This article examines the use of executive orders as instruments of presidential direct administration. In order to establish groundwork for a critical analysis of the difficulties associated with the use of executive orders, the piece begins with a description of the characteristics and development of this instrument of governance. It then argues that executive orders present a variety of conflicts with existing principles of administrative law. It contends that these problems counsel restraint in the use of executive orders and improvement in the procedures by which those orders that are necessary are issued and implemented.
Get full access to this article
View all access options for this article.
References
1.
BAILYN, B. (1963) The Ideological Origins of the American Revolution. Cambridge, MA: Belknap.
2.
BALL, H. (1983) The Politics of Regulatory Sprawl. Westport, CT: Greenwood.
3.
BARNARD, C. (1968) The Functions of the Executive. Cambridge, MA: Harvard Univ. Press.
4.
BERMAN, L. (1979) The Office of Management and Budget and the Presidency. Princeton, NJ: Princeton Univ. Press.
5.
BRUFF, H. (1979) "Presidential power and administrative rulemaking."Yale Law J.88 (January): 451-508.
6.
BRUFF, H. (1982) "Judicial review and the president's statutory powers."Virginia Law Rev.68 (January): 1-61.
7.
CASH, R. (1963) "Presidential power: use and enforcement of executive orders."Notre Dame Lawyer39 (December): 44-55
8.
COLE, R. and D. CAPUTO (1979) "Presidential control of the senior civil service: assessing the strategies of the Nixon years."Amer. Pol. Sci. Rev.73: 399-412.
9.
Comment (1972a) "Executive orders and the development of presidential power."Villanova Law Rev.17 (March): 688-698.
10.
Comment (1972b) "The Philadelphia plan: a study in the dynamics of executive power."University of Chicago Law Rev.39 (Summer): 723-760.
11.
COOPER, P. (1983) Public Law and Public Administration. Palo Alto, CA: Mayfield.
12.
CORWIN, E. (1957) The President: Office and Powers. New York: New York Univ. Press.
13.
DAVIS, K. (1978) Administrative Law Treatise. San Diego, CA: Davis.
14.
FARRAND, M. [ed.] (1966) The Records of the Federal Convention of 1787. New Haven, CT: Yale Univ. Press.
15.
FISHER, L. (1978) The Constitution Between Friends. New York: St. Martin's.
16.
FISHER, L. (1981) The Politics of Shared Power. Washington, DC: Congressional Quarterly.
17.
FLEISHMAN, J. and A. AUFSES (1976) "Law and orders: the problem of presidential legislation."Law and Contemporary Problems40 (Summer): 1-45.
18.
FRANK, J. (1942) If Men Were Angels: Some Aspects of Government in a Democracy. New York: Harper & Brothers.
GELLHORN, W. (1941) Federal Administrative Proceedings. Baltimore MD: Johns Hopkins Univ. Press.
21.
GILMOUR, R. (1983) "Presidential preclearance of regulation." Presented at the meeting of the American Society for Public Administration.
22.
GRISWOLD, E. (1934) "Government in ignorance of law—a plea for better publication of executive legislation."Harvard Law Rev. (December): 198-215.
23.
LORD HAILSHAM of St. Marylebone [ed.] (1973) Halsbury's Laws of England. London: Butterworths.
24.
HAMILTON, A. , J. MADISON, and J. JAY (1961) The Federalist Papers. New York: Mentor.
25.
HART, J. (1925) The Ordinance Making Powers of the President of the United States. Baltimore, MD: Johns Hopkins Univ. Press.
26.
HUNT, G. [ed.] (1906) The Writings of James Madison. New York: G. P. Putnam's Sons.
27.
KEENAN, H. (1974) "Executive orders: a brief history of their use and the president's power to issue them" (revised February 26, 1974, by Grover S. Williams), in U.S. Senate, Report of the Special Committee on National Emergencies and Delegated Emergency Powers, Executive Orders in Times of War and National Emergency. 93rd Congress, 2nd Sess. (Committee Print).
28.
LOCKHART, W. (1976) "Discretionary clemency: mercy at the prosecutor's option."Utah Law Rev.: 55-83.
29.
MORGAN, R. (1970) The President and Civil Rights: Policy-Making by Executive Order. New York: St. Martin's.
30.
MORRISON, A. (1982) "Presidential intervention in informal rulemaking: striking the paper balance."Tulane Law Rev.56 (April): 879-902.
31.
NATHAN, R. (1975) The Plot That Failed: Nixon and the Administrative Presidency. New York: John Wiley.
32.
Note (1977) "The inflation impact statement program: an assessment of the first two years."Amer. Univ. Law Rev.26 (Summer): 1138-1168.
33.
Note (1979) "Executive Order 11,246 and reverse-discrimination: challenges to presidential authority to require affirmative action."NYU Law Rev.54 (May): 376-412.
34.
Office of the Federal Register (1982) Codification of Presidential Proclamations and Executive Orders, January 20, 1961-January 20, 1981. Washington, DC: Government Printing Office.
35.
RANDALL, R. (1979) "Presidential power versus bureaucratic intransigence: the influence of the Nixon administration on welfare policy."Amer. Pol. Sci. Rev.73 (September): 795-810.
36.
REMMERT, J. (1969)"Executive Order 11,126: executive encroachment."Amer. Bar Assn. J.55 (November): 1037-1040.
37.
ROHR, J. (1983) "The administrative state constitutional principle." Presented at the 1983 meeting of the American Political Science Association.
38.
ROHR, J.1986) To Run a Constitution. Lawrence: Univ. of Kansas Press.
39.
ROSENBERG, M. (1981) "Beyond the limits of executive power-presidential control of agency rulemaking under Executive Order 12,291."Michigan Law Rev.20, 2: 193-247.
40.
ROSSITER, C. (1976) The Supreme Court and the Commander in Chief. Ithaca, NY: Cornell Univ. Press.
41.
SCHUBERT, G., Jr. (1957) The President in the Courts. Minneapolis: Univ. of Minnesota Press.
42.
STORY, J. (1851) Commentaries on the Constitution of the United States with a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution. Boston: Charles C. Little & James Brown.
43.
U.S. House (1957) Committee on Government Operations, Executive Orders and Proclamations: A Study of a Use of Presidential Power. 85th Congress, 1st Sess. (Committee Print).
44.
U.S. House (1980) Hearings Before the Subcommittee on Trade of the Committee on Ways and Means, Oil Import Fees: The Administration of the Program and Its Impact. 96th Congress, 2nd Sess.
45.
U.S. House (1981a) Committee on Energy and Commerce, Presidential Control of Agency Rulemaking: An Analysis of Constitutional Issues that May Be Raised by Executive Order 12,291. 97th Congress, 1st Sess. (Committee Print).
46.
U.S. House (1981b) Hearings Before the Subcommittee on Oversight and Investigation of the Committee on Energy and Commerce, the Role of OMB in Regulation. 97th Congress, 1st Sess.
47.
U.S. House (1982a) Committee on Governmental Operations, Security Classification Policy and Executive Order 12356. House Rpt. 97-731, 97th Congress, 2nd Sess.
48.
U.S. House (1982b) Hearings Before a Subcommittee of the Committee on Government Operations, Executive Order on Security Classification. 97th Congress, 2nd Sess.
49.
U.S. Senate (1969) Hearings Before the Subcommittee on Separation of Powers of the Committee on the Judiciary, The Philadelphia Plan: Congressional Oversight of Administrative Agencies. 91st Congress, 1st Sess.
50.
U.S. Senate (1971a) Hearings Before the Subcommittee on Separation of Powers of the Committee on the Judiciary, President Nixon's Executive Order 11605 Relating to the Subversive Activities Control Board. 92nd Congress, 1st Sess.
51.
U.S. Senate (1971b) Report of the Subcommittee on Separation of Powers of the Committee on the Judiciary, Congressional Oversight of Administrative Agencies: The Philadelphia Plan. 92nd Congress 1st Sess. (Committee Print).
52.
U.S. Senate (1973) Special Committee on the Termination of the National Emergency, Summary of Emergency Power Statutes. 93rd Congress, 1st Sess. (Committee Print).
53.
U.S. Senate (1974a) Report of the Special Committee on National Emergencies and Delegated Emergency Powers, Executive Orders in Times of War and National Emergency. 93rd Congress, 2nd Sess. (Committee Print).
54.
U.S. Senate (1974b) Special Committee on National Emergencies and Delegated Emergency Powers, Summary of Executive Orders in Times of War and National Emergency. 93rd Congress, 2nd Sess. (Committee Print).
55.
WARREN, C. (1923) The Supreme Court in United States History. Boston: Little, Brown.
56.
WILSON,J. (1967)"Lectures on the law," in R. McCloskey (ed.) The Works of James Wilson. Cambridge, MA: Belknap.
