In 1902, for example, Theodore Roosevelt issued a "gag order" that prohibited employees of the executive departments from seeking to influence legislation "individually or through associations." They could work only through the heads of the departments. Anyone violating this order could be dismissed. In 1909 William Howard Taft issued another gag order. This one prevented government employees from asking any committee of Congress or any member of Congress for legislation, appropriations or action of any kind without the consent and knowledge of the head of their department. Nor could departmental staff respond to requests for information from committees or members except through, or as authorized by, the department head.

Members of both houses saw these gag orders as a threat to their ability to obtain essential information. They feared that congressional committees would hear only the views of cabinet officials, who might suppress information and conceal corruption or incompetence within their agencies. Members wanted the rank-and-file of a department to have direct access to Congress to register complaints about the conduct of their supervisors. Said one congressional critic: "Mr. President, it will not do for Congress to permit the executive branch of this Government to deny to it the sources of information which ought to be free and open to it, and such an order as this, it seems to me, belongs in some other country than the United States."

Language added to an appropriations bill in 1912 nullified the gag orders. In addition to providing procedural safeguards to protect agency officials from arbitrary dismissal, the legislation reads: "The right of persons employed in the civil service of the United States, either individually or collectively, to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with." This language was later placed in the Civil Service Reform Act of 1978 and remains part of permanent law today.

Although Congress stopped Taft on the gag order, he prevailed with proclamations issued to protect the public lands. In 1897 legislation had opened public lands in the West to oil exploration "under regulations prescribed by law" that permitted exploration without payment. Title to extract oil could be obtained for a nominal amount. As a result, large numbers of people settled on these lands and began extracting oil at maximum speed, fearing that entrepreneurs on adjacent lots might be tapping from the same source. Because of the limited supply of coal on the Pacific Coast for the Navy, it appeared that the federal government might have to purchase from the private sector the very oil it had given away.

To prevent further loss of oil, Taft withdrew the disputed lands from private exploration by proclamation, acting on the basis of his power as commander in chief to preserve a source of fuel for the Navy. The case reached the Supreme Court, where affected companies argued that the President could not suspend a statute or withdraw land Congress had thrown open to private exploration. In United States v. Midwest Oil Co. (1915), the Court defended Taft’s action by pointing to 80 years of precedents. Although the number of similar executive actions was uncertain, the Court discovered at least 99 executive orders establishing or enlarging Indian reservations, 109 establishing or enlarging military reservations, and 44 establishing bird reserves. Acknowledging that Taft had acted without statutory authority (in fact against it), the Court said that "nothing was more natural than to retain what the government already owned. And in making such orders, which were thus useful to the public, no private interest was injured." The President, as agent of Congress, was "in charge of the public domain," and his actions had presumptive validity when Congress knew of his initiatives and acquiesced in them. Congress could have repealed Taft’s proclamation at any time, but did not do so until 1976.

Just as the Civil War precipitated presidential lawmaking, so did the economic crisis of the Great Depression. During his first 15 months in office, Franklin D. Roosevelt signed 674 executive orders as part of his administration’s effort to stimulate economic recovery. So many orders were issued that departmental officials were often unaware of their own regulations. At one point the government discovered that it had brought an indictment and taken an appeal to the Supreme Court without realizing that tile portion of the regulation on which the proceeding was based had been eliminated by an executive order.

Congress created the National Recovery Administration (NRA) to obtain from industrial and trade associations a variety of regulations designed to minimize competition, raise prices and restrict production. If the President regarded the codes as unacceptable, he could prescribe his own and enforce them by law. The drafters of the act creating the NRA gave little thought to constitutional questions of excessive delegation of legislative power to the President. Nor did they concern themselves with procedural safeguards to limit arbitrary agency actions. In Panama Refining (1935), the first case questioning the constitutionality of the NRA, the Supreme Court struck down a section of a statute that authorized presidential control over the production of petroleum. The language of the statute, said the Court, gave insufficient standards to guide presidential action. This decision nullified Roosevelt’s executive orders on petroleum production. The rest of the NRA was struck down a few months later in the Schechter Poultry case, with the Court again objecting on delegation grounds. Justice Benjamin Cardozo, who had dissented in the first case, now admitted, "This is delegation running riot."

FDR’s lawmaking in the field of national defense proved more successful. In June 1941, before Pearl Harbor was bombed and America entered World War II, Roosevelt seized an aircraft plant in California by executive order. He based his action on the general powers vested in him "by the Constitution and laws of the United States, as President of the United States of America and Commander in Chief of the Army and Navy of the United States." That year he invoked those same powers to seize a shipbuilding company, a cable company, a shell plant and almost 4,000 coal companies. Not until June 1943 did Congress pass legislation to provide statutory authority for presidential seizure of plants, mines and other facilities.

By 1944, uneasy with the enormous increase in executive power, Congress used the power of the purse to prevent Roosevelt from using executive orders to create agencies and carry out agency activities that had no legislative authority. Senator Richard Russell added to a bill language that prohibited the use of any appropriation or fund to pay the expenses of "any agency or instrumentality including those established by Executive Order" if Congress has not appropriated money specifically for it or authorized the expenditure of funds by it.

During the debate, Russell noted, "No person who is interested in maintaining the powers of the Congress could fail to be concerned with the authority which is being asserted by the board, bureaus, and agencies which have been created by fiat or by proclamation." Although Russell was a Democrat, like Roosevelt, he said that the President was not vested "with one scintilla of authority to create by an Executive order an action agency of Government without the approval of the Congress of the United States." Reviewing the language of one of Roosevelt’s executive orders, Russell concluded that "it has not a leg to stand on or even a finger with which to catch hold of anything."

The "Russell Amendment" remains part of permanent law today, but Presidents have occasionally circumvented it. John F. Kennedy issued an executive order to establish the Peace Corps. Not until seven months later did Congress appropriate funds for the agency. In the meantime, Kennedy funded Peace Corps activities by drawing more than a million dollars from a contingency fund created by the Mutual Security Act.

Like his predecessors, Harry Truman actively made law. In April 1952, in the midst of the Korean War, he seized the nation’s steel mills by executive order rather than relying on statutory procedures for resolving a labor-management dispute. For authority he employed the now familiar formula: the authority vested in him "as President . . . and Commander-in-Chief."

At a press conference Truman was asked, "If you can seize the steel mills under your inherent powers, can you, in your opinion, also seize the newspapers and/or the radio stations?" Truman’s reply was alarming: "Under similar circumstances the President of the United States has to act for whatever is for the best of the country. That’s the answer to your question."