Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P31 pdf

On appeal by the state of Arizon a, the U.S. Supreme Court reversed, holding that evidence seized in violation of the Fourth Amendment as a result of CLERICAL ERROR need not be excluded from trial. In so holding, the Court emphasized that the Fourth Amendment exists only to guard against unreasonable police intrusions. Accord- ing to the Court, “[The] use of the fruits of a past unlawful search or seizure ‘works no new Fourth Amendment wrong’” (Evans, quoting Leon, quoting United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 [1974]). The good faith exception established in Leon is just one exception that renders the exclusion- ary rule inoperable. Evidence seized by private parties is not excluded from trial if the search was not at the direction of law enforcement officers. If a criminal DEFENDANT testifies in her or his own defense, illegally seized evidence may be used to impeach the defendant’s testimony. Evidence seized in violation of a person’s Fourth Amendment rights may be used in GRAND JURY proceedings and civil proceedings. In a grand jury proceeding, however, illegally seized evi- dence may not be used if it was obtained in violation of the federal wire tapping statute (18 U.S.C.A. §§ 2510 et seq.). Few legal observers express complete satis- faction with the exclusionary rule. Some commentators criticize the Supreme Court for limiting the scope of the rule with the good faith exception. Others co ntend that the rule should be abolished because it impedes law enforc e- ment. Some members of Congress have even proposed legislation to abolish the exclusionary rule in federal court. As of 2009, no such legislation had been adopted. The U.S. Supreme Court has continued to look at the application of the exclusionary rule to various types of searches and seizures. In Florida v. White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed. 2d 748 (1999), the Court gave police more discretion to search and seize without violating the Fourth Amendment’s warrant requirement and thereby triggering the exclusionary rule. In that case, police did not need to obtain a warrant before seizing an automobile from a public place under laws that require forfeiture of property tied to crime. The Court rejected the argument that absent “exigent circumstances,” police must obtain a warrant before seizing property that has been used in violation of the state forfeiture act. The police did possess PROBABLE CAUSE to believe that vehicle itself was contraband under the Florida forfeiture law, the Court said, because the police had earlier witnessed the defendant driving the car to deliver narcotics. The Court also emphasized that the police seized the vehicle from a public area, and thus the warrantless seizure did not violate the defendant’s privacy interests. Finally, the Court underscored the fact that the Fourth Amendment has consistently afforded law enforcement offi- cials greater latitude in exercising their duties in public places. For example, although a warrant presumptively is required for a felony arrest in a suspect’s home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred. In this case, then, the Court said the Fourth Amendment should similarly afford police officers the necessary latitude to seize a vehicle that was contraband in an illegal drug transaction. In a surprising departure from its Fourth Amendment jurisprudence, the Supreme Court ruled that an anonymous tip by itself does not give police officers the authority to STOP AND FRISK a person for a weapon. Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). A police officer may stop and frisk a person for a firearm if the officer reasonably concludes that criminal activity may be contemplated and that the person may be armed and dangerous. However, if the search isbased only on a anonymous tip, the seized weapon may not be offered into evidence, due to the exclusionary rule. The U.S. Supreme Court also invoked the exclusionary rule in Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001). It set out a new rule for police when they want to use new types of ELECTRONIC SURVEILLANCE , including thermal imaging, to examine the inner workings of a home. The Court held that police must apply for a warrant from a court before using a device that can obtain details of a private home that would have been unknowable without physical intrusion. If police fail to secure a warrant, the search will be regarded as “presumptively unreasonable,” and the evidence that the search produced will be inadmissible at trial under the exclusionary rule. The Court noted that the degree of privacy guaranteed by the Fourth Amendment had been affected by technological developments. The question became: “what are the limits upon this power of technology to shrink the realm of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXCLUSIONARY RULE 289 guaranteed privacy?” Individuals had a “mini- mum expectation of privacy” that the interiors of their homes were not subject to warrantless police searches. Thus, the use of “sense- enhancing technology” that could obtain infor- mation that would otherwise only be obtainable by a physical search was a “search.” This meant that any information obtained by the thermal imager was the product of a search, and a search was unreasonable and could only be justified if it was made pursuant to a warrant. In Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L. Ed. 2d 56 (2006), the Supreme Court returned exclusionary-rule jurisprudence to its founding principle by focusing on the original policy justification underlying the rule, namely deterrence of police misconduct. In Hudson,the state of Michigan admitted to violating the knock- and-announce rule governing the length of time police must wait after knocking on a suspect’s door before breaking in to preserve incriminating evidence for trial. However, the state argued that the evidence seized after the illegal entry should still be admissible at trial because the remedy of exclusion would not adequately balance the interests of society in crime prevention and punishment against the need to deter police misconduct. In a 5–4 decision, the Court agreed. The Court first identified the interests protected by the knock-and-announce rule: (1) protection of human life and limb, because an unannounced entry may provoke violence in the form of self- defense by a surprised resident; (2) protection of property by avoidance of forcible entry; and (3) protection of the privacy and dignity of those inside the house. The Court next assumed that exclusion of the evidence seized following the illegal entry would advance the interests underly- ing the knock-and-announce rule. But “what the knock-and-announce rule has never protected,” the Court said, “is one’s interest in preventing the government from seeing or taking evidence described in a warrant,” [and]“since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” Moreover, the Court continued, the exclu- sionary rule has never been applied except where its “deterrence benefits outweigh its substantial social costs.” The costs of applying the exclusionary rule in Hudson, the Court said, were considerable. In addition to the grave adverse consequence that exclusion of relevant incriminating evidence always entails (i.e., the risk of releasing dangerous criminals into society), the Court opined, imposing such a massive remedy for knock-and-announce viola- tions would generate a constant flood of litigation, with defendants claiming law enforce- ment failed to observe the rule. Allowing defendants to follow this path would over- whelm the crim inal justice system with knock- and-announce complaints, the Court con- cluded, and result in a “get-out-of-jail-free card” for untold numbers of defendants. The Court refused to let this happen. FURTHER READINGS “Criminal Procedure.” 1993. Conviser Mini Review. Orlando, FL: Harcourt Brace Jovanovich Legal & Professional Publications. Dery, George M. III. 2009. “Good Enough for Government Work: The Court’s Dangerous Decisions, in Herring v. United States, to Limit the Exclusionary Rule to Only the Most Culpable Police Behavior.” George Mason University Civil rights Law Journal. Fall. Eiben, Valerie L. 1987. “The Good Faith Exception to the Exclusionary Rule: The New Federalism and a Texas Proposal.” St. Mary’s Law Journal 18. Harris, David A. 2009. “How Accountability-Based Policing Can Reinforce—or Replac—the Fourth Amendment Exclusionary Rule.” Ohio State Journal of Criminal Law Fall. Israel, Jerold H., Yale Kamisar, and Wayne R. LaFave. 1993. Criminal Procedure and the Constitution. St. Paul, MN: West. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001). CROSS REFERENCES Criminal Law; Criminal Procedure ; Fruit of the Poisonous Tree; Incorporation Doctrine. EXCLUSIVE Pertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out; debarring from interference or participation; vested in one person alone. Apart from all others, without the admission of others to participation. For example, i f a court has been granted exclusive jurisdiction over cases relating to a particular subject matter, no other court is able to entertain cases concerning that particular subject. EXCLUSIVE AGENCY Grant to an agent of exclusive right to sell within a particular market or area. A contract to give an exclusive agency to deal with property is ordinarily GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 290 EXCLUSIVE interpreted as not precluding competition by the principal generally, but only as precluding him or her from appointing another agent to accomplish the result. The grant of an exclusiv e agency to sell, that is, the exclusive right to sell the products of a wholesaler in a specified territory, ordinarily is interpreted as precluding competition in any form within the designated area. EXCULPATE To clear or excuse from guilt. An individual who uses the excuse of justification to explain the lawful reason for his or her action might be exculpated from a criminal charge. Exculpatory evidence is evidence that works to clear an individual from fault. EXCUSE The explanation for the performance or nonper- formance of a particular act; a reason alleged in court as a basis for exemption or relief from guilt. An excuse is essentially a defense for an individual’s conduct that is intended to mitigate the individual’s blameworthiness for a particu- lar act or to explain why the individual acted in a specific manner. A driver sued for NEGLIGENCE, for example, might raise the defense of excuse if the driver was rushing an injured person to a hospital, or if some unforeseen illness or mechanical failure made safe operation of the vehicle impossible. EXECUTE To complete; to make; to sign; to perform; to do; to carry out according to its terms; to fulfill the command or purpose of. To perform all necessary formalities, as to make and sign a contract, or sign and deliver a note. Execute is the opposite of executory, incomplete or yet to be performed. EXECUTION The carrying out of some act or course of conduct to its completion. In CRIMINAL LAW, the carrying out of a death sentence. The proc ess whereby an official, usually a sheriff, is directed by an appropriate judicial writ to seize and sell as much of a debtor’s nonexempt property as is necessary to satisfy a court’s monetary judgment. With respect to contracts, the performance of all acts necessary to render a contract complete as an instrument, which conveys the concept that nothing remains to be done to make a complete and effective contract. With regard to seizures of property, execu- tions are authorized in any action or proceeding in which a monetary judgment is recoverable and in any other action or proceeding when authorized by statute. For example, the victim of a motor vehicle accident may institute a civil lawsuit seeking damages from another party. If the PLAINTIFF wins the lawsuit and is awarded money from the DEFENDANT as a part of the VERDICT, the court may authorize an execution process to pay the debt to the plaintiff. Ordinarily, executio n is achieved through a legal device known as a writ of execution. The writ serves as proof of the property owed by the defendant, who is called the JUDGMENT DEBTOR,to the plaintiff, or JUDGMENT CREDITOR. The writ of execution commands an officer of the court, usually a sheriff, to take the property of the debtor to satisfy the debt. Ordinarily, a writ of execution cannot be issued until after an appropriate court issues a judgment or decree determining the rights and liabilities of the parties involved. Any type of personal property is subject to seizure under an execution, provided existing laws do not prescribe specific exemptions. Such property may include jewelry, money, andstocks. In most states, real property, including land, is also subject to execution. INTELLECTUAL PROPERTY, which i ncludes patents, copyrights, and TRADE- MARKS , is generally immune to execution. An execution on a judgment is typically issued by the clerk of the court in which the judgment was rendered. The clerk cannot issue an execution unless directed to do so by the judgment creditor or the judgment creditor’s attorney. The time within which an execution must issue varies from one jurisdiction to another. The writ must be delivered to the sheriff or his or her deputy before it can properly be said that the writ has been issued. The levy of the execution is the act by which the officer of the court appropriates the judgment debtor’s property to satisfy the command of the writ. The levy must be made by an officer duly qualified to act under the terms of the writ. In most states, the judgment debtor has the right to select and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXECUTION 291 indicate to the officer the property upon which the levy is to be made. An execution creates a lien that gives the judgment creditor qualified control of the judgment debtor’s property. In most jurisdic- tions, an execution lien binds all property, personal or real, that is subject to levy. It is sometimes called a general lien because it attaches to all the defendant’s property. After the sheriff has levied, it is her or his duty to sell the property seized. An execution sale is a sale of property by a sheriff as an officer acting under the writ of execution. An execution sale should be conducted so as to promote competi- tion and obtain the best price. If necessary, the sheriff can employ an auctioneer as an agent to sell the property, in order to procure the most favorable price and to collect the proceeds. Body Executions Execution against a person is by writ of capias ad satisfaciendum (Latin for “to take the body to court to pay the debt”). Under this writ, the sheriff arrests and imprisons the defendant until the defendant satisfies the judgment or is discharged from doing so. Such an execution is not intended as punishment for failure to pay the judgment. It is permitted for the purpose of compelling the debtor to reveal property fraudulently withheld from his or her creditor and from which the judgment can be satisfied. In most jurisdictions, defendants in lawsuits based on contracts are not subject to body executions unless they have committed fraud. Under the statutes in some jurisdictions, imprisonment for debt has been abolished entirely. Statutes providing for the issuance of body executions to enforce judgmen ts handed down in civil suits ordinarily do not conflict with provisions against imprisonment for debt. Among the civil, or tort, actions in which the writ is generally allowed are those involving fraud or deceit, and those for neglect or misconduct in office or professional employ- ment. A body execution is also generally proper in actions to recover for injuries to person or reputation, including LIBEL AND SLANDER, and in actions to recover for MALICIOUS PROSECUTION. FURTHER READINGS Gridley, Doreen J. 1995. “The Immunity of Intangible Assets from a Writ of Execution: Must We Forgive Our Debtors?” Indiana Law Review 28. Langer, Gary. 2006. “Capital Punishment, 30 Years On: Support, but Ambivalence as Well.” ABC News/ Washington Post Poll: Death Penalty—6/25/06. Available online at http://abcnews.go.com/images/Politics/ 1015a3DeathPenalty.pdf; website home page: http:// abcnews.go.com (accessed September 2, 2009). Masur, Louis P. 1991. Rites of Execution. New York: Oxford Univ. Press. CROSS REFERENCE Capital Punishment. EXECUTIVE BRANCH The branch of the U.S. government that is composed of the president and all the individuals, agencies, and departments that report to the president, and that is responsible for administering and enforcing the laws that Congress passes. The U.S. government is composed of three branches: legislative, judicial, and executive. The legislative branch consists of the U.S. Congress, which is responsible for creating laws. The judicial branch is composed of the federal courts, which are responsible for ruling on the validity of the laws that Congress passes and applying them in individual cases. The executive branch differs from both in scope and function. The Executive Branch and the Constitution The executive branch has undergone tremen- dous changes over the years, making it very different from what it was under GEORGE WASHINGTON . The executive branch in the early twenty-first century is much larger, more complex, and more powerful than it was when the United States was founded. When the writers of the Constitution were initially deciding what powers and responsibili- ties the executive branch—headed by the president—would have, they were heavily influenced by their experience with the British government under King George III. Having seen how the king and other European monarchs tended to abuse their powers, the designers of the Constitution wanted to place strict limits on the power that the president would have. At the same time, they wanted to give the president enough power to conduct foreign policy and to run the federal govern- ment efficiently without being hampered by the squabbling of legislators from individual states. In other words, the Framers wanted to design an executive office that would provide effective GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 292 EXECUTIVE BRANCH and coherent leadership but that could never become a tyranny. The Framers outlined the powers and duties of the executive bra nch in Article II of the Constitution. The specific powers given to the president are few, and the language that is used to describe them is often brief and vague. Specifi- cally, the president has the authority to be commander in chief of the armed forces; to grant pardons; to make treaties; and to appoint ambassadors, Supreme Court justices, and other government officers. More generally, the presi- dent is responsible for making sure “that the Laws be faithfully executed” (§ 3), though the Framers did not specify how the president was to accomplish this goal. The Framers also made no specific provisions for a staff that would assist the president; the Constitution says only that the president may “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices” (§ 2). To ensure that the president could never become too powerful, the Framers made many PRESIDENTIAL POWERS dependent upon the will of Congress. For example, the president is given the power to make treaties with foreign countries, but those treaties must be approved by the Senate by a two-thirds majority. Similarly, the power of Congress is limited by the need for presidential approval. Congress can create laws, but those laws generally must be signed by the president; if the president refuses to sign a bill, it still can become law if Congress votes to override the president’s veto by a two- thirds majority. The Framers did not divide powers among the branches so much as they required the separate branches to share power, resulting in a complex system of checks and balances that prevents any one branch from gaining power over the others. Modern presidents have greater powers than did their predecessors, as the executive branch has grown over the years to take on more tasks and responsibilities. For the most part, however, the power of the executive branch at any given time has depended on the leadership skills of the current president; the particular events and crises faced by the president; and the country’s desire for, or resistance to, strong executive branch power at that point in history. Though the executive branch does have specific legal powers, the principal power of each president is simply that individual’s ability to persuade others—primarily those in Congress—to follow recommendations. Whereas early presidents were selected by a small number of electors, modern presidents are selected by hundreds of electors who represent citizens nationwide; as a result, they have the advantage of a popular mandate, giving them a bully pulpit that no member of Congress can match. Divisions of the Executive Branch The lack of specific, detailed language in the Constitution describing the power and responsi- bilities of the executive branch has given presidents a great deal of flexibility to increase its size and scope over the years, in terms of both the range of its authority and the number of people, offices, and agencies employed to carry out its responsibilities. In the early 2000, the executive branch consists of well over 3 million people who work in one of three general areas: the Executive Office of the President (EOP); the cabinet and 15 executive departments; and an extensive collection of federal agencies and corporations responsible for specific areas of the government, such as the ENVIRONMENTAL PROTECTION AGENCY and the U.S. POSTAL SERVICE. Executive Office of the President The Execu- tive Office of the President (EOP) is not a single office or department, but a collection of agencies that are all directly responsible for helping the president to interact with Congress and to manage the larger executive branch. Specific elements have changed over the years; currently, the EOP consists of nine separate divisions: the White House Office, the OFFICE OF MANAGEMENT AND BUDGET (OMB), the Council of Members of President Barack Obama’s cabinet in September 2009. The cabinet consists of the president, vice president, the heads of the 15 executive departments, and certain other government officials, such as the U.S. ambassador to the United Nations. ª CHUCK KENNEDY/ WHITE HOUSE/ HANDOUT/CNP/CORBIS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EXECUTIVE BRANCH 293 Economic Advisers, the NATIONAL SECURITY COUN- CIL (NSC), the Office of Policy Development, the OFFICE OF THE U.S. TRADE REPRESENTATIVE (USTR), the Council on Environmental Quality, the Office of Science and Technology Policy, and the OFFICE OF ADMINISTRATION. In contrast to modern presidents, early presidents had few people to help them, because the Constitution contained no specific provi- sion or allowance for presidential staff. As a result, presidents became overworked and exhausted. THOMAS JEFFERSON, for example, wrote that the presidency “brings nothing but unceas- ing drudgery and daily loss of friends.” In many cases, presidents used their own money to hire their sons, nephews, or in-laws to work as clerks or secretaries. In 1825, President JAMES MONROE requested that Congress appropriate funds for presidential staff, but Congress was unwilling to spend the money. It was not until 1857 that Congress approved a specific appropriation for the president to hire a private secretary. Throughout the rest of the nineteenth and early twentieth centuries, Congress slowly appropri- ated more money for presidential staff, allowing the president to hire a greater number of secretaries, clerks, and other assistants, such as stenographers and messengers. The crisis of the Great Depression in the 1930s created a need for the presidential staff to be fundamentally reorganized and expanded. Whereas presidents of the nineteenth century had functioned with very limited powers, President FRANKLIN D. ROOSEVELT took on a much stronger role, developing his collection of NEW DEAL programs to try to grapple with the tremendous social and economic problems facing the country. These programs resulted in a much larger and more complex federal bureaucracy that was difficult to manage, leading Roosevelt to create the Committee on Administrative Management, popularly known as the Brownlow Committee. Headed by Louis Brownlow, the task of the Brownlow Commit- tee was to study the organization of the executive branch and to suggest solutions to the problem of administrative management. The Brownlow report, completed in 1937, made several recommendations, including the creation of the Executive Office of the President, which would bring together agencies concerned with executive branch activities, such as budget- ing, efficiency, personnel, and planning. Though Congress rejected other proposals contained in the Brownlow report, it approved the creation of the EOP, by passing the Reorganization Act in April 1939 (3 U.S.C.A. § 106, 31 U.S.C.A. §§ 701, 1101). As a result, key managerial agencies, such as the Bureau of the Budget and the National Resources Planning Board, were moved into the EOP; the benefit of this move was that crucial management functions could be performed by staff working directly under the president, completing the routine tasks necessary for the government to function. Though the specific elements of the EOP have changed since Roosevelt’s presidency, the Brownlow report laid the foundations for the basic administrative structure that allows presidents to manage the numerous and diverse parts of the executive branch. The Cabinet and Executive Departments The cabinet consists of the president, the vice president, the heads of the 15 executive departments, and any other government offi- cials the president wishes to include, such as the head of the OMB or the head of the NSC. In theory, cabinet members serve as expert advi- sers to the president, but in practice they more often operate as advocates for their departments and are seldom involved in actual presidential decision making. The Constitution makes no specific refer- ence to a president’s cabinet; rather, the cabinet is an institution that has evolved over the years. The first executive departments (the Depart- ments of State, War, and the Treasury) were created in 1789 by Washington, who frequently held conferences with their heads (Jefferson, Henry Knox, and ALEXANDER HAMILTON, respec- tively). By 1793 JAMES MADISON was using the term cabinet to refer to these conferences. The name and the institution took hold, and the cabinet became a fixed element of the executive branch. Presidents have used their cabinets in widely different ways. During the nineteenth century, cabinet appointments were often made for political reasons, rathe r than because a presi- dent knew or trusted the particular individuals selected. As a result, some presidents had trouble controlling their cabinet, and others met wit h their cabinet only infrequently. ANDREW JACKSON, for example, virtually ignored his official cabinet in favor of his kitchen GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 294 EXECUTIVE BRANCH cabinet, a close circle of personal friends whom he trusted for information and advice. During the twentieth century, cabinets have most often served as a forum for the president to discuss issues and to collect opinions; rarely, if ever, have they served as a decision-making bod y. Instead, the White House staff members frequently function as primary advisers to the president. The largest organizational units within the executive branch are the 15 executive depart- ments: Agriculture, Commerce, Defense, Edu- cation, Energy, Health and Human Services, Homeland Security, Housing and Urban Devel- opment, Interior, Justice, Labor, State, Trans- portation, the Treasury, and Veterans Affairs. These departments, which vary greatly in size and function, are responsible for administering the great majority of the federal government’s activities and programs. The HOMELAND SECURITY DEPARTMENT is the newest division of the executive branch. This powerful new department was created in November 2002, and its creation was spurred by the September 11th terrorist attacks of 2001. President GEORGE W. BUSH first objected to the idea of establishing this department, but he then became a strong advocate for it. The birth of the department was the largest federal government reorganization since the creation of the DEFENSE DEPARTMENT in 1947. Homeland Security is divided into four divisions: border and trans- portation security; emergency preparedness and response; chemical, biologica l, radiolo gical and nuclear countermeasures; and information analysis and infrastructure protection. Existing agencies that have moved to the new depart- ment are the IMMIGRATION and NATURALIZATION Service, the Coast Guard, Customs, the Border Patrol, the FEDERAL EMERGENCY MANAGEMENT AGENCY , the SECRET SERVICE, the Transportation Security Administration, and the border inspec- tion authority of the Animal and Plant Health Inspection Service. Homeland Security will analyze intelligence from so urces such as the CENTRAL INTELLIGENCE AGENCY, the National Secu- rity Agency, the FEDERAL BUREAU OF INVESTIGATION, the DRUG ENFORCEMENT ADMINISTRATION, the ENER- GY DEPARTMENT , the Customs Service, and the DEPARTMENT OF TRANSPORTATION. Agencies and Corporations The executive branch includes a large number of agencies for which the president is responsible. Some of these agencies functi on independently; others are connected to an executive department but still may function as largely autonomous units. These agencies manage specific areas of govern- ment operations and have little in common except that they lie outside of the traditional management structure of the executive depart- ments. In general, they come in three types: regulatory agencies, independent executive agencies, and government corporations. Regulatory agencies and commissions con- trol certain economic activities and consumer affairs. They include the SECURITIES AND EXCHANGE COMMISSION and the Occupational Safety and Health Administration. Regulatory agencies and commissions are created by Cong ress when members believe that certain economic or commercial activities need to be regulated. They accomplish the task of regulation in various ways, depending on their mandate from Congress. Typical methods of regulation include requiring licensing for specific professions and requiring products to be labeled accurately. Some regula- tory agencies operate independently, some are governed by bipartisan commissions, and some report to an executive department. Independent executive agencies are not part of any executive department; rather, they report directly to the president. These agencies include the National AERONAUTICS and Space Adminis- tration (NASA) and the GENERAL SERVICES ADMIN- ISTRATION . Frequently, Congress makes such agencies independent so that they can operate without the burden of bureaucratic regulations or the influence of particular executive depart- ments. For example, NASA was made an independent agency so that it could be created more quickly, function more freely, and avoid the demands and influence of the DEPARTMENT OF DEFENSE . Government corporations are a unique type of agency in that they function like businesses, providing necessary public services that would be too expensive or unprofitable for private compa- nies to provide. They include the U.S. Postal Service; Amtrak; and the TENNESSEE VALLEY AU- THORITY , which was created to develop electric power in the Tennessee Valley region. Corpora- tions have more independence than do agencies of any other type. The y can buy and sell real estate, and they can sue and be sued. They are not dependent on annual appropriations from Con- gress, and they retain their own earnings. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXECUTIVE BRANCH 295 Congress does provide long-term funding for government corporations, however, so it retains a certain amou nt of control over their operations. FURTHER READINGS Congressional Quarterly. 1997. Cabinets and Counselors: The President and the Executive Branch. 2d ed. Washington, D.C.: Congressional Quarterly. Hart, John. 1995. The Presidential Branch: From Washington to Clinton. New York: Chatham House. Hodgson, Godfrey, ed. 1992. The United States. Vol. 2. New York: Facts on File. Homeland Security and Counterterrorism. Available online at http://www.whitehouse.gov/issues/homeland_security/; website home page: http://www.whitehouse.gov (accessed July 22, 2009). Nelson, Michael, ed. 2005. The Presidency and the Political System. 8th ed. Washington, D.C.: CQ Press. Pfiffner, James P. 2007. The Modern Presidency. Belmont, CA: Wadsworth. Shaw, Malcolm, ed. 1987. The Modern Presidency. New York: Harper & Row. CROSS REFERENCES Administrative Agency; Congress of the United States; Constitution of the United States; Federal Budget; Separa- tion of Powers. EXECUTIVE ORDER A presidential policy directive that implements or interprets a federal statute, a constitutional provision, or a treaty. The president’s power to issue executive orders comes from Congress and the U.S. Constitution. Executive orders differ from presi- dential proclamations, which are used largely for ceremonial and honorary purposes, such as declaring National Newspaper Carrier Apprecia- tion Day. Executive orders do not require congressio- nal approval. Thus, the president can use them to set policy while avoiding public debate and opposition. Presidents have used executive orders to direct a range of activities, including establishing migrato ry bird refuges; putting Japanese-Americans in internment camps dur- ing WORLD WAR II; discharging civilian govern- ment employees who had been disloyal, follow- ing World War II; enlarging national forests; prohibiting racial discrimination in housin g; pardoning VIETNAM WAR draft evaders; giving federal workers the right to bargain collectively; keeping the federal workplace drug-free; and sending U.S. troops to Bosnia. Executive orders often relate to routine administrative matters and to the internal operations of federal agencies, such as amend- ing CIVIL SERVICE Rules and overseeing the administration of public lands. Presidents have also used executive orders to carry out legisla- tive policies and programs. As a result, the executive order has become a critical tool in presidential policy making. For example, Presi- dent JOHN F. KENNEDY used an executive order to eliminate racial discrimination in federally funded housing (Exec. Order N o. 11,063, 3 C. F.R. 652 [1959–1963], reprinted in 42 U.S.C.A. § 1982 app. at 6-8 [1982]); President LYNDON B. JOHNSON acted through an executive order to prohibit discrimination in government contrac- tors’ hiring practices (Exec. Order No. 11,246, 3 C.F.R. 339 [1964 – 1965], reprinted in 42 U.S.C.A. § 2000e app. at 28-31 [1982], amended by Exec. Order No. 11,375, 3 C.F.R. 684 [1966–1970], superseded by Exec. Order No. 11,478, 3 C.F.R. 803 [1966–1970], reprinted in 42 U.S.C.A. § 2000e app. at 31-33 [1982]); and President RICHARD M. NIXON used an executive order to set a 90-day freeze on all prices, rents, wages, and salaries in reaction to rising inflation and unemployment (Exec. Order No. 11,615, 3 C. F.R. 602 [1971–1975], amended by Exec. Order No. 11,617, 3 C.F.R. 609 [1971–1975] , supersed- ed by Exec. Order No. 11,627, 3 C.F.R. 621 [1971–1975]). Most executive orders are issued under specific statutory authority from Congress and have the force and effect of law. Such executive orders usually impose sanctions, determine legal rights, limit agency discretion, and require immediate compliance. Federal courts consider such orders to be the equivalent of federal statutes. In addition, regulations that are enacted to carry out these executive orders have the status of law as long as they reasonably relate to the statutory authority. An admini- strative action that is carried out under a valid executive order is similar to an agency action that is carried out under a federal statute. In each case, the agency’s authority to enact rules and to issue orders comes from Congress. Absent specific statutory authority, an executive order may have the force and effect of law if Congress has acquiesced in a long- standing executive practice that is well known to it. For example, in Dames v. Regan, 453 U.S. 654, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981), the U.S. Supreme Court upheld var ious execu- tive orders that suspended claims of U.S. nationals arising out of the Iranian hostage GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 296 EXECUTIVE ORDER crisis, citing Congress’s acquiesc ence in a 180- year-old practice of settling U.S. citizens’ claims against foreign governments by executive agree- ment. In describing the situation before it, the Court stated, We freely confess that we are obviously deciding only one more episode in the never- ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal and the Constitu- tion under which we all live and which no one disputes embodies some sort of system of checks and balances. Executive orders also may be authorized by the president’s independent constitutional au- thority (Cunningham v. Neagle, 135 U.S. 1, 10 S. Ct. 658, 34 L. Ed. 55 [1890 ]). Various clauses of the U.S. Constitution have been cited to support the issuance of executive orders. Among them are the Vestiture Clause, which states, “The executive Power shall be vested in a PRESIDENT OF THE UNITED STATES of America” (art.II,§1,cl. 1); the TakeCare Clause, which states that the president “shall take Care that the Laws be faithfully executed” (art. II, § 3); and the Commander in Chief Clause, which states that the pre sident “shall be Commander in By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1. Policy. Research involving human embryonic stem cells and human non-embryonic stem cells has the potential to lead to better understanding and treatment of many disabling diseases and conditions. Advances over the past decade in this promising scientific field have been encouraging, leading to broad agreement in the scientific community that the research should be supported by Federal funds. For the past 8 years, the authority of the Department of Health and Human Services, including the National Institutes of Health (NIH), to fund and conduct human embryonic stem cell research has been limited by Presidential actions. The purpose of this order is to remove these limitations on scientific inquiry, to expand NIH support for the exploration of human stem cell research, and in so doing to enhance the contribution of America's scientists to important new discoveries and new therapies for the benefit of humankind. Sec. 2. Research. The Secretary of Health and Human Services (Secretary), through the Director of NIH, may support and conduct responsible, scientifically worthy human stem cell research, including human embryonic stem cell research, to the extent permitted by law. Sec. 3. Guidance. Within 120 days from the date of this order, the Secretary, through the Director of NIH, shall review existing NIH guidance and other widely recognized guidelines on human stem cell research, including provisions establishing appropriate safeguards, and issue new NIH guidance on such research that is consistent with this order. The Secretary, through NIH, shall review and update such guidance periodically, as appropriate. Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (b) Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law to an executive department, agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (c) This order 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. Sec. 5. Revocations. (a) The Presidential statement of August 9, 2001, limiting Federal funding for research involving human embryonic stem cells, shall have no further effect as a statement of governmental policy. (b) Executive Order 13435 of June 20, 2007, which supplements the August 9, 2001, statement on human embryonic stem cell research, is revoked. _____________________________________________________ BARACK OBAMA THE WHITE HOUSE, March 9, 2009. Executive Order For Immediate Release Office of the Press Secretary March 9, 2009 REMOVING BARRIERS TO RESPONSIBLE SCIENTIFIC RESEARCH INVOLVING HUMAN STEM CELLS the President Barack Obama A sample executive order. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EXECUTIVE ORDER 297 Chief of the Army and Navy of the United States, and of the Militia ofthe several States, when called into the actual Service of the United States” (art. II, § 2, cl. 1). Executive orders often omit citations to specific constitutional provision as authority. For example, Executive Order No. 11,246 (3 C. F.R. 339 [1964–1965 Comp.]), which prohibits discrimination in federal employment, simply states, “Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows …” Some executive orders issued pursuant to the president’s independent constitutional au- thority have been criticized as implementing what has been called essentially executive managerial policy. Although this type of order is directed toward public officials, it also may affect private interests, through the actions of such officials. For example, Executive Order No. 11,246, which prohibits discrimination in federal procurement and employment, affects the interests of federal contractors and their employees; Executive Order No. 10,988 (3 C.F. R. 521 [1959–1963 Comp.]), which extends collective bargaining to the federal workforce, affects federal workers; and Executive Order No. 12,291 (3 C.F.R. 127 [1982]), which imposes controls on administrative rule mak- ing, affects individuals who are subject to administrative regulations. Lawsuits that are brought in order to force federal agencies to comply with executive orders are usually dismissed by the courts on the ground that the orders do not provide a CAUSE OF ACTION (i.e., a righ t to judicial relief). For example, in Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir. 1974), low-income minority groups claimed that the GENERAL SERVICES ADMIN- ISTRATION had violated Executive Order No. 11,512 (35 Fed. Reg. 3,979 [1970]) by planning a federal office building without considering the adequacy of low-income hous ing in the area. The federal court of appeals refused to decide the claim because the plaintiffs lacked standing (i.e., a legally protectible interest). In Manhat- tan-Bronx Postal Union v. Gronouski, 350 F.2d 451 (D.C. Cir. 1965), the court denied a claim against the postmaster general for violating Executive O rder No. 10,988 (3 C.F.R. 521 [1959–1963]), because the president had not granted a cause of action. In Independent Meat Packers Ass ’n v. Butz, 526 F.2d 228 (8th Cir. 1975), the appellate court stated that to infer a cause of action would create “a serious risk that a series of protracted lawsuits brought by persons with little at stake would paralyze the rulemaking functions of federal administrative agencies.” Similarly, the courts generally reject claims against private defendants for violations of executive orders. For example, in Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir. 1975), 425 U.S. 943, 96 S. Ct. 1683, 48 L. Ed. 2d 187 (1976), the appellate court denied a professor’s claim against a university to recover damages for SEX DISCRIMINATION in violation of Executive Order No. 11,246, stating that the executive order could not give rise to an independent private cause of action. To have the effect of law, executive orders must appear in the Federal Register, the daily publication of federal rules and regulations. Executive orders are also compiled annually and are published in the Code of Federal Regulations. Selected orders are published with related statutes in U.S. Code Annotated and U.S. Code Service. Executive orders have been used to influ- ence issues in hundreds of areas. War-related activities are among the most frequently addressed. For example, in September 1939 President FRANKLIN D. ROOSEVELT prescribed regulations governing the enforcement of the neutrality of the United States “in the war then being fought between Germany and France; Poland; and the United Kingdom, India, Australia, and New Zealand” (Exec. Order No. 8,233, 4 Fed. Reg. 3,822). By February 1942 the United States had joined World War II, and Roosevelt had ordered the confinement of Japanese-Americans to internment camps fol- lowing the bombing of Pearl Harbor in January 1941 (Exec. Order No. 9,066, 7 Fed. Reg. 1,407). In March 1947, following the war, President HARRY S. TRUMAN established loyalty review boards to discharge civilian government em- ployees who had been disloyal during the war (Exec. Order No. 9835, 3 C.F.R. 627 (1943– 1948), revoked by Exec. Order No. 10,450, 3 C.F. R. 936 (1949–1953). In January 1977, following the Vietnam War, President JIMMY CARTER directed the U.S. attorney general to cease investigating and indicting Vietnam War draft evaders (Exec. Order No. 11,967, 42 Fed. Reg. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 298 EXECUTIVE ORDER . PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EXECUTIVE ORDER 297 Chief of the Army and Navy of the United States, and of the Militia ofthe several. example, virtually ignored his official cabinet in favor of his kitchen GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 2 94 EXECUTIVE BRANCH cabinet, a close circle of personal friends whom he trusted. claims of U.S. nationals arising out of the Iranian hostage GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 296 EXECUTIVE ORDER crisis, citing Congress’s acquiesc ence in a 180- year-old practice of