Presidential memoranda and executive orders appear to be very closely related, if not identical. However, the lack of a definition for either of these mechanisms has made it difficult to make a clear distinction between them. Although a clear distinction cannot be made, they are both forms of executive legislation that must possess similar authority. If issued under a valid claim of authority and published,[119] executive orders and presidential memoranda have the force and effect of law[120] and courts are required to take judicial notice of their existence.[121] Thus, it is important to examine the legal basis for each executive order and presidential memoranda issued and the manner in which the President has used these instruments.
Conclusion
In summary, the President's authority to issue executive orders and proclamations is neither explicitly stated in the Constitution nor in statute. However, it is generally accepted that the President derives his authority to act from Article II of the Constitution. The President's authority is primarily based upon the following language of Article II: "the executive power shall be vested in a President of the United States," "the President shall be Commander in Chief of the Army and Navy of the United States," and "he shall take care that the laws be faithfully executed."[122]
Because the Framers of the Constitution left the question of executive authority open to interpretation, there has been much confusion and controversy since the first proclamation was issued by President George Washington.[123] Although this confusion and debate persists, some clarifying guideposts have been developed. Youngstown has enlightened the situation by providing a tripartite standard which simply states three degrees of presidential authority in issuing executive orders and proclamations. Briefly stated, these three categories include executive orders and proclamations issued pursuant to: (1) an express or implied authorization of Congress (presidential authority is at its maximum); (2) are incompatible with the expressed or implied will of Congress, and thus rely solely upon his constitutional authority (presidential power is at its lowest ebb); and (3) undefined powers that lay in a "zone of twilight" (presidential power is uncertain). The judiciary has also expanded its examination of executive orders and proclamations to include a review of legislative history when necessary.
Other than relying upon the judiciary to determine the validity of executive orders and proclamations, Congress may also play a role. Congress may effectively oversee presidential action by amending or repealing legislation, retroactively, which authorizes the President to issue executive orders or proclamations. Congress may propose a constitutional amendment which would remove a particular power from the President. Finally, where Congress is silent, and the President has acted, Congress may legislate to either support or derail such action unless that action is firmly based on exclusive constitutional authority.
Table 1 Executive Orders, by President, 1789–1995
President Years in Office Number of Orders Average per Year
Washington 8.00 8 1.00
J. Adams 4.00 1 .25
Jefferson 8.00 4 .50
Madison 8.00 1 .13
Monroe 8.00 1 .13
J.Q. Adams 4.00 3 .75
Jackson 8.00 12 1.50
Van Buren 4.00 10 2.50
W.H. Harrison[124] 0.08 0 -
Tyler 4.00 17 4.25
Polk 4.00 18 4.50
Taylor 1.25 5 4.00
Fillmore 2.75 12 4.36
Pierce 4.00 35 8.75
Buchanan 4.00 16 4.00
Lincoln 4.00 48 12.00
A. Jackson 4.00 79 19.75
Grant 8.00 217 27.13
Hayes 4.00 92 23.00
Garfield[125] 0.50 6 -
Arthur 3.25 96 29.50
Cleveland (1st Term) 4.00 113 28.25
Harrison 4.00 143 35.75
Cleveland (2nd Term) 4.00 140 35.00
McKinley 4.75 185 38.95
T. Roosevelt 7.25 1081 149.10
Taft 4.00 724 181.00
Wilson 8.00 1803 225.38
Harding 2.60 522 200.77
Coolidge 5.40 1203 222.77
Hoover 4.00 968 242.00
F.D. Roosevelt 12.33 3522 285.64
Truman 7.67 897 116.96
Eisenhower 8.00 478 59.75
Kennedy 3.00 228 76.00
L.B. Johnson 5.00 316 63.20
Nixon 5.60 355 63.39
Ford 2.40 152 63.33
Carter 4.00 311 77.75
Reagan 8.00 409 51.13
Bush 4.00 149 37.25
Clinton[126] 6.00 281 46.83
Sources: Calculated by the author from Gary King and Lyn Ragsdale, The Elusive Executive: Discovering Statistical Patterns in the Presidency (Washington, D.C.: CQ Press, 1988), 160-167; Information for the Bush and Clinton years has been calculated by John Contrubis using information available in LEXIS, Codes Library, FEDREG File.
Jump up ? Staff of House Committee on Government Operations, 85th Congress, 1st Session, Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Committee Print 1957).
Jump up ? U.S. Constitution, Article II, Sections 1, 2, & 3.
Jump up ? Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952), discussed, infra, at pp. 5-8. In such instances where Cmtgress statutorily grants the President the authority to act, his authority is at its peak.
Jump up ? The Federal Register Act requires that executive orders and proclamations be published in the Federal Register. 44 U.S.C. § 1505. Moreover, the President is required to comply with the regulations, established by executive order, governing the preparation, presentation, filing, and publication of executive orders and proclamations. Executive Order No. 11030, 27 Fed. Reg. 5847 (1962).
Jump up ? Armstrong v. United States, 80 U.S. 154 (1871); see also Farkas v. Texas Instrument Inc., 375 F.2d 629 (5th Circuit 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3d Circuit 1964).
Jump up ? Jenkins v. Collard, 145 U.S. 546, 560-561 (1893).
Jump up ? Charles M. Thomas, American Neutrally in 1793, A Study in Cabinet Government, p.42-43 (1931).
Jump up ? Ch. 50, 1 Stat. 381 (See 18 USC § 960).
Jump up ? See Taney's Decisions in the Circuit Court of the United States for the District of Maryland, 1836-61, p. 252; see Staff of House Comm. on Government Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Comm. Print 1957).
Jump up ? Ch. 81, 12 Stat. 755.
Jump up ? Probably for this reason there were few executive orders issued until President Theodore Roosevelt took office. See Table 1.
Jump up ? Theodore Roosevelt, An Autobiography (New York: Scribners's, 1931 ), 388.
Jump up ? Staff of House Comm. on Government Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Powers, 36 (Comm. Print 1957).
Jump up ? Exec. Order No. 8773, 6 Fed. Reg. 2777 (1941). FDR later that year used the same authority to seize shipbuilding companies, a cable company, a shell plant, and almost 4,000 coal companies. See Louis Fisher, Constitutional Conflicts between Congress and the President, 106 (3rd ed. rev. 1992)
Jump up ? June 25, 1943, c. 144, 57 Stat. 163.
Jump up ? 31 U.S.C. § 1347.
Jump up ? 29 U.S.C. §§ 176, 179(b).
Jump up ? Executive Order 10340, 17 Fed. Reg. 3139 (1952).
Jump up ? 103 F.Supp. 569 (1952).
Jump up ? 197 F.2d 582 (D.C.C. 1952).
Jump up ? 343 U.S. 579 (1952).
Jump up ? Id. The "aggregate of powers" theory of presidential power states that the President has and may exercise a reservoir of implied powers created by the accumulation of the total of express powers vested in him by the Constitution and the statutes. Thus, executive orders will often start with a recital of the so-called powers vested in the President as President, as Commander in Chief, etc.
Jump up ? In its discussion of the Taft-Hartley Act in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. 93 Cong. Rec. 3637-3645 (1947).
Jump up ? See Dames & Moore v. Regan, 453 U.S. 654 (1981); Haig v. Agee, 453 U.S. 280 (1981); AFL-CIO v. Kahn, 618 F.2d 784 (1979).
Jump up ? Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635-638.
Jump up ? As described by Jackson himself in his concurrence in Youngstown. 343 U.S. at 635.
Jump up ? Exec. Order No. 12170, 3 CFR 457 (1980).
Jump up ? Exec. Order No. 12279, 46 Fed. Reg. 7919.
Jump up ? Exec. Order No. 12294, 46 Fed. Reg. 14111.
Jump up ? Id.
Jump up ? 453 U.S. 657 (1981).
Jump up ? See § 203 of the IEEPA, 91 Stat. 1626, 50 U.S.C. § 1702(a)(1) and § 5(b) of the Trading With the Enemy Act, 40 Stat. 411, as amended, 50 U.S.C. App. § 5(b).
Jump up ? Dames & Moore, 453 U.S. at 674, quoting, Youngstown, 343 U.S. at 637 (Jackson, J., concurring)
Jump up ? Rev. Stat. § 2001, 22 U.S.C. § 1732.
Jump up ? See also Haig v. Agee, 453 U.S. 280 (1981); AFL-CIO v. Kahn, 618 F.2d 784 (1979).
Jump up ? Dames & Moore, 453 U.S. at 678. See also U.S. v. Midwest Oil Company, 236 U.S. 459 (1915) (Long congressional silence with respect to unauthorized executive order construed as consent).
Jump up ? 323 U.S. 214 (1944). See also Hirabayashi v. U.S., 320 U.S. 81 (1942) (a conviction for violation of a curfew order, based upon Executive Order 9066, was sustained by the Court).
Jump up ? Id. at 219-220 (emphasis added).
Jump up ? Exec. Order No. 8802, 6 Fed. Reg. 3109 (1941).
Jump up ? Id.
Jump up ? See Exec. Order No. 10308, 16 Fed. Reg. 12303 (1951); Exec. Order No. 10479, 18 Fed. Reg. 4899 (1953); Exec. Order No. 10925, 26 Fed. Reg. 1977 (1961).
Jump up ? 3 CFR, 1964-1965 Comp., p. 339. The status of this executive order and affirmative action programs in general is now in question. In Adarand Constructors, Inc. v. Pena, 63 USLW 4523 (1995), the Supreme Court altered the standard to be applied to affirmative action programs to that of strict scrutiny. Since the Court remanded the case, the interpretation of this standard with regards to affirmative action will be decided in the near future.
Jump up ? 442 F.2d 159 (3d Cir. 1971).
Jump up ? 40 U.S.C. § 486(a).
Jump up ? But see Chrysler Corp. v. Brown, 441 U.S. 281 (1978) (the Court casts doubt upon the "nexus" between Executive Order 11246 and the Procurement Act since "nowhere in the Act is there a specific reference to employment discrimination." Id. at fn. 34. However, the Court did not determine the precise source of authority for the executive order since it held that the regulation being challenged there was not authorized by any of the arguable statutory grants of authority.
Jump up ? 618 F.2d 784 (D.C.C. 1979) (en banc).
Jump up ? 43 Fed. Reg. 51375 (1978).
Jump up ? 60 Fed. Reg. 13023 (March 10, 1995).
Jump up ? U.S. Chamber of Commerce v. Reich, 886 F.Supp. 66 (D.D.C. 1995).
Jump up ? Id.
Jump up ? U.S. Chamber of Commerce v. Reich, 57 F.3d 1099 (D.C.Cir. 1995).
Jump up ? U.S. Chamber of Commerce v. Reich, 897 F.Supp. 570 (D.D.C. 1995).
Jump up ? U.S. Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C.Cir. 1996).
Jump up ? 639 F.2d 164 (4th Cir. 1981).
Jump up ? Id. at 171.
Jump up ? Id. at 170-171; Cf. Fullilove v. Klutznick, 448 U.S. 448 (1980) (Powell, J., concurring: importance of legislative findings of discrimination to sustain Act of Congress mandating affirmative action in federal grants for local public works project).
Jump up ? 3 CFR 127 (1981); 3 CFR 323 (1985).
Jump up ? 3 CFR 1981 Comp., 127, 5 U.S.C. § 601 note, amended by Exec. Order No. 12498, 3 CFR 1985 Comp., 323, repealed by Exec. Order No. 12866, 58 Fed. Reg. 51735 (1993).
Jump up ? Op. Office of Legal Counsel, Dept. of Justice, Proposed Executive Order entitled "Federal Regulation" (Feb. 18, 1981), reprinted in 1988-1989 Regulatory Program of the United States Government at 532-36.
Jump up ? Id. at 532.
Jump up ? Id. at 533-34.
Jump up ? See, e.g., Rosenberg, Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291, 80 Mich. L. Rev. 193 (1981). Erik D. Olsen, The Quiet Shift of Power: OMB Supervision of EPA Rulemaking Under Executive Order 12291, 4 Va. J. Nat. Res. L. 1 (1984).
Jump up ? See McGarity, Presidential Control of Regulatory, Agency Decisionmaking, 36 Am. U. L. Rev. 443 (1987); Strauss and Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 Admin. L. Rev. 181, 202-05 (1986).
Jump up ? See, e.g., McGarity, supra n. 56 at 457-60; Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291, 4 Va. J. Nat. Res. 1, 75-77 (1984).
Jump up ? Memorandum, Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498, June 13, 1986, from Wendy A. Gramm to Heads of Departments and Agencies Subject to Executive Orders 12,291 and 12,498, reprinted in 1990-1991 Regulatory Program of the United States Government 605-07.
Jump up ? 657 F.2d 298 (D.C.C. 1981).
Jump up ? Costle at 405-06 (footnotes omitted). A panel of the D.C. Circuit chose to avoid the sensitive constitutional issue in Public Health Citizen Research Group v. Tyson, 796 F.2d 1479 (D.C.C. 1986).
Jump up ? 58 Fed. Reg. 51735 (1993), reprinted in 5 U.S.C. § 601 note.
Jump up ? See Exec. Order No. 12866 § 6(b), supra n. 61.
Jump up ? 3 CFR, 1992 Comp., p. 302 (March 19, 1992).
Jump up ? Id. Although Justice Jackson's concurrence in Youngstown creates a standard primarily for the judiciary, it is indicative of the President's ability to stand behind an executive order. In a case, such as this one, where the President relies solely on his constitutional powers, his power is at is lowest ebb. There may be instances where the President's authority under the Constitution is truly strong and exclusive which would require a constitutional amendment in order to alter such authority. However, in this situation, the President relied upon very broad language in describing his authority to issue Executive Order 12806.
Jump up ? P.L. 103-43, 107 Stat 133, § 121.
Jump up ? See Youngstown, supra n. 19 (clause 3).
Jump up ? Although not involving executive orders or proclamations, a good example of using a sunset provision to oversee the President's authority to act is with reorganization authority. On various occasions, Congress has given the President the authority to reorganize agencies through the use of reorganization plans. 5 U.S.C. § 903. The President was compelled to abide by certain requirements which included presenting the plan to Congress which would then vote, within a specified amount of time, to approve the plan as a whole. Sometimes a failure to vote indicated acceptance of the President's plan. However, this reorganization authority was effective until a specified date unless reauthorized. 9 U.S.C. § 905(b). The last day this authority was in effect was December 31, 1984. Since then no President has had the authority to present reorganization plans to Congress.
Jump up ? 33 Fed. Reg. 4245, as amended by Exec. Order No. 11551, 35 Fed. Reg. 12885; Exec. order No. 11688, 37 Fed. Reg. 25815.
Jump up ? 37 Fed. Reg. 25815 (Dec. 1, 1972).
Jump up ? P.L. 91-125, 83 Stat. 220, 25 U.S.C. nt. prec. 1.
Jump up ? Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
Jump up ? Louis Fisher, Laws Congress Never Made, 5 Constitution 59, 63 (Fall 1993).
Jump up ? 31 U.S.C. § 1347; 58 Stat. 387, ch. 286, sec. 213 (1944).
Jump up ? 64 Stat. 987 (1950).
Jump up ? Albertson v. Subversive Civilities Control Board, 382 U.S. 70 (1965).
Jump up ? 81 Stat. 765 (1968).
Jump up ? Boorda v. SACB, 421 F.2d 1142 (D.C.Cir. 1969), cert. denied, 397 U.S. 1042 (1970).
Jump up ? Exec. Order No. 11605, 36 Fed. Reg. 12831 (1971).
Jump up ? S.Res. 163, 92d Cong., 1st Sess. (1971).
Jump up ? 86 Stat. 1134, sec. 706 (1972).
Jump up ? See Midwest Oil v. U.S., 236 U.S. 459 (1915).
Jump up ? Supra. 2.
Jump up ? Supra. p. 3.
Jump up ? Supra. p. 4.
Jump up ? 2 Black 635 (1862).
Jump up ? By Acts of Congress of February 28, 1795, and March 3, 1807, the President was authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, "... and to suppress insurrection against the government of a State or of the United states." See staff of House Comm. on Government Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Power (Comm. Print 1957).
Jump up ? 2 Black 670-671 (1862).
Jump up ? 21 U.S.C. § 1113 (repealed 1988).
Jump up ? Exec. Order No. 12,866, 58 Fed. Reg. 51735 (1993).
Jump up ? Id. at Sec. 11.
Jump up ? Exec. Order No. 11618, 3 CFR, 1971-1975 Comp., p. 610, amending Exec. Order No. 10713, 22 Fed. Reg. 4007.
Jump up ? TIAS 7314, 23 UST 446 (May 15, 1972).
Jump up ? 3 CFR, 1989 Comp., p. 206 (Jan. 6, 1989).
Jump up ? 44 U.S.C. § 1505(a).
Jump up ? The Federal Register Act requires that executive orders and proclamations be published in the Federal Register. 44 U.S.C. § 1505. Moreover, the President is required to comply with the regulations, established by executive order, governing the preparation, presentation, filing, and publication of executive orders and proclamations. Exec. Order No. 11030, 27 Fed. Reg, 5847 (1962).
Jump up ? Armstrong v. United States, 80 U.S. 154 (1871); see also Farkas v. Texas Instrument Inc., 375 F.2d 629 (5th Cir. 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3d Cir. 1964).
Jump up ? Jenkins v. Collard, 145 U.S. 546, 560-561 (1893).
Jump up ? 911 F.Supp. 395, 401 (D.S.D. 1995).
Jump up ? As of April 24, 1997, President Clinton has issued 21 presidential determinations in 1997.
Jump up ? 22 U.S.C. § 2364(a)(1).
Jump up ? Presidential Determination No. 97-21, 62 Fed. Reg. 23939 (May 2, 1997). See Presidential Determination No. 97-20, 62 Fed. Reg. 15353 (March 31, 1997) (certifying that North Korea is complying with the Nonproliferation, Anti-Terrorism, Demining and Related Programs in Title II of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1997).
Jump up ? Memorandum of April 1, 1997, 62 Fed. Reg. 18261 (April 5, 1997).
Jump up ? See Executive Order No. 12152, 44 Fed. Reg. 48143 (Aug. 14, 1979).
Jump up ? See President Reagan's Executive Orders 12291 (3 CFR 127 (1981)) and 12498 (3 CFR 323 (1985)) (These executive orders were very controversial because they were perceived as furthering the policy agenda of a President through control of the agency decision making process).
Jump up ? Memorandum of January 22, 1993, 58 Fed. Reg. 7457 (February 5, 1993).
Jump up ? See, Amy Goldstein, Richard Morin, Clinton Cancels Abortion Restrictions of Reagan-Bush Era, Washington Post, January 23, 1993, at A1; See also, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 Am.J.L. & Med. 433 (January 1996) (refers to President Clinton's presidential memorandum suspending the “gag rule” as an executive order).
Jump up ? Memorandum of April 21, 1995, 60 Fed. Reg. 20621 (April 26, 1995).
Jump up ? Executive Order No. 12975, 60 Fed. Reg. 52063 (Oct. 5, 1995).
Jump up ? See, Executive Order No. 13038, 62 Fed. Reg. 12065 (March 13, 1997) (Establishing an advisory committee for public interest obligations of digital television broadcasters).
Jump up ? Executive Order No. 13036, 62 Fed. Reg. 7653 (Feb. 19, 1997); See, Executive Order No. 13004, 61 Fed. Reg. 25771 (May 22, 1996) (Establishing an emergency board to investigate disputes between certain railroads and their employees).
Jump up ? 42 U.S.C. § 264(b) (emphasis added).
Jump up ? The Federal Register Act requires that executive orders and proclamations be published in the Federal Register. 44 U.S.C. § 1505. Moreover, the President is required to comply with the regulations, established by executive order, governing the preparation, presentation, filing and publication of executive orders and proclamations. Exec. Order No. 11030, 27 Fed. Reg. 5847 (1962).
Jump up ? Armstrong v. United States, 80 U.S. 154 (1871); see also Farkas v. Texas Instrument Inc., 375 F.2d 629 (5th Circuit 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3d Circuit 1964).
Jump up ? Jenkins v. Collard, 145 U.S. 546, 560-561 (1893).
Jump up ? U.S. Constitution, Article II, Sections 1, 2, & 3.
Jump up ? For an example of the confusion that existed see the correspondence between Alexander Hamilton and James Madison concerning President Washington's desire to issue a proclamation declaring this country's neutrality in the French and British War in 1793. See Charles M. Thomas, American Neutrality in 1793, A Study in a Cabinet Government, (New York, Columbia University Press 1931).
Jump up ? Died after only 1 month in office.
Jump up ? Assassinated after 6 months in office.
Jump up ? Currently in his 2nd term of office. The number of executive orders he has issued is