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, ratheruntil 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 Con

gress. 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, 17891983.

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