tional or statutory authority, and they are not used to subvert the legislative process or implement policies that are not in the public

interest.

So let me say that I appreciate the time and effort that has gone into this hearing by Chairman Goss and staff and to the witnesses who have taken time to prepare their thoughts on this very important issue, and I express my appreciation also.

Thank you, Mr. Chairman.

[The statement of Mr. Dreier follows:]

PREPARED STATEMENT OF THE HONORABLE DAVID DREIER, A REPRESENTATIVE IN CONGRESS FROM CALIFORNIA

At the urging of Speaker Hastert, House committees have been expanding their programmatic oversight activities to ensure that the Executive Branch is properly implementing the public policies enacted by Congress. Executive Orders are a significant, yet less frequently examined, tool for carrying out legislative intent.

This hearing is not intended for focus on one particular Executive Order but to shine light on the whole practice and to better understand its implications for Executive Branch and Legislative Branch relations.

The President's executive order authority is not something we have an interest in undermining. And this hearing is not focused on the actions of just one President. We, do, however, want to make sure that Executive Orders continue to be written with the appropriate constitutional or statutory authority, and that they are not used to subvert the legislative process, or to implement policies that are not in the public interest.

Mr. Goss. Thank you, Mr. Chairman.

I again in the absence of the ranking member at this time, I am going to directly to the panel. I do want to bring to the attention of members who are here and I am grateful for the participation of Judge Pryce and Doc Hastings from Washington-that the staff has done really excellent background work on this, and I would recommend, if you have the opportunity to go through the materials that have been provided, at your leisure, there is quite a wealth of very provocative subject matter.

Sometimes we talk about the activist court and deal with that issue and the separation of powers in the three branches. Now we are talking about the other two players today. That doesn't mean we have to suspend from our minds the activist court. We would never want to do that. But I think it is sort of in that atmosphere that we are looking for balance, as the chairman has said.

With that, we look forward to the expert testimony ahead. Mr. DREIER. They have some statements they want to submit for the record.

Mr. Goss. I am sorry. We would be very happy to hear them.
Would you like to make the statements publicly?

Ms. PRYCE. I don't care to. I will just submit it.

Mr. Goss. Without objection, Judge Pryce's statement will be accepted for the record and Doc Hastings' will be submitted for the record.

[The statement of Ms. Pryce follows:]

PREPARED STATEMENT OF THE HONORABLE DEBORAH PRYCE, A REPRESENTATIVE IN CONGRESS FROM OHIO, MEMBER OF THE SUBCOMMITTEE ON LEGISLATIVE AND BUDGET PROCESS

Mr. Chairman, thank you for holding today's hearing on the power of the president to establish policy through executive order. As the use of executive orders becomes more prevalent and the policy they establish has a more tangible impact on the lives of the people we represent, I think it is appropriate for Congress to exam

ine the process by which these orders are developed and whether the legislature's lawmaking responsibility is being encroached.

Judging by my constituent mail, I think it is fair to say that the public awareness of the power of executive order has increased, and Congress should be able to explain to the public why the President is establishing policy without congressional approval. We have a responsibility to ensure transparency of the process by which executive orders are established and respond when the executive branch oversteps its constitutional or statutory authority.

This can be accomplished, in part, through vigilant congressional oversight in any effort to preserve a balance of power and protect our legislative prerogative. In doing so, we will protect the power of the people we represent, to whom we are accountable. I think this hearing is an important first step in that process.

So, I thank Chairman Goss, again, for holding this hearing, and I look forward to the testimony of our witnesses who have given much more thought to this subject than I or many of my colleagues. I appreciate the time you all are taking to share your knowledge with us this morning.

Mr. Goss. Do you wish to speak?

Mr. HASTINGS. No. I will wait for the questions.

I will just say, though, Mr. Chairman, that I concur with you about the documents that were given to our offices from the staff. I think they were very enlightening for me as I was reviewing that, so I look forward to the testimony of our witnesses, and hopefully that will-I am sure it will spark some more thoughts in my mind and questions.

So thank you, Mr. Chairman.

Mr. Goss. Thank you. We will begin with the first panel and please excuse the designation of the panel. We recognize you are all individuals. We have grouped the thought, we hope, into the three panels in order to provide ourselves the opportunity for appropriate questioning at the appropriate beaks.

I believe Mr. Cox is going to start, to be followed by Mr. Kinkopf, Mr. Bedell, Mr. Sargentich, in that order.

STATEMENTS OF DOUGLAS COX, PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, 1992-1993, AND PARTNER, GIBSON, DUNN & CRUTCHER LLP; NEIL KINKOPF, SPECIAL ASSISTANT, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, 1993-1997, AND PROFESSOR OF LAW, GEORGIA STATE UNIVERSITY; ROBERT BEDELL, ADMINISTRATOR, OFFICE OF FEDERAL PROCUREMENT POLICY, OFFICE OF MANAGEMENT AND BUDGET, 1986-1988, DEPUTY AND ACTING ADMINISTRATOR, OFFICE OF INFORMATION & REGULATORY AFFAIRS, 1983-1986, DEPUTY AND ACTING GENERAL COUNSEL, 1973-1983; AND PRESIDENT, RPB COMPANY; AND TOM SARGENTICH, SENIOR ATTORNEY ADVISER, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, 1978-1983, AND PROFESSOR OF CONSTITUTIONAL AND ADMINISTRATIVE LAW, WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY

Mr. Goss. If that's agreeable with you, Mr. Cox, the floor is yours.

STATEMENT OF DOUGLAS COX

Mr. Cox. Thank you, Chairman Goss, for inviting me to testify today on the important topic of executive orders. Rather than repeat my written testimony, with your permission, I will underscore a few key points regarding the role of executive orders in our con

stitutional system and the tools available to Congress to respond to unlawful executive orders in defense of its own constitutional powers.

The President does not have broad authority to issue executive orders, to guide and control the work of the executive branch. As the Supreme Court recognized in the Steel Seizure case, that authority flows from the Constitution itself and also from statutes. Although executive orders are not explicitly mentioned in the Constitution, the authority to direct the executive branch is inherent in the President's role as the head of a unitary executive branch. That authority is also found in the President's duty to take care that the laws are faithfully executed, in the appointments clause, in the commander-in-chief clause, and in other clauses of the Constitution.

In addition, Congress often grants the President statutory authority to issue executive orders, either expressly or by granting the President significant discretion in implementing the statutory scheme.

Whether the President grounds an executive order on the Constitution or on a statute, it is vitally important to the Nation that the executive power be exercised forcefully and consistently and that the chief executive's lawful policy preferences be carried out by subordinates within the executive branch. There is, thus, nothing suspect about executive orders, per se. They offer a valid mechanism for the President to direct and control the executive branch, and the vast majority of executive orders attract little attention or controversy.

Broad as the President's power is, it is, of course, subject to limitations. It is limited by the Constitution and the principle of separation of powers that is embodied in the Constitution. It is often limited by statutes that grant the President only a narrow discretion, and the President's exercise of the power may in certain circumstances be subject to judicial review.

The President's power may be abused, as all government powers may be abused. The threat of abuse may be particularly high when Congress and the executive branch are controlled by different parties. The Framers assumed that each of the political branches would seek to maximize its power and believed that the resulting struggle between the branches would help guarantee liberty.

Certainly when administration officials announce that they intend to adopt sweeping executive orders designed to circumvent Congress, Congress must be vigilant in order to protect its own powers and the constitutional plan. Congress may control executive orders based on statutory authority in a number of ways.

First, Congress can respond to a particular executive order by enacting a contrary statute. In such cases, the statute would control and the executive order would be invalid.

Second, Congress can create general mechanisms to increase congressional oversight of executive orders. For example, Congress could, by legislation, require that any statute-based executive order be submitted to Congress 30 days before it goes into effect so as to enable Congress to consider whether a legislative response is

necessary.

Third, Congress can restrain the President's statutory authority by writing narrower, more precise laws. To given one example, Presidents of both parties have found in the broad purposes of the Federal Procurement Act convenient justification for a range of sweeping executive orders. Those executive orders do not necessarily change the legal rights and obligations of anyone outside the executive branch, but to the extent that offer an incentive, amounting nearly to compulsion to the very large number of companies that wish to contract with the Federal Government, such executive orders greatly extend the reach of the President's authority beyond the executive branch and into private companies across the Nation.

Congress could narrow the President's discretion under the Federal Procurement Act by amending the act to preclude such efforts to influence the internal policies to private companies seeking to qualify as Federal contractors.

And, of course, Congress can use any of its usual powers of political persuasion-oversight hearings, confirmation holds and many other forms of legislative pressure short of legislation-in order to convince the President to drop or redraft an abusive executive order.

But just as there are limits on the President's power to issue executive orders, there are limits on the ability of Congress to rein in the President's exercise of his constitutional powers. There is a core of constitutional authority given to the President that cannot be reached by legislation. Congress, in considering how to respond to the threat of abusive executive orders, must thus proceed with caution. When a President abuses his constitutional authority, Congress has an obligation to respond. Congress has ample constitutional means, including its political tools, to respond to lawless executive orders. Thus, Congress need not resort to assertions to legislative authority that would themselves raise serious constitutional problems.

Thank you, Mr. Chairman.

Mr. Goss. Thank you very much, Mr. Cox.

[The statement of Mr. Cox follows:]

PREPARED STATEMENT OF DOUGLAS R. Cox

Thank you, Chairman Goss, for inviting my submission on the important subject of the impact of executive orders on the legislative process. The specific questions I will address are the role of executive orders within our constitutional system, and the tools available for Congress to respond to executive orders.

I. EXECUTIVE ORDERS

As an initial matter, it is important to recognize that the President has broad authority to issue executive orders, to guide and control the functioning of the executive branch. As the Supreme Court recognized in the steel seizure case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952), the President's executive order has two potential sources: The Constitution, and Federal statutes.

Although executive orders are not explicitly mentioned in the Constitution, the authority to direct the executive branch is inherent in the President's constitutional role as the head of a unitary executive branch. That authority is also a necessary part of the President's power to perform his constitutional duty to "take care that the laws be faithfully executed." Article II, section 3.

Some executive orders may also be rooted in other clauses of the Constitution, such as the appointments clause and the commander-in-chief clause. President Truman based Executive Order 9981, ordering the desegregation of the armed forces, on his commander-in-chief powers.

Congress itself often grants the President additional authority to issue executive orders, either expressly or by granting him significant discretion in executing the laws. When Congress grants the President substantial discretion, executive orders provide an appropriate mechanism for the President to inform his subordinates within the executive branch as to the way in which that discretion is to be exercised.

For example, 22 U.S.C. § 287c explicitly contemplates that the President will issue executive orders to give effect to United Nations Security Council resolutions. It is a very generous grant of discretion, and authorizes the President, among other things, to "investigate, regulate, or prohibit, in whole or in part, economic relations or rail, sea, air, postal, telegraphic, radio, and other means of communication between any foreign country or any national thereof or any person therein and the United States. 22 U.S.C. § 287c(a).

Similarly, 40 U.S.C. §471 et seq., the Federal property and Administrative Services Act, specifically authorizes the President to issue policies and directives "as he shall deem necessary to effectuate the provisions" of the act. 40 U.S.C.

§ 486. The act's general purpose of furthering the "economic and efficient" performance of the Federal Government's procurement functions may plausibly support a wide range of presidential policies. And as an historical matter, Presidents have frequently relied on the act to justify executive orders.

The President, in issuing an executive order based on a statute, is engaging in a process similar to administrative rulemaking: Both processes require and permit executive branch officials to exercise discretion within the statutory framework created by Congress. The concept of "chevron deference" to rulemaking by Cabinet departments is a familiar one. But it is also an acknowledgment of Presidential discretion in the interpretation of very many statutes. Although rulemaking differs from executive orders in many ways chiefly by being subject to the procedural requirements of the Administrative Procedure Act-the concept of executive branch discretion that is uncontroversial in the rulemaking setting should not be dramatically more controversial in the highly similar context of executive orders.

Whether the President is relying on his constitutional powers or on statutory authority, it is vitally important to the Nation that the executive power be exercised forcefully and consistently, and that the Chief Executive's lawful policy preferences be carries out by his subordinates within the executive branch. Executive orders are binding on officials within the executive branch.

Presidents have exercised their authority to issue executive orders throughout our history. President Washington, for example, issued directives that today would be classified as executive orders, using them to manage the business of the executive branch in such areas as prosecutorial_priorities, and harmonizing the public positions of the Cabinet departments. Subsequent Presidents, including President Adams and President Jefferson, followed suit. By tradition, the distinction of issuing executive order number one is awarded to President Lincoln, although in fact the practice of numbering executive orders did not arise until this century.

The historical practice is significant in this instance because it gives content to "the executive power" granted to the President by the Constitution. As Justice Frankfurter stated in his concurrence in the steel seizure case, “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution. may be treated as a gloss on 'executive power' vested in the President by § 1 of art. II." 343 U.S. at 610-11 (Frankfurter, J., concurring).

Broad as the President's powers are, they are plainly not unlimited. They are limited by the Constitution's text; they are limited by the principle of separation of powers embodies in the Constitution; they are limited by the non-delegation doctrine; and they are often limited by statutory terms that grant the President only a narrow discretion.

In recent decades, Presidents have relied on the Attorney General to review and approve proposed executive orders. Executive order 11,030 issued in 1962 and which continues (as amended) to govern the form of executive orders and the procedures to be followed in issuing executive orders, provides that the Attorney General is to review proposed executive orders for "form and legality."

The Attorney General still performs that function in certain exceptional cases: Attorney General Civiletti, for example chose to approve President Carter's executive orders for dealing with the Iranian hostage crisis in an opinion over his own signature. 4a Op. Off. L. C. 302 (1981). But the Attorney General has formally delegated the responsibility to approve executive orders to the Justice Department's Office of Legal Counsel ("OLC"), in which I was privileged to serve during the administrations of President Reagan and President Bush.