Legal Effectiveness of a Presidential Directive, as Compared to an Executive Order

Opinion

Legal Effectiveness of a Presidential Directive, as Compared to an Executive Order

A presidential d irective has the sam e substantive legal effect as an executive order. It is the substance o f the presidential action that is determ inative, not the form o f the docum ent conveying that action.

Both an executive order and a presidential directive rem ain effective upon a change in adm inistration, unless o therw ise specified in the docum ent, and both continue to be effective until subsequent presidential action is taken.

Ja n u a ry 2 9, 2 0 0 0

M em orandum O p in io n fo r t h e C ou n sel t o th e P r e s id e n t

You have asked our opinion whether there is any substantive legal difference between an executive order and a presidential directive. As this Office has consist­ ently advised, it is our opinion that there is no substantive difference in the legal effectiveness of an executive order and a presidential directive that is styled other than as an executive order. We are further of the opinion that a presidential direc­ tive would not automatically lapse upon a change o f administration; as with an executive order, unless otherwise specified, a presidential directive would remain effective until subsequent presidential action is taken.

We are aware of no basis for drawing a distinction as to the legal effectiveness of a presidential action based on the form or caption of the written document through which that action is conveyed. Cf. Memorandum for Harold Judson, Assistant Solicitor General, from William H. Rose, Re: Statement o f Policy Regarding Certain Strategic M aterials (Aug. 28, 1945) (concluding that a letter from. President Roosevelt stating the government’s policy “ constitute[d] a Presi­ dential directive having the force and effect of law,” notwithstanding its infor­ mality of form). It has been our consistent view that it is the substance of a presi­ dential determination or directive that is controlling and not whether the document is styled in a particular manner. This principle plainly extends to the legal effectiveness of a document styled as a “ presidential directive.”

Moreover, as with an executive order, a presidential directive would not lose its legal effectiveness upon a change of administration. Rather, in our view, because a presidential directive issues from the Office of the Chief Executive, it would remain in force, unless otherwise specified, pending any future presi­ dential action. Cf. Memorandum for Michael J. Egan, Associate Attorney General, from John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel, Re: P roposed Amendments to 28 CFR 16, Subpart B (Apr. 21, 1977) (raising possible concerns about a proposal to delegate to the Deputy Attorney General certain authorities to invoke executive privilege because such a delegation could potentially be inconsistent with a 1969 Memorandum from President Nixon on executive privilege). Indeed, Presidents have frequently used written forms

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Opinions o f the Office o f Legal Counsel in Volume 24

other than executive orders to take actions that were intended to have effect during a subsequent administration. For example, delegations of presidential authority under 3 U.S.C. §301 have been made pursuant to presidential memoranda.1 See also, e.g., Memorandum Establishing a Federal Energy Management Program, 3 Pub. Papers of Gerald R. Ford 1015 (1976) (including a directive to be carried out for FY 1977).

You have also inquired whether a presidential directive could be published in the Federal Register. It is our understanding that any presidential determination or directive can be published in the Federal Register, regardless of how it is styled. At present, a range of presidential determinations and directives styled other than as executive orders are routinely published in the Federal Register. See, e.g., Presi­ dential Determination Pursuant to Section 2(c)(1) of the Migration and Refugee Assistance Act of 1962, as amended, 64 Fed. Reg. 65,653 (1999); Report to the Congress Regarding Conditions in Burma and U.S. Policy Toward Burma, 64 Fed. Reg. 60,647 (1999) (memorandum directing the Secretary of State to transmit report to Congress). We see no reason to believe that the Federal Register would decline to publish the contemplated directive.2

RANDOLPH D. MOSS

Acting Assistant Attorney General Office o f Legal Counsel

1At various points over time, Presidents have delegated presidential functions both by executive order and by presidential memorandum Compare Delegation o f A uthonty Under Section 1401(b) of the National Defense A uthonzation Act for Fiscal Year 2000 (Public Law 106-^5), 65 Fed. Reg. 3119 (2000), with Exec Order No 10250 (1951), reprinted as am ended in 3 U S C. §301 app (1994) (delegation o f functions to the Secretary of the Intenor).

2 Because the decision w hether an item can be published is made by the Office o f the Federal Register, we would suggest confirm ing this with that office