President Bill Clinton may be able to satisfy some campaign promises by working with Congress to pass legislation. Other parts of his agenda, however, can be met by administrative actions—by issuing proclamations, generally covering foreign affairs, and executive orders, usually relating to the operation of government agencies. Presidents have also resorted to secret directives. Although the Constitution places the legislative power in Congress, the President’s lawmaking role is substantial, persistent and in many cases disturbing. On occasion Congress and the courts have intervened to curb it.

The first venture into presidential lawmaking occurred in 1793, when the Washington administration debated the merits of proclaiming America’s neutrality in the war between England and France. In English law, proclamations had been used to give public notice of anything the king thought fit to advertise to his subjects. The issue was a delicate one for the Washington administration. Would a proclamation encroach on the power of Congress to decide questions of war and peace? George Washington asked his Cabinet whether he should call Congress back in special session, but they advised against it.

Instead, the administration turned to the judiciary. On April 9, 1793, Secretary of the Treasury Alexander Hamilton wrote to Chief Justice John Jay, asking, "Would not a proclamation prohibiting our citizens from taking commissions on either side be proper?" Jay responded two days later, supplying a draft of language that included authority for officials to punish anyone who violated the proclamation. Two weeks later, Washington issued his proclamation which differed substantially from Jay’s draft. Relying for authority on the "law of nations," he warned Americans to avoid any involvement in the war. No one who provided assistance to foreign powers would receive U.S. protection against punishment by other countries. He instructed law officers to prosecute all persons who "violate the law of nations with respect to the powers at war, or any of them."

The next month in a charge to a grand jury in Richmond, Virginia, Jay voiced support for Washington’s policy. In July, however, when Secretary of State Thomas Jefferson gave him a list of 29 questions relating to the laws of neutrality, Jay ceased cooperating. On August 8, the Chief Justice and his colleagues wrote to Washington explaining that there were strong arguments "against the propriety of our extra-judicially deciding the questions alluded to." The President is expressly authorized under the Constitution to call on the heads of the executive departments for opinions on policy matters, they pointed out. This letter established the Court’s position against giving nonbinding advisory opinions.

Meanwhile, in response to legal attacks, Hamilton, using the pseudonym "Pacificus," wrote a spirited defense of Washington’s proclamation. He denied that the proclamation lacked proper authority and dismissed the claim that it conflicted with America’s treaty with France. The management of foreign affairs, he argued, was vested in the President, who is "the organ of intercourse between the nation and foreign nations [and] the interpreter of the national treaties." To say the proclamation represented the enactment of new law was "entirely erroneous," Hamilton insisted. It only announced a fact and informed citizens of what previous laws required.

Outraged by this argument, Thomas Jefferson urged James Madison to reply. "For God’s sake, my dear Sir, take up your pen, select the most striking heresies and cut him to pieces in the face of the public." Madison complied. In a series of essays signed "Helvidius," he criticized Hamilton for borrowing a theory of government from British royal prerogatives. Under Hamilton’s theory of executive power, Madison warned, "no citizen could any longer guess at the character of the government under which he lives."

Washington’s attempt at lawmaking contained a built-in limitation: enforcing the proclamation proved difficult. When Gideon Henfield was prosecuted for violating the proclamation, he was acquitted; the jurors did not like convicting someone for a crime established only by a proclamation. With no statute to cite, the government dropped other prosecutions. When Congress returned in December, Washington addressed the two houses, saying that it rested with "the wisdom of Congress to correct, improve, or enforce" the policy his proclamation had established. It would be expedient "to extend the legal code" and the jurisdiction of federal courts in order to have effective enforcement, he added. In short, he needed law from the legislative branch. Congress responded by passing the Neutrality Act of 1794, giving the administration the firm legal footing it needed to prosecute violators.

No major use of presidential legislation occurred until nearly 70 years later, after the firing on Fort Sumter on April 12, 1861, provoked a national emergency. With Congress again out of session, Abraham Lincoln took a number of extraordinary actions that had all the characteristics of lawmaking. He issued proclamations calling forth state militias, suspending the writ of habeas corpus and placing a blockade on the rebellious states. Like Washington, Lincoln was uncertain about the legality of his actions and decided to ask Congress for legislation. When Congress returned in July, he explained that his actions, "whether strictly legal or not, were ventured upon under what appeared to he a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them."

Lincoln’s argument is intriguing: his actions, he said, were not "beyond the constitutional competency of Congress." Through such artful language he conceded that he might have usurped congressional powers, and for that reason asked Congress to authorize the actions he had taken. Congress debated his proposal at length, eventually passing legislation "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States."

Lincoln’s proclamation emancipating the slaves evolved with congressional support. Beginning in the spring of 1862, Congress passed a number of statutes directed against slavery. On April 10, in response to Lincoln’s suggestion, it passed a joint resolution that offered financial compensation to states that adopted the gradual abolishment of slavery. On April 16 it abolished slavery in the District of Columbia, on June 19 it prohibited slavery in the territories, and on July 17 it freed slaves from those who committed treason or incited or engaged in rebellion or insurrection against the United States.

Five days later Lincoln drafted the Emancipation Proclamation, relying on the July 17 statute for authority. But in stating that the war would be prosecuted toward the goal of gradually abolishing slavery—rather than preserving the Union—he relied on executive authority. The proclamation said that as "a fit and necessary military measure" for ending slavery, Lincoln would as commander in chief of the Army and Navy order and declare that on January 1, 1863, all slaves in rebellious states "shall then, thenceforward, and forever, be free."

On September 22, when Lincoln published what is called the Preliminary Emancipation Proclamation, he did so under his authority as commander in chief, although toward the end of the proclamation he "calls attention" to previous congressional statutes on the subject of abolishing slavery. The final Emancipation Proclamation, however, issued January 1, 1863, made no mention of congressional statutes and was grounded entirely on the President’s power as commander in chief. At its close Lincoln said he regarded the proclamation "sincerely to be an act of justice, warranted by the Constitution, upon military necessity."

Both Washington and Lincoln understood that their initiatives in lawmaking depended on congressional and public support. Each pressed his case to the edge, and if it appeared that Lincoln had overreached his powers, he explained the reasons for his action to Congress and asked for sanction by law.

This respect for congressional power changed. In the ensuing years there were repeated skirmish- ings between Presidents and Congress over administrative lawmaking. The national government became more active in regulating economic life, prompting greater reliance by Presidents on executive orders and proclamations. When Presidents threatened legislative prerogatives, however, Congress could always retaliate with statutory remedies.