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No. 60 "Lawmaking By Executive Order: An Analysis of a Movement Tending to Destroy American Constitutional Government and to Set Up an Executive Autocracy," August, 1935. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_60 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 60 "Lawmaking By Executive Order: An Analysis of a Movement Tending to Destroy American Constitutional Government and to Set Up an Executive Autocracy," August, 1935. American Liberty League. American Liberty League. Washington, D.C. 1935. This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 1 of the TEI in Libraries Guidelines. Digital page images are linked to the text file. Pamphlets Available â˜… Copies of the following pamphlets and other League literature may be obtained upon application to the League's national headquarters: Statement of Principles and Purposes American Liberty League Its Platform An Analysis of the President's Budget Message Economic Security Inflation The Thirty Hour Week The Pending Banking Bill The Holding Company Bill Price Control The Labor Relations Bill The Bituminous Coal Bill Extension of the NRA The Farmers' Home Bill The TV A Amendments The New Deal, Its Unsound Theories and Irreconcilable Policies Speech by Ralph M. Shaw How to Meet the Issue Speech by William E. Borah The Supreme Court and the New Deal The Duty of the Church to the Social Order' Speech by S. Wells Utley An Open Letter to the President By Dr. Neil Car others The Revised AAA Amendments The Return to Democracy Speech by Jouett Shouse The President's Tax Program The American Bar The Trustee of American Institutions Speech by Albert C. Ritchie Two Amazing Years Speech by Nicholas Roosevelt Fabian Socialism in the New Deal Speech by Demarest Lloyd The People's Money Speech by Dr. Walter E. Spahr The Principles of Constitutional Democracy and the New Deal Speech by R. E. Desvernine Which Road to Take? Speech by J. Howard Pew The Blessings of Stability Speech by James W. Wadsworth Legislation By Coercion or Constitution Speech by Jouett Shouse Recovery by Statute Speech by Dr. Neil Carothers Expanding Bureaucracy The Imperilment of Democracy Speech by Fitzgerald Hall. â˜… AMERICAN LIBERTY LEAGUE NATIONAL PRESS BUILDING WASHINGTON, D. C. â˜… â˜… LAWMAKING BY EXECUTIVE ORDER â˜… â˜… â˜… An Analysis of a Movement Tending to Destroy American Constitutional Government and to Set Up an Executive Autocracy AMERICAN LIBERTY LEAGUE Rational Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. â˜… â˜… Document No. 60 August, 1935 Lawmaking by Executive Order â˜… Laws enacted since March, 1933, delegating broad power to the Executive, have created a situation unique in the history of the United States. Under these enactments lawmaking by executive order has been countenanced to a degree unprecedented and almost unbelievable. The authority of the Executive has been expanded far beyond what was contemplated when the Constitution provided for three coordinate branches of government. The three divisions, each with supreme authority, were intended to prevent a centralization of power characteristic of autocracy. The Legislative branch was to make the laws, the Executive branch to execute them and the Judicial branch to interpret them. The delegation of legislative power to the Executive is contrary to the intent of the framers of the Constitution and encroaches upon democratic principles. In the Schechter and "hot oil" cases, both involving the National Industrial Recovery Act, the Supreme Court has held that the delegation of authority to the Executive exceeded the bounds prescribed by the Constitution. The validity of many other actions taken under such authority has not been passed upon. Facts regarding executive orders issued during the present administration are: 1. Executive orders issued between March, 1933, and July, 1935, total more than 1,250. 2. Administrative orders issued by officials under authority of executive orders during the same period run into the thousands. 3. Both the executive and administrative orders have the force of law, violation being punishable in many cases by fines and even by imprisonment. 4. About 50 new agencies and additional branches of existing agencies and departments have been created by executive order. 5. Executive orders already issued during this administration exceed by several hundred the total during the entire four years of the last administration. 6. Orders issued under previous administrations were almost entirely of a ministerial character, whereas many issued during the past two years are executive edicts affecting the lives and property of citizens. 7. Through executive orders based on broad 3 grants of power, proposals previously rejected by the Congress have been put into effect. 8. New agencies created by executive order have embarked upon all sorts of projects never even discussed at the time of the enactment of the law which illegally delegated authority to the Executive. 9. The National Industrial Recovery Act and more recently the Work-Relief Act have furnished the authority for the bulk of the lawmaking by executive order. Number and Kinds of Orders More executive orders have been issued during the present administration than in any other similar period. The total of more than 1,250 in the two years and four months between March, 1933, and July, 1935, is more than twice the number during the corresponding period of the last administration. Executive orders issued during the entire four years of the last administration totaled about 1,000. Between 1862 and 1900 only 120 executive orders were issued. From 1900 to March, 1929, there was a total of about 5,000, or an average of only 165 a year. Although emergency laws during the World War vested unusual authority in the President, the executive orders issued during the entire eight years of the Wilson Administration totaled less than 1,800. Among the 1,250 orders during the present administration are many which deal with more than one subject or agency. For example, three different work-relief agencies were created by a single order. Supplemental orders frequently have been issued under earlier serial numbers. The actual number of orders issued during the present administration thus is considerably greater than indicated by the total of 1,250. About 35 per cent of them have related to codes of fair competition under the NRA. About 25 per cent have been of a routine character with respect to public lands. About 25 per cent have related to the Civil Service and other ordinary administrative matters such as in connection with veterans, internal revenue and customs, the Panama Canal, military and foreign services, aliens and Government property. About 15 per cent have had to do with the creation or reorganization of Government agencies. There is a small group of orders applying to banking and currency. More than 50 per cent of all the orders since March, 1933, have been in connection with the administration's emergency program. It is impossible to obtain accurate information as to the number of orders issued by officials to whom the President has delegated authority. The Administrator for Industrial Recovery, during the first year of the life of the National Industrial Recovery Act, issued about 3,000 administrative orders approving or modifying codes and covering other activities under the operation of that law. A special committee of the American Bar Association reported that in addition to the 3,000 administrative orders during that year, numerous regulations were to be found among about 6,000 press releases. During the second year of the National Industrial Recovery Act so many thousands of administrative orders and regulations of various kinds were issued that the officials confess their inability either to estimate the total or to segregate them in groups. The American Bar Association Committee estimated that the NRA alone produced more than 10,000 pages of administrative "law" in a single year. Executive orders are divided into two general classes. The first embraces those of a purely ministerial character and involves but little discretion. The second class constitutes lawmaking by executive order. This type of order is largely a new development under the recent laws vesting broad authority in the Executive. Access to Orders Although executive and administrative orders have the force of law, there exists no adequate method by which those subject to them can keep advised as to their provisions. The executive orders are filed with the State Department, and it is possible to obtain copies. However, no compilations of the orders are issued as is true in the case of laws of the Congress. Complete chaos exists with respect to the orders and regulations issued by officials to whom the President has re-delegated power. The utter impossibility of keeping track of these orders was noted by Justices of the Supreme Court during the hearing of the "hot oil" case. So long as the executive orders and administrative regulations issued thereunder merely involved ministerial acts, there was but little public interest. Under present conditions citizens may be shown to have violated administrative laws of which they could not be expected to have any knowledge. Laws Vesting Power in Executive The current flood of executive orders derives authority chiefly from the Emergency Relief Ap- propriation Act of 1935, which is the law appropriating $4,880,000,000 for work relief and direct relief. Considerably more than half of all the executive orders issued by the present administration are by authority of the National Industrial Recovery Act. Since June 16, 1935, when the original NIRA expired, executive orders have been issued under the joint resolution continuing until April 1, 1936, sections of the law other than those relating to codes which were held by the Supreme Court to be invalid. Executive orders also have been based on other laws, including several appropriation acts, the Emergency Railroad Transportation Act, the Thomas Inflation Amendment of the Agricultural Adjustment Act, the Farm Credit Act of 1933, the Reconstruction Finance Corporation Act and the Federal Emergency Relief Act of 1933. Authority delegated by the Congress in the Agricultural Adjustment Act is vested chiefly in the Secretary of Agriculture rather than in the President. The Work-Relief Act gives broad power to the President to expend funds "to provide relief, work relief and to increase employment by providing for useful projects." While the law specifies the types of projects for which money may be used, it delegates authority to the President with respect to many matters on which the Congress has been accustomed to act. The President is authorized under the Act to "establish and prescribe the duties and functions of necessary agencies within the Government." He may appoint without regard to the Civil Service laws an unlimited number of officers and employees and fix their compensation. He may buy and sell real estate and exercise the right of eminent domain. He may fix wage rates on projects, both Federal and state, for which the money is used. He may finance the purchase of land and equipment by farmers. The President is authorized "to prescribe such rules and regulations as may be necessary to carry out this joint resolution and any willful violation of any such rule or regulation shall be punishable by a fine of not to exceed $1,000. Three laws under which legislative power is delegated to the Executive are continued for specified periods by the Work-Relief Act. These are Title II of the National Industrial Recovery Act, which is its public works section; the Federal Emergency Relief Act of 1933 and the Civilian Conservation Corps Act. The original National Industrial Recovery Act contains a declaration of policy broad enough to imply authorization of almost any proposal designed for the betterment of industrial conditions. To effectuate this policy the President is authorized to establish such agencies and appoint such officers and employees and fix their compensation as he may find desirable. The President is further authorized to delegate any of his functions and powers under the Act to such officers and employees. The President is authorized to prescribe such rules and regulations as may be necessary to carry out the purposes of the Act. The penalty for violation includes a jail sentence as well as a fine. It is provided that violation shall be punishable by a fine of not to exceed $500 or imprisonment for not to exceed six months, or both. The joint resolution continuing the National Industrial Recovery Act until April 1, 1936, repeals provisions of Title I delegating power to the President to approve and enforce codes but otherwise does not interfere with authority given him. Powers similar to those vested in the President by Title I of the National Industrial Recovery Act are delegated to him in Title II, relating to public works, which has been continued for a period of two years. Agencies Created by Executive Order About fifty new independent agencies and branches of existing agencies and departments have been created by President Roosevelt by executive order. The list includes the National Recovery Administration, not even the outlines of which appear in the law; but does not include the Agricultural Adjustment Administration, which is specifically named in the Agricultural Adjustment Act and placed under the Secretary of Agriculture. Among other statutory emergency agencies not included are the Federal Emergency Relief Administration, the Home Owners' Loan Corporation and the Railroad Coordinator. Not all of the new agencies remain in existence, a few of them having been absorbed by others, while some have been abolished. There are now about 30 new agencies independent of Cabinet departments, including those created specifically by statute. The independent agencies and branches of existing agencies and departments created by executive order, together with the laws on which the orders are based, include the following: Farm Credit Administration Legislative Appropriation Act, 1933. Emergency Conservation Work Unemployment Relief Act. Office of National Parks, Buildings and Reservations in the Department of the Interior Treasury and Post Office Appropriation Act, 1934. National Recovery Administration National Industrial Recovery Act. Public Works Administration National Industrial Recovery Act. Executive Council Unemployment Relief Act and National Industrial Recovery Act. Petroleum Administration Board National Industrial Recovery Act. Division of Subsistence Homesteads National Industrial Recovery Act. Central Statistical Board National Industrial Recovery Act. Science Advisory Board under the National Research Council General Authority. Commodity Credit Corporation Agricultural Adjustment Act, National Industrial Recovery Act, Federal Emergency Relief Act of 1933, Farm Credit Act of 1933, Federal Farm Loan Act of 1916, Reconstruction Finance Corporation Act of 1932 and Emergency Relief and Construction Act of 1932. Federal Civil Works Administration National Industrial Recovery Act. National Emergency Council Agricultural Adjustment Act, National Industrial Recovery Act, Federal Emergency Relief Act of 1933 and Work-Relief Act. Public Works Emergency Housing Corporation National Industrial Recovery Act. Federal Alcohol Control Administration National Industrial Recovery Act. National Labor Board National Industrial Recovery Act. Bituminous Coal Labor Board National Industrial Recovery Act. Electric Home and Farm Authority National Industrial Recovery Act. Export-Import Bank of Washington National Industrial Recovery Act. Second Export-Import Bank of Washington National Industrial Recovery Act. Federal Employment Stabilization Office Treasury and Post Office Appropriation Act, 1934. National Recovery Review Board National Industrial Recovery Act. Special Adviser on Foreign Trade National Industrial Recovery Act. Executive Committee on Commercial Policy "By virtue of authority vested in me as President." Committee on National Land Problems "Desirable and in public interest." Division of Territories and Island Possessions in Department of Interior Treasury and Post Office Appropriation Act, 1934. National Construction Planning and Adjustment Board National Industrial Recovery Act. 8 National Longshoremen's Labor Board National Industrial Recovery Act and Joint Resolution to effectuate further the policy of the NIRA. Committee for Reciprocity Information Tariff Reciprocity Act. National Steel Labor Relations Board National Industrial Recovery Act and Joint Resolution to effectuate further the policy of the NIRA. Committee on Economic Security and the Advisory Council on Economic Security National Industrial Recovery Act. National Labor Relations Board National Industrial Recovery Act and Joint Resolution to effectuate further the policy of the NIRA. Industrial Emergency Committee National Industrial Recovery Act. National Resources Board (later established as National Resources Committee) National Industrial Recovery Act and Work-Relief Act. Board of Inquiry for the Cotton Textile Industry National Industrial Recovery Act and Joint Resolution to effectuate further the policy of the NIRA. Textile Labor Relations Board National Industrial Recovery Act and Joint Resolution to effectuate further the policy of the NIRA. National Industrial Recovery Board National Industrial Recovery Act. Wool, Cotton, Silk Textile Work Assignment Boards National Industrial Recovery Act. Federal Prison Industries, Inc. Federal Prison Industries Act. Federal Tender Board, No. 1 Contraband Oil Act. Federal Petroleum Agency, No. 1 Contraband Oil Act. Resettlement Administration Work-Relief Act. Division of Applications and Information Work-Relief Act. Advisory Committee on Allotments Work-Relief Act. Works Progress Administration Work-Relief Act. Rural Electrification Administration Work-Relief Act. Puerto Rico Reconstruction Administration Work-Relief Act. National Youth Administration Work-Relief Act. Advisory Council in Aid of the NRA Resolution for extension of NRA. Under authority vested in the Executive by the Legislative Appropriation Act for the fiscal year 1933 as amended by the Economy Act of 1933, the President early in his administration issued nearly 30 executive orders transferring functions and agencies of the Government. The authority to shift agencies with a view to a reorganization on a more efficient basis was granted under the last administration and was so restricted as to prohibit an expansion of activities. Actions under this authority have met with general approval. The consolidation of all agricultural credit agencies, including the old Farm Board, into a single agency and the grouping of activities 9 relating to national parks were among the changes effected by this method. Nothing has been done along this line in recent months. Executive Orders Under Work-Relief Act Among the executive orders issued under the Work-Relief Act are the following: Reestablishing the National Emergency Council. Establishing the Resettlement Administration. Establishing the Division of Applications and Information, the Advisory Committee on Allotments and the Works Progress Administration. Establishing the Rural Electrification Administration. Establishing the National Resources Committee. Establishing the National Youth Administration. Prescribing rules and regulations for employment of workers on relief projects. Fixing rates of compensation of Government employees in agencies established under the Act. Prescribing rules and regulations relating to methods of prosecuting projects under the Act. Authorizing the Public Works Administration to perform functions under the Work-Relief Act. Establishing the Puerto Rico Reconstruction Administration. Allocating funds for various purposes. Many hundreds of additional executive orders are expected to be issued under the Work-Relief Act which remains in effect until June 30, 1937. NIRA Extension Resolution Under the joint resolution for the extension of the National Industrial Recovery Act executive orders have been issued continuing agencies created or activities commenced by authority of the original law. This was accomplished to a large extent through a single blanket order approved by the President on June 15, 1935. Among separate orders issued was one continuing temporarily the National Labor Relations Board pending the enactment of the separate legislation perpetuating that agency. Other orders provided for the temporary extension of the steel and textile labor boards. While these various labor boards had little power following the expiration on June 16, 1935, of the joint resolution under which they were created, their continuance by executive order had the effect of keeping their employees on the payroll during the several weeks intervening before the enactment of the Labor Relations Act. A separate executive order was issued abolishing the National Industrial Recovery Board and 10 reorganizing the National Recovery Administration. The blanket executive order continuing agencies and activities created and commenced under the original National Industrial Recovery Act follows in full: "Whereas Senate Joint Resolution 113. approved June 14, 1935, extends until April 1, 1936, the provisions of Title I of the National Industrial Recovery Act as amended by said Joint Resolution, and "Whereas the President has heretofore issued various executive orders under and pursuant to the authority conferred upon him by the provisions of the said Title I, the effective period of which executive orders is limited directly by the said orders or by the said Title I to June 16, 1935, and "Whereas it is necessary and desirable to maintain the continuity of the agencies established, the requirements imposed, and the other activities heretofore authorized by such executive orders so far as consistent with the provisions of the said Title I as amended: "Now, Therefore, by virtue of and pursuant to the authority vested in me by Title I of the National Industrial Recovery Act (48 Stat. 195) as amended and extended by Senate Joint Resolution 113, approved June 14, 1935, it is hereby ordered that all existing executive orders heretofore issued under and by virtue of the authority vested in me by Title I of the National Industrial Recovery Act be, and they are, hereby amended so as to continue them in effect and to extend their operation, and also to extend the authority and activities of any agency created thereunder until April 1, 1936, so far as consistent with the provisions of the National Industrial Recovery Act as amended and extended, subject, however, to any limitation, modification, or cancelation the President may hereafter make by executive order: Provided, however, that this order shall not be construed as an exercise by the President of any authority, or as authorizing any person or agency acting under authority conferred by the President, to approve or prescribe codes of fair competition, to provide for the enforcement of such codes, or to take any other action not authorized by the provisions of the said Title I of the National Industrial Recovery Act as amended." The executive order reorganizing the National Recovery Administration, approved by the President on June 15, 1935, authorizes the Administrator "to appoint, employ, discharge and fix the compensation, define the duties, and direct the conduct of such officers and employees as may be necessary for such administration." The order establishes a Division of Review which "shall assemble, analyze, and report upon 11 the statistical information and records of experience of the operations of the various trades and industries heretofore subject to codes of fair competition, shall study the effects of such codes upon trade, industrial and labor conditions in general, and other related matters, shall make available for the protection and promotion of the public interest an adequate review of the effects of the administration of Title I of the National Industrial Recovery Act, and the principles and policies put into effect thereunder, and shall otherwise aid the President in carrying out his functions under the said Title." The order also establishes a Division of Business Cooperation, the function of which shall be "to aid in the voluntary maintenance by trade and industrial groups of standards of fair competition, in the elimination of unfair competition in the employment of labor or in trade practices, and in maintaining sources of information and records of experience useful in the work of the Division of Review, and to otherwise assist in effectuating, so far as possible, the policies of the National Industrial Recovery Act as amended." The order directs the Administrator to "proceed forthwith to reduce as rapidly as possible the number of persons now employed in the administration of Title I of the National Industrial Recovery Act to the number necessary to perform the duties of such Administration as herein, or hereafter, prescribed, and in so doing he shall make proper provision for the allowance of accumulated leave for employees entitled thereto, facilitate the transfer of employees whose services may be desired by other agencies or departments of the Government, and protect the continuity of the administration for its future usefulness in effectuating the policies and purposes of Title I of the National Industrial Recovery Act as amended." The order also establishes an Advisory Council in aid of the National Recovery Administration. Resettlement Administration A phase of the work-relief program which promises to attract much attention during the coming months is that assigned to the Resettlement Administration. This agency is one of those created by executive order. Its Administrator is Rexford G. Tugwell, Under Secretary of Agriculture, but it is entirely independent of the Department of Agriculture. It was created by Executive Order No. 7027, approved by President Roosevelt on April 30, 1935. 12 The functions and duties of the Resettlement Administration are prescribed in the executive order as follows: "(a) To administer approved projects involving resettlement of destitute or low-income families from rural and urban areas, including the establishment, maintenance, and operation, in such connection, of communities in rural and suburban areas. "(b) To initiate and administer a program of approved projects with respect to soil erosion, stream pollution, seacoast erosion, reforestation, forestation, and flood control. "(c) To make loans as authorized under the said Emergency Relief Appropriation Act of 1935 to finance, in whole or in part, the purchase of farm lands and necessary equipment by farmers, farm tenants, croppers, or farm laborers." In the executive order the President delegates to the Administrator of the Resettlement Administration powers granted in the Work-Relief Act. Among these powers are the right to appoint without regard to Civil Service laws an unlimited number of officers and employees, to fix their compensation without regard to the Classification Act, to prescribe their duties, responsibilities and tenure, to buy supplies and equipment, to allow travel expenses, to pay rental for buildings in Washington and elsewhere, to purchase, operate and maintain automobiles and to make other expenditures. The executive order also gives authority to the Administrator to acquire, by purchase or by the power of eminent domain, any real property and to improve, grant, sell, lease or otherwise dispose of it. In searching in the Work-Relief Act for specific authority for the type of projects entrusted by executive order to the Resettlement Administration one finds only a general authorization to the President to draw on the fund of $4,880,000,000 "in order to provide relief, work relief and to increase employment by providing for useful projects" together with an allocation of the money in general terms. The allocations which are the basis for the creation of the Resettlement Administration include $500,000,000 for "rural rehabilitation and relief in stricken agricultural areas, and water conservation, trans-mountain water diversion and irrigation and reclamation" and $350,000,000 for "sanitation, prevention of soil erosion, prevention of stream pollution, seacoast erosion, reforestation, flood control, rivers and harbors and miscellaneous projects." Not all of the projects as listed in these 13 allocations are assigned to the Resettlement Administration, those assigned elsewhere including irrigation and reclamation and river and harbor improvement. Neither in the law nor in the executive order can much information be obtained as to the policy to be pursued on countless matters which might properly call for the judgment of the Congress in specific legislation. It was announced on July 13 that the President had tentatively assigned $91,000,000 to the Resettlement Administration for a nation-wide program of rural rehabilitation and relief in stricken agricultural areas, and that it was contemplated to rehabilitate 300,000 farm families and to transfer 50,000 families to better land. The same announcement told of plans for financing these farm families, for the purchase or lease of land upon which to locate them and for the establishment, maintenance and operation of "agricultural-industrial communities." The extent to which governmental establishment and operation of these communities may savor of Socialism has not been fully developed. In its broad outlines the program tends strongly in this direction. Rural Electrification Administration Executive Order No. 7037, approved by the President on May 11, 1935, establishes an independent agency designated as the Rural Electrification Administration. The Work-Relief Act allocates $100,000,000 for rural electrification. The executive order prescribes the duties and functions of this administration as follows: "To initiate, formulate, administer, and supervise a program of approved projects with respect to the generation, transmission, and distribution of electric energy in rural areas." The Administrator of the Rural Electrification Administration under the executive order is given power to establish a payroll and make other expenditures with the same absence of restriction as the Resettlement Administration. There is a proviso which does not appear in the executive order relating to the Resettlement Administration that "insofar as practicable, the persons employed under the authority of this executive order shall be selected from those receiving relief." The Rural Electrification Administration has authority under the executive order to buy, sell and lease real estate and to exercise the power of eminent domain. 14 The rural electrification program threatens an active competition by the Government with the private utility industry. No rules are laid down either by law or in the executive order to control or restrict this new governmental activity. Other Work-Relief Agencies Executive Order No. 7034, approved by the President on May 6, 1935, sets up three agencies for the general supervision of the work-relief program. One is the Division of Applications and Information of the National Emergency Council. Another is the Advisory Committee on Allotments. The third is the Works Progress Administration. There is no suggestion of any of these agencies in the Work-Relief Act. The executive order provides that the Division of Applications and Information shall receive all applications for projects and after examination transmit them to the Advisory Committee on Allotments which in turn will make recommendations to the President. To the Works Progress Administration is assigned the task of executing the work-relief program. Within such amounts as may be allotted by the President, the three agencies are authorized to appoint officers and employees and make other expenditures. The National Emergency Council, under which is located the Division of Applications and Information, was created originally by an executive order based on three different laws, the National Industrial Recovery Act, the Agricultural Adjustment Act and the Federal Emergency Relief Act of 1933. In that order it is stated that the Congress has declared the existence of an acute national economic emergency which affects the public interest and welfare. It is deemed expedient and necessary, the order says, that an organization be created to coordinate and make more efficient and productive the work of the numerous agencies established under the three laws in question. Upon the expiration of the National Industrial Recovery Act the legal basis for the Council was shifted to the Work-Relief Act. National Youth Administration Executive Order No. 7086, approved by the President on June 26, 1935, establishes the National Youth Administration under the Works Progress Administration. 15 The functions and duties of the National Youth Administration are prescribed in the order as follows: "To initiate and administer a program of approved projects which shall provide relief, work relief and employment for persons between the ages of sixteen and twenty-five years who are no longer in regular attendance at a school requiring full time, and who are not regularly engaged in remunerative employment." The executive order provides for a National Advisory Committee and an Executive Committee and gives authority to an Executive Director to appoint officers and employees without regard to Civil Service laws and to make expenditures for supplies and equipment and other purposes. Control over Wages Executive Order No. 7046, approved by the President on May 20, 1935, prescribes rules and regulations relating to wages, hours and conditions of employment under the Work-Relief Act. The order applies to projects financed in whole or in part by work-relief funds. Labor conditions are controlled on state and local projects as well as on those of a strictly Federal character. The President thus exercises a very definite influence with respect to labor conditions over which the Federal Government has no control under the Constitution. The Work-Relief Act authorizes the President to determine for each state the hours of work and the rates of wages to be paid to skilled, intermediate, and unskilled labor. In the executive order the President has fixed a schedule of monthly compensation ranging from $19 to $55 for unskilled work, from $27 to $65 for intermediate work, from $35 to $85 for skilled work and from $39 to $94 for professional and technical work. The wages are graduated on a basis of a classification based both on geographical areas and population. The order limits hours of work to eight hours a day and 130 hours a month for manual labor, and eight hours a day and forty hours a week for clerical and other non-manual employees. Child Labor is prohibited. Public Works Administration Executive Order No. 7064, approved by the President on June 7, 1935, authorizes the Public Works Administration to continue to perform functions under Title II of the National Indus- 16 trial Recovery Act and also to perform additional functions under the Work-Relief Act. Under the new powers delegated by the President, the Public Works Administration may make loans or grants to the states, municipalities and other public bodies for work-relief projects and carry out projects for slum clearance and low-cost housing. Among other powers conferred upon the Public Works Administration by the order is the right to acquire real estate by purchase or by the power of eminent domain and to sell or lease it. Such a grant of authority to condemn property for other than public use is unconstitutional according to an opinion by the United States Circuit Court of Appeals at Cincinnati on July 15, 1935. National Resources Committee Executive Order No. 7065, approved by the President on June 7, 1935, creates a National Resources Committee. In earlier years the Congress considered various bills to establish planning boards, most of them being rejected. Under this executive order such a board is set up without the specific authority of law. The National Resources Committee succeeds the National Resources Board created under the National Industrial Recovery Act. The order is based on the Work-Relief Act and states that the purpose is "to provide a means of obtaining information essential to a wise employment of the emergency appropriation made by said act." The functions and duties of the Committee as prescribed in the order are to make recommendations to the President with respect to a planned development and use of land, water and other national resources, to consult and cooperate with agencies of the Federal Government and with the states and municipalities and to act otherwise in an advisory capacity. Like other agencies created by executive order, the National Resources Committee is given authority to appoint officers and employees without regard to Civil Service laws and to fix their compensation without regard to the laws applying to salaries of employees of the regular departments and boards of the Government. The Committee is given authority to make expenditures for various purposes within such amounts as may be allocated by the President. Export-Import Banks Among new agencies created by executive order under the National Industrial Recovery Act are two export-import banks, one of which was intended to finance trade with Soviet Russia and the other to finance trade with other countries. The executive orders creating these institutions refer not only to the National Industrial Recovery Act but to the Reconstruction Finance Corporation Act of 1932 and the Bank Conservation Act of 1933. These banks are engaged in banking activities for which there is no specific authority in law. Executive Order No. 6581, approved by the President on February 2, 1934, authorizes the formation under laws of the District of Columbia of a banking corporation to be known as the Export-Import Bank of Washington. The preamble of the order states that the Congress has declared the existence of a national emergency by reason of widespread unemployment and disorganization of industry and has held it to be its policy to remove obstacles to the free flow of interstate and foreign commerce, to provide for the general welfare by promoting the fullest possible utilization of the productive capacities of industries, to reduce and relieve unemployment, to improve standards of labor and otherwise to rehabilitate industry. The order declares it to be expedient and necessary that a banking corporation be organized with power to finance and to facilitate exports and imports and the exchange of commodities between the United States and other nations. Commodity Credit Corporation The Commodity Credit Corporation is one of a group of corporations formed by the Government under the laws of Delaware for the purpose of engaging in various activities for which there is no direct authority in law. The formation of the Commodity Credit Corporation was authorized in an executive order approved by the President on October 16, 1933. The preamble of the order states that the Congress has declared the existence of an acute emergency by reason of widespread distress and unemployment, disorganization of industry and the impairment of the agricultural assets supporting the national credit structure, all of which affects the national public interest and welfare. The order recites that to meet the emergency, the Congress had enacted the Agricultural Adjustment Act, the National Industrial Recovery Act, the Federal Emergency Relief Act of 1933, the Reconstruction Finance Corporation Act, the 18 Federal Farm Loan Act, the Farm Credit Act, and the Emergency Relief and Construction Act of 1932. As a means of carrying out the provisions of these acts effectively and efficiently, the order declares it to be expedient and necessary that a corporation be organized with powers and functions suitable to accomplish the purposes of the acts. The certificate of incorporation filed with the State of Delaware on October 16, 1933, discloses an amazing list of powers for which no specific authority can be found in law. Although the executive order is based on various emergency laws of a temporary character, the certificate of incorporation states that the corporation is to have perpetual existence. The corporation is authorized to purchase and sell agricultural commodities, to loan and borrow money upon the same, to cooperate in plans for the reduction of agricultural production, to engage in any activity in connection with the production, carrying, snipping, storing, exporting, warehousing, handling, preparing, manufacturing, processing, and marketing of agricultural or other commodities and products thereof, to issue bonds, debentures and other forms of obligations, to borrow money for the purpose of purchasing, storing, handling and processing commodities, to loan money upon notes, warehouse receipts and bills of lading as security, to buy and sell real estate, to enter into contracts of every kind and description for any lawful purpose without limit as to amount, and in general to have all the powers and privileges conferred by the general corporation laws of the State of Delaware. Through the operations of the Commodity Credit Corporation, managed jointly by the Reconstruction Finance Corporation and the Agricultural Adjustment Administration, prices of cotton and corn have been pegged. The fixing of a loan value of cotton above the world market price has been in part responsible for a serious decline of exports and the accumulation of millions of bales in the hands of the Government. The EHFA The Electric Home and Farm Authority is another Delaware corporation authorized by executive order. Executive Order No. 6514, approved by the President on December 19, 1933, set up this agency as a subsidiary of the Tennessee Valley Authority for the purpose of financing retail sales of approved electrical appliances. No authority to create such an agency can be found 19 in the Tennessee Valley Authority Act. The executive order is based on the National Industrial Recovery Act. The order recites the declaration of policy in the National Industrial Recovery Act wherein it is stated to be the purpose to take steps to rehabilitate industry. Citing the fact that the President under the Act is authorized to establish such agencies as necessary, the order holds it to be expedient and essential that a corporation be organized having the powers and functions of a mortgage loan company and such other powers and functions as may be necessary to accomplish the purposes of the Act. The certificate of incorporation filed with the State of Delaware shows that the agency is given broad powers not only to conduct banking operations, including the issuance of notes, bonds and debentures, but also to go into the manufacturing and merchandising business and to buy and sell real estate. The charter further permits the corporation to "do all and everything necessary, suitable and proper for the accomplishment of any of the purposes of any of the objects or the furtherance of any of the powers herein set forth." While the charter of the Commodity Credit Corporation provides for perpetual existence, that of the Electric Farm and Home Authority, authorized by an executive order predicated upon a two-year statute, is for a period of seven years. The Silver Purchase Order The executive order of December 21, 1933, for the purchase of all newly mined domestic silver is an example of the use of general authority to accomplish something actually disapproved by Congress. The order is based on the Thomas Inflation Amendment to the Agricultural Adjustment Act. In that amendment is a clause authorizing the President to establish bimetallism. The executive order technically provides for free coinage of newly mined domestic silver at a ratio of 16 to 1 based on the old value of gold but provides that the Treasury shall retain 50 per cent of the silver as seigniorage. This executive order was a device designed to make unnecessary ratification by the Congress of the silver agreement with other nations approved at London in July, 1933. It had been supposed that Congressional action would be necessary. No silver purchase program of this character had been discussed in connection with the Thomas Inflation Amendment. In fact, the Congress in 20 several earlier sessions had again and again refused to approve bills for the purchase of silver. Constitutional Limitations The Supreme Court in its decision rendered on January 7, 1935, in the Panama Refining Company case, the so-called "hot oil" case, attempted to lay down a rule to govern the relations between the Legislative and Executive branches of the Government. In that decision, in which it was held that executive orders issued under the oil section of the National Industrial Recovery Act and regulations issued thereunder by the Secretary of the Interior were "without constitutional authority," the Court said: "The Constitution provides that 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Art. I, Sec. 1. And the Congress is empowered 'To make all laws which shall be necessary and proper for carrying into execution' its general powers. Art. I, Sec. 8, par. 18. The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. But the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained." The examples of executive orders which have been cited show clearly a usurpation of legislative power. By no stretch of the imagination can many of these orders be regarded merely as ministerial acts in execution of laws enacted by the Congress. Policies are involved which under the principles of democracy should be passed upon by the Congress, members of which reflect the varying viewpoints of citizens of different 21 areas and schools of thought. So long as the judgment of the entire membership of the Congress is applied to important questions a balance will be maintained in the public interest. It is contrary to our scheme of government to place supreme power in the hands of a single individual as has been done in European countries where parliamentary bodies have become nonentities. Encroachment by the Executive upon legislative prerogatives, in violation of the letter or even of the intent of the Constitution, smacks of autocracy and despotism. It is subversive of popular government.