Hearings of the
Committee on Rules

Subcommittee on Legislative & Budget Process

Wednesday, October 27, 1999

The subcommittee met, pursuant to call, at 10:00 a.m. in Room H-313, The Capitol, Hon. Porter J. Goss [chairman of the subcommittee] presiding.

Present: Representatives Goss, Pryce, Hastings, Dreier, and Sessions.

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Having said that, I want to welcome our witnesses to what I hope will be an important original jurisdiction hearing of the Subcommittee on Legislative and Budget Process. Our subcommittee's jurisdiction, which is most often associated with topics related to the budget process, also includes responsibility for reviewing matters of concern about the relationship between the legislative and the executive branches, a matter of some concern inside the Beltway and, hopefully, outside the Beltway, too.

In my relatively short tenure on this committee, I recall that my predecessor in this position, the distinguished former member from South Carolina, Butler Derrick, used the jurisdiction of our subcommittee to consider the important issue of the pocket veto.

In that tradition, we are here today to consider the subject of executive orders and the manner in which they impact on the legislative process. Executive orders are, at their simplest, meant to be instructions by the President to his subordinates. In their most benign form, they are management tools, means by which a chief executive can establish conformity and consistency across the many far-flung elements of his or her administration. Yet things have rarely been that simple in the realm of Federal governance.

Since the first executive order was issued in 1789 by President George Washington, there have been occasions where orders issued by the President have engendered public debate and controversy, sometimes leading to congressional or judicial reaction. We have seen this trend increase in recent decades as the scope and reach of the Federal Government have broadened, increasing the probability that policies implemented across the entire executive branch end up impacting the lives of the citizenry. Some have termed the active use of executive order "executive lawmaking".

It also appears to me that we have encountered significant creativity and ingenuity on the part of Presidents to use executive orders to advance their agendas when the legislative process has proven unwilling or unable to yield the desired results. Members may recall that as Ronald Reagan was preparing to take office as President in 1981 the Heritage Foundation published a book entitled, quote, "Mandate for Leadership," unquote, which included a list of proposals to implement more conservative policies through executive order. That list comprised 22 areas of policy, covering a broad range of issues and controversies.

On the flip side of the ideological spectrum, we can note that it was a senior advisor to President Clinton who summed up the tremendous power of the President to make policy via executive order when he said, and I quote, "Stroke of the pen, law of the land, kind of cool," unquote.

Additionally, a by-product of modern technology appears to have been greater public awareness of and interest in the unilateral actions taken by the executive. Today we have cable television, talk radio and the Internet as a means to provide unprecedented access to a wealth of information for the average citizen with an interest. I have found in recent years that more and more of the people that I represent in southwest Florida are contacting me to discuss concerns with executive orders, and indeed I would say that every time I go to a town hall or radio talk show we now have questions about executive orders. So it is something that has captured the imagination of the people we serve.

When you consider the topic of executive orders, there are almost as many subject areas possible under this heading as there are policies of the Federal Government, and that's a lot. Executive orders have touched upon a broad range of issue areas, and I know that we will get into some of those specific cases as we proceed today.

I should point out that there is a whole category of executive orders relating to implementing policies for our national security, an area of particular concern to me. Today, these are known as presidential decision directives, or PDDs, and they are mostly classified due to their sensitive content.

I wish to assure my colleagues that as chairman of the Intelligence Committee I know that congressional oversight in this area is vigorous and thorough, and in fact we spend an awful lot of time focused on those PDDs. We have chosen for a starting point in today's hearing the broader view.

We are looking at the process of executive orders: Where do they come from and under what authority are they issued? What are the procedures undertaken by the various elements of the executive branch with responsibility for executive orders? What have the trends been over recent history with respect to executive orders? To what extent does the public need to know or even care about executive orders? What is the proper role of the Congress in guarding their legislative prerogatives? And how well has Congress been doing in conducting oversight in this area? Obviously there are additional questions, but these are questions to guide our discussions today.

These are some of the questions that we have directed to our witnesses, and I am grateful for their participation.

We will start off with a panel of experts. First, we'll hear from Douglas Cox who is currently a partner at the law firm of Gibson, Dunn and Crutcher and formerly was the Principal Deputy Assistant Attorney General in the Office of Legal Counsel at the Department of Justice under President Bush.

Joining him on this panel is Neil Kinkopf, who until 1997 served as Special Assistant in the Office of Legal Counsel at the Department of Justice and currently teaches law at Georgia State University.

We also have Robert Bedell, whose career at OMB included serving as Administrator of the Office of Federal Procurement Policy, Deputy and Acting Administrator of the Office of Information and Regulatory Affairs, and Deputy and Acting General Counsel of the OMB. Bob's tenure spanned 15 years and four Presidents, and today he is the President of the RPB Government Affairs Company.

Lastly on this panel we will hear from Tom Sargentich, currently Professor of Constitutional and Administrative Law at the Washington College of Law at American University. Tom formerly served as a Senior Attorney Advisor in the Office of Legal Counsel at the Department of Justice under Presidents Carter and Reagan.

We will then hear from William Olson, who has just completed a study for CATO on the issue of executive orders; and we will conclude the hearing with a presentation by Raymond Mosley, the Director of the Office of the Federal Register at the National Archives and Records Administration. I am particularly interested in this subject.

I would like to note that we have extended to the Clinton administration, through our minority, the opportunity to participate in today's hearing. Our staff has told us this offering was declined, which is certainly their right. Perhaps as this project of review proceeds, they will wish to become involved in sharing their thoughts on some of these important matters; and I hope so.

Before I turn to our witnesses, I also want to advise members that this topic is one of interest to many of our House colleagues. In fact, I understand that the House Judiciary Committee's Subcommittee on Commercial and Administrative Law has scheduled a hearing on executive orders for tomorrow. They plan to consider two legislative proposals that have been introduced on this subject, that I am aware of; and there, in fact, may be more than those two.

At this time, in the absence of our ranking member, Mr. Frost, it gives me pleasure to yield to the distinguished chairman of the Rules Committee, the Honorable David Dreier of California, without whose support and interest this subcommittee hearing would not have been possible.

[The statement of Mr. Goss follows:]

 

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Mr. Dreier. Thank you very much, Mr. Chairman.

I would say at the outset that I think it is more than kind of cool that you are holding this hearing, and I believe that this is an issue which is, in fact, gaining widespread public interest. Late last night, after I had left here, I went through my three weekly magazines and picked the Washington Whispers column of this week's U.S. News and World Report. After I read about George Bush and the stinginess of the campaign and several other things, I got to an item called "Project Podesta," which says, "White House Chief of Staff John Podesta, frustrated with the balky Republican Congress, thinks it is time for President Clinton to show who's boss," how Clinton plans a series of executive orders and changes to Federal rules that he can sign into law without first getting the okay from GOP naysayers. Since it is Podesta's idea, aides have dubbed it "Project Podesta.""

The namesake told our Kenneth T. Walsh, quote, "There is a pretty wide sweep of things we are looking to do and we are going to be very aggressive in pursuing it. Up first, new rules to protect medical privacy and health records and providing paid leave for parents to take care of their newborns." .

Now, obviously many of these things are very well intended, but it does seem to me that, as they go further than even those things that we have authorized here, that we need to take a very close look at this issue. I will say that at the beginning of the 106th Congress, I worked closely with Speaker Hastert in trying to expand Congress' involvement in programmatic and policy oversight, which is a very important constitutional responsibility which we hold here, and it is often forgotten.

Frankly, executive orders are a significant and yet less frequently examined tool for carrying out legislative intent. That's one of the reasons that this hearing is so important. And even though I raised this issue that was in this week's news magazine, I would like to say that we are not with this hearing focusing on one particular executive order -- or one particular administration, quite frankly -- but we just want to better understand the very important relationship, as it was envisaged by the Founders, between the executive and the legislative branches.

The President's executive order authority is not something that we seek to undermine at all. As I said, we are not focused on the actions of just one President. We do want to make sure that executive orders continue to be written with the appropriate constitutional or statutory authority, and they are not used to subvert the legislative process or implement policies that are not in the public interest.

So let me say that I appreciate the time and effort that has gone into this hearing by Chairman Goss and staff and to the witnesses who have taken time to prepare their thoughts on this very important issue, and I express my appreciation also.

Thank you, Mr. Chairman.

Mr. Goss. Thank you, Mr. Chairman.

I again -- in the absence of the ranking member at this time, I am going to go directly to the panel. I do want to bring to the attention of members who are here -- and I am grateful for the participation of Judge Pryce and Doc Hastings from Washington -- that the staff has done really excellent background work on this, and I would recommend, if you have the opportunity to go through the materials that have been provided, at your leisure, there is quite a wealth of very provocative subject matter.

Sometimes we talk about the activist court and deal with that issue and the separation of powers in the three branches. Now we are talking about the other two players today. That doesn't mean we have to suspend from our minds the activist court. We would never want to do that. But I think it is sort of in that atmosphere that we are looking for balance, as the chairman has said.

With that, we look forward to the expert testimony ahead.

Mr. Dreier. They have some statements they want to submit for the record.

Mr. Goss. I am sorry. We would be very happy to hear them.

Would you like to make the statements publicly?

Ms. Pryce. I don't care to. I will just submit it.

Mr. Goss. Without objection, Judge Pryce's statement will be accepted for the record and Doc Hastings' will be submitted for the record.

[The statement of Ms. Pryce follows:]

 

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Mr. Goss. Do you wish to speak?

Mr. Hastings. No. I will wait for the questions.

I will just say, though, Mr. Chairman, that I concur with you about the documents that were given to our offices from the staff. I think they were very enlightening for me as I was reviewing that, so I look forward to the testimony of our witnesses, and hopefully that will -- I am sure it will spark some more thoughts in my mind and questions.

So thank you, Mr. Chairman.

[The statement of Mr. Hastings follows:]

 

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Mr. Goss. Thank you. We will begin with the first panel and please excuse the designation of the panel. We recognize you are all individuals. We have grouped the thought, we hope, into the three panels in order to provide ourselves the opportunity for appropriate questioning at the appropriate breaks.

I believe Mr. Cox is going to start, to be followed by Mr. Kinkopf, Mr. Bedell, Mr. Sargentich, in that order.

 

STATEMENTS OF DOUGLAS COX, PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, 1992-1993, AND PARTNER, GIBSON, DUNN & CRUTCHER LLP; NEIL KINKOPF, SPECIAL ASSISTANT, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, 1993-1997, AND PROFESSOR OF LAW, GEORGIA STATE UNIVERSITY; ROBERT BEDELL, ADMINISTRATOR, OFFICE OF FEDERAL PROCUREMENT POLICY, OFFICE OF MANAGEMENT AND BUDGET, 1986-1988, DEPUTY AND ACTING ADMINISTRATOR, OFFICE OF INFORMATION & REGULATORY AFFAIRS, 1983-1986, DEPUTY AND ACTING GENERAL COUNSEL, 1973-1983; AND PRESIDENT, RPB COMPANY; AND TOM SARGENTICH, SENIOR ATTORNEY ADVISER, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, 1978-1983, AND PROFESSOR OF CONSTITUTIONAL AND ADMINISTRATIVE LAW, WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY .

Mr. Goss. If that's agreeable with you, Mr. Cox, the floor is yours.

 

STATEMENT OF DOUGLAS COX

 

Mr. Cox. Thank you, Chairman Goss, for inviting me to testify today on the important topic of executive orders. Rather than repeat my written testimony, with your permission, I will underscore a few key points regarding the role of executive orders in our constitutional system and the tools available to Congress to respond to unlawful executive orders in defense of its own constitutional powers.

The President does have broad authority to issue executive orders, to guide and control the work of the executive branch. As the Supreme Court recognized in the Steel Seizure case, that authority flows from the Constitution itself and also from statutes. Although executive orders are not explicitly mentioned in the Constitution, the authority to direct the executive branch is inherent in the President's role as the head of a unitary executive branch.

That authority is also found in the President's duty to take care that the laws are faithfully executed, in the appointments clause, in the commander-in-chief clause, and in other clauses of the Constitution.

In addition, Congress often grants the President statutory authority to issue executive orders, either expressly or by granting the President significant discretion in implementing the statutory scheme.

Whether the President grounds an executive order on the Constitution or on a statute, it is vitally important to the Nation that the executive power be exercised forcefully and consistently and that the chief executive's lawful policy preferences be carried out by subordinates within the executive branch. There is, thus, nothing suspect about executive orders, per se. They offer a valid mechanism for the President to direct and control the executive branch, and the vast majority of executive orders attract little attention or controversy.

Broad as the President's power is, it is, of course, subject to limitations. It is limited by the Constitution and the principle of separation of powers that is embodied in the Constitution. It is often limited by statutes that grant the President only a narrow discretion, and the President's exercise of the power may in certain circumstances be subject to judicial review.

The President's power may be abused, as all government powers may be abused. The threat of abuse may be particularly high when Congress and the executive branch are controlled by different parties. The Framers assumed that each of the political branches would seek to maximize its power and believed that the resulting struggle between the branches would help guarantee liberty.

Certainly when administration officials announce that they intend to adopt sweeping executive orders designed to circumvent Congress, Congress must be vigilant in order to protect its own powers and the constitutional plan. Congress may control executive orders based on statutory authority in a number of ways.

First, Congress can respond to a particular executive order by enacting a contrary statute. In such cases, the statute would control and the executive order would be invalid.

Second, Congress can create general mechanisms to increase congressional oversight of executive orders. For example, Congress could, by legislation, require that any statute-based executive order be submitted to Congress 30 days before it goes into effect so as to enable Congress to consider whether a legislative response is necessary.

Third, Congress can restrain the President's statutory authority by writing narrower, more precise laws. To give one example, Presidents of both parties have found in the broad purposes of the Federal Procurement Act convenient justification for a range of sweeping executive orders. Those executive orders do not necessarily change the legal rights and obligations of anyone outside the executive branch, but to the extent that they offer an incentive, amounting nearly to compulsion, to the very large number of companies that wish to contract with the Federal Government, such executive orders greatly extend the reach of the President's authority beyond the executive branch and into private companies across the Nation.

Congress could narrow the President's discretion under the Federal Procurement Act by amending the act to preclude such efforts to influence the internal policies of private companies seeking to qualify as Federal contractors.

And, of course, Congress can use any of its usual powers of political persuasion -- oversight hearings, confirmation holds and many other forms of legislative pressure short of legislation -- in order to convince the President to drop or redraft an abusive executive order.

But just as there are limits on the President's power to issue executive orders, there are limits on the ability of Congress to rein in the President's exercise of his constitutional powers. There is a core of constitutional authority given to the President that cannot be reached by legislation. Congress, in considering how to respond to the threat of abusive executive orders, must thus proceed with caution. When a President abuses his constitutional authority, Congress has an obligation to respond. Congress has ample constitutional means, including its traditional political tools, to respond to lawless executive orders. Thus, Congress need not resort to assertions of legislative authority that would themselves raise serious constitutional problems.

Thank you, Mr. Chairman.

Mr. Goss. Thank you very much, Mr. Cox.

[The statement of Mr. Cox follows:]

 

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Mr. Goss. Mr. Kinkopf.

 

STATEMENT OF NEIL KINKOPF

 

Mr. Kinkopf. Thank you, Mr. Chairman.

This is, in fact, a very important hearing on a very important and timely and timeless topic. Every statute accords the officer charged with enforcing that statute, unavoidably, a certain amount of discretion, and the exercise of that discretion can aptly be termed lawmaking authority.

Consider, for example, a very simple, straightforward, seemingly specific statute: a speed limit of 55 miles an hour. In a world where it is not possible to pull over everyone who exceeds 55 miles an hour, the officer enforcing that statute must decide whom to pull over and whom to let go. If the officer decides only to pull over cars going over 60 miles an hour because that will best effectuate the legislature's purpose, the officer certainly engages in lawmaking; as a practical matter, the speed limit has been raised to 60 miles an hour. But has the officer been faithless? No. The officer is seeking expressly to advance the purpose of the statute and faithfully to enforce it.

Discretion-yielding lawmaking power can also derive from statutes because of the fact that statutes are durable. They exist over time. And over time, circumstances change. An executive unavoidably has to decide how a statute applies to changed circumstances. In doing so, the executive officer necessarily engages in something that might be termed "lawmaking." .

Finally, statutes interplay, they interact. And when statutes intersect with one another, if they don't themselves tell the officer how to respond, (which often they don't because their interaction is not foreseeable at the time they are enacted), the executive officer has to decide how the two statutes will mesh, how to enforce them consistently with one another. That, itself, can often involve executive lawmaking.

Given that some executive lawmaking is inevitable, Congress has to determine who should do the executive lawmaking. The options would be the President or someone subordinate to the President. It is my contention that in most, though perhaps not all, cases it is best to leave that lawmaking authority in the President or subject to the President's discretion, supervision and control.

The reason for that is that the President is accountable and is accountable to political pressures in ways that his subordinates, who have never stood for election, at least for their current position, have not. In essence, the choice boils down to the President or a faceless bureaucrat; and I think for reasons of accountability, it is generally preferable that the President have the supervision and control, rather than a faceless bureaucrat.

Now, recognizing then that inevitably there is executive lawmaking authority whenever Congress enacts statutes, and that that authority is generally best vested in the President, it does not follow that Congress has no means of keeping the President within the proper bounds. First, Congress can legislate more frequently than it does. It can legislate when circumstances change in order to make clear how the executive should respond to changed circumstances. It can speak specifically to issues of interaction and interplay between statutes when conflicts and tensions arise and become apparent; and as Mr. Cox pointed out, Congress can act to revise or eliminate, or supersede executive orders.

Congress can also engage in oversight through a variety of functions. As Mr. Cox has mentioned, Congress can engage in oversight hearings to educate itself on how, exactly, the executive branch is enforcing the laws and this would support its updating function, its legislating more frequently.

But there are other tools of oversight. An additional tool would be reporting requirements. Rather than going through the formal and time-consuming exercise of holding hearings on every subject, Congress could require executive agencies to submit reports talking about executive orders, how they impact the functions of the agency, what sorts of alternatives are eliminated, what sorts of alternative enforcement mechanisms are eliminated by the executive order; and thereby Congress can keep itself informed without going to the extent of holding oversight hearings on how executive orders are functioning within the executive branch.

Finally, Congress can expressly state its disapproval of executive action through a resolution. It could be a committee resolution, a House resolution or a full Congress resolution.

Another alternative open is structural reform. In a statute such as the one that Mr. Cox cited, the Federal Procurement statute, Congress could set forth and define the basis on which the authority vested by that statute may be exercised. It could further require as to any statutorily-based order, findings be made and be made on the record and be explained.

In addition to these measures that Congress can pursue, there are checks on overreaching by the President. One Chairman Goss mentioned in his opening remarks is an activist judiciary. Judicial review is always available when an executive order reaches out and affects persons outside of the government.

In addition to judicial review, in the instances when that is not available, there are other law interpreters who can pass judgment on the President's contention that he has authority to issue an executive order. For example, Comptroller General opinions very often bear on questions underlying an executive order, especially executive orders issued pursuant to the authority of the Federal procurement statute. Other law interpreters would include the Congressional Research Service, and the House and Senate legal counsels offices.

Furthermore, public pressure and interest group vigilance can supply a very powerful check on executive orders. If the President overreaches his authority in a way that affects interest groups, and most executive orders do, those interest groups can bring pressure directly on the President and can also bring pressure on Congress to respond to the President.

Finally, there are internal checks available within the executive branch. The Office of Legal Counsel vigilantly ensures that executive orders are duly authorized. In addition, its opinions are generally published and provide precedent against which to adjudge any particular assertion of authority to issue an executive order.

Now, even if you are not terribly comfortable trusting the executive branch to police itself -- the fox to police the henhouse as it were -- those mechanisms of internal checking, OLC's opinions and precedents, allow the external checks to function more effectively. The public, Congress and the courts can more effectively assess what the President has done when OLC issues opinions, and those opinions, as they generally do on close questions, become public.

I want to conclude with a caution against trying to legislate too specifically, which I suspect will be a temptation, given the way this problem has been couched. Not only for the reasons that I stated do I think it is futile, I think specific legislation is very often ineffective.

Criminal statutes aimed at the Mafia, for example, have been effective precisely because they are not specific. Criminal enterprises, like many problems that confront the government, are flexible and can change form overnight. If Congress legislates specifically, it will codify forms that can be easily evaded and so in rightly focusing upon concerns about maintaining the proper balance of power between the executive branch and Congress, I would urge that Congress not overlook the importance of its ability to enact effective legislation.

Thank you, Mr. Chairman.

Mr. Goss. Thank you, Mr. Kinkopf.

[The statement of Mr. Kinkopf follows:]

 

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Mr. Goss. Mr. Bedell.

 

STATEMENT OF ROBERT BEDELL

 

Mr. Bedell. Thank you, Mr. Chairman. I too will not repeat what is in my written statement. Nor will I address the subjects that are being addressed by the others on the panel here.

Mr. Goss. I will state that, without objection, all of the testimony that's been written and prepared will be accepted into the record. I look forward to your flying as far from it as you wish.

Mr. Bedell. Thank you. I just wanted to make a couple of points.

First of all, OMB, the Office of Management and Budget, in the Executive Office of the President has the responsibility to process executive orders for the consideration of the President; and for about 10 years, that was among my responsibilities in the General Counsel's Office in OMB. It has been the job of OMB and its predecessors for about 50 years, as best I can tell, to specifically review and process these executive orders. The process has about four major points.

One, everybody knows that OMB controls this process and runs it, and that it is the way by which the formal executive orders are considered and processed and presented to the President. Again, part of this process is run by the General Counsel's Office, and we take a quick look to make sure that the head of an agency has indeed proposed it, not somebody who is thinking on the way home on the bus that, "hey , I have got an idea and let's send it over to OMB." So we review it to make sure that it is indeed an agency proposal that comes over.

Secondly, we make sure that it has what appears to be the appropriate legal basis for doing what it proposes and that it is roughly consistent with what we understand to be the policy of the President and the administration on a particular matter. If we have questions on any of that, we pursue those as well.

We then coordinate these draft proposals with other people within the Executive Office of the President and with the concerned departments and agencies, those we know should have an interest in this; and we attempt to rationalize and to settle any differing views that there may be within the executive branch with regard to the substance of these orders.

And then, as has been mentioned, and I am sure Tom will mention as well, the Office of Legal Counsel in the Department of Justice plays a critical role throughout all of these proceedings. If we have questions early on in the review process of these executive orders about the legality of a particular idea or proposal, we involve the Office of Legal Counsel in an informal fashion very early on.

We don't need to waste a whole lot of time processing something and hammering out details if there isn't the basic legal authority to continue in the first place. But always at the end of the process, on the routing from the Director of the Office of Management and Budget to the White House, the Office of Legal Counsel is involved speaking on behalf of the Attorney General with regard to form and legality of any executive order -- that, again, being another check to make sure that the President has the requisite authority before we present it to him and to his staff as well.

And then finally, an order, once considered by the President and signed, is sent to the Federal Register, where it is then published, codified and made available to everyone to see.

So there is a process. It has been basically the same process for 40 or 50 years. It may vary depending upon the attitudes of the people, but basically, all the folks who process this stuff are career employees of the Executive Office of the President. They guard the fact of an executive order, or that one is in process, very closely. It is not something which is a public process at all. We don't discuss that orders are under review. That, in itself, would bring undue attention and pressure by others into a process that frankly doesn't need it.

Is there ever any interaction with the public on this? I am sure there is, but it just isn't done by OMB, or it wasn't done during my time there. It may be done by those who advise the President and it may be done at the Department or at an agency level, but it is simply not done by us, or wasn't done by us, I should say.

Another thing I wanted to mention was the fact that the executive order is a used , useful means by which the law governing how executive branch officials work is handled. It is a key component to that, but it is only one. The President makes orders of a different nature every day. He decides on appointees. He decides on whether particular legislation should contain this element or that. He makes budget decisions. He makes orders on a continual basis, and people who have been delegated authority by him also do so in his name.

Those too are orders but of a different sense: executive orders are the ones with the legal effect and with general applicability and don't just simply apply to the departments and agencies. They affect other things as well, as has been mentioned, but they are just one part of this activity.

Just to give you an idea of the complexities with which some of these things occur, there is also a Reorganization Authority that Congress has enacted, and while it lapses periodically -- I have often observed it lapsed during Republican administrations and was in effect during most of the Democratic administrations, it seemed. The way that it works is that the President is authorized to submit a Reorganization Plan to Congress, and then, at one point in time it was subject to a one-House vote -- veto, rather -- until that was determined to be an unconstitutional process; and now it requires approval by both Houses under expedited procedures.

But the point is that this is yet another means by which something other than "pure"lawmaking out of the legislative branch, as you know it, takes place.

Now, the Office of Management and Budget itself can be kind of a study of all of this stuff combined. Prior to about 1939 or so, the Bureau of the Budget existed as part of the Treasury Department, and carried out the Budget and Accounting Act, Budget and Accounting Procedures Act, and several other statutes that primarily focused on its budget responsibilities. It was then transferred over to the Executive Office of the President. I think that too was done by an executive order. Additional statutory responsibilities were assigned to it, such as The Federal Reports Act of 1946, its paperwork reduction authority and its process came when it was part of the Executive Office of the President. So the Congress continued to pass statutes giving it additional responsibilities.

In 1970, there was a presidential study by Roy Ash, called the Ash Report, which dealt with the organization of the Executive Office of the President. As a result of that, in reorganization plan number two, of 1970, President Nixon proposed that all of the authorities of the Bureau of the Budget be transferred back to him and that a new office -- called the Office of Management and Budget -- be created. That Reorganization Plan was approved by Congress. It became the law, just as a statute, because that's what the authority provides.

As soon as that became effective, the President issued Executive Order 11541, which then delegated back to the Office of Management and Budget all of the authorities that had been transferred to him by this Reorganization Plan, the legal effect of which was that at that point in time the President could have the next day signed another executive order assigning all of those previous statutory authorities of the Office of Management and Budget around wherever he wanted.

Well, since that time, several other things have happened. Congress has passed additional statutes concerning the Office of Management and Budget, some of them dealing with the very same subject matters as had been transferred by this Reorganization Plan and then delegated down. So in a sense now Congress has reentered the picture here and solidified many of these authorities of OMB, so that it is very questionable whether the President still could reassign these things, Congress having now spoken on that issue again after the Reorganization Authority.

And then, pursuant to all of these authorities, OMB engages in some limited rulemaking, certainly not as active as many of the other agencies, that binds them in certain ways; and they also issue certain nonbinding instructions that apply only to departments and agencies -- at least, are supposed to -- and those are called OMB Circulars. And I know that you have looked into those and confronted those in the past, but they deal with hundreds of different subjects all the way from overhead for nonprofit institutions to the procedures for preparing the budget, for contracting out under OMB's Circular A-76, which has been a very controversial issue in the past. So there are also those kinds of actions.

So the executive order then, taking several steps back, is just one of the mechanisms that a President uses to provide guidance and instructions to his appointees, but there are lots of others as well; and over time they have gotten intertwined, and it is difficult in many instances to sort out the authority of one from another.

The last point I want to make is that with regard to the many things that could be done to improve congressional oversight, if that is the purpose, I have a quick story. I remember back in the early part of the Carter Administration, again dealing with a reorganization plan, they had worked and worked and worked and they had a Reorganization Plan and they had coordinated it with the Chairman of the Government Operations Committee and they were all relatively comfortable with what it would do.

The Reorganization Plan was issued. It took effect, and shortly thereafter an executive order was issued which basically turned the reorganization plan on its head and changed a lot of the policy views -- at least in the opinion of the Chairman of the House Government Operations Committee -- on things that had been hammered out. Effective oversight took place. There was not another Reorganization Plan approved for quite some time.

The Authority itself was amended to make sure, if I recall -- and I didn't have a chance to check this -- to make sure that draft executive orders implementing Reorganization Plans had to be submitted with the Reorganization Plan or they would not have effect. The legislative agenda of the committee -- and of the administration for the next couple of years, at least as it pertained to Government Operations -- was radically altered and there were some very, very uncomfortable hearings, more so than that administration wanted at that period of time.

So sometimes traditional means of congressional oversight can be very, very effective. And that is the last thing that I wanted to say.

Mr. Goss. Thank you, Mr. Bedell.

[The statement of Mr. Bedell follows:]

 

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Mr. Goss. Mr. Sargentich.

 

STATEMENT OF TOM SARGENTICH

 

Mr. Sargentich. Thank you, Mr. Chairman and members of the committee. My name is Tom Sargentich, and I teach at American University's Washington College of Law. I codirect our program on law and government which studies issues at the intersection of law, politics and government. There is no issue more central than this one at the intersection of law and government.

I won't repeat points in my statement or ably made by my colleagues. What I would like to do instead is simply to make three points that strike me as important. I want to talk briefly about executive lawmaking. I would like to talk for a moment about the history of executive lawmaking by Presidents, to highlight it, and then I would like to talk for a moment about the oversight power of Congress.

I don't think the public appreciates the extent to which lawmaking is conducted by the executive branch. Congress, of course, is the national legislature, but you have delegated necessarily broad powers in many, many statutes to agencies of the government and, of course, to the President. And pursuant to these delegations -- as well as constitutional power, I say to my classes -- most lawmaking is conducted by executive agents, that is, authorities of the executive branch. By far, if you look at regulations of agencies, at other decisions by agencies, and at executive orders and proclamations, the vast quantity of law in the United States is made not by Congress but by the executive branch -- now, making law, of course, pursuant to hopefully constitutional authority and statutory authority.

Now, when it comes to the President, executive orders are generally directed at the executive agencies, and presidential proclamations are generally directed at citizens. That's the traditional distinction, although it gets mixed up sometimes in practice. If you combine executive orders and proclamations, as well as national security directives as well as other forms of directives, you have an enormous body of law; and it has happened regularly throughout our history. It is nothing new in the modern period.

So my first point, again, is to stress how important the subject is in general -- not just, of course, presidential lawmaking, but also agency lawmaking. As a person who believes in checks and balances, I think it is wonderful that a committee such as this is undertaking a study of presidential lawmaking.

My second point has to do with some of the famous examples of presidential directives that have made law. It is really quite stunning in American history how much law was made by Presidents unilaterally. George Washington, in 1793, declared in a neutrality proclamation that the United States would be neutral in a war between England and France. That had nothing to do with Congress; that was done by the President. It led to an enormous debate between Madison and Hamilton, a famous debate about the power of the President. Also the Louisiana Purchase was done by Thomas Jefferson through a presidential directive. The annexation of Texas was done by presidential directive. Lincoln issued the Emancipation Proclamation by presidential directive to free the slaves.

During World War II, of course, Roosevelt issued that infamous order interning Japanese on the West Coast, which was upheld in Korematsu. This is a dark chapter in our history, and led Congress in recent years to pass reparations legislation for the families that were so treated.

Harry Truman desegregated the military by executive order after World War II. President Kennedy created the Peace Corps by executive order. Ultimately, of course, there was a statute, but the beginning of it was through an executive order. Kennedy used emergency funds, as is often done; and then he needed money, of course, and Congress has the power of the purse, and it appropriated funds for the Peace Corps.

Affirmative action and many civil rights initiatives by Presidents back to Franklin Roosevelt were done by executive order. A system of centralized executive review of rulemaking going back to the Nixon administration, the Carter administration, the Reagan administration, and the Clinton administration, all done by executive order. And this is just the tip of the iceberg. Enormous historical events can be traced back to presidential, unilateral power -- what amounts to presidential lawmaking or unilateral presidential action.

Now, the third point. I agree with my colleagues as to the categories of things Congress can do, and it seems to me one of the most important things is oversight. And I just wanted to address some of the problems that clearly confront Congress when it engages in oversight power. This is widely recognized in the literature.

What are the incentives on individual Members of Congress? Clearly, the political science literature says, to get reelected. How do you get reelected? By appealing to constituents. Now, if constituents aren't excited by something, then what is the incentive for an individual Member of Congress to get excited about something? Political scientists have started with this premise and have argued that, therefore, Members of Congress often do not have very strong incentives to protect the power of Congress as an institution because that's rather more abstract and rather more general. And yet Justice Jackson said famously in Youngstown, only Congress can prevent power from slipping through its fingers.

A second problem that confronts Congress, aside from its incentives, is the organizational difficulty of passing laws that you are very familiar with, more familiar than any of us. You have got the subcommittee to deal with, you have got the committee to deal with it. You have to get it through committees in both the House and the Senate in identical form.

There are many other roadblocks, of course, that can occur -- not just the filibusters, but the Rules Committees and the leadership, and others. It is difficult, clearly, organizationally to corral hundreds of Members of Congress. You have tremendous transaction costs and collective action problems getting legislation through.

It is much easier for a President to sign a document, with one person acting flexibly, taking the initiative. The incentives for the President clearly are to push the use of the ambiguous Article II power and to do so in a way that protects the power and prerogatives of the executive.

Congress, on the other hand, has difficulty according to the literature, given that their incentives are not so much to protect the institution of Congress as to get reelected. There is a need, in my view, to address that issue. And secondly, the operational problems of acting collectively are considerable.

What does this mean? It means simply that a hearing like this, I think, is an excellent thing. I am a believer in checks and balances, and I do believe that it is important for there to be dialogue between the branches. But I don't think we should be surprised that Presidents through our history have used the unilateral lawmaking power aggressively, given the ambiguity of Article II power, given the flexibility of executive action, and given the broad delegations that have gone to the executive.

Thank you.

[The statement of Mr. Sargentich follows:]

 

******** INSERT 1-6 ******** .

Mr. Goss. I want to thank you all. I appreciate the extra observations departing from your prepared statements, because I think that's the value-added part, the reason we do this.

I have already learned some things. You stimulated some thought. And the summation I make out of this, in some ways, is something that had occurred to me more than once.

We are talking about power-sharing. No matter how you look at it, we have a pie up here that's cut three ways and that's the beauty of our system and the vision of our Founding Fathers. And the power-sharing issue obviously is related to politics, but we are trying to talk about it here in terms of governance. It occurs to me, particularly with regard to Mr. Sargentich's point that the composition of the power structure at any moment in history probably has a lot to do with the variability that we have seen, that was so well outlined by Mr. Bedell and others -- in the history of this.

I can foresee if we had a parliamentary form of government, a two-party system and the party in power was doing the bidding of the leader, in that agenda we would have a different view of executive orders; the definition of opposition would come into play.

It seems that the American public today, the voters, I think those that do vote, sort of enjoy stalemate. I have heard members of the media say that as recently as this morning, that stalemate is something that has hit home. They like the idea of the balance between the parties, and one group controls one thing, the other group controls the other, and then neither can do any serious mischief and everybody can go about their business and prosper, knowing that nothing meaningful really is going to happen to them.

I think there is probably some truth to that. It may be a little cynical, but I think there may be some truth in that.

We clearly have had recited for us for the record that there is a duty here for the elected people to use their positions responsibly, and that requires duty. There is activity in this because we have seen the President doing proclamations, executive orders and PDDs and so forth; and Congress is doing oversight. So we see that there is activity. We see that there are limits that have been clearly outlined by Mr. Cox, Mr. Kinkopf, on both sides, of what we can do. We appear to have the necessary oversight tools and there appears to be a pretty good process down at OMB.

The purpose of this in part today was to review that and sort of take the pulse and say, okay, understanding all of that, so where are we now? How is this working?

What is your view of the pulse in America today on this? Obviously that's a loaded question because I am getting a lot of questions on talk shows when I go on the radio or on TV, and some people are outraged at what goes on.

Mr. Bedell talked about not a lot of public input on the preparation of these executive orders, so that there tends to be a pleasant surprise aspect to them or an "I have been ambushed" surprise to them, which is not so pleasant, which causes the American public to pick up the phone and call their Federal legislator when he or she is on a talk show. We find that happening.

So that means we are here today not just by coincidence, historical accident that suddenly the calendar said that it is time to review this. It is the fact that there is interest out there among the people. Part of the issue is the sunshine question -- I come from the Sunshine State -- the transparency piece. We are trying to create some awareness on the subject today.

I think one of the demands that the public is making on legislators today and on all governments is transparency. That is not because I come from Florida, where we actually do have a government of sunshine. It is not just a motto in our State, but it does work pretty well. And I say that, holding the national security portfolio on PDDs, and recognizing that those -- I think I would make a sincere exception from, with regard to the sunshine and transparency. There is a need.

I would like your views on whether or not you think there is satisfaction in America today on the broad subject of the tension between Congress and the White House on the use of executive orders. And I would like your view on whether or not you think more transparency is a part of your conclusion, or less transparency, if that's part of it, because that is certainly the kind of comment that I am hearing from the people across the land.

I would like to hear from all of you.

Mr. Cox, we will start with you.

Mr. Cox. Thank you, Mr. Chairman. Without purporting to speak to the political mood of the country, I do think that it is the case that the current administration's aggressive announcements about executive orders have raised public concern about precisely what is going on here and the extent to which the President can unilaterally change the law of the Nation.

I think that in responding to that increased level of concern it is often important for people like yourself and the other Members of Congress to look behind the executive orders. Many of the executive orders which the President has announced with great fanfare and which I understand from the press to have elicited substantial public concern, upon examination either are unexceptional as falling clearly within the President's power, or if they, at the margins, are in fact too aggressive, they may not really have much significance beyond the President's ability to make the announcement that this is his policy.

Some of the executive orders of recent years, for example, seem to be little more than press releases, because when you look at them closely, they say at the end, of course, we are only doing this to the extent that the law allows, which seems to acknowledge that the administration is aware that there may well be contrary legal authority and that the executive order may not have much force and effect. So I think that by helping to educate the public from the point of view of Congress, you can respond to any President's aggressive pretensions to use the executive order power.

Mr. Kinkopf. I agree with what Mr. Cox has said. I think that there is often a great deal of fanfare, loud trumpets blaring, accompanying the release of an executive order, but upon examination, not really very much there. The result of the loud trumpets is loud response, both from supporters of the President and detractors. But attention to the details of executive orders tends to indicate that in fact not very much is being done.

Mr. Bedell. I think that's correct. Indeed, for some of the orders that I have looked at of late, there is less -- it amends an existing order -- left at the end of the process than there was at the beginning, in large measure because interest groups didn't like what was there, put in place perhaps by a prior administration.

Indeed, it seems to me that one of the things that happens at the beginning of a new administration is that they immediately go over the executive orders that were issued in the immediate past and say, "I never liked that one very much either," but there are political reasons for it to be there, so let's just mangle it and leave something in place that has the name so that nobody can get really mad at us for having rescinded it. But at the same time we have taken all of the teeth out of it.

The ability to get transparency into the process is a difficult one. I think it behooves an administration to do a lot of that, to not take people by surprise, certainly not take Congress by surprise by it, but that is really an election on their part to do it and if they choose not to do it, they are obviously making a judgment that the pain of doing so is not worth the benefits gained from that type of coordination.

As far as Congress trying to impose an Administrative Procedures Act kind of rulemaking transparency on the President, that might be difficult with regard to his constitutional authorities, but with regard to his statutory authorities, I don't know that it would raise those kinds of concerns .

Mr. Sargentich. Mr. Chairman, your question about divided government is an excellent one. Of course, for a long time, Congress was dominated by Democrats and we had a Republican President. Now we have the opposite situation. Divided government does lead to stalemate, partisan bickering, and attacks from one side to the other that they are being too partisan.

I think that that critique aside, the issue of presidential lawmaking is of great interest generally to the public. I happen -- I was amazed to be -- on Washington Journal this morning, on a segment on executive orders, and the call-in questions were very exercised. People knew about some executive orders I didn't know about and were very concerned. I think people have a right to be concerned about lawmaking by both the Congress and the President.

So I think, in answer to the question, certainly this is an important issue.

How does one assess the recent history? The chart that C-SPAN put up this morning showed that President Reagan had the greatest number of executive orders since World War II, followed by Johnson, Nixon and then Clinton at this point in his presidency. In other words, in terms of quantity, this is a post-World War II phenomenon that every President has made use of. The greatest number historically, I believe, were issued by Franklin Roosevelt, something like --.

Mr. Goss. Three thousand five hundred.

Mr. Sargentich. Yes, an amazing number. Way in excess of other more modern Presidents, but of course, that was in an economic emergency. So we are dealing with the modern presidency since the New Deal and the tendency to coalesce power in the executive branch.

Transparency is a difficult issue because of the need to preserve the constitutional power of the President. But publicity is another matter, and it seems to me that the public should have access, easy access, to executive orders. The Federal Register statute, which you will hear about later, is an important development in guaranteeing information flow and protecting the public's right to know.

But ultimately what we are talking about is dialogue between the branches of government. Especially in the situation of divided government, where one party captures one branch and another party dominates the other political branch of government, it is all the more important to have ongoing dialogue and discussion.

Mr. Goss. Well, I want to thank you. This is actually a fascinating subject as you get into it. I have heard some testimony here that executive orders are actually a little less meaningful than some of us thought, maybe, and one wonders why one goes through the process of doing something which leads to other questions about whether this is good governance. Or is this just politics? Those are the questions that get asked, maybe too often these days, or not enough, depending on your view.

The other thing that -- I share your experience on the talk shows, Mr. Sargentich; the question about the public's right to know is undisputed. The question about them getting to know accurate facts is a subject that we are all struggling with these days, especially with the Internet. I find that there are indeed executive orders I have never heard of, and sometimes neither has the White House, that we get calls about. That's all part of public service, as we know. But it does seem the advent of the Internet has added to that phenomenon.

Doc Hastings.

Mr. Hastings. Thank you, Mr. Chairman. I found the answers to the chairman's question about the significance of the executive orders to be very interesting, because I at home hear a great deal from my constituents on particular executive orders. In fact, I daresay there is not a town hall meeting that I have that somebody brings up an executive order, which means that they are probably in tune with what's going on.

But the notion that maybe these executive orders don't really have a whole lot of substance to them nevertheless lends itself to at least a perception that there is more and more power devolving to the presidency, and the President is therefore doing more legislating that, in fact, he may not be doing. Maybe it is a press release that is going out, but there is a perception out there at least that there is more power flowing to the President because of the executive orders.

So the first question that I would have, is that a good trend or is that a bad trend or is it a real trend?

Any one of you who wants to respond to that.

Mr. Cox. Let me start, Congressman, by clarifying, I think, what we were saying in the last round of answers.

I don't think anyone is suggesting that there are not some executive orders that are very significant indeed and that do extend the reach of the President's powers; but I think what we were saying was that there are some executive orders announced with a great deal of publicity by the administration that when you actually look at the details of the order have very little legal significance and they, therefore, have little more meaning than the President coming out any day into the Rose Garden and announcing his policy preferences on a given topic. But certainly I would not want and I don't think anyone on the panel would want the subcommittee to come away today thinking that there is not a real issue here and a real problem with abusive use of executive orders.

Responding directly to your question, I agree that I think that any administration that makes a show of using executive orders, as the chairman said, perhaps to pursue political ends rather than the ends of good governance, does add to an impression that the President has more power than he either does in reality or than the Founders contemplated. And I would agree, picking up on Professor Sargentich's point earlier, that that is not a good thing, that we do have a constitutional system of checks and balances in which Congress has the primary and central role to play in lawmaking; and anything that tends to confuse the electorate about that leads to a decrease in accountability, which is further bad for our political life.

Mr. Kinkopf. Observing that most -- many, perhaps most -- executive orders have little practical consequence doesn't, I think, undermine the importance of what you are hearing; that is, if there is a public perception that the President is engaging in lawmaking, there is a public perception that the President's executive order is important. That perception makes it important, and it makes it important because it then serves an agenda-setting function.

You, in Congress, have to respond to whatever the executive order is about. If it is about, say, deadbeat dads, you have to respond to deadbeat dads that day instead of what you were planning to talk about that day. So it is a way that the President has of having input into the agenda of Congress.

I am not sure that that is an illegitimate exercise of the executive order power, but it is one that Congress is rightfully concerned about and can respond to through the various mechanisms we have already set forth.

But I agree with your point, which is the fact that the public is asking you about these at town hall meetings and is raising them on call-in shows makes executive orders very important politically, even if they may not be very important legally.

Mr. Bedell. I think that if the public has a perception that the President is doing more lawmaking than he had previously or other presidents had previously I don't think that is good, if that addresses your question. I think that the public takes greater solace in Congress doing that than the President doing that.

And another point I wanted to make with regard to the executive orders and their effect, is the enforcement of executive orders, which is something I skipped over earlier. And, just briefly, executive orders are largely enforced only by the President. They don't create, generally, private rights in third parties to go to court saying someone violated the President's executive order and force him to do what the President told him to do. Usually, these are political documents. And if the President directs the heads of departments and agencies to do something and they don't do it, he can fire them, he can replace them, he can yell at them, he can jump up and down or he can ignore them.

And often what happens with these executive orders is he writes something and tells all of these people to do all of these wonderful things that staff has worked on and ground out for months and months and months, and then it is issued and the Register publishes it and trees are cut down to print it and nothing happens because nobody pays any attention to it.

I, frankly, wish we could clean out -- if somebody had the authority to go out and clean out all of the executive orders that really don't do much other than create concerns and raise questions about what really is the policy here for the executive branch and how does it relate to what Congress is doing? Enforceability is a key, and it all comes back to the President. If he cares about it, then it will be enforced and folks will pay attention to it from the top down. And the more that the President backs up what he writes, the more consistently an executive branch can function because it doesn't have to take everything back up to the top to ask the question, "are you really serious?" They know, and if they know, then everybody can understand the line and follow it. But too often, they aren't enforced. Maybe there are just too many executive orders for the President to do that at every turn.

Mr. Sargentich. Well, I agree with my colleagues. I think there are a number of orders that have mostly political or symbolic significance, not legal significance. But we live in a world in which symbols play a major role, and symbolic politics is a large part of politics.

Having said that, I just want to reiterate a concern about oversight. It seems to me that there is a good deal of executive initiative taken to make law, that this is a function of the ambiguity of article II and of the position of the President in the government, which is that of an initiator, a person who can act quickly, much more quickly than Congress, simply because you have one person, not 535, and also because of the inherent tendency for executive branch advisors, of which I was one at one time, to protect the power of the President and to work to initiate in a legal way policies that the President wishes.

Congress is a diffuse organization with a lot of collective action problems; and to get a handle on this it would be important to, I think, try to overcome some of those problems to have serious oversight. But it is, I think, a point of wisdom to recognize the difference between legally significant orders and just symbolic orders.

Mr. Hastings. It seems to me that this whole debate, it has probably been ongoing for 210 years, is the notion of the division of powers, and that you should respect the division of powers that our Founding Fathers envisioned. Setting up a government that ultimately protects the people from government, that seems to be the basic principle.

Now, inherent in that, it seems to me, is the notion that Paul Harvey frequently says on his radio program, that self-government is a work without self-discipline. That is something that we all have to take individually and act accordingly. But it appears, maybe with -- well, I will just simply say, with this President, particularly in some of the environmental areas that the chairman of the committee mentioned within his reading last night, that this President is maybe stepping across that to try to enact something that the Congress collectively would not enact. He is not the first president to have thought that way I am sure, but, nevertheless, that seems to be a trend that we may be emerging to.

Now, if I am right and that is indeed the start of a trend, is there anything that we ought to do or we ought to pursue other than just government oversight? I am sure this has been wrestled with for 200 years. Is there anything we should be looking at maybe specifically to address what may or may not be happening in the future?

Mr. Sargentich. Sir, you know, I think that there are three or four clear things. One is oversight of particular cases. Another one is to look at statutes which are cited commonly as authority for some of the more controversial orders.

The Procurement Act has been mentioned by two of my colleagues, and it certainly has been cited very broadly in discrimination contexts and in wage-price and all sorts of contexts and used broadly by presidents to do things. And so Congress, if it is concerned about some of these uses, can look at these omnibus statutes and decide collectively whether it really wants them to be used as authority in this manner.

Of course, the appropriations power is sort of the linchpin power of Congress. Congress has the power of the purse and presidents can't go ahead and do things that require spending of money, at least for very long, without getting new appropriations.

Report and wait provisions have also been mentioned. That is to say, in certain categories have the President report what is going on to Congress and wait 30 days, 60 or whatever for some feedback. Those are the traditional powers of Congress, oversight, narrow authority, appropriations, report and wait.

But they are tremendous powers. I mean, ultimately, they are the fundamental powers of governing. Used selectively and carefully they can have tremendous, as Bob Bedell pointed out, impact as a practical matter.

Mr. Bedell. Just one thing to amplify what Tom said, and that is that Congress can preempt a field. It doesn't have to specifically do the same thing that the President would do but in a slightly different way in order to state its views on the matter and to make its case. It can preempt a field by showing sufficient action so that the constitutional authority of the President, if that is what he is relying on, as Justice Jackson indicated, would be at its lowest point and raise questions whether the President has the authority to move.

So you don't have to try to figure out what the President is doing and then seek to counter that in advance of his doing it in some kind of game process. You can do it more broadly and more sweepingly, I believe, than that.

Mr. Kinkopf. Just one caveat on the last point, and that is I think broad and sweeping action is problematic in this area because of constitutional limitations. For example, when it was contended that the Administrative Procedures Act applies to the President, the Supreme Court said we will not interpret it to do so because if we did it would raise significant constitutional problems.

So we don't have actual decisional law telling us whether Congress could or could not, although we do have a decision indicating that it is, at the very least, extremely problematic enough so that Congress adopted what was not exactly a natural reading of the statute in order to avoid the problem.

In another related case, where it was contended that the Federal Advisory Committees Act applies to the ABA committee, which advised on judicial appointees, the Supreme Court again read the FACA not to apply because it would raise significant constitutional questions. In that case, three justices were unwilling to rewrite the statute, in the way it had to be rewritten to achieve that result, and actually addressed the constitutional question it said it would violate the Constitution. That was an opinion written by Justice Kennedy, saying it would violate the Constitution to apply FACA when the President is deciding who to nominate under his constitutional power.

The reason that broad responses, categorical responses to the executive order authority generally are problematic is that power is not a discrete thing. It is based sometimes exclusively in statute, sometimes exclusively in the Constitution. Most of the time it is a combination of the Constitution and statutes that give rise to the authority. But how much of that power is coming from the Constitution and how much from the statute will vary with every executive order, and the constitutional power of Congress to respond to the President then varies with respect to every executive order. And an across-the-board approach to dealing with the President's authority to issue executive orders then runs into that problem, that this is a very fact-specific inquiry constitutionally.

So it is for that reason, I think, that the Supreme Court has been extremely reluctant to apply these blunderbuss acts to the President when the President is acting unilaterally. So I think you are right to be concerned, but the responses probably do need to be tailored to specific sorts of situations.

Mr. Cox. Just briefly, while I certainly agree with everything that Professor Kinkopf said, that you have to be careful about the broad brush response because of the President's core of constitutional powers, some of the ideas we have been talking about this morning about broad mechanisms that would apply to all statutory-based executive orders, report and wait, requiring the statutory authority to be identified with particularity, would be things that would be within the power of Congress, would be things, I think, that over time would act to rein in the President. If he could no longer, for example, get away with simply saying, by the authority vested in me by the laws of the United States, without specification, and I think also would inform Congress, in the way we have talked about, about the Federal Procurement Act as sort of the classic example of the broad-based statute that gives the President enormous power that is often used very much at the margins of his power.

If Congress saw over time that one or two statutes were being invoked by presidents over and over again as the basis for questionable executive orders, Congress then would be in a better position to focus its own inquiry into amending the statutes.

Mr. Kinkopf. If I might, just one footnote to Mr. Cox's observation. The problem with applying broad mechanisms even facially to statutes is that often when the President is deploying a power, a statute will be involved, even though what is really going on is an exercise of constitutional power.

For example, when the President appoints a judge or an officer, the President is exercising a statutory power. Congress created that office. Congress vested the appointment power in the President alone with respect to an inferior office. With respect to a noninferior office, it is vested in the President by the Constitution, but it is still by Congress that, by statute, that created the office.

In that situation, is the President exercising a statutory power? In some sense, yes, but for the statute there would be no power here. But that is precisely the situation where the Supreme Court -- three justices said that Congress may not apply a broad mechanism and five other justices strongly indicated that the President could not and instead read the broad mechanism not to apply.

Mr. Goss. I am going to have to say that we are all subject to the exigencies of the clock.

I am going to thank you very much for your contributions. I would like to reserve the right to continue our dialogue in writing as questions occur to all of us. I want to thank this panel very much. I assure you of the committee's interest.

The subcommittee suffers today. We have a rule on the floor at this moment, and several of our members are there doing that business, and that is why it is so clumsy and hard to get things done here. Because we have got this huge process that we have to deal with all the time, and it is hard to keep focused. And the President does not have quite that much baggage to carry I think when he does an executive order.

We have learned a lesson. You have added a lot, and I appreciate very much your time here and tell you that we are hoping to further this. I don't know whether we will go into legislation or not. Perhaps that is a possibility. But I think that you have added very much to our sense of a pulse on this, and I appreciate that.

I will dismiss this panel, and I will call the second panel. Thank you, gentlemen.

Mr. Goss. The committee will call the second panel, Mr. William Olson, co-author, CATO research paper entitled "Executive Orders and National Emergencies." we are very pleased to have Mr. Olson with us here today.

You are a panel unto yourself. Your prepared remarks will be accepted into the record without objection, and any enlightenment you wish to share with us would be most welcome.

 

STATEMENT OF WILLIAM OLSON, CO-AUTHOR, CATO STUDY ENTITLED "EXECUTIVE ORDERS AND NATIONAL EMERGENCIES", ATTORNEY-AT-LAW, WILLIAM OLSON P.C., MCLEAN, VIRGINIA.

 

Mr. Olson. Thank you, Mr. Chairman and members of the subcommittee. I do want to thank you for the opportunity to testify before you regarding the impact of executive orders on the legislative process, and what I perceive to be the very real problem of presidential lawmaking by fiat, and I will stray from my prepared remarks to make some comments.

I do want to begin with some comments on the prior panel. I was chaffing for a microphone while much of the discussion was going on.

I knew Bob Bedell during the Reagan administration when I served there and have the highest regard for him and his comments. I have to say that I did disagree substantially with really only one witness, who was Professor Kinkopf, I believe, who appeared to indicate that there was no problem with respect to executive lawmaking when, in fact, I think, the instincts of the committee members, as expressed during your comments, are that there are problems here that are serious, constitutional, and have to be dealt with.

And I want to encourage you and I hope my comments today will make the case that there is a serious problem, that the Constitution is being flaunted and the Congress is not doing an adequate job of defending its institutional prerogatives and that simply more of the same, more oversight, more hearings, more oversight is important only when the opinion of Congress is respected by the executive. If the executive does not respect the position of Congress, it is an empty threat.

And certainly Mr. Dreier's quotation from U.S. News and what they characterize as President Clinton's showing the Congress who is boss is something that should raise the hair on the back of the neck of every self-respecting Member of Congress, and yet I am afraid that this is accepted much too often as simply the way the business is conducted.

I do want to bring one other article to your attention that I came across in a Salt Lake City paper, and it had to do with a hearing that was held just last week and Secretary Babbitt's opportunity to testify with respect to the Grand Staircase Escalante National Monument, which has been alluded to before by Mr. Hastings. And he said in his testimony, "I am not prepared to sit back and let this Congress do what it has done for the past 7 years in these areas, which is virtually nothing." And he was referred to as "unusually feisty" and went on to say, "if Congress does not act and produce an acceptable bill protecting these lands, I will consider asking the President to use his power." Of course, his power, as they view it, was an obscure 1906 Antiquities Act which had never been used for the purposes that he had used it, and he looked at the Congress and said, the clock is running.

At some point, oversight with an administration that is not particularly caring of the opinions of Members of Congress is less than effective, and I want to make some suggestions today.

First of all, I have been researching and working in this area for a long while. Based on some earlier writings we had done, Roger Pilon of the CATO Institute had asked us to do a study for them, and we did undertake that, and very providentially that study is available today for the very first time, having gone to the printer at the end of last week. Our title has a more exciting title perhaps than the committee chose for its hearings. The title of our paper is, "Executive Orders and National Emergencies, How Presidents Have Come to Run the Country by Usurping Legislative Power."

I would very much hope that -- I understand copies of that study have been made available to the subcommittee members, and I would very much appreciate your attention to the thoughts in there because I think there is a lot of useful background.

I also want to commend the subcommittee because the testimony that has been filed today by the other panelists has done a great deal to develop the literature on executive orders, which is remarkably scarce. There are remarkably few players in this arena, and I do notice that three of the four panelists who began the day were from the Office of Legal Counsel and the other from OMB, all of which were responsible for protecting the powers of the President, as Mr. Bedell said, and I am afraid they have done their job all too well and not been sensitive at all to the constitutional limitations on the President's actions.

And let me say that and go back to January 30, 1788, Federalist 47, when James Madison quoted Montesquieu, and this is how we begin our study. He said, "there can be no liberty where the legislative and executive powers are united in the same person or body of magistrates"; but that saying, he said, did not apply to the Constitution as they were writing it because the magistrate in whom the whole executive power resides cannot of himself make a law; though he can put a negative on every law.

And this is exactly the concept, that the President has the legislative power to propose and the legislative power to veto. In between, he has no power whatsoever. And I am frankly shocked and disappointed to hear a panel of lawyers and constitutional professors testify with blase with respect to presidential lawmaking as if this was the way it was meant to be.

This is very definitely not the way it was meant to be. We have strayed very far from the original plan, and it is my hope that this hearing is very much a beginning of getting Congress back on track, reining in a President who has exceeded his constitutional bounds.

There is another interesting citation we make. As early as 1792, according to Thomas Jefferson, he said, "I said to President Washington that if the equilibrium of the three bodies, legislative, executive and judiciary, could be preserved, if the legislature could be kept independent, I should never fear the result of such a government, but I could not but be uneasy when I saw the executive had swallowed up the legislative branch."

The people do not fear the Congress. The people do responsibly fear the presidency and lawmaking by the presidency.

I would say that the discussion earlier about transparency, Mr. Chairman, is a very interesting point; and I want to respond to that briefly. The process of transparency comes into the legislative process when the Congress has hearings, when the Congress debates legislation, when the Congress has to defend their position as they go back to town halls and meet with constituents. That is the process of transparency.

I do not seek -- I would not recommend trying to introduce the concept of transparency into the executive order process, but rather I would try to stop the President from using executive orders to legislate. It is that simple.

Now, Congress and the courts have taken action from time to time to challenge presidential exercise of authority that they believed was unconstitutional, and some of the prior panelists did discuss this. They did talk about the Louisiana Purchase and the Emancipation Proclamation. There are many other instances where the Congress and courts have taken action, but the Constitution anticipated that the Congress and the courts would jealously guard their prerogatives.

They believed that they would set power against power and in that way they would make sure that no one branch of government exceeded their constitutional role. There was supposed to be fierce resistance. But yet, through the first panel anyway, you have been counseled to not worry about it, take it easy, and applied a great deal of legal balm on what is a politically explosive issue.

I, too, have had a great a number of radio talk shows and such, and perhaps I plead guilty to trying to cause those people to come to your town meetings to ask you these questions as I do the radio talk shows. Because I do find that through the Internet we have had an explosion of information about executive orders, about executive orders that are not cosmetic, not "less than meets the eye", not all the descriptions we have heard before but very real, profound changes in the policy direction of the United States in areas exactly as Mr. Hastings says where the Congress of the United States would have refused to take that action, but the President knowing that the Congress had refused to take the action said, I do not care; I will do it anyway. And then he puts the Congress in this terrible situation of having to, again, change their agenda, to respond and, secondly, to be able to develop a piece of legislation which then has to be presented to the President and can be vetoed by the President.

And so we see a situation where if 65 percent of both the House and the Senate believe that the President of the United States was acting unconstitutionally and if they were willing to not vote to override a veto the President would escape scot-free.

Now, we begin to think, can we not go to the courts? But through the entire research that we had the opportunity to do, we found two instances and two instances alone of situations where the courts have voided executive orders in their entirety.

The first was discussed today, with President Truman, the Youngstown Sheet and Tube case, and there is a very famous concurrence by Justice Jackson with his multiple levels of analysis. It is, frankly, not the kind of analysis that I would have hoped for because it does grant the President greater latitude than I think appropriate, but it was a very good case.

And then the case of U.S. Chamber of Commerce versus Reich, which involved, of course, President Clinton's executive order having to do with the powers under the Procurement Act and his refusal to buy goods and services from companies which hired permanent striker replacements, and he was rebuffed by the Court.

But despite the fact that he was rebuffed by the Court early in his administration, he did not shrink from continuing to exercise executive orders in controversial areas and in areas where the Congress had refused, simply refused, to pass legislation. He decided he would do it anyway.

I do say that this is not a partisan issue. I had the pleasure of serving in three positions in the Reagan administration and shortly after the third position I was hired by a group to sue President Reagan because he had announced that he was directing Secretary Weinberger to implement SALT II, despite the fact that he could not get it through the consent process in the United States Senate. And we brought the action in the U.S. District Court for the District of Columbia.

As I remember, opposing counsel was Royce Lamberth, now Judge Lamberth, who has been famous lately, and he won because he raised the standing issue. And he said, this is a private group, and despite the fact that the President's order may be unconstitutional, may flaunt the Senate's role in advice and consent in treaties, we have no way that this particular organization, which was The Conservative Caucus, a (C)(4) lobbying organization, they were not aggrieved in some special way; therefore, they had no standing.

This is a problem that people have had over and over and over again. It is not true, as was said before, that parties who are affected by executive orders can always go into court and always be heard. It simply is not the history of executive orders. And if you read the cases where people have attempted to defend their rights, where executive orders were imposing duties and responsibilities on them, those people frequently have been unable to get a hearing in court on the merits because of the standing issue.

The courts cannot be counted on; and, therefore, the Congress must be the party that defends the U.S. Constitution.

And I would say the last time that this was done seriously was when the Senate set up the Special Senate Committee on the Determination of the National Emergency, cochaired by Frank Church and Charles "Mack" Mathias more than 25 years ago. This was not only on executive orders but also on states of emergency and emergency powers, all related issues.

A couple of years later, the committee came back with a slightly different name, but it developed a series of legislative changes, including the War Powers Resolution, IEEPA, the International Emergency Economic Powers Act, which is a favorite source of authority for presidents. They recite that statute in the preamble clause of virtually every executive order that can possibly think of a way to cite it.

They also made an amendment to the Trading With the Enemy Act of 1917, TWEA, but all of those efforts to restrict presidential lawmaking were ineffective. We had the impossibility of even restraining President Clinton conducting a war against the Federal Republic of Yugoslavia. We had 31 Members of Congress try to go to court to find a way to have a declaration of that by the Court, and the Court refused on the grounds of, again, standing.

So we come to what is it that can be done? And I do understand this is not a legislative hearing, that that is going to happen tomorrow, and the Judiciary Committee will consider this. But I do want to make just a couple of comments about the two proposals that are pending now.

One is by Congressman Metcalf, House Concurrent Resolution 30, and that, of course, would be a concurrent resolution rather than a law. It would not be presented to the President of the United States for signature and, therefore, would never have the force of law. It would be a resolution that expressed the sense of the House in terms of its outrage about what has been happening with executive orders, but it would have no legal effect whatsoever. It has the advantage of not being able to be vetoed, and so it could be passed, but it would be advisory only, without force and effect.

The other proposal is H.R. 2655 introduced by Congressman Ron Paul and by Congressman Metcalf, and it is an approach that holds great promise to solve this recurrent problem. It actually follows up on a 1983 bill that Mr. Paul had introduced that I found in some research last night, and so he has been at this issue for a long while. It does several things that have never been done before, and it tries to do some things that have been tried before but where presidents have gotten around the rules.

It tries to establish the first statutory definition of a presidential directive. It greatly expands access to the courts to challenge the legality of presidential orders and eliminates some of the standing cases which have made it so hard for Members of Congress to get rulings by courts as to whether the President has acted unconstitutionally. It defines the constitutional powers that the President can exercise by presidential order, and it says whenever he acts by statute he has to be very precise about specifying the statute and, failing that, the executive order would be null and void.

It would terminate all the existing states of emergency. There are right now either 13 or 14 concurrent and overlapping states of emergency existing in the United States of America. Most people don't realize that since 1933 there has only been a period of 14 months when the United States has not been in a presidentially declared state of national emergency.

Presidents don't do this because it feels good. They do it because, as the Mathias and Church research showed, at that time there were over 430 separate standby statutes. The power to which the President brought to himself the moment he declared a state of national emergency and this vast standby reservoir of powers, many of these have been repealed now, but there are still hundreds out there, are powers that the President can exercise when he declares a state of national emergency.

And we see language in the reports in the mid-seventies by the Congress which called these powers "dictatorial". We see language of Clinton Rossiter in his studies, certainly a main-line political scientist, calling them dictatorial, and I would say that those are justified descriptions.

So, lastly, I would just say that this is not a problem with President Clinton, although President Clinton has exhibited a certain degree of latitude as he has used executive orders that has never been seen before in this country.

It is something that I would hope would cause Members of Congress to resist. I would hope that when Members of Congress would read an executive order the first instinct would be not be, do I like the policy being achieved but, rather, where does the President get the authority to do this?

Because, basically, these are legislative actions, and we have to go back to the opinion by Justice Frankfurter in the Youngstown Sheet and Tube case where he said that the President had the power to execute the laws but not to make them and that the blending of these powers in one person was considered by the Framers, but rejected because that would certainly create tyrannies in blending executive and legislative powers.

They rejected that approach. The President doesn't realize it. Many presidents don't realize it. It is an extremely serious problem, but it is solvable. The Constitution looks to you in the House and the Senate, and charges you with the duty to protect the Constitution from assault, and the American people do look to you to do just that.

Thank you.

Mr. Goss. Thank you very much, Mr. Olson.

[The statement of Mr. Olson follows:]

 

******** INSERT 1A-1 ******** .

Mr. Goss. I am reminded that one of the first acts at the beginning of every Congress is we all put our hand up and say "I do swear to protect the Constitution of the United States of America", and I think we all are sincere in our commitment to do that. What we have to understand a little bit better is what "protect the Constitution" means, and that is one of the reasons for this hearing.

You brought up some good points and I think added balance. I note that it took four on the other panel to present that side, and it only took one on your panel. It never could be said that we aren't interested in balance here.

I think there is a point I would make, and it is a little bit off the subject, but it certainly is flavoring what is happening here. You draw the question of the responsibility of the institution of Congress as well as the institution of the judiciary and the institution of the executive branch to do their functions as envisaged by the Founding Fathers and spelled out in the Constitution.

I would suggest that what has happened is that partisan politics have come into play to a point where the loyalty to the Constitution has been replaced by the loyalty to the party, and what that causes to happen is that whoever is in the White House, members of that person's party will circle the wagons, protect the President and are more interested in the partisan question than in the governance question. And I suspect that is something that is being fed by the media a little bit and also the desire to get reelected.

All of those things are facts of life. I am not saying this is good or bad. I am just simply saying that those are points that are perhaps illustrative of why there has not been, in the eyes of some, apparently, including yourself, enough attention to rein in the presidential, quote, lawmaking.

The other piece of information that struck me as a Member of Congress since I have been here is a word that I had not heard much before I came to Washington and that was the word micromanagement. I don't know who first threw that word out, but it is regularly considered a sin to micromanage. I don't know where micromanaging starts and oversight stops, and if you would care to offer an observation on any of that, that is certainly a fact of life that we have here today, and I think it fits in very well with your concern that there is a bright line about presidential lawmaking.

I am not sure exactly where it is. I think we surely don't want to hamstring the President of the United States as chief executive officer in executing properly the laws that are passed by Congress, but we don't want him going out and going beyond that point, and it is that bright line we are trying to find.

In the atmosphere of the sin of micromanagement and the problems of partisanship, if you have any further observation I would welcome it .

Mr. Olson. Well, I, too, might have been guilty of this exact thing. I noticed in your opening comments you talked about "Mandate for Leadership", and I was a contributor to one of the chapters in that, probably calling on President Reagan to take certain actions in the area of export controls and the matters that I was concerned about at the time. I wouldn't say my entire career has been consistent on these points, but I do like to think that my views now are the right ones.

I would say that if there was one thing -- one message that I could get to each Member of Congress, it would be this: That before you vote on any piece of legislation, you simply have to make sure the bill passes a threshold question as to whether it is constitutional, irrespective of whether it is desirable.

Mr. Goss. Right .

Mr. Olson. The same thing is true with respect to executive orders. The first inquiry cannot be, is this desirable? Do we want to have hate crimes being able to be punished by the Uniform Code of Military Justice so that if people are killed for reason A they are punished more severely than if they are killed for reason B? It is not whether you like that or not. It is whether that is a function of the executive branch of government or whether that is a legitimate function only of the Congress.

I guess, beyond that, the reason that you are warned against micromanagement, of course, is that there is an army of bureaucrats in this city who do not answer to anyone, sometimes not to the President. The Federal Government has simply vastly exceeded its powers and we have 18 enumerated powers for the Congress and we have a Congress that disregards the enumeration.

So when the government tries to do too much, it does what it does not particularly well. But, on the other hand, it is no wonder people would want to be paid more if they are going to take on the role of State legislature and the local city council. But I would urge restraint not only with respect to your own powers but also with respect to the powers of the President.

I hope that wasn't too uppity.

Mr. Goss. No. I heard you.

Ms. Pryce, questions?

Ms. Pryce. Well, thank you, Mr. Chairman.

Unfortunately, I wasn't able to be here for most of the hearing. I think it is a fascinating subject and certainly one which I hear a lot about from my constituents. And I don't know if that is due largely to the efforts of people like you or what, but I think it has an incredible amount of momentum behind it, and I think I just want to congratulate the chairman on bringing it forth here in the Rules Committee.

I don't really have any questions. I just want to thank you for your testimony and your activism in this regard, and from where you sit activism is a good thing, maybe not so much from other perspectives.

Thank you very much, Mr. Chairman.

Mr. Goss. Thank you, Mr. Olson. I want to thank you very much. I think you have said very succinctly the pieces that we needed to fill out the balance piece on this, and I consider that extremely helpful to the committee's work.

I would also like to reserve the right to have further dialogue in writing with you, if you would be agreeable to that .

Mr. Olson. I would be honored.

Mr. Goss. It would be our pleasure. Thank you very much, sir. We wish you well.

At this point I would dismiss the second panel and invite the third panel, Mr. Ray Mosley, Director, Office of the Federal Register, National Archives and Records Administration. Come to the witness table.

I understand, with Mr. Mosley, Mr. Michael White will be joining you to be available for questions, illumination, further clarification, micromanaging or whatever might come up.

Mr. Mosley, welcome. Your prepared remarks will be accepted without objection into the record, and we welcome you. We appreciate your patience for waiting. You have now had the benefit of hearing all of this. You know what is left of value for this committee to hear. Please proceed.

 

STATEMENT OF RAY MOSLEY, DIRECTOR, OFFICE OF THE FEDERAL REGISTER, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; ACCOMPANIED BY MICHAEL WHITE, GENERAL COUNSEL

 

Mr. Mosley. Thank you, Mr. Chairman, for the opportunity to testify today.

As you indicate, with me is Michael White, who is the General Counsel of the Office of the Federal Register; and Mr. White can help me provide some institutional perspective. He has served with the Federal Register since the 1980s. I have been there since -- approximately 3 years now, since 1996.

I will offer a summary of my written statement provided earlier to the committee and then be happy to answer your questions.

The Office of the Federal Register was established in 1935 for the purpose of creating a centrally located system for filing and publishing presidential documents, as well as agency regulations and administrative notices. The Federal Register Act governs the operations of the Federal Register publication system.

The statute specifically requires that executive orders and presidential proclamations must be published in the Federal Register, except for those that do not have general applicability and legal effect or those that only affect Federal agencies, officers, agents or employees. In practice, however, most executive orders are published in the Federal Register, regardless of subject matter.

The on-line edition of the Federal Daily Register is available at 6:00 a.m. Eastern time, making new executive orders accessible to the American public on a very timely basis. We compile each year's executive orders in Title III of the Code of Federal Regulations as required under the Federal Register Act. 1997 through 1999 editions of the CFR are available on-line on the Government Printing Office access service.

Some of the Presidential memoranda and determinations that are not published in the Federal Register and CFR are released by the White House Press Secretary and carried in the Federal Register's weekly compilation of presidential documents and the public papers of presidents of the United States. These Federal Register publications are available in printed editions and on-line formats that we have recently developed for the GPO access service.

To help the public sort through these various sources of information, we use our National Archives and Records Administration Web site to direct customers to the text of executive orders and other presidential documents, and I have provided the Web site address to the committee, Mr. Chairman.

We also provide other information services, such as our historical codification of proclamations and executive orders and an on-line index of executive orders which tracks dates of issuance, amendments, revocations and dates of publication in the Federal Register.

During the first 9 months of calendar year 1999, our customers have retrieved a total of almost 560,000 documents from these pages.

The Federal Register publication system also depends on its partnership with the Government Depository Library Program to ensure that all citizens have equal access to government information. More than 1,350 depository libraries throughout the United States and its territories provide free public access to Federal Register publications in print and on-line via the GPO access service.

The Superintendent of Documents at GPO reports that Federal Register publications are among the most frequently used databases on the GPO access service, accounting for almost 79 percent of total usage. In fiscal year 1998, the public retrieved more than 102 million individual documents from our publications. At the end of the third quarter of this fiscal year, 1999, that figure had already been surpassed by 9 million and was headed for projected year end total of 145 million retrievals of information.

About one-third of those retrievals are from the daily on-line Federal Register and two-thirds are from the 200 volume Code of Federal Regulations. During the same period, our customers have retrieved 138,000 individual documents from the weekly compilation of presidential documents and 367,000 from the United States Government manual. Overall, public use of on-line Federal Register publications has increased by more than 1,000 percent since free on-line service began in late 1995.

I believe these figures demonstrate that Federal Register publications and information services are helping to build a digital democracy by providing the American people with direct access to essential government information and the opportunity to express their views on the various programs and policies of Federal agencies.

This concludes my summary. I thank the Chairman for this opportunity to address the subcommittee and would be pleased to take your questions.

[The statement of Mr. Mosley follows:]

 

******** INSERT 1A-2 ******** .

Mr. Goss. I want to thank you, and I was aware of some of that information, but I think it bears underscoring.

That really is startling, that there is this much public interest and technology is providing this kind of access. For those of us who are not as skilled as some of our younger members of our generation in all of this digital access you speak of, there has still got to be a way for us to retrieve these. So I hope you have a telephone or a public information office or answer your mail as well in addition to the electronics .

Mr. Mosley. Yes, we do.

Mr. Goss. I guess I am asking the question this way: It is hard for people to know when we say, gee, check the library, they might have it, it is hard to know which library does or doesn't. There needs to be a way that I think Members of Congress have staffers who are informed in their offices when these calls come in from the public to say, if you call this number, you contact this office or we can do it for you, however is best, you can get this information.

Part of the other problem is that some of the stuff that comes into congressional offices are hoaxes. They are just plain somebody made it up or there is a conspiracy going around the talk show circuit or something like that, which I presume is not in your database -- I hope it is not in your database -- and you probably are as puzzled as we are by some of those calls as well.

What I guess my question would be, since public access is so very important to this, are you satisfied that a member of the public who wants to get an executive order and review it for himself knows how to get it and can get it and that there are enough distribution points out there for -- information points to advise the public on how to do this?

Mr. Mosley. Yes. I think there are, Mr. Chairman.

We get telephone calls and letters from the public, which -- for these documents, for which we respond to, and we can direct them to the nearest depository library, which has a set of our publications. In certain instances, we will make copies of documents that are in our holdings, in our office here on North Capitol Street, and provide those to the public. Regrettably, we are limited in providing copies of lengthy documents because of the resources, the limitation on resources available to us. But if we are not able to provide an entire document we do make certain that we can direct the inquiry to an appropriate library or an appropriate source where they could get the entire document.

Mr. Goss. One of the questions we often get about executive orders is that, once they are written, they are in cement forever. The question is, can you briefly outline for us what does it take for an executive order to be revoked? How does that happen? How does the public know whether an executive order still is or still is not in effect, that part of the process?

Mr. Mosley. Generally, one of the things that we will look for in processing a new executive order is whether or not it is revoking previous executive orders, and that is -- or provisions of previous executive orders, and that that is so stated.

In addition, on our Web site we provide an index of all executive orders that we have been able to make an accounting for and indicate whether or not they are still in effect or if they have been revoked or replaced by a provision of a more recent executive order. We have accounted for over 13,000 executive orders and can provide that information on virtually all of those.

Mr. Goss. If I had, say, a favorite subject and I wanted all executive orders on that subject, you could provide me that information?

Mr. Mosley. That is a good question. I guess we could test -- it would test the query capabilities of our system and, of course, given whether or not the information is standardized from one executive order to the next would go a long way toward determining if it was a reliable answer, but, yes, we could get you along the way for sure.

Mr. Goss. Part of the question is, it would be hard to know for sure what is in conflict and what isn't in a general area if you didn't have the full matrix, I would think.

Secondly, it seems to me, just in the area of good housekeeping, that at a point where a law is no longer useful -- or an executive order, excuse me, is no longer useful, that there ought to be some way to compile all of those together and throw them out. Is that something that can happen?

Mr. Mosley. Right. Yes. That is what we are doing with the index that we have placed on-line and we have available in our office relating to all the executive orders that we have been able to account for, some 13,000 plus another 500 or so that are unnumbered.

Mr. Goss. Thank you.

Judge Pryce.

Ms. Pryce. Why would they not be numbered?

Mr. Mosley. The tradition prior to this century was that executive orders were not numbered. There was no consistency in terms of numbering prior to this century. About 1907, the State Department undertook an effort to begin numbering all executive orders. That remained sporadic until President Hoover issued an executive order in the 1920s that began the standardization of the process. So, basically, since about 1907 they are all numbered. Prior to 1907, some are numbered, some are not. It is inconsistent.

Ms. Pryce. The standardization is just a numbering system?

Mr. Mosley. The standardization is a numbering system which has been essentially consistent since the 1960s, since about 1962. We are under Executive Order 11030, I believe, that provides the numbering and the processing manner for executive orders.

Ms. Pryce. Following up on the Chairman's question, I mean, is it indexed at all by subject matter or is it a word search kind of thing that you do, a computerized search? How would you do a research of any particular area of law or executive order to determine? Is there a legal way of going about this?

Mr. Mosley. The on-line site provides a title to the executive order, and so one could inquire based on that information, but the reliability of that inquiry may not be very high because an executive order issued today on a subject matter could be similar to an executive order issued previously but used different terminology.

Our staff will go through the actual documents and will make these assessments in terms of updating this index information so we have -- we are not relying simply on the title or an abbreviation of this information. We are relying on the actual documents and the substance of the documents in order to create the index.

Ms. Pryce. Is there any analysis or anything that is a part of the index or is it just straight subject matter index?

Mr. Mosley. Well, we don't, as a rule, provide analysis of the executive orders, but in terms of advancing the ability to index them we would look carefully at it for some common terms and common features in an executive order.

Ms. Pryce. Thank you very much.

Mr. Goss. I was just trying to determine the antecedents of the National Archives and Records Administration. That is a quasi legislative branch, quasi executive branch or entirely one or the other? What are the antecedents?

Mr. Mosley. We are an independent agency of the executive branch. We became independent in 1985. Prior to that, we were part of the General Services Administration from 1949. Prior to 1949, we were an independent agency of the executive branch known from -- created in 1934, known from 1934 until 1949 as the National Archives Establishment.

Mr. Goss. So your budget comes through the OMB process?

Mr. Mosley. That is right.

Mr. Goss. You start there and your oversight presumably is one of the House committees?

Mr. Mosley. That is right. Government Reform, I believe, is our oversight.

Mr. Goss. I assumed that.

I want to tell you, this has been helpful. I don't know whether you have a legislative affairs office that has outreach, but if you do my suggestion would be that you could advise Members on how to instruct constituents to get the material of executive orders. It would be definitely a positive service effort I think most Members would appreciate.

We do foresee that there will continue to be executive orders and that they will be controversial from time to time. That causes a huge onrush of interest in congressional offices, and I guess my answer would be we would like to turn to the easiest, quickest source of information to help our constituents. It would appear that you are it, and I presume you are geared up to handle what I will call I guess an unusual situation or an emergency situation .

Mr. Mosley. Sure.

Mr. Goss. Is that true or not?

Mr. Mosley. We would be pleased to work with you and other Members of Congress.

Mr. Goss. It wouldn't be just us. Once something hits the fan it usually hits it across the board .

Mr. Mosley. I might add that we have just in recent days created a means by which the public might more readily obtain access to presidential documents. We created on our Web site a listing of the sources for presidential documents that are available on-line.

Mr. Goss. Okay .

Mr. Mosley. So we could direct constituents very readily to that, and I think they would get essentially what you are suggesting they would want to have access to.

Mr. Goss. Thank you.

Judge Pryce, do you have anything further?

Ms. Pryce. No.

Mr. Goss. I want to thank you gentlemen very much.

I particularly want to thank you for coming as well, Mr. White, and standing by. Obviously, we didn't have enough serious questions for Mr. Mosley to have him participate.

Mr. White. Thank you, Mr. Chairman.

Mr. Goss. But I am sure we have forgotten something, and we will be hearing about it. And as we proceed down this, as I said at the beginning of this, you heard me say, I think, that we are trying to deal on the subject of awareness and attention here and create some interest in a subject that has already gotten plenty of interest to see what, if anything, Congress should be doing about this, and there will be legislation coming forward.

All that, as good as it may be in good time, doesn't mean that we aren't going to have questions from American citizens wanting to know what is going on, and I do think we have the responsibility to respond and give them satisfactory answers, and we will try the system and see how it works.

Thank you all very much. We will dismiss the third panel.

Unless there is further business before the subcommittee, the committee will be adjourned.

[Whereupon, at 12:10 p.m., the subcommittee was adjourned.]

House Committee on Rules
H-312 The Capitol
Washington, DC 20515
202-225-9091

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