§ 7103(b)). The Executive Order at issue here does not contain such a statement, and unless another source sustains its validity, it must be declared invalid.
B. Validity of Executive Order No. 12,559
Executive Order No. 12,559 is not the first executive effort to exercise power under § 7103(b); it was issued to amend a valid, preexisting Executive Order that contained the necessary determinations. Exactly what effect this has upon the Court's review is admittedly not addressed in prior cases, and there are no established principles of interpretation for Executive Orders, beyond the general guidelines for review discussed above. The parties contend that ordinary principles of statutory interpretation apply. Defendants then conclude that the Court should therefore view Executive Order No. 12,559 and Executive Order No. 12,171 as a whole to determine whether the President validly employed § 7103(b).
Essential differences between executive and legislative action prevent the Court from applying, without question, principles of statutory interpretation to Executive Orders. Executive Orders have no public record behind them - there is no legislative history to which the Court may resort to discern the meaning of language, or the intent of the drafter. This lack of record and lessened scrutiny is in keeping with the distance between the executive and judicial branch. As a result, however, a canon of legislative construction that relies upon the existence and examination of a "public record" could not be extended rationally to interpretation of Executive Orders. Absent a "history" to place a given Executive Order in context, each Executive Order appears to stand on its own as an independent exercise of executive power.
Further, in this case, the Executive Order did not issue in conjunction with the exercise of power constitutionally committed to the President. Cf. Dames & Moore, 453 U.S. at 654 (power to conduct foreign relations). The authority for the Order thus must be found on its face. Although President Reagan stated he was "amending" a pre-existing Executive Order, his amendment seeks to exclude certain agency subdivisions from the FLMRA. His power to exclude only arises if he finds certain conditions to exist. While the conditions were found to exist in 1979 as to the entities excluded by President Carter, that does not mean they existed in 1986 as to the entities listed in Executive Order No. 12,559. President Reagan did not incorporate the earlier determinations by reference, and Panama Refining precludes the Court from implying existence of essential conditions without some language in the Order itself. Thus, the absence of determinations or findings in the Order, the lack of any language incorporating and republishing prior findings and determinations, and the absence of a separate source of executive power sufficient to sustain the action, lead the Court to conclude that Executive Order No. 12,559 is not a valid exercise of power under § 7103(b).
The Court does not seek to probe the Executive's decision-making process; nor does it seek to question the statutory conditions Congress placed in § 7103(b). Rather, the Court has reviewed the President's action to determine whether it complied with the conditions Congress established. The formalism of the result is dictated by the terms of the statute and by the limited nature of judicial review of executive action. When power is exercised through words, those words must be examined to assess the propriety of the exercise. A more probing review would intrude upon the executive branch to an unwarranted degree; a more limited review would cause the Court to shirk its role in preserving separation of powers under the Constitution. It is a narrow line to walk, but cannot for its specificity be dismissed as semantics or formalistic niceties.
Based upon the foregoing analysis, the Court concludes that Executive Order No. 12,559 was not a valid exercise of authority under 5 U.S.C. § 7103(b), and is therefore void. An appropriate order accompanies this opinion.
Dated: July 9th, 1987
ORDER - July 10, 1987, Filed
Upon consideration of the pending motions, supporting memoranda and the entire record, and for the reasons set forth in the accompanying opinion, it is this 9th day of July, 1987,
ORDERED that defendants' motion for summary judgment is denied, plaintiffs' motion for summary judgment is granted. Executive Order No. 12,559 is declared invalid, and this action is dismissed in its entirety.