Above the Law:

History and Development of Presidential Executive Orders
Part One

By
John A. Sterling

(revised Dec 31, 2001)

Synopsis: The author explores the history and development of presidential Executive Orders from the first instance of their use in American Law to the present expansive use by President William Jefferson Clinton. In Part One, the author looks at the history of Presidential Executive Orders and compares the present applications with the principle of "checks and balances" which the framers of the Constitution considered the cornerstone of American Federalism. Part Two analyzes the Executive Orders of Presidents from Kennedy to Clinton, with special emphasis on the recent Executive Orders issued by Bill Clinton. The reader will be able, upon completion of both parts, to ascertain whether the Excecutive Branch has been faithful to the limitations of his legitimate authority, in light of the principles established in Part One.

PART ONE
I. Introduction
II. History and Development
III. The War Powers IV. The Constitutional Issues
V. What are the Powers of the President?
VI. What the Supreme Court Has Said on the Subject
PART TWO
VII. From Kennedy to Clinton
VIII. The Most Egregious EO's of Bill Clinton
IX. Conclusion X. Bibliography
XI. Appendix


I. Introduction

For many years, the average American was completely unaware of the existence of Executive Orders. They operated quietly in the background of government operation- useful tools in the hands of a capable executive for the administration of his employees. Recent attention has been focused on Executive Orders because they no longer operate only on the employees of the administrative agencies of the Federal Government but on average citizens who perceive what appears to be an end-run around the Constitution. This paper will look at the evolution, or development of the Presidential Executive Order and attempt to place it, conceptually, within its constitutional boundaries. Obviously, the text of the Constitution will be the first source of authority to be examined. When the text of the Constitution is unclear or ambiguous, the next most authoritative source is in the writings of the founders themselves. Other sources in the hierarchy of probable reliability may be found in early Supreme Court decisions and works of legal scholarship by contemporaries of the framers.

Essentially, there are three different types of presidential proclamations that may have force of law: (1) those which are directed to the employees or agents of the executive branch; (2) those which result from specific authorizations of Congress; and (3) those in connection with his role as commander-in-chief. The latter are neither numbered nor published and are not considered Executive Orders within the context of this paper.

The first Presidential Executive Order was issued by George Washington in 1789, but no numbering system or uniformity was applied until 1907 when the Department of State retroactively designated an EO issued by Abraham Lincoln in 1862 as Executive Order 1. Certainly Lincoln used the Executive Order in some unique ways due to the Civil War and history has not judged him harshly for that discretion. By 1873, President U.S. Grant had established the form of the Executive Order which is similar to the one used today.

The American Civil War marked a turning point in American law and government. The realization dawned that American was not a land of inexhaustible natural resources, but rather, could be, and was being, stripped of its raw wealth by powerful interests. The role of government shifted from one of promoting exploitation and development to that of regulator and trustee. While this shift does not necessarily do injury to the Constitutional principle of "Balance of Powers," it was a stepping-stone towards the degradation of the original notion of "balance" of powers. The much more pronounced shift towards Socialism emerged largely as a result of the Great Depression in the 1930's when, ". . . [t]he concept became widely accepted at all levels of American life- 'downtrodden masses' as well as the educated elite- that it was desirable for the government to take care of its citizens and to protect them in their economic affairs." It was within this time frame that the seeds of Socialism began to take root. Americans placed their confidence and hope in a "benevolent" government whose control of the marketplace might alleviate their economic woes.

"The revolutionary generation had been suspicious of any governmental power. The generation of the Gilded Age was still suspicious of imbalance of power. But significant segments of the public saw danger, not merely from one but from various sides: not only from government, but from populists, or trusts, or farmers, or the urban proletariat." There is debate among scholars as to whether this shift was driven by an ideological agenda to change government or simply a natural response to the changing dynamics of national growth. To be sure, enterprising politicians read the handwriting on the wall and capitalized on the public sentiment.


II. History and Development

In examining the historical role of the Executive Order until the Civil War, it can be readily observed that this was considered a necessary tool in the hands of the chief executive. It had been used to effect various regulations applying to governmental employees, to promulgate rules for the civil service, to transfer property to and between departments and agencies of government, and to establish special holidays or days of mourning for famous citizens.

When limited to that scope, there is little doubt that the use of Executive Order is consistent with the principle of checks and balances. The first twenty-five presidents used the power of Executive Order only a handful of times and only in the context of administering the Executive Branch. "In use from the earliest days of the Republic, the Executive Order was at first employed mainly for the disposition of the public domain, for the withdrawal of lands for Indian, military , naval and lighthouse reservations or other similar public purposes." But, for nearly one hundred years, the use of presidential Executive Order did not place any burden or create any legal duty on the part of a citizen of the Republic.

From the Civil War to the 1930's, the tension between the various economic and social interests in America resulted in the enactment of marginal, sometimes experimental legislation. The Sherman Antitrust Act of 1890 was such an Act and the first of kind to come from the United States Congress. It was vague in its language and shadowy in its implications. "Vague language in a statute is, in effect, a delegation by Congress to lower agencies, or to the executive and the courts; it passes the problem along to others. Such a law buys time; it is a compromise between those who want sharp, specific action and those who stand on the status quo. The Sherman Act did not, as some have thought, mechanistically reflect a vanished dream of free enterprise. It was the product of a Babel of voices, and hardly reflected any economic theory at all." Since the Sherman Act, politicians often resort to broad statutes and delegation of authority to some administrative agency. This effectively shields them from criticism since they may appear to be on whichever side of an issue is politically expedient for them.

As America acquired new territories, a primary role of government was to consolidate its wealth and power so that the vast resources would provide a strong economy and a solid defense against other nations. Much of the growth was financed by private capital and powerful special interest groups.

Teddy Roosevelt greatly expanded the use of Executive Order in terms of both quantity and reach. He declared certain lands set aside for military reservations or wildlife refuges. He made dozens of people available for appointment to government offices without regard to whether they met Civil Service requirements. Following Roosevelt, President Taft also made wide use of the Executive Order. Although he generally did not stray from boundaries established to that point, there appears to be an important exception. He seems to have unilaterally altered the terms and conditions of several treaties with the Indians regarding inclusion of additional tribes which were to occupy reservations. This would have the effect of increasing the population of reservations without increasing allocations of land or other resources necessary to support the population increase.

Woodrow Wilson's administration began in 1913 and he used the Executive Order more prolifically than did his predecessors. "During World War I, the use of the Executive Order was widened as executive authority and power increased and its scope was again greatly broadened. Important agencies such as the Food Administration, the Grain Corporation, the World Trade Board, and the Committee on Public Information were set up by Executive Order." Due to technological advances (radio) and the open border policy of the U.S., national secrecy was much more complex that ever envisioned by our founders. Wilson used the Executive Order to restrict radio frequencies, seize certain radio stations for military use, provide for collection and redistribution of food for the war effort, set prices for bituminous coal, and other far-reaching orders. (See Appendix, Table One) Using the War as an excuse, Wilson's administrative methods resembled some European governments. "With the onset of the War, each belligerent eagerly scanned its competitors and allies for aspects of state management and intervention in the war economy which could be imitated. The capitalist sectors, appeased by enormous profits and inspired, no doubt also by patriotism, raised no objections. The result was qualitative and quantitative expansion of the role of the state which has never been fully reversed."

While Wilson's expansion may have been justified because of the war, one should be able to clearly articulate solid constitutional principles with regard to the necessity of these wartime measures. No matter how prudent his actions might seems in retrospect, it is clear that having broken this new ground, many subsequent presidents have not been constrained by their professions of loyalty to the U.S. Constitution. They have preferred the path of least resistance, choosing to maintain the status of permanent "emergency" and the immense power that comes with that status. "Since March the 9th, 1933, the United States has been in a state of declared national emergency....This vast range of powers, taken together, confer enough authority to rule the country without reference to normal constitutional processes. Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens."

Between the Wilson Administration of WWI and the administration of Franklin Delano Roosevelt during the World War II years, the presidential use of the Executive Order does not appear to have strained the limitations of Constitution. Wilson's use of the Executive Order still deferred to Congress although Wilson did wield immense power during the war years. After the War, Wilson handed back the powers to Congress and the people. But, appearances are deceiving for the programs initiated by Wilson did not die, they merely receded into the background, awaiting re-summoning. Indeed, history has proven that once liberty is traded for security, it cannot be regained without a fight. World War I ". . . [d]emonstrated both the impressive speed with which the modern state could expand itself and the inexhaustible appetite which it thereupon developed both for the destruction of its enemies and for the exercise of despotic power over its own citizens."

FDR charted new territory when it came to the use of the Executive Order. Declaring a state of emergency which no one has bothered since to rescind, this president created dozens of new federal agencies and charged them with overseeing dozens of new federal programs designed to relieve the burdens of depression, war, labor disputes, and other social ills. A two-term president, FDR used the Executive Order 2055 times in the first six of his eight years in office. (See Appendix Table One).

III. The War Powers

A single, obscure line from Article 1, 8 of the U. S. Constitution gives Congress the authority to call ". . .[f]orth the militia to execute the Laws of the Union, suppress Insurrections and repel invasions." As already noted, the President is empowered to act as the commander-in-chief of the militia when they are called into actual service (Art.2 2). The only suggestion that Constitutional powers may sometimes be re-shuffled to accommodate an emergency is in Art. 1, 9, where "The privilege of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety shall require it." That is the only implication to be found that any Constitutional breach may be tolerated and then, limited to one specific legal procedure and only for the duration of the rebellion or invasion.

Abe Lincoln was the first American President to make a drastic departure from the traditional application of the presidential authority during a time of war. Using that provision in the Constitution, Lincoln, with the consent of a majority of Congress, assumed that the presidential authority as commander-in-chief was not limited to direction of the troops. Early in the Civil War, Lincoln blockaded Southern ports, increased the size of the Army and the Navy and order military detention of certain citizens. The Supreme Court was deferential toward the President's exercise of this authority and concluded that the Constitution conferred the necessary authority to the Chief Executive under those extreme circumstances.

Under the aegis that "extreme circumstances call for extreme measures," FDR expanded the definition of "war powers" to include "emergency powers." During the first 100 days in office, [FDR] seized all gold and silver, took the country off the gold standard and established a banking system based on the debts of the people, expanded the Trading With the Enemy Act to redefine "enemy" as including all the American people, establish government control over natural resources, the social agenda and welfare, utilities, private financing, industry, labor and transportation, and bailed out the banks. Roosevelt's acts abrogated the gold clause in all public and private contracts, thus usurping the legality of private contracts. At the same time he established control over financing and the price of homes, and inserted into the Agricultural Adjustment Act a clause which shifted the power to coin money and regulate its value (granted by the constitution to congress) from congress to the president.

FDR, justifying the application of those powers by referring to Wilson's WWI use of that authority, wrote later, "All one has to do is to go back and read those war acts which conferred upon the Executive far greater power over human beings and over property than anything that was done in 1933." (Roosevelt Papers Vol. 4 p. 205-206) Wilson, however, was able to wield considerable wartime powers by asking Congress first to delegate those powers to him and second, all of his "extra" authority to execute the war was subject to Congressional scrutiny. Further, Wilson handed back those powers when WWI was over. These critical distinctions were apparently lost on Roosevelt.

Compare the incredible power exercised by FDR with the provision of the German Weimar Constitution under which Adolf Hitler leveraged himself into the position of absolute dictator. Article 48 states: If a state does not fulfill the duties incumbent upon it under the national constitution or laws, the President of the Reich may compel it to do so with the aid of the armed forces. If the public safety and order in the German Reich are seriously disturbed or endangered, the President of the Reich may take the measures necessary to the restoration of the public safety and order, and may if necessary intervene with the armed forces. To this end he may temporarily suspend in whole or in part the fundamental rights established in Articles 114 (inviolability of person), 115 (inviolability of domicile), 117 (secrecy of communication), 118 (freedom of assembly), 124 (freedom of association), and 153 (inviolability of property).

Harry S Truman succeeded Roosevelt, who died a few weeks into his fourth Presidential term. Truman shortly thereafter ordered the atomic bombs dropped on Japan which effectively ended the Second World War but he never rescinded the emergency powers and continued to use his extra-constitutional power to deal with post-war reconstruction. Years later, at a birthday dinner in his honor, Truman told the world his view of constitutional government. He said: When the founding fathers outlined the Presidency in Article II of the Constitution, they left a great many details out and vague. I think they relied on the experience of the nation to fill in the outlines. The office of the chief executive has grown with the progress of the great republic. It has responded to the many demands that our complex society has made upon the Government. It has given our nation a means of meeting our greatest emergencies. Today, it is one of the most important factors in our leadership of the free world. . . .And today our government cannot function properly unless the President is master in his own house and unless the executive departments and agencies of the government, including the armed forces, are responsible only to the President.

Truman's notions of an "evolving" Constitution, like FDR's, began influencing the legal landscape as new Supreme Court Justices occupied the highest court in the land. The "evolutionary constitution" idea has been elevated to canonical status at prestigious law schools across America for the last 45 years and today, it is uncommon to find a sitting judge who holds to an "original intent" theory of constitutional interpretation.

IV. The Constitutional Issues

Interpretation of historical writings has sometimes been given an almost mystical aura, as though only the most gifted among us possess the requisite ability to discern the intent of the ancients. While Constitutional interpretation is not child's play, neither is it beyond the understanding of people with average intelligence who will apply the basic principles of interpretation (called 'canons').

Any person who wishes to know what the Constitution says about the proper authority given to the President must look first to the plain language of the text. To be sure, the meanings of some words may have shifted over time, so a dictionary should be obtained from the approximate time period in question. (Most historians use Noah Webster's 1828 Dictionary for this purpose.) If, and only if, ambiguity arises when applying the meaning of the term as commonly used, the next step of the analysis is to look to the context. By careful reading of the words and phrases adjacent to the ambiguous term, one may accurately discern the intended meaning. When ambiguity still exists, the interpretation requires extrinsic evidence to bring precision to the interpretation. In analyzing the meanings of Constitutional terms, perhaps the most helpful single source is the Federalist Papers, a compilation of newspaper articles written by three of early America's most influential founders.

On the question of Presidential Executive Orders, one must begin the search in the body of the text of the Constitution. Powers granted to the federal government are of two families: express and implied. When a branch of the federal government is expressly granted the authority to perform a task, there may also arise corollary responsibilities which are not mentioned in the text of the granting language. In this event, the authority needed to execute the duty is said to be "implied" as it rises necessarily out of the express authority. Finding no express language in the Constitution to support Executive orders, and finding little from which to imply additional authority from the context, we look to history to supply the answer.

The Administrative Agency

As mentioned earlier, one of the mechanisms used to accomplish political objectives without the full operation of checks and balances, is through the use of the Administrative agency. "The Administrative agency was the child of necessity. . . .A large, tumultuous, middle-class population, anxious for security if not power, made more and more demands on and through government. The country was enormous; its product was enormous; its technology was enormous; and slowly, its government too became enormous." Administration by the chief Executive through an agency of appointees is not inherently an unconstitutional exercise of authority. But administrative regulations are beyond the control of the average citizen and when there is no control, there is a near-certainty of eventual abuse of authority. When that line is crossed, rule by administrative agency IS unconstitutional insofar as it destroys the democratic process and places government beyond the reach of the governed.

The administration of government by the Executive and through the various agencies of the Executive branch grew tremendously with the advent of the 20th century. With the burgeoning growth of big business came increased demands upon municipal and county governments. Unable to grapple with the increasing complexities of the evolving industrial age society, cities and counties turned to state government for solutions. State control in many areas of emerging business (such as the railroads, public utilities, and the insurance business) gave way to federal control when it became apparent that states governments could not sustain a battle in a war waged with the huge purses wielded by big business. "Partly, this was because no coherent economic theory underlay regulation. Regulation sprang, to a great extent, from fear and mistrust of the financial power of the companies, and the sense that the companies were cheating the public. These opinions did not easily translate into concrete and effective programs."

What Does The Constitution Say About Laws and Lawmaking?

"All legislative powers herein granted shall be vested in a Congress of the United States Which shall consist of a Senate and House of Representatives." Art. 1, 1 of the U.S. Constitution. Congress shall have the power. . .To make rules for the government. . ." Art. 1, 8, para 14, U.S. Constitution Congress shall have the power. . . To 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." Art. 1, 8, para18, U.S. Constitution

From the foregoing, it is evident that the express language of the Constitution authorizes Congress to "make" the laws both "necessary" and "proper" to execute "all other powers" which are properly the domain of the federal government.

Article 1, 9 contains a short list of restrictions which may be read to apply either to Congress, the President, or both. It follows immediately after the "necessary and proper" clause and immediately before Article 1, 10 which specifically limits certain actions of the various states so it is obviously intended to place limitations on the federal power whether directly exercised by the branches or indirectly, through delegated authority.

Article II describes the authority of the Executive and a careful reading of this section is very illuminating. Given the clear description of the law-making process in article 1, we see the President's role in that law-making process as having the veto power in order to force "marginal" laws to be more fully considered. The President does not have authority to "make" laws that are "necessary and proper for carrying into execution" the laws passed by Congress. That is the responsibility of Congress alone. The president is to carry out (execute) the laws within Constitutional limitations pertaining to ALL federal authority, NOT just the Executive branch. However, within the narrow language of the document, very little actual power is expressly granted to the President of the United States by the Constitution for peacetime, domestic administration of government. This is not meant to suggest that the President is a mere figurehead, for it was anticipated that he would be a man of considerable knowledge and influence. Additional powers may be inferred from the scope of diplomatic functions which fall upon the President. For example, his office meets with dignitaries and foreign heads of state and American foreign policy is principally his to formulate and carry out. His most important domestic functions, at least those functions to which the Constitution expressly alludes, are subject to "advice and consent" of the Senate. That phrase is designed to properly check the executive power. Otherwise, America would more closely resemble a monarchy; the very form of government our founders were trying to prevent. In any event, every exercise of authority by the president is subject to the oath of loyalty the president is required to utter, the language of which is specifically stated in Art.2, 1, para 7.

No exact formula for defining the Presidential power is crystal clear from the Constitution itself and the conclusions drawn must rely on the context of the document and the extrinsic evidence. In the latter category, it is fortunate that we have preserved the original articles written by James Madison, Alexander Hamilton, and John Jay in which the arguments for, and against, the Constitution were discussed. One can do no better than to turn to the sources who helped write, or greatly influenced, the original document.

On the subject of federal authority, James Madison wrote, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement and prosperity of the State."

But what if the Federal Government, under the guise of national emergency and with nothing but the pseudo-authority of Executive Orders, were to attempt to circumvent the Constitution? Who could imagine such a preposterous thing? Well, the likes of Patrick Henry, to name one, and other anti-Federalists of the day who raised the specter of such an event. Madison was incredulous at this paranoid assertion and responded to such a "hypothetical" situation by writing, "But ambitious encroachments of the federal government on the authority of the state governments would not excite the opposition of a single state, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. . . Plans of resistance would be concerted." Madison obviously thought the idea of a runaway federal government was ludicrous! Besides, he reasoned, the state militias are armed and ready to fight such an obvious act of tyranny. Not just one or two States, but ALL of them would certainly rise up with force of arms and resist! He rebuffed his detractors by saying, "[t]hat the governments and the people of the States should silently and patiently behold the gathering storm and continue to supply the materials until it should be prepared to burst on their own heads must appear to everyone more like the incoherent dreams of a delirious jealousy. . .than the sober apprehensions of genuine patriotism."

The very idea that the entire federal government might act in concert to circumvent the Constitution was scarcely imaginable to James Madison. America had been born by the blood of the Patriots and the wounds of that great war could not be soon forgotten. The great cost of freedom from tyranny would be preserved by the careful dividing of the powers of government into such parts as may find themselves in tension with one another that only the most important national legislation could be passed. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny"

Modern political commentators often argue that in today's fast-paced political climate, where decisions of great magnitude must be made quickly, a more efficient mechanism is necessary. They argue the political process inherited from the founders is too cumbersome; the President needs more authority to deal with emergency situations. But order and efficiency must be balanced against liberty for the two concepts are frequently at cross-purposes. Madison, quoting Montesque, wrote, "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates." The mood in Colonial America was one of independence- not just political independence from King George and Parliament, but one of more fundamental individual liberty. While modern Americans profess that they also desire liberty, they are unwilling (or unable) to accept the economic, social, and political consequences of that liberty. Rather, special interest groups have exerted influence far beyond their numbers and have succeeded in circumventing Constitutional processes by judicial activism or Executive Orders.

V. What Are The Legitimate Powers of The President?

Having examined what the Constitution says about making the laws that the people must obey, and noting the consistent application of "checks and balances" which operate on the law-making process, we move now to the powers of the President. Alexander Hamilton gave an answer to those who queried what was the true nature of the Presidency. "The administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual and perhaps in its most precise signification, it is limited to the executive details, and falls peculiarly within the province of the executive department." But, even though the Executive branch is the logical, efficient administrator of Public Policy , the office is, nevertheless, subject to the constraints of checks and balances. We may glean the implications without much effort, thankfully, from the direct language of the founders on the subject. For example, although much is made of the president acting as commander-in-chief of the armed forces, the truth is that the founders did not envision such control except in the limited circumstances of war. Congress may declare a war after which the President is given command authority. Hamilton said, "The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union." Remember, the Constitution provides that only Congress may call the militia into active service. The entire scope and breadth of present-day Federal disregard for the Constitution is quite beyond the scope of this paper, but the author's view, after rather extensive study, is that the "new constitutionalism" is firmly rooted in the New Deal programs of FDR.

Hamilton continues in the Federalist Papers to offer a complete description and explanation of the powers of the Executive as intended by the Constitution. Primarily, the office needs to be shielded from the corrupting influences of both foreign and domestic special interests. "Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected from more than one quarter, but chiefly from the desires in foreign powers to gain an improper ascendant in our councils. How could they better gratify this than by raising a creature of their own to the chief magistracy of the Union?" Hamilton may have been looking into a crystal ball for the terrible corruption from which the founders so laboriously endeavored to protect us, has been accomplished in the present day by President William Jefferson Clinton. The most corrupt administration in the history of American politics has become the poster-child for everything that Hamilton envisioned when Americans failed to insist on proper checks and balances in the governing process.

What should be the distinguishing characteristics of a good President? Hamilton describes the trait as "energy" and then defines the term for the reader. "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. . . The ingredients which constitute energy in the executive are unity; duration; an adequate provision for its support; and competent powers." Those few powers granted the President are not sufficient, Hamilton argues, to provide any man with enough raw power to single-handedly override the Constitution. The checks and balances are sufficiently strong to ensure that only that legislation most needed to effect the common good of all the people, provided that due diligence is maintained. Can it be said with certainty, from the vantage point of hindsight, that 20th century Americans have shown themselves sufficiently diligent that these ideals have been preserved?

VI. What the Courts have Said About Presidential Powers

In July of 1798, the fifth congress passed the Alien Enemy Act, wherein the President was delegated the authority, by proclamation, to cause persons identified as natives or citizens of a hostile nation to be subject to surveillance, restraint, detention, or deportation; and, "[t]o establish any other regulations which are found necessary in the premises and for the public safety." Mr. Justice Frankfurter, writing for the Court in Ludecke v. Watkins in 1948, affirmed that the language of the text of that law, plus the available writings on the subject, plus the legislative and judicial history of 150 years, all established that the President was granted very great discretionary powers with regard to "enemies" during wartime. Frankfurter concludes that, "This Alien Enemy Act has remained the law of the land, virtually unchanged since 1798." Ludecke v. Watkins, District Director of Immigration. 335 U.S. 160, 68 S.Ct. 1429 (1948). Ludecke was a German national who was arrested on December 8, 1941 and detained for the duration of the war. After the war, he was ordered deported on January 18, 1946. Ludecke claimed, among other things, that authority to remove him from the country vanished with the cessation of hostilities. In other words, Ludecke maintained, the Presidential War Powers ended with war. The Court's opinion was consistent with precedent. War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops. [cites omitted] 'The state of war' may be terminated by treaty or legislation or Presidential proclamation. Whatever the modes, its termination is a political act. [cites omitted] Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled. Only a few months ago the Court rejected the contention that the state of war in relation to which the President has exercised the authority now challenged was terminated. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421. Nothing that has happened since calls for a qualification of that view. . . . The situation today is strikingly similar to that of 1919, where this Court observed: 'In view of facts of public knowledge, some of which have been referred to, that the treaty of peace has not yet been concluded, that the railways are still under national control by virtue of the war powers, that other war activities have not been brought to a close, and that it cannot even be said that the manpower of the nation has been restored to a peace footing, we are unable to conclude that the act has ceased to be valid.' Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. at page 163, 40 S.Ct. at page 111, 64 L.Ed. 194.

The court acknowledged that such great war powers may be abused, but that it was a bad reason for having judges supervise their exercise. Keeping this sense of balance, Justice Frankfurter writes: "In relation to the distribution of constitutional powers among the three branches of the Government, the optimistic Eighteenth Century language of Mr. Justice Iredell, speaking of this very Act, is still pertinent:
'All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people.' (Case of Fries, supra, 9 Fed.Cas. at page 836, No. 5,126.)

Accordingly, we hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it--on the President of the United States. The Founders in their wisdom made him not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war."

Has the Court ever ruled against the exercise of Executive authority? Yes, in the case of Youngstown Sheet and Tube, a 1952 case where President Truman issued Executive Order # 10340 to seize control of the private steel industry in an effort to prevent labor strikes and stoppage of steel production. The steel industry charged that the President exceeded his authority and the Supreme Court affirmed the judgment of the District Court that indeed, he had. The government admitted that there was no statutory authority for such a bold move by the president and that such authority as could be found in the statutes was 'much too cumbersome, involved, and time-consuming for the crisis which was at hand.' Rather, the government asserted, the authority could be "implied from from the aggregate of his powers under the Constitution. Particular reliance [was] placed on provisions in Article II which say that 'the executive Power shall be vested in a President . . .'; that 'he shall take Care that the Laws be faithfully executed'; and that he 'shall be Commander in Chief of the Army and Navy of the United States.' " Youngstown Sheet & Tube co. et al. v. Sawyer., 96 L.Ed. 1153, 26 A.L.R.2d 1378, 62 Ohio Law Abs. 417 (1952)

Writing for the Court, Justice Black said:
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. . . [w]e cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. 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. [cites to Constitution]

The failure of this Presidential directive lies in broad, over-reaching scope of the Executive Order and the blatant attempt of President Truman to duplicate what FDR had done before him. The government lawyers argued that, the precedent having been established, Truman was justified in continuing the policy of direct intervention and control of private business in order to settle labor disputes. But the Court held that:
. . .[e]ven if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution ' in the Government of the United States, or in any Department or Officer thereof.' The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.

CONCLUSION of PART ONE

Executive Orders are not inherently evil and, subject to the same checks and balances to which the entire federal apparatus is subject, may be used to effectively administer public policy through the administrative agency . History and prudence agree that, absent such controls, administrative rule-making promulgated by executive order is tyranny. It is no less tyranny because some people have not yet felt its sting. The Republic was anchored in the fundamental principles of the Constitution whereby the democratic political process maintained effective control of the rudder. Once the anchor is lost, the great ship of state is bound for shipwreck on the reefs of self-destruction. Part Two will look at the Executive Orders of Presidents Kennedy through Clinton to see how far we have drifted and ponder whether, if it be possible, we may set a truer course.

CONTINUE TO PART TWO


Bibiliography

1. Alan I. Bigel, The Supreme Court on Emergency Powers, Foriegn Affairs, and Protection of Civil Liberties 1935-1975, University Press of America, Lanham, MD, 1986
2. Philip C. Bom, The Coming Century of Commonism, Policy Books, Virginia Beach VA, 1992
3. Robert H. Bork, Slouching towards Gomorah, Harper-Collins, New York, 1996
4. Robert H. Bork, The Tempting of America, Macmillan, Inc., New York, 1990
5. Cathy Duffy, Government Nannies: The Cradle-to-Grave Agenda of Goals 2000 & Outcome-Based Education, Noble Publishing Associates, Gresham, Oregon, (1995)
6. Lawrence M. Friedman, A History of American Law, Simon and Schuster, New York, 1973
7. G. Edward Griffin, The Creature From Jekyll Island, American Opinion Publishing, Inc., Appleton, Wisconsin, Second Ed. 1995.
8. William Norman Grigg, Freedom on The Alter, American Opinion Publishing, Appleton, Wisconsin, 1995
9. Paul Johnson, Modern Times: The World from the Twenties to the Nineties, Harper-Collins, New York, 1991
10. Clinton Rossiter, Ed., The Federalist Papers, Penquin Books, New York, 1961
11. Dr. Eugene Schroder, Constitution: Fact or Fiction, Buffalo Creek Press, Cleburne, Tx, 1995
12. David Schoenbrod, Power Without Responsibility, Yale University Press, New Haven, CN, 1993

Appendix

The chart below gives the reader a quick reference to the historical uses of the Executive Order beginning with Abraham Lincoln.

TABLE ONE

# Name Term Served No. of Orders Subject 16 Lincoln 1861-65 3 Civil War Issues 17 Johnson 1865-69 5 Post War issues, 14th Amendment 18 Grant 1869-77 15 civil service rules, mourning formalities for famous persons 19 Hayes 1877-81 0 20 Garfield 1881 note* Assassinated 5 months into term 21 Arthur 1881-85 2 civil service rules 22 Cleveland 1885-89 5 ceremonial issues 23 Harrison 1889-93 3 Creation of Board of Geographic Names, ceremonial 24 Cleveland 1893-97 56 civil service rules 25 McKinley 1897-1901 61 mostly civil service rules. But, see Note 1 at the bottom of this table. 26 T. Roosevelt 1901-09 865 Mostly civil service and consular rules. But see Note 2 at the bottom of this table. 27 Taft 1909-13 673 Same as above, PLUS special exemptions and apparent abrogation of treaties with respect to Indian lands. See Note 3. 28 Wilson 1913-21 1706 Same as above, PLUS additional applications. See Note 4. 29 Harding 1921-23 504 Same as above. PLUS additional applications. See Note 5. 30 Coolidge 1923-29 1133 Same as above PLUS additional applications. See Note 6. 31 Hoover 1929-33 965 Same as above. See Note 7 32 F.D. Roosevelt 1933-45 Over 3000 Explosive expansion of Executive Orders in both sheer numbers (2055 in first six years) and scope. See Note 8. 33 Truman 1945-53 Details in Part Two 34 Eisenhower 1953-61 35 Kennedy 1961-63 213 36 Johnson 1963-69 323 37 Nixon 1969-74 345 38 Ford 1974-77 168 39 Carter 1977-81 319 40 Reagan 1981-89 380 41 Bush 1989-93 165 42 Clinton 1993-present 281 As of March 25, 1999 NOTE 1: Two notable departures form the normal use of Executive Orders can be found during the Mckinley administration. Executive Order #108-A places the island of Guam under control of the U.S. Navy and Executive Order #116 cancels the general elections in Hawaii and grants authority to elected officers to serve at the pleasure of the President NOTE 2: Huge leap in the use of Executive Orders. # 199-A places public lands on the Island of Midway under the control of the U.S. Navy. #'s 218-220 pertain to land use in Puerto Rico. # 241, and several similar Orders, set aside certain lands for military purposes. Dozens of Executive Orders make specific persons eligible for government appointments without the normal examination process. # 296-A , # 682, # 763, and # 779, set aside certain public land for breeding of native birds. # 362 allows government employees to be removed without a hearing for inefficiency or misconduct in the presence of the president. NOTE 3: Several Executive Orders diminish, revoke, and/or exclude Indian lands or (like #1322) amend existing Executive Order's to make those Indian reservations home to other tribes. (An analysis of the actual public policy reasons for these Orders is beyond the scope of this paper.) NOTE 4: #1999 requires Corporate Income Tax returns to be opened to inspection. # 2011 prohibits "un-neutral" services by radio stations. #2605-A, places all radio stations under the control of the Secretary of the Navy and authorizes the seizure of all stations that may be necessary for naval communications. (Seized stations were ordered returned by Executive Order # 3228) #'s 2619-A, 2621, 2624, 2635 and others, which declare certain specifically-named German vessels as property of the U.S. Government. #2679-A creates the Food Administration to facilitate food conservation and distribution. #2686 set prices for bituminous coal. #2736 directs the Director of the Food Administration (Herbert Hoover) to requisition food, feed, and facilities for any public use connected with the common defense, other than for support of the Army or Navy. # 2970 authorizes transfer of funds allocated to national defense to the Postmaster General for telephone and telegraph control. #2985-A creates the U.S. Housing Corporation under the Secretary of Labor. NOTE 5: Harding died in office, reportedly of pneumonia, although no autopsy was performed. He was suffering from depression over the scandals that rocked his administration. # 3789-A delegates authority vested in president by the Act of July1, 1922, to the Secretary of the Navy. Note 6: Coolidge expanded the use of Executive Order by giving the Navy law enforcement authority regarding the Northern Pacific Halibut fishery and delegated search and seizure authority to certain individuals (#4093). There is also a lot of activity in the creation and re-distribution of lands for military and recreational purposes. NOTE 7: # 5143 prohibits entry of passengers from any port in China, Hong Kong, or the Philippines to prevent epidemic of cerebrospinal meningitis. #5220 implements regulations insuring uniformity of style and form for Executive Orders and Proclamations. Several Executive Orders establishing Public Water Reserves in Western states. NOTE 8: Control of banks (#6080); National emergency in banking (#6102); export of gold prohibited (#6111); Several Executive Orders pertaining to "emergency" employment of various groups of people; establishment of several Executive agencies and approval of numerous administrative codes ; preventing "hoarding" of gold; Regulations implementing the National Industrial Recovery Act; Establishment of National Emergency Council; #6442 Federal Emergency Relief Administrator authorized to take over the control of relief in any State when, in the opinion of the President, more effective cooperation between State and Federal authorities will be secured. #6814 All Silver in the U.S. ordered delivered to the U.S. Mints. #6983 authorization to seize any property needed to carry on any project funded by the Federal Emergency Relief Administrator. #7037 Establishment of the Rural Electrification Administration. #7894 delegates all authority conferred upon the president by the Trading With The Enemy Act of 1917 to the Attorney General.