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Presidential Proclamations Project at the University of Houston



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FAQs

Do proclamations have the force of law?

Yes.  Presidential Proclamations are published in the Federal Register (79 Cong. Rec. 12431 (July 29, 1935), P.A. No. 220, 74th Congress), codified into law, and the content meets all the general criteria of the enabling statute including the justification for the creation, the reservation of rights, the creation of new rights, designation of the implementing authority and guidance for implementation (16 U.S.C. § 431).  Relying on congressionally delegated authority, an executive order or proclamation issued by the president carries the weight of an act of Congress (Jenkins v. Collard 145 U.S. 546, 560-561 (1891)).  Thanks to funding from the National Science Foundation, we collected information about proclamations going back to George Washington, including the source of authority used in each.  The graph below charts these over time. 

 

 

Are proclamations the same as executive orders?

Proclamations carry the same force of law as executive orders—the difference between the
two is that executive order are aimed at those inside government while proclamations are aimed at those outside government. This is a crucial distinction because the president cannot assert his general authority to control the executive branch under Article 2 of the Constitution if the intent of the order affects those outside government.

 

How are proclamations issued?  (Or, how do I get a presidential proclamation?)

There isn’t any formal process by which proclamations are requested.  But, from the research we’ve done, it seems like the best avenues to make one’s case to the White House on the need for a proclamation is to  send a letter outlining your request and justification to (1) the White House Office of Public Liaison, (2) the White House Communications Office, (3) your Members of Congress and (4) your State Representatives.  These will filter to the right people.  Or if you happen to have connections to anyone who works at these institutions who can press your case, all the better.

 

Can proclamations be overturned?

In the case of national monuments, the likely answer is no.  The Antiquities Act allows the president the authority to declare national monuments and, pursuant to language in the Antiquities Act that lets the president proclaim federal lands “confined to the smallest area compatible with the proper care and management of the objects to be protected," the presidents can modify previous proclamations to shape the scope of a monument previously created.  But an opinion from the Attorney General in 1938 suggests that, although presidents can proclaim new monuments and shape existing monuments, the authority granted to the executive by Congress under the Antiquities Act does not give the president the power to eliminate federal lands (39 Op. Atty. Gen. 185 (1938) (Opinion)).  And, since the president has no inherent authority over federal lands (this is reserved to Congress), the Attorney General’s conclusion was that the president could not eliminate a monument by overturning a previous proclamation.  (For more details, see Congressional Research Service Report RS20647: Authority of a President to Modify or Eliminate a National Monument by Pamela Baldwin).

 

Are proclamations “unilateral” powers?

Yes and no.  Presidential proclamations are really “delegated unilateral powers.”  Although all unilateral actions are subject to posthumous review by the other two branches, “delegated unilateral actions” are subject to prior policy restraint since Congress initially limits the policy action that presidents can undertake.  Unlike other instruments of unilateral action, presidents must use proclamations within a specific policy boundary outlined by Congress and show that conditions have been met to invoke additional powers (granted by statute or legal holding).  This might suggest that there is more delegation than unilateralism, yet because these require executive interpretation to begin, the legal imperative is on the White House to make determinations and initiate action.  Overturning such determinations require majorities in Congress that may be difficult to muster, similar to other unilateral actions.  Because all such proclamations require some coordination between the president and Congress regarding the implementation of policy, this theoretical precept is an important addition to understanding how the balance of power works in unilateral power arrangements.

 

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