Presidential Ordinance-Making Power

• Author: Lois Fisher
• Pages: 1994-1995

Page 1994

As a means of carrying out constitutional and statutory duties, Presidents issue regulations, proclamations, and EXECUTIVE ORDERS. Although this exercise of legislative power by the President appears to contradict the doctrine of SEPARATION OF POWERS, the scope of administrative legislation has remained broad. Rules and regulations, as the Supreme Court noted in United States v. Eliason (1842), "must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority."

It is established DOCTRINE that "the authority to prescribe rules and regulations is not the power to make laws, for no such power can be delegated by the Congress," as a federal court of appeals declared in Lincoln Electric Co. v. Commissioner of Internal Revenue (1951). Nevertheless, vague grants of delegated authority by Congress give administrators substantial discretion to make federal policy. Over a twelve-month period from 1933 to 1934 the National Recovery Administration issued 2,998 orders. This flood of rule-making activity was not collected and published in one place, leaving even executive officials in doubt about applicable regulations.

Legislation in 1935 provided for the custody of federal documents and their publication in a "Federal Register." The Administrative Procedure Act of 1946 established uniform standards for rule-making, including notice to the parties concerned and an opportunity for public participation. Recent Presidents, especially GERALD FORD, JIMMY CARTER, and RONALD REAGAN, have attempted to monitor and control the impact of agency regulations on the private sector.

Proclamations are a second instrument of administrative legislation. Sometimes they are hortatory in character, without legislative effect, such as proclamations for Law Day. Other proclamations have substantive effects, especially when used to regulate international trade on the basis of broad grants of statutory authority. Still other proclamations have been issued solely on the President's constitutional authority, as with pardons and AMNESTIES and ABRAHAM LINCOLN'S proclamations in April 1861. When a statute prescribes a specific procedure in an area reserved

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to Congress and the President follows a different course, proclamations are illegal and void.

From ancient times a proclamation was literally a public notice, whether by trumpet, voice, print, or posting. Yet in...