Page:CRS Report 95-772 A.djvu/20

CRS-20

Executive Orders vs. Presidential Memoranda
Another executive tool which has raised many questions is the presidential memoranda. Although they possess a different title than executive orders, it appears as though these instruments are very much alike. Both are undefined, written instruments by which the President directs, and governs actions by, Government officials and agencies. They differ in that executive orders must be published in the Federal Register whereas presidential memoranda are similarly published only if the President determines that they have “general applicability and legal effect.” If issued under a valid claim of authority and published, executive orders and presidential memoranda have the force and effect of law and courts are required to take judicial notice of their existence. In at least one instance, a federal district court seemed to use the two terms interchangeably. In Lower Brule Sioux Tribe v. Deer, the court, in describing how a particular presidential memorandum did not create an enforceable duty to permit a private right of action, referred to executive orders needing specific foundation in order to be judicially enforceable in private civil suits. This usage implies that the two terms are similar, if not identical. One may say that the difference between executive orders and presidential memoranda may be, similar to executive orders and proclamations, one more of form than of substance.

This proposition may best be demonstrated in the uses of presidential memoranda. One example is the use of a type of presidential memorandum called a “presidential determination.” Typically, a presidential determination is made in order to satisfy a statutory requirement that a certain event or action has occurred or a condition has been met. The determination often acts as the President's way of notifying Congress of such satisfaction. For example, President Clinton's most recent determination, based on section 614(a)(1) of the Foreign Assistance Act of 1961, was that “it is important to the security interests of the United States to furnish funds [from the] Nonproliferation, Anti-terrorism, Demining and Related Programs