Intelligence Law School - Course 1: Lesson 5.3.1 Presidential Rules Generally [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.3 Presidential Rules


5.3.1 Presidential Rules Generally


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5.3.1 Presidential Rules Generally

5.3.1.1 Application of the APA Framework to Presidential “Rules”

That does it for agency rules generally—as understood in almost all federal agencies outside the U.S. Intelligence Community.

 

Next, I’m going to follow this up by talking about Presidential “Rules” generally—as they’re understood the vast majority of the time outside of the intelligence law context.

 

But first, I need to give a quick clarification.

I call them Presidential “Rules,” but they’re not technically “rules.”

The APA doesn’t apply to the President himself,[1] or to Congress or the Courts.

The APA’s definitions apply only to “agencies,” and the President is not an “agency” for purposes of the APA.[2]

Just about everyone below the President in the Executive Branch qualifies as an “agency,” but not the President himself.[3]

 

I’m telling you this because I’m still going to be applying the APA’s “rule” framework to Presidential directives, but they’re not technically “rules” in the strict sense because the APA’s definition of “rule” defines it as being promulgated by an “agency.”

Since the President is not an “agency” his directives are not technically “rules” under that statute’s definition.

Still, I think it makes it much easier to keep all administrative law within the same basic framework of the APA, so I’ll be calling Presidential documents “rules” because that’s what they’d be called if they’d been promulgated by an agency.

I’m keeping it all in the same framework.

 

5.3.1.2 Presidential Rulemaking Generally

So, Article II designates the President as the Chief Executive—head of the Executive Branch of the federal government.

Congress passes quite a few laws and it is the President’s responsibility to see that they are all faithfully executed.

He can’t do it all by himself, so Congress has created a massive bureaucracy within the Executive Branch to help him get everything done.

As Chief Executive, the President has to exercise administrative control over the agencies charged with fulfilling the Executive Branch’s many duties.

He issues both legislative and non-legislative rules that instruct subordinate officers how to execute their administrative responsibilities.

 

The Constitution doesn’t explicitly give the President this power to issue administrative rules, but it’s recognized as an implied power flowing from his duties as Chief Executive.[4]

Ø  The Vesting Clause: Specifically, the vesting clause of Article II, Section 1 that says “the executive power shall be vested in a President of the United States…”[5]

Ø  Take Care Clause: And the Take Care Clause in Article II, Section 3 requires that the President “take care that the laws be faithfully executed.”[6]

 

Those are the two main constitutional powers in Article II that give the President a general non-legislative rulemaking authority with respect to internal management of the Executive Branch.[7]

 

5.3.1.3 Three Main Types of Presidential Rules

Presidential rules can take many forms, they almost always deal with policy matters, and some may even have the full force and effect of law.[8]

The three most common rules issued by Presidents are:

Ø  Executive Orders;[9]

Ø  Proclamations; and

Ø  Memoranda.[10]

 

There is no set purpose defining the use of each instrument, and Presidents are free to use them as they wish.[11]

There is also a set of Presidential NSC Directives that I’m going to wait to talk about until Part 5.7: Administrative Rules in U.S. Intelligence Law.

For now, just know that there is a completely separate set of Presidential NSC Directives relevant to governing the Intelligence Community and right now under President Barack Obama they are called:

Ø  Presidential Study Directives;

Ø  Presidential Policy Directives; and

Ø  Homeland Security Presidential Directives.

 

5.3.1.4 Executive Orders

Executive Orders are the most important of the 3 main Presidential instruments.

They are used by Presidents most often to set policies, direct implementation, and otherwise manage the Executive Branch.[12]

Most executive orders are directed internally to agencies within the Executive Branch and they only govern government employees.[13]

 

5.3.1.5 Proclamations

Proclamations are the 2nd major form of Presidential rule.

They are used primarily to make declarations calling the public’s attention to matters of national significance.

Unlike Executive Orders, they are generally directed at the public rather than the government.  

 

5.3.1.6 Memoranda

And the 3rd major type of Presidential rule is the “memorandum.”

Memoranda are used for purposes similar to Executive Orders, but they are different in form and are generally used as interpretive rules or general statements of policy.

They often provide clarification of central policies established in an existing Executive Order.

 

5.3.1.7 Executive Order 11030: Preparation of Executive Orders and Proclamations

One difference between these 3 types of Presidential rules has to do with the rules governing their preparation.

Memoranda are more flexible than the other two instruments because they fall outside the standard procedures required for the preparation and issuance of presidential rules that applies to both Executive Orders and Proclamations.

Executive Order 11030 governs the preparation, presentation, filing, and publication of Executive Orders and Proclamations.[14]

Any proposed Executive Order has to be submitted to the OMB for vetting before going to the President.[15]

If the Director of OMB approves it, then it goes to the Attorney General for a second review.[16]

If either the Attorney General or the Director of OMB fails to sign off on it, the proposed rule cannot be submitted to the President unless the reasons for their disapproval are attached.[17]

 

5.3.1.8 Constitutionality of Presidential Lawmaking

Although the President can issue directives to his administration, it is important to remember that only Congress has general constitutional authority to make new law.

Ø  General Rule: The President Must have a Statutory Delegation: “The President's power, if any, to issue [a rule] must stem either from an act of Congress or from the Constitution itself.”[18]

Ø  The Steel Seizure Case: Youngstown Sheet & Tube Co. v. Sawyer (1952): The Supreme Court laid down the law governing Presidential orders in a landmark 1952 decision in the case of Youngstown Sheet and Tube v. Sawyer.[19]

o   Now I usually don’t get into specific details about individual cases in this first course introducing you to the legal sources in U.S. intelligence law.

o   But I’m going to tell you more about this case than any other case in Course I because it is critical to understanding the nature of executive power.

o   Youngstown Sheet & Tube v. Sawyer explains how the President’s duty as an executive officer is to execute the laws passed by Congress.

o   The general rule is that the President lacks independent power to act in domestic affairs outside of a specific duty given to him by Congress in some enabling statute.

o   However, in dicta several Justices did opine that there may be some room for independent action by the President without a statutory mandate in some very limited circumstances.

 

Ø  Justice Jackson’s Concurrence: 3-Tiered Framework for Understanding Presidential Power vis-à-vis Congress: It’s important to note that while Justice Black’s majority opinion in Youngstown Sheet and Tube v. Sawyer respects a strong division of constitutional authority in line with the separation of powers—the force of his opinion was fractured a bit by the fact that 5 of the justices ultimately concurring in the ruling also wrote their own individual concurring opinions stating slightly different ideas about the dimensions of Presidential power.

o   4 of them recognized the existence of some form of implied Presidential power in certain circumstances.[20]

o   The most often cited concurrence is the one written by Justice Jackson, who recognized a limited independent authority of the President to engage in quasi-legislative acts in areas where the Congress has not spoken.

§  It’s important to note that although Justice Jackson’s famed concurrence recognized broader implied powers than the majority it still stated unequivocally that the President has no independent lawmaking powers under the Constitution.

§  He must be delegated that authority by Congress should he wish to exercise it.[21]

§  The principal difference between Justice Black’s majority opinion and Justice Jackson’s concurrence lies with the acceptability of unilateral Presidential action in the absence of Congressional action.

§  Justice Black’s majority opinion seems to forestall any independent lawmaking authority of the President under Article II.

§  Justice Jackson takes a softer approach, viewing Presidential power as flexible and governed primarily in relation to the powers of Congress.

o   Jackson’s concurrence held that President Truman’s seizure of the steel mills was unconstitutional primarily because it was performed contrary to the express will of Congress.

§  They had considered whether to give him the power to seize the nation’s steel mills but had decided not to do so.

§  As a result of this conflict, the President was acting in the lowest ebb of his constitutional authority and his actions could only be upheld if the Court found that the Presidency is vested with exclusive authority over the subject matter in question.[22]

§  This would have required a finding that Congress lacks any constitutional jurisdiction whatsoever over the matter of whether to seize steel mills within the United States.

§  Since such power is clearly within the province of a legislature’s authority, Justice Jackson concluded that the President could not have exclusive authority over the matter.

§  As a result, President Truman did not have the power to seize the steel mills in violation of Congress’s will, and his actions were therefore unconstitutional.

o   Justice Jackson’s method of reaching this conclusion is worth telling you about in detail because it has become more influential than the majority opinion in this case and probably represents the best statement of the current understanding of Presidential powers vis-à-vis Congressional powers in constitutional analysis.

 

Ø  3-Tiered Framework for Assessing Constitutionality of Presidential Action: Jackson’s concurrence sets up a 3-tiered framework for understanding the constitutional validity of Presidential actions in relation to competing powers of the Congress.[23]

o   Specifically, he describes 3 scenarios in which all Presidential action take place, and sets rules governing how courts should assess the constitutionality of Presidential action that takes place within each zone.[24]

o   (1) Authorized by Congress: The first zone is when the President’s actions are authorized by Congress. Justice Jackson says,

§  “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. […] If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.”[25]

o   (2) Congress Hasn’t Acted (Zone of Twilight): Zone 2 is when the President acts in an area where Congress has not yet spoken—what Justice Jackson refers to as a “zone of twilight.” He says,

§  “When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority […]”[26]

§  “[This means that] congressional inertia, indifference or [a]quiescence may sometimes […] enable [the President to take actions on his own].”[27]

o   (3) Contrary to Actions by Congress: And the last zone—Zone 3—is when the President acts contrary to the actions of Congress. Justice Jackson says,

§  “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”[28]

§  Further he says that, “Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.”[29]

 

Ø  President Truman’s Order Falls into Tier 3: Justice Jackson applied this 3-tiered framework to President Truman’s seizure of the steel mills. [30]

o   By the government’s own admission, the order didn’t fall into the first category of actions approved by the Legislature.[31]

o   Likewise, it wasn’t made in the “zone of twilight” envisioned by Tier 2.[32]

§  Tier 2’s “zone of twilight” refers to a lawless frontier or legal vacuum where the President is free to roam at will because Congress has not yet regulated or even considered regulating the field.

o   In the end, Justice Jackson places President Truman's seizure of the steel mills flatly in the third category—Presidential actions which directly conflict with the will of Congress.[33]

Ø  Rule for Analyzing Conduct in Tier 3: In this Zone, Justice Jackson’s approach would hold that the President’s exercise of power can only be upheld if the action taken is within his exclusive constitutional jurisdiction.

o   In order for him to prevail, in other words, the Court would have to find that Congress had no jurisdiction at all to act in the field in question.

o   Importance of Congressional Action: Had Congress said nothing about the matter, Justice Jackson’s concurrence seems to indicate the action might have been upheld within the second category of Presidential action—the “zone of twilight” where Congress has not yet spoken.

 

Ø  Executive Powers Ebb and Flow Depending on Congressional Action: The feature of Justice Jackson’s concurrence that has made it so popular today is that his framework understands Executive Power as fundamentally fluctuating based on the will and actions of Congress.

o   When Congress wants the President to have more power, it will give him those powers.

o   When Congress feels less power is needed, it can pull back on the President’s powers by modifying the executive responsibilities it has defined for him through statute.

Ø  The Benefits of Jackson’s Flexible Approach to Executive Powers: This framework allows our Constitutional system to remain flexible enough to meet the needs of any situation that might present itself as time goes forward in unpredictable ways. 

Ø  Legacy of Justice Jackson’s Concurrence: While Justice Black’s majority opinion represents the official opinion of the Supreme Court in Youngstown Sheet & Tube v. Sawyer Justice Jackson’s concurrence is the most popular framework for understanding the nature of Presidential powers today.[34]

 

Footnotes

[1] See Franklin v. Massachusetts, 505 U.S. 788 (1992).

[2] Looking at the Administrative Procedure Act’s definition of “agency” it is not entirely clear that the President shouldn’t also be considered an “agency” under its language. This remained an unsettled question until the Supreme Court resolved the matter in 1992. See Franklin v. Massachusetts, 505 U.S. 788 (1992). In Franklin v. Massachusetts, the Court held that the President is not an “agency” for purposes of the APA. Congress could have included the President in the APA’s definition of “agency,” but to do so they would have had to do so explicitly in the statutory language. The ambiguity in the APA’s definition of “agency” is not enough to demonstrate legislative intent to regulate the President along with subsidiary agencies.

[3] Looking at the Administrative Procedure Act’s definition of “agency” it is not entirely clear that the President shouldn’t also be considered an “agency” under its language. This remained an unsettled question until the Supreme Court resolved the matter in 1992. See Franklin v. Massachusetts, 505 U.S. 788 (1992). In Franklin v. Massachusetts, the Court held that the President is not an “agency” for purposes of the APA. Congress could have included the President in the APA’s definition of “agency,” but to do so they would have had to do so explicitly in the statutory language. The ambiguity in the APA’s definition of “agency” is not enough to demonstrate legislative intent to regulate the President along with subsidiary agencies.

[4] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“From the earliest days of the federal government, Presidents, exercising magisterial or executive power not unlike that of a monarch, from time to time have issued directives establishing new policy, decreeing the commencement or cessation of some action, or ordaining that notice be given to some declaration.”); see also Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“Just as there is no definition of executive orders and proclamations in the Constitution, there is, likewise, no specific provision authorizing their issuance. As such, authority for the execution and implementation of executive orders stems from implied constitutional and statutory authority. In the constitutional context, presidential power to issue such orders has been derived from Article II, which states that “the executive power shall be vested in a President of the United States,” that “the President shall be Commander in Chief of the Army and Navy of the United States,” and that the President “shall take Care that the Laws be faithfully executed.” The President’s power to issue executive orders and proclamations may also derive from express or implied statutory authority.[4] Irrespective of the implied nature of the authority to issue executive orders and proclamations, these instruments have been employed by every President since the inception of the Republic.”).

[5] U.S. Const., Art. II, § 1.

[6] U.S. Const., Art. II, § 3.

[7] In addition, the President also has some independent rulemaking authority by virtue of the clause in Article II, Section 2 that says “the President shall be Commander in Chief of the Army and Navy of the United States.” U.S. Const., Art. II, § 2.

[8] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“it may be generally said that most of these instruments establish policy, and many have the force of law. Policy, in this context, is understood as a statement of goals or objectives which a President sets and pursues.”).

[9] See Staff of House Comm. on Government Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Comm. Print 1957) (“Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law [...] In the narrower sense Executive orders and proclamations are written documents denominated as such.... Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance.”); see also Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“Executive orders are one of the oldest types of presidential directive, an early model appearing in June 1789, when President Washington directed the acting holdover officers of the Confederation government to prepare for him a report “to impress me with a full, precise, and distinct general idea of the affairs of the United States” handled by each official. Like most executive orders, it was directed to, and governed actions by, executive officials and agencies. However, some executive orders, such as perhaps those concerning emergency situations and relying upon the President’s constitutional authority or powers statutorily delegated to him by Congress to respond to exigencies, were of a more profound character. For example, President Roosevelt used an executive order (E.O. 9066) on February 19, 1942, to require the internment of American citizens of Japanese ancestry who were living in certain designated Pacific coast defense areas.”).

[10] See Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“In addition to executive orders and proclamations, Presidents often issue ‘presidential memoranda.’ The distinction of these instruments from executive orders and proclamations is likewise more a matter of form than of substance. Specifically, all three instruments can be employed to direct and govern the actions of government officials and agencies.”); see also Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation , Footnote 2 (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“For example, the Homeland Security Council (HSC) was first established by § 5 of Executive Order 13228 on October 8, 2001. 66 Fed. Reg. 51812-17 (Oct. 10, 2001). Its location was not specified in that executive order. Its organization and operation were addressed in a Homeland Security Presidential Directive on October 29, 2001, HSPD­1. See http://www.dhs.gov/xabout/laws/gc_1213648320189.shtm#1; CRS Report RS22840, Organizing for Homeland Security: The Homeland Security Council Reconsidered, by Harold C. Relyea, at 2. The HSC was later established within the Executive Office of the President in Title IX of the Homeland Security Act of 2002.”).

[11] See Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“In addition to executive orders and proclamations, Presidents often issue ‘presidential memoranda.’ The distinction of these instruments from executive orders and proclamations is likewise more a matter of form than of substance. Specifically, all three instruments can be employed to direct and govern the actions of government officials and agencies.”); see also Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation , Footnote 2 (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“For example, the Homeland Security Council (HSC) was first established by § 5 of Executive Order 13228 on October 8, 2001. 66 Fed. Reg. 51812-17 (Oct. 10, 2001). Its location was not specified in that executive order. Its organization and operation were addressed in a Homeland Security Presidential Directive on October 29, 2001, HSPD­1. See http://www.dhs.gov/xabout/laws/gc_1213648320189.shtm#1; CRS Report RS22840, Organizing for Homeland Security: The Homeland Security Council Reconsidered, by Harold C. Relyea, at 2. The HSC was later established within the Executive Office of the President in Title IX of the Homeland Security Act of 2002.”).

[12] See Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“Executive orders and proclamations are used extensively by Presidents to achieve policy goals, set uniform standards for managing the executive branch, or outline a policy view intended to influence the behavior of private citizens. The Constitution does not define these presidential instruments and does not explicitly vest the President with the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential power, and, if based on appropriate authority, they have the force and effect of law.”).

While executive orders are usually used for routine administrative management purposes, at times they have been used for more controversial measures. See Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“Despite the amorphous nature of the authority to issue executive orders, Presidents have not hesitated to wield this power over a wide range of often controversial subjects, such as the suspension of the writ of habeas corpus; [Citing Executive Order from President Lincoln to Major-General H.W. Halleck, Commanding in the Department of Missouri (Dec. 1861) in JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1902, at 99 (Vol. VI)(“General: As an insurrection exists in the United States and is in arms in the State of Missouri, you are hereby authorized and empowered to suspend the writ of habeas corpus within the limits of the military division under your command and to exercise martial law as you find it necessary, in your discretion, to secure the public safety and the authority of the United States.”); see also Ex Parte Milligan, 71 U.S. 2, 115 (1866).] the establishment of internment camps during World War II; [Citing Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 25, 1942); see also Korematsu v. United States, 323 U.S. 214 (1944).] and equality of treatment in the armed services without regard to race, color, religion or national origin. President Obama recently issued an executive order pertaining to the abortion provisions in the new health care law, the Patient Protection and Affordable Care Act. This broad usage of executive orders to effectuate policy goals has led some commentators to suggest that many such orders constitute executive lawmaking that impacts the interests of private citizens and encroaches upon congressional power. The controversial nature of many presidential directives thus raises questions regarding whether and how executive orders may be amended or revoked.”) (some internal footnotes omitted).

[13] See Staff of House Comm. on Government Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Comm. Print 1957) (“Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law [...] In the narrower sense Executive orders and proclamations are written documents denominated as such.... Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance.”); see also Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“Executive orders are one of the oldest types of presidential directive, an early model appearing in June 1789, when President Washington directed the acting holdover officers of the Confederation government to prepare for him a report “to impress me with a full, precise, and distinct general idea of the affairs of the United States” handled by each official. Like most executive orders, it was directed to, and governed actions by, executive officials and agencies. However, some executive orders, such as perhaps those concerning emergency situations and relying upon the President’s constitutional authority or powers statutorily delegated to him by Congress to respond to exigencies, were of a more profound character. For example, President Roosevelt used an executive order (E.O. 9066) on February 19, 1942, to require the internment of American citizens of Japanese ancestry who were living in certain designated Pacific coast defense areas.”).

[14] Exec. Order No. 11030, 27 Fed. Reg. 5847 (June 19, 1962), as amended; see also Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“Current regulations governing the preparation, presentation, filing, and publication of executive orders and proclamations are prescribed in an executive order, E.O. 11030, as amended. Agency regulations appear in other titles of the CFR.”).

[15] Exec. Order No. 11030, § 2(a), 27 Fed. Reg. 5847 (June 19, 1962) (“A proposed Executive order or proclamation shall first be submitted to the Director of the Office of Management and Budget, together with a letter, signed by the head or other properly authorized officer of the originating Federal agency, explaining the nature, purpose, background, and effect of the proposed Executive order or proclamation and its relationship, if any, to pertinent laws and other Executive orders or proclamations.”).

[16] Exec. Order No. 11030, § 2(b), 27 Fed. Reg. 5847 (June 19, 1962) (“If the Director of the Office of Management and Budget approves the proposed Executive order or proclamation, he shall transmit it to the Attorney General for his consideration as to both form and legality.”).

[17] Exec. Order No. 11030, § 2(c), 27 Fed. Reg. 5847 (June 19, 1962) (“If the proposed Executive order or proclamation is disapproved by the Director of the Office of Management and Budget or by the Attorney General, it shall not thereafter be presented to the President unless it is accompanied by a statement of the reasons for such disapproval.”).

[18] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) ("The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.").

[19] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)(Case Syllabus: “To avert a nation-wide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions.  The President promptly reported these events to Congress; but Congress took no action.  It had provided other methods of dealing with such situations and had refused to authorize governmental seizures of property to settle labor disputes.  The steel companies sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive relief.  The District Court issued a preliminary injunction, which the Court of Appeals stayed.  Held: 1. Although this case has proceeded no further than the preliminary injunction stage, it is ripe for determination of the constitutional validity of the Executive Order on the record presented.  Pp. 584-585. (a) Under prior decisions of this Court, there is doubt as to the right to recover in the Court of Claims on account of properties unlawfully taken by government officials for public use.  P. 585. (b) Seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement.  P. 585. 2. The Executive Order was not authorized by the Constitution or laws of the United States; and it cannot stand.  Pp. 585-589. (a) There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here.  Pp. 585-586. (b) In its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes.  P. 586. (c) Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution.  Pp. 587-589. (d) The Order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. P. 587. (e) Nor can the Order be sustained because of the several provisions of Article II which grant executive power to the President.  Pp. 587-589. (f) The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times.  Pp. 587-589. (g) Even if it be true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress has not thereby lost its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof." Pp. 588-589.”).

[20] See Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“While Justice Black’s majority opinion in Youngstown seems to refute the notion that the President possesses implied constitutional powers, it is important to note that there were five concurrences in the case, four of which maintained that implied presidential authority adheres in certain contexts. [Citing Youngstown Sheet & Tube at 659 (Burton, J., concurring); id. at 661 (Clark, J., concurring in result only); id. at 610 (Frankfurter, J., concurring); id. at 635 (Jackson, J., concurring).] Of these concurrences, Justice Jackson’s has proven to be the most influential, even surpassing the impact of Justice Black’s majority opinion.”).

[21] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654-55 (1952) (Jackson, J., concurring) (“The essence of our free Government is "leave to live by no man's leave, underneath the law" -- to be governed by those impersonal forces which we call law.  Our Government is fashioned to fulfill this concept so far as humanly possible.  The Executive, except for recommendation and veto, has no legislative power.  The executive action we have here originates in the individual will of the President and represents an exercise of authority without law.  No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights.  We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end.  With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away.  But it is the duty of the Court to be last, not first, to give them up.").

[22] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640 (1952) (Jackson, J., concurring) (“In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.  Thus, this Court's first review of such seizures occurs under circumstances which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.").

[23] See Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“Jackson established a tri-partite scheme for analyzing the validity of presidential actions in relation to constitutional and congressional authority. Jackson’s first category focuses on whether the President has acted according to an express or implied grant of congressional authority. If so, according to Jackson, presidential “authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate,” and such action is “supported by the strongest of presumptions and the widest latitude of judicial interpretation.” Secondly, Justice Jackson maintained that, in situations where Congress has neither granted or denied authority to the President, the President acts in reliance only “upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” In the third and final category, Justice Jackson stated that in instances where presidential action is “incompatible with the express or implied will of Congress,” the power of the President is at its minimum, and any such action may be supported pursuant only to the President’s “own constitutional powers minus any constitutional powers of Congress over the matter.” In such a circumstance, presidential action must rest upon an exclusive power, and the Courts can uphold the measure “only by disabling the Congress from acting upon the subject.””) (internal footnotes omitted).

[24] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (Justice Jackson’s Full 3-Tiered System: “The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.  While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.  It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.  Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.  We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. (1) When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty.  If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.  A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. (2) When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.  Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.  In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. (3) When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.  Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. 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.”).

[25] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring).

[26] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

[27] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

[28] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring).

[29] Justice Jackson recommended exceptionally high scrutiny for Presidential actions in Zone 3 because he recognized the danger to our entire system of law and order that is presented by a President’s refusal to operate within the rule of law as defined by the lawmaking branch of government—i.e. Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring) (stating that when Presidents act contrary to the actions of Congress, “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.”).

[30] See Vanessa K. Burrows & T.J. Halstead, Congressional Research Serv., Executive Orders: Issuance and Revocation (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20846_3-25-2010.pdf (“Applying this scheme to the case at hand, Justice Jackson determined that analysis under the first category was inappropriate, due to the fact that President Truman’s seizure of the steel mills had not been authorized by Congress, either implicitly or explicitly. Justice Jackson also determined that the second category was “clearly eliminated,” in that Congress had addressed the issue of seizure, through statutory policies conflicting with the President’s actions. Employing the third category, Justice Jackson noted that President Truman’s actions could only be sustained by determining that the seizure was “within his domain and beyond control by Congress.” Justice Jackson established that such matters were not outside the scope of congressional power, reinforcing his declaration that permitting the President to exercise such “conclusive and preclusive” power would endanger “the equilibrium established by our constitutional system.””) (internal footnotes omitted).

[31] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring) (“Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category.”).

[32] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 639 (1952) (Jackson, J., concurring) (“Can it then be defended under flexible tests available to the second category?  It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government; another, condemnation of facilities, including temporary use under the power of eminent domain. The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests. None of these were invoked.  In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties.").

[33] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640 (1952) (Jackson, J., concurring) (“This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject.  In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.  Thus, this Court's first review of such seizures occurs under circumstances which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.").

[34] PROFESSOR NOTE: It’s important for me to note that, while the various opinions in Youngstown Sheet and Tube v. Sawyer are frequently discussed by law professors and jurists, none of the tests used in either the plurality opinion or the concurrences represent binding precedent that must be applied by lower courts of appeal. This is because a test used to arrive at a plurality decision is not considered binding precedent under the Doctrine of Stare Decisis. Lower appellate courts are not legally required to adhere to such tests as a matter of law, and they are free to fashion a different rationale in future cases. See Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383 (5th Cir. 2007); see also generally Marks v. U.S., 430 U.S. 188 (1977); see also 5 Am Jur 2d Appellate Review § 563.

 


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