Hearing of the
Subcommittee on Legislative and Budget Process

The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?

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TESTIMONY | TRANSCRIPT

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TIME: 10:00 AM

ROOM: H-313 The Capitol

WITNESSES

Panel 1:

Panel 2:

Panel 3:

PURPOSE OF THE HEARING

The purpose of this hearing is to review the process, guidelines and legal authorities of executive orders and assess their impact on the legislative process. Given the size and scope of the federal government, their use has at times also had significant policy implications for all citizens, raising the specter of "executive lawmaking." This hearing is designed to review an important and infrequently considered area of Executive/Congressional relations to raise awareness and promote vigilance and active oversight by the committees of Congress.

Executive orders by this (and any President) can have significant policy implications and can encroach upon the lawmaking authority of the Congress. Congressional action to guard against this trend is constrained by the separation of powers – but greater awareness and understanding of the process in Congress and greater transparency for the public is an important defense of the proper balance between the branches.

Because there is broad discretion for the President, because the ability to issue an executive order confers enormous, unilateral power to the President, and because the federal government has grown so dramatically in recent decades – Congress has a continuing obligation to remain vigilant and ensure that its institutional prerogatives and the legislative process are not diminished or ignored. In addition, Congress has a role in making sure that there is public awareness of (to ensure accountability for) policies implemented through executive orders. This is an important area of oversight for the committees of Congress.

BACKGROUND

Article I of the Constitution states that "All legislative powers herein granted shall be vested in a Congress of the United States" while Article II states that "the executive power shall be vested in a President of the United States." The power of the Presidency was further defined to include the role of "Commander in Chief of the Army and Navy of the United States" and empowerment to "take care that the laws be faithfully executed." The distinction between the authorities of the executive and legislative branches of our three-branch system of government has in practice, however, proven to be less clear-cut than the language of the Framers suggested. The issuance of executive orders, proclamations and directives by the President is a practice not specifically enumerated in the Constitution, although it has been generally identified as flowing from the authorities vested in the President by Article II.

The practice of using executive orders to set policy has evolved over the years and is currently governed by principles that have been established by precedent, oversight by Congress and the public, and intervention by the courts. It is generally accepted that, where executive orders have been based upon appropriate constitutional or statutory authority, they have the force and effect of law.

Most experts cite as the origin of the executive order a directive issued by President George Washington on June 8, 1789 compelling a report from the holdover Confederation government. The number of executive orders issued by Presidents has grown significantly since that time. While the current system of numbering such orders did not begin until 1907, a review of Presidential directives by CRS concludes that prior to President Grant, no President issued more than 80 orders. By contrast, in the latter half of this century Presidents have routinely issued several hundred executive orders. A watershed era occurred during the presidency of Franklin Delano Roosevelt, who issued more than 3500 executive orders during his 12 years in office. Traditionally, newly elected Presidents have issued a series of executive orders at the outset of their terms, implementing management policies and setting guidelines.

Since June of 1962, procedures for preparation, presentation and filing of executive orders have been governed by Executive Order 11030, issued by President Kennedy. In the Administrative Procedures Act of 1946, Congress mandated that the number and text of all executive orders must be published in the Federal Register, with an exception only for those directives that are classified due to national security content. The Office of Federal Register at the National Archives is responsible for maintaining original copies and the final publication of executive orders, and currently this information is publicly available on the Internet at the Archives site www.nara.gov.

The underlying authority for issuance of specific executive orders is derived from the Constitution or from statute. As explained in Congressional Quarterly's "Guide to the Presidency" (1989) the power of the President goes beyond those authorities actually enumerated in the Constitution.

"‘Express' powers – those specifically named in the Constitution – like the veto give presidents a limited set of tools for shaping legislation. But powers implied in the Constitution, and given substance by years of continuous reinterpretation, are the source of the president's ability to act alone, often without specific congressional statute. . . An offspring of the implied powers doctrine is the executive order. This critical instrument of active presidential power is nowhere defined in the Constitution but generally is construed as a presidential directive that becomes law without prior congressional approval. It is based either on existing statutes or on the president's other constitutional responsibilities. Executive orders usually pertain specifically to government agencies and officials, but their effects often reach to the average citizen."

In certain instances since the practice began, Congress has taken action in response to executive orders, frequently to sanction by ensuing statute the policy implemented by an executive order or, on occasions involving controversial matters, to seek to withhold funding for the implementation of an executive order. The options available to Congress in the face of an executive order it opposes are constrained by the nature of a system that requires legislation emerging from the Congress to be signed or allowed to become law by the President. The Congress may seek to nullify, repeal, revoke, terminate or de-fund an executive order, but each such action requires the eventual concurrence of the President (most likely the same President that issued the order in the first place).

The Congress may also seek to repeal the underlying statutory authority upon which a particular executive order was based. If the underlying statute is repealed, any ensuing executive order based upon that law is no longer valid. Another tool available to the Congress is to seek to implement a sunset or termination date for statutory authority upon which an executive order is based. In this way, when the sunset date is reached, it is up to Congress to determine whether to renew the provision or let it die. A major tool in the arsenal of the Congress with regard to executive orders lies in the power of the purse. Congress may withhold funds for the implementation of an executive order, thereby directly challenging the President's ability to put in place a particular policy.

On the other hand, in instances where the President issues an executive order that Congress does not oppose, but rather Congress wishes to exert its legislative authority in that area, Congress may seek by statute to sanction the action taken by the President. Similarly, the Congress may wish to sanction portions of an executive order, modify others and repeal others. Congress has the option, through the legislative process, of imposing its own stamp on a policy area staked out by executive order.

In his book, Constitutional Conflicts Between Congress and the President (Fourth Edition, Revised, University Press of Kansas, 1997), Louis Fisher outlines the tensions that exist between the legislative and executive branches when it comes to the practical application of the legislative power:

"The ambiguity of ‘enumerated' and ‘separated' powers is nowhere more evident than in the assignment of the legislative power. Much of the original legislative power vested in Congress is now exercised, as a practical matter, by executive agencies, independent commissions, and the courts. The President's legislative power, invoked on rare occasions in the early decades, is now discharged on a regular basis throughout the year in the form of executive orders, proclamations, and other instruments of executive lawmaking. In self-defense, Congress has developed a complex system that depends on procedural guidelines for agency action, judicial review, committee and subcommittee oversight, and a constantly evolving structure of informal, nonstatutory controls." (Page 118)

Remedy also exists in the judicial branch, in instances where the legitimacy of an executive order is challenged. There have been, however, only two occasions – once in 1952 and once in 1996 – when executive orders were struck down by the courts.

In a seminal case on this issue, the Supreme Court in Youngstown Sheet & Tube Co. v Sawyer (1952) found that President Truman had, in seizing most of the nation's steel mills in an effort to end a labor dispute stalemate, exceeded his authority under the Constitution or statute. The Court found that an executive order must be based either on an act of Congress or directly on the Constitution itself. In an important concurring opinion, Justice Jackson established a framework for assessment of executive orders, which includes three "tests" to determine the legitimacy of such an order. That opinion reads, in part:

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. . .

    

3. "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the entire matter. . ."

RECENT CONTROVERSIES

In recent years, President Clinton has clashed with the Congress and other entities over several high-profile executive orders. Among these cases was the issue of striker replacements, in which the President first sought legislative action to prevent the permanent replacement of striking workers. When the Congress refused to send him legislation making this change by statute, the President issued Executive Order 12954 to make it the policy of the executive branch not to contract with any employers that permanently replace striking workers. In response, the Congress attempted to pass legislation to prohibit the Labor Department from enforcing E.O. 12954. The legislative standoff on this issue was superseded by a court challenge, which resulted in an appellate court ruling that an existing statute, the National Labor Relations Act, preempted the executive order. The Administration declined to appeal this ruling.

A second case involved a decision by President Clinton to issue a proclamation establishing the Grand Staircase-Escalante National Monument in Utah. This action designated approximately 1.7 million acres of land as wilderness area. In response, legislation was introduced in Congress to limit future presidential actions with regard to national monuments. This legislation has not yet completed the legislative process.

A third case, one that has received a great deal of public attention, involved an effort by President Clinton to revise an executive order on federalism that had been in force since the presidency of Ronald Reagan. In issuing E.O. 13083, President Clinton sought to establish nine principles of federalism to be followed by executive departments and agencies in justifying federal intervention or preemption of state or local authority. Seven major organizations representing the nation's governors, cities and state legislatures mounted opposition to the new order and won a seat at the table to develop a rewrite by the Administration. In addition, the Congress moved to cut off funding for implementation of the new order. The Administration ultimately withdrew E.O. 13083 and subsequently issued a revised federalism order.

 

LEGISLATIVE OUTLOOK

In the 106th Congress, several legislative proposals have been introduced by members seeking to re-assert the authorities of Congress in response to broad use of the executive order by modern presidents.

 

• Expresses the sense of Congress that any executive order that infringes upon the powers and duties of the Congress or that would require the expenditure of federal funds not specifically appropriated for that purpose is advisory only and does not have force or effect unless enacted as law

• H.R. 2655 – introduced on July 30, 1999 by Mr. Paul (TX)

  Seeks to "restore the separation of powers." Includes s series of findings; repeals the War Powers Resolution; terminates existing states of national emergency; terminates the President's authority to declare emergency; requires a statement of authority to accompany presidential orders; limits the effect of presidential orders; and confers legal standing to challenge presidential orders to Members of Congress, state and local governments and any aggrieved person.

The House Judiciary's Subcommittee on Commercial and Administrative Law has scheduled a legislative hearing on both proposals for October 28, 1999.

House Committee on Rules
H-312 The Capitol
Washington, DC 20515
202-225-9091

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