Executive Order Lecture by Cynthia Farina


Published on

Cornell Law Professor Cynthia R. Farina gave an informal talk on executive orders on April 9, 2009. The talk was organized by the Cornell Law School chapter of the National Security and Law Society.

Published in: Education, Business, Technology
  • Be the first to comment

  • Be the first to like this

Executive Order Lecture by Cynthia Farina

  1. 1. “ Stroke of the pen. Law of the Land. Kinda Cool.” -- Clinton Advisor quoted in N Y Times ,1998
  2. 2. THE MOST FAMOUS EXECUTIVE ORDER IN U.S. HISTORY <ul><li>Wh ereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit: </li></ul><ul><li>&quot;That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom. … </li></ul><ul><li>Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, … do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons. </li></ul><ul><li>And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages. </li></ul><ul><li>And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service. </li></ul><ul><li>And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God. </li></ul><ul><li>In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. </li></ul><ul><li>Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh. </li></ul><ul><li>By the President: ABRAHAM LINCOLN </li></ul>
  5. 5. Directives: Nat’l Security Review <ul><li>SUBJECT: Advanced Telecommunications and Encryption </li></ul><ul><li>New developments in telecommunications hold great promise for the American economy - its productivity and global competitiveness. But they also pose risks to the government's ability to enforce laws and protect national security. We must, with some urgency, find new ways to accommodate the government's interests in law enforcement, privacy, national security, productivity and competitiveness. [omitted text] </li></ul><ul><li>BACKGROUND </li></ul><ul><li>The Clinton Administration is committed to the development of an information superhighway and National Information Infrastructure that depends on a developing synergy between telecommunications and computer technologies. Rapid changes in both the telecommunications and computer industries have blurred the traditional gaps that separated these technologies. The result of these changes has significantly improved both our telecommunications infrastructure and computational capability. At the same time many of the technologies that facilitate rapid implementation of these advanced information systems inhibit lawfully authorized electronic surveillance by government agencies. For example, some advanced telecommunications that form the backbone of the information superhighway also nullify the effectiveness of traditional methods of carrying out court authorized wiretaps. The encryption technologies that can be used to protect privacy and business data can also be used by lawbreakers to prevent the government from obtaining contents of information it is authorized to intercept. </li></ul><ul><li>PART I: ASSESSMENT </li></ul><ul><li>Telecommunications Technologies 1. [omitted text] </li></ul><ul><li>2. What is the impact, including risks and opportunities, of advances in telecommunications services on: </li></ul><ul><li>a. federal, state and local law enforcement capabilities and performance (including public safety); b. [omitted text] </li></ul><ul><li>c. privacy and security of personal commercial, and government information in the U.S. and abroad; </li></ul><ul><li>d. U.S. commercial competitiveness? </li></ul><ul><li>Encryption Technologies </li></ul><ul><li>3. [omitted text] </li></ul><ul><li>4. What is the impact including risks and opportunities, of advances in encryption technologies on: </li></ul><ul><li>a. federal, state and local law enforcement capabilities and performance (including public safety); b. [omitted text] </li></ul><ul><li>c. privacy and security of personal, commercial, and government information in the U.S. and abroad; </li></ul><ul><li>d. U.S. commercial competitiveness; </li></ul><ul><li>e. the security and reliability of the telecommunications network. </li></ul><ul><li>Export Controls </li></ul><ul><li>8. [omitted text] </li></ul><ul><li>PART II: OPTIONS </li></ul><ul><li>[omitted text] The following should guide the development of the options: Whether and in what circumstances legislation or other regulation of encryption and advanced telecommunications is warranted; - Whether these interests can be accommodated through (1) cooperative arrangements with manufacturers and telecommunications service providers and those who manufacture and offer encryption services; (2) alternative investigative/collection techniques; (3) technological innovation; (4) international agreements/arrangements; and (5) adjustments to domestic and international standards. … </li></ul><ul><li>Anthony Lake Assistant to the President for National Security Affairs </li></ul>
  6. 6. Directives: Nat’l Security Policy <ul><li>    NATIONAL SECURITY PRESIDENTIAL DIRECTIVE/NSPD -- 59       HOMELAND SECURITY PRESIDENTIAL DIRECTIVE/HSPD -- 24 </li></ul><ul><li>SUBJECT: Biometrics for Identification and Screening to Enhance National Security </li></ul><ul><li>Purpose </li></ul><ul><li>This directive establishes a framework to ensure that Federal executive departments and agencies (agencies) use mutually compatible methods and procedures in the collection, storage, use, analysis, and sharing of biometric and associated biographic and contextual information of individuals in a lawful and appropriate manner, while respecting their information privacy and other legal rights under United States law. </li></ul><ul><li>Scope </li></ul><ul><li>(1)  The executive branch has developed an integrated screening capability to protect the Nation against &quot;known and suspected terrorists&quot; (KSTs).  The executive branch shall build upon this success, in accordance with this directive, by enhancing its capability to collect, store, use, analyze, and share biometrics to identify and screen KSTs and other persons who may pose a threat to national security. </li></ul><ul><li>(2)  Existing law determines under what circumstances an individual's biometric and biographic information can be collected.  This directive requires agencies to use, in a more coordinated and efficient manner, all biometric information associated with persons who may pose a threat to national security, consistent with applicable law, including those laws relating to privacy and confidentiality of personal data. </li></ul><ul><li>(3)  This directive provides a Federal framework for applying existing and emerging biometric technologies to the collection, storage, use, analysis, and sharing of data in identification and screening processes employed by agencies to enhance national security, consistent with applicable law, including information privacy and other legal rights under United States law. </li></ul><ul><li>(4)  The executive branch recognizes the need for a layered approach to identification and screening of individuals, as no single mechanism is sufficient.  For example, while existing name-based screening procedures are beneficial, application of biometric technologies, where appropriate, improve the executive branch's ability to identify and screen for persons who may pose a national security threat. To be most effective, national security identification and screening systems will require timely access to the most accurate and most complete biometric, biographic, and related data that are, or can be, made available throughout the executive branch. </li></ul><ul><li>(5)  This directive does not impose requirements on State, local, or tribal authorities or on the private sector.  It does not provide new authority to agencies for collection, retention, or dissemination of information or for identification and screening activities. </li></ul><ul><li>Definitions </li></ul><ul><li>(6)  In this directive: </li></ul><ul><li>( a)  &quot;Biometrics” refers to the measurable biological (anatomical and physiological) and behavioral characteristics that can be used for automated recognition; examples include fingerprint, face, and iris recognition; and </li></ul><ul><li>… </li></ul><ul><li>George W. Bush </li></ul>
  8. 8. Proclamations <ul><li>GREEK INDEPENDENCE DAY:  A NATIONAL DAY OF CELEBRATION OF GREEK AND AMERICAN DEMOCRACY, 2009 BY THE PRESIDENT OF THE UNITED STATES OF AMERICA A PROCLAMATION      The American people join Hellenes today in commemorating the 188th anniversary of Greece's independence. As we celebrate the establishment of the Hellenic Republic, we honor the historic contributions of Greeks and Greek-Americans.        Americans celebrated the cause of Greek independence during the new nation's earliest years.  In 1824, summarizing support for the Greek struggle among the American people, then-Representative Henry Clay declared, &quot;That it is felt with the deepest intensity, expressed in almost every possible form, and that it increases with every new day and passing hour.&quot; His words are echoed today as Americans celebrate the anniversary of this struggle for independence.        The relationship between Greece and the United States owes much to the vision of democracy and liberty forged in Greece.  In constructing a modern democratic framework, our Nation's founders drew upon the immutable principles of the ancient Greeks.  All who cherish the ideal of democratic governance are beneficiaries of the Greek legacy.        From the literary classics taught in our children's classrooms to the gleaming monuments of our Nation's capital, Greek cultural traditions have also found a home in the United States. In classrooms across the country, many of our students still immerse themselves in the epics of Homer, the dramas of Sophocles, and the philosophical innovations of Plato and Aristotle. Among the Greek-influenced structures in Washington, D.C., our Nation's Capitol Building draws upon the architectural legacy of the ancient Greeks. In recent history, Greece and the United States have stood together to meet the challenges of our times.  Greeks and Americans fought for common causes over the course of the 20th century and continue to collaborate in this century, including through membership in the North Atlantic Treaty Organization.        The strength of the bond between Greece and the United States is exemplified by the Greek-American community, which enriches our Nation with its cultural heritage and helps maintain the living relationship between our countries.            On the anniversary of Greece's independence, we celebrate this friendship and look forward to realizing our common goals and aspirations.        NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim March 25, 2009, as &quot;Greek Independence Day: A National Day of Celebration of Greek and American Democracy.&quot; I call upon the people of the United States to observe this day with appropriate ceremonies and activities.   IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of March, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-third. BARACK OBAMA </li></ul>
  9. 9. Proclamations <ul><li>To Suspend Subchapter IV of Chapter 31 of Title 40, United States Code, Within a Limited Geographic Area in Response to the National Emergency Caused by Hurricane Katrina </li></ul><ul><li>By the President of the United States of America </li></ul><ul><li>A Proclamation </li></ul><ul><li>1. Section 3142(a) of title 40, United States Code, provides that ``every contract in excess of $2,000, to which the Federal Government or the District of Columbia is a party, for construction, alteration, or repair, including painting and decorating, of public buildings and public works of the Government or the District of Columbia that are located in a State or the District of Columbia and which requires or involves the employment of mechanics or laborers shall contain a provision stating the minimum wages to be paid various classes or laborers and mechanics.'‘… </li></ul><ul><li>4. Section 3147 of title 40, United States Code, provides that ``[t]he President may suspend the provisions of this subchapter during a national emergency.'' </li></ul><ul><li>5. Several areas of the Nation have been recently devastated by Hurricane Katrina. The devastation from the hurricane has resulted in the largest amount of property damage from a natural disaster in the history of the Nation. An enormous but undetermined number of lives have been lost, and hundreds of thousands of homes and business establishments either destroyed or severely damaged. Hundreds of thousands of individuals have lost their jobs and their livelihood. An unprecedented amount of Federal assistance will be needed to restore the communities that have been ravaged by the hurricane. </li></ul><ul><li>Accordingly, I find that the conditions caused by Hurricane Katrina constitute a ``national emergency'' within the meaning of section 3147 of title 40, United States Code. ( </li></ul><ul><ul><li>a) Hurricane Katrina has resulted in unprecedented property damage. </li></ul></ul><ul><ul><li>(b) The wage rates imposed by section 3142 of title 40, United States Code, increase the cost to the Federal Government of providing Federal assistance to these areas. </li></ul></ul><ul><ul><li>(c) Suspension of the subchapter IV of chapter 31 of title 40, United States Code, 40 U.S.C. 3141-3148, and the operation of related acts to the extent they depend upon the Secretary of Labor's determinations under section 3142 of title 40, United States Code, will result in greater assistance to these devastated communities and will permit the employment of thousands of additional individuals. </li></ul></ul><ul><li>NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, do by this proclamation suspend, as to all contracts entered into on or after the date of this proclamation and until otherwise provided, the provisions of subchapter IV of chapter 31 of title 40, United States Code, 40 U.S.C. 3141-3148, and the provisions of all other acts providing for the payment of wages, which provisions are dependent upon determinations by the Secretary of Labor under section 3142 of title 40, United States Code, as they apply to contracts to be performed in [list of about 50 </li></ul><ul><li>And, as to such contracts to be performed in such jurisdictions, I do hereby suspend, until otherwise provided, the provisions of any Executive Order, proclamation, rule, regulation, or other directive providing for the payment of wages, which provisions are dependent upon determinations by the Secretary of Labor under section 3142 of title 40, United States Code; </li></ul><ul><li>IN WITNESS WHEREOF, I have hereunto set my hand this eighth day of September, in the year of our Lord two thousand five, and of the Independence of the United States of America the two hundred and thirtieth. </li></ul><ul><li>George H.W. Bush </li></ul>
  10. 10. Proclamations <ul><li>By the President of the United States of America a Proclamation </li></ul><ul><li>Richard Nixon became the thirty-seventh President of the United States on January 20, 1969 and was reelected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974. </li></ul><ul><li>Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the Committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended Articles of Impeachment. </li></ul><ul><li>As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution. </li></ul><ul><li>It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States. </li></ul><ul><li>Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974. </li></ul><ul><li>IN WITNESS WHEREOF, I have hereunto set my hand this eighth day of September, in the year of our Lord nineteen hundred and seventy-four, and of the Independence of the United States of America the one hundred and ninety-ninth. </li></ul><ul><li>GERALD R. FORD </li></ul>
  11. 11. Proclamations <ul><li>The Online News Hour -- January 6, 2009, 3:40 PM ET  </li></ul><ul><li>Bush to Establish World's Largest Marine Sanctuary </li></ul><ul><li>President Bush on Tuesday created three new marine protected areas in the Pacific Ocean, safeguarding more than 195,000 square miles of coral reefs, underwater volcanoes, rare fish and unique habitats. The move, together with President Bush's 2006 decision to create a 140,000 square mile marine sanctuary near the Northern Hawaiian Islands, won him rare praise from environmentalists. </li></ul><ul><li>&quot;With the designation of the world's largest marine reserve in the Northwestern Hawaiian Islands in 2006 and now these three other sites, George W. Bush has done more to protect unique areas of the world's oceans than any other person in history,&quot; said Pew Environmental Group Managing Director Joshua Reichert, according to the New York Times. </li></ul><ul><li>Mr. Bush used executive powers established under the Antiquities Act of 1906 to create the three Marine National Monuments, and the decision does not need congressional or any other approval. </li></ul>
  13. 13. Reorganization Plans <ul><li>Special Message from the President to the Congress About Reorganization Plans to Establish the Environmental Protection Agency and the National Oceanic and Atmospheric Administration </li></ul><ul><li>To the Congress of the United States: </li></ul><ul><li>As concern with the condition of our physical environment has intensified, it has become increasingly clear that we need to know more about the total environment--land, water, and air. It also has become increasingly clear that only by reorganizing our Federal efforts can we develop that knowledge, and effectively ensure the protection, development and enhancement of the total environment itself. </li></ul><ul><li>The Government's environmentally-related activities have grown up piecemeal over the years. The time has come to organize them rationally and systematically. As a major step in this direction, I am transmitting today two reorganization plans: one to establish an Environmental Protection Agency, and one to establish, with the Department of Commerce, a National Oceanic and Atmospheric Administration. </li></ul><ul><li>… </li></ul><ul><li>Richard M. Nixon </li></ul><ul><li>July 9, 1970 </li></ul>
  14. 14. Reorganization Plans <ul><li>Agencies created by reorganization plans: </li></ul><ul><li>Executive Office of the President – Roosevelt 1939 </li></ul><ul><li>Office of Management & Budget (OMB) – Nixon 1970 </li></ul><ul><li>Federal Emergency Management Agency (FEMA) – Carter 1979 </li></ul>
  16. 16. Presidential Memoranda <ul><li>MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES </li></ul><ul><li>SUBJECT:      Transparency and Open Government </li></ul><ul><li>  My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government. </li></ul><ul><li>Government should be transparent .  Transparency promotes accountability and provides information for citizens about what their Government is doing.  Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public. Executive departments and agencies should also solicit public feedback to identify information of greatest use to the public. </li></ul><ul><li>Government should be participatory . Public engagement enhances the Government's effectiveness and improves the quality of its decisions. Knowledge is widely dispersed in society, and public officials benefit from having access to that dispersed knowledge. Executive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information. Executive departments and agencies should also solicit public input on how we can increase and improve opportunities for public participation in Government. </li></ul><ul><li>Government should be collaborative .  Collaboration actively engages Americans in the work of their Government. Executive departments and agencies should use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector.  Executive departments and agencies should solicit public feedback to assess and improve their level of collaboration and to identify new opportunities for cooperation. </li></ul><ul><li>I direct the Chief Technology Officer, in coordination with the Director of the Office of Management and Budget (OMB) and the Administrator of General Services, to coordinate the development by appropriate executive departments and agencies, within 120 days, of recommendations for an Open Government Directive, to be issued by the Director of OMB, that instructs executive departments and agencies to take specific actions implementing the principles set forth in this memorandum. The independent agencies should comply with the Open Government Directive. </li></ul><ul><li>BARACK OBAMA </li></ul>
  17. 17. Presidential Memoranda <ul><li>Memorandum for the Heads of Executive Departments and Agencies </li></ul><ul><li>SUBJECT: Presidential Signing Statements </li></ul><ul><li>For nearly two centuries, Presidents have issued statements addressing constitutional or other legal questions upon signing bills into law (signing statements). Particularly since omnibus bills have become prevalent, signing statements have often been used to ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire bill. </li></ul><ul><li>In recent years, there has been considerable public discussion and criticism of the use of signing statements to raise constitutional objections to statutory provisions. There is no doubt that the practice of issuing such statements can be abused. Constitutional signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements. At the same time, such signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress. </li></ul><ul><li>With these considerations in mind and based upon advice of the Department of Justice, I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities. In issuing signing statements, I shall adhere to the following principles: </li></ul><ul><li>The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement. </li></ul><ul><li>Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded. </li></ul><ul><li>To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection. </li></ul><ul><li>I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one. </li></ul><ul><li>To ensure that all signing statements previously issued are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute. </li></ul><ul><li>This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. </li></ul><ul><li>This memorandum shall be published in the Federal Register. </li></ul><ul><li>                              BARACK OBAMA </li></ul>
  19. 19. Executive Orders <ul><li>EXECUTIVE ORDER 9066 - AUTHORIZING THE SECRETARY OF WAR TO PRESCRIBE MILITARY AREAS FEBRUARY 19, 1942 </li></ul><ul><li>WHEREAS the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U. S. C., Title 50, Sec. 104): NOW, THEREFORE, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such actions necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commanders may determine, from which any or all persons may be excluded, and with such respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Sectary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded there from, such transportation, food, shelter, and other accommodations as may be necessary, in the judgement of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas. </li></ul><ul><li>I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies. </li></ul><ul><li>I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities and services. </li></ul><ul><li>This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder. </li></ul><ul><li>FRANKLIN D. ROOSEVELT </li></ul>
  20. 20. Executive Orders <ul><li>EXECUTIVE ORDER 10340 - DIRECTING THE SECRETARY OF COMMERCE TO TAKE POSSESSION OF AND OPERATE THE PLANTS AND FACILITIES OF CERTAIN STEEL COMPANIES </li></ul><ul><li>April 8, 1952 </li></ul><ul><li>WHEREAS it is essential that there be maintained in the armed services of the United States the highest standards of democracy, with equality of treatment and opportunity for all those who serve in our country's defense: </li></ul><ul><li>NOW THEREFORE, by virtue of the authority vested in me as President of the United States, by the Constitution and the statutes of the United States, and as Commander in Chief of the armed services, it is hereby ordered as follows: </li></ul><ul><li>1. It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. This policy shall be put into effect as rapidly as possible, having due regard to the time required to effectuate any necessary changes without impairing efficiency or morale. </li></ul><ul><li>2. There shall be created in the National Military Establishment an advisory committee to be known as the President's Committee on Equality of Treatment and Opportunity in the Armed Services, which shall be composed of seven members to be designated by the President. </li></ul><ul><li>3. The Committee is authorized on behalf of the President to examine into the rules, procedures and practices of the Armed Services in order to determine in what respect such rules, procedures and practices may be altered or improved with a view to carrying out the policy of this order. The Committee shall confer and advise the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force, and shall make such recommendations to the President and to said Secretaries as in the judgment of the Committee will effectuate the policy hereof. </li></ul><ul><li>4. All executive departments and agencies of the Federal Government are authorized and directed to cooperate with the Committee in its work, and to furnish the Committee such information or the services of such persons as the Committee may require in the performance of its duties. </li></ul><ul><li>5. When requested by the Committee to do so, persons in the armed services or in any of the executive departments and agencies of the Federal Government shall testify before the Committee and shall make available for use of the Committee such documents and other information as the Committee may require. </li></ul><ul><li>6. The Committee shall continue to exist until such time as the President shall terminate its existence by Executive order. </li></ul><ul><li>Harry Truman </li></ul>
  21. 21. Executive Orders <ul><li>EXECUTIVE ORDER 13492 -- REVIEW AND DISPOSITION OF INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL BASE AND CLOSURE OF DETENTION FACILITIES </li></ul><ul><li>January 22, 2009 </li></ul><ul><li>       By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows: … </li></ul><ul><li>Sec . 2 .  Findings . … </li></ul><ul><li>(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.  </li></ul><ul><li>     (d)  It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantánamo require a comprehensive interagency review. … </li></ul><ul><li>Sec. 4. Immediate Review … </li></ul><ul><li>(c)   Operation of Review . The duties of the Review participants shall include the following: </li></ul><ul><li>  (3)   Determination of Prosecution . In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations. … </li></ul><ul><li>  Sec . 6 .  Humane Standards of Confinement . No individual currently detained at Guantánamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with this directive. Such review shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter. … </li></ul><ul><li>  </li></ul><ul><li>     Sec . 7 .  Military Commissions .  The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted. </li></ul><ul><li>… </li></ul><ul><li>BARACK OBAMA </li></ul>
  23. 23. Typical provision on private unenforceability <ul><li>“This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, or any other person.” </li></ul>
  24. 24. Alteration <ul><li>EXAMPLE: MEXICO CITY POLICY </li></ul><ul><li>1984: Reagan “policy statement” at UN. International Conference on Population </li></ul><ul><li>Jan 22, 1993: Clinton Memorandum rescinding policy </li></ul><ul><li>Jan 22, 2001: G.W. Bush E.O. reimposing policy </li></ul><ul><li>Jan 23. 2009: Obama E.O. re-rescinding policy </li></ul>
  26. 26. FORMAL ELEMENTS <ul><li>Publication in Federal Register – unless they aren’t </li></ul><ul><li>Weekly Compilation of Presidential Documents </li></ul><ul><li>Consecutive numbering on some (E.Os., NSPDs, Reorganization Plans) </li></ul>
  27. 27. Differences in Style Differences in Constitutional Understanding? <ul><li>Memorandum for the Secretary of Health and Human Services </li></ul><ul><li>Subject: The Title X &quot;Gag Rule&quot; </li></ul><ul><li>Title X of the Public Health Services Act provides Federal funding for family planning clinics to provide services for low-income patients. The Act specifies that Title X funds may not be used for the performance of abortions… During the first 18 years of the program, medical professionals at Title X clinics provided complete, uncensored information, including nondirective abortion counseling. In February 1988, the Department of Health and Human Services adopted regulations, which have become known as the &quot;Gag Rule,&quot; prohibiting Title X recipients from providing their patients with information, counseling, or referrals concerning abortion. </li></ul><ul><li>… You have informed me that you will suspend the Gag Rule pending the promulgation of new regulations in accordance with the &quot;notice and comment&quot; procedures of the Administrative Procedure Act. I hereby direct you to take that action as soon as possible. I further direct that, within 30 days, you publish in the Federal Register new proposed regulations for public comment. </li></ul><ul><li>WILLIAM J. CLINTON </li></ul><ul><li>Memorandum For The Heads Of Executive Departments And Agencies </li></ul><ul><li>Subject: The Endangered Species Act </li></ul><ul><li>The Endangered Species Act (ESA), 16U.S.C. 1531 et seq ., reflects one of the Nation's profound commitments. Pursuant to that Act, the Federal Government has long required a process of broad interagency consultation to ensure the application of scientific and technical expertise to decisions that may affect threatened or endangered species. … On December16, 2008, the Departments of the Interior and Commerce issued a joint regulation that modified these longstanding requirements. This new regulation expands the circumstances in which an agency may determine not to consult with, or obtain the written concurrence of, the Fish Wildlife Service or National Marine Fisheries Service prior to undertaking an action that may affect threatened or endangered species. … </li></ul><ul><li>I hereby request the Secretaries of the Interior and Commerce to review the regulation issued on December16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA. </li></ul><ul><li>Until such review is completed, I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS. </li></ul><ul><li>…  </li></ul><ul><li>                   BARACK OBAMA </li></ul>
  28. 28. Sources of Information Sources of Information
  29. 29. Primary Document Sources
  30. 30. Primary Document Sources
  31. 31. General Guidance To Sources