HOUSE No. 6557 Gtbe C:ommonbJealtf of mallatbultttl LEGISLATIVE RESEARCH COUNCIL Report Relative to GUBERNA TORIAL EXECUTIVE ORDERS FOR SUMMARY, SEE . TEXT IN BOLD FACE TYPE April 3, 1981 HOUSE -- No. 6557 (April atbe ommontutaltb of. ma1(1(atbu.dt. ORDER AUTHORIZING STUDY (House. No. 6782 of 1980) Ordered, That the Legislative Research Council be authorized and directed to make a study and investigation of the constitutional and statutory authority of the governor to issue executive orders having the force of law; and that said Council fie its statistical and factual report hereunder with the Clerk of the House of Representatives on or before the last Wednesday of February in the year nineteen hundred and eighty-one. Adopted: the House of Representatives, June 27, 1980 By the Senate, in concurrence, June 30, 1980 . .....,.. .. .. .. .. .. .. ... ... .. .. .... .. .. .. .......... .......... ......... .. .. .. ..... .. .. .".. 1981) HOUSE - No. 6557 CONTENTS Page \Order Authorizing Study Letter of Transmittal to the Senate and House of Representatives letter of Transmittal to the Legislative Research Council Summary of Report PTER I. INTRODUCTION. Legislative Study Directive. Gubernatorial Executive Orders Defined Study Procedure. CHAPTER II. BRITISH AND COLONIAL ORDERS IN COUNCIL. Writs and Orders in Council Under British Law . 24 Roots of American Practice in British Law . Wri s ........................... 24 Orders in Council . 25 Executive Orders of Colonial Governors of Massachusetts Merged Legislative, Executive and Judicial Powers . 26 Executive Orders of Governor and Council. HAPTER II. SETTS GROWTHGOVERNOR OJ: AUTHORITY SINCE OF MASSACHU- 1780 General Aspects Constitutional Authority Shared Between. Governor and Executive Council Constitutional Status and Authority of lieutenant- Governor rwentieth Century Strengthening of the Governorship . 32 Growth of Governor s Supervisory Responsibilties .APTERn. CONSTITUTIONAL BASES OF GUBERNA- rORIAL EXECUTIVE ORDERS IN MASSACHUSETTS ilence of Constitution on Gubernatorial Executive Orders . 34 uthority of Governor as Supreme Executive Magistrate Constitutional Provisions Inherent Powers of Governor as Stipreme Executive Magistrate. Separation of Powers Aspects . 39 1973 Opinion of Attorney General re Executive order No. 74 . 41 . .. .. .. .. .. ...... ..... ... .. .. ... .. ... .. ......... ...' : .... ........... ... ....".. ..'.. .. .. .. ..... ........ .... .,, .. ...'.: , HOUSE - No.. 6557 (April CONTENTS (Continued) Page The Governor as the Agent of the .Legis1ature . 46 Duty of the Governor to Enforce the Laws . 49 Enforcement of State and Federal Laws . 49 Gubernatorial Executive Orders and Federal Aid Funds - Suspension of Laws by Gubernatorial Executive Order . 51 Constitutional Provision Roving Commission Prohibition . 51 MBTACasesofI979- Executive Reorganization Powers of Governor . 54 War Powers of the Governor . 55 State Constitutional Pr,?visions . f . - . 55 Federal Constitutional Provisions . 57 Attorney General's Advisory Opinions of 1943 Rulings of Supreme Judicial Court . 59 CHAPTER V. STATUTORY BASES OF GUBERNATORIAL EXECUTIVE ORDERS IN MASSACHUSETTS . 61 Statutory Bases Generally Ceremonial Proclamations and Executive Orders. Early War Power Acts of 1917-45 . 63 Civil Defense Act of 1950 and Related Statutes . 64 Civil Defense Act of 1950 Emergency Finance Act of 1951 .. 7 J Forestry Laws Statutes Relating to Labor-Management Disputes. 72 Slichter Act . 72 MDT A Statute. ' 74 Statutory Authority of Governor re Executive. Branch Organization. 75 State Administrative Procedure Act Aspects . 77 APTER VI. OTHER ASPECTS OF GUBERNATORIAL EXECUTIVE ORDERS IN MASSACHUSETTS Number and Subject Matter 18.0 Number of Executive Orders . '80, Subject Matter of Executive Orders Sic Formulation of Gubernatorial Executive Orders . , . 8 Procedural Aspects. 8 Format of Gubernatorial Executive Orders l SS Special Problems Posed by Certain Gubernatorial Exective Orders. .- .. ... ..... .. ;'.. .. ... ... ..-. .... ... .. ... ... .. .. ..... ... .. .. .. .... .. .... .. .. 1981) HOUSE - No. 6557 CONTENTS ( Continued) Page CHAPTER VII. GUBERNATORIAL EXECUTIVE ORDERS IN OTHER STATES . 89 State Practic Generally . 89 Variety of Authority . 89 State Constitutional Provisions State Statutory Provisions Statutory Procedural Standards re GubernatQrial Executive Orders. - . 94 State Practices Generally . 94 Executive Order Statute of Idaho . 98 Executive Order Statute of Minnesota State Judicial Case law re Gubernatorial Execulive Orders . 100 Sparse Nature of State Judicial Case Law . 100 Judicial Case Law in 21 States . 100 CHAPTER VIII. EXECUTIVE ORDERS OF lHE PRESIDENT OF THK t!NITED STATES . 110 Constitutional and Historical Background . 110 Constitutional Background . 110 Historical Background - . J 13 Judicial Treatment of PEOs .. 115 PEO Procedure . 117 Initiation ot PEOs . 117 Procsing by Offce of Management and Budget . 1/7 Processing by pepartment of Justice 119 Subsequent Processing . 120 Proclamations . 120 . Attorney General Opinion of 196 . 12 J Congressional Oversight . 121 TABLE I. Number and Subject Mauer of Gubernatorial Executive Orders in Massachusetts . 82 . .. .. ...,. .. .. .... .. HOUSE - No. 6557 (April APPENDICES Page A. INDEX OF MASSACHUSETTS GUBERNATORIAL EXECUTIVE ORDERS, 1941-80 . 123 B. EXECUTIVE ORDER OF PRESIDENT JOHN F. KENNEDY RELATIVETO THE PREPARATION, PRESENTATION FlLlNG AND PUBLICATION OF PRESIDENTIAL EXECUTIVE ORDERS AND PROCLAMATIONS . 154 C. SELECTED BIBLIOGRAPHY OF DOCUMENTS RELATIVE TO EXECUTIVE ORDERS ' 158 D. GUBERNATORIAL CEREMONIAL PROCLAMATIONS REQUIRED BY THE MASSACHUSETTS GENERAL LAWS . 163 19811 HOUSE - No. 6557 Q;fJe mmontDt.ltb of _._.atfu.ett1t LETTER OF TRANSMITTAL TO THE SENATE AND HOUSE OF REPRESENTATIVES To the HOllorable Senate and House of Representatives: LADIES AND GENTLEMEN: - In compliance with the legisla- tive directive in House, No. 6782 of 1980, the Legislative Research Council submits herewith a report prepared by the legislative Re- search Bureau relative to the constitutional and statutory authority of the Governor to issue executive orders having the force of law. The Legislative Research Bureau is restri ted by statute 10 "sta- tistical research and fact-finding." Hence, this report. contains only ctual matc:rial without recommendations or legislative proposals by that Bureau. It does not necessaFilyreflect the opinions of the under- si ned members of tbe Legislative Research Council. Respectfully submitted, HE LEGISLATIVE RESEARCH COUNCIL Sen. ANNA P BUCKLEY of Plymouth Chairman Rep. MICHAEL J. LOMBARDI of Cambridge. House Chairman Sen. JOSEPH B. WALSH of Suffolk Sen. JOHN F. PARKER of Bristol Sen. ROBERT A. HALL of Worcester Rep. WILLIAM P NAGLE, JR. of Northampton ep. IRIS K. HOLLAND of Longmeadow ep. SHERMAN W. SALTMARSH, JR. of Winchester- ep. BRUCE.N. FREEMAN of Chelmsford Rep. CHARLESN. DECAS of Wareham HOUSE - No. 6557 (April Q;be €ommonhJealtf of mat(.atbugtttt( LETTER OF TRANSMITTAL TO THE lEGISLATIVE RESEARCH COUNCIL To the Members of the Legislative Research Council: LADIES AND GENTl,EMEN: - The joint .order House, No. 6782 of 1980, reprinted on the inside of the front cover of this report, directed the Legislative Research Council to study and investigate the constitutional and statutory authority of the Governor to issue execu- tive orders "having the force of law. The Legislative Research, Bureau submits such a report herewith. Its scope and. content have been circumscribed by statutory provisions which limit Bureau output to factual reports, without recommenda- tions by the Bureau. The preparation of this report was the primary responsibility of James Hugh Powers of the Bureau staff. Respectfully submitted, DANIEL M. O' SULLJVAN, Director Legislative Research Bureau HOUSE - No. 6557 ( April protocols which become tbereby a part of the "supreme law of the land"; su(h proclamations activate international agreements of lesser stature, such as .executive agreements on foreign trade matters. British and Colonial Origins of the Gl,bernatorial Executive Order. Although the use of executive orders by Massachusetts governors on a formal, systematicbasis\ is a relatively recent development in this century, the gubernatoril executive order has ancient legal origins tracing .baek to the "writs" issued by Anglo-Saxon monarchs of Eng- land, and to "Orders in C()uncil" which have been used in Engblnd since the Middle Ages. '1 . Originally, these bltier orders were forinulatedhythe EngUshmo- narch, with the advice otbis Privy Council, a b04y comOsd of leading nobles and tbe king s chief mim ters. With the evolution: of parliamentary lovemment:after the downfall of James Uin)6S9, Prime Minister and his Cabinet ilcersbecame members of., and the controllin force in the Prv)' unil, as tbe' mODcb' s role declined to. .lorm8lit,. Orders in Co nei enttdl an exereiseofthe inhertnt legilative and executive puwers of the CrOWD. derived from Briti common law, and have been used as directives to adrrimstrative alld judicial authoriti4s fortbe execution of policies otthe British Goverll ment and for tbe administrative implementation of laws enadedby Parliament. The American Colonists. were familiar with Order in Council their uses, and adapted this form of executive order. to their own political system, in the for.. of orders issued by the colonial governors by and with the advice and consent" of a governor s (executin) council. With modifications reflecting the Separation of Powers Doe- trine, these practices werecarriecJ