STATEMENT OF BRUCE FEIN
ON EXECUTIVE ORDERS
BEFORE THE HOUSE JUDICIARY SUBCOMMITTEE
ON COMMERCIAL AND ADMINISTRATIVE LAW
MARCH 22, 2001
Mr. Chairman and Members of the Subcommittee,
I am grateful for the opportunity to present legal and prudential views about presidential executive orders and various congressional options that might fortify the outstanding deterrents against abuses. Executive orders are of two types. Some find justification in the constitutional powers of the President. For instance, the pardon power and the amnesties proclaimed by Presidents Ford and Carter for Vietnam era draftevaders and deserters. The President also enjoys inherent national security powers. Thus, President Roosevelt proclaimed the odious executive orders for Japanese American concentration camps during World War II, which were sustained by the Supreme Court in the Hirabayashi and Korematsu decisions. President Truman created Loyalty Review Boards in 1947 by executive order. The entire system of classifying executive branch documents rests on an executive order. The international trade predecessor to the WTO, GATT, was a unilateral executive agreement made by President Truman in the wake of a congressional failure to ratify an international trade treaty. Executive orders pivoting on the President's claimed constitutional authority, however, are not beyond judicial review. The Supreme Court thus
invalidated President Truman's seizure of a steel mill during the Korean War in the Youngstown Sheet & Tube case. The High Court also upended President Lincoln's claimed authority to conduct military trials of civilians during the Civil War when civil courts were open and functioning in Ex Parte Milligan. Moreover, the Supreme Court has held that the President must obey outstanding executive orders, even when bottomed on the Constitution, until they are revoked. Additionally, Justice Robert Jackson's concurring opinion in Youngstown suggests that the Court will be less inclined to bless a claim of inherent presidential power if Congress acts directly against the assertion by statute than if it is either neutral or supportive. Finally, Congress is empowered to conduct oversight hearings of constitutional executive orders to explore either the need for a constitutional amendment or to inform the public of suspected abuses so voters may adjust their political loyalties accordingly, as illustrated by the congressional hearings reviewing President Clinton's less than exhilarating sayonara pardons.
Executive orders may also find justification in statutes, i.e., where Congress has delegated power to the President which he may exercise within the boundaries of the delegation. The President, for instance, adjusts federal civilian pay by executive order bottomed on a federal law. The President similarly administers the Helms-Burton law imposinig an embargo on Cuba by executive order. Ditto for the Antiquities Act of 1906. And the President by virtue of federal law is empowered by executive order to set standards for government contractors in furtherance of efficiency and cost savings. That is the foundation for the lengthy "affirmative action" executive order applicable to government contractors that originated with President Kennedy in 1961.
Executive orders that purport to rest on statutes can be customarily checked in three ways. The judiciary may hold them beyond the power delegated by Congress, as the U.S. Court of Appeals for the District of Columbia Circuit did in invalidating President Clinton's attempt to boycott government contractors who used permanent replacements to supplant striking employees. Congress by statute may override an executive order, as it did in part in requiring the public disclosure of classified information that the judiciary finds has been erroneously classified under the Freedom of Information Act. And, a succeeding president may revoke executive orders of his predecessors, except for the possibility that the congressional delegation foreclosed such second-guessing, which might plausibly be the case for reservations of public lands for some specific use and a revocation might wreak havoc on the status quo.
In my view, nothing in recent history makes executive orders more or less worrisome. They should be examined on a case-by-case basis to determine whether they make for enlightened public policy. Controversial orders are ordinarily more questions of politics than of law. Let me suggest, nevertheless, areas for congressional exploration which might strengthen institutional checks against misuse of executive orders. With respect to presidential pardons, Congress might consider obligating the President to receive the views of the Attorney General and the Director of the FBI before making a decision. It might further require the President to desist from issuing a pardon unless the name of the individual under consideration had been published in the Federal Register at least two weeks before the decision, (absent a national security certification of a need for secrecy).
With respect to national security executive orders, Congress might consider an internal rule that brings them to a floor vote for approval or disapproval if 20 percent of the Members so demand (with no filibustering in the Senate) to put the legislature on record in case of litigation challenging their constitutionality, as Justice Jackson's concurrence advises in Youngstown. With respect to statutory executive orders, Congress might consider subjecting them to the notice and rule making requirements of the Administrative Procedure Act unless an express statutory exemption is created. It might also expressly stipulate that executive orders are subject to judicial review, absent a clear statutory exception, and that the judiciary should review such orders de novo with no special or other deference to the President, thus displacing the customary deferential Chevron standard announced by the Supreme Court in 1984.
Finally, Congress might consider requiring a 90 or 120 day delay in the effective date of statutory executive orders to permit a reasonable time for
it to thwart the action by new legislation, which, of course, would itself be subject to a veto.
As is true with all power, executive orders can be abused. The challenge of the congressional statesman is to discover that prudential
blend of restraints and discretion that over the course of time will best advance our nation's ideals and aspirations.