LongBench v2 / 66f95c18bb02136c067c52e1 / Considering the analysis provided in the document on the delegation of…

Law and Orders: The Problem of Presidential Legislation 
Source: Law and Contemporary Problems , Summer, 1976, Vol. 40, No. 3, Presidential 
Power: Part 2 (Summer, 1976), pp. 1-45


 LAW AND CONTEMPORARY
 PROBLEMS
 VOLUME 40 SUMMER, 1976 NUMBER 3
 LAW AND ORDERS:
 THE PROBLEM OF
 PRESIDENTIAL LEGISLATION
 JOEL L. FLEISHMAN*
 ARTHUR H. AUFSESt
 INTRODUCTION
 "Separation of powers" is a difficult doctrine. Few principles are so basic
 to American notions of democracy, yet so misleading. Few principles seem
 more vital in theory, yet more feeble in practice. Textbooks tell us that the
 Constitution is founded on a separation of powers; strictly speaking, it is not.
 In its opinions, the Supreme Court consistently pays homage to separated
 powers; yet, in its decisions, often ignores them. In their speeches, public
 officials pay lip-service to this principle; yet, in their actions, work hard to
 overcome it.
 Like so much else in the Constitution, the American brand of separated
 powers is a compromise1-a "practical piece of work for very practical
 purposes"2-a balance between the conflicting values of efficiency and ac-
 countability, concentrated power and diffused power. A central concern of
 the Framers was, of course, to prevent tyranny-to protect individual liberties
 from the depredations of government. The task was to devise a constitutional
 system which served their purpose. The liberal political "science" of the eigh-
 teenth century, drawing largely on Locke and Montesquieu, seemed to offer a
 solution.3 If concentrated power encouraged tyranny, it followed that its
 * Professor of Law and Policy Sciences, Director of the Institute of Policy Sciences and Public
 Affairs, Duke University.
 t Research Associate, Institute of Policy Sciences and Public Affairs, Duke University.
 1. Farrand, for example, calls the Constitution a "bundle of compromises." He writes:
 "The document which the convention presented Congress and to the country as the
 proposed new constitution for the United States was a surprise to everybody. No one
 could have foreseen the processes by which it had been constructed, and no one could
 have foretold the compromises by which the differences of opinion had been reconciled,
 and accordingly no one could have forecast the result.
 M. FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 200-01 (1968).
 2. Id. at 201.
 3. That the Framers saw themselves as being engaged in a "scientific" rather tha
 cal" project is one of the most striking aspects of their work.
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 LAW AND CONTEMPORARY PROBLEMS
 opposite-divided and dispersed political power-would discourage it. As
 Montesquieu wrote: "When the legislative and executive powers are united in
 the same person, or in the same body of magistrates, there can be no liberty;
 because apprehensions may arise, lest the same monarch or senate enact
 tyrannical laws, to execute them in a tyrannical way."4
 Madison seemed to concur: "The accumulation of all powers, legislative,
 executive, and judiciary, in the same hands, whether of one, a few, or many,
 and whether hereditary, self-appointed, or elective, may justly be pronounced
 the very definition of tyranny."5 Rational analysis, then, had suggested a solu-
 tion: a separation of powers, an allocation of functions to distinct branches of
 government, coupled with clear rules to prevent one branch's encroaching on
 the prerogatives of the others.
 Yet this problem could not be dismissed quite so easily. Experience in poli-
 tics taught the Framers that a strict separation of powers was as likely to pro-
 mote tyranny as to prevent it. Power, after all, was tied to function. Complete
 independence in performing designated functions implied unbridled, and
 possibly abusive, power. Power, then, would not be the "check to power"6 that
 Montesquieu had proposed. Each branch could "spin independently and
 freely in its own orbit."7
 Thus most of the Framers conceded that a rigid separation of powers was
 unacceptable. Madison, for example, commented on "the impossibility and in-
 expediency of avoiding any mixture whatever of these departments."8 He
 went on to embrace the principle of the New Hampshire Constitution, which
 held that government powers should be separated only as far as "the nature
 of a free government will admit; or as is consistent with that chain of connec-
 tion that binds the whole fabric of the constitution in one indissoluble bond of
 unity and amity."9
 Therefore, instead of separated powers-shared powers.10 Instead of di
 vided government-mixed government." Accordingly, Madison was forced 
 reinterpret Montesquieu, to find in his work support for the idea of shar
 powers. Thus Madison argued that, in Montesquieu's call for separated po
 4. Comment, Delegation of Legislative Power-the Constitutionality of the Economic Stabilization Act
 of 1970, 10 DUQ. L. REV. 431, 432 (1972) (quoting C. MONTESQUIEU, SPIRIT OF THE LAWS 151
 Nugent trans. 1949)).
 5. Madison, The Federalist, No. 47, in THE FEDERALIST PAPERS 301 (C. Rossiter ed. 1964).
 6. Comment, supra note 4, at 431 (quoting C. MONTESQUIEU, SPIRIT OF THE LAWS 150 
 Nugent Trans. 1949)).
 7. L. FISHER, PRESIDENT AND CONGRESS 2 (1972).
 8. Madison, supra note 5, at 304.
 9. Id.
 10. See K. LOEWENSTEIN, POLITICAL POWER AND THE GOVERNMENTAL PROC
 Loewenstein contends that the separation of powers doctrine is "obsolete and
 Instead, shared powers is the basis of liberal constitutionalism in the modern w
 11. FISHER, supra note 7, at 241-43.
 2
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 PRESIDENTIAL LEGISLATION
 ers, he "did not mean that these departments ought to have no partial agency
 in, or no control over, the acts of each other."12 Rather, Montesquieu mean
 only that "when the whole power of one department is exercised by the same
 hands which possess the whole power of another department the fundamental
 principles of a free constitution are subverted."'3
 The product was a constitution, not of separated powers, but of "sepa-
 rated institutions sharing powers."'4 The institutions of government were
 formally separated by the stricture that no member of one branch could
 simultaneously hold office in another.15 To an extent, the powers of govern-
 ment were separated as well: the three branches were allocated particular
 functions over which they held primary responsibility. But most importantly,
 powers were shared. Dual concurrence, for example, was required for
 policymaking. Through his ability to convene and adjourn Congress,16 recom-
 mend17 and veto18 legislation, the President acts formally as a lawmaker.1
 Through its grant of authority and funds, and its exercise of oversight
 and investigation, Congress contributes to administration. These facts ar
 familiar enough. The key point, however, is this-that it is shared powers,
 rather than separated institutions, which promotes the value of "checks
 and balances," and thus limits the governmental threat to individual liberties.
 As a description of the actual functioning of government, then, the term
 "separation of powers" is quite misleading.20 Indeed, it seems fair to say that
 the constitutional commitment to this doctrine has been, at best, "vague an
 uncertain."21 Granting this, what significance does the separation doctrin
 12. Madison, supra note 5, at 302.
 13. Id. at 302-03.
 14. R. NEUSTADT, PRESIDENTIAL POWER 33 (1961).
 15. U.S. CONST. art. I, ? 6, cl. 2.
 16. U.S. CONST. art. II, ? 3.
 17. Id.
 18. U.S. CONST. art. I, ? 7, cl. 2.
 19. President Eisenhower used to assert, "I am part of the legislative process." See NEUSTADT,
 supra note 14, at 33.
 20. Gibbons, The Interdependence of Legitimacy: An Introduction to the Meaning of Separation of
 Powers, 5 SETON HALL L. REV. 435, 436 (1974).
 21. Parker, The Historic Basis of Administrative Law: Separation of Powers and Judicial Supremacy,
 12 RUTGERS L. REV. 449, 465 (1958). Indeed, the extent of this commitment has been so vague
 that we should probably begin to ask some new questions. That is, given the actual commitment
 to shared powers, how is it that separation of powers became so quickly and deeply entrenched in
 popular myth? Why do judges, political leaders, and commentators persist in using the term to
 characterize the constitutional framework? In this regard, it is interesting to look again at THE
 FEDERALIST, No. 47. There, Madison was concerned to defend the constitution against some of
 its critics-in particular, against those "more respectable adversaries to the Constitution" who
 believed that it violated the "political maxim that the legislative, executive, and judiciary depart-
 ments ought to be separate and distinct." See Madison, supra note 5, at 301. In other words, even
 then, it was apparent that the Constitution was not strictly enforcing a separation of powers.
 In his early commentaries on the Constitution Justice Story observed that the framers ". . . en-
 deavored to prove that a rigid adherence to separation of powers in all cases would be subversive
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 LAW AND CONTEMPORARY PROBLEMS
 have? Jaffe argues that "separation of powers has probably always been un
 derstood to be an expression of a general attitude, rather than an inexorabl
 table of organization. So understood it is a valuable element of political
 wisdom."22
 Corwin is more precise in analyzing this "general attitude." He adduces
 three "core principles" in the idea of separated powers: First, that the three
 functions should be reciprocally limiting; second, that each department
 should be able to defend its characteristic functions from intrusion by either
 of the other departments; and third, that none of the departments may abdi-
 cate its powers to either of the others.23
 Of course, even this account is a bit loose. The Constitution provides little
 help in setting strict limits-in defining illegitimate intrusion and abdication.
 It allocates functions and powers broadly, but leaves considerable room for
 political struggle. Most of the weapons which it issues to the participants are
 familiar enough: presidential recommendations, congressional vote; presiden-
 tial veto, congressional over-ride. Some weapons, however, are at best implicit
 in the Constitution, but have been developed to great effect by the contend-
 ing branches. If Congress appropriates too much, the President can impound
 the funds. If it appropriates too little, he can transfer or reprogram the
 money from other sources.24 If Congress fails to act at all, the President can
 often achieve the same result by issuing an executive order. Congress can use
 its committees and the Government Accounting Office to investigate executive
 administration; the President may claim executive privilege to resist those
 efforts.25 Congress can demand to exercise its right to "advise and consent" in
 foreign policy; the President can establish executive agreements to elude that
 demand.26 Congress can delegate considerable authority to executive agencies,
 and then try to control executive actions with committee vetoes, or override
 them entirely through concurrent resolutions.27 As a last resort, Congress can
 use the threat of impeachment to curb executive encroachment. Perhaps the
 of the efficiency of the government, and result in the destruction of the public liberties." See
 FISHER, supra note 7, at 2 (quoting, 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE
 UNITED STATES 396 (5th ed. M. Bigelow 1891)).
 22. L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 28-29 (1965).
 23. E. CORWIN, THE PRESIDENT: OFFICE AND POWERS 1787-1957, at 9 (4th rev. ed. 1957).
 24. See Fisher, Presidential Spen?dilg Discretion and Congressional Controls, 37 LAW & CONTEMP.
 PROB. 135, 147-155 (1972); M. GREEN, WHO RUNS CONGRESS? 116-121 (1975); and Church, Im-
 poundment of Appropriated Funds: The Decline of Congressional Control over Executive Discretion, 22
 STAN. L. REV. 1240 (1970).
 25. See Berger, Executive Privilege v. Conlgressional IlquirY, 12 U.C.L.A. L. REV. pt. 1, at 1044,
 p. 2. at 1288 (1965); Dorsen & Shattuck, Executive Privilege, the Congress and the Courts, 35 OHIO
 ST. L.J. 1 (1974).
 26. See Berger, The Presidential Monopoly of Foreigni Relations, 71 MICH. L. REV., 33-44 (1972).
 27. See Ginnane, The Control of Federal Administration by Conlgressional Resolutions and Committees,
 66 HARV. L. REV. 569 (1953); Watson, Conlgress Steps Out: A Look at Conlgressional Con7trol of the
 Executive, 63 CALIF. L. REV. 983 (1975).
 4
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 PRESIDENTIAL LEGISLATION
 only power which the President lacks is that of dissolving Congress entirely
 and calling new elections.28
 In this paper, we want to look more closely at but one of the weapons in
 the arsenal of presidential-congressional conflict-the executive order. Ex-
 ecutive orders have become the most important means of presidential legis
 lation. As such, they are central to an analysis and critique of separated
 powers. Many commentators see executive orders as subverting the vitality of
 the Constitution. For some, they represent a dangerous trend in executive
 usurpation.29 For others, they reflect a continuing policy of congressiona
 abdication.30 For still others, they are prompted by an inappropriate judicia
 deference toward the executive.31
 The popularity of such criticisms, however, should not preclude further
 analysis. The continuing use of executive orders as a lawmaking tool prompts
 questions from several perspectives. The constitutional lawyer is likely to ask:
 Do Presidents have the authority, under the Constitution, to issue executive
 orders? If so, over what sorts of issues or policy areas? Does Congress have
 the authority to delegate its powers to the executive branch? If so, according
 to what standards or guidelines? The political scientist will ask somewhat dif-
 ferent questions: First, the analytical problem: What, exactly, do we mean
 when we speak of "presidential power" in relation to Congress? Then: Has
 this power increased in significant ways? Have executive orders played a part
 in that trend? Why has Congress apparently been eager to delegate its legisla-
 tive power to the executive branch? Finally, the reformer will want to ask: Do
 executive orders undermine American democracy? Do they violate the dual
 concurrence which the Constitution prescribed for legislation? If so, what can
 be done about it?
 This paper is an attempt to raise and respond to some of these questions
 In examining the constitutional issues, we shall develop a framework for
 analyzing the validity of executive orders, in general, and then apply it t
 orders in two specific areas of domestic policymaking, civil rights an
 economic stabilization. This analysis will suggest a central conclusion: Al-
 though the courts generally uphold executive orders, these orders have in
 some cases been of-at best-dubious constitutionality. On some occasions,
 Presidents have issued orders without specific statutory authority, only to hav
 the courts find it for them. On others, Congress has delegated power to th
 executive so broadly that the President has lacked adequate standards with
 28. This weapon is not unique to parliamentary systems. The constitution of the French Fifth
 Republic grants the President the right to dissolve the National Assembly and Senate.
 29. See Remmert, Executive Order 11,246: Executive Encroachment, 55 A.B.A. J. 1037 (1969).
 30. See M. GREEN, supra note 24, at 135-138.
 31. See Velvel, Judicial Abdication on Separation Powers: Wage-Price Freeze Act, 29 NAT'L LAW.
 GUILD PRAC. 95 (1972).
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 LAW AND CONTEMPORARY PROBLEMS
 which to work. The subsequent executive orders have, accordingly, been
 without clear statutory basis.
 In considering the political issues, we shall focus on the role of Congress
 in national policymaking. In particular, we shall try to explain the congres-
 sional policy of broadly delegating legislative power to the executive. Such an
 account will result from looking at the political incentives faced by individual
 Congressmen. This analysis will suggest two conclusions: First, that contrary
 to the conventional wisdom of the 1960's,32 Congress exerts significant influ-
 ence over national policy. Nevertheless, this fact is to be distinguished from
 the care it takes in formulating that policy. On this score, the critics of Con-
 gress are correct; the legislative branch has been quite lax. Second, in some
 cases, executive orders are as much a reflection of presidential weakness, as of
 presidential strength. In other words, Presidents may decide to legislate by
 executive order when they have failed to move desired bills through Con-
 gress. This poses a problem for democratic theory, however, since it is pre-
 cisely in those instances where the President legislates by order-when he has
 previously failed or expects to fail in Congress-that executive orders may be
 least acceptable.
 There are two main threats to the doctrine of separated powers-usurpa-
 tion and abdication. To the extent that any branch falls prey to either of
 those dangers, the federal government can not be self-limiting. Executive
 orders, then, are a critical test for the separation doctrine, and a challenge to
 the integrity of the Constitution.
 I
 THE CONSTITUTIONAL CONTEXT
 A. Background: Definitions and Use
 It somehow seems fitting that the first case in modern constitutional law,
 Marbury v. Madison,33 should have been provoked by an executive order. Ex-
 ecutive orders have always been central to the tension between branches o
 government. Only since the New Deal, however, have they received mu
 popular and scholarly attention.
 Interestingly, we still lack a precise definition of executive orders. Th
 only statute on the subject, the Federal Register Act of 1935,34 calls for t
 publication of all executive orders, but fails to define them. There have been
 several executive orders providing instructions for the publication of orders
 and proclamations,35 yet none attempts a definition.
 32. See, Huntington, Congressional Responses to the Twentieth Century, in THE CONGRESS AN
 AMERICA'S FUTURE 5 (D. Truman ed. 1965).
 33. 5 U.S. (1 Cranch) 137 (1803).
 34. 49 Stat. 501 (1935), 44 U.S.C. 1505 (1970).
 35. The Order currently in effect is Exec. Order No. 11030, 3 C.F.R. 610 (1959-1963) (com-
 pilation), reprinted in 44 U.S.C. ? 1505 app., at 11081 (1970).
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 6
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 PRESIDENTIAL LEGISLATION
 Commentators have attempted, without complete success, to remedy this.
 They have been hard pressed, in particular, to distinguish executive orde
 from presidential proclamations. One writer, for example, "classifies" as e
 ecutive orders "all directives of the President which are directed to, and gov-
 ern actions of, government officials and agencies."36 Such orders, then, have
 only an "indirect" impact on private citizens. In contrast, presidential procla-
 mations are directed at the individual citizen; they have a "direct" impact
 But, since Presidents are more limited in their power to command citize
 directly, proclamations are almost always hortatory or ceremonial in desig
 Unfortunately, Presidents do not always follow this neat distinction. Presiden
 Kennedy's naval blockade of Cuba, for example, was implemented under
 presidential proclamation, rather than an executive order.38
 There is still a further problem with this definition. In command of
 huge federal establishment, Presidents are constantly issuing orders to execu-
 tive agencies and personnel. Yet, only a fraction of these commands are
 codified in the Federal Register as executive orders, presumably because 
 their weightier policy content. Unfortunately, the statutes, executive orders,
 and commentators all fail to provide any guidance on this question. Indee
 the definition just cited precludes any distinction between verbal and written
 commands, codified and uncodified executive orders.39 In this paper, we c
 do little but note these definitional problems. We shall, however, be restricti
 our analysis to published executive orders with clear legislative intent and im
 pact.
 Valuable, brief histories of executive orders have appeared elsewhere.40
 Several points merit inclusion here. Franklin Roosevelt used executive orders
 most frequently.41 Although subsequent Presidents have reduced the number
 of executive orders, they have broadened their scope. Since Franklin
 Roosevelt, Presidents have used executive orders to special effect in several
 policy areas, most notably civil rights, economic stabilization, and the gather-
 ing and protection of national security information. In each of these areas,
 recent Presidents have greatly extended the initiatives originally taken by
 Franklin Roosevelt.
 In the area of civil rights, for example, Roosevelt began in World War 
 36. Cash, Presidential Power: Use and Enforcement of Executive Orders, 39 NOTRE DAME LAW. 
 (1963-1964).
 37. Id.
 38. Pres. Proclamation No. 3504, 3 C.F.R. 232 (1959-1963 Compilation).
 39. Cash, supra note 36.
 40. See Keenan, Executive Orders: A Brief History ofJ their Use and the President's
 Them, in SENATE SPECIAL COMM. ON NATIONAL EMERGENCIES AND DELEGATED EMER
 93d CONG., 2d SESS., EXECUTIVE ORDERS IN TIMES OF WAR AND NATIONAL EMERGE
 print 1974); Neighbors, Presidential Legislation by Executive Order, 37 U. COLO
 109-112 (1964).
 41. See Keenan, supra note 40, at 40-47.
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 LAW AND CONTEMPORARY PROBLEMS
 by declaring a national policy of nondiscrimination in hiring for government
 and defense industries.42 This was followed, in 1948, by President Truman
 order to desegregate the armed services,43 which led in turn to a series o
 broader executive orders enforcing nondiscrimination in government spon
 sored housing programs,44 "affirmative action" in minority employment b
 private businesses working under government contract,45 and most recently,
 even stronger "preferential treatment" in minority hiring by governmen
 contractors. 46
 Similarly, modern experience with economic controls can be traced to
 World War II. Working under the "unlimited emergency"47 created by th
 War, President Roosevelt used executive orders to establish, first, an Office of
 Price Administration48 and then, an Office of Economic Stabilization,49 grant-
 ing them broad authority to regulate prices, wages, and profits.50 Almost
 thirty years later, President Nixon drew on this precedent to create, by execu
 tive order, during the relative peace of the 1970's, an even more elaborate
 bureaucracy for economic controls.51
 Finally, the modern growth of the American intelligence establishment has
 been authorized almost entirely by executive directive. The Central Intelli
 gence Agency, for example, was established by the National Security Act o
 1947. This Act endowed the Agency with primarily "ministerial" functions
 but gave the Director of Central Intelligence the authority to "perform such
 other functions and duties related to intelligence" as the President "may from
 time to time direct."52 Since that time, the intelligence activities of the CIA
 have been controlled and its administration restructured by a series of presi-
 dential directives, only some of which have been made public and codified a
 executive orders. For example, in 1967, an executive order was used to pro
 hibit the CIA from giving any "covert financial support" to any educational or
 voluntary organization.53 In 1973, Executive Order 11652 reformed the sys
 tem for classifying information in the possession of the federal intelligenc
 42. Exec. Order No. 8802, 3 C.F.R. 957 (1938-1943 Compilation).
 43. Exec. Order No. 9981, 3 C.F.R. 772 (1943-1948 Compilation).
 44. Exec. Order No. 11063, 3 C.F.R. 652 (1959-1963 Compilation).
 45. Exec. Order No. 10925, 3 C.F.R. 448 (1959-1963 Compilation).
 46. Exec. Order No. 11246, 3 C.F.R. 339 (1964-1965 Compilation). A useful account of pres
 idential use of executive orders in the area of civil rights is R. MORGAN, THE PRESIDENT AND CIVI
 RIGHTS: POLICY-MAKING BY EXECUTIVE ORDER (1970).
 47. Pres. Proclamation 2487, 3 C.F.R. 234 (1938-1943 Compilation).
 48. Exec. Order No. 8734, 3 C.F.R. 921 (1938-1943 Compilation).
 49. Exec. Order No. 9250, 3 C.F.R. 1213 (1938-1943 Compilation).
 50. Exec. Order No. 9328, 3 C.F.R. 1267 (1938-1943 Compilation), placed ceilings on wage
 and commodity prices.
 51. Exec. Order No. 11615, 3 C.F.R. 602 (1971-1975 Compilation); Exec. Order 11627, 3
 C.F.R. 621 (1971-1975 Compilation).
 52. Memo Said to Cast Doubts of Legality of CIA's Actions, N.Y. Times, Feb. 8, 1976, at 1, col. 4, 35
 col. 7.
 53. Marwick, Reforming the Intelligence Agencies, 1 FIRST PRINCIPLES No. 7, at 9 (1976).
 8
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 PRESIDENTIAL LEGISLATION
 agencies.54 In 1976, President Ford, used Executive Order 11905 to imp
 series of restrictions on intelligence activities and enact procedures for ren
 ing the intelligence agencies accountable to the President.55 Taken toge
 the directives in this executive order comprised what the President called "
 first major reorganization of the intelligence community since 1947."56
 It is apparent, then, that through the use of executive orders, Presid
 can initiate important public policies. The question is whether those po
 initiatives are constitutional.
 B. Sources of Authority
 Analysis of executive orders must begin with Article II of the Constitution.
 This article provides for the executive power of the federal government, but
 is constructed rather more loosely than article I, which provides for the legis-
 lative power. Thus one is forced to wonder whether the vesting of "executive
 power" in a "President of the United States of America"57 merely confers a
 title or, instead, assigns a broad set of powers. Presidents, themselves, have
 disagreed in their response. Taft, for example, is associated with a "constitu-
 tional theory" of presidential power-a narrow interpretation of article II.58
 In contrast, Theodore Roosevelt advocated a "stewardship theory" of the
 Presidency-that "every executive officer, and above all every executive of-
 ficer in high position, was steward of the people, and not to content himself
 with the negative merit of keeping his talents undamaged in a napkin."59 For
 54. Id. at 7; Exec. Order No. 11652, 3 C.F.R. 678 (1971-1975 Compilation).
 55. Exec. Order No. 11905, 3 C.F.R. 90 (1976 Compilation).
 56. Center for National Security Studies, President Ford's Intelligence Proposals: A Charter for
 Abuse, 1 INTELLIGENCE REPORT 1 (1976). It should also be noted that, between 1960 and 1974, the
 Federal Bureau of Investigation conducted over 500,000 separate intelligence investigations of
 American individuals and groups suspected of being subversive. There was no clear statutory
 authorization for such action. Instead, the Bureau claimed that authority had been provided by a
 series of presidential measures, including an oral statement by Franklin Roosevelt in 1936, writ-
 ten directives in 1939, 1943, 1950, and 1953, and executive orders in 1953 and 1971. There is
 some doubt, however, whether any of these measures authorized the specific kinds of investiga-
 tions undertaken by the Bureau. For discussion of this point, see Theoharis, The FBI's Stretching of
 Presidential Directives, 1936-1953, 91 POL. Sci. Q. 649 (1976); FBI Oversight: Hearings Before the
 Subcomm. on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st &
 2d Sess., pt. 2, 2-31, app (1975-1976) (statement of Elmer Staats, Comptroller General); Berman,
 The Casefor a Legislated FBI Charter, 1 FIRST PRINCIPLES No. 10, at 3 (1976).
 57. U.S. CONST. art. II, ? 1, cl. 1.
 58. In his book, OUR CHIEF MAGISTRATE AND HIS POWERS, Taft wrote: "The true view of the
 executive functions is, as I conceive it, that the President can exercise no power which cannot be
 fairly and reasonably traced to some specific grant of power or justly implied and included within
 such express grant as proper and necessary." E. CORWIN, supra note 23, at 153 (quoting W.H.
 TAFT, OUR CHIEF MAGISTRATE AND HIS POWERS 139-40 (1916).
 59. Id. (quoting T. ROOSEVELT, AUTOBIOGRAPHY 388-89 (1919)). Roosevelt goes on to note his
 "insistence upon the theory that the executive power was limited only by specific restrictions and
 prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional
 powers.... My belief was that it was not only [the President's] right but his duty to do anything
 that the needs of the Nation demanded unless such action was forbidden by the Constitution or
 by the laws."
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 LAW AND CONTEMPORARY PROBLEMS
 Taft, the President had power to act only with specific authorization. For
 Roosevelt, he had power to act whenever there was no specific prohibitio
 against doing so.
 Presidents since Franklin Roosevelt, with the possible exception of Eisen
 hower, all appear to have held to some theory of presidential "prerogative
 This is typified by the startling assurance of Franklin Roosevelt that, "In the
 event that Congress should fail to act, and act adequately, I shall accept th
 responsibility, and I will act."60 The pleadings of Assistant Attorney General
 Baldridge before the Supreme Court in Youngstown Sheet and Tube Co. 
 Sawyer61 and of Presidential Assistant John Ehrlichman before the Senat
 Special Committee on Watergate62 expand on this theme. The claim is tha
 article II confers on the President certain "inherent powers"-a "residuum 
 power . .which authorizes him ... to take such actions as he may deem to
 be necessary...."63
 The courts have been forced to face this claim several times. Their general
 approach has been interesting. They have consistently invoked the narrow
 "constitutional theory" of President Taft, yet have often been both generous
 and ingenious in finding sources of authority for executive action.64 Th
 courts have, however, rejected the boldest claims of the "inherent powers
 argument. From the set of limitations imposed by the Supreme Court, we can
 develop an analysis of individual executive orders.
 The majority opinion in Youngstown provides a useful starting point. The
 issue was the constitutionality of Executive Order No. 10340, by which Presi-
 dent Truman had ordered the Secretary of Commerce to seize and operate
 most of the country's steel mills in order to avert a nationwide strike of stee
 workers. Speaking for the majority, Mr. Justice Black was quite explicit in as-
 serting that, "The President's power, if any, to issue the order must stem eithe
 from an act of Congress or from the Constitution itself."65
 60. Neighbors, supra note 40, at 109 (quoting F. Roosevelt's Labor Day Address to Congress,
 88 CONG. REC. 7052, 7054 (1942).
 61. The Court asked Mr. Baldridge, "So you contend the Executive has unlimited power i
 time of an emergency?" He replied, "He has the power to take such action as is necessary to meet
 the emergency." See Comment, Inherent Presidential Power: Protection or Usurpation?, 3 SAN FERN
 V. L. REV. no. 1, 59, 63 (1974).
 62. Id. at 76-81. This argument can actually be traced back to Hamilton, who argued gener-
 ally that, "Energy in the executive is a leading character in the definition of good governmen
 E. CORWIN, supra note 23, at 15 (quoting A. HAMILTON, FEDERALIST No. 70, 198 (Fairfield e
 1966)). According to Corwin, Hamilton believed ". . . first that the opening clause of Article II
 a grant of power; secondly, that the succeeding more specific grants of the article, except wh
 'coupled with express restrictions or limitations,' 'specify the principal articles' implied in t
 general grant and hence serve to interpret it ...." Id. at 179.
 63. See Comment, supra note 61, at 65 (quoting Youngstown Sheet & Tube v. Sawyer, 103 F
 Supp. 574 (D.D.C. 1952), aff'd 343 U.S. 579 (1952)).
 64. See notes 118-124 infra and accompanying text.
 65. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 585 (1952).
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 PRESIDENTIAL LEGISLATION
 C. Constitutional Authorization
 Authorization for executive orders, then, must be either direct or imp
 in an act of Congress or the Constitution. What are the specific cond
 which might confer such authority? Several sections in Article II of the C
 stitution have been taken to authorize executive orders.66
 First, of course, is section I-that "executive power be vested in a Presi-
 dent of the United States." We have already mentioned the difficulty of in-
 terpreting this clause.67 Twentieth century Presidents have typically called for
 a broad construction of the clause, using it to justify both executive orders
 without specific congressional authorization68 and executive privilege.69
 The second relevant portion of article II is section II, clause I: "The
 President shall be Commander-in-Chief of the Army and Navy of the United
 States, and of the militia of the several states when called into actual service of
 the United States."70 This clause has been used to justify a number of impor-
 tant executive orders. For example, Franklin Roosevelt's internment of Jap-
 anese Americans appealed specifically to the Commander-in-Chief clause,71
 as did Truman's order to desegregate the military.72 In Youngstown, the Solic-
 itor General also invoked the Commander-in-Chief clause.73
 A full analysis of the Commander-in-Chief clause and its relevance to pre
 idential law-making is beyond the scope of this paper. Suffice it to say that,
 using this clause to authorize executive orders, one must draw several distinc
 tions. First is between military personnel and civilian populations as objects o
 the order. Second is among de jure war, de facto war, and peace as timin
 for the order. Third is between the domestic and foreign arenas as settin
 for the order. The President's authority under the Commander-in-Chi
 clause seems strongest when exercised over military personnel involved i
 declared war against a foreign power. It seems more dubious, however, w
 applied to civilian populations, as with Lincoln's revocation of habeas
 corpus,74 or Roosevelt's internment policy,75 or during de facto, rather than
 66. This analysis will attempt to indicate the extent to which specific constitutional provisions
 offer authority for executive orders. This task is complicated by a basic problem: Presidents often
 appeal to the supposed authorization of two or more constitutional provisions (often coupled with
 congressional authorization, as well). In such cases, it is difficult to discern the precise role of the
 individual clauses.
 67. See notes 57-64 supra and accompanying text.
 68. See 343 U.S. at 587.
 69. See note 25 supra.
 70. U.S. CONST. art. II, ? 2, cl. 1.
 71. See Hirabayashi v. United States, 320 U.S. 81, 85-86 (1943).
 72. See note 43 supra.
 73. In Youngstown, however, this appeal to the Commander-in-Chief clause was explicitly re-
 jected. See 343 U.S. at 587.
 74. See Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861); 6 J. RICHARDSON, MESSAGES
 AND PAPERS OF THE PRESIDENTS, 18 (1897). See also The Amy Warwick, 67 U.S. (2 Black) 635
 (1863) (The Prize Cases).
 75. See note 71 supra.
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 LAW AND CONTEMPORARY PROBLEMS
 declared war, as with Truman's seizure of the steel mills.
 President Lincoln contended that the Commander-in-Chief clause, com-
 bined with the "take care" clause gave him a broad "War Power" to be exer-
 cised in times of national emergency. This position was upheld by the Su-
 preme Court in the Prize cases.76 Succeeding Presidents have adopted Lincoln's
 constitutional argument, although never acting quite to his extreme. They have
 been assisted both by Congress' tendency to delegate power generously dur-
 ing times of perceived national emergency, and by its hesitancy to terminate
 declared emergencies.77
 The third significant portion of article II is section III, the provision that
 the President "take care that the laws be faithfully executed .. ."78 There
 appear to be two basic applications of this clause. First is to create a role for
 the President as the nation's "administrative chief."79 Required by the Con-
 stitution to implement specific policies set by Congress, the President may
 then announce administrative commands through executive orders. Thus, at
 the least, this clause simply authorizes the President to obey Congress. His
 authority to issue orders under such conditions is well established. Indeed, it
 is then at its strongest. As Mr. Justice Jackson observed in Youngstown, "When
 the President acts pursuant to an express or implied authorization of Con-
 gress, his authority is at its maximum, for it includes all that he possesses in
 his own right plus all that Congress can delegate."80 When Presidents claim
 express or implied Congressional authorization for their orders, the orders
 themselves can be challenged on the grounds that they exceeded the intent of
 Congress.81
 A broader interpretation of the "take care" clause is possible, however.
 The clause, it can be argued, authorizes the President not simply to imple-
 ment specific directives of Congress, but to enforce the laws in general.82
 Thus the President enjoys considerable freedom to choose which among the
 panoply of existing laws he will enforce, and when he will enforce them. In
 the absence of Congressional authorization, the "take care" clause can be used
 to bolster a theory of presidential stewardship.83 As a result, "The President's
 76. See note 74 supra.
 77. The national emergency declared by Truman during the Korean War, for example, was
 not terminated until 1976. The National Emergency Act, enacted on September 14, 1976, ended
 four different states of national emergency, one of which was first declared in 1933. In all, about
 470 different statutes and presidential decrees had been enacted under the conditions of these
 declared emergencies. See President Signs Newt Law Ending 4 States of National Emergency, N.Y.
 Times, September 15, 1976, at 24, col. 1.
 78. U.S. CONST. art. II, ? 3.
 79. See E. CORWIN, supra note 23, at 69.
 80. 343 U.S. at 635.
 81. The two most notable, successful challenges have been Youngstown and Cole
 U.S. 536 (1956).
 82. See E. CoRwIN, supra note 23, at 104.
 83. In Youngstown, for example, the Solicitor General argued that the "take care" clause pro-
 vided authority for the presidential seizure of the steel mills. See 343 U.S. at 646.
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 PRESIDENTIAL LEGISLATION
 duty 'to take care that the laws be faithfully executed' becomes often a pow
 to make the laws."84
 The fourth important provision has a somewhat more ambiguous ground-
 ing in the Constitution. This is the designation of the President as the sole
 representative of the United States in foreign affairs-that the President is
 "exclusively responsible for the conduct of diplomatic and foreign affairs."85
 This principle has been accepted since at least the 1790's. Yet, the source of
 this power is still not entirely clear. Is it inherent, constitutionally derived, or
 delegated by Congress? The Constitution does grant the President some
 power relevant to the pursuit of foreign policy-most notably, the power to
 make treaties (with the advice and consent of the Senate),86 the power to
 appoint ambassadors, other public ministers, and consuls,87 and the power to
 receive ambassadors and other public ministers.88 At the same time, the Con-
 stitution reserves to Congress the right, among others, to regulate commerce
 with foreign nations.89 Thus, despite the tradition of presidential responsibil-
 ity for foreign affairs, the Constitution clearly grants Congress a major role.
 One commentator sees it as according to Congress a "coordinate, if not dom
 inant, role in the initiation of war, whether declared or not."90 Moreover,
 "control of commercial policy was largely assigned to Congress, and [the
 Framers] thought that commercial relations would constitute a major portion
 of America's overall relations with the world."91
 The President's powers in foreign affairs are greatest in the field of mak-
 ing treaties, as evidenced by the continuing use of executive agreements. Eve
 after the War Powers Act,92 the President's ability to wage war, withou
 formal declaration by Congress, remains formidable. In the field of forei
 commerce, however, Presidents have been forced to rely on delegations o
 power from Congress. There are several examples. Perhaps most promine
 is Franklin Roosevelt's proclamation forbidding arms shipments to eith
 Paraguay or Bolivia in 1932, issued under the terms of a Joint Resolution
 Congress, and upheld in United States v. Curtiss-Wright Export Corporation.93
 84. E. CORWIN, THE CONSTITUTION AND WHAT IT MEANS TODAY 152 (rev. ed. 1973).
 85. Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).
 86. U.S. CONST. art. II, ? 2, cl. 2.
 87. Id.
 88. U.S. CONST. art. II, ? 3.
 89. U.S. CONST. art. I, ? 8, cl. 3.
 90. Lofgren, United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 YALE
 L.J. 1, 30 (1973).
 91. Id.
 92. See Allison, Making War: The President and Congress, 40 LAW AND CONIEM
 86 (1976).
 93. United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936); Pres. P
 2087, 48 Stat. 1744 (1933-1934).
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 LAW AND CONTEMPORARY PROBLEMS
 D. Congressional Authorization
 Congressional authorization for executive orders can be either direct or
 implicit. Direct authorization will typically be expressed in statutory delega
 tions. Implicit authorization has, on occasion, been inferred by the courts
 from the fact of continued congressional inaction in the wake of executive
 initiatives. With the former, the problem is to determine the constitutionality
 of those delegations: does the statute represent an excessive, and thus uncon-
 stitutional, abdication of congressional authority? With the latter, the problem
 is to discern congressional will: does congressional quiescence necessarily
 imply acceptance of presidential action?
 The theory of separated powers would seem to prohibit delegations of
 power by any branch of government.94 Yet, a long line of court decisions
 upholds the practice of delegation (although often seeming to cling to the
 principle of non-delegation).95 One need not trace this history to demonstrate
 the validity of delegation. As Fisher observes, one need only look at the de
 bates and performance of the Framers. Thus, at the Philadelphia Convention,
 it was recommended that the executive carry out such powers "as may from
 time to time be delegated by the National Legislature." But since the legisla
 tive power to delegate was thought to be implicit in the power to carry all law
 into effect, this claim seemed superfluous and was omitted. Moreover, delega-
 tions were carried out as early as the first Congress, which included, after all,
 a number of the constitutional Framers.96
 The problem, then, is to determine, not whether Congress can delegate
 but what, exactly, and how much. The courts have continually faced thes
 questions, but their reponses have not been entirely consistent. Through t
 nineteenth century, they simply denied the obvious-that Congress was de
 egating the power to make law. Thus, they argued, the executive was bein
 empowered simply to find facts or "fill up the details"97 of congressional pol
 icy. Only in the twentieth century has the Supreme Court taken a different
 position. The two transitional cases are Buttfield v. Stranahan (1904) and J.W.
 94. Commentators have typically seen the non-delegation doctrine as logical corollary of se
 aration of powers. A recent analysis, however, suggests that the origin of the presumption again
 delegation lies, instead, in the doctrine of constitutional supremacy-the "simple expectation 
 the constituent act of establishing government that neither the government nor any of its part
 should change the constitutional arrangement of offices and powers." See S. BARBER, TH
 CONSTITUTION AND THE DELEGATION OF CONGRESSIONAL POWER 36-37 (1975).
 95. In Field v. Clark, for example, the Supreme Court stated, "That Congress cannot delega
 legislative power to the President is a principle universally recognized as vital to the integrity a
 maintenance of the system of government ordained by the Constitution." See Field v. Clark 
 U.S. 649, 692 (1892). As recently as 1932, the Court observed, "That the legislative power 
 Congress cannot be delegated is, of course, clear." See United States v. Shreveport Grain & Elevat
 Co., 287 U.S. 77, 85 (1932). In both cases, the Court upheld the disputed delegations of congr
 sional power.
 96. Fisher, Delegating Power to the President, 19 J. OF PUB. L. 251, 253 (1970).
 97. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).
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 PRESIDENTIAL LEGISLATION
 Hampton v. United States (1928).98 In Buttfield, the Court upheld a broad con-
 gressional delegation in the area of foreign commerce, saying, "Congress
 legislated on the subject as far as was reasonably practicable, and from the
 necessities of the case was compelled to leave to executive officials the duty of
 bringing about the result pointed out by the statute."99
 In Hampton, the Court went a step closer toward acknowledging the essen-
 tially legislative nature ot such delegations. Interestingly, the author of th
 majority opinion was former President and then Chief Justice Taft, who
 might have been expected to look with disfavor on broad delegations. Yet it
 was Taft who drafted the well-known word formula of Hampton: "If Congress
 shall lay down by legislative act an intelligible principle to which the person or
 body authorized to fix such rates is directed to conform, such legislative ac
 tion is not a forbidden delegation of legislative power."100
 It is, of course, the ambiguity of this formulation that strikes one most. Is
 Taft saying that, with the incorporation of an intelligible principle, the delega
 tion ceases to be of legislative power? Or is he saying that, even with an intel-
 ligible principle, the delegation is essentially legislative, yet still acceptable?
 Whatever Taft's precise meaning, the Hampton decision led to further re-
 jection of the nineteenth century legal fictions. Most important were the fa-
 mous New Deal cases, Panama Refining Co. v. Ryan101 and Schechter Poultry Corp.
 v. United States.102 In these cases, the Court actually overturned the congres-
 sional delegations in question, but seemed at last to concede that such delega-
 tions will inevitably be of legislative power. Having accepted this, it began to
 set tentative guidelines for delegations. In particular, these cases establish
 three principles: that delegation of powers must be to other public officials
 not to private groups; that Congress must clearly define the policy which i
 wants implemented; and that Congress must provide standards to regulate
 the actions of administrative officials.
 Standards are the key. Subsequent delegation cases have been decided ac-
 98. Buttfield v. Stranahan, 192 U.S. 470 (1904); J. W. Hampton, Jr. & Co. v. United States,
 276 U.S. 394 (1928).
 99. 192 U.S. at 496.
 100. 276 U.S. at 409. Some years later, in Yakus v. United States, 321 U.S. 41
 the Court expanded on this point: "The Constitution as a continuously operativ
 ernment does not demand the impossible or the impracticable. It does not req
 find for itself every fact upon which it desires to base legislative action or that
 detailed determinations which it has declared to be prerequisite to the applicat
 tive policy to particular facts and circumstances impossible for Congress itself p
 gate. The essentials of the legislative function are the determination of the leg
 its formulation and promulgation as a defined and binding rule of conduct..
 are preserved when Congress has specified the basic conditions of fact upon w
 occurrence, ascertained from relevant data by a designated administrative agen
 its statutory command shall be effective."
 101. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
 102. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
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 LAW AND CONTEMPORARY PROBLEMS
 cording to the presumed adequacy of the standards incorporated by Congress
 in its statutes. The function of standards is clear: once delegations have been
 accepted, standards are essential to preserving at least a semblance of account-
 ability. In Arizona v. California (1963), Mr. Justice Harlan elaborated:103
 The principle that authority granted by the legislature must be limited by
 adequate standards serves two primary functions vital to preserving the sep-
 aration of power required by the Constitution. First, it insures that the fun-
 damental policy decisions in our society will be made not by an appointed
 official but by the body immediately responsible to the people. Second, it pre-
 vents judicial review from becoming merely an exercise at large by providing
 the courts with some measure against which to judge the official action that
 has been challenged.
 Thus there are two avenues of attack on an executive order claiming di-
 rect authorization by Congress. The first is to demonstrate that the substance
 of the order exceeds the terms of the authorization. The second is to chal-
 lenge the authorization itself, to suggest that the statute contains inadequ
 standards for guiding executive action. Neither attack is easily sustain
 recent years, several executive measures have been struck down for excee
 the statutory intent of Congress.104 Since the New Deal, however, none o
 many statutes delegating congressional power to the executive has been ov
 turned. In large part, this is because the established standards are q
 broad. Indeed, it seems that, given the nature of written law, it wou
 difficult not to find a statement of policy and standards-an "intelli
 principle"-in all congressional statutes. This points to a further pro
 The courts have imposed only tentative guidelines; they have set no f
 clear limits on delegation at all.
 In assessing executive orders, the key problem is to discern congression
 will. As Chief Justice Stone put it in Yakus v. United States, ". . . the
 concern of courts is to ascertain whether the will of Congress has b
 obeyed."105 Even in cases of specific statutory authorization, this may be
 ficult. When Congress has not enacted a statute, it is, of course, even
 difficult. Cases of congressional inaction are not infrequent. As we shall s
 is when Congress does not take initiative that Presidents may be most tem
 to legislate through executive orders. This creates a paradox: in cases w
 Presidents are most likely to legislate by order, their authority to do so is 
 clear.
 The courts, however, have devised a means of resolving this paradox. In-
 geniously enough, they have found, in congressional inaction, tacit support
 for independent, unauthorized executive action. This approach-the "ac-
 quiescence doctrine"-dates back to United States v. Midwest Oil Company
 103. Arizona v. California, 373 U.S. 546, 626 (1963).
 104. See note 81 supra.
 105. 321 U.S. at 425.
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 PRESIDENTIAL LEGISLATION
 (1915).106 There, the Court was forced to rule on an executive order designed
 to withdraw public lands from private acquisition, but promulgated witho
 specific authorization from Congress. Congress, it decided, has long known of
 similar executive orders. Its continued silence could, therefore, be construed
 as consent:
 Government is a practical affair intended for practical men, and 
 long acquiescence in a governmental practice raises a presumption 
 ity applies to the practice of withdrawal by the Executive of land
 Congress for occupation. While the Executive cannot by his course
 create a power, a long continued practice to withdraw lands from
 after they have been opened by Congress, known to and acqu
 Congress, does raise a presumption that such power is exercised in
 of the consent of Congress or of a recognized administrative p
 Executive in the management of the public lands.107
 This decision is perhaps most interesting for its implicit pol
 presumes on the side of presidential initiative. By requiring sp
 tions against, rather than specific authorization for, executive 
 Oil moved the Court close to an acceptance of Theodore Roo
 ship theory.108
 There is a basic problem with the acquiescence doctrine, 
 is simply no good reason to assume that congressional silen
 imply consent. The Court in Midwest Oil assumed that inaction
 a sign of congressional support for executive orders. This seem
 American democracy was not meant to be majoritarian; the
 Congress reflects that design. Congressional policy need not em
 sentiment. As Choper puts it:
 If there is any single axiom that describes the Congress, it is that
 method for selection of its members nor its actual modes of behavior result in
 the automatic translation of the majority will into detailed legislation .... The
 result is the possibility, indeed not infrequently the actuality, of minority con-
 trol over the making of government policy.109
 Choper is worried primarily about the inability of Congress to express the
 majority of the public's opinion accurately. It is no less true, however, that t
 structure of Congress may prevent it from expressing the majority of Co
 gress' opinion directly. In particular, the existence of bicameralism, filibuster
 (ended only by a two-thirds vote for cloture), and a strict division of
 policymaking labor characterized by deference to committees and, especially,
 to committee chairmen, provides minorities with ample opportunity to o
 struct legislation they oppose. Thus, in any specific instance, the mere fact o
 106. United States v. Midwest Oil Co., 236 U.S. 459 (1915).
 107. Id. at 472, 474.
 108. See note 59 supra and accompanying text.
 109. Choper, The Supreme Court and the Political Branches: Democratic Theory and Practice, 122 U.
 PA. L. REV. 810, 817 (1974).
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 LAW AND CONTEMPORARY PROBLEMS
 congressional "failure" to pass a proposed bill need not imply majority opposi-
 tion to that bill. At the least, any attempt to assess the "will" or position o
 Congress must probe more deeply to look at forces that may have sidetracked
 a proposal, or perhaps even to suggest ones that may account for its not being
 raised in the first place.
 Furthermore, to speak of congressional "silence," or "acquiescence," or
 "will" is to deal in abstractions. The Midwest Oil decision, as well as more re-
 cent sweeping criticisms of congressional "inertia" tend to reify the concept of
 Congress, and thus to impede our understanding of its internal politics.
 Again, silence need not imply some sort of unanimous, or even majority, tacit
 consent. Instead, it may reflect deep divisions between powerful interests. It is
 not at all clear that, in such cases, either the courts, or critics, should presume
 in favor of presidential action. Choper notes, with some dismay, the "negativ-
 ism" of congressional policymaking. He quotes an observation that "a distin-
 guishing feature of our system . . . is that our governmental structure, insti-
 tutional habits, and political parties . . . have combined to produce a system
 in which major programs and major new directions cannot be undertaken un-
 less supported by a fairly broad popular consensus. This normally has been
 far broader than 51 per cent, and often bi-partisan as well."110 Curiously,
 Choper seems not even to consider the possibility that this may be a benefit,
 rather than a cost. It is at least arguable that it is precisely the boldest innova-
 tions that require the most deliberate debate and analysis. In most cases, to
 approve of a broad presidential prerogative may serve only to risk a calami-
 tous policy and to undermine democratic decision procedures.
 Of course, one need not concede that congressional slowness is typically
 beneficial. Yet, even then, it need not follow that the President should enjoy
 legislative prerogative. In that case, the problem is to weigh the presumed
 social benefits of the desired policy against the possible costs of evading Con-
 gress and undermining democratic norms.11
 This analysis suggests that the acquiescence doctrine fails to resolve this
 paradox of presidential legislation. It succeeds primarily in legitimating presi-
 dential law-making when it is least desirable. Congressional inaction may re-
 flect a period of policy "incubation,"'12 in which new ideas are being con-
 sidered and consensus is being built. For example, Congress has often been
 criticized for its failure to intercede earlier and end American involvement in
 Viet Nam. Yet such criticisms typically overlook the deep divisions with
 Congress, and the country as a whole, which prevented such action.
 Throughout the 1960's and early 1970's changing events and membership
 110. Id. at 830-831 (quoting R. DIXON, DEMOCRATIC REPRESENTATION: REAPPORTIONMENT IN
 LAW AND POLITICS 10 (1968)).
 111. This is the approach taken by Mr. Justice Douglas in Youn1gstownz. See 343 U.S. at 633
 (Douglas, J., concurring).
 112. Polsby, Strengthening Congress i, National Policr'-Making, 59 YALE L. REV. 481, 489 (1970).
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 PRESIDENTIAL LEGISLATION
 were altering the components of congressional will. Sweeping attacks on con-
 gressional "inertia" may miss this reality of politics. Similarly, until 1964, div
 sions within Congress prevented the passage of substantial legislation on civil
 rights. A series of Presidents, however, felt compelled to take innovative ac-
 tion in this area, and as the next section will show, the courts uniformly sup-
 ported their moves.
 Executive orders are clearly important for American politics and policy
 and have frequently been considered by the courts. Yet the bases by whic
 they may be authorized have rarely been analyzed closely. Mr. Justice
 Jackson's formulation in Youngstown remains the most definitive account.113 I
 was the purpose of this section to elaborate Jackson's analysis somewhat-
 develop a framework with which to assess the constitutionality of such orders
 It remains to apply that framework to specific cases.
 E. Executive Orders and Usurpation: The Case of Civil Rights
 Not until 1964 did Congress enunciate a national policy on civil rights. I
 the thirty years before that, policy in the field was made by the President an
 Supreme Court. The standard presidential policymaking tool was the exec
 tive order. Initiatives were first taken by Roosevelt and Truman to desegr
 gate the military services. Their orders initially concerned military personnel
 in times of declared war and national emergency.114 These initiatives wer
 then extended to affect civilian groups in peacetime. These included orde
 calling for, first, nondiscrimination,115 then, affirmative action, in employme
 by government contractors,16 and later, nondiscrimination in filling govern-
 ment funded housing.17
 The passage of the Civil Rights Act of 1964 is significant for the analys
 of the executive orders in this field. Before 1964, orders concerning civ
 rights were promulgated without specific congressional authorization. In con-
 sidering the validity of such orders, the task is to determine, first, whether
 Presidents possessed sufficient constitutional authorization for their actions,
 and second, whether any related statutes, or even congressional inaction, c
 be construed as providing direct or implied authorization of executive action.
 For orders issued after 1964, the task is to determine whether Presidents ex-
 ceeded the statutory guidelines set out in 1964. Brief analysis of a pre-1964
 executive order will reveal some of the constitutional and political problems
 associated with them.
 On March 6, 1961, John Kennedy issued Executive Order No. 10925. This
 113. See 343 U.S. at 635-638 (Jackson, J., concurring).
 114. See notes 42-43 supra.
 115. Exec. Order No. 10,590, 3 C.F.R. 237 (1954-1958 Compilation).
 116. See note 45 supra.
 117. See note 44 supra.
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 LAW AND CONTEMPORARY PROBLEMS
 order replaced the Committee on Government Employment Policy and the
 Government Contract Committee with a Presidential Committee on Equa
 Employment Opportunity. The purpose of the order, and its Committee, was
 to enforce a policy of nondiscrimination in both government employment and
 private employment conducted under government contract. The order wen
 beyond previous orders of nondiscrimination. It gave the Committee broa
 powers to investigate the employment practices of contractors, and to punish
 them if they failed to comply with employment regulations. It required, for
 the first time, that both government contractors and agencies go beyond mer
 nondiscrimination in hiring. It ordered them to take "affirmative action" t
 equalize employment opportunities for minorities.118
 The President's decision to rely on an executive order rather than con-
 gressional legislation is readily explained. For him, civil rights was essentially
 a moral issue; yet, it was just as clearly a political problem. During the 196
 election campaign, he had sought to cement the New Deal Democratic coali
 tion with a pledge of leadership in civil rights. After his inauguration, how-
 ever, he failed to include civil rights recommendations in his legislative pro-
 gram. His reasons were clear: he feared a loss of support from Southern
 Democrats for policy proposals which held a higher priority in the White
 House. At a press conference in March 1961, he described the problem
 There were, Kennedy contended, a "good deal of things we can do now in
 administering laws previously passed by the Congress, particularly in the area
 of voting, and also by using the powers which the Constitution gives to th
 President through executive orders." He added, "When I feel that there is a
 necessity for a congressional action, with a chance of getting that congres
 sional action, then I will recommend it to Congress."119 Thus, in acting
 through an executive order, the President was honoring a campaign pledg
 which he could not expect Congress to heed. In fact, it was not until June
 1963, that Kennedy, at last, submitted civil rights proposals to Congress. This
 was in response to confrontations over the admission of blacks to the Univer-
 sity of Alabama. He sensed, apparently, that Congress could not, in such a
 crisis, avoid taking action. As he put it, "The events in Birmingham and else-
 where have so increased the cries for equality that no city or state or legisla-
 tive body can prudently choose to ignore them."120
 Under closer to normal conditions, however, Congress could not be ex-
 pected to act. Executive Order No. 10925 provided the desired policy despite a
 reluctant Congress. An analysis of its validity is complicated by one factor
 The Executive was quite vague in specifying its presumed bases of authoriza-
 118. See R. MORGAN, supra note 46, at 46-47.
 119. The President's News Conference of March 8, 1961, 1961 PUB. PAPERS. 152, 156-57.
 120. Special Message to the Congress on Civil Rights and Job Opportunities, June 19, 1963,
 1963 PUB. PAPERS. 483, 483.
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 PRESIDENTIAL LEGISLATION
 tion. It appealed only to the "Constitution" and "statutes" of the United
 States. As a result, the courts, when considering this order, were forced 
 infer specific sources of authorization.
 The order's reference simply to the "Constitution" suggests a broad in
 terpretation of executive powers. Since there is not even a hint of nation
 emergency in the terms of the order, the Commander-in-Chief clause d
 not seem to apply. Nor, of course, does the President's inherent power 
 foreign affairs. This leaves the "executive power" and "take care" clauses 
 possible bases for issuing the order.
 Discerning sources of statutory authority for the order is even more dif-
 ficult. Since the order appeals to "statutes," albeit vaguely, direct authorizatio
 must be found. The courts considered Executive Order No. 10925 twice, in
 Farmer v. Philadelphia Electric Company (1964),121 and in Farkas v. Texas Instru-
 ment, Inc. (1967).122 In both cases, they upheld the order, finding adequate
 statutory authorization for it in the Federal Property and Administrative Ser-
 vices Act of 1949.123 There, Congress stated its policy: "It is the intent of the
 Congress in enacting this legislation to provide for the Government an
 economical and efficient system for the (a) procurement and supply of per-
 sonal property and nonpersonal services, including related functions such as
 contracting .. ."124 To this end, it delegated powers to the President: "The
 President may prescribe such policies and directives, not inconsistent with the
 provisions of this Act, as he shall deem necessary to effectuate the provisions
 of said Act, which policies and directives shall govern the administrator and
 executive agencies in carrying out their respective functions hereunder."'25
 From this, the courts in Farmer and Farkas concluded that the President had
 adequate authority to establish regulations governing the hiring practices of
 government contractors.
 There are several problems with this ruling. First, a closer look at the 1949
 Act indicates that its policy aims are quite different from those of the execu-
 tive order. The 1949 Act was designed specifically to rationalize property
 management by the federal government, that is, to "simplify the procure-
 ment, utilization, and disposal of government property. . .126 Executive
 Order No. 10925, in contrast, was concerned only incidentally with the pro-
 curement and management of property and services. Its essential aim was to
 promote social equality, a worthy enough goal, but not one contemplated by
 the 1949 Act. The language which the Court of Appeals used in its decision
 in Farkas seems to reveal its own ambivalence on this point:
 121. Farmer v. Philadelphia Elec. Co., 329 F.2d 3 (3d Cir. 1964).
 122. Farkas v. Texas Instrument, Inc., 375 F.2d 629 (5th Cir. 1967).
 123. 63 Stat. 377 (1949) (codified in scattered sections of 40, 41, 44, 50 app. U.S.C.).
 124. 40 U.S.C. ? 471 (1970).
 125. 40 U.S.C. ? 486(a) (1970).
 126. 63 Stat. 377 (1949).
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 LAW AND CONTEMPORARY PROBLEMS
 We would be hesitant to say that the antidiscrimination provisions of Execu-
 tive Order No. 10925 are so unrelated to the establishment of "an economical
 and efficient system for . . . the procurement and supply of property and
 services," 40 U.S.C.A. 471, that the order should be treated as issued without
 statutory authority .... We, therefore, conclude that Executive Order No.
 10925 was issued pursuant to statutory authority, and has the force and effect
 of law.127
 Thus the court seems to be conceding that the Order is, in fact, unrelated
 to the aims of the 1949 Act, but apparently not so unrelated as to have de-
 nied authority to the executive order. Unfortunately, the court did not sug-
 gest how unrelated an order would have to be before it could be said to have
 violated the intent of the 1949 Act.
 Second, the 1949 Act sought to simplify government procedure; it em
 powered the President to prescribe only such measures as would establish 
 "economical and efficient" system for procuring property and services. Yet, i
 is arguable that affirmative action only complicates the procurement o
 services-that it is uneconomical and, for that reason, inefficient.'28 Affirma-
 tive action, after all, imposes search costs on the contractor. He must advertise
 the project and interview minority personnel. He may then be forced to pro-
 vide special training. One can reasonably expect these increased costs to be
 passed on to the government in the form of higher bids by the contractors. If
 this argument is correct, it suggests that the policy embodied in Executive
 Order No. 10925 is actually inconsistent with the provisions of the Federal
 Property and Administrative Services Act. In that case, the order could not
 properly be said to have direct congressional authorization.
 Third, on several occasions, Congress had been forced to respond to ear-
 lier executive initiatives in civil rights. Its judgment had consistently been neg-
 ative. In 1951, for example, it had expressly refused to continue the Fair Em-
 ployment Practices Committee, which had been created in 1941 by Franklin
 Roosevelt's Executive Order No. 8802. Some years later, Congress refused to
 provide support for the Committee on Government Contracts, which had
 been created in 1953 by Executive Order No. 10479. In the three years be-
 tween the promulgation of Executive Order No. 10925 and the decision in the
 Farmer case, Congress continued to deny support for the presidential initia-
 tive. In Farmer, the court conceded these points. It observed:
 . . . Congress has not directly appropriated any money for carrying out the
 policies announced in the executive order. A report by the Committee on
 Government Contracts notes that attempts to secure some form of congres-
 sional sanction for the program failed in the 1958-59 session and were de-
 feated at both the regular and special session in 1960.129
 127. 375 F.2d at 632, n.l.
 128. In reply, it could be argued that the short-term costs of the program might yield greater
 long-term benefits by reducing unemployment and economic unrest among minority groups.
 129. 329 F.2d at 8, n.9.
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 Thus the response of Congress to executive actions in civil rights, from 1950
 to 1964, can hardly be characterized as one of "acquiescence" or tacit consent.
 Accordingly, it would be difficult indeed to discern some form of implic
 congressional authorization for Executive Order No. 10925.
 The remaining question is whether the President possessed sufficient con-
 stitutional authority to act independently of Congress. President Kennedy ap-
 parently believed that the "executive power" and "take care" clauses conferred
 upon him adequate authority to issue the order. Indeed, it is arguable that his
 responsibility under the "take care" clause to implement the spirit of the Fift
 and Fourteenth Amendments obliged him to act. Unfortunately, this issue was
 neither raised before nor addressed by the courts in either Farmer or Farkas.
 In the end, the courts based their support of the executive order on 
 finding of adequate statutory authority. This analysis has suggested that these
 courts were ingenious, but possibly incorrect, in their finding. As we hav
 seen, the statute which was supposed to have provided the necessary authority
 was originally intended for quite different purposes. Moreover, the executive
 order may actually have violated the expressed will of Congress in two ways.
 First, it could, with some justification, be said to have violated the standard o
 "economical and efficient" procurement of services set by the Federal Pro
 erty and Administrative Services Act. Second, it appears to have violated th
 negative opinion on civil rights which Congress had made manifest in the
 years immediately preceding the executive order.'30
 This point is perhaps most important. The essential task of the courts,
 after all, is to determine if the will of Congress has been obeyed. In
 Youngstown, for example, the Supreme Court had relied heavily on its obser-
 vation that, when Congress had debated the Taft-Hartley Act in 1947, it had
 explicitly refused to give Presidents the power to seize factories.131 Similarly,
 Congress had expressly refused to support the presidential policy on civil
 rights. These actions represent a more direct congressional commentary on
 civil rights than the provisions of the 1949 Act on property procurement.
 Accordingly, there is some reason to question the validity of the statutory
 authorization found by the courts for Executive Order 10925.
 This executive order was promulgated in the famous "zone of twilight"
 described by Jackson in Youngstown.132 Congress and the President clearly
 have concurrent authority to make policy in the area of fair employment. Yet,
 since the President expected to be denied the concurrence required for law,
 130. One commentator wrote: "Congress has expressly refused to continue the FEPC [Fair
 Employment Practices Commission] and has declined to enact antidiscriminatory legislation. For
 the executive to attempt to reach the same result by indirection, through the Government con-
 tract device, is an unconstitutional attempt to legislate where Congress has refused to do so. See
 Pasley, The Nondiscrimination Clause in Government Contracts, 43 VIRGINIA L. REV. 857 (1957).
 131. See 343 U.S. at 586.
 132. Id. at 637-38 (Jackson, J., concurring).
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 LAW AND CONTEMPORARY PROBLEMS
 he attempted to legislate unilaterally through an executive order. Morgan de-
 scribes the circumstances: "While there was insufficient support for fair em-
 ployment legislation to overcome inertia and the procedural obstacles in both
 houses of Congress, there was also insufficient congressional opposition to
 discourage the President from acting."'33
 Thus it is in this "zone of twilight" that Presidents will be most tempted to
 make policy through an executive order. As Jackson observed, ". . . congres-
 sional inertia, indifference or quiescence may sometimes, at least as a practical
 matter, enable, if not invite, measures on independent presidential respon-
 sibility."134 Yet, it is also in such circumstances that presidential authority to
 make law is least clear.
 In this case of Executive Order No. 10925, in particular, President Kenne-
 dy may actually have gone farther, by defying the will of Congress expressed
 in 1957, 1959, and 1960.135 Accordingly, his authority would seem weake
 still. As Jackson continued: "When the President takes measures incompatible
 with the expressed or implied will of Congress, his power is at its lowest ebb,
 for then he can rely only upon his own constitutional powers minus any consti
 tutional powers of Congress over the matter."'36 With this executive orde
 there was no question of the right of Congress to act as it did. As a result
 Kennedy's power to issue the order would seem to have been "at its lowes
 ebb"-so low, in fact, that to sustain the order, the courts were forced to find
 a basis of authorization in a largely unrelated statute.
 This analysis of Executive Order No. 10925 illuminates some of the prob
 lems of presidential legislation. First, it suggests the power of the executive or-
 der as a policymaking tool. It provides Presidents with great latitude to achiev
 their political goals despite a divided or reluctant Congress. Second, it reveals
 one of the basic tensions of the American constitutional system-a tension
 often confronted by the courts. That is between the requirement of adher
 ence to constitutionally mandated procedures for legislative decisionmakin
 and the demand for prompt, efficient achievement of desired public goal
 The hopes of the nation often rest with the President; it is the task of Con-
 gress to realize those hopes. Yet, as Mr. Justice Douglas noted, "Legislative
 action may . . . often be cumbersome, time-consuming, and apparently
 inefficient."'37 The result is often deadlock, with presidential legislation seem
 ing to provide an attractive solution. That apparent inefficiency of the legisla
 tive process, however, is simply a "price" which "we pay . . . for our system o
 checks and balances, for the distribution of powers among the three branches
 133. R. MORGAN, supra note 46, at 58.
 134. 343 U.S. at 637.
 135. See notes 129-130 supra.
 136. 343 U.S. at 637.
 137. Id. at 629 (Douglas, J., concurring).
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 PRESIDENTIAL LEGISLATION
 of government."138 In return, we gain some assurance that different position
 will be heard, that conflicting interests will be reconciled into coalitions, tha
 consensus will be formed. Most importantly, we gain some protection against
 arbitrary executive action. When the courts are too eager to provide justifica-
 tion for presidential policymaking, they both undermine these constitutional
 norms and encourage continued, and possible excessive, executive action.
 In the field of civil rights, presidential action came perilously close 
 usurping the legislative prerogatives of Congress. When these initiatives were
 challenged, they found support in the courts. Often, however, Congress itself
 encourages far-reaching presidential policymaking by delegating legislati
 power to the President and his subordinates. On occasion, such delegation
 have seemed almost to represent an abdication of congressional power a
 responsibility.
 F. Executive Orders and Abdication:
 The Case of Economic Stabilization
 Since the New Deal, regulation of the economy has become a basic task 
 the federal government. The National Industrial Recovery Act of 193
 the first major attempt to control aspects of the national economy.'39 Th
 followed by extensive programs of wage and price controls during 
 World War II140 and the Korean War.141 Most recently, from 1971 to
 the Nixon Administration conducted an even more elaborate, four p
 program of economic controls, an effort unprecedented in peacetime.
 Each of these programs was made possible by congressional action
 particular, by broad delegations of policymaking authority to the Preside
 other executive branch administrators. Three of these delegations wer
 lenged in the courts. The delegation involved in the NIRA was overturn
 the Supreme Court in the Schechter case. The Emergency Price Control A
 1942142 and the Economic Stabilization Act of 1970143 were both upheld. 
 issue, in each case, was essentially the same: did Congress impose clear 
 on the power it delegated? Did it provide standards adequate to guide 
 tive branch action, to prevent arbitrary presidential decisions, and to
 both Congress and the President accountable before the public and courts?
 A brief look at the most recent such delegation-the Economic Stab
 tion Act of 1970-is useful for the study of executive orders. The legis
 history of the Act suggests some of the reasons for Congress' tenden
 delegate broadly. An analysis of the court challenge to this delegation
 138. Id. at 633.
 139. 48 Stat. 195 (1933-34).
 140. See Emergency Price Control Act of 1942, 56 Stat. 23 (1942).
 141. See Title IV, Defense Production Act of 1950, 64 Stat. 798 (1950).
 142. Yakus v. United States, 321 U.S. 414 (1943).
 143. Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737 (D.D.C. 1971).
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 LAW AND CONTEMPORARY PROBLEMS
 vides further evidence of the means which the courts have found to sustain
 the policies effected by Presidents through executive orders.
 Beginning in the late 1960's, the American economy entered a period o
 severe inflation, as high consumer demand combined with the pressures 
 the Viet Nam war to push prices rapidly upward.144 Calls for some form 
 wage and price controls were quickly heard, but were ignored by the Exec
 tive. The arrival, in 1969, of a Republican President provided the opportunity
 for fresh approaches to cure these economic ills. But this opportunity was not
 taken. In fact, in a radio address of June 1970, President Nixon emphatically
 ruled out a wage and price freeze, arguing: "I will not take this nation dow
 the road of wage-and-price controls, however politically expedient they may
 seem. They only postpone a day of reckoning, and in so doing they rob every
 American of an important part of his freedom".'45
 Nevertheless, demands for more decisive measures continued, and began
 to take root in Congress. In March 1970, the Joint Economic Committee
 called for more active presidential restraint of wage and price increases. 
 May, the Chairman of the House Banking Committee, Wright Patman, wrote
 to the President, offering "to give you any tools which you feel are needed to
 bring the current economic situation under control."'46 In August, legislative
 steps were taken. In a measure remarkable for its delegating power both s
 broadly and with so few words, Congress gave the President authority to ini-
 tiate wage and price controls. The sections of the Economic Stabilization Ac
 which accomplish the delegation are as follows:
 Section 202. Presidential Authority-(a). The President is authorized to issue
 such orders and regulations as he may deem appropriate to stabilize prices,
 rents, wages, and salaries at levels not less than those prevailing on May 25,
 1970. Such orders and regulations may provide for the making of such adjust-
 ments as may be necessary to prevent gross inequities.
 Section 203. Delegation-The President may delegate the performance of
 any function under this title to such officers, departments, and agencies of
 the United States as he may deem appropriate.
 Some months later, Section 202 of the Act was amended to include an addi-
 tional stricture:
 (b). The authority conferred on the President by this section shall not be ex-
 ercised with respect to a particular industry or segment of the economy unless
 the President, after taking into account the seasonal nature of the employ-
 ment, the rate of employment or underemployment, and other mitigating fac-
 tors, determines that prices or wages in that industry or segment of the
 economy have increased at a rate which is grossly disproportionate to the rate
 at which prices or wages have increased in the economy generally.147
 144. This account is taken largely from L. SALAMON, THE MONEY COMMITTEES 311-390 (1975).
 145. Id. at 313.
 146. Id. at 315.
 147. Comment, supra note 4, at 453-454.
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 The ostensible aim of the Act was to give the President those policymakin
 tools which Wright Patman had offered him in May. But Nixon had alrea
 indicated his dislike for such tools. Moreover, the law only authorized him to
 act, it did not require anything of him. Thus there was surely another motiv
 tion for the Act. As one commentator explains it:
 The idea, in short, was to put the President on the spot, to place squarely on
 his shoulders the politically unpopular chore of imposing wage and price con-
 trols while relieving the Democrats of any responsibility for the state of the
 economy in anticipation of the upcoming November 1970 elections.148
 Whatever the reasons behind the bill, the dangers of the measure wer
 readily apparent. The President's own Federal Reserve Board Chairman, A
 thur Burns, argued before a congressional committee, "You are giving 
 much power to the President under this legislation. You are giving the Presi-
 dent virtually dictatorial power."149 Senator William Proxmire complain
 that the law gave the President "unprecedented power to control wages an
 prices with virtually no congressional standards or criteria on how the autho
 ity should be used and no legal safeguards for affected parties."'50
 For almost a year, the President refused to exercise the power grante
 him. In the meantime, Congress amended and extended the Act.15' Finall
 on August 15, 1971, the President surprised the country and Congress 
 taking action. He declared a ninety-day freeze on all non-agricultural wag
 and prices and created a Cost of Living Council to administer the program.15
 On October 15, 1971, through another executive order, he created addition
 administrative machinery to implement the stabilization program.153
 This "New Economic Policy" was quickly challenged in the courts. A n
 tional trade union, the Amalgamated Meat Cutters, realized that the free
 would prevent inplementation of a wage increase which it had won for i
 members through collective bargaining in 1970. Accordingly, it brought suit
 before a three judge District Court to have the original Economic Stabilization
 Act and Executive Order No. 11615, which was issued under it, overturned.l54
 The Act, the union argued, was unconstitutional because it vested "unbridled
 legislative power in the President"; it was a "naked grant of authority" to
 determine whether wages and prices "will be controlled, and the scope, man-
 ner and timing of those controls."155 The "net result" of the delegation, it
 148. SALAMON, supra note 141, at 316.
 149. Id. at 322.
 150. Id. at 327.
 151. See note 147 supra.
 152. See note 51 supra.
 153. Id.
 154. See note 143 supra. (This was the only court to address the constitut
 Economic Stabilization Act).
 155. 337 F. Supp. at 745.
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 LAW AND CONTEMPORARY PROBLEMS
 contended, was "a legislative initiation of control by bare executive fiat, with
 completely unlimited authority put at the disposal of the President."'56
 Writing the opinion of the court, Judge Harold Leventhal rejected the
 claims of the union. The union's charge, he conceded, was "a formidable
 fusillade, devastating verbally and not without force analytically."'57 In this
 congressional act, he admitted, "The Rule of Law [had] been beleaguered."
 But, he insisted, it had not been "breached."158 As Leventhal noted, the Con-
 stitution does not forbid every delegation of legislative power. "The problem,"
 rather, "is one of limits."159 More precisely, he argued, borrowing language
 from Yakus, "The issue is whether the legislative description of the task as-
 signed 'sufficiently marks the field within which the Administrator is to act so
 that it may be known whether he has kept within it in compliance with the
 legislative will.' "160 "Under these governing concepts," the court concluded,
 "we cannot say that there is such an absence of standards that it would be
 impossible to ascertain whether the will of Congress has been obeyed."16'
 The standards which the court found were both explicit and implicit in
 the Act. The explicit standards were found in Sections 202(a) and 202(b) of
 the law: the President could not stabilize wages and prices at any level lower
 than that prevailing on May 25, 1970; he was allowed to make "such adjust-
 ments as may be necessary to prevent gross inequities"; he was not to single
 out any industry or sector of the economy, unless he found that price or wage
 increases in that industry or sector of the economy were "grossly dispropor-
 tionate" with those in the economy as a whole.162 Implicit standards could be
 deduced from several sources, including the legislative history of the 1970
 Act, and the legislative and judicial experience with the 1942 and 1950 pro-
 grams. Finally, several other limits on executive action could be found. First,
 the statute itself was self-terminating. Unless Congress chose to extend the
 Act, the President's authority would automatically end on April 30, 1972.163
 Second, the court found "implicit in the Act" a "requirement that any action
 taken by the Executive under the law, subsequent to the freeze, must be in
 accordance with further standards developed by the Executive."'64 To be
 sure, the court admitted, "This 1970 Act gives broadest latitude to the Execu-
 tive." Yet, it also implies "an on-going requirement of intelligible administra-
 tive policy that is corollary to and implementing of the legislature's ultimate
 156. Id. at 755.
 157. Id.
 158. Id.
 159. Id. at 745.
 160. Id. at 746.
 161. Id. at 747.
 162. See note 147 supra and accompanying text.
 163. 337 F. Supp. at 754.
 164. Id. at 758.
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 PRESIDENTIAL LEGISLATION
 standard and objective."'65 Finally, the decisions of the administrative agen
 created by the executive order would be subject to judicial review under
 Administrative Procedure Act.166
 Several points can be made about this court's decision. First, the court may
 have overstated the extent to which the Act "marks the field within which the
 Administrator is to act .. ."167 The initial standard involves the level of stabili-
 zation. Prices cannot be set lower than their level of May 25, 1970. But it 
 important to recall that the law was not passed until August 1970, and th
 the President did not act under it until a year later-almost fifteen mont
 after the date of the May 25, 1970 price floor. In that time, prices had risen
 by approximately six per cent. The President could hardly be expected to roll
 back wages and prices. In short, the price floor stated in the Act, long sin
 surpassed by the reality of inflation, provided very little guidance to the Pre
 ident. The President, moreover, was granted complete freedom over the tim-
 ing of controls and the ceiling levels he could impose.
 The other explicit standards seem only slightly more restrictive. For ex
 ample, in Section 202(a), the President is not required to prevent "gross i
 equities"; he is simply allowed to do so if he so chooses. As the Act puts it, his
 regulations "may provide" for the prevention of gross inequities. Moreove
 Congress offered no definition of the term, "gross inequities"; the President,
 apparently, is to determine its meaning. Similarly, the court stressed the re-
 quirement in Section 202(b) that the President not single out any industry or
 sector of the economy for controls. But this clause also contains the broa
 loophole that the President may single out an industry if he determines that
 its rate of increase in prices or wages has been "grossly disproportionate" 
 that in the economy as a whole. Again, the definition of "grossly dispropo
 tionate" is left entirely to the President.168
 In the end, the court seems to have been most influenced, not by thes
 explicit standards, but by other factors from which it could infer an exercise
 of legislative will and construct a set of implicit standards. From a reading of
 the legislative history, for example, it concluded that Congress had deliber
 ated this measure fully, and decided simply that maximum flexibility wa
 needed for an effective attack on inflation. Thus, the court stated, "We can-
 not say that this delegation was unreasoned, or a mere abdication to the Pres-
 165. Id. at 759.
 166. Id. at 759-60.
 167. See note 160 supra.
 168. These key terms of the Act-"inequities" and "disproportionate"-are open to 
 of reasonable definitions. Mr. Justice Roberts noted this problem in his dissent in Yak
 speaking of similar words in the Emergency Price Control Act, he commented: "It hardly
 said that men may differ radically as to the connotation of these terms and that it would
 difficult to convict anyone of error in judgment in so classifying a given economic phen
 321 U.S. at 449-50.
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 LAW AND CONTEMPORARY PROBLEMS
 ident to do whatever he willed."'69 It should be noted, however, that in inter-
 preting the legislative history of the Act in this manner, the court chose to
 ignore the bluntly political motives which other commentators had imputed to
 Congress.
 Further, the court seemed to stress the self-terminating nature of the stat-
 ute, according to which, no matter what the President had or had not done
 under the authority of the Act, Congress would be obliged to "undertake an
 affirmative review without prolonged delay, without the option of acquies-
 cence by inaction."'70 Similarly, decisions of the executive could be appealed
 under the Administrative Procedure Act. It is important to note, however,
 that these two factors represent, not standards which guide the President
 while he is making a decision, but avenues of recourse to be pursued after he
 has made and implemented his decision.
 Most interesting is the court's construction of implicit standards. The 1942
 Act had included a provision that stabilization decisions be "generally fair and
 equitable." The court, in 1971, concluded that such a "broad equity standard
 is inherent in a stabilization program" and thus implicit in the 1970 Act.171
 Similarly, the 1942 Act required that the Executive accompany all regulations
 with a "statement of considerations" used in determining them. In 1971, the
 court again seemed to assume that this requirement was implicit in the 1970
 Act, and would help "limit the latitude of subsequent executive action."'72
 Having found these standards, however, the court .then seemed to reverse
 itself by arguing that the President need not be limited by them. There were,
 it observed, "significant differences between the inflationary problems of 1970
 and the inflationary problems of 1942 and 1950" which provided "additional
 reasons for differences in policies."'73 Thus: "We do not suggest that the
 1970 law was intended as or constitutes a duplicate of the earlier laws ....
 The approaches and decisions under the earlier laws are certainly not frozen
 as guidelines for the present law."174 In short, the 1942 and 1950 statutes are
 said to provide standards for the 1970 program. Nevertheless, action taken
 under the 1970 Act is not to be limited by these earlier statutes. The court
 never indicates how it proposes to resolve this tension.'75
 This analysis suggests some of the court's intentions. The court seemed
 impressed by the gravity of the country's economic situation, and thus was
 inclined to approve decisive executive action. As it remarked, "The present
 169. 337 F. Supp. at 751.
 170. Id. at 754.
 171. Id. at 757.
 172. Id. at 758.
 173. Id. at 749.
 174. Id. at 748.
 175. Comment, supra note 4, at 459.
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 administration is entitled to a fresh approach."176 To sustain the congressi
 delegation and the executive order issued under it, it sought only 
 minimum exercise of congressional will, some indication that Congress
 deliberated the Act carefully-some assurance that the "whole program"
 not been "set adrift without any rudder."'77 From the history of the legisl
 tion and the record of previous statutes, the court found the sense of 
 gressional direction it sought, the barest fragments of a guiding "rudder." 
 so doing, it maintained the modern tradition of upholding broad delega
 of congressional power.
 II
 THE POLITICAL CONTEXT
 Presidential legislation is a political, as well as a constitutional, problem. 
 uses are shaped by the existing power relations among the President, C
 gress, and the courts. Its implementation, in turn, shapes the nature of tho
 relations. In this section, we want only to make a few points concerning
 political dimension of executive orders. In particular, we shall look briefly 
 the role of Congress in national policymaking, at the impact of executive o
 ders on the evolution of presidential power, and at the implications of exec
 tive orders for democratic theory.
 A. Congress and National Policymaking
 Political scientists have long attacked legislatures. For Bagehot178 a
 Mill,179 legislatures were essential to democracy in large countries. Yet, bot
 writers questioned the ability of representative assemblies to make law effe
 tively. As early as 1921, Bryce was able to observe a "decline"-indee
 "pathology"-of legislatures. "The dignity and moral influence of represe
 tive legislatures," he noted, "have been declining."'80
 In the 1950's and early 1960's, this assessment became conventional w
 dom. American political scientists were especially critical of Congress. W
 the institutionalization of the Presidency, the growth of the executive esta
 lishment, and the rise of presidential initiative in legislation and budget
 the law-making role of Congress had, in the opinion of many, all but ev
 rated. This trend, however, was not cause for alarm. In fact, it was probabl
 beneficial, since the Presidency was somehow more representative, and
 executive branch bureaucracy more expert in policymaking than Congr
 176. 337 F. Supp. at 748.
 177. Id. at 749.
 178. See W. BAGEHOT, THE ENGLISH CONSTITUTION AND OTHER POLITICAL ESSAYS 203-204,
 229-235 (1920).
 179. See J.S. MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 141-51 (1948).
 180. 2 J. BRYCE, MODERN DEMOCRACIES, 345, 356 (1921).
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 LAW AND CONTEMPORARY PROBLEMS
 The proper role for Congress, then, was limited.181 It was to perform constit-
 uency functions: acting as an ombudsman on citizen complaints; "mobilizing
 consent" among the public for presidential policy initiatives.182
 As a description of political "reality," this assessment has always been
 greatly exaggerated. Writers from Huitt,'83 Polsby,184 and Wildavsky185 to
 Price,'86 Orfield,187 and Cronin188 have all provided a more balanced account
 of the impact of Congress on national policy, especially domestic policy.
 Moreover, with an ideological change in the White House-that is, Republican
 Presidencies from 1969 to 1977-the image of Congress as the "negative"
 force in federal government had to be revised. As a normative theory, this
 image of Congress contradicts the basic principles of American democracy.
 There can be little doubt that the constitutional Framers intended Congress to
 be the primary source of legislative initiative.'89 Furthermore, arguments for
 the greater representativeness of the Presidency are hardly persuasive.
 Watergate-era revelations about special interest influence in the executive
 branch have shattered, perhaps irrevocably, any notions that the Presidency
 necessarily represents "all of the people."
 Yet the critique of Congress is powerful in one major respect. Our analysis
 must distinguish between taking initiative in policy, and drafting that policy
 thoughtfully. Congress has amply demonstrated its willingness to initiate pol-
 icy, especially in emergencies. It has been less successful, however, in for-
 mulating policy in a detailed fashion. (The tax laws, of course, are a striking
 exception). In particular, Congress has tended to rid itself of difficult policy
 concerns, such as economic stabilization, by delegating power to the President.
 Thus a paradox: the most decisive exercises of congressional legislative power
 often consist in broad delegations of that power to the President.
 The problem, then, is to resolve this paradox, to explain why Congress has
 been inclined (some might say, eager) to delegate its power so broadly. In
 fact, there are two distinct questions to be considered. First, why must Con-
 gress delegate at all? Second, why has it delegated so much power, so often?
 Answers to the first question are familiar enough. Congress, it is agreed,
 simply cannot administer the laws itself. Historically, Congress met only infre-
 181. See Huntington, supra note 32.
 182. See Beer, The British Legislature and the Problem of Mobilizing Consent, in LAWMAKERS IN A
 CHANGING WORLD 30 (E. Frank ed. 1966).
 183. See Huitt, Congress, The Durable Partner, in LAWMAKERS IN A CHANGING WORLD 9 (E.
 Frank ed. 1966).
 184. See N. POLSBY, CONGRESS AND THE PRESIDENCY (1964).
 185. See Wildavsky, The Two Presidents, in THE PRESIDENT 230 (A. Wildavsky ed. 1969).
 186. See D. PRICE, WHO MAKES THE LAWS? (1972).
 187. See G. ORFIELD, CONGRESSIONAL POWER: CONGRESS AND SOCIAL CHANGE (1975).
 188. See T. CRONIN, THE STATE OF THE PRESIDENCY 85-116 (1975).
 189. See De Grazia, Toward a New Model of Congress, in CONGRESS: THE FIRST BRANCH OF
 GOVERNMENT 12 (A. De Grazia ed. 1967).
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 PRESIDENTIAL LEGISLATION
 quently. Delegation was needed to ensure the continuity of administration.
 Today delegation is just as necessary:
 Delegation by Congress has long been recognized as necessary in order that
 the exertion of legislative power does not become futility .... [The] burdens
 of minutiae would be apt to clog the administration of the law and deprive
 the agency of that flexibility and dispatch which are its salient virtues.190
 Congress cannot anticipate all future needs. Therefore it must word its
 statutes broadly, and grant administrators discretion over the timing of im-
 plementation. As society, social needs, and the law have all become more
 complex, it has been argued, the need for flexibility has increased. Thus the
 Supreme Court has observed:
 In an increasingly complex society Congress obviously could not perform its
 functions if it were obliged to find all the facts subsidiary to the basic conclu-
 sions which support the defined legislative policy in fixing, for example, a
 tariff rate, a railroad rate, or the rate of wages to be applied in particular
 industries by a minimum wage law. The Constitution, viewed as a continu-
 ously operative charter of government, is not to be interpreted as demanding
 the impossible or the impracticable.191
 The problem with these arguments is that they can neither explain nor
 justify the extreme grants of administrative discretion which have charac-
 terized Congress. The argument about complexity, in particular, cuts both
 ways. It may be that complexity requires flexibility. Yet it seems just as true
 that complexity, and increased governmental attempts to cope with it, require
 careful thought and clear guidelines. Thus there is surely force to Lowi's ob-
 servation that: "As public control extended to wider and more novel realms,
 delegation became a virtue rather than a problem. The question of standards
 disappeared as the needfor them increased."192
 An understanding of Congress' inclination to delegate broadly requires a
 closer look at the politics of congressional policymaking. Put simply, indi-
 vidual Congressmen seem to lack incentives sufficient to prompt them to
 draft proposals carefully and limit delegations. In a country where public
 awareness of Congress is both limited and intermittent, Congressmen are
 rarely the object of close public scrutiny.193 In crises, where public attention
 and demands are forced on Congress, that institution can be expected to act.
 But even then, as Mayhew has noted, the political payoff for the individual
 Congressman lies in taking the "right position," rather than in laboring to
 190. See FISHER, supra note 7, at 72 (quoting Sunshine Anthracite Coal Co. v. Adkins, 310
 U.S. 381, 398 (1940)).
 191. Fisher, supra note 96, at 268 (quoting Opps Cotton Mills Inc. v. Administrator, 312 U.S.
 126, 145 (1941)).
 192. T. LowI, THE END OF LIBERALISM 132-133 (1969).
 193. See Stokes and Miller, Party Government and the Saliency of Congress, 26 PUB. OPINION Q.
 531 (1962).
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 LAW AND CONTEMPORARY PROBLEMS
 draft policy coherently, or even in seeing his side win.194 The public, appar-
 ently, has little interest in the nuances of power relations between President
 and Congress. Its desire, especially in crises, is for action. Edelman has ar-
 gued that the public's demand is for an assurance that something is being
 done, and assurance which need only be symbolic, not substantive.'95 The
 simplest response for Congress, then, is to create a highly visible executive
 agency, and to endow it with a broad mandate. For Congressmen, the de-
 velopment of strict guidelines and maintenance of oversight after performing
 the delegation are less rewarding, politically, than simply producing the
 symbol.
 Other factors may also be involved. One is the pressure to forage coali-
 tions out of a divided Congress. Legislators can agree on a policy for different
 reasons. To force them to make those reasons explicit, to specify their inten-
 tions, by embodying them in detailed legislation, may only undermine the
 agreement on that proposal. A second factor may be lack of expertise and
 time among Congressmen and their staffs. When faced with vocal public de-
 mands and limited time, Congressmen may be satisfied with any legislation
 rather than carefully drawn legislation. Third, and perhaps most important, is
 the relationship between Congress and interest groups. Congress faces a large
 number of demands, which are earnestly expressed by well organized groups.
 For almost every demand, there will be organized opposition: action is bound
 to offend someone. Yet, action cannot be avoided. Vague legislation is a stan-
 dard congressional response. As Judge Henry Friendly explains it:
 [In the face of interest group pressure] the optimum is to do nothing, since
 failure will be understood by those desiring the legislation whereas success will
 not be forgiven by those opposing [it]. If legislation there must be, the very
 necessity of a text arouses further opposition; hence the tendency to soften it
 in the sense of compromise and even of unintelligibility.'96
 Delegation is another standard response. Bauer, Pool, and Dexter describe
 it, "If the demands exceed what the Congressman can effectively handle, then
 he may happily yield up a significant portion of his power."'97 A member of
 Congress, Senator Robert Packwood, is even more succinct, "We can delegate
 powers to the President, then sit back and carp or applaud, depending on
 whether what he does is popular or unpopular."'98
 Delegation, then, has proved most useful for the Congress. It enables
 Congressmen to cope with pointed political demands. It makes the President
 194. D. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 61-73 (1974).
 195. J.M. EDELMAN, THE SYMBOLIC USES OF POLITICS 37-38 (1964).
 196. S. BARBER, supra note 94, at 4 (quoting H. FRIENDLY, THE FEDERAL ADMINISTRATIVE
 AGENCIES: THE NEED FOR BETTER DEFINITION OF STANDARDS 167 (1962)).
 197. Fisher, supra note 96, at 262 (quoting A. BAVER, I. POOL, & L. DEXTER, AMERICAN
 BUSINESS AND PUBLIC POLICY: THE POLITICS OF FOREIGN TRADE 37 (1963).
 198. S. BARBER, supra note 94, at 4 (quoting Senator Robert Packwood, TIME, January 15,
 1973 at 12).
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 responsible for potentially unpleasant policy measures. But to explain th
 emergence of a practice or institution is not necessarily to justify it. Simply t
 account for a practice is not to say that it is either necessary or acceptabl
 Explanation implies justification only if we make one of the three followin
 assumptions: first, that the practice is inevitable and not subject to change (a
 conclusion that typically results from particular assumptions about huma
 nature); second, that the benefits of the practice exceed its costs; or thir
 that the cost of altering or ending the practice would exceed the benefits 
 doing so.
 Can the practice of broad congressional delegations be justified, and ac
 cepted, according to these criteria? We think not. First, there is nothin
 "natural" or inevitable about broad delegations. Delegations were not alway
 as consistently broad as they have become. Arguments have been made t
 suggest a sort of technological imperative behind broad delegations. That i
 delegation is said to be required by the complexity of existing social problems
 Yet, as we have already argued, these claims are not persuasive. Complexity is
 as much a reason for precise standards and limited exercise of presidentia
 power as it is for broad delegations. What has changed, however, is the popu-
 lar ideology concerning delegations. Lowi notes that, "Historically, delegation
 had a rather technical meaning that emerged as the price to be paid in ord
 to reap the advantages of administration." Today, in contrast, delegation h
 "come to be considered a good thing in itself, flowing to administrators with-
 out guides, checks, safeguards."199 The courts, clearly, have adopted thi
 ideology; their adoption of it has encouraged still greater delegation. There is
 no reason to believe, however, that the current prevailing assumption tha
 delegation is typically a benefit is superior to the earlier assumption that del-
 egation is a cost, to be accepted only grudgingly.
 This suggests the difficulty of attempting a cost-benefit analysis of con-
 gressional delegation, or of any practice, for that matter. The assignment 
 costs and benefits is highly value-laden. Values differ and change. We hav
 already mentioned the benefits, to Congress, of broad delegation. In addition,
 one could argue that the use of delegation to expedite legislative busines
 in the face of time constraints and public demands represents a benefit t
 the public. Against this must be weighed what we take to be certain socia
 costs. First, excessive discretion combined with an absence of clear standards
 perverts the administrative process. Administrators are made more suscep-
 tible to interest-group pressure. As Friendly puts it, "Lack of definite stan-
 dards creates a void into which attempts to influence are bound to rush; legal
 vacuums are quite like physical ones in that respect."200 Second, excessive del-
 egation encourages further presidential initiatives and promotes increased
 199. T. LowI, supra note 192, at 127.
 200. S. BARBER, supra note 94, at 3 (quoting H. FRIENDLY, supra note 193 at 22.)
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 LAW AND CONTEMPORARY PROBLEMS
 presidential power. Presidential action taken under authorization of blanke
 delegation borders on the undemocratic. In such cases, as with economic
 stabilization, the policy can barely be said to have the dual concurrence re
 quired by the Constitution. Moreover, in the absence of clear standards, th
 executive action cannot be made subject to careful judicial review.
 It is even more difficult to assess the potential costs and benefits of im-
 plementing a reform which limited congressional delegation. We may specu
 late on a few points, however. First, one potential cost to Congress is clear
 Were Congress unable to delegate so easily, it would be forced to draft th
 law more carefully. As a result, it might offend some clientele interests; some
 agreements might not stand. In short, life for Congressmen might become a
 shade more difficult. As a result, fewer laws might be passed. This might not
 be bad. As Moynihan has argued, our public policies have, to date, not cope
 adequately with social complexity.201 Failure should, perhaps, force humility.
 More analysis and debate, in other words, rather than hasty action, may b
 the best responses to complexity.
 Second, to limit delegation would be to deny Congress the right to pass
 responsibility on to the President. This, of course, is exactly as it should be
 The Constitution intended Congress and the President to share responsibility
 for policymaking. The current congressional practice of delegation represents
 an illegitimate evasion of that responsibility. Some limitation is quite desirable
 This analysis suggests that one aspect of congressional policymaking, or
 the avoidance of policymaking-its practice of broad delegation-can an
 should be reformed. Proposals for reform, however, must not overlook th
 benefits which delegation provides for Congress. These benefits represent ob-
 stacles to the reformer and will have to be overcome.
 B. Executive Orders and Presidential Power
 Even before Watergate, many commentators had detected a dramatic 
 in presidential power. This trend was tied to the decline of Congre
 law-making body (although the direction of causality was never post
 Indeed, this model had an almost hydraulic simplicity: as presidentia
 went up, congressional power went down. The problem with this model 
 portrayal of relations between President and Congress as a zero-sum
 that increases in the power of one must come at the expense of the oth
 alternative assumption is possible. The range and impact of governmenta
 tivities have grown enormously. Thus if we define the "power" of t
 stitutions in terms of their impact on society, we might well conclude t
 power of both President and Congress has increased. (If we define "
 ity" in terms of the trust, respect, and confidence displayed toward the
 stitutions, we might add that the authority of both has declined).
 201. Moynihan, Policy vs. Program in the 70's, 20 PUB. INTEREST 90 (1970).
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 PRESIDENTIAL LEGISLATION
 This points to the central analytical problem. Writers are rarely precise in
 discussing the power relations between President and Congress. What, exactly,
 does it mean to say that the President's power in relation to Congress ha
 increased? A full analysis of the concept of power is hardly appropriate here.
 We can, however, begin to draw some simple distinctions concerning the no-
 tion of presidential power. Following James D. Barber, we should distinguish
 between presidential power as an ability to act independently of Congress,
 and presidential power as an ability to make Congress do what the President
 wants.202 Writers have generally failed to draw this distinction, leading them
 to incorrect conclusions.
 There is extensive evidence that Presidents have enjoyed surprisingly little
 of the second type of power. As a rule, that is, they have not been able to get
 Congress to obey their will, especially in domestic policymaking. Although it i
 not entirely clear, this power of the President may actually have declined in
 recent years.
 Much has been made of the rise of presidential initiative in law-making
 The key, of course, is the extent to which Congress approves presidenti
 proposals. Here, Presidents have not enjoyed great success, at least not in
 domestic policy. Thus, from 1938 until his death, Roosevelt failed to secure a
 single piece of significant domestic legislation.23 Truman was defeated o
 most of his domestic policy proposals, except perhaps in housing.204 Eisen
 hower failed in his general policy of limiting government action.205
 Polsby analyzed the fate of presidential proposals from 1954 to 1963. He
 found that, "In general, between one-third and two-thirds of presidential
 proposals are enacted in some recognizable form by Congress, with the me
 dian for [those] ten years lying well below the 50 per cent mark."206 Mor
 recently, Cronin has observed that, in his approximately three years in office
 Kennedy secured congressional approval for only 40 per cent of his propos
 als. Moreover, in the first three years of the Nixon presidency, Congress ap-
 proved only 33 per cent of the programs requested by the White House.207
 These findings illustrate the difficulties faced by Presidents in their at
 tempts to mobilize Congress. The most notable presidential successes seem t
 occur in times of crisis-Franklin Roosevelt's Hundred Days, for example, o
 after John Kennedy's assassination. At other times, Presidents have not found
 Congress to be especially pliant. In fact, the Congress has provided severa
 major examples of its own policy initiatives-the space program in the 1950'
 202. J. Barber, The President's Personal Power, in Presidents Power, and the Press (A. Aufse
 and J. Barber eds. 1977) (unpublished manuscript on file at Duke University).
 203. Wildavsky, The Two Presidencies, in THE PRESIDENCY 231 (A. Wildavsky ed. 1968).
 204. Id.
 205. Id.
 206. N. POLSBY, supra note 184, at 101.
 207. T. CRONIN, supra note 188, at 87.
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 LAW AND CONTEMPORARY PROBLEMS
 health care reform in the 1960's,208 economic stabilization and planning in
 the 1970's.
 At the same time, however, the recent history of executive orders shows
 that presidential power of the first type-the ability to act independently of
 Congress-has remained great, and has perhaps even increased. Indeed, we
 might propose a tentative hypothesis: that Presidents have come to rely on
 executive orders in order to make up for their inability to mobilize Congress.
 Experience demonstrates that Presidents can expect the support of the courts.
 Thus when they seek a particular policy, but doubt their ability to move it
 through Congress, they can simply attempt to achieve that aim through an
 executive order. The history of policymaking in civil rights provides, as we
 have seen, the most notable example.
 Several related factors, in particular, make executive orders especially at-
 tractive policymaking tools for a President. First is speed. Even if a President
 is reasonably confident of securing desired legislation from Congress, he must
 wait for congressional deliberations to run their course. Invariably, he can
 achieve far faster, if not immediate, results by issuing an executive order.
 Moreover, when a President acts through an order, he avoids having to sub-
 ject his policy to public scrutiny and debate. Second is flexibility. Executive
 orders have the force of law. Yet they differ from congressional legislation in
 that a President can alter any executive order simply with the stroke of his
 pen-merely by issuing another executive order. As noted earlier, Presidents
 have developed the system of classifying national security documents in pre-
 cisely this manner.209 Finally, executive orders allow the President, not only to
 evade hardened congressional opposition, but also to preempt potential or
 growing opposition-to throw Congress off balance, to reduce its ability to
 formulate a powerful opposing position.
 Each of these factors was manifested in Gerald Ford's Executive Order No.
 11905, which restructured the management of the country's foreign intelli-
 gence agencies.210 Throughout 1975, committees in the House and Senate in-
 vestigated the intelligence agencies and considered reform proposals. Toward
 the end of the year, their efforts began to falter. In December, the chief of
 the CIA station in Athens was assassinated. In January 1976, Congress be-
 came mired in controversy when the report of the House Intelligence Com-
 mittee was leaked to the press. In February, the President acted. He issued an
 executive order which, he said, would "eliminate abuses and questionable ac-
 tivities on the part of the foreign intelligence agencies while at the same time
 208. See J. SUNDQUIST, POLITICS AND POLICY: THE EISENHOWER, KENNEDY, AND JOHNSON YEARS
 287-321 (1968).
 209. See note 54 supra.
 210. See note 55 supra.
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 PRESIDENTIAL LEGISLATION
 permitting them to get on with their vital work of gathering and asse
 information."21
 This order achieved several aims for the President. First, it won public
 support for him. In particular, he appeared, through this order, to be both as
 eager for reform and more decisive than Congress. He created the impression
 that he was "carrying out by executive action many of those very reforms
 upon which Congress embarked through the legislative process."212 Second,
 he "stole the march"213 on Congress by creating his own Board of Overseers
 for foreign intelligence. A central issue in the reform effort had been creation
 of a new oversight mechanism. By taking this moderate action, and enlisting
 some public and congressional support for it, the President made agreement
 by an already confused Congress on more severe oversight measures less
 likely. Finally, and perhaps most importantly, the executive order actually
 authorized a wide range of domestic activities by the foreign intelligence
 agencies. By combining broad prohibitions with a series of more specific
 exceptions, the order gave, for the first time, clear authorization for domes-
 tic intelligence gathering-precisely the sorts of activities which the con-
 gressional committees had originally been formed to investigate and which
 those committees had been expected to restrict through legislation.214 In the
 end, Executive Order No. 11905 succeeded remarkably in undermining the
 prospects for legislative reform of the intelligence establishment. As one top
 CIA official was quoted as saying, "I hate to say this, but I think we've won
 too much."215
 Executive orders, then, have become a critical weapon in the arsenal of
 presidential policymaking. Yet, it must be remembered that they may be used
 primarily to compensate for inadequacies elsewhere. Thus executive orders
 have certainly contributed to presidential strength, but, in a sense, they are a
 reflection of presidential weakness.
 C. Executive Orders and Democratic Theory
 A few principles are central to the American concept of democracy. Most
 basic is a commitment to the rule of law, to the belief that policy should be
 enacted only according to constitutional procedures. Adherence to these pro-
 cedures promotes democratic values. Dual concurrence in legislation, the shar-
 ing of powers, checks the abuse of governmental power. The careful assign-
 ment of functions increases accountability to the public.
 Executive orders are a challenge to democratic theory. Their extensive
 211. Stern and Pincus, Backing Away from the FBI and CIA, Durham Morning Herald, April 22,
 1976, at 4, col 3 (quoting President Ford).
 212. Id.
 213. Id.
 214. Center for National Security Studies, supra note 56, at 2-3.
 215. Stern and Pincus, supra note 211, at 4, col 1.
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 LAW AND CONTEMPORARY PROBLEMS
 use by recent Presidents undermines democratic decision procedures, and
 threatens the rule of law. Instead, they create a system of what Borosage has
 neatly labelled "para-laws". These, he observes:
 . . . are the internal regulations of the bureaucracy, premised upon a claim to
 inherent power, a grant of a broad and uncharted power from the legislature,
 or simply established without reference to any legal basis. The para-legal gives
 the appearance of legality and regulation by law to executive agencies, with-
 out the reality of legislative determination and definition.216
 Such a system provides policy quickly and decisively. By evading the Con-
 gress, however, it sacrifices accountability and consent. In short, it replaces
 government by law with rule by orders.
 Thus there exists a tension between the values of speed and accountability.
 The demand for decisiveness conflicts with the need for deliberation.217 In-
 terestingly, a belief in the independent value of speed in decision-making is of
 relatively recent origin. It is certainly not what the framers intended. As
 Brandeis remarked in Myers v. United States: the intent of the Constitution was
 "not to promote efficiency but to preclude the exercise of arbitrary power
 The purpose was not to avoid friction, but, by means of the inevitable friction
 incident to the distribution of the governmental powers among three depart-
 ments, to save the people from autocracy."218
 The danger today is not from aristocracy, but from autocracy. The rise of
 presidential legislation removes the traditional safeguards against the exercise
 of arbitrary power. In return, it is not even clear that the public has received
 the benefits of more enlightened policy. We have already challenged the as-
 sumption of a positive value in speed of decision-making, as such. In other
 words, in the face to social complexity, the most desirable reform may be 
 return to constitutional principles.
 III
 THE PROBLEM OF REFORM
 Proposals for reform must be based on an analysis of the supposed prob-
 lem. In this paper, we have identified what we consider to be a problem of
 American government, and suggested that it is subject to change, if not com-
 plete solution. We recognize, however, that there are many reasons, both
 good and bad, for the evolution of this problem. These reasons represent
 obstacles in the pathway to reform.
 For example, we have argued that a major cause of presidential legislation
 is the tendency of Congress to delegate its own legislative power broadly.
 Broad delegation enables Congress to cope with immediate political pressures.
 216. Borosage, Secrecy vs. the Constitution, 12 SOCIETY No. 3, 71, 73 (1975).
 217. See notes 137-138 supra and accompanying text.
 218. Meyers v. United States, 272 U.S. 52,293 (1926) (Brandeis, J., dissenting).
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 PRESIDENTIAL LEGISLATION
 Thus Congress can be expected to resist attempts at reform. Accordingly, re-
 formers will have either to induce the public to alter the nature of its political
 demands, or induce Congress to respond to those demands in a different
 manner.
 Similarly, we have argued that the courts have e
 legislation by refusing to overturn either congression
 tive orders. What has emerged is a pattern of judic
 tial actions. Corwin suggests two reasons for this ten
 have always recognized that they cannot coerce comp
 branch. Thus, except for the most extreme cases, the
 tations. Second, the conferral of powers described
 stitution closely resembles that of article II. Thus 
 article II seems to imply a broad interpretation of 
 of presidential power promotes acceptance of judicial 
 some reason to expect the courts to resist signific
 true that the courts respond to change in public ideol
 their support for executive initiative in the last thirt
 part, to their belief that the public demanded it. Acc
 of moving the courts to reform might be to demonstr
 prevailing ideology, and work to create broad support
 The problem of presidential legislation results from
 Executive, Congress, the courts, and the public. Refor
 behavior of each.
 A. The Executive
 The framers appreciated the inclination of powerful political 
 seek still greater power. Accordingly, they attempted to pit institutio
 each other, to use shared ambition as means of restraint. Until re
 cently, such skepticism about the motives of political leaders had
 mon. It suggests to the reformer that he not expect voluntary self-re
 any political institution or leader, especially one which has alread
 large as the Presidency. With this in mind, we can propose sever
 controlling presidential legislation.
 First, Congress should draft standards to regulate the publicat
 ecutive orders. The existing orders and legislation concerning ex
 ders fail to provide such standards. They simply spell out proced
 the President should follow if he decides to publish the order. Th
 provide such standards has led to yet another paradox: the federa
 ment has grown greatly in the last forty years; the President is in c
 much larger bureaucracy. Yet the number of published orders ha
 Clearly, there are many substantive directives being issued, but not 
 219. E. CORWIN, supra note 84, at 175-176.
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 LAW AND CONTEMPORARY PROBLEMS
 Some must, no doubt, remain classified on national security grounds. Others
 are more questionable.
 There is no question of eliminating executive orders entirely. They have
 been legitimated by the courts, and have the force of law. Moreover, when
 issued under proper constitutional and congressional authorization, they are
 essential to effective administration. The need is to increase the President's
 accountability for the orders he issues. The first step toward improv
 countability is stricter rules for, and hence increased, publication.
 A second step would be for Congress to draft stricter standards concer
 ing the sources of authority claimed by individual executive orders. Or
 often appeal vaguely to the "Constitution" or "statutes" as sources of autho
 ity. This invites judicial construction of sources of authority, and cont
 presidential initiatives without clear congressional and constitutional mand
 In the future, orders should be required to specify the explicit sour
 sources of authority under which they have been issued.
 Also, the courts will have to become less deferential to presidential init
 tives. We have seen cases in which the courts constructed authorization for
 executive orders which, themselves, claimed only the flimsiest bases of su
 port. In so doing, the courts provided precedent and encouragement fo
 further initiatives. In the future, the courts should demand more precise ap-
 peals to constitutional and congressional authority. They should save the
 ingenuity for other endeavors. The courts cannot, of course, be coerced in
 taking such measures. Change will result only from the emergence of a d
 mand for reform.
 B. Congress
 Congress is the most venerable target of reform in the federal govern-
 ment. It remains, today, essentially what it was in Woodrow Wilson's time-a
 diverse collection of self-seeking individuals. In the absence of strong party
 leadership, Congress lacks an effective mechanism of central coordination; the
 fate of legislation is subject largely to the initiative of individuals. It is not
 surprising, then, that the analysis and critique of Congress, today, is essen-
 tially what it was for Wilson: Congress, it is generally agreed, needs stronger
 leadership.220
 It is clear that Congress has encouraged presidential law-making, as much
 through broad delegations as through inaction or silence. Inaction, we have
 argued, may result from deep divisions which take time to resolve, or from
 minority obstruction. This is exactly as the Constitution intended. Presidential
 legislation in the face of such inaction must be considered, on its face, an
 example of intrusion into the prerogatives of Congress. In contrast, the con-
 220. See W. WILSON, CONGRESSIONAL GOVERNMENT (1901).
 42
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 PRESIDENTIAL LEGISLATION
 gressional practice of delegation borders on the abdication of power so feared
 by the separation doctrine. Thus Congress must either be induced or coerc
 into curbing its inclination to delegate.
 The movement to reform Congress has already begun. Early results su
 gest that it has not succeeded entirely in overcoming the centrifugal tenden-
 cies of that institution. For the purposes of this discussion, two related steps
 are essential. First, Congress must limit the generosity of its delegations to t
 executive. Second, it must become more diligent in drafting those delegations
 -stricter, in other words, in providing clear policy and standards to guid
 executive action. There are at least two possible means of promoting su
 change.
 First, reform can perhaps be encouraged. It has been argued that insuffi-
 cient resources and inadequate staffs are, in part, responsible for the
 haphazard style of congressional bill-drafting. This argument, of course, is
 also used to explain the "decline" of Congress. Since we have challenged the
 belief that Congress has, in fact, declined, we should also treat this argument
 with some skepticism. In particular, this argument seems to understate both
 the expertise and influence of congressional staffs in formulating policy.221
 Yet there seems no good reason not to improve the information gathering
 and analytical capacity of Congress. It may have the important direct conse-
 quence of tightening up legislation. It may also have valuable indirect effects.
 For example, it could help improve both the public image of Congress and
 the morale of Congressmen. This, in turn, might raise the expectations con-
 cerning congressional performance among both the public and Congressmen.
 If so, it could encourage better performance.
 The development of the Congressional Budget Office may ultimately
 prove illuminating in this respect. It represents an attempt by Congress to
 improve its analytical ability and to coordinate appropriations. The early re-
 views of the performance of the Budget Office have been tentative, but gen-
 erally favorable.222 Success in this reform can only improve the prestige of
 Congress, and perhaps encourage it to attempt other means to improve
 policymaking.
 Second, the non-delegation doctrine should be revived.223 Davis is surely
 correct in observing that the doctrine has failed to prevent excessive delega-
 tions of congressional legislative power. Yet, his proposal that the doctrine be
 abandoned entirely seems premature, especially since he sees the doctrine as
 being replaced primarily by the hope of voluntary rule-making by agencies in
 221. See D. PRICE, supra note 186, at 289-333.
 222. See, e.g., Capron, The Congressional Budget Office, in COMMISSION ON THE OPERATION OF
 THE SENATE, CONGRESSIONAL SUPPORT AGENCIES: A COMPILATION OF PAPERS 75 (1976).
 223. For a suggestion that such a revival has already begun, see Freedman, Delegation of Power
 and Institutional Competence, 43 UNIV. CHI. L. REV. 307 (1976).
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 LAW AND CONTEMPORARY PROBLEMS
 the executive branch.224
 The responsibility here belongs to the courts. As Lowi has argued, the
 courts must force Congress to perform the task assigned it by the Constitu-
 tion.225 Through their power to overturn legislation, they must coerce constitu-
 tional lawmaking.
 C. Courts
 The task for the courts, therefore, is clear. Rather than construc
 zation for baseless executive orders, they must demand that t
 specify its sources of authority. Rather than construct standards
 egation, they must demand that Congress provide them, for 
 Supreme Court can require an administrative agency, which must
 ing to congressionally approved procedures, to specify the s
 power to act in a particular manner (as it did in S.E.C. v. Chenery
 obligation to impose such a constraint on the President himself, w
 without procedural requirements, is considerably greater. The
 selves undermine judicial review when they construct the guidelin
 other branches either refuse to provide or are unable to find. The
 accountability is futile if the courts act as a willing accomplice in
 of the other two branches to escape it.
 The courts have apparently been sympathetic to the substance 
 tial policy initiatives. Thus they have been somewhat lax in ensur
 cedural safeguards be maintained. We now appreciate the dangers 
 a retreat from law. The courts possess the tools to reconstruct it.
 D. The Public
 In several ways, post-Watergate politics resembles that of the Pr
 era: in their shared desire for neutral competence; in their amb
 ward executive leadership; in their discomfort with the concept of
 seems fitting, therefore, to conclude with an appeal to the public-i
 lar, with an appeal for a more enlightened public opinion.
 Participation is a defining characteristic of democracy. Formal m
 of accountability are of little value unless the public uses them to o
 performance of government. Ultimately, the most effective restrain
 may be a vigilant public-a public not satisfied with symbolic as
 public sensitive to the interplay of political forces, and attentive t
 threats to democratic procedures. Thus today, as always, involve
 astute public is essential for harnessing democratic political institu
 224. See Davis, A New Approach to Delegation, 36 UNIV. CHI. L. REV. 713 (1969).
 225. T. LowI, supra note 192, at 297-299.
 226. Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194 (1947).
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 Page 1: Summer 1976] PRESIDENTIAL LEGISLATION 45
 CONCLUSION
 The Constitution expects both conflict and cooperation between President
 and Congress. Presidential legislation enables the executive to escape conflict
 and avoid cooperation. It undermines democratic norms when it enacts policy
 without full concurrence or accountability. Executive orders cannot, and
 should not, be eliminated from the practice of American government. There
 must, however, be stricter standards to regulate their use.
 A remedy to the problem of presidential legislation, then, lies in a return
 to constitutional principles. This will necessarily involve some limitation on the
 scope of executive action-in particular, on the ability of Presidents to act
 independently of Congress. In this sense, only, will it reduce the power of the
 President; it will not impair the ability of the President to influence Congress
 legitimately. More importantly, it offers an opportunity to increase public
 trust and respect for government by restoring the branches of government to
 their proper constitutional roles. In this sense, a return to constitutional prin-
 ciples will increase the authority of both President and Congress.
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