Appeals for the Fourth Circuit ruled that the
shall not be in session." Ibid. A successor statute,
federal government lacked statutory authority
which does not limit the president's power to call-
to apply EO 11246 to the Liberty Mutual
ing out the militia only when Congress is not in
Insurance Company, which underwrites work-
session, is found at 10 U.S.C. § 332.
ers' compensation insurance for many compa-
53. 300 U.S. 139.
nies that contract with the government. Liberty
Mutual Insurance Company v. Friedman, 639 F.2d
54. "[A]gency regulations implementing federal
164 (4th Cir. 1981).
statutes have been held to pre-empt state law
under the Supremacy Clause." Chrysler Corp. v.
62. Appendix 3 of the electronic version of this
Brown, 441 U.S. 281, 29596 (1979).
study, posted at the Cato Institute Web site
(www.cato.org), is a list of executive orders later
55. Letter Carriers v. Austin, 418 U.S. 264, 273
modified or revoked by legislation.
(1974). Inexplicably, a federal appeals court sub-
sequently stated that EO 11491 "cannot attain
63. Relyea, Presidential Directives, CRS-1. Emphasis
the status as a `law of the United States.'" Local
omitted.
1498, American Federation of Government Employ-
64. 1 Annals of Cong. 90, 92, 94950 (Joseph Gales,
ees v. American Federation of Government
ed., 1789).
Employees, AFL/CIO, 522 F.2d 486, 491 (3d Cir.
1975).
65. Ibid.
56. Senate Special Committee on National
66. See the discussion in Myers v. United States, 272
Emergencies, Executive Orders in Times of War, p. 31.
U.S. 52, 13739 (1926).
57. Dames & Moore v. Regan, 453 U.S. 654 (1981).
67. 1 Stat. 38184.
58. President Reagan also implemented the terms
68. Contrubis, Report for Congress, CRS-24
of a treaty the Senate had rejected. In The
through CRS-25.
Conservative Caucus v. Reagan, C.A. No. 84-183, U.S.
District Court for the District of Columbia, the
69. Ibid., p. CRS-24.
plaintiff sought to prevent Secretary of Defense
Casper Weinberger from unilaterally implement-
70. Abraham Lincoln, Letter to William H.
ing, pursuant to a secret executive agreement, the
Herndon, February 15, 1848. Quoted in Respect-
unratified SALT II treaty. Reagan had been frus-
fully Quoted, ed. Suzy Platt (Washington: Library of
trated by opposition to the treaty, led by Sen. Jesse
Congress, 1989), p. 281. Emphasis in the original.
Helms (R-N.C.). Determined to implement the
SALT II agreement, Reagan administratively
71. Lincoln's proclamation of April 15, 1861,
thwarted the Senate's constitutional role. The
may have had an unasserted statutory basis.
suit was dismissed in the U.S. District Court on
Although the proclamation did not cite any
the basis of a finding that the plaintiff lacked
statutory authority, it called for 75,000 militia
standing to bring suit.
to suppress "combinations" against the laws of
the United States and to execute those laws.
59. 182 U.S. 222.
Thus, the proclamation may have relied on "An
Act to provide for calling forth the Militia to
60. Youngstown Sheet & Tube v. Sawyer, 343 U.S.
execute the laws of the Union, suppress insur-
579 (1952). Implementation aside, executive
rections, and repel invasions; and to repeal the
orders are also subject to direct constitutional
Act now in force for these purposes." 1 Stat.
challenge. In Ozonoff v. Berzak, 744 F.2d 224 (1st
42425 (February 28, 1795).
Cir. 1984), the Court of Appeals determined
President Lincoln commanded "the persons
that EO 10422 (issued by President Truman), as
composing the aforesaid combinations to dis-
applied to the plaintiff Ozonoff, violated the
perse," possibly pursuant to section 3 of that
First Amendment. Ozonoff sought a position
statute, which said that "whenever it may be nec-
with the World Health Organization; under EO
essary, in the judgment of the President, to use
10422, loyalty investigations were conducted of
the military force hereby directed to be called
Americans seeking to work at the United
forth, the President shall forthwith, by proclama-
Nations or with other public international
tion, command such insurgents to disperse, and
organizations, including the World Health
retire peaceably to their respective abodes, within
Organization, that enter into special loyalty
a limited time." Ibid.
screening agreements with the United States.
72. See The Prize Cases, 67 U.S. 635, 684 (1863)
61. Chrysler Corp. v. Brown, 441 U.S. 281, 3078
(Nelson, J., dissenting).
(1979). Applying Chrysler, the U.S. Court of
25