Intelligence Law School - Course 1: Lesson 5.3.3 Non-Legislative Presidential Rules [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.3 Presidential Rules


5.3.3 Non-Legislative Presidential Rules


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5.3.3 Non-Legislative Presidential Rules

5.3.3.1 Practical Effect of Non-Legislative Presidential Rules

As a result of the Supreme Court’s holding in Youngstown Sheet & Tube v. Sawyer, we know that Presidential directives do not automatically have the force and effect of law.[1]

They are akin to the “non-legislative rules” we talked about with respect to agency rulemaking.

The President isn’t an agency, but the effect of his non-legislative rulemaking on the Executive Branch is similar to the non-legislative rulemaking of an individual agency head.  

Ø  Practical Binding Effect: That is to say that, even though non-legislative directives issued by the President don’t technically have the full force of law, the President is still the head of the Executive Branch so most Executive Branch employees are very responsive to any rules he issues and generally adhere to non-legislative Presidential directives as if they were law.

o   Presidents often use these directives to be proactive in setting administrative policy and instigating administrative action rather than passively responding to it.[2]

 

5.3.3.2 Examples of Non-Legislative Presidential Rules

Executive Orders, Proclamations, and Memoranda without the force of law are far more common than legislative presidential rules.

 

Non-legislative proclamations have been used by Presidents since George Washington mostly as a delivery vehicle for platitudes aimed at discreet, but appreciative constituencies.

As a result, proclamations usually take the form of vapid pronouncements of little practical significance.[3]

The track record for banality has continued more or less unbroken since Lincoln broke the mold.[4]

 

Ø  Leif Erikson Day: On every October 9th, for example, the President of the United States issues a proclamation declaring the day to be “Leif Erikson Day.”[5]

o   Joke: This isn’t an accident. Congress actually passed legislation declaring it Leif Erikson Day.

§  I love this day, because I always wonder about the powerful “Leif Erikson Lobby” moving this bill through Congress.

§  Angry Vikings demanding respect from fat cats on the hill after all these years.

Ø  Law Day, U.S.A.: My favorite of these ridiculous holidays is “Law Day, U.S.A.”—that’s May 1st.[6]

o   Loyalty Day: Be careful, though. May 1st is also Loyalty Day—Congress threw that in during the Cold War, but it’s still on the books today, and each year the President of the United States has to squirm through a proclamation declaring it officially “Loyalty Day” in the United States of America.[7]

§  Joke: That’s every May 1st, so if you’re thinking about being disloyal that day, Congress is one step ahead of you!

Ø  Presidential Prerogative: Now Congress has designated these holidays, but the President doesn’t have to issue these proclamations.

o   Congress has passed a statute in each case asking him nicely to do it, and Presidents almost always oblige even the ones who hate Leif Erikson.

 

Proclamations without legal force are almost always just laudatory pronouncements honoring a random issue deemed important to American life.

The most ambitious proclamations will urge Americans to engage in specific meaningless acts to symbolize their support for the romanticized ideal that is the subject of the document. 

Ø  National School Lunch Week Example: For example, every year during the week beginning on the second Sunday in October, Congress requests that the President issue a proclamation “calling on the people of the United States to observe National School Lunch Week with appropriate ceremonies and activities.”[8] 

o   Joke: I eat a few sloppy Joes, but there’s really not much more I can do.

 

Footnotes

[1] See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654-55 (1952) (Jackson, J., concurring) (“The Executive, except for recommendation and veto, has no legislative power.”); see also 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.”).

[2] See generally Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2290 (2001).

[3] 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 (“Proclamations are also one of the oldest types of presidential directive, the earliest appearing in October 1789, when President Washington declared Thursday, November 26, to be “a day of public thanksgiving.” Like most proclamations, it affected primarily the activities and interests of private individuals and, like many proclamations, it was at best hortative.”).

[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 (“For the past 20 years, proclamations have been largely hortative, often being used to declare commemorative occasions.”).

[5] See 36 U.S.C. § 114 (“The President may issue each year a proclamation designating October 9 as Leif Erikson Day.").

[6] See 36 U.S.C. § 113 (“(a) Designation.— May 1 is Law Day, U.S.A.(b) Purpose.— Law Day, U.S.A., is a special day of celebration by the people of the United States—(1) in appreciation of their liberties and the reaffirmation of their loyalty to the United States and of their rededication to the ideals of equality and justice under law in their relations with each other and with other countries; and(2) for the cultivation of the respect for law that is so vital to the democratic way of life.(c) Proclamation.— The President is requested to issue a proclamation—(1) calling on all public officials to display the flag of the United States on all Government buildings on Law Day, U.S.A.; and(2) inviting the people of the United States to observe Law Day, U.S.A., with appropriate ceremonies and in other appropriate ways, through public entities and private organizations and in schools and other suitable places.").

[7] 36 U.S.C. § 115 ("Loyalty Day: (a) Designation.— May 1 is Loyalty Day.(b) Purpose.— Loyalty Day is a special day for the reaffirmation of loyalty to the United States and for the recognition of the heritage of American freedom.(c) Proclamation.— The President is requested to issue a proclamation—(1) calling on United States Government officials to display the flag of the United States on all Government buildings on Loyalty Day; and(2) inviting the people of the United States to observe Loyalty Day with appropriate ceremonies in schools and other suitable places.").

[8] 36 U.S.C. § 132(b) (emphasis added).

 


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