies or employees are
not required to be published in the Federal Register. These orders may
be published or they may not be. Some of these orders and instructions
dealing with the Federal Budget are published by the Office of
Management and Budget as OMB Circulars. They deal with everything from
the procedures and requirements for the preparation of the Budget that
Federal law requires the President to submit annually, to instructions
on how to implement the Federal Advisory Committee Act.
Like Executive Orders, these Circulars can be quite important and
are frequently watched with great interest by the public, the press and
Congress. Examples of these Circulars are the designation of Standard
Metropolitan Statistical Areas, the setting of overhead rates for
various non-profit organizations, and the requirements and procedures
for Federal agencies concerning contracting out for commercial
services. Frequently, Congress will hold hearings examining these
activities. I have testified at several.
My point in raising the OMB Circulars is partly to explain where
some of the orders and instructions may be found that do not meet the
statutory requirements to be an Executive Order published in the
Federal Register. It is also my purpose to point out that there are a
large number of documents that have been used by Presidents--and often
relied upon by Congress--to oversee and administer the responsibilities
of the Executive Branch of the Federal Government, and that Executive
Orders are only one of a number of these mechanisms.
There are numerous other kinds of Presidential directives (often
named differently in different Administrations) including Presidential
Memoranda and National Security Decisions, which are not published but
by which the President provides general instructions to agency heads of
his policy preferences. Furthermore, there are the daily ``orders'' of
the President and his delegates that are essential for running any
government or any enterprise for that matter. Such decisions include
those instructing the officers and employees of the Executive Branch
with regard to budget and funding decisions, appointments to office,
the construct of proposed legislation, national security decisions.
Sometimes these meet the statutory requirements of the Federal Register
Act and are processed and published in the Federal Register. Many times
they do not.
Often, Executive Orders, Reorganization Plans, Federal agency rules
and congressional enactments become intertwined creating the governing
law for a matter or an activity.
a very short overview of executive orders
Executive Orders have been used by Presidents since the founding of
the United States in order to communicate the President's policy
preferences to his appointees, Congress and the public, and to guide
agency heads in the exercise of their discretion. (Executive Orders are
also used by many, if not all, of the Governors of the States.)
From 1907 until the Federal Register Act of 1936, every Executive
Order was assigned a number by the Department of State. Orders issued
prior to 1907 were assigned numbers retroactively. But if the
Department of State did not have a document, it did not assign it a
number.
Prior to 1936 when the Federal Register Act required Executive
Orders with general applicability and legal effect to be published in
the Federal Register, there was no single place to go to find the full
text of them. Instead, there are various collections and compilations
of the messages and papers of the Presidents, from President Washington
on. As you might imagine, these collections and compilations include
all matters of state; some of the documents would meet our current
definition of an Executive Order and others would not. Perhaps the best
single source for Executive Orders is the CIS Index to Presidential
Executive Orders & Proclamations, 1789-1983.
Since 1936, ``Executive Order'' have been published in the Federal
Register, and since 1938, they have been complied annually in Title 3
of the Code of Federal Regulations. Since 1941, Executive Orders have
been published in the U.S. Code Congressional and Administrative News.
And, since 1965, Executive Orders can also be found in Weekly
Compilation of Presidential Documents.
Because an Executive Order remains in effect until modified and
Presidents have often modified Orders issued by their predecessors or
even themselves, there now are publications that indicate the Orders
that have been rescinded, modified or that have not been, at least
those Orders issued since 1945.
Recent Presidents have issued hundreds of Executive Orders.
President Kennedy issued 214 Executive Orders from 1961-1963. President
Johnson issued 324 from 1963-1969. President Nixon issued 346 from
1969-1974. President Ford issued 169 from 1974-1977. President Carter
issued 320 from 1977-1981. President Reagan issued 381 from 1981-1989.
President Bush issued 166 from 1989-1993. And President Clinton has
issued 307 Executive Orders from 1993-Present.
The Office of the Federal Register, created in the Federal Register
Act of 1936, is now located in the National Archives and Records
Administration and is responsible for the display and publication of
Executive Orders.
the process by which executive orders are issued
The process by which Executive Orders are issued is itself the
subject of an Executive Order, currently Executive Order No. 11030,
issued on June 19, 1962 by President Kennedy. This Order appears in the
Federal Register and in the Code of Federal Regulations for the
relevant period. As is the custom with modern Executive Orders, E.O.
11030 cities the Executive Orders (if any) that it supercedes, modifies
or repeals, in this instance, Executive Order 10006 of October 9, 1948.
One of the earliest Executive Orders on Executive Orders was Executive
Order 5220 issued by President Hoover in 1929.
Under the current Executive Order on Executive Orders, formal
process for issuing this form of Presidential commands has evolved. The
process has four critical features:
1. Coordination of proposed Executive orders by the Office of
Management and Budget
2. Circulation of proposed Executive orders by the General Counsel
of OMB to interested departments and agencies and concerned parts of
the White House staff. If there is a policy disagreement about the
wisdom or terms of an Executive order, OMB determines or designs an
inter-agency dispute resolution process to address the issues.
3. Transmission of the proposed Executive order from the Director
of OMB to the President through the Office of Legal Counsel of the
Department of Justice. The Office of Legal Counsel, on behalf of the
Attorney General, issue an opinion on each proposed order expressing
its views whether the proposal is acceptable for form and legality.
4. Circulation of the proposed Executive order within the White
House staff, after its receipt from Justice, to make certain that its
terms are acceptable to the President and that there are no further
policy issues that need to be resolved.
Once these steps have been concluded, the Executive Order is
presented to the President for his signature. The White House clerk
then transmits the signed Executive Order to the Office of the Federal
Register for numbering and publication.
areas of interest to the subcommittee
In your letter inviting me to testify, you asked several questions
and described several areas of interest, including--
An examination of Executive Orders from a process perspective:
The legal guidelines and historical precedent for them;
The process by which they are developed and implemented;
The impact that they can have on the prerogatives of the Congress;
The extent to which the public is affected by them;
Given the size, scope and reach of the modern federal government,
whether it is appropriate for Executive Orders to have had the
significant policy implications that they have had;
What impact that the issuance of Executive Orders had on the
lawmaking authority and responsibility of Congress?
What should be the role of Congress in guarding its legislative
prerogatives and maintaining the proper balance between the executive
and legislative branches of government?
I believe that I have described the process by which Executive
Orders are promulgated already, but will be pleased to address any
other questions that the Subcommittee may have.
With regard to the legal guidelines for Executive Orders, let me
comment briefly on the OMB role in addressing the legal issues
concerning Executive Orders. First, the draft Orders are processed by
the OMB General Counsel's Office, which coordinates with the relevant
interests in the Executive Office of the President and the Department
and Agencies. OMB General Counsel seeks to ensure that from the
beginning there is sufficient authority for the issuance of the
proposed Executive Order. In cases of doubt, the proposal is circulated
to the Department of Justice at the initial stage, so that OMB may
obtain an early opinion as to the legality of the proposal, as
submitted, and whether changes are necessary to conform to the law.
The OMB General Counsel frequently coordinates with the Department
of Justice, both formally and informally, if there are significant
questions about the authority involved or to determine if there are
constraints upon the direction an order must adhere to. The final call
on the legality of a proposed Executive order is the responsibility of
the Attorney General, through the Office of Legal Counsel, within the
Department of Justice, during the formal transmission from the Director
of OMB to the President. The White House staff will not initiate the
final approval process for a proposed Executive order unless there is
an opinion from the Department of Justice approving the proposed order
on legal grounds. Finally, during the White House staff circulation of
a proposed Executive order, the matter is reviewed by the White House
counsel, who consults frequently with OMB and the Department of Justice
about any questions of the President's legal or constitutional
authority to issue the proposed order.
I should also add that each Executive Order begins with a statement
of the authority for its issuance. Many times this is a statute enacted
by Congress, sometimes it is purely an exercise of the President's
authorities under the Constitution and sometimes it is a combination of
the two. If a statute authorizes or requires the President to do
something, the question of whether the President has somewhat exceeded
his authority is answered by looking to see whether what he does is
within the scope of what Congress authorized him to do. If it is, the
questions about authority (and encroachment on the prerogatives of
Congress) I believe are largely resolved. If it is outside the scope of
what is authorized by a statute, and not otherwise authorized by
another statute or the Constitution, that action should be reversed.
Federal courts have not hesitated to overturn Executive Orders that
exceed the President's authority, most notably in the case of the
Executive Order issued by President Truman to seize the steel mills
during the Korean War.
The most difficult legal situation is where the President relying
upon either a constitutional provision or a general statutory provision
takes action in a field that has been highly regulated by Congress.
Sometimes--although rarely--the legal judgments of the President's
lawyers are not correct. This is in part because some judgments are
close calls without clear precedent. Although I have no empirical
evidence to support this, I believe that in most of these cases, the
Executive Order is overturned as to its offending provisions. For
most--if not all--Executive Orders, judicial oversight is generally
available as is congressional oversight.
With regard to the impact that Executive Orders may have on the
prerogatives of the Congress, I think that in very few instances--
primarily where the Constitution or the Congress itself has assigned a
responsibility or authority to the unreviewable discretion of the
Presisdent--are the prerogatives of Congress unalterably affected by an
Executive Order. Congress can act to undue what a President has done by
Executive Order in most instances. The prerogative of Congress to
legislate is accordingly not unalterably affected by most Executive
Orders.
As a practical matter, if Congress chooses to over-ride a feature
of an Executive order by enacting a statute, the President may require
that each House approve that legislation by a \2/3\ vote, often a tall
order. But this is the case with any legislation as provided in the
Constitution. The real question is whether the President has the
requisite authority to do what he proposes in an Executive Order, and I
believe that Congress retains its full panoply of prerogatives to deal
with it.
The question of whether Presidents have become more assertive in
issuing Executive Orders and the Congress less diligent in reviewing
them and their authorities is a different question, of course, and one
that is difficult for me to assess. I do know that the congressional
oversight of programs that I helped to run at OMB was often quite
intense. I find it hard to imagine more intense oversight by Congress
than its constant review of OMB's review of agency regulations under
President Reagan's Executive Order 12291. On the other hand, the
newspapers tell me that Congress has not been slow to review and
criticize the actions of successor Presidents, including their
Executive Orders.
Whether it is any more or less intense today is hard for me to
tell. But what I think is clear is that Congress--regardless of the
Majority party--must carefully review presidential Executive Orders to
ensure that the necessary authority is present and to ensure that they
agree with the policy involved. If it doesn't, then it needs to address
it as best it can, like any other decision or direction from the Chief
Executive. This may be by legislation and it may be in the endless
compromises that are the life-blood of the relationship between these
Branches of our government.
With regard to the question of the extent to which the public is
affected by them, I think the answer is that the public is affected by
them, and depending upon the Order, an individual may be significantly
affected by an Order. In part, this is because of the definition of an
Executive Order--general applicability and legal effect. It is
difficult to think of an Executive Order that would not affect the
public in some way.
With regard to the question of whether it is appropriate for
Executive Orders to have had the significant policy implications that
they have had, I think that in the circumstance where Congress has
delegated by statute the authority or the responsibility to make a
decision, I am not troubled if a president then utilizes that authority
or carries out his responsibilities by an Executive Order, even if the
ramifications are significant. And there are several reasons for a
delegation to the President by Congress, e.g., sometimes Congress
delegates to the President decisions that it cannot agree on, leaving
it to the Executive to parse finely the needed compromises; and in some
instances it is the sole responsibility of the Executive to implement
decisions. I am also not troubled by the President issuing Executive
Orders using authority granted to him by the Constitution. And
generally, I am not troubled by hortatory Orders, although most of
these should be Proclamations.
Executive Orders may implement only the degree of power that has
been delegated to the President by the Constitution or by statute. The
ultimate decision about how much authority to delegate, and to which
official in the Executive Branch, remains with Congress. In most
instances, Congress delegates power to the head of a department or
agency, rather than to the President. No matter how much he may wish he
could, the President cannot overturn that delegation of power.
Accordingly, the most frequent use of Executive Orders is to make a
public statement from the President to his agency heads as to the lines
along which he wishes them to exercise their discretion--but only to
the extent, if any, that Congress has granted agency heads discretion
in carrying out what Congress has delegated to them.
Except for that small number of Executive Orders that implement
authority Congress has delegated directly to the President (Executive
Orders implementing the Superfund statute are a good example),
Executive orders have no greater legal effect or force than other, less
formal means by which a President may communicate with his agency
heads--i.e., a written Presidential Memorandum; a statement in a press
conference; a telephone call from an assistant to the President. From a
public policy perspective, Executive Orders have one salient advantage
over these other, less formal and invisible means of communication;
they are published in the Federal Register, so that both the Congress
and the public can understand what the President has done and can hold
him accountable for his actions.
The Committee also should understand the severe limitation that
Executive Orders have from the point of view of the President and his
senior staff. Again, with the exception of that small number of
Executive Orders that implement statutory authority granted directly to
the President, Executive orders are administratively enforceable only
against agency heads. Executive Orders usually do not create legal
rights that can be enforced in court by a private party. Rather, the
enforcement device is political. If an agency head fails to comply with
an Executive Order, the lapse will have no effect whatsoever unless
brought to the attention of the President and the White House staff. As
with any other White House policy, if the President finds that an
agency head has not followed his policy preferences, the President may
ignore the matter or may use any of his tools to induce compliance,
from calling the agency head on the carpet, to cutting the agency's
budget or, in severe cases, dismissing the offending official. There
frequently would be a political price to pay for any of these actions,
including the expression of Congressional displeasure.
The result of the anomalous legal status of Executive Orders is
that they often have more apparent than real effect. Many Executive
Orders are quietly abandoned or modified in practice, without a formal
amendment or repeal of the published text. A President may issue an
apparently sweeping Executive Order directing his agency heads to do
something or take something into account as they exercise their
discretion, only to find that these Orders are routinely ignored by the
agencies, and the White House staff is often powerless to prevent their
evasion.
What impact has the issuance of Executive Orders had on the
lawmaking authority and responsibility of Congress? In some instances,
I believe that some Executive Orders have resulted in actions that are
taken by the Federal Government that would not have been taken by
Congress acting alone. (In most of these instances, however, I think
there is a significant segment of the Congress that nonetheless agrees
with the presidential action.) I am not troubled by this as long as the
authority to do what is done is sufficient. Whether it is the right
thing to do is another question, but the question of whether doing
something that a President is authorized to do is inappropriate simply
because it is done by an Executive Order is not a difficult issue for
me as long as the authority to take the action is sufficient. When the
authority for the Executive is sufficient, the effects upon Congress'
authorities and responsibilities remain, in the legal sense,
unaffected.
In reality, what the Executive Order process can provide to a
President is a combination of the power of taking initiative, combined
with the bully pulpit. In cases of inactivity or deadlock, the
President may issue an Executive Order to announce his policy
preferences to Congress and the public and to instruct his agency heads
that they should exercise their discretion, if Congress has given them
any, to follow his policy to the extent they can. The President may or
may not be able to make agency heads respond to his lead. For example,
in the case of President Reagan, his Administration was able to induce
compliance from most agencies with Executive Order No. 12291, requiring
submission of proposed rules to the White House for pre-promulgation
policy review. But despite their consistency with the President's
overall policy goals, there was significantly less agency compliance
with other Executive Orders.
As with other exercises of the Presidential power of initiative
(such as statements at press conferences or calls from the Chief of
Staff to an agency head), Congress may exercise effective oversight and
lawmaking authority. For example, Congress may, and frequently has,
attached appropriations riders to laws that prohibit affected agencies
from spending any money whatsoever on implementing an Executive Order.
In such cases, Congress has effectively removed all discretion from the
agency, and there is nothing that its head can do to implement the
Order, even if the political appointee wishes to follow the President's
policy.
Accordingly, Executive Orders may be thought of as a particularly
visible and transparent mechanism, among many similar mechanisms
available to the President, by which he may announce a policy and
attempt to rally public support behind it, in the hope that the policy
will attract sufficient public support that by the time Congress
exercises its power to review and modify the policy, the President's
policy preference will have made sufficient headway that the status quo
can never be re-instituted, and the ultimate policy outcome will be
advanced somewhat along the lines the President prefers.
Again, from a purely legal standpoint, I think the issuance of
Executive Orders has very little impact on the lawmaking authority and
responsibility of Congress, especially when authority and
responsibility mean the ability of Congress to act, not the likelihood
that Congress will act in response to an Executive Order. On the other
hand, I cannot recall an instance where Congress simply repealed an
Executive Order outright. They may have changed how an Executive Order
works, but I cannot recall that they have reversed one outright. I
think that the reason Congress has not repealed many (if any) outright
is because Congress is sufficiently divided on the substance of the
Order to prevent it from taking action as a Congress.
If the President has the authority to take action, it may take a
two-thirds vote in each House to overturn his action, or a
constitutional amendment if authorized by the Constitution. But this
has nothing to do with Executive Orders. The President is either
authorized or he is not. Acting by Executive Order neither adds or
detracts from the question of authority.
What should be the role of Congress in guarding its legislative
prerogatives and maintaining the proper balance between the executive
and legislative branches of government? Even as a response to a
question, it is somewhat presumptuous of me to advise the Congress on
what it should do in this regard. Nonetheless, here's what I recommend:
Be careful what you authorize the President to do in statutes that
you pass. His exercise of that authority is likely to be sustained and
political challenges will fall short;
Pass laws on the subject of an Executive Order even if there's not
much you can do about it because the President is exercising clear
constitutional authority. These will have an effect because Congress
will have spoken on the issue and perhaps pre-empted the issue;
Require that the President describe what action he would recommend
in Executive Order detail before you authorize him to act. For example,
authorize the President to make specific recommendations after studying
an issue and then provide further legislative authorization to proceed;
Scrutinize every Executive Order issued and hold hearings on them
on a regular basis
Require in the statute providing the President with the requisite
authority to act by Executive Order;
Review the grants of authority of prior Congresses. Many of these
are quite broad. For example, Presidents have been able to hook civil
rights and wage and price rules to 50 year-old procurement laws.
Although major changes were made in procurement authorities in the last
5 years, these provisions were not changed; indeed, authorities of the
Executive Branch were increased.
This concludes my written testimony. I will try to answer any
questions that the Subcommittee may have.
Mr. Goss. Mr. Sargentich.
STATEMENT OF TOM SARGENTICH
Mr. Sargentich. Thank you, Mr. Chairman and members of the
committee. My name is Tom Sargentich, and I teach at American
University's Washington College of Law. I codirect our program
on law and government which studies issues at the intersection
of law, politics and government. There is no issue more central
than this one at the intersection of law and government.
I won't repeat points in my statement or ably made by my
colleagues. What I would like to do instead is simply to make
three points that strike me as important. I want to talk
briefly about executive lawmaking. I would like to talk for a
moment about the history of executive lawmaking by Presidents,
to highlight it, and then I would like to talk for a moment
about the oversight power of Congress.
I don't think the public appreciates the extent to which
lawmaking is conducted by the executive branch. Congress, of
course, is the national legislature, but you have delegated
necessarily broad powers in many, many statutes to agencies of
the government and, of course, to the President. And pursuant
to these delegations--as well as constitutional power, I say to
my classes--most lawmaking is conducted by executive agents,
that is, authorities of the executive branch. By far, if you
look at regulations of agencies, at other decisions by
agencies, and at executive orders and proclamations, the vast
quantity of law in the United States is made not by Congress
but by the executive branch--now, making law, of course,
pursuant to hopefully constitutional authority and statutory
authority.
Now, when it comes to the President, executive orders are
generally directed at the executive agencies, and presidential
proclamations are generally directed at citizens. That's the
traditional distinction, although it gets mixed up sometimes in
practice. If you combine executive orders and proclamations, as
well as national security directives as well as other forms of
directives, you have an enormous body of law; and it has
happened regularly throughout our history. It is nothing new in
the modern period.
So my first point, again, is to stress how important the
subject is in general--not just, of course, presidential
lawmaking, but also agency lawmaking. As a person who believes
in checks and balances, I think it is wonderful that a
committee such as this is undertaking a study of presidential
lawmaking.
My second point has to do with some of the famous examples
of presidential directives that have made law. It is really
quite stunning in American history how much law was made by
Presidents unilaterally. George Washington, in 1793, declared
in a neutrality proclamation that the United States would be
neutral in a war between England and France. That had nothing
to do with Congress; that was done by the President. It led to
an enormous debate between Madison and Hamilton, a famous
debate about the power of the President. Also the Louisiana
Purchase was done by Thomas Jefferson through a presidential
directive. The annexation of Texas was done by presidential
directive. Lincoln issued the Emancipation Proclamation by
presidential directive to free the slaves.
During World War II, of course, Roosevelt issued that
infamous order interning Japanese on the West Coast, which was
upheld in Korematsu. This is a dark chapter in our history, and
led Congress in recent years to pass reparations legislation
for the families that were so treated.
Harry Truman desegregated the military by executive order
after World War II. President Kennedy created the Peace Corps
by executive order. Ultimately, of course, there was a statute,
but the beginning of it was through an executive order. Kennedy
used emergency funds, as is often done; and then he needed
money, of course, and Congress has the power of the purse, and
it appropriated funds for the Peace Corps.
Affirmative action and many civil rights initiatives by
Presidents back to Franklin Roosevelt were done by executive
order. A system of centralized executive review of rulemaking
going back to the Nixon administration, the Carter
administration, the Reagan administration, and the Clinton
administration, all done by executive order. And this is just
the tip of the iceberg. Enormous historical events can be
traced back to presidential, unilateral power--what amounts to
presidential lawmaking or unilateral presidential action.
Now, the third point. I agree with my colleagues as to the
categories of things Congress can do, and it seem to me one of
the most important things is oversight. And I just wanted to
address some of the problems that clearly confront Congress
when it engages in oversight power. This is widely recognized
in the literature.
What are the incentives on individual Members of Congress?
Clearly, the political science literature says, to get
reelected. How do you get reelected? By appealing to
constituents. Now, if constituents aren't excited by something,
then what is the incentive for an individual Member of Congress
to get excited about something? Political scientists have
started with this premise and have argued that, therefore,
Members of Congress often do not have very strong incentives to
protect the power of Congress as an institution because that's
rather more abstract and rather more general. And yet Justice
Jackson said famously in Youngstown, only Congress can prevent
power from slipping through its fingers.
A second problem that confronts Congress, aside from its
incentives, is the organizational difficulty of passing laws
that you are very familiar with, more familiar than any of us.
You have got the subcommittee to deal with, you have got the
committee to deal with it. You have to get it through
committees in both the House and the Senate in identical form.
There are many other roadblocks, of course, that can
occur--not just the filibusters, but the Rules Committees and
the leadership, and others. It is difficult, clearly,
organizationally to corral hundreds of Members of Congress. You
have tremendous transaction costs and collective action
problems getting legislation through.
It is much easier for a President to sign a document, with
one person acting flexibly, taking the initiative. The
incentives for the President clearly are to push the use of the
ambiguous Article II power and to do so in a way that protects
the power and prerogatives of the executive.
Congress, on the other hand, has difficulty according to
the literature, given that their incentives are not so much to
protect the institution of Congress as to get reelected. There
is a need, in my view, to address that issue. And secondly, the
operational problems of acting collectively are considerable.
What does this mean? It means simply that a hearing like
this, I think, is an excellent thing. I am a believer in checks
and balances, and I do believe that it is important for there
to be dialogue between the branches. But I don't think we
should be surprised that Presidents through our history have
used the unilateral lawmaking power aggressively, given the
ambiguity of Article II power, given the flexibility of
executive action, and given the broad delegations that have
gone to the executive.
Thank you.
[The statement of Mr. Sargentich follows:]
Prepared Statement of Thomas O. Sargentich
Chair and Members of the Subcommittee: My name is Thomas
Sargentich, and I am a professor of law at American University
Washington College of Law. I co-direct our Program Law and Government,
which focuses on the study of administrative law and regulatory policy
as well as constitutional law and rights. I also am the director of our
LL.M. Program on Law and Government. From 1978 until 1983, I worked in
the Office of Legal Counsel of the U.S. Department of Justice. In OLC,
I participated in the consideration of numerous issues involving
constitutional and statutory powers of the President and executive
agencies. Among other things, I participated in the review of a number
of proposed executive orders and other presidential actions.
I am pleased to be here today to discuss presidential power under
Article II and, in particular, the power to issue executive directives
that constitute, in any colloquial sense, ``lawmaking.'' \1\ There can
be no doubt that presidential ``lawmaking'' by executive order is a
central phenomenon in modern governance. Let me highlight my
conclusions at the beginning.
---------------------------------------------------------------------------
\1\ For general discussion of presidential lawmaking through
executive orders, see William Neighbors, Presidential Legislation by
Executive Order, 37 U.Col L. Rev. 105 (1964); Joel Fleishman & Arthur
Aufses, Law and Orders: The Problem of Presidential Legislation, 40 Law
& Contemp. Probs. 1 (1976).
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I. Summary of Conclusions
First, the President is the federal official in whom the U.S.
Constitution vests the executive power. The term, executive power,
refers to the execution of the law, which includes the Constitution as
well as the body of statutory law granting authority to the executive
branch.
Second, there is an ongoing debate about the extent of executive
power under the Constitution. Some have argued that the President has a
vast reservoir of inherent executive power, whereas others believe that
the President can do only what Congress specifically authorizes by
statute.
In my view, the proper construction lies between these two
extremes. On the one hand, the Supreme Court has questioned the theory
of uncharted ``inherent'' executive power. The President does have to
conform to constitutional and statutory limits. On the other hand, the
President has broad power to oversee and supervise the execution of the
law by executive officials.\2\ Also, the President is one of the
constitutionally named repositories of governmental power, the others
being Congress and the Supreme Court. It does not make sense to say
that the President has only the authority provided specifically by
statute, for that would reduce the President's role to being the
implementor of express grants that Congress chooses to provide from
time to time. Just as Congress has authority given to it by Article I,
the President has power pursuant to Article II.
---------------------------------------------------------------------------
\2\ The President's power to supervise and guide the execution of
the law is generally grounded on Myers v. United States, 272 U.S. 52
(1926). See also Humphrey's Executor v. United States, 295 U.S. 602
(1935) (upholding independent agencies whose members are not removable
at will by the President).
---------------------------------------------------------------------------
Third, some argue that the President has no ``lawmaking'' power.
Such a claim is seriously overstated. It rests on an unworkably rigid,
definitionalist distinction between ``lawmaking'' and ``execution'' of
the law. To be sure, Congress is the national legislature, and must be
respected as such. However, the courts have long accepted broad
delegations of authority to the executive branch. Such delegations
inevitably call for the interpretation and application of statutory
provisions. Such interpretation and application, in any ordinary usage,
is a form of lawmaking. In practice the President, through executive
orders or other directives, does engage in what colloquially can be
called ``lawmaking''--although in constitutional terms, the President
is executing some prior statute or constitutional provision.\3\
---------------------------------------------------------------------------
\3\ I return to this point in discussing Youngstown at page 6
below.
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Fourth, it is worth underscoring that the President does not have
unlimited power to issue executive orders that make law. In every
instance, a reasonable connection with a constitutional or statutory
grant of authority needs to be made. Consequently, each order should be
viewed on its own terms.\4\
---------------------------------------------------------------------------
\4\ Compare American Federation of Government Employees v. Reagan,
870 F. 2d 723 (D.C. Cir. 1989) (holding that relevant statute did not
require President to incorporate written findings into an executive
order implementing his statutory authority to exempt certain agencies
from coverage by the statute) with Reyes v. U.S Dept. of Immigration
and Naturalization, 910 F. 2d 611 (9th Cir. 1990) (invalidating
executive order imposing restriction on geographical areas within which
Philippines national who had served in the U.S. military could serve
and be eligible for naturalization for the statute authorized no such
limitation).
---------------------------------------------------------------------------
Fifth, Congress should protect its own power in this context. As
Justice Jackson once stated, ``only Congress itself can prevent power
from slipping through its fingers.'' \5\ In particular, Congress has an
important responsibility to help maintain a balance between the
executive and legislative branches of government. The central
prerogative of Congress, when it considers that an executive order or
other presidential directive goes too far in policy or legal terms, is
to exercise its oversight authority.\6\ The key practical question is
whether or not to engage in oversight of a particular presidential
action. Case-by-case engagement between the legislative and executive
branches is certainly consistent with our system of separation of
powers and checks and balances.
---------------------------------------------------------------------------
\5\ See Youngtown Sheet & Tube Co. v. Sawyer. 343 U.S. 579, 654
(1952) (Jackson, J., concurring).
\6\ Executive orders are publicly available once issued. See U.S.C.
Sec. 1505 (requiring orders and proclamations to be published in the
Federal Register); Exec. Order No. 11,030, 27 Fed. Reg. 5847 (1962)
(dealing with preparation filing and publication of executive orders).
---------------------------------------------------------------------------
Having stated my general conclusion, let me hasten to add I am
aware that there have been controversies about President Clinton's use
of executive orders. I would simply comment that such controversies are
not unusual. Debates about executive orders have occurred with respect
to every President in modern times.\7\ We should remember that vigorous
give-and-take between the executive and legislative branches is
precisely what is contemplated by our system of separation of powers.
It is natural and appropriate that there will be bargaining and
negotiation between the two political branches in the development of
national policy. To be sure, a certain degree of self-restraint on both
sides is necessary in order for the process of checks and balances to
work effectively.
---------------------------------------------------------------------------
\7\ See generally Louis Fisher, Executive Orders and Proclamations,
1933-99: Controversies with Congress and in the Courts, CRS Report for
Congress, Order Code RL 30264 (July 23, 1999).
---------------------------------------------------------------------------
I will now discuss two leading Supreme Court decisions dealing with
the President's power to issue executive orders: Youngstown and Dames &
Moore. I will continue to develop the theme that case-by-case
investigation of presidential action is the appropriate way to review
executive orders.
ii. main cases dealing with executive orders
The leading case on presidential power to issue executive orders
remains Youngstown Sheet & Tube Company v. Sawyer, 343 US 579 (1952).
By a vote of 6 to 3, the Court struck down President Truman's executive
order seizing private steel mills. The President had acted in
anticipation of a strike by steel workers that he believed would
cripple the country's efforts in the Korean conflict. The President had
issued an executive order instructing the Secretary of Commerce to take
possession of and to operate most of the nation's mills. The President
gave notice to Congress of this action, but Congress did nothing
specific in response. The President's lawyers argued that although
there was no statutory authority for this action, the President had
inherent constitutional power as Chief Executive as well as authority
as Commander-in-Chief to take this step, relying upon an historical
practice of executive seizures of property.
Justice Black wrote the main opinion, which concluded that the
issuance of an executive order in this context amounted to unauthorized
lawmaking by the President. One of Justice Black's notable statements
was that ``the President's power to see that the laws are faithfully
executed refutes the idea that he is to be a lawmaker.'' \8\ Certainly,
the President must respect the role of Congress as the national
legislature. However, in any ordinary sense, executive branch rule
making is lawmaking when it establishes new, binding norms, even though
as a constitutional matter, rule making is seen as executive action. As
one commentator has stated, ``all statutory delegations of power to the
executive confer at least some discretion to define the law with
greater particularity--and thus to `make law'--through its execution.''
\9\ Accordingly, a highly abstract, definitionalist argument that only
Congress can make law does not stand up to scrutiny as a way to
distinguish between legislative and executive power.\10\
---------------------------------------------------------------------------
\8\ See 343 U.S. at 587.
\9\ See Harold H. Bruff, Judicial Review and the President's
Statutory Powers, 68 Va.L.Rev. 1, 6 (1982).
\10\ See Thomas O. Sargentich, The Contemporary Debate about
Legislative-Executive Separation of Powers, 72 Cornell L. Rev. 430,
431-432 (1987) (``[A]gency rulemaking obviously shares the core
characteristics--prospectivity, generality, policy-making force--
ascribed to legislated norms. As the Supreme Court acknowledged in a
classic delegation decision, United States v. Grimaud, it has become
`'difficult to define the line which separates legislative power to
make laws, from administrative authority to make regulations.'' In
Amalgamated Meat Cutters v. Connally, a leading statement of modern
delegation doctrine, the late Judge Leventhal noted that `no analytical
difference, no difference in kind' exists between the legislative
function `of prescribing rules for the future' and what agencies do by
rulemaking pursuant to statute.'') (footnotes omitted).
---------------------------------------------------------------------------
Of critical importance in Youngstown was the fact that the
executive order altered the legal status of private property in the
United States. Justice Black noted that this is the sort of thing that
Congress can do by statute, as long as it complies with any applicable
limits such as the Takings Clause.\11\ But in general, the President
needs some kind of authority in order to take the action. Justice Black
rejected the ideas that the President has ``inherent'' power in this
situation, or that the Commander-in-Chief Clause provides authority in
a context which is not at all near a theater of war.\12\
---------------------------------------------------------------------------
\11\ See 343 U.S. at 588.
\12\ See id. at 587.
---------------------------------------------------------------------------
Of note in Youngstown are the concurring opinions that go beyond a
formalistic definition of legislative versus executive power. Justice
Frankfurter suggested that longstanding executive practice, when there
is silent acquiescence by Congress, might provide some basis for
executive action.\13\ However, in this case, Frankfurter did not find
such a practice. Also, he stressed that Congress specifically rejected
a seizure provision during debate on the Labor Management Relations Act
of 1947.\14\ Moreover, there were statutes on the books that provided
for the President to take specific steps to accomplish a seizure.\15\
The President chose not to follow these statutes, but instead sought to
rely on general claims of power under Article II.
---------------------------------------------------------------------------
\13\ See id. at 610-611 (Frankfurter, J., concurring).
\14\ See id. at 599 (Frankfurter, J., concurring) (``A proposal
that the President be given powers to seize plants to avert a shutdown
where the `health and safety' of the nation was endangered was
thoroughly canvassed by Congress and rejected.'').
\15\ See id. at 597-98 (Frankfurter, J., concurring) (``Congress
has frequently--at least 16 times since 1916--specifically provided for
executive seizure of production, transportation, communications, or
storage facilities. In every case it has qualified this grant of power
with limitations and safeguards.'').
---------------------------------------------------------------------------
Justice Robert Jackson wrote the most famous opinion in Youngstown.
In his separate concurrence, he noted that there is a ``poverty of
really useful and unambiguous authority applicable to concrete problems
of executive power as they actually present themselves.'' \16\ He
referred to the well-known fact that the framers said little about
executive power. He also noted that subsequent authorities provided
``more or less apt quotations . . . on each side of any question.''
\17\
---------------------------------------------------------------------------
\16\ See id. at 634 (Jackson, J., concurring).
\17\ See id. at 634-635 (Jackson, J., concurring).
---------------------------------------------------------------------------
Justice Jackson established a useful, widely-followed framework for
analyzing issues of presidential power.\18\ He distinguished among
three different situations. The first is where the President acts with
all his own Article II power as well as an express or implied
authorization by Congress. Here, the President is at his height of
power. The second is where the President acts under Article II, but
without any authorization or any contradiction by Congress. Congress is
silent on the matter at issue. Here, Justice Jackson pointed out, one
is in a kind of ``zone of twilight'' \19\ in which the imponderables of
the moment are likely to count as significant factors in an analysis of
presidential power. This second category reflects the ambiguity of what
it can mean to be chief executive. In the third situation sketched by
Justice Jackson, the President claims to take action based on Article
II, but the action seems to contradict either an express or implied
limitation or direction established by Congress. Here, there is direct
tension between the competing claims of Article II and of Article I.
Justice Jackson doesn't say that in every case in situation three, the
President will necessarily lose, presumably because there may be
circumstances in which the President has some express constitutional
authority that Congress cannot cut off. However, it seems plain from
his opinion that the presumption in situation three is strongly against
the legality of presidential behavior.\20\
---------------------------------------------------------------------------
\18\ See id. at 635-638 (Jackson, J., concurring).
\19\ See id. at 637 (Jackson, J., concurring).
\20\ See id. at 638 (``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.'').
---------------------------------------------------------------------------
In Youngstown itself, Justice Jackson concluded that the
President's executive order was promulgated in a context properly
characterized as situation three. First, Congress had not authorized
the seizures, as the government admitted. Second, it would be difficult
to claim that Congress had been silent or had left the field open. In
fact, there were statutes dealing specifically with seizures of
military production facilities, which the President decided not to
invoke.\21\ Furthermore, in the legislative debate about the Labor-
Management Relations Act of 1947, Congress rejected a provision that
would have included plant seizure as a tool for ending labor-management
disputes, thereby indicating an intent not to give the President
seizure power in labor controversies. Accordingly, Justice Jackson
placed the steel seizure case in his third category, in which ``severe
tests'' are applied in reviewing the constitutionality of a
presidential decision.
---------------------------------------------------------------------------
\21\ Justice Burton, in his own concurring opinion, usefully
summarized these statutes. See id at 663-664 (Burton, J., concurring).
The two seizure statutes were the Defense Production Act of 1950 (which
``grants the President no power to seize real property except through
ordinary condemnation proceedings, which were not used here, and
creates no sanctions for the settlement of labor disputes'', id. at
663) and the Selective Service Act of 1948 (which authorizes the
President to seize plants that fail to fill the orders for goods,
within a certain period of time, when the goods are required by the
armed forces or for national defense, see id. at 664).
---------------------------------------------------------------------------
It is important to see that Justice Jackson assumed that, in many
instances, the President and Congress will have concurrent authority
over some subject matter. Congress could act and bind the executive
branch, but often a field is left open for executive behavior. At the
same time, there is presumably some limit on Congress' ability to
restrict the President, for the President needs to retain core
executive authority in order to be an adequately functioning Article II
entity.
Most centrally, Youngstown establishes that executive orders should
be grounded in constitutional or statutory provisions. Executing the
law means implementing legal norms found in either source. The Court
showed justifiable suspicion of a free-floating theory of inherent
executive power that cannot be traced to some discernable
constitutional or statutory source.\22\
---------------------------------------------------------------------------
\22\ For Justice Jackson's discussion of the inherent powers
argument, see id. at 647-655 (Jackson, J., concurring).
---------------------------------------------------------------------------
Another leading Supreme Court decision dealing with presidential
power to issue executive orders is Dames & Moore v. Regan, 463 US 654
(1981). In this 9 to 0 decision, the Court found authority for actions
taken by President Jimmy Carter in January 1981 to settle the
controversy resulting from the 1979 capture of hostages in the American
Embassy in Tehran. In particular, the President issued a series of
Executive orders that terminated legal proceedings against Iran in
United States courts involving U.S. nationals. The orders also
nullified attachments against Iranian property entered by United States
courts to secure judgements against Iran. Furthermore, the orders
transferred claims from United States courts to a newly-created
arbitration tribunal. The result of these presidential decisions was to
limit the ability of U.S. companies to receive judgements and payments
with respect to their disputes with Iran.
The Supreme Court, in an opinion by then-Justice Rehnquist,
explicitly invoked the analytical framework set up by Justice Jackson
in Youngstown, distinguishing cases in which the President acted with
authority, with silence by Congress, or in contradiction to
congressional intent.\23\ Among other things, the Court concluded that
the International Emergency Economic Powers Act (IEEPA) authorized the
President to nullify attachments and to transfer Iranian assets.\24\
The Court also held that the President was authorized to suspend claims
filed in United States courts. In reaching its conclusion about claims
suspension, the Court took account of what it called ``congressional
acceptance of a broad scope for executive action in circumstances such
as those present in this case.'' \25\ The Court stressed ``a history of
congressional acquiescence in conduct of the sort engaged in by the
President.'' \26\ The Court also relied on prior decisions recognizing
presidential power to enter into executive agreements that are not
submitted to the Senate for ratification as treaties.\27\ Overall,
Dames & Moore reflects a tendency by courts to
---------------------------------------------------------------------------
\23\ See 453 U.S. at 668-669. The Court added that ``it is
doubtless the case that executive action in any particular instance
falls.. . . at some point along a spectrum running from explicit
congressional authorization to explicit congressional prohibition.''
Id. at 669.
\24\ See id. at 674
\25\ Id. at 677.
\26\ Id. at 678-679.
\27\ See id. at 682.
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give broad deference to the executive branch in matters relating to
foreign affairs and foreign policy.\28\
---------------------------------------------------------------------------
\28\ The Court's opinion quoted the leading case on judicial
deference to presidential action in foreign relations, United States v.
Curtiss-Wright Export Co., 299 U.S. 304 (1936). See 453 U.S. at 661.
---------------------------------------------------------------------------
Youngstown and Dames & Moore confirm that different legal results
can flow from divergent circumstances. Observers of Youngstown have
noted that a critical development in the litigation was the government
attorney's claim, in response to questioning by the lower court, that
the President's power in emergencies was essentially unlimited by the
Constitution.\29\ Although this argument was softened later, the
government's initial claim led to considerable public alarm at the
potential scope of presidential power as envisioned by the executive
branch.\30\ Moreover, the case dealt with the control of domestic
private property, a subject as to which rights are clearly implicated.
Since Marbury v. Madison, \31\ courts have seen themselves as the
institution best attuned to protect rights against governmental power.
---------------------------------------------------------------------------
\29\ See Maeva Marcus, Truman and the Steel Seizure case: the
limits of presidential power 121 (1994, Duke University Press) (``The
Court: So, when the sovereign people adopted the Constitution, it
enumerated the powers set up in the Constitution but limited the powers
of the Congress and limited the powers of the judiciary, but it did not
limit the powers of the Executive. Is that what you say?
Mr. Baldridge: That is the way we read Article II of the
Constitution.'').
\30\ See id. at 125 (``Newspapers across the country carried
headlines to the effect that the Justice Department asserted that the
President's power was unlimited. The friendly New York Post declared,
``President Truman can usually deal with his enemies, but who will
protect him from his Justice Department . . . The reaction in Congress
was equally severe.'').
\31\5 U.S. (1 Cranch) 137 (1803).
---------------------------------------------------------------------------
On the other hand, the settlement of the Iranian hostage crisis was
made possible by the series of executive orders challenged in Dames &
Moore. As a legal matter, the claim of presidential authority was not
an easy one. However, under the circumstances and considering the
extent to which courts defer to Presidents in the area of foreign
relations, it may not seem surprising that the Court upheld the
presidential action. These two cases, viewed together, support the
proposition that the courts will look individually at the circumstances
involved in determining whether there is authority for an executive
order.\32\
---------------------------------------------------------------------------
\32\ For another example of a case invalidating an executive order,
see Chamber of Commerce of the United States v. Reich, 74 F.3d 1322
(D.C. Cir. 1996) (holding that National Labor Relations Act provision
preempted executive order barring the government from contracting with
employers who hired permanent replacements during a lawful strike).
---------------------------------------------------------------------------
iii. what congress should do
I will return to the question what Congress should do when it is
concerned about a presidential order or other action. The core legal
principle is clear enough: the inquiry is whether an executive order is
grounded on constitutional or statutory authority. Frequently, the
answer will not be obvious, given the ambiguity that can surround
executive power and statutory interpretation.\33\ Yet Congress has one
clear avenue to follow as a practical matter when it is concerned about
the use of presidential power for legal or policy reasons. It can, and
in my view should, use its oversight authority.
---------------------------------------------------------------------------
\33\ For a case exemplifying the ambiguities that can surround
statutory interpretation in this context, see AFL-CIO v. Kahn, 618 F.2d
784 (D.C. Cir.), (en banc), cert. denied, 443 U.S. 915 (1979)
(upholding President Carter's executive order directing the
establishment of voluntary wage and price standards).
---------------------------------------------------------------------------
In aid of its legislative function, Congress is a critical overseer
of the execution of the law. In addition, its oversight power has its
own value as a way of engaging in a dialogue with the executive branch
in general and the President in particular. A system of separation of
powers and checks and balances requires ongoing deliberation between
the two branches in order for the government to work effectively.
Perhaps the main message to draw as a member of Congress from
general consideration of the law relating to executive orders is that
when a question arises, the relevant Committee or Subcommittee should
consider having an exchange of views with appropriate executive
officials. That is a process our framers had in mind when they spoke of
checks and balances as a way to maximize accountability, prevent
factional capture of government, and advance the public interest.
Mr. Goss. I want to thank you all. I appreciate the extra
observations departing from your prepared statements, because I
think that's the value-added part, the reason we do this.
I have already learned some things. You stimulated some
thought. And the summation I make out of this, in some ways, is
something that had occurred to me more than once.
We are talking about power-sharing. No matter how you look
at it, we have a pie up here that's cut three ways and that's
the beauty of our system and the vision of our Founding
Fathers. And the power-sharing issue obviously is related to
politics, but we are trying to talk about it here in terms of
governance. It occurs to me, particularly with regard to Mr.
Sargentich's point that the composition of the power structure
at any moment in history probably has a lot to do with the
variability that we have seen, that was so well outlined by Mr.
Bedell and others--in the history of this.
I can foresee if we had a parliamentary form of government,
a two-party system and the party in power was doing the bidding
of the leader, in that agenda we would have a different view of
executive orders; the definition of opposition would come into
play.
It seems that the American public today, the voters, I
think those that do vote, sort of enjoy stalemate. I have heard
members of the media say that as recently as this morning, that
stalemate is something that has hit home. They like the idea of
the balance between the parties, and one group controls one
thing, the other group controls the other, and then neither can
do any serious mischief and everybody can go about their
business and prosper, knowing that nothing meaningful really is
going to happen to them.
I think there is probably some truth to that. It may be a
little cynical, but I think there may be some truth in that.
We clearly have had recited for us for the record that
there is a duty here for the elected people to use their
positions responsibly, and that requires duty. There is
activity in this because we have seen the President doing
proclamations, executive orders and PDDs and so forth; and
Congress is doing oversight. So we see that there is activity.
We see that there are limits that have been clearly outlined by
Mr. Cox, Mr. Kinkopf, on both sides, of what we can do. We
appear to have the necessary oversight tools and there appears
to be a pretty good process down at OMB.
The purpose of this in part today was to review that and
sort of take the pulse and say, okay, understanding all of
that, so where are we now? How is this working?
What is your view of the pulse in America today on this?
Obviously that's a loaded question because I an getting a lot
of questions on talk shows when I go on the radio or on TV, and
some people are outraged at what goes on.
Mr. Bedell talked about not a lot of public input on the
preparation of these executive orders, so that there tends to
be a pleasant surprise aspect to them or an ``I have been
ambushed'' surprise to them, which is not so pleasant, which
causes the American public to pick up the phone and call their
Federal legislator when he or she is on a talk show. We find
that happening.
So that means we are here today not just by coincidence,
historical accident that suddenly the calendar said that it is
time to review this. It is the fact that there is interest out
there among the people. Part of the issue is the sunshine
question--I come from the Sunshine State--the transparency
piece. We are trying to create some awareness on the subject
today.
I think one of the demands that the public is making on
legislators today and on all governments is transparency. That
is not because I come from Florida, where we actually do have a
government of sunshine. It is not just a motto in our State,
but it does work pretty well. And I say that, holding the
national security portfolio on PDDs, and recognizing that
those--I think I would make a sincere exception from, with
regard to the sunshine and transparency. There is a need.
I would like your views on whether or not you think there
is satisfaction in America today on the broad subject of the
tension between Congress and the White House on the use of
executive orders. And I would like your view on whether or not
you think more transparency is a part of your conclusion, or
less transparency, if that's part of it, because that is
certainly the kind of comment that I am hearing from the people
across the land.
I would like to hear from all of you.
Mr. Cox, we will start with you.
Mr. Cox. Thank you, Mr. Chairman. Without purporting to
speak to the political mood of the country, I do think that it
is the case that the current administration's aggressive
announcements about executive orders have raised public concern
about precisely what is going on here and the extent to which
the President can unilaterally change the law of the Nation.
I think that in responding to that increased level of
concern it is often important for people like yourself and the
other Members of Congress to look behind the executive orders.
Many of the executive orders which the President has announced
with great fanfare and which I understand from the press to
have elicited substantial public concern, upon examination
either are unexceptional as falling clearly within the
President's power, of if they, at the margins, are in fact too
aggressive, they may not really have much significance beyond
the President's ability to make the announcement that this is
his policy.
Some of the executive orders of recent years, for example,
seem to be little more than press releases, because when you
look at them closely, they say at the end, of course, we are
only doing this to the extent that the law allows, which seems
to acknowledge that the administration is aware that there may
well be contrary legal authority and that the executive order
may not have much force and effect. So I think that by helping
to educate the public from the point of view of Congress, you
can respond to any President's aggressive pretensions to use
the executive order power.
Mr. Kinkopf. I agree with what Mr. Cox has said. I think
that there is often a great deal of fanfare, loud trumpets
blaring, accompanying the release of an executive order, but
upon examination, not really very much there. The result of the
loud trumpets is loud response, both from supporters of the
President and detractors. But attention to the details of
executive orders tends to indicate that in fact not very much
is being done.
Mr. Bedell. I think that's correct. Indeed, for some of the
orders that I have looked at of late, there is less--it amends
an existing order--left at the end of the process than there
was at the beginning, in large measure because interest groups
didn't like what was there, put in place perhaps by a prior
administration.
Indeed, it seems to me that one of the things that happens
at the beginning of a new administration is that they
immediately go over the executive orders that were issued in
the immediate past and say, ``I never liked that one very much
either,'' but there are political reasons for it to be there,
so let's just mangle it and leave something in place that has
the name so that nobody can get really mad at us for having
rescinded it. But at the same time we have taken all of the
teeth out of it.
The ability to get transparency into the process is a
difficult one. I think it behooves an administration to do a
lot of that, to not take people by surprise, certainly not take
Congress by surprise by it, but that is really an election on
their part to do it and if they choose not to do it, they are
obviously making a judgment that the pain of doing so is not
worth the benefits gained from that type of coordination.
As far as Congress trying to impose an Administrative
Procedures Act kind of rulemaking transparency on the
President, that might be difficult with regard to his
constitutional authorities, but with regard to his statutory
authorities, I don't know that it would raise those kinds of
concerns.
Mr. Sargentich. Mr. Chairman, your question about divided
government is an excellent one. Of course, for a long time,
Congress was dominated by Democrats and we had a Republican
President. Now we have the opposite situation. Divided
government does lead to stalemate, partisan bickering, and
attacks from one side to the other that they are being too
partisan.
I think that that critique aside, the issue of presidential
lawmaking is of great interest generally to the public. I
happen--I was amazed to be--on Washington Journal this morning,
on a segment on executive orders, and the call-in questions
were very exercised. People knew about some executive orders I
didn't know about and were very concerned. I think people have
a right to be concerned about lawmaking by both the Congress
and the President.
So I think, in answer to the question, certainly this is an
important issue.
How does one assess the recent history? The chart that C-
SPAN put up this morning showed that President Reagan had the
greatest number of executive orders since World War II,
followed by Johnson, Nixon and then Clinton at this point in
his presidency. In other words, in terms of quantity, this is a
post-World War II phenomenon that every President has made use
of. The greatest number historically, I believe, were issued by
Franklin Roosevelt, something like----
Mr. Goss. Three thousand five hundred.
Mr. Sargentich. Yes, an amazing number. Way in excess of
other more modern Presidents, but of course, that was in an
economic emergency. So we are dealing with the modern
presidency since the New Deal and the tendency to coalesce
power in the executive branch.
Transparency is a difficult issue because of the need to
preserve the constitutional power of the President. But
publicity is another matter, and it seems to me that the public
should have access, easy access, to executive orders. The
Federal Register statute, which you will hear about later, is
an important development in guaranteeing information flow and
protecting the public's right to know.
But ultimately what we are talking about is dialogue
between the branches of government. Especially in the situation
of divided government, where one party captures one branch and
another party dominates the other political branch of
government, it is all the more important to have ongoing
dialogue and discussion.
Mr. Goss. Well, I want to thank you. This is actually a
fascinating subject as you get into it. I have heard some
testimony here that executive orders are actually a little less
meaningful than some of us thought, maybe, and one wonders why
one goes through the process of doing something which leads to
other questions about whether this is good governance. Or is
this just politics? Those are the questions that get asked,
maybe too often these days, or not enough, depending on your
view.
The other thing that--I share your experience on the talk
shows, Mr. Sargentich; the question about the public's right to
know is undisputed. The question about them getting to know
accurate facts is a subject that we are all struggling with
these days, especially with the Internet. I find that there are
indeed executive orders I have never heard of, and sometimes
neither has the White House, that we get calls about. That's
all part of public service, as we know. But it does seem the
advent of the Internet has added to that phenomenon.
Doc Hastings.
Mr. Hastings. Thank you, Mr. Chairman. I found the answers
to the chairman's question about the significance of the
executive orders to be very interesting, because I at home hear
a great deal from my constituents on particular executive
orders. In fact, I daresay there is not a town hall meeting
that I have that somebody brings up an executive order, which
means that they are probably in tune with what's going on.
But the notion that maybe these executive orders don't
really have a whole lot of substance to them nevertheless lends
itself to at least a perception that there is more and more
power devolving to the presidency, and the President is
therefore doing more legislating that, in fact, he may not be
doing. Maybe it is a press release that is going out, but there
is a perception out there at least that there is more power
flowing to the President because of the executive orders.
So the first question that I would have, is that a good
trend or is that a bad trend or is it a real trend?
Any one of you who wants to respond to that.
Mr. Cox. Let me start, Congressman, by clarifying, I think,
what we were saying in the last round of answers.
I don't think anyone is suggesting that there are not some
executive orders that are very significant indeed and that do
extend the reach of the Presidents' powers; but I think what we
were saying was that there are some executive orders announced
with a great deal of publicity by the administration that when
you actually look at the details of the order have very little
legal significance and they, therefore, have little more
meaning than the President coming out any day into the Rose
Garden and announcing his policy preferences on a given topic.
But certainly I would not want and I don't think anyone on the
panel would want the subcommittee to come away today thinking
that there is not a real issue here and a real problem with
abusive use of executive orders.
Responding directly to your question, I agree that I think
that any administration that makes a show of using executive
orders, as the chairman said, perhaps to pursue political ends
rather than the ends of good governance, does add to an
impression that the President has more power than he either
does in reality or than the Founders contemplated. And I would
agree, picking up on Professor Sargentich's point earlier, that
that is not a good thing, that we do have a constitutional
system of checks and balances in which Congress has the primary
and central role to play in lawmaking; and anything that tends
to confuse the electorate about that leads to a decrease in
accountability, which is further bad for our political life.
Mr. Kinkopf. Observing that most--many, perhaps most--
executive orders have little practical consequence doesn't, I
think, undermine the importance of what you are hearing; that
is, if there is a public perception that the President is
engaging in lawmaking, there is a public perception that the
President's executive order is important. That perception makes
it important, and it makes it important because it then serves
an agenda-setting function.
You, in Congress, have to respond to whatever the executive
order is about. If it is about, say, deadbeat dads, you have to
respond to deadbeat dads that day instead of what you were
planning to talk about that day. So it a way the President has
of having input into the agenda of Congress.
I am not sure that that is an illegitimate exercise of the
executive order power, but it is one that Congress is
rightfully concerned about and can respond to through the
various mechanisms we have already set forth.
But I agree with your point, which is the fact that the
public is asking you about these at town hall meetings and is
raising them on call-in shows makes executive orders very
important politically, even if they may not be very important
legally.
Mr. Bedell. I think if the public has a preception that the
President is doing more lawmaking than he has previously or
other presidents had previously I don't think that is good, if
that addresses your question. I think that the public takes
greater solace in Congress doing that than the President doing
that.
And another point I wanted to make with regard to the
executive orders and their effect, is the enforcement of
executive orders, which is something I skipped over earlier.
And, just briefly, executive orders are largely enforced only
by the President. They don't create, generally, private rights
in third parties to go to court saying someone violated the
President's executive order and force him to do what the
President told him to do. Usually, these are political
documents. And if the President directs the heads of
departments and agencies to do something and they don't do it,
he can fire them, he can replace them, he can yell at them, he
can jump up and down or he can ignore them.
And often what happens with these executive orders is he
writes something and tells all of these people to do all of
these wonderful things that staff has worked on and ground out
for months and months and months, and then it is issued and the
Register publishes it and trees are cut down to print it and
nothing happens because nobody pays any attention to it.
I, frankly, wish we could clean out--if somebody had the
authority to go out and clean out all of the executive orders
that really don't do much other than create concerns and raise
questions about what really is the policy here for the
executive branch and how does it relate to what Congress is
doing? Enforceability is a key, and it all comes back to the
President. If he cares about it, then it will be enforced and
folks will pay attention to it from the top down. And the more
that the President backs up what he writes, the more
consistently an executive branch can function because it
doesn't have to take everything back up to the top to ask the
question, ``are you really serious?'' They know, and if they
know, then everybody can understand the line and follow it. But
too often, they aren't enforced. Maybe there are just too many
executive orders for the President to do that at every turn.
Mr. Sargentich. Well, I agree with my colleagues. I think
there are a number of orders that have mostly political or
symbolic significance, not legal significance. But we live in a
world in which symbols play a major role, and symbolic politics
is a large part of politics.
Having said that, I just want to reiterate a concern about
oversight. It seems to me that there is a good deal of
executive initiative taken to make law, that this is a function
of the ambiguity of article II and of the position of the
President in the government, which is that of an initiator, a
person who can act quickly, much more quickly than Congress,
simply because you have one person, not 535, and also because
of the inherent tendency for executive branch advisors, of
which I was one at one time, to protect the power of the
President and to work to initiate in a legal way policies that
the President wishes.
Congress is a diffuse organization with a lot of collective
action problems; and to get a handle on this it would be
important to, I think, try to overcome some of those problems
to have serious oversight. But it is, I think, a point of
wisdom to recognize the difference between legally significant
orders and just symbolic orders.
Mr. Hastings. It seems to me that this whole debate, it has
probably been ongoing for 210 years, is the notion of the
division of powers, and that you should respect the division of
powers that our Founding Fathers envisioned. Setting up a
government that ultimately protects the people from government,
that seems to be the basic principle.
Now, inherent in that, it seems to me, is the notion that
Paul Harvey frequently says on his radio program, that self-
government is a work without self-discipline. That is something
that we all have to take individually and act accordingly. But
it appears, maybe with--well, I will just simply say, with this
President, particularly in some of the environmental areas that
the chairman of the committee mentioned within this reading
last night, that this President is maybe stepping across that
to try to enact something that the Congress collectively would
not enact. he is not the first president to have thought that
way I am sure, but, nevertheless, that seems to be a trend that
we may be emerging to.
Now, if I am right and that is indeed the start of a trend,
is there anything that we ought to do or we ought to pursue
other than just government oversight? I am sure this has been
wrestled with for 200 years. Is there anything we should be
looking at maybe specifically to address what may or may not be
happening in the future?
Mr. Sargentich. Sir, you know, I think that there are three
or four clear things. One is oversight of particular cases.
Another one is to look at statutes which are cited commonly as
authority for some of the more controversial orders.
The Procurement Act has been mentioned by two of my
colleagues, and it certainly has been cited very broadly in
discrimination contexts and in wage-price and all sorts of
contexts and used broadly by presidents to do things. And so
Congress, if it is concerned about some of these uses, can look
at these omnibus statutes and decide collectively whether it
really wants them to be used as authority in this manner.
Of course, the appropriations power is sort of the linchpin
power of Congress. Congress has the power of the purse and
presidents can't go ahead and do things that spending of money,
at least for very long, without getting new appropriations.
Report and wait provisions have also been mentioned. That
is to say, in certain categories have the President report what
is going on to Congress and wait 30 days, 60 or whatever for
some feedback. Those are the traditional powers of Congress,
oversight, narrow authority, appropriations, report and wait.
But they are tremendous powers. I mean, ultimately, they
are the fundamental powers of governing. Used selectively and
carefully they can have tremendous, as Bob Bedell pointed out,
impact as a practical matter.
Mr. Bedell. Just one thing to amplify what Tom said, is
that Congress can preempt a field. It doesn't have to
specifically do the same thing that the President would do but
in a slightly different way in order to state its views on the
matter and to make its case. It can preempt a field by showing
sufficient action so that the constitutional authority of the
President, if that is what he is relying on, as Justice Jackson
indicated, would be at its lowest point and raise questions
whether the President has the authority to move.
So you don't have to try to figure out what the President
is doing and then seek to counter that in advance of his doing
it in some kind of game process. You can do it more broadly and
more sweepingly, I believe, than that.
Mr. Kinkopf. Just one caveat on the last point, and that is
I think broad and sweeping action is problematic in this area
because of constitutional limitations. For example, when it was
contended that the Administrative Procedures Act applies to the
President, the Supreme Court said we will not interpret it to
do so because if we did it would raise significant
constitutional problems.
So we don't have actual decisional law telling us whether
Congress could or could not, although we do have a decision
indicating that it is, at the very least, extremely problematic
enough so that Congress adopted what was not exactly a natural
reading of the statute in order to avoid the problem.
In another related case, where it was contended that the
Federal Advisory Committees Act applies to the ABA committee,
which advised on judicial appointees, the Supreme Court again
read the FACA not to apply because it would raise significant
constitutional questions. In that case, three justices were
unwilling to rewrite the statute, in the way, ti had to be
rewritten to achieve that result, and actually addressed the
constitutional question it said it would violate the
Constitution. That was an opinion written by Justice Kennedy,
saying it would violate the Constitution to apply FACA when the
President is deciding who to nominate under his constitutional
power.
The reason that broad responses, categorical responses to
the executive order authority generally are problematic is that
power is not a discrete thing. It is based sometimes
exclusively in statute, sometimes exclusively in the
Constitution. Most of the time it is a combination of the
Constitution and statutes that give rise to the authority. But
how much of that power is coming from the Constitution and how
much from the statute will vary with every executive order, and
the constitutional power of Congress to respond to the
President then varies with respect to every executive order.
And an across-the-board approach to dealing with the
President's authority to issue executive orders then runs into
that problem, that this is a very fact-specific inquiry
constitutionally.
So it is for that reason, I think, that the Supreme Court
has been extremely reluctant to apply these blunderbuss acts to
the President when the President is acting unilaterally. So I
think you are right to be concerned, but the responses probably
do need to be tailored to specific sorts of situations.
Mr. Cox. Just briefly, while I certainly agree with
everything that Professor Kinkopt said, that you have to be
careful about the broad brush response because of the
President's core of constitutional powers, some of the ideas we
have been talking about this morning about broad mechanisms
that would apply to all statutory-based executive orders,
report and wait, requiring the statutory authority to be
identified with particularity, would be things that would be
within the power of Congress, would be things, I think, that
over time would act to rein in the President. If he could no
longer, for example, get away with simply saying, by the
authority vested in me by the laws of the United States,
without specification, and I think also would inform Congress,
in the way we have talked about, about the Federal Procurement
Act as sort of the classic example of the broad-based statute
that gives the President enormous power that is often used very
much at the margins of his power.
If Congress saw over time that one or two statutes were
being invoked by presidents over and over again as the basis
for questionable executive orders, Congress then would be in a
better position to focus on its own inquiry into amending the
statutes.
Mr. Kinkopf. If I might, just one footnote to Mr. Cox's
observation. The problem with applying broad mechanisms even
facially to statutes is that often when the President is
deploying a power, a statute will be involved, even though what
is really going on is an exercise of constitutional power.
For example, when the President appoints a judge or an
officer, the President is exercising a statutory power.
Congress created that office. Congress vested the appointment
power in the President alone with respect to an inferior
office. With respect to a noninferior office, it is vested in
the President by the Constitution, but it is still by Congress
that, by statute, that created the office.
In that situation, is the President exercising a statutory
power? In some sense, yes, but for the statute there would be
no power here. But that is precisely the situation where the
Supreme Court--three justices said that Congress may not apply
a broad mechanism and five other justices strongly indicated
that the President could not and instead read the broad
mechanism not to apply.
Mr. Goss. I am going to have to say that we are all subject
to the exigencies of the clock.
I am going to thank you very much for your contributions. I
would like to reserve the right to continue our dialogue in
writing as questions occur to all of us. I want to thank this
panel very much. I assure you of the committee's interest.
The subcommittee suffers today. We have a rule on the floor
at this moment, and several of our members are there doing that
business, and that is why it is so clumsy and hard to get
things done here. Because we have got this huge process that we
have to deal with all the time, and it is hard to keep focused.
And the President does not have quite that much baggage to
carry I think when he does an executive order.
We have learned a lesson. You have added a lot, and I
appreciate very much your time here and tell you that we are
hoping to further this. I don't know whether we will go into
legislation or not. Perhaps that is a possibility. But I think
that you have added very much to our sense of a pulse on this,
and I appreciate that.
I will dismiss this panel, and I will call the second
panel. Thank you, gentlemen.
Mr. Goss. The committee will call the second panel, Mr.
William Olson, co-author, CATO research paper entitled
``Executive Orders and National Emergencies.'' We are very
pleased to have Mr. Olson with us here today.
You are a panel unto yourself. Your prepared remarks will
be accepted into the record without objection, and any
enlightenment you wish to share with us would be most welcome.
STATEMENT OF WILLIAM OLSON, CO-AUTHOR, CATO STUDY ENTITLED
``EXECUTIVE ORDERS AND NATIONAL EMERGENCIES'', ATTORNEY-AT-LAW,
WILLIAM OLSON P.C., MCLEAN, VA
Mr. Olson. Thank you, Mr. Chairman and members of the
subcommittee. I do want to thank you for the opportunity to
testify before you regarding the impact of executive orders on
the legislative process, and what I perceive to be the very
real problem of presidential lawmaking by fiat, and I will
stray from my prepared remarks to make some comments.
I do want to begin with some comments on the prior panel. I
was chaffing for a microphone while much of the discussion was
going on.
I knew Bob Bedell during the Reagan administration when I
served there and have the highest regard for him and his
comments. I have to say that I did disagree substantially with
really only one witness, who was Professor Kinkopf, I believe,
who appeared to indicate that there was no problem with respect
to executive lawmaking when, in fact, I think, the instincts of
the committee members, as expressed during your comments, are
that there are problems here that are serious, constitutional,
and have to be dealt with.
And I want to encourage you and I hope my comments today
will make the case that there is a serious problem, that the
Constitution is being flaunted and the Congress is not doing an
adequate job of defending its institutional prerogatives and
that simply more of the same, more oversight, more hearings,
more oversight is important only when the opinion of Congress
is respected by the executive. If the executive does not
respect the position of Congress, it is an empty threat.
And certainly Mr. Dreier's quotation from U.S. News and
what they characterize as President Clinton's showing the
Congress who is boss is something that should raise the hair on
the back of the neck of every self-respecting Member of
Congress, and yet I am afraid that this is accepted much too
often as simply the way the business is conducted.
I do want to bring one other article to your attention that
I came across in a Salt Lake City paper, and it had to do with
a hearing that was held just last week and Secretary Babbitt's
opportunity to testify with respect to the Grand Staircase
Escalante National Monument, which has been alluded to before
by Mr. Hastings. And he said in his testimony, ``I am not
prepared to sit back and let this Congress do what it has done
for the past 7 years in these areas, which is virtually
nothing.'' And he was referred to as ``unusually feisty'' and
went on to say, ``if Congress does not act and produce an
acceptable bill protecting these lands, I will consider asking
the President to use his power.'' Of course, his power, as they
view it, was an obscure 1906 Antiquities Act which had never
been used for the purposes that he had used it, and he looked
at the Congress and said, the clock is running.
At some point, oversight with an administration that is not
particularly caring of the opinions of Members of Congress is
less than effective, and I want to make some suggestions today.
First of all, I have been researching and working in this
area for a long while. Based on some earlier writings we had
done, Roger Pilon of the CATO Institute had asked us to do a
study for them, and we did undertake that, and very
providentially that study is available today for the very first
time, having gone to the printer at the end of last week. Our
title has a more exciting title perhaps than the committee
chose for its hearings. The title of our paper is, ``Executive
Orders and National Emergencies, How Presidents Have Come to
Run the Country by Usurping Legislative Power.''
[Paper by William J. Olson and Alon Woll, submitted for the
record:]
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I would very much hope that--I understand copies of that
study have been made available to the subcommittee members, and
I would very much appreciate your attention to the thoughts in
there because I think there is a lot of useful background.
I also want to commend the subcommittee because the
testimony that has been filed today by the other panelists has
done a great deal to develop the literature on executive
orders, which is remarkably scarce. There are remarkably few
players in this arena, and I do notice that three of the four
panelists who began the day were from the Office of Legal
Counsel and the other from OMB, all of which were responsible
for protecting the powers of the President, as Mr. Bedell said,
and I am afraid they have done their job all too well and not
been sensitive at all to the constitutional limitations on the
President's actions.
And let me say that and go back to January 30, 1788,
Federalist 47, when James Madison quoted Montesquieu, and this
is how we begin our study. He said, ``there can be no liberty
where the legislative and executive powers are united in the
same person or body of magistrates''; but that saying, he said,
did not apply to the Constitution as they were writing it
because the magistrate in whom the whole executive power
resides cannot of himself make a law; though he can put a
negative on every law.
And this is exactly the concept, that the President has the
legislative power to propose and the legislative power to veto.
In between he has no power whatsoever. And I am frankly shocked
and disappointed to hear a panel of lawyers and constitutional
professors testify with blase with respect to presidential
lawmaking as if this was the way it was meant to be.
This is very definitely not the way it was meant to be. We
have strayed very far from the original plan, and it is my hope
that this hearing is very much a beginning of getting Congress
back on track, reining in a President who has exceeded his
constitutional bounds.
There is another interesting citation we make. As early as
1792, according to Thomas Jefferson, he said, ``I said to
President Washington that if the equilibrium of the three
bodies, legislative, executive and judiciary, could be
preserved, if the legislature could be kept independent, I
should never fear the result of such a government, but I could
not but be uneasy when I saw the executive had swallowed up the
legislative branch.''
The people do not fear the Congress. The people do
responsibly fear the presidency and lawmaking by the
presidency.
I would say that the discussion earlier about transparency,
Mr. Chairman, is a very interesting point; and I want to
respond to that briefly. The process of transparency comes into
the legislative process when the Congress has hearings, when
the Congress debates legislation, when the Congress has to
defend their position as they go back to town halls and meet
with constituents. That is the process of transparency.
I do not seek--I would not recommend trying to introduce
the concept of transparency into the executive order process,
but rather I would try to stop the President from using
executive orders to legislate. It is that simple.
Now, Congress and the courts have taken action from time to
time to challenge presidential exercise of authority that they
believed was unconstitutional, and some of the prior panelists
did discuss this. They did talk about the Louisiana Purchase
and the Emancipation Proclamation. There are many other
instances where the Congress and courts have taken action, but
the Constitution anticipated that the Congress and the courts
would jealously guard their prerogatives.
They believed that they would set power against power and
in that way they would make sure that no one branch of
government exceeded their constitutional role. There was
supposed to be fierce resistance. But yet, through the first
panel anyway, you have been counseled to not worry about it,
take it easy, and applied a great deal of legal balm on what is
a politically explosive issue.
I, too, have had a great a number of radio talk shows and
such, and perhaps I plead guilty to trying to cause those
people to come to your town meetings to ask you these questions
as I do the radio talk shows. Because I do find that through
the Internet we have had an explosion of information about
executive orders, about executive orders that are not cosmetic,
not ``less than meets the eye'', not all the descriptions we
have heard before but very real, profound changes in the policy
direction of the United States in areas exactly as Mr. Hastings
says where the Congress of the United States would have refused
to take that action, but the President knowing that the
Congress had refused to take the action said, I do not care; I
will do it anyway. And then he puts the Congress in this
terrible situation of having to, again, change their agenda, to
respond and, secondly, to be able to develop a piece of
legislation which then has to be presented to the President and
can be vetoed by the President.
And so we see a situation where if 65 percent of both the
House and the Senate believe that the President of the United
States was acting unconstitutionally and if they were willing
to not vote to override a veto the President would escape scot-
free.
Now, we begin to think, can we not go to the courts? But
through the entire research that we had the opportunity to do,
we found two instances and two instances alone of situations
where the courts have voided executive orders in their
entirety.
The first was discussed today, with President Truman, the
Youngstown Sheet and Tube case, and there is a very famous
concurrence by Justice Jackson with his multiple levels of
analysis. It is, frankly, not the kind of analysis that I would
have hoped for because it does grant the president greater
latitude than I think appropriate, but it was a very good case.
And then the case of U.S. Chamber of Commerce versus Reich,
which involved, of course, President Clinton's executive order
having to do with the powers under the Procurement Act and his
refusal to buy goods and services from companies which hired
permanent striker replacements, and he was rebuffed by the
Court.
But despite the fact that he was rebuffed by the Court
early in his administration, he did not shrink from continuing
to exercise executive orders in controversial areas and in
areas where the Congress had refused, simply refused, to pass
legislation. He decided he would do it anyway.
I do say that this is not a partisan issue. I had the
pleasure of serving in three positions in the Reagan
administration and shortly after the third position I was hired
by a group to sue President Reagan because he had announced
that he was directing Secretary Weinberger to implement SALT
II, despite the fact that he could not get it through the
consent process in the United States Senate. And we brought the
action in the U.S. District Court for the District of Columbia.
As I remember, opposing counsel was Royce Lamberth, now
Judge Lamberth, who has been famous lately, and he won because
he raised the standing issue. And he said, this is a private
group, and despite the fact that the President's order may be
unconstitutional, may flaunt the Senate's role in advice and
consent in treaties, we have no way that this particular
organization, which was The Conservative Caucus, a (C)(4)
lobbying organization, they were not aggrieved in some special
way; therefore, they had no standing.
This is a problem that people have had over and over and
over again. It is not true, as was said before, that parties
who are affected by executive orders can always go into court
and always be heard. It simply is not the history of executive
orders. And if you read the cases where people have attempted
to defend their rights, where executive orders were imposing
duties and responsibilities on them, those people frequently
have been unable to get a hearing in court on the merits
because of the standing issue.
The courts cannot be counted on; and, therefore, the
Congress must be the party that defends the U.S. Constitution.
And I would say the last time that this was done seriously
was when the Senate set up the Special Senate Committee on the
Determination of the National Emergency, cochaired by Frank
Church and Charles ``Mack'' Mathias more than 25 years ago.
This was not only on executive orders but also on states of
emergency and emergency powers, all related issues.
A couple of years later, the committee came back with a
slightly different name, but it developed a series of
legislative changes, including the War Powers Resolution,
IEEPA, the International emergency Economic Powers Act, which
is a favorite source of authority for presidents. They recite
that statue in the preamble clause of virtually every executive
order that can possibly think of a way to cite it.
They also made an amendment to the Trading With the Enemy
Act of 1917, TWEA, but all of those efforts to restrict
presidential lawmaking were ineffective. We had the
impossibility of even restraining President Clinton conducting
a war against the Federal Republic of Yugoslavia. We had 31
Members of Congress try to go to court to find a way to have a
declaration of that by the Court, and the Court refused on the
grounds of, again, standing.
So we come to what is it that can be done? And I do
understand this is not a legislative hearing, that is going to
happen tomorrow, and the Judiciary Committee will consider
this. But I do want to make just a couple of comments about the
two proposals that are pending now.
One is by Congressman Metcalf, House Concurrent Resolution
30, and that, of course, would be a concurrent resolution
rather than a law. It would not be presented to the President
of the United States for signature and, therefore, would never
have the force of law. It would be a resolution that expressed
the sense of the House in terms of its outrage about what has
been happening with executive orders, but it would have no
legal effect whatsoever. It has the advantage of not being able
to be vetoed, and so it could be passed, but it would be
advisory only, without force and effect.
The other proposal is H.R. 2655 introduced by Congressman
Ron Paul and by Congressman Metcalf, and it is an approach that
holds great promise to solve this recurrent problem. It
actually follows up on a 1983 bill that Mr. Paul had introduced
that I found in some research last night, and so he has been at
this issue for a long while. It does several things that have
never been done before, and it tries to do some things that
have been tried before but where presidents have gotten around
the rules.
It tries to establish the first statutory definition of a
presidential directive. It greatly expands access to the courts
to challenge the legality of presidential orders and eliminates
some of the standing cases which have made it so hard for
Members of Congress to get rulings by courts as to whether the
President has acted unconstitutionally. It defines the
constitutional powers that the President can exercise by
presidential order, and it says whenever he acts by statute he
has to be very precise about specifying the statute and,
failing that, the executive order would be null and void.
It would terminate all the existing states of emergency.
There are right now either 13 or 14 concurrent and overlapping
states of emergency existing the United States of America. Most
people don't realize that since 1933 there has only been a
period of 14 months when the United States has not been in a
presidentially declared state of national emergency.
Presidents don't do this because it feels good. They do it
because, as the Mathias and Church research showed, at that
time there were over 430 separate standby statutes. The power
to which the President brought to himself the moment he
declared a state of national emergency and this vast standby
reservoir of powers, many of these have been repealed now, but
there are still hundreds out there, are powers that the
President can exercise when he declares a state of national
emergency.
And we see language in the reports in the mid-seventies by
the Congress which called these powers ``dictatorial''. We see
language of Clinton Rossiter in his studies, certainly a main-
line political scientist, calling them dictatorial, and I would
say that those are justified descriptions.
So, lastly, I would just say that this is not a problem
with President Clinton, although President Clinton has
exhibited a certain degree of latitude as he has used executive
orders that has never been seen before in this country.
It is something that I would hope would cause Members of
Congress to resist. I would hope that when Members of Congress
would read an executive order the first instinct would be not
be, do I like the policy being achieved but, rather, where does
the President get the authority to do this?
Because, basically, these are legislative actions, and we
have to go back to the opinion by Justice Frankfurter in the
Youngstown Sheet and Tube case where he said that the President
had the power to execute the laws but not to make them and that
the blending of these powers in one person was considered by
the Framers, but rejected because that would certainly create
tyrannies in blending executive and legislative powers.
They rejected that approach. The President doesn't realize
it. Many presidents don't realize it. It is an extremely
serious problem, but it is solvable. The Constitution looks to
you in the House and the Senate, and charges you with the duty
to protect the Constitution from assault, and the American
people do look to you to do just that.
Thank you.
Mr. Goss. Thank you very much, Mr. Olson.
[The statement of Mr. Olson follows:]
Prepared Statement of William J. Olson
Mr. Chairman and members of the Subcommittee, I want to thank you
for this opportunity to testify before you regarding the impact of
Executive Orders on the legislative process and the very real problem
of presidential lawmaking by fiat.
From the standpoint of my participation, the timing of your hearing
is providential, in that many months ago I was asked to undertake a
study of this very subject by Roger Pilon, director of the Cato
Institute's Center for Constitutional Studies. The paper which I co-
authored with Alan Woll, an associate in our law firm, was finalized
just last week. It is now back from the printer and today receiving its
first public release. The Cato paper has a title somewhat more
flamboyant than that of this hearing--``Executive Orders and National
Emergencies: How Presidents Have Come to `Run the Country' by Usurping
Legislative Power.'' I greatly appreciate the opportunity to testify
about the matters discussed at length there, and I understand that
copies of this paper have been made available to the Subcommittee, and
otherwise are available on Cato's website at www.cato.org.
On January 30, 1778, in Federalist 47, James Madison observed that
Montesquieu's warning--``There can be no liberty where the legislative
and executive powers are united in the same person, or body of
magistrates''--did not apply to our constitution because ``[t]he
magistrate in whom the whole executive power resides cannot of himself
make a law, though he can put a negative on every law. . . .'' Despite
Madison's predictions, our government quickly strayed from its
principles and our chief magistrate has, in fact, again and again,
legislated by fiat. In fact, in our research on presidential directives
(such as executive orders and proclamations), I learned that from its
beginning, American political history has been marked by efforts of
many presidents to define the extent of their power and authority in
ways violative of the U.S. Constitution.
As early as 1792, according to Thomas Jefferson: ``I said to
[President Washington] that if the equilibrium of the three great
bodies, Legislative, Executive and Judiciary, could be preserved, if
the Legislature could be kept independent, I should never fear the
result of such a government; but that I could not but be uneasy when I
saw that the Executive had swallowed up the Legislative branch.''
Congress and the courts have taken action from time to time to
examine and, at times, challenge presidential exercises of authority
perceived to be unconstitutional: from President Washington's
declaration of neutrality to the Louisiana Purchase, Jefferson's
embargo, Jackson's removal of federal funds from the Second Bank of the
United States, Polk's sending of Gen. Zachary Taylor's troops into
contested territory before the declaration of war with Mexico,
Lincoln's conduct of the Civil War without calling Congress into
session, Lincoln's amnesty and reconstruction plans, the Tenure of
Office Act and Andrew Johnson's impeachment . . . and the list goes on
and on.
But the Constitution anticipated that the Congress and the Court
would jealously guard their prerogatives, and, setting power against
power, unconstitutional excursions by the executive would be met with
fierce resistance. Sadly, neither the Congress nor the Court have acted
boldly in defense of the Constitution, particularly in the recent past.
My first personal experience with an unconstitutional exercise by
the executive of a legislative power arose in the mid-1980's, shortly
after I completed serving three part-time positions in the Reagan
Administration, when I filed suit against the Reagan Administration for
usurping the Senate's power to ratify treaties before they became
effective. The case was The Conservative Caucus v. Reagan, litigated in
the U.S. District Court for the District of Columbia. Our client had
sought to prevent Secretary of Defense Casper Weinberger from ordering
the Pentagon to unilaterally implement the SALT II treaty--which the
Senate had thus far refused to ratify. President Reagan had announced
his determination to implement the treaty, notwithstanding the Senate's
constitutional role. Unfortunately, we were unable to obtain a review
on the merits, as the suit was dismissed, as so many similar suits have
been, on the theory that our client lacked standing to bring suit.
The simple truth is that the courts cannot be counted upon to check
Presidential power--our research has been able to identify only two
cases in the history of the country in which the courts have struck
down completely an executive order. The first of these was in 1952,
when the U.S. Supreme Court negated the seizure of the steel mills
ordered by President Truman, observing that:
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 nor 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.'' [Youngstown Sheet & Tube v. Sawyer.]
Notwithstanding this U.S. Supreme Court decision, presidents of
both parties continued to implement controversial initiatives using
presidential directives--often in the face of Congressional opposition.
The other time the court struck down completely an executive order was
President Clinton's executive order relating to the hiring of permanent
striker replacements by federal contractors, and the decision of the
U.S. Court of Appeals for the D.C. Circuit was not appealed to the U.S.
Supreme Court. Chamber of Commerce of the U.S. v. Reich.
Congress has done little more than the courts in restricting
presidential lawmaking. Nevertheless, Congress did make one bold step
to check executive powers in the related arenas of executive orders,
states of emergency and emergency powers. The Congressional concern led
to the creation of a Special Senate Committee on the Termination of the
National Emergency, co-chaired by Sens. Frank Church (D-ID) and Charles
Mathias, Jr. (R-MD), more than 25 years ago. The diligent efforts of
this committee resulted in the successful codification of efforts to
restore the Constitutional separation of powers, through a check on the
presidential exercise of ``emergency powers,'' by means of the National
Emergencies Act. Other contemporaneous statutory efforts to check
presidents' unconstitutional exercise of power include the War Powers
Resolution, the International Emergency Economic Powers Act, and the
amendment of the Trading with the Enemy Act of 1917.
Unfortunately, these 1970s efforts to impose restraints on
unconstitutional exercises of power by presidents have been
ineffective--witness the inability of Representatives and Senators to
obtain judicial review of President Clinton's war upon the Federal
Republic of Yugoslavia pursuant to the terms of the War Powers
Resolution. Likewise, notwithstanding the National Emergencies Act and
the International Emergency Economic Powers Act, the number of
presidentially-declared national emergencies has exploded. Since then,
although individual members of Congress have spoken out, the Congress
has failed to act.
I commend the efforts of this Subcommittee to take a new look at
the issue of executive lawmaking, urge you to expand the scope of your
investigation to focus on emergency powers, and in both cases to begin
your investigation where Senators Church and Mathias left off, and to
act boldly to curtail Presidential lawmaking.
Two proposals are currently before the House which would address
this concern. First there is Rep. Metcalf's H. Con. Res. 30, which
would express:
the sense of the Congress that any Executive order issued by
the President before, on, or after the date of the approval of
this resolution that infringes on the powers and duties of the
Congress under article I, section 8 of the Constitution, or
that would require the expenditure of Federal funds not
specifically appropriated for the purpose of the Executive
order, is advisory only and has no force or effect unless
enacted as law.
The proposal has been useful in focusing attention on the problem,
but the solution it proposes would be cosmetic only. First, as a
concurrent resolution, even upon passage, it will not enjoy the force
of law. If a resolution passed into law by both Houses of Congress over
a presidential veto, such as the War Powers Resolution, cannot be
enforced in the courts, then passage of a resolution with no legal
effect is essentially a symbolic gesture. Second, it is unclear what
constitutes an infringement of the powers and duties of Congress, or a
specific appropriation for the purpose of the executive order. And
third, even if it were an effective limitation on executive orders, it
could be evaded easily by entitling the directive as a proclamation (or
some other directive). Rather than truly solve the problem, I fear
passage of this proposal would be counterproductive in that it would
give Members of Congress and the public the false impression that the
problem had been solved.
By contrast, H.R. 2655, Rep. Paul's and Rep. Metcalf's approach
holds great hope to solve this recurrent problem. This bill, which, as
a proposed statute, would become legally binding, would:
Establish the first statutory definition of ``presidential
directive'' (it uses the term ``presidential order'');
Expand access to the courts to challenge the legality of
presidential orders;
Define the constitutional powers which the president may
exercise by presidential order; would require any statutory authority
for the presidential order to be expressed for the order to be valid;
Terminate the powers and authorities possessed by the
president, executive agencies, or federal officers and employees, that
are derived from the currently existing states of national emergency;
Vest the authority to declare future national emergencies
in Congress alone; and
Repeal the ineffective War Powers Resolution.
Lastly, I would say that concerns about presidential lawmaking must
not be written off as attacks on the policies underlying the executive
orders. This is not partisan politics masquerading as separation of
powers issues. It is true that it finds fault with President Clinton,
but it also finds fault with Presidents Reagan, Bush, and others. As a
review of the above-mentioned CRS report will demonstrate, presidential
directives were used to legislate to accomplish political objectives
which could be viewed as ``liberal'' and political objectives which
could be viewed as ``conservative.'' No constitutional power should be
misused, irrespective of the benefit perceived for a political
objective. If constitutional processes are violated, in the end, we all
lose.
In his concurring opinion in Youngstown Sheet and Tube, Justice
Frankfurter observed:
The tragedy of such stalemates might be avoided by allowing
the President the use of some legislative authority. The
Framers with memories of the tyrannies produced by a blending
of executive and legislative power rejected that political
arrangement. Some future generation may, however, deem it so
urgent that the President have legislative authority that the
Constitution will be amended. We could not sanction the
seizures and condemnations of the steel plants in this case
without reading Article II as giving the President not only the
power to execute the laws but to make some. Such a step would
most assuredly alter the pattern of the Constitution. [Emphasis
added.]
The problem before you is extremely serious, but solvable. The U.S.
Constitution charges you with the duty to protect it from assault, and
the American people look to you to do just that. Thank you.
Mr. Goss. I am reminded that one of the first acts at the
beginning of every Congress is we all put our hand up and say
``I do swear to protect the Constitution of the United States
of America'', and I think we all are sincere in our commitment
to do that. What we have to understand a little bit better is
what ``protect the Constitution'' means, and that is one of the
reasons for this hearing.
You brought up some good points and I think added balance.
I note that it took four on the other panel to present that
side, and it only took one on your panel. It never could be
said that we aren't interested in balance here.
I think there is a point I would make, and it is a little
bit off the subject, but it certainly is flavoring what is
happening here. You draw the question of the responsibility of
the institution of Congress as well as the institution of the
judiciary and the institution of the executive branch to do
their functions as envisaged by the Founding Fathers and
spelled out in the Constitution.
I would suggest that what has happened is that partisan
politics have come into play to a point where the loyalty to
the Constitution has been replaced by the loyalty to the party,
and what that causes to happen is that whoever is in the White
House, members of that person's party will circle the wagons,
protect the President and are more interested in the partisan
question than in the governance question. And I suspect that is
something that is being fed by the media a little bit and also
the desire to get reelected.
All of these things are facts of life. I am not saying this
is good or bad, I am just simply saying that those are points
that are perhaps illustrative of why there has not been, in the
eyes of some, apparently, including yourself, enough attention
to rein in the presidential, quote, lawmaking.
The other piece of information that struck me as a Member
of Congress since I have been here is a word that I had not
heard much before I came to Washington and that was the word
micromanage. I don't know who first threw that word out, but it
is regularly considered a sin to micromanagement. I don't know
where micromanagement starts and oversight stops, and if you
could care to offer an observation on any of that, that is
certainly a fact of life that we have here today, and I think
it fits in very well with your concern that there is a bright
line about presidential lawmaking.
I am not sure exactly where it is. I think we surely don't
want to hamstring the President of the United States as chief
executive officer in executing properly the laws that are
passed by Congress, but we don't want him going out and going
beyond that point, and it is that bright line we are trying to
find.
In the atmosphere of the sin of micromanagement and the
problems of partisanship, if you have any further observation I
would welcome it.
Mr. Olson. Well, I too, might have been guilty of this
exact thing. I noticed in your opening comments you talked
about ``Mandate for Leadership'', and I was a contributor to
one of the chapters of that, probably calling on President
Reagan to take certain actions in the area of export controls
and the matters that I was concerned about at that time. I
wouldn't say my entire career has been consistent on these
points, but I do like to think that my views now are the right
ones.
I would say that if there was one thing--one message that I
could get to each Member of Congress, it would be this: That
before you vote on any piece of legislation, you simply have to
make sure the bill passes a threshold question as to whether it
is constitutional, irrespective of whether it is desirable.
Mr. Goss. Right.
Mr. Olson. The same thing is true with respect to executive
orders. The first inquiry cannot be, is this desirable? Do we
want to have hate crimes being able to be punished by the
Uniform Code of Military Justice so that if people are killed
for reason A they are punished more severely than if they are
killed for reason B? It is not whether you like that or not. It
is whether that is a function of the executive branch of
government or whether that is a legitimate function only of the
Congress.
I guess, beyond that, the reason that you are warned
against micromanagement, of course, is that there is an army of
bureaucrats in this city who do not answer to anyone, sometimes
not to the President. The Federal Government has simply vastly
exceeded its power and we have 18 enumerated powers for the
Congress and we have a Congress that disregards the
enumeration.
So when the government tries to do too much, it does what
it does not particularly well. But, on the other hand, it is no
wonder people would want to be paid more if they are going to
take on the role of State legislature and the local city
council. But I would urge restraint not only with respect to
your own powers but also with respect to the powers of the
President.
I hope that wasn't too uppity.
Mr. Goss. No. I heard you.
Ms. Pryce, questions?
Ms. Pryce. Well, thank you, Mr. Chairman.
Unfortunately, I wasn't able to be here for most of the
hearing. I think it is a fascinating subject and certainly one
which I hear a lot about from my constituents. And I don't know
if that is due largely to the efforts of people like you or
what, but I think it has an incredible amount of momentum
behind it, and I think I just want to congratulate the chairman
on bringing it forth here in the Rules Committee.
I don't really have any questions. I just want to thank you
for your testimony and your activism in this regard, and from
where you sit activism is a good thing, maybe not so much from
other perspectives.
Thank you very much, Mr. Chairman.
Mr. Goss. Thank you, Mr. Olson. I want to thank you very
much. I think you have said very succinctly the pieces that we
needed to fill out the balance piece on this, and I consider
that extremely helpful to the committee's work.
I would also like to reserve the right to have further
dialogue in writing with you, if you would be agreeable to
that.
Mr. Olson. I would be honored.
Mr. Goss. It would be our pleasure. Thank you very much,
sir. We wish you well.
At this point I would dismiss the second panel and invite
the third panel, Mr. Ray Mosley, Director, Office of the
Federal Register, National Archives and Records Administration.
Come to the witness table.
I understand, with Mr. Mosley, Mr. Michael White will be
joining you to be available for questions, illumination,
further clarification, micromanaging or whatever might come up.
Mr. Mosley, welcome. Your prepared remarks will be accepted
without objection into the record, and we welcome you. We
appreciate your patience for waiting. You have now had the
benefit of hearing all of this. You know what is left of value
for this committee to hear. Please proceed.
STATEMENT OF RAY MOSLEY, DIRECTOR, OFFICE OF THE FEDERAL
REGISTER, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION;
ACCOMPANIED BY MICHAEL WHITE, GENERAL COUNSEL
Mr. Mosley. Thank you, Mr. Chairman, for the opportunity to
testify today.
As you indicate, with me is Michael White, who is the
General Counsel of the Office of the Federal Register; and Mr.
White can help me provide some institutional perspective. He
has served with the Federal Register since the 1980s. I have
been there since--approximately 3 years now, since 1996.
I will offer a summary of my written statement provided
earlier to the committee and then be happy to answer your
questions.
The Office of the Federal Register was established in 1935
for the purpose of creating a centrally located system for
filing and publishing presidential documents, as well as agency
regulations and administrative notices. The Federal Register
Act governs the operations of the Federal Register publication
system.
The statute specifically requires that executive orders and
presidential proclamations must be published in the Federal
Register, except for those that do not have general
applicability and legal effect or those that only affect
Federal agencies, officers, agents or employees. In practice,
however, most executive orders are published in the Federal
Register, regardless of subject matter.
The on-line edition of the Federal Daily Register is
available at 6:00 a.m. Eastern time, making new executive
orders accessible to the American public on a very timely
basis. We compile each year's executive orders in Title III of
the Code of Federal Regulations as required under the Federal
Register Act. 1997 through 1999 editions of the CFR are
available on-line on the Government Printing Office access
service.
Some of the Presidential memoranda and determinations that
are not published in the Federal Register and CFR are released
by the White House Press Secretary and carried in the Federal
Register's weekly compilation of presidential documents and the
public papers of presidents of the United States. These Federal
Register publications are available in printed editions and on-
line formats that we have recently developed for the GPO access
service.
To help the public sort through these various sources of
information, we use our National Archives and Records
Administration Web site to direct customers to the text of
executive orders and other presidential documents, and I have
provided the Web site address to the committee, Mr. Chairman.
We also provide other information services, such as our
historical codification of proclamations and executive orders
and an on-line index of executive orders which tracks dates of
issuance, amendments, revocations and dates of publication in
the Federal Register.
During the first 9 months of calendar year 1999, our
customers have retrieved a total of almost 560,000 documents
from these pages.
The Federal Register publication system also depends on its
partnership with the Government Depository Library Program to
ensure that all citizens have equal access to government
information. More than 1,350 depository libraries throughout
the United States and its territories provide free public
access to Federal Register publications in print and on-line
via the GPO access service.
The Superintendent of Documents at GPO reports that Federal
Register publications are among the most frequently used
databases on the GPO access service, accounting for almost 79
percent of total usage. In fiscal year 1998, the public
retrieved more than 102 million individual documents from our
publications. At the end of the third quarter of this fiscal
year, 1999, that figure had already been surpassed by 9 million
and was headed for projected year end total of 145 million
retrievals of information.
About one-third of those retrievals are from the daily on-
line Federal Register and two-thirds are from the 200 volume
Code of Federal Regulations. During the same period, our
customers have retrieved 138,000 individual documents from the
weekly compilation of presidential documents and 367,000 from
the United States Government manual. Overall, public use of on-
line Federal Register publications has increased by more than
1,000 percent since free on-line service began in late 1995.
I believe these figures demonstrate that Federal Register
publications and information services are helping to build a
digital democracy by providing the American people with direct
access to essential government information and the opportunity
to express their views on the various programs and policies of
Federal agencies.
This concludes my summary. I thank the Chairman for this
opportunity to address the subcommittee and would be pleased to
take your questions.
[The statement of Mr. Mosley follows:]
Prepared Statement of Raymond A. Mosley
Mr Chairman and members of the Subcommittee: My name is Raymond A.
Mosley. I am the Director of the Office of the Federal Register, which
is a component of the National Archives and Records Administration
(NARA). I have been the Director of the Federal Register since
November, 1996. Prior to that time, I worked for NARA in a number of
different capacities as a senior manager.
Thank you for inviting me to testify today on the manner in which
the Office of the Federal Register processes Executive orders and makes
them available in our publications. In my testimony today, I will
describe the role of the Federal Register under the applicable law and
procedures. My statement will also include a summary of our recent
efforts to broaden public access to Executive orders and other
Presidential documents.
background
The Office of the Federal Register (OFR) was established in 1935
for the purpose of creating a centrally located system for filing and
publishing Presidential documents, as well as agency regulations and
administrative notices. The Federal Register Act (44 U.S.C. Chapter 15)
governs the operations of the Federal Register publication system. The
statute specifically requires that Executive orders and Presidential
Proclamations must be published in the Federal Register, except for
those that do not have general applicability and legal effect, or those
that only affect Federal agencies, officers, agents or employees (44
U.S.C. 1505(a)). In practice, most Executive orders are published in
the Federal Register regardless of subject matter.
The Federal Register Act does not define Executive orders or
Proclamations. Under well-established tradition, Executive orders
relate; to domestic matters, and Proclamations relate either to foreign
and trade matters or to ceremonial functions. The President may also
issue certain directives characterized as ``Determinations'' or
``Memoranda.'' The Federal Register Act does not require publication of
these other types of Presidential documents, but the President may
direct that they be submitted for publication in the Federal Register.
The President does not submit any classified orders to the Office
of the Federal Register. Classified documents, such as Presidential
Decision Directives, are maintained at the White House and eventually
transferred to the National Archives' Presidential Library system.
procedure for processing and publishing executive orders
The Office of the Federal Register does not currently have any
responsibility for reviewing the substance or form of Executive orders
prior to issuance. E.O. 11030 of June 15, 1962, as amended (see http://
www.nara.gov/fedreg/eos/e11030.html), specifies a standardized format
for Executive orders and the procedures for proposal and review within
the Executive branch. Those requirements are also codified in Federal
Register regulations in 1 CFR part 19. Under these provisions, the
Director of the Office of Management and Budget and the Attorney
General review and approve the format and substance of Executive orders
prior to signature. The Attorney General also has the option of routing
draft Executive orders through the OFR to check for typographical and
clerical errors, but has not followed that practice for more than 20
years.
Once the President signs an Executive order, the Office of the
Executive Clerk in the White House submits the document to the OFR by
messenger. When a messenger delivers an Executive order, our
Presidential and Legislative Documents Unit verifies that the Executive
order meets the following basic requirements. Our Staff confirms that
we have received a signed and dated original, along with two certified
copies. We check the order of pages and numbered sections and the
continuity of the text to ensure that the document is intact. It is
also customary for the Executive Clerk to include a computer disk and a
letter certifying the file on the disk as a true copy of the original.
Once we have completed our initial review, we sign a receipt and give
it to the messenger to return to the White House.
We begin processing the document for public filing and publication
in the Federal Register by assigning it the next available number in
the Executive order series. A staff member hand writes the series
number on the original and certified copies. On the rare occasions when
we receive more than one Executive order, we assign the series numbers
by signature date, then by relative importance, and then be
alphabetical order if the documents are of equal importance. After
initial processing, we secure the originals of Executive orders and
other Presidential documents in a safe for eventual transfer to the
National Archives.
To prepare an Executive order for publication, our editorial staff
enters information into our document tracking system, marks up an
editorial copy for Federal Register style, converts the word processor
file into publishing software, and adds typesetting codes. We print out
the typeset file to check the appearance of the document and a review
for typographical errors. Very rarely, our editors will find an error
or omission in the text of the Executive order. In those instances, we
contact the Executive Clerk for authorization to make a correction.
When we complete our editorial review, we transmit the finished
electronic file to the Government Printing Office (GPO). GPO's
production staff complete the processing necessary for the Executive
order to appear in the printed and on-line editions of the Federal
Register.
Executive orders are published in the Federal Register on an
expedited schedule. If the OFR receives an Executive order before noon,
we publish it in the next issue of the daily Federal Register. If it
arrives after noon, we will publish it within two days. If an Executive
order addresses an emergency situation, we will instruct our editors
and the Printing Office to include it in the next day's issue
regardless of the time we received it during the working day.
Our responsibility for processing Executive orders also includes
making a copy available for public inspection. Under the Federal
Register Act, documents published in the Federal Register must be
placed on file for public inspection during official hours, at least
one business day before the date of publication. Executive orders
scheduled for the next day's Federal Register are filed as soon as
possible. Those scheduled for publication within two days are filed at
8:45 a.m. on the day after submission. Our staff time-stamps the file
copy to record the time of day, and files the document in our public
inspection area, which is open to any member of the public. To alert
our customers to newly filed documents, including Executive orders, we
update our ``List of Documents on Public Inspection,'' which is posted
on our NARA Web site.
access to presidential documents and federal register information
The Federal Register publication system is the product of a unique
partnership between our parent agency, NARA, and the GPO. The support
of these two institutions helps guarantee the public's right to know
about the actions of their Government. In recent years, the OFR/GPO
partnership has developed on-line editions of every major Federal
Register publication and posted them on the GPO Access service to make
it easier for citizens to gain access to essential legal information.
The on-line edition of the daily Federal Register is available at 6
a.m. (ET), making new Executive orders accessible to the American
people on a very timely basis. We also compile each year's Executive
orders in title 3 of the Code of Federal Regulations (CFR), as required
under the Federal Register Act. The 1997 through 1999 editions of the
CFR are available on-line on the GPO Access service. Some of the
Presidential Memoranda and Determinations that are not published in the
Federal Register and CFR, are released by the White House Press
Secretary and carried in the OFR's Weekly Compilation of Presidential
Documents and the Public Papers of the Presidents of the United States.
These Federal Register publications are available in printed editions
and on-line formats that we have recently developed for the GPO Access
service.
To help the public sort through these various sources of
information, we use our NARA Web site to direct customers to the text
of Executive orders and other Presidential documents (see http://
www.nara.gov/fedreg/presdoc.html). We also provide other information
services, such as our historical Codification of Proclamations and
Executive Orders and an on-line index of Executive orders, which tracks
dates of issuance, amendments, revocations and dates of publication in
the Federal Register. During the first nine months of calendar year
1999, our customers retrieved a total of 557,657 documents from these
pages.
The Federal Register publication system also depends on its
partnership with the Government Depository Library program to ensure
that all citizens have equal access to Government information. More
than 1,350 Depository Libraries throughout the United States and its
Territories provide free public access to Federal Register publications
in print, and on-line via the GPO Access service.
The Superintendent of Documents at GPO reports that Federal
Register publications are among the most frequently used databases on
the GPO Access service, accounting for 79 per cent of total usage. In
fiscal year 1998, the public retrieved more than 102 million individual
documents from our publications. At the end of the third quarter of
fiscal year 1999, that figure had already been surpassed by 9 million
and was headed for a projected year-end total of 145 million retrievals
of information. About one-third of those retrievals are from the daily
on-line Federal Register and two-thirds from the 200-volume Code of
Federal Regulations. During the same time period, our customers
retrieved 138,000 individual documents from the Weekly Compilation of
Presidential Documents, and 367,000 for The United States Government
Manual. Overall, public use of on-line Federal Register publications
has increased by more than 1000 per cent since free on-line service
began in late 1995.
I believe these figures demonstrate that Federal Register
publications and information services are helping to build a ``digital
democracy'' by providing the American people with direct access to
essential Government information and the opportunity to express their
views on the various programs and policies of Federal agencies.
This concludes my testimony. I thank the Chairman for this
opportunity to address the Subcommittee, and I would be pleased to take
any questions that you may have.
Mr. Goss. I want to thank you, and I was aware of some of
that information, but I think it bears underscoring.
That really is startling, that there is this much public
interest and technology is providing this kind of access. For
those of us who are not as skilled as some of our younger
members of our generation in all of this digital access you
speak of, there has still got to be a way for us to retrieve
these. So I hope you have a telephone or a public information
office or answer your mail as well in addition to the
electronics.
Mr. Mosley. Yes, we do.
Mr. Goss. I guess I am asking the question this way: It is
hard for people to know when we say, gee, check the library,
they might have it, it is hard to know which library does or
doesn't. There needs to be a way that I think Members of
Congress have staffers who are informed in their offices when
these calls come in from the public to say, if you call this
number, you contact this office or we can do it for you,
however is best, you can get this information.
Part of the other problem is that some of the stuff that
comes into congressional offices are hoaxes. They are just
plain somebody made it up or there is a conspiracy going around
the talk show circuit or something like that, which I presume
is not in your database--I hope it is not in your database--and
you probably are as puzzled as we are by some of those calls as
well.
What I guess my question would be, since public access is
so very important to this, are you satisfied that a member of
the public who wants to get an executive order and review it
for himself knows how to get it and can get it and that there
are enough distribution points out there for--information
points to advise the public on how to do this?
Mr. Mosley. Yes. I think there are, Mr. Chairman.
We get telephone calls and letters from the public, which--
for these documents, for which we respond to, and we can direct
them to the nearest depository library, which has a set of our
publications. In certain instances, we will make copies of
documents that are in our holdings, in our office here on North
Capitol Street, and provide those to the public. Regrettably,
we are limited in providing copies of lengthy documents because
of the resources, the limitation on resources available to us.
But if we are not able to provide an entire document we do make
certain that we can direct the inquiry to an appropriate
library or an appropriate source where they could get the
entire document.
Mr. Goss. One of the questions we often get about executive
orders is that, once they are written, they are in cement
forever. The question is, can you briefly outline for us what
does it take for an executive order to be revoked? How does
that happen? How does the public know whether an executive
order still is or still is not in effect, that part of the
process?
Mr. Mosley. Generally, one of the things that we will look
for in processing a new executive order is whether or not it is
revoking previous executive orders, and that is--or provisions
of previous executive orders, and that that is so stated.
In addition, on our Web site we provide an index of all
executive orders that we have been able to make an accounting
for and indicate whether or not they are still in effect or if
they have been revoked or replaced by a provision of a more
recent executive order. We have accounted for over 13,000
executive orders and can provide that information on virtually
all of those.
Mr. Goss. If I had, say, a favorite subject and I wanted
all executive orders on that subject, you could provide me that
information?
Mr. Mosley. That is a good question. I guess we could
test--it would test the query capabilities of our system and,
of course, given whether or not the information is standardized
from one executive order to the next would go a long way toward
determining if it was a reliable answer, but, yes, we could get
you along the way for sure.
Mr. Goss. Part of the question is, it would be hard to know
for sure what is in conflict and what isn't in a general area
if you didn't have the full matrix, I would think.
Secondly, it seems to me, just in the area of good
housekeeping, that at a point where a law is no longer useful--
or an executive order, excuse me, is no longer useful, that
there ought to be some way to compile all of those together and
throw them out. Is that something that can happen?
Mr. Mosley. Right. Yes. That is what we are doing with the
index that we have placed on-line and we have available in our
office relating to all the executive orders that we have been
able to account for, some 13,000 plus another 500 or so that
are unnumbered.
Mr. Goss. Thank you.
Judge Price.
Ms. Pryce. Why would they no be numbered?
Mr. Mosley. The tradition prior to this century was that
executive orders were not numbered. There was not consistency
in terms of numbering prior to this century. About 1907, the
State Department undertook an effort to begin numbering all
executive orders. That remained sporadic until President Hoover
issued an executive order in the 1920s that began the
standardization of the process. So, basically, since about 1907
they are all numbered. Prior to 1907, some are numbered, some
are not. It is inconsistent.
Ms. Pryce. The standardization is just a numbering system?
Mr. Mosley. The standardization is a numbering system which
has been essentially consistent since the 1960s, since about
1962. We are under Executive Order 11030, I believe, that
provides the numbering and the processing manner for executive
orders.
Ms. Pryce. Following up on the Chairman's question, I mean,
is it indexed at all by subject matter or is it a word search
kind of thing that you do, a computerized search? How would you
do a research of any particular area of law or executive order
to determine? Is there a legal way of going about this?
Mr. Mosley. The on-line site provides a title to the
executive order, and so one could inquire based on that
information, but the reliability of that inquiry may not be
very high because an executive order issued today on a subject
matter could be similar to an executive order issued previously
but used different terminology.
Our staff will go through the actual documents and will
make these assessments in terms of updating this index
information so we have--we are not relying simply on the title
or an abbreviation of this information. We are relying on the
actual documents and the substance of the documents in order to
create the index.
Ms. Pryce. Is there any analysis or anything that is a part
of the index or is it just straight subject matter index?
Mr. Mosley. Well, we don't, as a rule, provide analysis of
the executive orders, but in terms of advancing the ability to
index them we would look carefully at it for some common terms
and common features in an executive order.
Ms. Pryce. Thank you very much.
Mr. Goss. I was just trying to determine the antecedents of
the National Archives and Records Administration. That is a
quasi legislative branch, quasi executive branch or entirely
one or the other? What are the antecedents?
Mr. Mosley. We are an independent agency of the executive
branch. We became independent in 1985. Prior to that, we were
part of the General Services Administration from 1949. Prior to
1949, we were an independent agency of the executive branch
known from--created in 1934, known from 1934 until 1949 as the
National Archives Establishment.
Mr. Goss. So your budget comes through the OMB process?
Mr. Mosley. That is right.
Mr. Goss. You start there and your oversight presumably is
one of the House committees?
Mr. Mosley. That is right. Government Reform, I believe, is
our oversight.
Mr. Goss. I assumed that.
I want to tell you, this has been helpful. I don't know
whether you have a legislative affairs office that has
outreach, but if you do my suggestion would be that you could
advise Members on how to instruct constituents to get the
material of executive orders. It would be definitely a positive
service effort I think most Members would appreciate.
We do foresee that there will continue to be executive
orders and that they will be controversial from time to time.
That causes a huge onrush of interest in congressional offices,
and I guess my answer would be we would like to turn to the
easiest, quickest source of information to help our
constituents. It would appear that you are it, and I presume
you are geared up to handle what I will call I guess an unusual
situation or an emergency situation.
Mr. Mosley. Sure.
Mr. Goss. Is that true or not?
Mr. Mosley. We would be pleased to work with you and other
Members of Congress.
Mr. Goss. It wouldn't be just us. Once something hits the
fan it usually hits it across the board.
Mr. Mosley. I might add that we have just in recent days
created a means by which the public might more readily obtain
access to presidential documents. We created on our Web site a
listing of the sources for presidential documents that are
available on-line.
Mr. Goss. Okay.
Mr. Mosley. So we could direct constituents very readily to
that, and I think they would get essentially what you are
suggesting they would want to have access to.
Mr. Goss. Thank you.
Judge Pryce, do you have anything further?
Ms. Pryce. No.
Mr. Goss. I want to thank you gentlemen very much.
I particularly want to thank you for coming as well, Mr.
White, and standing by. Obviously, we didn't have enough
serious questions for Mr. Mosley to have him participate.
Mr. White. Thank you, Mr. Chairman.
Mr. Goss. But I am sure we have forgotten something, and we
will be hearing about it. And as we proceed down this, as I
said at the beginning of this, you heard me say, I think, that
we are trying to deal on the subject of awareness and attention
here and create some interest in a subject that has already
gotten plenty of interest to see what, if anything, Congress
should be doing about this, and there will be legislation
coming forward.
All that, as good as it may be in good time, doesn't mean
that we aren't going to have questions from American citizens
wanting to know what is going on, and I do think we have the
responsibility to respond and give them satisfactory answers,
and we will try the system and see how it works.
Thank you all very much. We will dismiss the third panel.
[Questions and Answers submitted by witnesses:]
Submitted Questions and Answers By Douglas Cox
Question. 1. In your testimony, you mention the broad delegation of
authority granted to the President by the Congress in the area of
national security. Do you see any difference in the latitude that
should be afforded a President for executive orders relating to
national security as compared with other types of policymaking?
Answer. The President's constitutional powers in the national
security area are very great. See, e.g., Article II, Section 2 of the
Constitution, United States v. Curtiss-Wright Export Corp., 299 U.S.
304, 319-20 (1936); The Federalist No. 64 (John Jay) (Jacob E. Cooke,
ed., 1961). Thus, executive orders relating to national security should
be considered by Congress in light of the President's unique
constitutional role in national security matters, and in foreign
affairs more generally. It is perhaps less a question of Congress
affording the President greater latitude in these settings, than the
recognition of the breadth of the President's constitutional powers.
Question. 2. In your testimony, you discuss the ``line between
executing and legislating.'' Could you tell us your view of where that
line is drawn?
Answer. This is one of the most profound and complex questions in
the structural analysis of the Constitution, and I have no definitive,
universally applicable guidance to offer.
Most observers would agree that certain functions fall clearly on
the legislative side of the line--such as appropriating funds--while
other functions, such as receiving ambassadors, are clearly executive.
In between the extremes there is a gray area where it is difficult to
place the line with precision. As Justice Brandeis famously observed in
his dissent in Myers v. United States, 272 U.S. 52,291 (1926), ``The
separation of the powers of government did not make each branch
completely autonomous. It left each, in some measure, dependent upon
the others, as it left to each power to exercise, in some respects,
functions in their nature executive, legislative and judicial.'' Thus,
for example, the President does participate in the legislative process
in several ways, most obviously through vetoing or signing a bill into
law. See also Ginnane, The Control of Federal Administration by
Congressional Resolutions and Committees, 66 Harv. L. Rev. 569, 570-71
(1953) (``It is fruitless, therefore, to try to draw any sharp and
logical line between legislative and executive functions.''), quoted in
Bowsher v. Synar, 478 U.S. 714, 749 n.13 (1986) (Stevens, J.,
concurring); Morrison v. Olson, 487 U.S. 654, 725 (1988) (Scalia, J.,
dissenting) (``It has often been observed, correctly in my view, that
the line between `purely executive' functions and `quasi-legislative'
or `quasi-judicial' functions is not a clear one or even a rational
one.''). I note also that former Senate Legal Counsel Thomas B.
Griffith recently testified before the House Judiciary Committee's
Subcommittee on Commercial and Administrative Law that ``[t]here is an
uncertain boundary between legislative and executive power in the area
of executive orders.'' Griffith Testimony, October 28, 1999, at 2.
The difficulty in drawing the line between executing and
legislating does not mean that there is no such line: rather, it means
that the line cannot always be defined clearly or in the abstract. The
lack of an absolute and readily ascertainable line between the
legislative and executive functions should not be viewed as a flaw in
the constitutional design. Rather, the Founders anticipated that both
the executive branch and the legislative branch may seek to invade the
powers of the other branch, and the resulting struggle between the
branches could be used, through the separation of powers, to guarantee
liberty. See e.g., The Federalist No. 51 at 349 (James Madison) (Jacob
E. Cooke ed., 1961) (``[T]he great security against a gradual
concentration of the several powers in the same department, consists in
giving to those who administer each department, the necessary
constitutional means, and personal motives, to resist encroachments of
the others. . . . Ambition must be made to counteract ambition.''); see
also INS v. Chadha, 462 U.S. 919, 951 (1983) (``The hydraulic pressure
inherent within each of the separate Branches to exceed the outer
limits of its power, even to accomplish desirable objectives, must be
resisted.'').
Question. 3. You discuss the option for Congress to require the
President, when invoking statutory authority to issue an executive
order, to submit his proposal to Congress for review. Do you think it
is likely that any President would agree to this type of change in
current practice? How would you structure such a change in the process?
Answer. Presidents are likely to resist any attempts to limit their
powers. As noted above, that resistance was anticipated by the Framers
and built into the constitutional plan. Nonetheless, a President could
be led to agree to such a change, either in the interests of good
governance, or as part of some larger political compromise with
Congress.
There are many ways to structure such a change. In particular,
Congress has had ample experience with ``report and wait'' provisions
and could draw upon whichever version has worked best.
Question. 4. In a recent article for the Journal of Law, Economics
and Organization, Terry Moe and William Howell argue that:
``[E]ssentially . . . the constitutional and statutory powers of
presidents are fundamentally ambiguous, and that this sets the stage
for a relentless (and usually moderate and incremental) brand of
presidential imperialism that Congress and the courts cannot be counted
on to stop--in part because their incentives don't prompt them to want
to, and in part because they both suffer from distinctive institutional
weaknesses . . . [Congress] has also had a very difficult time
responding when presidents have gone off on their own, and it has not
done an effective job of protecting its own institutional interests.''
(Page 33)
Do you share the view that ``Congress has not done an effective job
of protecting'' its interests? Do you have any thoughts on what
Congress could/should be doing better in this regard?
Answer. In the context of executive orders specifically, Congress
has not done an effective job of protecting its interests. There are
many reasons for that, including the increased scope of the duties
assigned by Congress to the executive branch, which inevitably reduces
congressional oversight over any particular program. Congress has many
mechanisms to protect its institutional interests, some of which were
mentioned in my prepared testimony. Those mechanisms include increased
oversight; enacting narrower, more specific legislation; structural
reforms such as ``report and wait'' provisions for executive orders
based on statutes; and the usual tools of political persuasion.
Question. 5. Scholars Moe and Howell argue in their article for the
Journal of Law, Economics and Organization that it is wrong to say that
the Congress makes the law and the President executes them--as if to
imply that the President is an agent of the Congress. Instead, they
argue that the President is ``an independent authority under the
Constitution, and thus has an independent legal basis for taking
actions that may not be simple reflections of congressional will.''
(Page 4). Could you discuss your view of the ``gray area'' that exists
between the realms of lawmaking and law-executing?
Answer. A summary of my views on the gray area between legislating
and executing is set forth above in my response to question 3. More
specifically, I agree that the President is an independent authority
under the Constitution, and thus has powers and duties that are
independent of Congress and, indeed, may be exercised in the fact of
congressional opposition. Perhaps the most common and most obvious
example of that power to override the will of Congress is the use of
the veto power to reject a bill passed by both Houses. At the same
time, the Constitution clearly requires that Congress enact the laws--
and thus set the general policies that govern the Nation. both Congress
and the President have great constitutional power, and it is important
that both Congress and the President exercise their powers vigorously
and properly.
Question. 6. Some scholars argue that the fact of presidents acting
unilaterally to ``make law'' has been reality throughout the history of
our country, but that the power of presidents in this regard has grown
in recent history and has become more significant. What factors do you
believe account for this trend? Do you see this trend as a positive or
negative development from the perspective of the institutional
prerogatives of the Congress, or just a neutral fact of modern life?
Answer. Although I am not a political scientist, I believe the
trend has accelerated as the federal government has grown bigger and
become more intrusive. As Congress has multiplied the number of federal
programs to be executed, opportunities to ``make law'' through policy
preferences in the execution of the laws have also multiplied. Congress
may have further accelerated the trend, by writing overly-broad laws
and relying on the President or the courts to fill in the details. This
trend is a negative development for the institutional prerogatives of
Congress.
Question. 7. This entire debate and the tension between the
President and the Congress with regard to executive orders seems to
boil down to several basic questions. One of those is the threshold
issue: who should be making policy for the nation? What is your view?
Answer. Congress should be making policy for the Nation within its
broad constitutional sphere, including the power of the purse. There
are other areas--primarily involving the conduct of military and
foreign affairs--in which the President is given greater (though not
unlimited) authority to make policy. That grant of power is not
inadvertent: the Framers plainly intended that the President be chiefly
responsible for such matters, and that intent is reflected in the
constitutional text. But the grant of legislative power to Congress is
equally intentional and equally clear.
Question. 8. What role should the public play in this tension
between the President and the Congress? Is the system set up well
enough to ensure that the people have enough information about
executive orders and their impact to make their preferences known? What
is the obligation, in your view, of the two branches with respect to
transparency of executive orders and their impact?
Answer. The public, in a sense, is the ultimate arbiter in the
tension between the President and Congress, because that tension is
often resolved on a case-by-case basis through political means. At the
same time, as the federal government becomes bigger and plays a larger
role in the lives of private individuals, there is often insufficient
information for individuals to make informed judgments about various
policy choices or presidential actions. That is not a failure of the
system per se, because clearly both Congress and the President have
available mechanisms to provide that information to the public. It is,
perhaps, more a failure that arises from the sheer volume of government
activity: private individuals, with private concerns, simply cannot be
expected to focus on the intricacies of every federal program. Reducing
the role of the federal government would help to correct that failure.
The President has an obligation to be candid about executive orders
and their impact. The failure to be candid imperils good government and
leads to increased cynicism by the public. Congress has its role to
play, in policing executive orders and explaining them to the public,
and in defending its own legislative powers; but the President, as the
author of executive orders, is primarily responsible for their
presentation to the public.
Question. 9. What is your view of the practice of Congress passing
legislation after the fact to sanction an executive order that has
already been implemented? Do you believe this enhances or erodes the
legislative prerogatives of the Congress?
Answer. As a general matter, I believe this practice preserves the
role of Congress in the constitutional system. First, once Congress
passes the legislation, the President will be bound by the terms of the
legislation. Even if the statutory terms do not themselves
significantly alter the executive order, the fact that the executive
order is now embodied in legislation will limit the President's power
to alter the executive order to repeal the executive order thereafter.
Second, Congress will only pass such legislation when it agrees with
the President's executive order, and thus subsequent legislation is an
appropriate way for Congress to place its policy and enforcement
preferences in the law. Third, history has shown that in some instances
executive orders have been ineffective until backed by the judgment of
Congress, thus underscoring the role of Congress in the proper
governance of the Nation. I do not think, however, that Congress can
assume that if it adopts a practice of passing such approving
legislation that its failure to do so in a particular case will be
taken by the courts or by the public as undermining the legitimacy of
an otherwise lawful executive order.
______
Submitted Questions and Answers By Neil Kinkopf
Question 1. In a recent article for the Journal of Law, Economics
and Organization, Terry Moe and William Howell argue that:
``Essentially . . . the constitutional and statutory powers of
presidents are fundamentally ambiguous, and that this sets the stage
for a relentless (and usually moderate and incremental) brand of
presidential imperialism that Congress and the courts cannot be counted
on to stop--in part because their incentives don't prompt them to want
to, and in part because they both suffer from distinctive institutional
weaknesses . . . [Congress] has also had a very difficult time
responding when presidents have gone off on their own, and it has not
done an effective job of protecting its own institutional interests.''
Do you share the view that ``Congress has not done an effective job
of protecting'' its interests? Do you have any thoughts on what
Congress could/should be doing better in this regard?
Answer: Professors Moe and Howell advance a powerful and largely
accurate model, particularly in its capacity to account for the balance
of power between Congress and the President from the Nixon
Administration through the end of the Bush Administration.
Nevertheless, I believe that the model requires some refinements and,
lacking them, that it may misperceive presently prevailing conditions.
1. The article overstates the tendency of congressional incentives
to lead Congress away from asserting and protecting its institutional
interests. Here, the article relies on the assumption, prevalent
throughout the political science literature, that a member of Congress,
or at least the vast majority, is motivated by securing his or her own
reelection. Thus the typical member of Congress is driven by how his or
her constituents regard a given executive order on the merits, not by
abstract questions regarding the balance of power between the branches
of the federal government. ``That fact than [an] executive order may be
seen as usurping Congress's lawmaking powers, or that it has the effect
of expanding presidential power, will for most legislators be quite
beside the point.'' (144).
Given the extraordinary high retention rates that members of
Congress have enjoyed over long periods of time, the typical member of
Congress would have to be superhumanly risk-averse to be so exclusively
focused on his or her reelection. While reelection concerns are
important, Members of Congress are also motivated by considerations
that would tend to support an allegiance to the institutional interests
of Congress. Prominently, members of Congress are motivated by
considerations of their place or rank within Congress. Members will
seek to secure positions on powerful committees, chairmanships of
significant committees or subcommittees, and offices within the
leadership of their party's caucus. The value of these ``plumbs''
increases along with power of the institution and so tie, to some
extent, the interests of members to the interests of the institution.
2. The article fails to appreciate corresponding incentives that
can drive a wedge between the interests of a given President and the
institutional interests of the Presidency. A particularly significant
incentive is the President's concerns for his legacy. The Moe and
Howell model assumes (p. 136) that a President's concerns for his
legacy will tighten identity of interests between President and
presidency, because a President will seek to be regarded as having been
a strong and effective leader. This consideration may lead a President
to seek to maximize the institutional powers of the presidency. It is
not, however, inevitable. And, under some circumstances, may
predictably lead a President to cede power to Congress.
Two important factors will predict whether a President will cede or
augment the institutional powers of the Presidency. The first factor is
whether the President sees his legacy in terms of accomplishing an
affirmative domestic agenda, or instead sees his legacy in terms of
either a negative domestic agenda or of foreign relations. By an
affirmative domestic agenda, I mean an agenda that seeks to accord the
federal government an active role in identifying domestic problems and
goals and in resolving those problems and achieving those goals. By a
negative domestic agenda, I mean an agenda that seeks to minimize the
role and presence of government in domestic affairs. In terms of party,
the Democratic Party has generally favored an affirmative domestic
agenda, relative to their Republican counterparts, while the Republican
Party has embraced a negative domestic agenda, relative to their
Democratic counterparts.
Because the President's power of unilateral action is rather modest
on the domestic side, a President who sees his legacy in terms of an
affirmative domestic agenda must secure the cooperation of Congress in
order to be successful. A President who sees his legacy in terms of
limiting the affirmative role of government in domestic affairs or in
terms of foreign policy is not similarly constrained. On the domestic
side, a President's veto power will normally be sufficient to realize
his agenda. Even as to existing authorities, a President need not
secure enactment of a repeal. Instead, he could veto the appropriations
necessary to continue the function. As to foreign affairs, the range of
unilateral presidential authority is relatively expansive, in large
measure because the Constitution's text grants the President broad
categories of authority but does not vest Congress with the sorts of
power it does on the domestic side. Thus, a President who views his
legacy primarily in terms of either foreign affairs or of a negative
domestic agenda does not rely on the cooperation of Congress in the way
that a President with an affirmative domestic agenda does.
The second factor is whether the President's party is in the
majority in Congress. The President is acknowledged to be the leader of
his party. One component of a President's legacy is whether the
President was an effective leader of his party. When the President's
party holds the majority in Congress, this consideration will lead a
President to be relatively more accommodating. When the opposition
party holds a majority in Congress, the President is apt to be
relatively more assertive of institutional powers.
3. These two factors generate a matrix of four possible states of
affairs. Each will predict a different balance of power between the
branches.
(A) The President has an affirmative domestic agenda and his party
is also the majority party in Congress.
(B) The President does not have an affirmative domestic agenda and
his part is also the majority party in Congress.
(C) The President has an affirmative domestic agenda and faces an
opposition Congress.
(D) The President does not have an affirmative domestic agenda and
faces an opposition Congress.
The thesis that the President enjoys advantages over Congress in
the accumulation of power is generally accurate. The extent of those
advantages, however, has been exaggerated by the circumstances that
have typically prevailed in the last 30 years. From 1969 until 1995,
the circumstances of American government have most often fallen into
category (D). Here, Congress's leverage over the President is at its
low point. Neither his legacy nor his interest in supporting his party
will lead him to cede power to Congress. Each, in fact, will lead the
President to be aggressive in expanding his institutional prerogatives
and to act unilaterally. This thesis applied most forcefully during the
Reagan and Bush Administration, each of which vigorously asserted the
institutional powers of the presidency.
The thesis is not nearly so powerful under current circumstances.
1995 marked a historic paradigm shift. Not since the administration of
President Truman had a Democratic President faced a Republican
Congress. Even then, Truman's focus and legacy can be understood as
having emphasized foreign affairs and national security (the Korean
War, the Marshall Plan, and Soviet containment). The currently
prevailing circumstance--of a President whose legacy rests mainly on an
affirmative domestic agenda facing an opposition Congress--has no
obvious modern analogy.
Viewing the circumstances in the abstract, there is reason to
believe that Congress's leverage over the President will be at its
maximum. First, the President needs congressional cooperation to
achieve any significant component of an affirmative domestic agenda.
This element alone will include a President to yield significantly on
institutional prerogatives. For example, even when President Clinton
did not face an opposition Congress, he made significant concessions.
In order to secure the support of certain members of Congress for his
health care reform measure, President Clinton signed legislation making
the Social Security Administration an independent agency. Thus, he
relinquished authority over this significant executive agency leaving
it subject exclusively to congressional control through oversight and
appropriations.
Second, an opposition Congress does not have political incentive to
assist the President. Moreover, insofar as the Congress's domestic
agenda is not affirmative, it can stalemate the President by declining
to fund government operations at levels in excess of the preceding
year. Indeed, there is precedent for Congress funding the federal
government for an entire fiscal year through a continuing resolution.
In light of these factors, it is not surprising that President Clinton
has allowed substantial control over his constitutional appointment
power to flow to the opposition in the Senate. Notwithstanding these
factors in its favor, Congress can overplay its hand. The government
shutdown was an example of Congress overestimating the extent of its
advantages, which is not to deny the existence of a relative advantage.
Question 2. Scholars Moe and Howell argue in their article for the
Journal of Law, Economics and Organization that it is wrong to say that
the Congress makes the law and the President executes them--as if to
imply that the President is an agent of Congress. Instead, they argue
that the President is ``an independent authority under the
Constitution, and thus has an independent legal basis for taking
actions that may not be simple reflections of congressional will.'' Can
you discuss your view of the ``gray area'' that exists between the
realms of lawmaking and law-executing?
Answer. At the general level at which you pose the question, I do
not think I can improve upon Justice Jackson's famous albeit enigmatic
pronouncement in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579
(1952).
The actual arto fo governing under our Constitution does not and
cannot conform to judicial definitions of the power of any of its
branches based on isolated clauses or even single Articles torn from
context. While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the
dispersed powers into a workable government. . . .
1. When the President acts pursuant to an express or implied
authorization from Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress
can delegate. . . .
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 express
or implied will of Congress, his power is at its lowest ebb, for the he
can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter . . .
Id. at 635-37. As this statement implies, more specific
pronouncements depend upon the facts of a given application of federal
law.
The Moe and Howell article, in the passage the question cites, also
contends that the Congress is required to rely upon the President to
act as its executive officer and has no ability, outside of
impeachment, to remove him. In fact, Congress has other options. It can
vest many functions in independent agencies. Congress can also assign
executive or administrative authority to the states, private parties,
or international organizations. In fact, it frequently does so.
Examples include, welfare reform, the qui tam provisions of the False
Claims Act, and the World Trade Organization.
The determination of whether to employ one of these alternatives to
the President should be made on a case-by-case basis. Some authorities
and functions are best insulated from the President's supervision, such
as control over federal monetary policy, while others are best left
subject to accountability through the President, such as the functions
of the Federal Bureau of Investigation and the Department of Justice
generally.
Question 3. Some scholars argue that the fact of presidents acting
unilaterally to ``make law'' has been reality throughout the history of
our country, but that the power of presidents in this regard has grown
in recent history and has become more significant. What factors do you
believe account for this trend? Do you see the trend as a positive or
negative development from the perspective of the institutional
prerogatives of the Congress, or just a neutral fact a modern life?
Answer. Phrasing the inquiry this way begs the question,
significant for what purpose? In many respects the President's
lawmaking power seems less significant than it once did, at least
outside the context of foreign affairs. No modern President has issued
an executive order of the moment of Abraham Lincoln's Emancipation
Proclamation, or of Theodore Roosevelt's establishment of the system of
national parks, or of Andrew Jackson's effectively repealing the Bank
of the United States by withdrawing all federal deposits.
Certainly the number of occasions of presidential lawmaking has
increased, even multiplied. But this increase directly corresponds to
the increase in congressional lawmaking. As I explained in my
statement, an increase in presidential discretion is inevitable and
even desirable whenever Congress enacts legislation. Viewed relative to
the power of Congress, the increase in the President's lawmaking power
may not be significant at all. Indeed, this is the perspective that is
relevant for separation of powers purposes. The Constitution looks to a
balance of power between the branches. The increase in the President's
lawmaking power derives from Congress's decision to expand its
legislative reach. Insofar as this is the case, the power of each
institution relative to the other remains roughly in balance. From the
standpoint of the Constitution, then, this is a positive development.
Foreign affairs may present a different picture. As the world
becomes more integrated, the President's power to respond may increase
without Congress exercising a corresponding power. Such a development
would be harmful from the standpoint of the interbranch balance of
power. But such a development is not inevitable. Congress possesses the
power to regulate foreign commerce and should use this power to set the
policies that govern how the President responds to changes in the
global economy. The President should be given discretion to respond to
crises and developments in this sphere, but that does not preclude
Congress from setting forth in statute the mechanisms that the
President may use and the conditions under which he may use them. In
this way, Congress can establish the policies that govern the nation's
participation in the global economy, which role the Constitution
plainly assigns to Congress.
Question 5. What role should the public play in this tension
between the President and the Congress? Is the system set up well
enough to ensure that the people have enough information about
executive orders and their impact to make their preferences known? What
is the obligation, in your view, of the two branches with respect to
transparency of executive orders and their impact?
Answer. It is unrealistic to expect the public to play an important
role in policing the balance of power between Congress and the
President. If the public supports the substance of a given executive
order or, to turn the tables, an oversight hearing, it is difficult to
imagine the public objecting on the abstract grounds of separation of
powers. In this respect, separation of powers is similar to federalism.
Support for the abstract principle tends to evaporate when it impedes
realization of desired concrete policy objectives.
The Constitution looks to each branch to act as the guardian of its
own constitutional domain. In doing so, however, each branch may
usefully appeal to the public. If a regulatory regime is not
sufficiently popular to secure its enactment as ordinary legislation,
there will be a ready reservoir of opposition for Congress to draw upon
should the President attempt to promulgate the regime through an
executive order. In this connection, interest groups that oppose the
order can be especially effective. For example, the opposition of the
national Governors' Association was a significant factor in the
President's decision to rescind his initial executive order on
federalism.
Transparency is an important value in government generally. It
allows the public to exercise its democratic powers and
responsibilities effectively. Yet, transparency may not always be
possible. For instance, it is often crucial that executive orders, and
the deliberations leading to their promulgation, dealing with national
security remain secret.
Question 6. What is your view of the practice of Congress passing
legislation after the fact to sanction an executive order that has
already been implemented? Do you believe this enhances or erodes the
legislative prerogatives of Congress?
Answer. In general, passing legislation that formally repeals an
executive order, or that achieves the same effect by denying
appropriations to enforce the order, will enhance the institutional
prerogatives of Congress. Insofar as Congress increasingly asserts its
institutional prerogatives, the President can be expect to assert his
institutional prerogatives correspondingly. Whether Congress best
maximizes its power and influence over federal policy through the
inevitably confrontational course of asserting its prerogatives or
through cooperation and accommodation with the President will depend
upon an intricate and context-bound political calculation.
Question 7. In your testimony you make the point that you believe
Congress is ``amply equipped'' to protect its turf. Would you also
conclude that Congress makes proper use of the tools it has available
to guard its prerogatives?
Answer. There is a remarkable symmetry between the executive and
legislative branches. This is anticipated and encouraged in the
Constitution's design. The Constitution expects that each branch will
attempt to encroach upon the other. The Constitution arms each branch
to protect itself against the encroachments of the others and looks to
each branch's instinct for self-preservation as the primary guardian of
the separation of powers.
On the whole, both Congress and the President make proper use of
their respective powers of self-protection. Your question focuses on
Congress, so that is where I will focus my answer. At least with
respect to matters of domestic policy, Congress seems to protect its
turf effectively from unilateral executive branch encroachment. It is
true that the historic record reveals some dramatic examples of
unilateral executive action: Jackson withdrawing the assets of the Bank
of the United States, Lincoln's Emancipation Proclamation, Theodore
Roosevelt establishing the system of national parks, and Lyndon Johnson
adopting the first affirmative action program. These examples are
dramatic, in part, for how aberrational they are. One scans the Code of
Federal Regulations in vain to find a similar example from a recent
administration.
The Clinton Administration has yielded at most two possible
significant executive orders relating to domestic policy: the executive
order banning federal contractors from permanently replacing lawfully
striking employees, and its initial order on federalism. A careful
reading of President Clinton's executive order on federalism does not
disclose how it would have worked any meaningful change from its
predecessors, much less an objectionable change. The striker
replacement order could have had appreciable and possibly significant
results, but this was not its inevitable course. In any event, neither
order was ever put into actual operation.
Each branch makes occasional misuse of its constitutional powers
and in doing so encroaches upon the other. This has been a bipartisan
exercise. Under both parties, congressional committees have, on
occasion, exercised their oversight and investigative powers to coerce
executive without even a fig leaf of a legitimate congressional
purpose. Presidents of both parties have also made extreme claims to
unilateral war powers. The exercise of such powers is especially
pernicious because Congress is put in the position of either
acquiescing in the President's decision or denying support for U.S.
troops engaged in military combat and undermining the position of the
United States in the international community. The most proper course
for Congress is to act before the President deploys troops or, failing
that, to respond after the fact with appropriate legislation.
Question 8. You state that it is your view that Congress should
``repeal or amend executive branch lawmaking whenever it disapproves of
the executive branch's rules.'' This statement suggests that the result
you advocate is one that is easy to achieve. It takes a \2/3\ majority
of the Congress to accomplish such action, making it likely that in
reality it will not occur that often. Please comment on that point.
Answer. If Congress were to respond to an executive order in the
most straightforward manner--by drafting a bill to repeal the order and
passing the repeal--the President would surely veto the repeal.
Consequently, such a straightforward repeal would become effective only
if Congress were to override the veto. By constitutional design,
congressional override is extraordinarily difficult to accomplish.
Thus, limiting our consideration to straightforward repeal, the
question implies a valid rejoinder to my testimony--Congress cannot
effectively respond to an executive order by enacting a straightforward
repeal.
Congress, however, has a number of effective arrows in its quiver.
Rather than a straightforward repeal, it can attach a rider to
appropriations legislation stating that no funds may be spent to
enforce the executive order. No executive order can be enforced without
the expenditure of at least some funds. If an executive branch
functionary spends even a minute considering the order, some funds--in
the form of the functionary's salary prorated for one minute--will have
been expended. If done in contravention of an appropriations rider,
this would violate the Antideficiency Act and, if done willfully, would
be a crime. The President might veto an entire appropriations bill in
order to preserve an executive order. The order would have to be
popular enough to allow him to avoid blame for shutting down the
agencies of the government covered by the appropriations bill. If the
rider were attached to, say, the Defense Appropriations Act, it would
be very difficult to justify a veto on the basis of preserving the
typical executive order.
Congress can also achieve the repeal of an executive order through
the time-honored method of legislative compromise. The President may be
forced to bend to Congress's will and repeal an executive order as a
condition for the enactment of some other piece of legislation that the
President supports. This is precisely what occurred in the recent
controversy over funding for international family planning
organizations that promote abortion rights. President Ronald Reagan has
issued an executive order prohibiting grants from being made to such
organizations. President Clinton rescinded the Reagan order. Congress
required President Clinton to agree to, in essence, rescind his
rescission of the Reagan order as a condition for receiving the United
Nations funding he had fervently sought. The effectiveness of this
approach will depend on the specific political setting that prevails at
the time of the proposed compromise. Where a President views his legacy
mainly in terms of achieving an affirmative domestic agenda, as has
President Clinton, Congress will be in a strong position to force the
President to rescind or amend executive orders that Congress finds
problematic.
Question 9. You make the very valid suggestion that Congress should
be more vigilant in exercising oversight on existing statutes and
ensuring that it understands the manner in which legislation interacts.
Given the balkanized jurisdiction that exists among the committees of
Congress, do you believe that Congress is currently well-equipped to
meet that challenge?
Answer. Balkanized committee jurisdiction can represent an obstacle
to effective oversight. There are committees with jurisdiction broad
enough to detect collisions between legislative regimes. The Government
Reform and Oversight Committee, for example, could perform such a
function. The most significant obstacle to its doing so stems from
priorities; the committee has chosen to focus on investigations rather
than on oversight.
Moreover, Congress need not take the initiative in detecting
problems that arise from overlapping statutes. As most legislation
involves some enforcement by a federal agency, this sort of information
should already be available to the various agencies of the federal
government. A congressional committee or subcommittee could require all
federal agencies to report problems arising from statutory
interactions. Inasmuch as such interactions lead to executive branch
lawmaking, this subcommittee could properly assert jurisdiction to
require such reports.
______
Submitted Questions and Answers by Robert Bedell
Question. ``In your testimony you state that many executive orders
often have more apparent than actual effect. Could you expand on this
point and perhaps provide us with some real-life examples of what you
mean?''
Answer. Because most executive orders are dependent upon the
President for enforcement, if the President or his senior staff does
not follow-up to make sure that they are complied with, and there is no
adverse consequence for failing to abide by its terms, compliance with
the executive order becomes a matter of discretion with the President's
appointees to whom it is directed. If they do not elect to follow the
directions in the order, the order will not have the effect in practice
that it may appear to from its language.
Failures to enforce executive orders may occur for many reasons
some of which are fully understandable. But my point was that in
practice an executive order may have a much different impact than most
had hoped for, or feared. Sometimes, the issuance of an executive order
is not the beginning of a new direction but simply begins the process
by which interest groups seek to avoid its consequences.
Furthermore, knowing that there are usually no judicial remedies
available for the failure to carry out executive orders and that
compliance usually depends on an Administration's subsequent
enforcement, I'm sure that at least some features of some executive
orders have been included knowing that they will not be enforceable.
Agencies often take these factors into account in determining whether,
or how strongly, to object to proposed orders during the OMB pre-
issuance clearance process.
As far as examples of some executive orders that have had a more
apparent than real effect, in many instances that list will be
influenced by what one thinks of the apparent purpose of the executive
order. For example, if I support a strong oversight of agency
rulemaking by the President then I would include in the examples
executive orders that deal with such oversight but that dilute the
strength of that oversight. If I do not favor a strong oversight
review, I am not likely to include it on the list of orders that are
more apparent than real.
Nonetheless, I think that there are some executive orders that have
not lived up to their promise. To avoid the appearance of criticizing
others, I will briefly describe--experiences that I was involved with
or responsible for. The first example is Executive Order No. 12498
signed by President Reagan on January 4, 1985. The purposes of the
Order included the following: ``to create on an annual basis the
Administration's Regulatory Program, establish Administration
regulatory priorities, increase the accountability of agency heads for
the regulatory actions of their agencies, provide for Presidential
oversight of the regulatory process, reduce the burdens of existing and
future regulations, minimize duplication and conflict of regulations,
and enhance public and Congressional understanding of the
Administration's regulatory objectives.'' In retrospect, while these
all were hoped for objectives, their breadth quickly attracted
opposition from many whose interests were affected by agency
rulemaking.
The essence of the Regulatory Program process established by the
Order required agency heads to identify on an annual basis its
regulatory priorities for the upcoming year and a list of its most
significant regulatory actions and send these to the Director of OMB.
The Director would then coordinated these proposals within the
Executive Branch to ensure that they were consistent with one another
and with Administration policy. The results would then be published
each year with a listing of significant actions to be taken during the
year.
One of the principal purposes of this process was to avoid the
problem of agency rulemaking that was not consistent with
Administration policy from being discovered too late in the process to
do anything about it, something that too often occurred. With various
exceptions, the consequences of failing to abide by this process was
that rules that were significant but that had not been identified by
the agency and reviewed by the Administration would be delayed until
the next round unless to do so was not allowed under law.
The implementation of this process was time-consuming, often
contentious with many from Congress and the interest groups concerned
about what it would do to the regulatory world they were more
comfortable with. A Regulatory Program was issued as required by the
Order, but the energy and resolve from the Administration to continue
the process waned and the process of developing subsequent Programs
became increasingly non-controversial and of lesser value. Eventually,
the Clinton Administration essentially rescinded it.
In my view, the results fell far short of the objectives of the
Order. While there may have been many reasons for this including overly
ambitious goals, I think that the primary reason was that the process
required by the Order took too much time and energy away from the
limited time that senior Administration officials had to deal with the
many issues that they faced. Annual ``trench warfare'' with the
agencies could not pass a cost-benefit test. Without that energy, the
process turned into one that could produce a product only without
contest.
A second example is Executive Order No. 12615 signed by President
Reagan in 1988. The Order sought to increase the amount of
``contracting out'' studies by agencies of jobs that could be done by
the private sector. During the previous years of the Reagan
Administration, over 70,000 jobs had been studied to see if they could
be done by the private sector at less cost. As a result of these
studies, over $700 million was saved without a loss in services. The
Administration was eager to increase the savings that could be achieved
by conducting studies of whether to contract out the functions or not.
The Order required agencies to identify the jobs that could be carried
out by the private sector and to conduct studies on them. The likely
savings would then be shared with the agencies in the process of
formulating the agency's budget.
The opposition from the Federal workforce and interest groups and
Congress proved to be more costly than the benefits of the proven
savings, and the process became basically inconsequential.
Today, the Federal agencies are still wrestling with the first step
in this process, one that Congress wrought in the Federal Activities
Inventory Reform (FAIR) Act. BNA describes the situation, in part, as
follows: ``Business groups strongly support the FAIR requirement for
agencies to annually produce lists of activities that are potential
candidates for contracting out to the private sector, they contend that
the government should not deprive the private sector of the opportunity
to do commercial-type work. Government employee unions, on the other
hand, have taken a dim view of the law, since federal employees stand
to lose their jobs if an activity is contracted out. Among federal
agencies, only the Defense Department has made any real effort to
identify and contract out commercial activities. DOD says it needs to
do more contracting out in order to save billions of dollars, but
efforts to contract out base support services have resulted in heated
litigation.'' (Daily Report for Executives, 9/30/99, page A-35.)
These are only two examples. There are certainly more, but which
ones are included in a list will depend somewhat on what one thinks of
the purposes of the Orders in the first place.
1. I believe that the Constitution vests each of the three Branches
of the Federal Government with powers that are shared among them, and
powers that are not shared (or at least not shared equally) among them.
The proposition that ``Congress has not done an effective job of
protecting'' its interests is too sweeping a statement for me to be
able to agree with it. I am certain that in some specific areas I would
agree that the present or a past Congress could have done a more
effective job of protecting its interests than it has or did, but not
in all areas, indeed not in many, would I agree that it could have done
a more effective job in protecting its interests. This is particularly
so since Congress was not designed to be as single-minded as was the
Chief Executive and hence action by it is more difficult.
More emphasis on oversight even at the expense of passing
additional legislation could enable a better understanding of, and
control over, Executive actions, especially those pertaining to
Executive Orders.
2. I agree that there is substantial ``gray area'', i.e.,
uncertainty, among the constitutional authorities of the Branches and
that it is too simplistic to say that Congress merely ``makes the law''
and is not involved in its ``execution'' and that the President
``executes the law'' and is not involved with the ``making'' of it.
Both the President and Congress must be vigilant about its own
authorities and those it shares in these ``gray areas'', and must be
willing to engage in the joint resolution of positions there.
Furthermore, there are ``gray areas'' between the Branches that are
created by the laws enacted by Congress in addition to those ``gray
areas'' created by the Constitution. Virtually every enactment of
Congress requires interpretation by Presidents over time and by the
officials of the Executive Branch that Presidents supervise. While some
of this interpretation is unavoidable and hopefully non-controversial,
too often the Executive is left to resolve what Congress could not or
would not in obtaining the consensus necessary to enact legislation.
The dynamics of legislative ``gray areas'' are similar to the
constitutional ones, requiring vigilance by the Branches on one hand
and an ability to resolve differences on the order.
3. I do not agree that ``the power of presidents to `make law' has
grown in recent history and has become more significant.'' While the
realm of legislative ``gray area'' has increased, and the authority to
Congress to delegate authority to the Executive Branch is a relatively
new phenomenon, the breadth of congressional activity has also
circumscribed presidential authority. I believe that presidential
``power'' has remained fairly constant over time, and that Congress has
been more aggressive since the 1970s in exerting its constitutional
authorities and in obliging the President and agency heads to take
congressional priorities into account in the implementation of laws.
4. ``Who should be making policy for this nation?'' Within the
Federal Government, in my view, both the Congress and the President
should be making policy for this nation, and I believe that is what the
Constitution provides. Each has powers, authorities and limitations,
many of them shared with the other, and together policies are
established. With regard to the role of Executive Orders, they are but
one way, albeit an important way, for the President to make or advance
policy. But only when the President's authority is unilaterally
assigned to him is Congress precluded from re-directing that policy.
5. The public does play a role with regard to Executive Orders.
Members of the public often urge that Executive Orders be issued, or
comment on those they know are being developed or comment on them once
issued. The public does not hesitate to bring its concerns with
Executive Orders to the attention of Congress and seek its
intervention. They also make judgments about Presidents based in part
on Executive Order activities.
The requirements with regard to the ``transparency'' of Executive
Orders generally pertain to the period following the issuance of the
Order. There are usually no requirements for a public notice and
comment period as there is for rulemaking by Federal Departments and
Agencies covered by the Administrative Procedures Act, as amended. But
there are requirements pertaining to the publication and codification
of presidential orders that meet the definition of Executive Orders in
the Federal Records Act.
Because of the wide differences in scope and authority for
Executive Orders, I do not believe that the benefits of a public notice
and comment requirement for all Executive Orders would be worth the
costs, measured in terms of the loss of efficiency, time and
decisiveness of presidential action. As you know, the Administrative
Procedures Act allows for judicial review of agency compliance with its
public notice and comment requirements, both with regard to procedural
matters and to ensure that there is a rational basis for the actions
taken. A similar requirement for the issuance of Executive Orders would
likely embroil Presidents in lengthy and stultifying litigation and
raise significant constitutional concerns as well. In adopting the APA
in 1946, Congress did not extend its procedural obligations to the
president due in part to such constitutional concerns.
Furthermore, Executive Orders are but one of many avenues by which
Presidents make policy decisions and issue directions to agency heads.
The Executive Order process already is the most public and transparent
of these decision-making processes. If Congress were to impose formal
procedural requirements on this channel, the Executive Branch could
respond by shifting decision making to a channel, e.g., phone calls
from the Chief of Staff to agency heads, that are far less visible to
the public and Congress. Thus, more formal procedures for Executive
Orders may in practice prove to be counter-productive.
The obligations of the two branches with respect to transparency of
Executive Orders should be determined in my view essentially as it is
today: by determining whether it would be better to do so than not to.
If disclosing the drafts of orders before they are issued would be more
undesirable than the effects of Congress' anger at not being informed,
then disclosure will likely not take place, otherwise, there is likely
to be some congressional involvement. Again, given the wide scope and
differing authorities for Executive Orders, I think this is about the
best formula to apply to the transparency issue.
6. I do not believe that if Congress passes legislation after the
issuance of an Executive Order to sanction it, that doing so would be
likely to either enhance or erode the legislative prerogatives of the
Congress. I think that Congress' legislative prerogatives are likely to
remain what they have always been regardless of what the President
would do in an Executive Order. However, I do believe that on important
Executive Orders that it would be very desirable for Congress to review
them and to enact them if it agrees with them or to modify or rescind
them if that is what it believes should be done. This is what has
happened in the past in an ad hoc or non-systematic basis. It would be
desirable because Executive Orders usually can be changed at any time
or rescinded without notice. They also may not be adequately or
uniformly carried out by those to whom requirements are directed.
Presidents usually cannot rescind legislation so it is likely to be
more permanent. Furthermore, because it would be enacted by Congress it
is more likely to be taken seriously. Legislation also usually includes
some form of enforcement action.
______
Submitted Questions and Answers by Tom Sargentich
Question 1. Could you briefly elaborate on the manner in which
modern communications technology--specifically the Internet--has
extended the public's access to Executive orders?
Answer. The Office of the Federal Register (OFR), in partnership
with the Government Printing Office (GPO), has extended public access
to Executive orders in several different ways. Since 1994, we have
published the full text of all Executive orders in the daily on-line
Federal Register on the GPO Access service (http://www.access.gpo.gov/
nara). Depending on the time of day that we receive them from the White
House, Executive orders appear in the on-line Federal Register at 6
a.m. (ET) on the next business day, or at 6 a.m. on the following
business day. In the past, people who had subscriptions to the printed
edition of the Federal Register could expect to wait a week or more for
the daily issue to arrive by second class mail.
Before the on-line era began, most people depended on clipping
services, traveled to a library, or waited for a copy to filter down to
them through a distribution chain to gain access to Executive orders.
Most general circulation newspapers have not carried the full text of
Executive orders, not even those with significant impact. A handful of
Washington news services and trade associations generally come to the
Federal Register to obtain copies of the documents from our public
inspection desk to include in their reports. But by and large, the
general public did not have ready access to Executive orders prior to
the advent of our on-line services on GPO Access. Now, large and small
businesses, State and local governments, and any interested person can
have free, on-demand access to Executive orders through a desktop
computer.
Expanding access to information also involves making Internet
services easy to use, especially for non-experts. In response to
comments from customers and our own design criteria, we developed a
separate ``field'' for Presidential documents which makes it much
easier for users to find Executive orders. In addition, beginning in
January 1998 we added hypertext tables of contents to the daily on-line
Federal Register, which allows users to simply browse the contents for
``Presidential Documents,'' click on the link and retrieve a listed
Executive order. The OFR also worked with GPO to improve the means of
navigating the 200 volume on-line Code of Federal Regulations (CFR),
which includes a compilation of Executive orders for each year. We now
offer CFR tables of contents with hypertext links, which identify
Executive orders by their number designation and descriptive title.
Users can browse the table of contents of title 3 for the 1997 through
1999 compilations, click on a link and retrieve any Executive order
published during the prior year.
OFR and GPO have recently developed an on-line edition of the
Weekly Compilation of Presidential Documents, an official serial record
of Presidential statements, memoranda, messages to Congress and federal
agencies, and other documents released by the White House. This
publication also contains the text of Executive orders originally
published in the Federal Register. Some of the documents published in
the Weekly Compilation are related to the implementation of Executive
orders. Historically, there have been relatively few subscribers to the
paper edition of the Weekly Compilation, but a growing number of
customers are discovering the on-line edition.
Comparisons between usage of paper and on-line publications are
imprecise, but I believe that we are reaching far more citizens via the
Internet than we ever have in the past through our paper and microfiche
editions. We do not have a specific breakdown on the number of
Executive orders retrieved from the on-line Federal Register and CFR,
but overall, the public has been using on-line Federal Register
publications in large and increasing numbers. When free online service
began, we had about 17,000 annual paid subscriptions to the Federal
Register, and annual sales of about 1.3 million CFR volumes. During
fiscal year 1999, the public retrieved 48 million individual documents
from the on-line Federal Register and 88 million from the on-line CFR.
Our customers retrieved 138,000 documents from the on-line Weekly
Compilation of Presidential Documents during fiscal year 1999 as
compared with 402 paid subscriptions to the paper edition.
In the Internet environment, the reliability of information
providers can be problematic. Executive orders may be posted on-line by
any number of organizations, but the material may not be current and
accurate. It is particularly important that Executive orders be
available from a reliable source to remove any doubt as to their
content and effectiveness. The OFR adheres to the highest standards of
accuracy and integrity for our on-line publications to fulfill our
mandate as the official source for Presidential documents and
administrative rules and notices. When we developed our Internet
services with GPO, we specified that the on-line editions must be just
as true to the original documents as the printed editions. OFR and GPO
generate the on-line Federal Register, CFR and the Weekly Compilation
from the same databases used to create the printed editions to ensure
that we meet those standards. In our regulations, we assure the public
that the on-line edition of the Federal Register has the same official
legal status as the printed edition. This month, the Administrative
Committee of the Federal Register passed a resolution to grant official
status to the on-line editions of the CFR and Weekly Compilation of
Presidential Documents. To guarantee future access to Executive orders
and other Federal Register documents, GPO is committed to maintaining
the on-line Federal Register, CFR, and Weekly Compilation of
Presidential Documents on GPO Access as part of the permanent
collection known as the ``Core Documents of U.S. Democracy'' series.
The task of sorting through the large volume of material available
on web sites can also limit access to information. We use our National
Archives and Records Administration (NARA) web site (http://
www.nara.gov/fedreg/index.html) as a gateway to guide customers to the
text of Executive orders available in various publications and to
related ancillary information services. The ancillary services on the
NARA web site include a historical Codification of Proclamations and
Executive Orders (1945-1989) and our on-line index of Executive orders.
The Codification directs users to the text of Executive orders by
subject matter, series number and Presidential administration. The on-
line index of Executive orders is possibly the only authoritative
source of information on the current amendment status Executive orders.
It has information on dates of issuance, amendments, revocations and
dates of publication in the Federal Register. The staff in our
Presidential documents unit converted the index from a card catalog
that we used to respond to reference requests received by letter and
telephone. Now the index is available on-demand to any member of the
public, in a hypertext format for easy navigation among the various
entries. During the first nine months of calendar year 1999, our
customers retrieved a total of 557,657 individual items from these
ancillary services.
Question 2. The NARA web site offers the public a wealth of primary
source information about Presidential documents, specifically Executive
orders. Is there also an objective source of analytical information
available to the public concerning the impact that such orders have on
the public?
Answer. I do not know of an objective source of analytical
information relating to the impact that Executive orders have on the
public. Analytical reporting would go beyond the scope of the OFR's
statutory mission. In the past, we have been provided with reports
prepared by the Congressional Research Service, which contained some
analytical content. But I don't know whether CRS has done recent work
on this subject, or whether the information would be made available to
the public.
You asked me several [other] questions, to which I would [also]
like to respond.
1. First, you asked me to elaborate on what I meant by the word
``restraint'' when I noted that some degree of restraint by both
branches of government is needed. What I meant was that in order for a
separation of powers system to work, especially in a time of divided
government, both the President and Congress have to show the restraint
of not taking their position to the most extreme lengths. Otherwise,
there is a danger of governmental stalemate. The need for restraint
runs to both ends of Pennsylvania Avenue.
2. Second, you asked me for my thoughts on proposed legislation
pertaining to the issue of Executive orders. In general, I think it is
better to deal with executive orders one-by-one, rather than to lay
down in legislation general norms to prevent executive orders from
being issued. Without discussing in detail the proposed legislation, I
am concerned that it would not be effective, in part because the
President does have constitutional power to act in many cases and, as
we see in history, Presidents may well do so. It's also not clear to me
that preventing a President from taking action is always a good thing,
at least when we don't know what the action is. Also, legislation such
as this can turn around and bite the hand that feeds it, especially if
a Republican President were elected in the upcoming presidential
contest.
3. Third, you asked about a passage from a recent article by Terry
Moe and William Howell in which, among other things, they assert that
``Congress has not done an effective job of protecting its interest in
the context of unilateral presidential action.'' This may be an
overstatement. As I said in my oral remarks, there are forces at work
that make it difficult for Congress to take definitive action. It is
easier for one person, namely, the President, to act than it is for
both houses of Congress to take action. With the exception of the War
Powers issue, it's not clear to me that Congress has dropped the ball.
I would say that the passage of the Item Veto Statute in 1996 was a
huge institutional mistake on the part of Congress, although I
understand the political factors that went into the decision. In any
event, that statute has been struck down as unconstitutional, as I
believe it should have been, so it no longer stands as a monument to
the expansion of executive power.
4. Fourth, you discussed the ``gray'' area that exists between the
realm of lawmaking and law execution. There is no doubt that a gray
area exists. As stated in my prepared statement, the President has vast
lawmaking power in any colloquial sense. It simply is not true that all
law is made by Congress. The main check that we have is the requirement
that executive lawmaking be authorized by the Constitution or a
statute. Also, Congress can take steps to reverse or limit the effects
of executive lawmaking, as discussed in my prepared statement and oral
remarks. I don't think it is reasonable to try to identify, as a
definitional matter, a sphere of lawmaking that excludes the President
and the executive branch agencies. Execution of the law involves the
interpretation and application of statutes, and interpretation and
application in any ordinary sense constitutes the development of law by
executive officials.
5. Fifth, if there is a trend toward greater presidential
lawmaking, it is a function of broad institutional change during the
twentieth century. Many factors have contributed to the growth of
executive power. The development of a multitude of executive agencies
has been an important factor. These agencies were created because
Congress determined that there was a need to have a separate
bureaucracy address major social problems. For instance, the NLRB was
created to address serious and ongoing problems in the relations
between labor and management. As long as major social problems exist
and something is sought to be done about them that involves
governmental action, the proliferation of programs seems a likely
consequence.
In addition, the growth of presidential power is a function of the
increasing importance of the United States in world affairs since World
War I. It would be hard to say that the position of the United States
has declined since the end of the Cold War. As the only major
superpower, the United States plays a unique role on the world's stage,
and the President, as the nation's spokesperson in foreign affairs,
necessarily achieves heightened power.
I don't think that any of this should be taken to mean that
Congress is unimportant. After all, Congress is the national
legislature; it has the power of the purse; and it has the major role
in structuring and overseeing the power of executive agencies. I am
concerned that Congress may have let the War Power given to it in the
Constitution slip through its fingers, but in domestic life it is not
fair to speak generally about a tremendous decline in the institutional
position of Congress.
What has changed is the relative decline of a disciplined party
system and seniority system that used to discipline members of Congress
in reaching collective decisions. Many commentators who have studied
the institution attribute an important role to internal changes as a
cause of greater difficulties in developing coalitions of members to
support a common result.
6. Sixth, I think that the basic policy for the nation should be
set by Congress. That is why Congress is designated in Article I of the
U.S. Constitution as having the legislative power therein granted.
However, as noted above and in my written statement, this does not mean
that policy pursuant to statute or constitutional grants of power is
not also initiated by the executive.
7. Seventh, you ask whether the public has enough information about
executive orders to make a judgment about their impact on them. I don't
believe the public ever has enough information about government.
Partly, this is a function of the fact that our media covers the
government in very selective ways. Most of what the government does, as
a matter of fact, the public may know little or nothing about. Studies
about particular issues often show a dramatic lack of information on
the part of the public. Accordingly, I strongly support efforts to
promote public education in this and other areas. Both branches of
government have an obligation to publicize presidential directives.
This includes an obligation on the part of the executive branch to
publicize executive orders.
8. Eighth, Congress does from time to time pass legislation after
the fact to ratify some action that the President has taken by means of
executive order. This practice goes back many years. It was, for
example, a prominent development during the Civil War, when Congress
came back into session at the beginning of the War and ratified
unilateral actions taken by President Lincoln.
If you ask whether Congress should ratify presidential action taken
unilaterally, I suppose the answer has to be, it depends. There are
times when Presidents have acted unilaterally in response to emergency
situations, and may have created a good deal of legal doubt about what
was done. In those circumstances, it can be extremely useful for
Congress to ratify what the President does by subsequent authorization.
At the very least, this shows that when Congress looked at the matter,
it agreed with the President.
The hope for subsequent authorization is not an excuse for a
President to act in a reckless way. After all, Congress may not
subsequently authorize some action. Presidents need, when they act
unilaterally, to be sure that they have the requisite statutory and
constitutional power before they act. Subsequent authorization does not
cure a lack of initial authority.
A related point involves a situation, such as in Youngstown, when a
President takes action by executive order and then says that he would
obey any contrary direction by the Congress if it should make one. As
you know, Congress did not subsequently disapprove of the seizure of
the steel mills. That failure to disapprove did not in any way
authorize the seizure. A failure by Congress to act can reflect a
number of conditions, such as a lack of ability to achieve a majority
vote, a preoccupation with other matters, a lack of leadership, or
perhaps in some cases a lack of interest. The point is that Presidents
cannot claim that the failure of Congress to disapprove a unilateral
action after the fact provides authority to act at the time a decision
is made.
______
Submitted Questions and Answers By William J. Olson
Question 1. At what point, in your view, did the trend begin to
turn toward more aggressive use of the executive order by Presidents?
What triggered this new direction?
Response. We recently completed a study on behalf of the Cato
Institute entitled ``Executive Orders and National Emergencies: How
Presidents Have Come to `Run the Country' by Usurping Legislative
Power.'' This study is available at our internet site, www.wjopc.com.
In this study, we trace the use of executive orders beginning with
President Washington. In Table 1 of the study, we set out the number of
executive orders issued by each president since Abraham Lincoln. It can
be readily concluded that the explosion of executive orders is a 20th
Century phenomenon.
No president from Lincoln to William McKinley issued more than 71
identified executive orders, and all 10 presidents during this span
issued a combined total of only 158 executive orders. This all ended
abruptly when Theodore Roosevelt ascended to the presidency upon the
assassination of McKinley on September 14, 1901. During the seven and
one-half years of Theodore Roosevelt's presidency, with neither a world
war nor an economic catastrophe to supposedly force his hand, he issued
1006 executive orders--making him the third most prolific of all
presidents, behind only Franklin Roosevelt at 3,723, and Woodrow Wilson
at 1,791.
Theodore Roosevelt's autobiography revealed his revolutionary view
of presidential powers, which has come to be known as the ``stewardship
theory'' of executive power. His approach was unchecked by any regard
for the form of government established by the U.S. Constitution.
Theodore Roosevelt ignored the fact that in our federal scheme the
national government was intended to be a government of limited,
enumerated powers, and he ignored the fact that the president's role
was limited to execution of the laws that were written by Congress. In
his autobiography, Roosevelt expressly ``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.'' To the contrary, he stated that it was ``his duty to do anything
that the needs of the Nation demanded unless such action was forbidden
by the Constitution or by the laws.'' These are not the words of a man
who believes this is a nation of laws and not of men.
A president who observes his vow to preserve, protect, and defend
the U.S. Constitution must find express authority for his actions--not
just a personal preference combined with the absence of an express
prohibition. During the rest of the 20th Century, the Theodore
Roosevelt view of presidential authority has rarely been articulated in
such stark terms, except perhaps by Franklin Roosevelt, but has often
been the unspoken basis underlying the issuance of many executive
orders.
As recently as 1995, when President Clinton unsuccessfully tried to
defend the legality of his Executive Order 12954 prohibiting the hiring
of permanent striker replacements by federal contractors, the U.S.
Justice Department argued that ``there are no judicially enforceable
limitations on presidential actions, besides claims that run afoul of
the Constitution or which contravene direct statutory prohibitions'' as
long as the president states that he has acted pursuant to a federal
statute. Fortunately, the U.S. Court of Appeals for the D.C. Circuit,
in only the second judicial invalidation of an executive order ever,
rejected the position of the Clinton Administration.
Question 2. What role would you assign to the public in the process
of maintaining a proper balance between the branches when it comes to
executive orders? In your view, is the current process transparent
enough--and is the public engaged enough--to allow for that role to be
realized?
Response. The role of the public is to elect to the presidency only
persons of character, who are capable of exercising self-control, and
who view it as their supreme duty and responsibility to defend the U.S.
Constitution and exercise only those limited powers provided to them
under the U.S. Constitution. Further, the role of the public is to
elect to Congress only persons of character, who themselves live under
the limitations on their power set out in the U.S. Constitution, and
who, therefore, without hesitation or impediment of hypocrisy, will
make it their highest priority to meet power with power and stop in his
tracks any president who exceeds his enumerated powers.
Having elected such persons to office, the public must hold those
persons accountable to that trust that they have placed in them,
demonstrating the willingness to throw out of office persons who prove
unworthy of that trust. When presidents violate the Constitution, the
public should support efforts by the House to impeach and the Senate to
convict and remove from office, such unworthy presidents. Lastly, we
have a Biblical duty to support our leaders in prayer (I Timothy 2:1-
2).
I view the issue of making the executive order process more
transparent as a red herring--a diversion from that which is important.
For those executive orders which the president can constitutionally
issue--those which provide proper direction to his subordinates within
the executive branch of government--he should not have new additional,
principally cosmetic, burdens imposed on him of notice, comment, or the
like. With respect to those executive orders where the president has no
authority, he must be stopped directly, certainly and rapidly by a
Congress full of righteous indignation against a president who has
violated his role.
When my father read the testimony that I provided to the House
Rules Committee, he was concerned that I was too guarded and did not
provide a sufficiently clear and forthright message as to the severity
of the problem, and the need for action by Congress. To remedy that
well-founded criticism, I would say that based on the study we have
undertake, the United States is rapidly headed toward tyranny, defined
as our founding fathers defined that term--the union of the power to
write the laws in the same person as the power to execute the laws. As
Montesquieu stated: ``There can be no liberty where the legislative and
executive powers are united in the same person, or body of
magistrates.'' Congress has not been on the sidelines, but rather has
been a willing participant in this nation's march toward tyranny.
It is my earnest hope that a sufficient number of members of
Congress take it upon themselves, as their highest priority, to return
the government to its constitutional limitations. If Congress does not
respond to this threat to liberty, it is my hope that as the people of
the United States learn how badly the Constitution has been violated on
both ends of Pennsylvania Avenue, they will vent their fury at the
ballot box against all elected officials who have failed their sacred
trust.
______
Submitted Questions and Answers by Raymond A. Mosley
Question 1. Could you briefly elaborate on the manner in which
modern communications technology--specifically the Internet--has
extended the public's access to Executive orders.
Answer. The Office of the Federal Register (OFR), in partnership
with the Government Printing Office (GPO), has extended public access
to Executive orders in several different ways. Since 1994, we have
published the full text of all Executive orders in the daily on-line
Federal Register on the GPO Access service (http://www.access.gpo.gov/
nara). Depending on the time of day that we receive them from the white
House, Executive orders appear in the on-line Federal Register at 6
a.m. (ET) on the next business day, or at 6 a.m. on the following
business day. In the past, people who had subscriptions to the printed
edition of the Federal Register could expect to wait a week or more for
the daily issue to arrive by second class mail.
Before the on-line era began, most people depended on clipping
services, traveled to a library, or waited for a copy to filter down to
hem through a distribution chain to gain access to Executive orders.
Most general circulation newspapers have not carried the full text of
Executive orders, not even those with significant impact. A handful of
Washington news services and trade associations generally come to the
Federal Register to obtain copies of documents from our public
inspection desk to include in their reports. But by and large, and
general public did not have ready access to Executive orders prior to
the advent of our on-line service on GPO Access. Now, large and small
businesses, State and local governments, and any interested person can
have free, on-demand access to Executive orders through a desktop
computer.
Expanding access to information also involves making Internet
services easy to use, especially for non-experts. In response to
comments from customers and our own design criteria, we developed a
separate ``field'' for Presidential documents which makes it much
easier for users to find Executive orders. In addition, beginning in
January 1998 we added hypertext tables of contents to the daily on-line
Federal Register, which allows users to simply browse the contents for
``Presidential Documents,'' click on the link and retrieve a listed
Executive order. The OFR also worked with GPO to improve the means of
navigating the 200 volume on-line Code of Federal Regulations (CFR),
which includes a compilation of Executive orders for each year. We now
offer CFR tables of contents with hypertext links, which identify
Executive orders by their number designation and descriptive title.
Users can browse the table of contents of title 3 for the 1997 through
1999 compilations, click on a link and retrieve any Executive order
published during the prior year.
OFR and GPO have recently developed an on-line edition of the
Weekly Compilation of Presidential Documents, an official serial record
of Presidential statements, memoranda, messages to Congress and federal
agencies, and other documents released by the White House. This
publication also contains the text of Executive orders originally
published in the Federal Register. Some of the documents published in
the Weekly Compilation are related to the implementation of Executive
orders. Historically, there have been relatively few subscribers to the
paper edition of the Weekly Compilation, but a growing number of
customers are discovering the on-line edition.
Comparisons between usage of paper and on-line publications are
imprecise, but I believe that we are reaching far more citizens via the
Internet than we ever have in the past through our paper and microfiche
editions. We do not have a specific breakdown on the number of
Executive orders retrieved from the on-line Federal Register and CFR,
but overall, the public has been using on-line Federal Register
publications in large and increasing numbers. When free online service
began, we had about 17,000 annual paid subscriptions to the Federal
Register, and annual sales of about 1.3 million CFR volumes. During
fiscal year 1999, the public retrieved 48 million individual documents
from the on-line Federal Register and 88 million from the on-line CFR.
Our customers retrieved 138,000 documents from the on-line Weekly
Compilation of Presidential Documents during fiscal year 1999 as
compared with 402 paid subscriptions to the paper edition.
In the Internet environment, the reliability of information
providers can be problematic. Executive orders may be posted on-line by
any number of organizations, but the material may not be current and
accurate. It is particularly important that Executive orders be
available from a reliable source to remove any doubt as to their
content and effectiveness. The OFR adheres to the highest standards of
accuracy and integrity for our on-line publications to fulfill our
mandate as the official source for Presidential documents and
administrative rules and notices. When we developed our Internet
services with GPO, we specified that the on-line editions must be just
as true to the original documents as the printed editions. OFR and GPO
generate the on-line Federal Register, CFR and the Weekly Compilation
from the same databases used to create the printed editions to ensure
that we meet those standards. In our regulations, we assure the public
that the on-line edition of the Federal Register has the same official
legal status as the printed edition. This month, the Administrative
Committee of the Federal Register passed a resolution to grant official
status to the on-line editions of the CFR and Weekly Compilation of
Presidential Documents. To guarantee future access to Executive orders
and other Federal Register documents, GPO is committed to maintaining
the on-line Federal Register, CFR and Weekly Compilation of
Presidential Documents on GPO Access as part of the permanent
collection known as the ``Core Documents of U.S. Democracy'' series.
The task of sorting through the large volume of material available
on web sites can also limit access to information. We use our National
Archives and Records Administration (NARA) web site (http://
www.nara.gov/fedreg/index.html) as a gateway to guide customers to the
text of Executive orders available in various publications and to
related ancillary information services. The ancillary services on the
NARA web site include a historical Condification of Proclamations and
Executive Orders (1945-1989) and our on-line index of Executive orders.
The Codification directs users to the text of Executive orders by
subject matter, series number and Presidential administration. The on-
line index of Executive orders is possibly the only authoritative
source of information on the current amendment status Executive orders.
It has information on dates of issuance, amendments, revocations and
dates of publication in the Federal Register. The staff in our
Presidential documents unit converted the index from a card catalog
that we used to respond to reference requests received by letter and
telephone. Now the index is available on-demand to any member of the
public, in a hypertext format for easy navigation among the various
entries. During the first nine months of calendar year 1999, our
customers retrieved a total of 557,657 individual items from these
ancillary services.
Question. 2. The NARA web site offers the public a wealth of
primary source information about Presidential documents, specifically
Executive orders. Is there also an objective source of analytical
information available to the public concerning the impact that such
orders have on the public?
Answer. I do not know of an objective source of analytical
information relating to the impact that Executive orders have on the
public. Analytical reporting would go beyond the scope of the OFR's
statutory mission. In the past, we have been provided with reports
prepared by the Congressional Research Service, which contained some
analytical content. But I don't know whether CRS has done recent work
on this subject, or whether the information would be made available to
the public.
Unless there is further business before the subcommittee,
the committee will be adjourned.
[Whereupon, at 12:10 p.m., the subcommittee was adjourned.]