Intelligence Law School - Course 1: Lesson 5.3.4 Rare or Obsolete Nomenclature


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LESSON 5: ADMINISTRATIVE LAW


5.3 Presidential Rules


5.3.4 Rare or Obsolete Nomenclature


Lecture Audio



Annotated Lecture Transcript

5.3.4 Rare or Obsolete Nomenclature

So, remember that the three most common[1] types of Presidential rules are:

Ø  Executive Orders;

Ø  Proclamations; and

Ø  Memoranda.

 

But those aren’t the only three names the President has used.

Historically, Presidential rules have come in an assortment of different forms and names.

Here are some examples of some of the different names that have been used for Presidential rules in the past.

I’m not going to explain each one individually, but I’ve put a detailed footnote in the annotated lecture transcript next to each one of them.

So, if you want to learn more about Presidential Reorganization Plans, you can knock yourself out.

Here is a quick list of most of them:

 

Ø  Administrative Orders;[2]

Ø  Certificates;[3]

Ø  Designations of Officials;[4]

Ø  General Licenses;[5]

Ø  Interpretations;[6]

Ø  Letters on Tariffs and International Trade;[7]

Ø  Presidential Announcements;[8]

Ø  Presidential Determinations;[9]

Ø  Presidential Reorganization Plans;[10] and

Ø  Regulations.[11]

 

Some of these are still used occasionally.

Still, the only 3 types of Presidential rules you need to know 99% of the time are:

Ø  Executive Orders;

Ø  Proclamations; and

Ø  Memoranda.

 

Remember that the name used for a presidential rule does not control whether it’s a legislative rule with the force and effect of law.

Except, possibly, in those very limited areas where the President might have independent constitutional authority for lawmaking, the legal force of a Presidential directive is based solely on whether it was issued pursuant to a delegation of lawmaking power from Congress.

If the President has been delegated lawmaking authority, he can promulgate his regulation via Post-It-Note, or write it on the back of a napkin, if he wants.[12]

As long as it is dated and signed by the President, it will it will be a valid legislative rule with the full force of law.

Ø  NSA Joke: In fact, that “napkin” method, that’s kind of how President Truman created the NSA.[13]

 

 

 

Footnotes

[1] 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 (“Executive orders and proclamations are probably two of the best known types, largely because of their long-standing use and publication in the Federal Register and the Code of Federal Regulations (CFR). Others are less familiar, some because they are cloaked in official secrecy. There is, as well, the oral presidential directive, the sense of which is captured in an announcement which records what the President has prescribed or instructed.”).

[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 (explaining that “instruments denominated as administrative orders took a variety of forms—delegations of authority, determinations, directives, findings, letters, memoranda, and orders—on a wide array of administrative matters. In fact, some items appeared to overlap other types of presidential directives. For example, some international trade instruments, sometimes in letter form, were considered to be administrative orders, as were designations of officials.”).

[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 (describing “Certificates” as follows: “Apparently only one presidential certificate, as such, was published in the Federal Register and subsequently included in a CFR Title 3 compilation. Issued March 27, 1940, pursuant to a farm crop production and harvesting loan statute of 1937, [Citing 50 Stat. 5] the instrument certified that four Washington counties were distressed emergency areas and, therefore, not subject to the loan limitations stated in the law. [Citing 3 C.F.R., 1938-1943 Comp., p. 1322]. Although there is evidence that Presidents had issued statutorily authorized certificates prior to this time, no directives of this designation have appeared in subsequent CFR Title 3 compilations. [Citing e.g. Samuel I. Rosenman, comp., The Public Papers and Addresses of Franklin D. Roosevelt. Vol. 4: The Court Disapproves, 1935 (New York: Random House, 1938), p. 113 (certification of the proposed Constitution of the Philippine Islands).].”).

[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 (describing “Designations of Officials” as follows: “Since the establishment of the Federal Register and the CFR, presidential letters designating individuals to hold specified official positions in the government have been reproduced in these publications. The first, dated May 28, 1941, vested Secretary of the Interior Harold L. Ickes with the additional position and accompanying duties of Petroleum Coordinator for National Defense. The second, however, established a new position, Coordinator of Information, and designated William J. Donovan, a private individual, to fill it. Subsequent designations have been of both types—some being an additional position for an individual already holding an official post, others being an original appointment of a private person to an existing vacant or newly created position. The President may unilaterally make designations where no Senate approval of the appointment is required and where he has the authority and resources to create new official positions to be filled by designees. Some designations are merely delegations of presidential authority to constitutional officers such as Cabinet secretaries. Two more recent designations, one in 1979 and another in 1982, were of a slightly different character: officials, by title, were designated to have authority to security classify information at the “Top Secret” level.”) (internal footnotes omitted).

[5] 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 (stating that “[i]ndications are that only one presidential general license, as such, was published in the Federal Register and subsequently included in a CFR Title 3 compilation. Issued December 13, 1941, shortly after the Japanese attack on Pearl Harbor and congressional declarations of war on Japan and Germany, [Citing 55 Stat. 795, 796] the general license, signed by President Roosevelt, authorized the conduct of certain export transactions otherwise prohibited during wartime by the Trading with the Enemy Act of 1917, as amended. It also delegated to the Secretary of the Treasury responsibility to regulate such transactions. [Citing 3 C.F.R. 1938-1943 Comp., p. 1328]. An emergency action taken to assist the prosecution of the war, the general license facilitated the shipment of material to U.S. allies for that effort. No directives of this designation have appeared in subsequent CFR Title 3 compilations.”).

[6] 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 (explaining that “[o]nly two presidential interpretations, denominated as such, have appeared in the Federal Register and CFR Title 3 compilations. The first, dated May 20, 1942, and signed by President Roosevelt, was a clarification and interpretation of E.O. 9128 of April 13, 1942, concerning functions of the Department of State and the Board of Economic Warfare. The second, dated November 5, 1943, was actually a letter to Attorney General Francis Biddle from President Roosevelt. It concerned the construction of E.O. 9346 of May 27, 1943, regarding the insertion in government contracts of a provision obligating signatory contractors not to discriminate against any employee or applicant for employment on account of race, creed, color, or national origin. Neither instrument was actually a presidential directive, but both did interpret previously issued directives. Furthermore, it could be argued that the President might have asked the Attorney General to prepare and issue these interpretations on his behalf, but apparently wished to offer his own viewpoint in these two instances.”) (internal footnotes omitted).

[7] 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 (explaining that “[p]residential letters on tariffs and international trade have appeared in the Federal Register and the CFR since the beginning of their publication. The earliest, dated March 20, 1936, and addressed to the Secretary of the Treasury, directs the continuation of duties on imported goods produced by certain specified countries. Indeed, the Secretary of the Treasury appears to be the recipient of all such published letters appearing in CFR Title 3 compilations through 1978. The last such letter to date to appear in these compilations was sent jointly to the Speaker of the House and the President Pro Tempore of the Senate on January 4, 1979. Presidential letters and memoranda on matters other than tariffs and international trade are sometimes denominated as administrative orders and appear as such in CFR Title 3 compilations …”) (internal footnotes omitted).

[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 (describing “Presidential Announcements” as follows: “An oral presidential directive oftentimes is captured in an announcement which records what the President has prescribed or instructed. For example, President Richard Nixon established his Advisory Council on Executive Organization in this manner, with a April 5, 1969, announcement, as did President William Clinton when he inaugurated his National Performance Review task force on March 3, 1993. By contrast, such temporary government reform study panels were mandated on various occasions during the first half of the twentieth century and during the Reagan Administration with written charters expressed in statutes or executive orders. Such presidential announcements, as in the examples cited, often are recorded in the Weekly Compilation of Presidential Documents, a presidential gazette launched in the summer of 1965 and published 52 times a year. However, they do not appear in the Federal Register or in the Public Papers of the Presidents of the United States, produced by the National Archives for Presidents Herbert Hoover, Harry S. Truman, and the Chief Executives succeeding Truman.”) (internal footnotes omitted).

[9] 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 (“In 1972, certain instruments, identified as presidential determinations, but appearing in CFR Title 3 compilations in the administrative orders category, began to have hyphenated identification numbers, the first figure indicating the year of issuance and the second marking the sequence of promulgation. Presidential determinations, as a particular type of administrative order, first appeared in the Federal Register and CFR in 1964. In general, indications are that, during at least the past 40 years, presidential directives published in the Federal Register in forms other than those of executive orders, or proclamations, have been denominated as administrative orders when reproduced in CFR Title 3 compilations.”).

[10] 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 (stating that “Congress first authorized the President to propose plans for the reorganization of the executive departments and agencies in a 1939 statute. [53 Stat. 561] The objective of such reconfigurations was to achieve efficiency and economy in administration.”).

[11] 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 (“CFR Title 3 compilations for the 1938-1943 and 1943-1948 periods contain the texts of nine administrative documents denominated as regulations. The first of these was issued on September 6, 1939, and the last on September 19, 1945. Eight of them bear the signature of President Roosevelt; another one, signed by three commissioners of the U.S. Civil Service Commission, indicates it was approved by President Truman. With the exception of one brief extension item and another relying upon an executive order, all of these documents cite explicit statutory authority for their issuance. The Roosevelt items largely pertained to the allocation of defense materials to nations of Western Europe engaged in war with Germany. The regulations approved by Truman concerned within-grade salary advancements for federal employees. While earlier examples of Presidents issuing regulations can be found, no directives of this designation have appeared in subsequent CFR Title 3 compilations. 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.”) (internal footnotes omitted).

[12] 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 (noting that “during the years prior to the Lincoln Administration, a President might inscribe upon a sheet of paper words establishing new policy, decreeing the commencement or cessation of some action, or ordaining that notice be given to some declaration. Dated and signed by the Chief Executive, the result was a presidential directive.”).

[13] The National Security Agency was created by a 7-page memorandum sent by President Harry Truman to Secretary of State Dean Acheson and Secretary of Defense Robert Lovett back on October 24, 1952.  See James Bamford, The Puzzle Palace: A Report on America’s Most Secret Agency 15-19 (1982) (Penguin Books Ed. 1983) (providing a fascinating account of the founding of the National Security Agency); see also James Bamford, Body of Secrets: Anatomy of the Ultra-Secret National Security Agency 31 (2001) (Anchor Books Ed. 2002) (providing additional historical background behind President Truman’s decision to create the National Security Agency as a replacement for the Armed Forces Security Agency).

 


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