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 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 Reg

ister, 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 prepromulgation 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 reinstituted, 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 Execu

tive 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 preempted 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 procla

mations, 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 en

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gages in oversight power. This is widely recognized in the lit

erature.

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 codirect 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.