[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.
---------------------------------------------------------------------------
    \1\ See, e.g., U.S. Const. Art. I, sec. 8.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \4\ For the classic exposition of this view, see Youngstown Sheet & 
Tube, 343 U.S. at 634-55 (Jackson, J., concurring).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ See Terry Moe & William Howell, The Presidential Power of 
Unilateral Action, 15 J.L. Econ. & Org. 132 (1999).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \9\ 3 Stat. 567, 568 (March 2, 1861).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
                                  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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    ``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\
---------------------------------------------------------------------------
    \13\ 1 Stat. 112, 115, 1st Cong., 2d Sess. (April 30, 1790).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \14\ See II Joseph Story, Commentaries on the Constitution, paras. 
794-802 (1833).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
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.]

                                
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