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.

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.

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

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

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. The key practical question is whether or not to engage in oversight of a

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).

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).

I return to this point in discussing Youngstown at page 6 below.

4Compare 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).

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. § 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).

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.

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.? 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.

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." 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

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 Com

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). 8 See 343 U.S. at 587.

* 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." În 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).

11 See 343 U.S. at 588.

mander-in-Chief Clause provides authority in a context which is not at all near a theater of war. 12

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.

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

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

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

12 See id. at 587.

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.").

16 See id. at 634 (Jackson, J., concurring).

17 See id. at 634-635 (Jackson, J., concurring).

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.").

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).

case in his third category, in which "severe tests" are applied in reviewing the constitutionality of a presidential decision.

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 freefloating theory of inherent executive power that cannot be traced to some discernable constitutional or statutory source.22

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 newlycreated 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

give broad deference to the executive branch in matters relating to foreign affairs and foreign policy.28

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

22 For Justice Jackson's discussion of the inherent powers argument, see id. at 647–655 (Jackson, J., concurring).

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.

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.

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

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.

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

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.

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.

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."). 315 U.S. (1 Čranch) 137 (1803).

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).

93 For a case exemplifying the ambiguities that can surround statutory interpretation in this context, see AFL-CIÒ 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).