Intelligence Law School - Course 1: Lesson 5.3.2 Legislative Presidential Rules [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.3 Presidential Rules


5.3.2 Legislative Presidential Rules


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5.3.2 Legislative Presidential Rules

5.3.2.1 Presidential Regulations

While most Presidential rules are non-legislative by nature and lack legal force, any type of Presidential order can be given the full force and effect of law if it is issued pursuant to a delegation of lawmaking authority from Congress and the President declares that it is to have legal effect.[1]

The type of instrument the President uses is immaterial to its legal force.[2]

Ø  Force of Law: When the President is empowered to promulgate presidential regulations by Congress, and he intends to issue a legislative rule, the rules he issues will have the force and effect of law.

o   Does this sound familiar?

o   It’s exactly the same as with agency rules.

o   When there is no Congressional delegation of legislative power, or the President does not intend a rule to have legal effect, then his rules will be non-legislative.

 

Ø  Intelligence Law Example 1: Executive Order 12333: United States Intelligence Activities: The most important Presidential regulation in U.S. intelligence law is Executive Order 12333,[3] which I’ve already mentioned.

o   It derives its legal force as a legislative rule from delegations of lawmaking power from Congress to the President scattered throughout the National Security Act of 1947.[4]

o   Executive Order 12333 structures the responsibilities of the various agencies composing the U.S. Intelligence Community,[5] and it imposes some basic legal restrictions governing the conduct of intelligence activities generally.[6]

o   But Executive Order 12333 doesn’t authorize penalties for violating its provisions.[7]

Ø  Intelligence Law Example 2: Executive Order 13529: Classified National Security Information: A second great example of a presidential legislative rule is Executive Order 13529, Classified National Security Information, which was issued by President Barack Obama on December 29, 2009.[8]

o   It sets the standards for information classification and declassification.

o   It was issued by President Obama based not only on his own constitutional authority to control access to national security information, but also pursuant to a statutory mandate from Congress.

o   That mandate is contained in the Counterintelligence and Security Enhancement Act, which was passed back in 1994.[9]

o   In that statute, Congress amended the National Security Act and added sections that specifically required the President to issue these rules.

o   It is this statutory mandate that imbues Executive Order 13529 with the force and effect of law.

o   As a result of this statutory mandate or delegation of lawmaking power, Executive Order 13529 carries full legal effect.

o   This is why the President had the power to include provisions in 13529 that authorize sanctions against employees who violate its provisions.[10]

o   Remember that sanctions can only be imposed by legislative rules.[11]

 

As far as U.S. intelligence law is concerned, those two Executive Orders are probably the most prominent examples of legislative rules issued by the President pursuant to a delegation of lawmaking authority from Congress.

 

5.3.2.2 Military Regulations as a Possible Exception to the Statutory Delegation Requirement

I do want to mention one more thing about the need for a delegation of lawmaking power from Congress.

There’s one possible exception to the requirement.

The President’s constitutional power as Commander-in-Chief may give him limited independent authority to promulgate legislative rules with respect to members of the military without a delegation of lawmaking authority from Congress.[12]

These regulations might be understood to have legal force but only as applied to members of the military who are under the President’s command or others who fall within the lawful jurisdiction of the armed forces.

 

As a practical matter, this issue is really a moot point because Congress has already given the President all the statutory authority he needs to promulgate military regulations.

So the issue of whether he could do it without those statutes is of interest only to commentators.

 

Ø  Shared Authority: Also, remember that this issue of independent lawmaking by the President only relates to areas where Congress hasn’t regulated.

o   The President’s power over the military is shared power. Congress has the constitutional authority to regulate the armed forces, and the President has administrative authority as Commander-in-Chief.

o   He may exercise that authority on his own even without statutory authority; however, if Congress has regulated the area in question, then the President must faithfully execute those laws.

 

Ø  Basic Human Decency at the Pentagon Achieved Through Presidential Decree: To give you an example of where this might be used, President Truman desegregated the military by Executive Order on July 28, 1948.[13]

o   This was a continuation of policies started by President Roosevelt in 1942.

 

o   The Pentagon’s Bathroom Battle during the War for Civil Rights: There’s actually an interesting story related to this that explains why there are so many bathrooms in the Pentagon—there’re over 200.

§  It’s all tied to the Pentagon’s construction project back at the beginning of World War II.

§  In January of 1943 right before the Pentagon building was dedicated, President Roosevelt visited the site and was shocked by how many bathrooms there were.

§  When he asked why, he was told it was because they needed both colored and white bathrooms throughout the building.

§  The Pentagon was in Arlington, after all, and DoD wanted to be in compliance with Virginia’s racial segregation laws.

§  Well, President Roosevelt wasn’t having any of that—he forced them to go rip down every last “Whites Only” signs all over the building before it was dedicated.

§  The Pentagon was dedicated a few days later without the signs, and for years it would be one of the only buildings in Virginia where segregation was not allowed.[14]

§  If you’re into Pentagon history, you should definitely check out House of War by James Carroll.

§  He’s the son of the first Director of the Defense Intelligence Agency and he basically grew up in the Pentagon.

§  It’s got tons of great stories about the place, and it’s extremely well written.

§  One of the best I’ve read.

 

Ø  The Emancipation Proclamation: Now, to give you a much different example of how the President’s limited lawmaking power over the military might be over-extended, consider the most famous case of ultra vires legislative rulemaking by an American President in history—I’m talking about President Abraham Lincoln’s famous Emancipation Proclamation.

o   That Proclamation was a legislative Presidential rule which purported to free all Southern slaves from bondage—it’s easily the most famous proclamation in U.S. History.

o   Questions of Legality: Now, how did Lincoln pull this off?

§  He didn’t have statutory authority delegated by Congress, and the President lacks unilateral lawmaking authority under the Constitution.

§  The only conceivable legal basis for his exercise of legislative power was to issue the Proclamation as a military order, and try to squeeze constitutional authority out of Article II, Section 2—his role as Commander-in-Chief.[15]

§  The problem was that President Lincoln’s troops occupied only the Northern states, which contained no slaves.

§  The slaves addressed in his broad legislative rule were all in the South under the quasi-legal jurisdiction of the Confederate government.

§  As a result, some legal scholars contend that the Emancipation Proclamation was issued ultra vires and was void from its inception.

·         Joke: Legal or not, you have to admit that it sure beat the heck out of the proclamations we get today.

§  It’s hard to get excited about a proclamation about National Consumer Protection Week, when you know what past presidents have done with the same piece of paper.

§  Lincoln took all the fun out of proclamations, so Presidents don’t even try anymore.

·         Go check out the list of Proclamations in Title 3 of the CFR—it’s a whole lot of nothing.

 

Footnotes

[1] 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 (“Further, if issued under a valid claim of authority and published, all three may have the force and effect of law, requiring courts to take judicial notice of their existence.” [Citing Armstrong v. United States, 80 U.S. 154 (1871); see also Farkas v. Texas Instrument, Inc., 372 F.2d 629 (5th Cir. 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3rd Cir. 1964); Jenkins v. Collard, 145 U.S. 546, 560-61 (1893).]).

[2] 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 (“Whether these directives have the force of law depends upon such factors as the President’s authority to issue them, their conflict with constitutional or statutory provisions, and their promulgation in accordance with prescribed procedure. Indeed, as history has shown, presidential directives may be challenged in court or through congressional action. In the latter case, however, difficulties may arise if Congress, through legislative action, attempts to supersede or nullify a presidential directive issued, in whole or in part, pursuant to the Executive’s constitutional authority, the result being a possible infringement by one constitutional branch upon the powers of another. Congress has been more successful in overturning or modifying executive orders based solely upon or authorized by a statute, which, of course, was the creation of the legislature.”).

[3] Exec. Order No. 12,333, United States Intelligence Activities, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html.

[4] See Exec. Order No. 12,333, United States Intelligence Activities, Preamble, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html (“Timely, accurate, and insightful information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons, and their agents, is essential to the national security of the United States. All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence available. For that purpose, by virtue of the authority vested in me by the Constitution and the laws of the United States of America, including the National Security Act of 1947 [50 U.S.C. §§ 401 et seq.], as amended (Act), and as President of the United States of America, in order to provide for the effective conduct of United States intelligence activities and the protection of constitutional rights, it is hereby ordered as follows: […]”) (emphasis added).

[5] Part 1 of Executive Order 12333 contains provisions governing the "Goals, Directions, Duties, and Responsibilities with Respect to United States Intelligence Efforts." See Exec. Order No. 12,333, United States Intelligence Activities, Part 1, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html.

[6] Part 2 of Executive Order 12333 contains provisions governing the conduct of intelligence activities. See Exec. Order No. 12,333, United States Intelligence Activities, Part 2, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html.

[7] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.7(c), 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html (“This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.”).

[8] Exec. Order No. 13,526, Classified National Security Information, § 5.5(a)-(c) (December 29, 2009), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_13526.html.

[9] See Counterintelligence and Security Enhancement Act of 1994, Title VIII of P.L. 103-359, codified at 50 U.S.C. § 435 et seq. (ordering that “[n]ot later than 180 days after the date of enactment of this title [i.e. Title 8 of the National Security Act of 1947, which was enacted on October 14, 1994], the President shall, by Executive order or regulation, establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government. Such procedures shall, at a minimum--(1) provide that, except as may be permitted by the President, no employee in the executive branch of Government may be given access to classified information by any department, agency, or office of the executive branch of Government unless, based upon an appropriate background investigation, such access is determined to be clearly consistent with the national security interests of the United States; (2) establish uniform minimum requirements governing the scope and frequency of background investigations and reinvestigations for all employees in the executive branch of Government who require access to classified information as part of their official responsibilities; (3) provide that all employees in the executive branch of Government who require access to classified information shall be required as a condition of such access to provide to the employing department or agency written consent which permits access by an authorized investigative agency to relevant financial records, other financial information, consumer reports, travel records, and computers used in the performance of Government duties, as determined by the President, in accordance with section 802 of this title, during the period of access to classified information and for a period of three years thereafter; (4) provide that all employees in the executive branch of Government who require access to particularly sensitive classified information, as determined by the President, shall be required, as a condition of maintaining access to such information, to submit to the employing department or agency, during the period of such access, relevant information concerning their financial condition and foreign travel, as determined by the President, as may be necessary to ensure appropriate security; and (5) establish uniform minimum standards to ensure that employees in the executive branch of Government whose access to classified information is being denied or terminated under this title are appropriately advised of the reasons for such denial or termination and are provided an adequate opportunity to respond to all adverse information which forms the basis for such denial or termination before final action by the department or agency concerned.”).

[10] See Exec. Order No. 13,526, Classified National Security Information, § 5.5(a)-(c) (December 29, 2009), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_13526.html (“Sec. 5.5.  Sanctions (a)  If the Director of the Information Security Oversight Office finds that a violation of this order or its implementing directives has occurred, the Director shall make a report to the head of the agency or to the senior agency official so that corrective steps, if appropriate, may be taken. (b)  Officers and employees of the United States Government, and its contractors, licensees, certificate holders, and grantees shall be subject to appropriate sanctions if they knowingly, willfully, or negligently: (1)  disclose to unauthorized persons information properly classified under this order or predecessor orders; (2)  classify or continue the classification of information in violation of this order or any implementing directive; (3)  create or continue a special access program contrary to the requirements of this order; or (4)  contravene any other provision of this order or its implementing directives. (c)  Sanctions may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation.”).

[11] Every rule that imposes a penalty is automatically considered to be a legislative rule with full legal effect. 44 U.S.C. § 1505(a) (2010) ("[...] every document or order which prescribes a penalty has general applicability and legal effect.").

For the list of administrative sanctions that may be imposed under Executive order 13526, see Exec. Order No. 13,526, Classified National Security Information, § 5.5(c) (December 29, 2009), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_13526.html (“Sanctions [for violating the offenses in section 5.5(b)] may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation.”).

For a list of the offenses for which these sanctions may be imposed, see Exec. Order No. 13,526, Classified National Security Information, § 5.5(b) (December 29, 2009), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_13526.html (“Officers and employees of the United States Government, and its contractors, licensees, certificate holders, and grantees shall be subject to appropriate sanctions if they knowingly, willfully, or negligently: (1)  disclose to unauthorized persons information properly classified under this order or predecessor orders; (2)  classify or continue the classification of information in violation of this order or any implementing directive; (3)  create or continue a special access program contrary to the requirements of this order; or (4)  contravene any other provision of this order or its implementing directives.”).

[12] See Kurtz v. Moffitt, 115 U.S. 487, 504 (1885) (“The army regulations derive their force from the power of the President as commander in chief, and are binding upon all within the sphere of his legal and constitutional authority.”); see also United States v Freeman, 44 U.S. (3 How.) 556, 567 (1845)(“The Army Regulations, when sanctioned by the President, have the force of law”).

[13] Exec. Order No. 9981, 13 Fed. Reg. 4313 (July 28, 1948)(“It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.”)

[14] See James Carroll, House of War: The Pentagon and the Disastrous Rise of American Power, pg. 4 (Mariner Books Ed. 2007) (describing the Pentagon’s original plan for segregated facilities and President Roosevelt’s order to General Leslie Groves to remove all “Whites Only” signs from the building after these facilities had already been built).

[15] President Lincoln clearly recognized the constitutional deficiencies surrounding his authority to issue a legislative proclamation without a statutory mandate because he repeatedly justifies the action as a military necessity in the document. He states his reliance on his constitutional authority as Commander-in-Chief as the sole basis for his exercise of legislative power right from the start, then makes redundant references to the issuance of the rule being “a fit and necessary war measure for suppression said rebellion” and “warranted by the Constitution upon military necessity” to make his case. This show that President Lincoln wanted to persuade people it was connected to the military and therefore rightfully within his authority to promulgate. He was concerned about the legality of a President exercising legislative power without a statutory delegation, which shows that, even in that time of crisis, President Lincoln’s respect for the rule was a forefront concern. See Emancipation Proclamation (Jan. 1, 1863) (“I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as commander in chief of the Army and Navy of the United States, in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this 1st day of January, in the year of our Lord 1863 […] order and designate as the states and parts of states wherein the people thereof, respectively, are this day in rebellion against the United States the following […] by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated states and parts of states are, and henceforward shall be, free; and that the executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons. […] And upon this act, sincerely believed to be an act of justice, warranted by the Constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God. […]”) (emphasis added).

 


© 2012 David Alan Jordan. All rights reserved.