Presidential Ordinance-Making Power
PRESIDENTIAL ORDINANCE-MAKING POWER
As a means of carrying out constitutional and statutory duties, Presidents issue regulations, proclamations, and executive orders. Although this exercise of legislative power by the President appears to contradict the doctrine of separation of powers, the scope of administrative legislation has remained broad. Rules and regulations, as the Supreme Court noted in United States v. Eliason (1842), "must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority."
It is established doctrine that "the authority to prescribe rules and regulations is not the power to make laws, for no such power can be delegated by the Congress," as a federal court of appeals declared in Lincoln Electric Co. v. Commissioner of Internal Revenue (1951). Nevertheless, vague grants of delegated authority by Congress give administrators substantial discretion to make federal policy. Over a twelve-month period from 1933 to 1934 the National Recovery Administration issued 2,998 orders. This flood of rule-making activity was not collected and published in one place, leaving even executive officials in doubt about applicable regulations.
Legislation in 1935 provided for the custody of federal documents and their publication in a "Federal Register." The Administrative Procedure Act of 1946 established uniform standards for rule-making, including notice to the parties concerned and an opportunity for public participation. Recent Presidents, especially gerald ford, jimmy carter, and ronald reagan, have attempted to monitor and control the impact of agency regulations on the private sector.
Proclamations are a second instrument of administrative legislation. Sometimes they are hortatory in character, without legislative effect, such as proclamations for Law Day. Other proclamations have substantive effects, especially when used to regulate international trade on the basis of broad grants of statutory authority. Still other proclamations have been issued solely on the President's constitutional authority, as with pardons and amnesties and abraham lincoln's proclamations in April 1861. When a statute prescribes a specific procedure in an area reserved to Congress and the President follows a different course, proclamations are illegal and void.
From ancient times a proclamation was literally a public notice, whether by trumpet, voice, print, or posting. Yet in 1873 the Supreme Court in Lapeyre v. United States declared that a proclamation by the President became a valid instrument of federal law from the moment it was signed and deposited in the office of the secretary of state, even though not published. These early proclamations eventually found their way into the Statutes at Large, but not until the Federal Register Act of 1935 did Congress require the prompt publication of all proclamations and executive orders that have general applicability and legal effect.
Executive orders are a third source of ordinance-making power. They draw upon the constitutional power of the President or powers expressly delegated by Congress. Especially bold were the orders of President franklin d. roosevelt from 1941 to 1943; without any statutory authority he seized plants, mines, and companies. Actions that exceed legal bounds have been struck down by the courts, a major example being the Steel Seizure Case (youngstown sheet and tube co. v. sawyer, 1952). Executive orders cannot supersede a statute or override contradictory congressional expressions.
Congress has used its power of the purse to circumscribe executive orders. After President richard m. nixon issued executive order 11605 in 1971, rejuvenating the subversive activities control board, Congress reduced the agency's budget and expressly prohibited it from using any of the funds to implement the President's order. Congress has also prevented the President from using appropriated funds to finance agencies created solely by executive order.
Fleishman, Joel L. and Aufses, Arthur H. 1976 Law and Orders: The Problem of Presidential Legislation. Law and Contemporary Problems 40:1–45.
Hart, James 1925 The Ordinance Making Powers of the President of the United States. Baltimore: Johns Hopkins University Press. [Reprinted in 1970 by Da Capo Press.]