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Since an Executive Order is an act of the President himself, the President makes the final decision as to classification, though a recommendation as to classification is made by the agency where the suggestion and draft of the Executive Order is originated. The President may declassify an Executive Order or authorize declassification by someone else. For example, Executive Order 9153-A had its confidential status released by a letter of the Secretary of War dated June 27, 1946. The order itself had stated that it should "not be made public in any other manner except upon prior authorization by the Secretary of War."

Other examples of classified Executive Orders are Executive Order 10026-A dated January 5, 1949; Executive Order 10369-A dated July 1, 1952; and Executive Order 10571-A, dated Octover 26, 1954. These three classified Executive Orders were uncovered in a limited survey by the House Committee on Government Operations in 1957 and are listed on page 40 of its Committee Print entitled, Executive Orders and Proclamations, 1957.

Original copies of all unclassified Executive Orders are now kept at the National Archives, but of the three confidential orders mentioned above the original of Executive Order 10026-A is in the custody of the Department of State, that of Executive Order 10369-A is in the White House files, and that of Executive Order 10571-A is kept by the Department of Defense.

It would appear that confidential Executive Orders issued now would be governed by Executive Order 11652 of March 8, 1972 which prescribes regulations for the classification of public documents.

II. Legal Basis for Executive Orders.

A. Constitution

Under the Constitution of the United States, the President is vested

with the Executive power of the Government (Article II, Section 1 Clause 1). He is granted the power to preserve, protect and defend the Constitution of the United States of America (Article II, Section 1, Clause 8). He is made the Commander-in-Chief of the Army and Navy of the United States (Article II, Section 2, Clause 1). He is granted the power to see that the laws are faithfully executed (Article II, Section 3). From these powers is implied the authority to issue Executive Orders.

B. Federal Statutes.

There is no law or even Executive Order which attempts to define the term "Executive Order." The statutes which specifically relate to Executive Orders are concerned primarily with matters of publication, notice,

and evidence.

The growth in use of Executive Orders and agency regulations in the early day of the "New Deal Era" gave a tremendous impetus to the movement for having a central publication of Presidential and agency-made law. President Roosevelt had issued 674 Executive Orders in the 15 months immediately following March 4, 1933. In one instance, even the United States Government itself had to ask the Supreme Court to dismiss an appeal by the Government based on a regulation which no longer existed. This chaos helped

to bring about the passage of the Federal Register Act (44 U. S. C. 1501, et. seq.) This Act requires the publication of specified documents in a serial publication (including Executive Orders) designated the "Federal Register". Publication of the daily issues began on March 14, 1936.

There are numerous provisions in the United States Code which grant the President power to issue Executive Orders under a specific act or

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for a specific purpose. An example of such provisions is 5 U.S. C. 3323a, which grants the President when in his judgement the public interest so requires, the power to exempt by Executive Order a civil service employment from the mandatory retirement age.

C. Executive Orders.

President Franklin Roosevelt, in order to provide some uniformity

in the issuance and publication of Executive Orders issued Executive Order 7298 to be effective on March 12, 1936. This Executive Order prescribed the manner of preparing proposed Executive Orders and proclamations. Executive Order 7298 was superseded by Executive Order 10006 on October 1, 1948 and the latter by Executive Order 11030, issued by President Kennedy on June 19, 19, 1962. It is entitled "Preparation, Presentation, Filing, and Publication of Executive Orders and Proclamations.

D. Others.

As stated earlier in this report the United National Charter has been cited as authority for issuance of Executive Orders. President Truman issued Executive Order 10422 dated January 3, 1953.

III. Highlights of Legal Developments Affecting the Use of Executive Orders. The nature and limitations of Executive power have been a matter of controversy from the very beginning of our nation. Some of these controversies have involved Executive Orders.

Even Chief Executives have differed in the use of such powers:

President Theodore Roosevelt stated his views of the Presidential office as follows:

***I decline to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the

needs of the Nation demanded unless such action was forbidden by the Constitution or by the law. Under this interpretation of Executive power I did and caused to be done many things not previously done by the President and the heads of the Departments. I did not usurp powers, but I did greatly broaden the use of Executive power. *** (quoted in Rankin M. Gibson, the President's Inherent Emergency Powers in 12 Federal Bar Journal p. 113)

President Franklin D. Roosevelt expressed himself even more strongly along the same lines as follows:

"In the event that Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act..." (Rankin M. Gibson, op. cit., p. 114).

In contrast, President William H. Taft expressed his views on the Presidential office in these words:

***that a President can exercise no power which cannot fairly and reasonably be traced to some specific grant of power, or justly implied and included within such grant of power and necessary to its exercise. Such specific grants must be either in the Federal Constitution, or in any act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest. (Rankin M. Gibson, op. cit., pp 113.)

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The validity of Executive Orders has been questioned many times, but a ruling as to the extent or limit to which they may be used has never been determined by the Judiciary or by the Congress.

The order of President Truman, Executive Order 10340 dated April 8, 1952, which seized the steel industry was held by the Supreme Court to be without Constitutional or Congressional authority and therefore could not stand. [Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. C. 579 (1952).] The power sought to be exercised under it was a lawmaking power which the United States Constitution vests in Congress alone.

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"Nor," said the Court (p. 587), can the seizure order be sustained because of the several Constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is

to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.

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Justice Frankfurter, in his concurring opinion (p. 613), quoted a statement made by Justice Brandeis in Myer v. United States, 272 U. S. 293

(1926), that:

"The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.

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The Court, it seems, refused to recognize the "inherent powers" or "aggregate powers" doctrines as a basis of the claimed power of the President to seize private property in time of emergency.

Most of the Supreme Court cases in which Executive Orders are involved are concerned with the question of actions taken under an Order and not the Constitutionality of the Order itself. However, references to the President's power have been made, by way of dicta, in a few cases which are quoted below:

Peters v. Hobby, 349 U. S. 331, 349 (1944), involved the Loyalty Review Board's action under Executive Order 9835. The Court stated that the constitutionality of the Order did not come into issue, but Mr. Justice Black, in his concurring opinion, made the following pertinent statement (p. 349):

...I agree that it is generally better for this Court not to decide constitutional questions in cases which can be adequately disposed of on non-constitutional grounds. . . [but here] I think it would be better judicial practice to reach and decide the constitutional issues, although I agree with the Court that the Presidential Order can justifiably be construed as denying the Loyalty Review Board the power exercised in this case. . . . But I wish it distinctly understood that I have grave doubt as to whether the Presidential Order has been authorized by any Act of Congress. That order and others associated with it embody a broad

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