abstract. This Note presents a study of judicial decisions that have engaged with executive orders. The study was designed to elucidate the contexts in which courts have considered executive orders; to identify the questions that courts have posed about executive orders; and to synthesize the doctrine that courts have developed in response to those questions. This study reveals that, although the executive order is a powerful tool of the presidency, courts have not tended to acknowledge, in a particularly theorized way, the special challenges and demands of the executive order as a form of lawmaking. This Note argues that, in the absence of a thicker jurisprudential conception of the executive order, doctrinal asymmetries that heavily favor executive power have emerged. These asymmetries carry costs and therefore merit closer attention.

author. Yale Law School, J.D. expected 2015. I owe an extraordinary debt of gratitude to Professor Abbe Gluck for opening my eyes to entirely new fields of study, planting the seeds of this work, encouraging me to develop this project, guiding its progression, and generously sharing reams of suggestions and advice along the way. This Note emerged from a group project on executive orders originated by Professor Gluck and joined by five fellow students: Tom Brown, Marguerite Colson, Daniella Rohr, Roberto Saldaña, and Andrew Sternlight. The students in the group were beyond generous in urging me to spin off my own contribution to the project as a Note and in encouraging me along the way. This project draws on the foundational work, brainstorming, and energy of that initial group project; indeed, it was Professor Gluck who originally proposed digging into judicial decisions on executive orders.

Thank you as well to the members of the Yale Law Journal Notes Committee, who invested heavily in this endeavor and who provided deeply thoughtful comments throughout. In particular, Chris Milione, Meng Jia Yang, Rachel Bayefsky, and Marguerite Colson tirelessly and patiently nurtured this piece as if it were their own. Their careful edits and insightful guidance improved this Note immeasurably and their encouragement was inspiring. Luci Yang also provided unflagging support. Finally, I’m deeply thankful to Ken Hui, who selflessly sacrificed time, sleep, and even long-awaited vacations to support this project.

Introduction

Edward Snowden’s leaks about U.S. intelligence practices cast a harsh light on the USA PATRIOT Act and the medley of statutes that complement the 2001 law. In domestic and international news media, headlines immediately interrogated congressional intent and oversight of these statutes,1 executive branch interpretation and implementation of these statutes,2 and judicial acquiescence and intervention with respect to these statutes.3

Yet a different law—one that has long served as a linchpin of surveillance programs and that reportedly authorizes many of the NSA’s most controversial activities4—has largely escaped public5 and congressional6 scrutiny. This law is not a statute but rather an executive order that dates back to 1981.7

Known as E.O. 12,333 (twelve-triple-three), the surveillance executive order creates a framework for intelligence programs that target “the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons and their agents.”8 Its sweep is extensive, and its first principles are explicit: “All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence available.”9

The relative scarcity of attention to E.O. 12,333 is all the more surprising because the Order, according to some reports, is the authority behind “most of [the] NSA’s data collection.”10 Despite text that imposes limitations on surveillance of U.S. persons,11 press reports have suggested that significant numbers of U.S. persons are caught in the Order’s web.12 And compared to activities authorized by the Order’s statutory counterparts, E.O. 12,333 programs are less likely to be briefed to the congressional intelligence committees.13 These programs also fall outside the jurisdiction of the Foreign Intelligence Surveillance Court (FISC).14

While it has never been put to a congressional vote, E.O. 12,333 nonetheless has the force and effect of law: executive orders, which can derive their power from congressional delegations of authority to the President (explicit, implicit, or anticipated),15 from the President’s independent authority under Article II of the Constitution,16 or from some vague combination of the two,17 are generally enforceable by courts against private citizens.18 E.O. 12,333’s authority purportedly derives from both constitutional and statutory sources. President Reagan captured this lineage in the opening lines of the Order, averring that it was issued “by virtue of the authority vested in me by the Constitution and the laws of the United States of America, including the National Security Act of 1947 . . . and as President of the United States of America.”19

Presidents may issue executive orders in order to plant a flag in a particular policy sphere, to reorganize the structure of the executive branch, or to provide policy leadership when Congress is stuck in the mud.20 Executive orders, like E.O. 12,333, are formidable instruments of power21 in large part because they are not immediately constrained by the “finely wrought and exhaustively considered” process of bicameralism and presentment,22 nor are they subject to the hoops and constraints of the Administrative Procedure Act.23As Kevin Stack has written:

In contrast to legislation or agency regulation, there are almost no legally enforceable procedural requirements that the president must satisfy before issuing (or repealing) an executive order or other presidential directive. That, no doubt, is central to their appeal to presidents. They rid the president of the need to assemble majorities in both houses of Congress, or to wait through administrative processes, such as notice-and-comment rulemaking, to initiate policy.24

While executive orders may bypass the procedural restraints imposed on other forms of lawmaking,25 they implicate individual rights and the structure of the federal government, thereby “affecting millions” of people.26 Presidents have used executive orders to suspend habeas corpus,27 desegregate the military,28 implement affirmative action requirements for government contractors,29 institute centralized review of proposed agency regulations,30 stall stem cell research,31 create the nation’s first cybersecurity initiative,32 and yes, authorize a surveillance dragnet.33

The literature has thoroughly documented the ways in which executive orders mediate among the President, Congress, and agencies.34 Moreover, many of the Supreme Court’s most memorable separation-of-powers cases have involved executive orders,35 and judicial decisions about executive orders have been studied through the lenses of substantive fields such as national security law36 and civil rights law.37 Yet scholars have not generally focused on how courts interact with and understand executive orders per se.38 They have not sought to define or divine a case law of executive orders.

To that end, this Note surveys executive orders as a unified field and contributes a nuanced view of how courts interact with these instruments. Its conclusions largely derive from a study that was designed to elucidate the contexts in which courts have considered executive orders; to identify the questions that courts have posed about executive orders; and to synthesize the doctrine that courts have developed in response to those questions.

Executive orders vary greatly in their forms, sources of authority, purposes, and interactions with statutory law—among other variables.39 They are not self-contained pronouncements; instead, they may spawn volumes of implementing rules and regulations.40 Executive orders find their ways into judicial decisions via all sorts of avenues: challenges to the President’s power to promulgate an order, efforts to overturn the regulations issued pursuant to an order, allegations that an order violates constitutional rights, arguments that an order has been improperly interpreted, or claims that resolution of a question of statutory interpretation ultimately hinges on the interpretation of an antecedent order.41 These orders raise legal questions that are complex and variegated, and that often feel context-specific. Indeed, interrogating executive orders in court may be no less ambitious than interrogating statutes in court—a project to which the entire field of legislation scholarship is devoted.

Despite the daunting breadth of executive order jurisprudence, this Note aims to survey and appraise a meaningful selection of it. This Note presents a study built around review of 297 judicial opinions and the coding of 152 of them—each opinion was issued by either the Court of Appeals for the D.C. Circuit or the Supreme Court of the United States. In each of the 152 opinions, judges or Justices engaged with doctrinal questions relating to executive orders. These cases reveal that courts inconsistently invoke those checks and balances that are available to temper executive action.

The resulting judicial elevation of executive orders does not seem to take the form of a studied esteem for the President’s greater flexibility, expertise, or role in our constitutional system.42 Rather, it seems to be born of disorder. Courts have not tended to acknowledge, in a particularly theorized way, the special challenges and demands of the executive order as a form of lawmaking.43 Nor have they tended to recognize the common jurisprudential questions that executive orders raise about sources of lawmaking and interpretive authority44 or to demand clarity or specificity from the orders themselves.45 While this Note does not attribute intentionality to the jurisprudential status quo, there may well be good justifications for these “defects.” Perhaps our system is better served by a jurisprudence that grounds each executive order in its respective siloed, substantive area of law—for example, procurement, labor, or national security law—rather than one that adopts a transsubstantive doctrine of executive orders. Perhaps courts should brush aside, as gestures toward an empty formalism, entreaties that they interrogate the intrasystemic role of executive orders; maybe judges should focus instead on pragmatic, functionalist policing of the ebbs and flows of executive authority—on keeping the gears of government grinding.46 But, especially in this era of weak congresses and strong presidents, a failure to move beyond Youngstown and develop a thicker jurisprudential conception of the executive order as a form of law carries costs as well.47 It is these costs that lie at the heart of this piece.

The first set of these costs falls on the legislative branch. Uneven judicial engagement with executive orders denies Congress guidance, making it more difficult for legislators to design statutes that comprehensively occupy a field or to correct course once the President has made an opening volley via executive order.48 Judicial vagueness with respect to how executive orders interact with statutory law—and the courts’ parallel tolerance for presidential vagueness regarding executive orders—makes it all the more difficult for Congress to participate in the separation of powers dance. Congress may have a hard time even identifying whether it should be dancing the salsa or the tango.

Doctrine has also insulated executive orders from the commitment devices typically associated with statutory law. While courts will entertain challenges to the legitimacy of executive orders, they will no longer hold the President to promises made in orders that partially or wholly (the line between the two is often left unclear) draw on the President’s Article II authority.49 Courts will, however, hold third parties to the requirements of these orders; this is, after all, what courts mean when they write that executive orders have the “force and effect of law.”50 Thus, insofar as the studied cases share a commonality, it is that they generally allow the President to broaden the scope of his own powers and to bind those governed by executive orders while simultaneously insulating himself from reciprocal demands of adherence to the same orders.

This Note proceeds as follows. Part I highlights some of the findings of the study, focusing on general aspects of judicial engagement with executive orders and vehicles through which courts have, perhaps incidentally, affirmed executive authority; further findings are described in Appendix II. Part II offers an overview of the methodology of this study—which involved identifying, sorting, reviewing, and coding judicial decisions—and discusses its strengths and limitations.51 Part III, drawing on the study’s findings, suggests that in the absence of a well-developed judicial theory of the triangular relationship that links Congress, the President, and those executive orders whose authority derives from congressional delegations of power (hereinafter “Article I executive orders”), courts show a tendency to box Congress out. While these doctrinal moves make it easier to associate executive orders with a single object of accountability (the President), they also expand the scope and permanence of these instruments. Part IV discusses how an apparent judicial reluctance (and perhaps, at times, inability) to bind the executive to commitments made in executive orders creates a doctrinal asymmetry that merits closer attention.

I. overview of findings

This Part presents an overview of a study of over 150 judicial decisions pertaining to executive orders. The methodology employed in this study is discussed in Part II and in Appendix I.

Figure 1.

issues resolved by the courts

More than 50% of coded cases engaged with the executive orders on their own terms—that is, with how to interpret an executive order or with whether the executive order had been implemented improperly. In 39% of cases, courts directly engaged with whether the President was duly authorized to issue a particular executive order.52 In only 13% percent of coded cases did courts decide whether the executive order violated constitutionally protected rights.53

The study used categories designed to capture the questions resolved in the coded cases as well as categories designed to capture the content of relevant discussions in which the courts engaged. Figure 2 organizes these discussion points into five topical categories, each with overlapping subparts. These categories are described in more detail in Appendix II.D.

Figure 2.

topics of judicial discussion

Figure 3.

topics of judicial discussion: cumulative data

Figure 4, Figure 5, Figure 6, as well as the discussions in the Parts that follow, show thatcourts have strengthened executive authority through their decisions concerning executive orders.

Figure 4.

(a) implications for executive authority & (b) winning party (on executive order relevant issues)

The chart on the left in Figure 4 features the label “expands/affirms presidential power/flexibility.” This label was applied to those cases that, on their face, appeared to establish or affirm generalizable doctrinal principles relating to executive orders that strengthen executive presidential power.54 Such principles could be transsubstantive or could apply within a single substantive area. The chart on the right, by contrast, records the federal government’s wins and losses on the issues relevant to executive orders that were resolved in the coded cases. These two metrics differ in important ways. A narrow, technical win for the government, for example, might not have implicated broader questions of executive power. In fact, on occasion, the government even sought to convince courts that Article I executive orders that had been signed by presidents of bygone eras, and that potentially created third-party reliance interests, should not be given the force of law.55

This study’s data, while limited by its volume, also offers preliminary support for arguments advanced elsewhere about the means through which courts augment and affirm executive authority. For example, it has been observed that courts “often abstain from addressing questions surrounding the allocation of authority between Congress and the President”56 and that this abstention implicitly favors the executive.57 Indeed, of those cases that most directly engaged “questions surrounding the allocation of authority between Congress and the President”—namely those in which courts resolved whether Congress had overturned or precluded a “zone of twilight” executive order—83% saw the federal government win and the status quo maintained, compared with a 65% win rate for the federal government in all other cases. A “zone of twilight” executive order, to borrow Justice Jackson’s phrase from Youngstown, is promulgated “[w]hen the President acts in absence of either a congressional grant or denial of authority” under circumstances in which “he and Congress may have concurrent authority, or in which its distribution is uncertain.”58 Such orders—which generally include “supervisory” or “managerial” executive orders promulgated to govern the basic functioning of the executive branch—can be precluded by congressional “denial of authority” or directly overruled by Congress.59

Of these cases in which courts resolved whether Congress had overturned or precluded a “zone of twilight” executive order, 83% also appeared to affirm or expand executive authority, compared with 43% of all other cases. And of those cases in which courts engaged with conflict or dialogue between Congress and the Executive, 56% expanded or affirmed executive authority or flexibility, compared with 42% of all other cases.

Figure 5 and Figure 6 track outcomes via Figure 1’s eight-category taxonomy.60

Figure 5.

issues resolved by the courts

Figure 6.

in whose favor were issues resolved by the courts? (“na’s” excluded)

II. methodology

The discussions that follow provide a brief overview of the methodology that this project developed and used to search, organize, and study the case law on executive orders. Further details can be found in Appendix I.

A word of caution is in order. As any first-year law student can attest, legal opinions do not easily sort themselves into little boxes with hard edges. To invoke a well-worn cliché, cases are like snowflakes: each carries with it unique facts and thus unique features. Meanwhile, different judges at times deploy different vocabulary, and norms of judicial discretion produce decisions that obfuscate key issues.61 Any effort to code cases on substantive characteristics will therefore feature some inherent subjectivity. Nonetheless, this type of analysis can yield important insights. It can point toward patterns and areas deserving further inquiry, and it can impose much-needed structure and form on case law that can seem otherwise difficult or impossible to tame.

A. The Scope

Presidents have at their disposal a variety of unilateral lawmaking tools—presidential findings, national security instruments, presidential directives, presidential proclamations, presidential memoranda, and executive orders, among others—that, under the appropriate circumstances, have the force and effect of law.62 Indeed, the functional differences among these different types of presidential orders can be difficult to identify.63

This study cast its net to capture cases that meaningfully discuss not only official “executive orders,”64 but also presidential proclamations and presidential memoranda.65 These three types of presidential orders were selected for four reasons. First, each can significantly impact individual rights, as well as the structure and function of government. Second, none is limited in scope to one specific type of substantive issue (such as national security). Third, these types of orders are often (though not always) public and so are far more likely to figure into courtroom battles. And fourth, even courts have resisted drawing lines to distinguish among them.66 Given the need for manageable standards to guide the study, other forms of “executive action”67 were excluded from its scope.

This Note adopts the practice of scholars and journalists alike, all of whom generally use the catch-all phrase “executive orders” to describe not only de jureexecutive orders but also presidential orders of other stripes.68 I note meaningful distinctions among the different classes of orders as needed.

B. The Courts

Courts have been wrestling with executive orders for over 150 years.69 Because a study of every relevant judicial opinion would have produced more data than could feasibly have been analyzed, this study focuses on cases decided by two courts: the U.S. Supreme Court and the Court of Appeals for the D.C. Circuit.70 Including the U.S. Supreme Court cases was an obvious choice: Supreme Court cases originate in geographically and topically diverse controversies, and the Court’s decisions have national reach. The D.C. Circuit was a likewise intuitive target of study. Because the structure and function of the federal government are the central subjects of many executive orders, the D.C. Circuit resolves many of the judicial battles over these orders and sets a fair amount of governing precedent. Moreover, no Circuit more regularly deals with the fundamental questions of separation of powers and checks-and-balances that executive orders implicate.71 A focus on the D.C. Circuit does affect the types of cases that this Note analyzes: Freedom of Information Act (FOIA)72 cases, for example, make a strong showing. Of course, there remains much to learn from looking at decisions issued by other federal courts that hear different flavors of cases.

C. The Cases

The U.S. Supreme Court and the D.C. Circuit have together decided over 700 cases that reference executive orders (that is, executive orders, presidential proclamations, or presidential memoranda).73 However, this project did not seek to identify cases in which executive orders were mentioned as mere historical footnotes or in which clearly established precedent was applied in a rote manner, with little evaluation or justification. Rather, the study aimed to help elucidate the doctrinefrom which executive orders derive their powers. Drawing distinctions about the relative centrality of executive orders introduces an additional source of potential subjectivity into the study. Nonetheless, narrowing the scope of cases studied by means of this distinction ensured that results were better tailored to the central questions of this project, and this compensated for the loss in comprehensiveness.

The project’s methodology featured a three-step process designed to separate the more than 700 cases into those that illuminated how courts think about executive orders and those that did not. This methodology is described in greater detail in Appendix I, but it merits brief discussion here.

The first step relied on a few different Westlaw features—headnotes, case synopses, and frequency searches—to narrow the pool of over 700 cases. Westlaw’s headnotes capture the “specific point[s] of law” made in each case.74 This made headnotes a useful tool for identifying decisions in which judges were likely to have engaged with legal questions pertaining to executive orders. At this step, the 339 cases with a headnote that mentioned executive orders were retained as part of the dataset. The 117 cases that referenced executive orders within their respective Westlaw case synopses were also retained.75 Finally, to ensure that no Supreme Court decisions featuring substantive discussions of executive orders had been overlooked, the twenty-six additional Supreme Court cases that included at least 5 mentions of executive orders were kept as well.76 All other cases were discarded. Through this first step, the initial pool of over 700 cases was narrowed to 416.

The second step in this process began with a review of each of the headnotes identified in the first step. Cases identified through the headnotes-based search were retained unless their associated headnotes (1) merely referenced executive orders in passing (often as a historical footnote)77 or (2) included only highly fact-specific, non-analytic statements or assessments in reference to executive orders. Ambiguities were resolved in favor of retaining cases.

The third step involved reading the cases that remained from the headnote search, the cases identified through the synopsis search, and the cases found through the Supreme Court frequency search. In total, 297 cases were read in full. These cases were evaluated against an initial list of issues and questions related to this project’s focus—modified versions of these lists are shown in Figure 1 and Figure 2, and the lists are discussed in more detail in Appendix II. The overarching question that guided these determinations was “does this contribute anything to our understanding of executive orders?” Those cases that were found to implicate none of the items on the lists were removed from the corpus. Borderline cases were marked as such and retained.

After reading all 297 cases in full, the final survey instrument used in this study was developed.78 The cases that had not been discarded—including the borderline cases—were reread and coded in accordance with the survey instrument. The cases that, upon a full read, did not implicate any of the items in the lists shown in Figure 1 and Figure 2 were removed from the corpus. In total, 152 cases were coded, each of which offers a snapshot of doctrinal development. Taken together, these cases tell the story of executive orders in court.

III. courts appear to lack a theory of the constitutional relationship of congress to executive orders

This Part discusses the ways in which doctrine conceptualizes the triangular relationship among executive orders, the executive branch, and Congress. It suggests that courts lack a theory of the executive order’s role in our separation of powers system and that, in the absence of such a theory, doctrine has developed along lines that augment executive branch power at Congress’s expense.

There are two sources of authority through which executive orders may claim “the force and effect of law.”79 The first is Article II of the Constitution. Article II authorizes presidents to issue executive orders that operate within areas exclusively subject to presidential power.80 Article II also authorizes the President to issue executive orders that (a) operate in areas of concurrent congressional-executive authority and (b) do not contravene the “expressed or implied will of Congress.”81 The second source of authority through which executive orders assume the force and effect of law is statutory—that is, congressional delegation of power.82

As Kevin Stack has observed, one cause of the aforementioned doctrinal incoherence is the long-established judicial practice of allowing presidents to “aggregate” sources of law—multiple statutes and Article II powers—to create a general gestalt of authority to issue their executive orders.83 For example, Executive Order 12,333 likely derives some authority from the President’s Commander-in-Chief and foreign relations powers—and his related authority to manage the activities of the executive branch.84 But the order also operates against a backdrop of congressional legislation—the National Security Act of 1947, which the order cites, as well as more recent legislation, such as the USA PATRIOT ACT and the FISA Amendments Act.85

The 1974 Supreme Court case Old Dominion Branch No. 496 v. Austin86 illustrates how challenging it can be to isolate the source of an executive order’s authority. In Old Dominion Branch, the Court was confronted with an executive order that governed labor relations for federal employees. The Court held that the order derived its power in part from “the President’s [Article II] responsibility for the efficient operation of the Executive Branch.”87 But the Court also rooted the President’s power to issue the order in 5 U.S.C. § 7301, “which provides that ‘the President may prescribe regulations for the conduct of employees in the executive branch.’”88 The Court took a similar tack in Chrysler Corp. v. Brown, when it sidestepped the question of whether Executive Order 11,246 was “authorized by the Federal Property and Administrative Services Act of 1949, Titles VI and VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Act of 1972, or some more general notion that the Executive can impose reasonable contractual requirements in the exercise of its procurement authority.”89 Aggregation renders the distinction between “Article I executive orders” and “Article II executive orders”—terms that are used here as a shorthand and that courts implicitly invoke—somewhat artificial.

While Stack argues that aggregation inappropriately empowers the President, aggregation may in fact create conditions that can facilitate checks on the executive branch. Stack presents aggregation as occurring “when the court is unable to identify which statutory provision, or interlocking set of statutory provisions, authorize the action but nonetheless upholds the action as authorized by statute.”90 In other words, courts sometimes draw on Article II powers to imply statutory authority for Article I executive orders, as the Supreme Court famously did in Dames & Moore v. Regan. But as Old Dominion Branch suggests, aggregation can also work in the opposite direction: courts sometimes draw on statutory law to bolster Article II executive orders.

At the very least, this latter version of aggregation admits a role for Congress in governing subject matters over which the executive also has clear authority, and over which the executive has often claimed exclusive authority.91 Without the option of aggregation, it is just as possible that courts—driven by the imperatives of current events—would render broad, executive-empowering rulings that box Congress out of the game altogether as it is that courts would circumscribe executive power.

The current Part and Part IV thus accept aggregation, but they also call for more doctrinal clarity with respect to how Presidents and courts should manage aggregation. While the presidential practice of obfuscation discussed in Part III.A below does not help matters, a lack of clarity by courts, this Part argues, also undermines opportunities to check executive power.

A. Presidents Often Fail To Clarify the Sources of Their Authority To Issue Executive Orders

While presidents sometimes aggregate authorities when issuing executive orders, other times, they fail to name any specific authority at all. Instead, presidents often issue executive orders “based on sweeping claims of authority.”92 For example, of the thirty-four executive orders that President Obama issued in 2011,93 the second year of his presidency, only fifteen claimed any specific law or laws as their source(s) of authority.94 President Obama’s other nineteen executive orders generically claimed “the authority vested in me as President by the Constitution and the laws of the United States of America.”95 In 2003, the second year of the Bush Presidency, only twenty-three of President Bush’s forty-one executive orders cited a specific statute as a source of authority.96

This practice presents a contrast with, for example, section 553 of the Administrative Procedure Act, which requires that notices of proposed rulemaking include a “reference to the legal authority under which the rule is proposed” and that final rules include “a concise general statement of their basis and purpose.”97 Courts have interpreted this language as requiring particularity and precision on the part of the agency.98 But unlike agencies, when presidents—to whom the APA does not apply99—do justify their executive actions with “references . . . to statutes, they are very general in nature and implicate relatively ambiguous legislative provisions.”100

An executive order that is ambiguous about the statutory source(s) of its claimed authority can obscure the contours of its power. The potential implications of this phenomenon are nicely illustrated by the 1969 D.C. Circuit case Nestor v. Hershey.101 The litigation in Nestor arose from uncertainty over which of two provisions of the Military Selective Service Act of 1967 authorized Executive Order 11,360.102 Graduate student James Nestor’s eligibility for a preferential draft deferment hinged on judicial resolution of the ambiguity; the D.C. Circuit ultimately found in Nestor’s favor, and he was able to claim the deferment.103

As we turn our focus from executive orders to the judicial decisions that interact with them, Nestor serves as a useful reminder: imprecision in executive orders may create flexibility for the executive, but it also affects individuals whose rights and responsibilities the orders potentially implicate.

B. Doctrines that Negotiate the Relationship of Executive Orders to Statutory Law Interact so as To Augment Presidential Power

This Part discusses three ways that imprecision in the doctrine supporting executive orders contributes to expanded executive power. Part III.B.1 discusses the acquiescence and ratification doctrines. These doctrines allow an executive order that would otherwise require some sort of ex ante congressional authorization to obtain that authorization either through ex postcongressional ratification104 of the order or, under certain circumstances, through congressional silence (acquiescence)105 over a long period of time. While these long-established doctrines have been well covered in the literature,106 the discussion here emphasizes that they fail to establish how and whenCongress might take back the reins.

While Part III.B.1 discusses how courts identify congressional authorization for executive orders, Part III.B.2 focuses primarily on how courts determine the scope of executive orders, with a particular emphasis on orders that threaten to conflict with statutory law. Finally, Part III.B.3 discusses how courts have allowed those executive orders that implement statutory mandates to alter the meaning of statutory law in real time.

Taken together, these Parts paint a picture of a doctrine that defaults to an inchoate—and perhaps even unrealized—preference for presidential lawmaking over congressional lawmaking. At each stage of presidential lawmaking—authorization, interpretation, and implementation—courts have strengthened presidential lawmaking power at the cost of congressional lawmaking power.

1. Authorizing Executive Orders: Congress Need Not Act in Order To Delegate Its Powers to the President

When issuing executive orders of the type that would generally require statutory authorization, presidents have at times adopted the “better to ask for forgiveness than permission” approach to lawmaking. Courts have generally supported presidents in this practice of lawmaking-in-reverse.107 In so doing, courts have generated doctrinal asymmetries—that is, they have afforded executive orders certain legal privileges without imposing comparable legal responsibilities— that reappear throughout this Note.

When the President operates in spheres in which he clearly lacks Article II authority to issue executive orders, the Supreme Court has held that Congress may delegate that authority ex post—after the order has been issued.108 Such delegation can be effectuated through mechanisms that fall on a spectrum that spans (belated) action to inaction.

On the “action” end of this spectrum is ratification, which is the least controversial of these mechanisms: it “is well settled that Congress may, by enactment not otherwise inappropriate, ‘ratify . . . acts which it might have authorized,’ and give the force of law to official action unauthorized when taken.”109 On the “inaction” end of the spectrum is the more controversial—and less well-delineated—acquiescence mechanism of ex-post delegation: when Congress knows about an order110 and fails to “repudiate the power claimed,”111 courts sometimes find that “acquiescence . . . operate[s] as an implied grant of power.”112Acquiescence “may sometimes be found from nothing more than silence in the face of an administrative policy.”113 The discussion that follows, while relying on ratification cases as points of reference, especially focuses on cases that fall closer to the acquiescence end of the spectrum. However, acts of ratification and acquiescence can be difficult to distinguish from each other, and courts sometimes deploy the respective terms interchangeably.

The acquiescence and ratification cases are notable for a few reasons. First, they treat executive orders and their complementary congressional “approval” as if they occurred in lockstep, even when the two events114 took place years apart. Courts do not (and realistically cannot) ask whether, if the order had been put to a vote when signed, the then-sitting Congress would have approved the document; rather, they ask whether some Congress, at some unspecified point in time, either actively ratified, appropriated funds in pursuance of, or generally failed to disapprove the order. Once ratification or acquiescence has been established, courts engage in the legal fiction that, even in the temporal gap between promulgation of an executive order and “approval,” the order was authorized by law.115 But acquiescence, in particular, is a fairly weak justification for a jurisprudence that endorses retroactive lawmaking, especially given that courts otherwise apply a clear statement rule before enforcing statutes retroactively.116

Second, and related, these cases generally cast their analyses as inquiries into congressional rather than presidential intent: did Congress, again, at some undifferentiated point in time, intend to allow the executive order to persist?117 Certainly, no inquiry is made into the President’s subjective intent: did he believe that Congress would have approved the order? Given that the relevant question in ratification and acquiescence cases is whether the President can claim Article I authorization to issue the order, the focus on congressional intent is quite sensible. It simply merits mention here because, as Part B.2 illustrates, it presents a marked contrast with other paths that courts have taken when evaluating executive orders.

While courts regularly accept ex post statutory ratification of an executive order as constituting statutory authorization of the order, a variety of factors appear to influence their willingness to accept as due authorization indications of congressional intent that are less unambiguous. In a foundational case, United States v. Midwest Oil Co., the Supreme Court cited third-party reliance on an executive order as justification for finding, from congressional silence, legislative acquiescence to the order.118 In Rose v. McNamara,119 the D.C. Circuit found that congressional awareness120 of a treaty-related executive order, along with general appropriations that happened to cover “the governmental arrangements provided by” that order, were together sufficient to establish congressional acquiescence to the order.121 Elsewhere, courts have applied a sliding scale to determine whether they will presume congressional approval of executive action in the absence of actual legislation: the greater the potential deprivation of individual rights that is associated with the executive order, the less likely courts are to find ex-post approval in anything other than explicit statutory ratification.122 (This sliding scale approach dovetails with the norm of constitutional avoidance: by refusing to find congressional approval when questions of constitutional rights are otherwise likely to be implicated, courts can more easily dodge the constitutional questions.)123 The case law further suggests, although the doctrine does not definitively hold, that acquiescence may be more difficult to establish when the order “reaches deep into the heart of the State’s police powers.”124

The Supreme Court has also implied, in the context of a “zone of twilight” case, that ex-post congressional approval may prove easier to achieve “in the areas of foreign policy and national security.”125 With respect to instances of purported congressional acquiescence in particular, this suggestion demands a closer look. National security is indeed an area in which courts have long granted the President comparably greater latitude.126 But it is also an area in which Congress legislates127 and about which legislators have access to comparatively less information.128 Insofar as congressional access to relevant information is a precondition to a finding of acquiescence,129 application of the doctrine should raise more eyebrows—not fewer—when applied to national security-related executive orders.

Executive Order 12,333 again provides a useful illustration. While members of the Senate and House intelligence committees—and the so-called Gang of Eight—have received at least some briefings on the executive branch’s creative interpretations of the surveillance provisions in the USA PATRIOT Act, presidents appear to have kept congressional leadership in the dark about how related provisions in E.O. 12,333 have been interpreted and implemented. In 2013, a senior Senate Intelligence Committee staff member told the Washington Post that the Committee is “far less aware of operations conducted under [Executive Order] 12333” than they are of operations conducted under the USA PATRIOT Act.130 The NSA “would not routinely report these things, and, in general, [E.O. 12,333 programs] would not fall within the focus of the committee,” the staffer explained. And if congressional leadership were to seek information about E.O. 12,333 programs, they would not even know the right questions to ask.131 If the President’s greater access to information justifies affording him greater latitude on matters relating to national security,132 then it should also caution against application of the acquiescence doctrine, or any variant thereof, in the national security context. After all, Congress cannot meaningfully acquiesce to activities that it knows little about.133

More generally, the cases that fall on the inaction portion of the ratification-acquiescence spectrum point to an important asymmetry: activities within Congress that amount to less than enactment of a statute, including silence, can be taken to imply approval of an executive order but cannot be taken to “imply ‘congressional disapproval’ of action taken by the Executive.”134 Meanwhile, courts have left Congress with little direction as to when its (in)actions will prove sufficient to legitimize a preexisting executive order.

2. Executive Orders in the Statutory Shadow: The Tools of Interpretation that Courts Apply to Executive Orders Often Augment Executive Power

In fifty-two percent of coded cases, courts engaged with questions about how executive orders should be interpreted. To answer these questions, they often had to first determine whether the canons of interpretation (and other interpretive lenses)135 that apply to federal statutes, agency rules,136 and state laws also apply to executive orders. The Supreme Court acknowledged this dilemma in its 1999 case Minnesota v. Mille Lacs Band of Chippewa Indians.137 There, the Court explained that “[a]lthough this Court has often considered the severability of statutes, we have never addressed whether Executive Orders can be severed into valid and invalid parts, and if so, what standard should govern the inquiry.” It decided that, “for purposes of this case we shall assume, arguendo, that the severability standard for statutes also applies to Executive Orders.”138 This assumption echoed the Court’s statement in Ex parte Mitsuye Endo that “[w]e approach the construction of [this] Executive Order . . . as we would approach the construction of legislation in this field.”139

Rules of interpretation often reflect underlying theories of interpretation;140 but the cases studied suggest that executive orders command no such theory (or theories). Focusing on two means through which courts implicitly elevate the status of executive orders, this Part argues that the lack of motivating theories and the easy availability of “common-sense” tools of interpretation imported from other contexts have contributed to an expansion of the executive’s authority vis-à-vis Congress.

a. Defining the Relationship: How Courts Handle Statutes and Executive Orders that Potentially Collide

Courts have been inconsistent with respect to how they determine when a statute can preclude or overturn an executive order. The D.C. Circuit’s 2012 opinion in Rattigan v. Holder offers a useful starting point for discussion.141 In Rattigan, the facts of which are presented below, the court effectively applied the harmonization canon of statutory interpretation, which provides that “when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”142 When courts, faced with two arguably conflicting laws (federal statutory law or otherwise), refuse to allow one law to override the other and instead invoke the goal of harmonization, they implicitly place the two potentially conflicting laws on equal footing.143 Decisions by courts to deploy—or not to deploy—the harmonization canon in cases involving conflicts between executive orders and statutes offer insights into how judges think about these orders.

In Rattigan, the D.C. Circuit evaluated whether Title VII liability could coexist with Executive Order 12,968, under which employees with security clearances “are encouraged and expected to report any information that raises doubts as to whether another employee’s continued eligibility for access to classified information is clearly consistent with the national security.”144 E.O. 12,968 was issued by President Clinton under the vaguest of authorities—”by the authority vested in me as President by the Constitution and the laws of the United States of America.”145

In 2001, Rattigan had registered complaints about race- and national origin-based discrimination; shortly thereafter, an internal memorandum raised concerns about his loyalty to the U.S. government, prompting a security investigation that was ultimately closed.146 Rattigan brought a Title VII suit in the District Court for D.C., alleging, inter alia, “unlawful retaliation for Rattigan’s pursuit of discrimination claims.”147 The government responded by arguing that the Supreme Court’s 1988 decision in Department of the Navy v. Egan, which has been read to ban all judicial review under Title VII of final FBI decisions to grant or deny security clearances148—a different set of circumstances than those presented here—required that courts read E.O. 12,968 as wholly overriding Title VII.149 The case proceeded to jury trial, and after a jury verdict in Rattigan’s favor, the Government appealed.150 A three-judge panel for the D.C. Circuit vacated and remanded, but explained that jury members should be permitted to “weigh the strength of the evidence . . . submitted in support of [the] claim that Rattigan might pose a security risk” and to infer pretext when assessing this evidence.151 Before the case returned to the trial court, however, the same three-judge panel granted a rehearing.152 It is the opinion on rehearing that merits further unpacking.

On petition for rehearing, the Government had argued that the standard set forth in the three-judge panel’s earlier decision would inappropriately permit “jurors [in Title VII litigation to] infer pretext based on their own judgment that the information reported was either unlikely to prove true or raised insufficiently weighty security concerns.”153 The court agreed. Highlighting the “deference owed ‘the executive in cases implicating national security,’”154 the court wrote that its previously announced standard “plainly conflicts with Executive Order 12,968’s expectation that employees will report even overheard rumors and small details that may ultimately prove irrelevant.”155

However, the court also felt a “duty not only to follow Egan, but also to ‘preserv[e] to the maximum extent possible Title VII’s important protections against workplace discrimination and retaliation.’”156 It proceeded to quote a Supreme Court rejoinder that “when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”157 The court announced that it would split the difference, allowing Title VII suits to proceed where reports made pursuant to E.O. 12,968 were “knowingly false.”158 Such a solution, it explained, would effectuate the purpose of E.O. 12,968 (since a “knowingly false” report does nothing to advance national security) without completely gutting Title VII protections.

To summarize: the court’s judicial jujitsu, while rejecting the government’s argument that E.O. 12,968 should trump Title VII, treated the executive order as equal in stature to the statute. The court then effectively applied the harmonization canon159 to its interpretation of the order, the statute, and the civil liability standards that accompany the latter.

At its narrowest, Rattigan implies equality of stature between a statute and an executive order issued pursuant to constitutional authority that the executive holds exclusively, rather than concurrently, with Congress. But Judge Kavanaugh’s dissent—ironically arguing for stronger deference to executive authority—suggests that there are even more interesting questions at stake. Judge Kavanaugh offered a reminder that “[i]f Congress wishes to re-strike the balance between personnel and employment discrimination laws on the one hand and national security on the other, it is free to do so.”160 Under this formulation, the power that the President exercised in issuing E.O. 12,968 is a power shared concurrently with Congress.

In other words, in Rattigan, the court placed an executive order that was issued in the “zone of twilight,” and pursuant to concurrently shared authority, on equal footing with a conflicting statute—and then tried to harmonize the two. It did so without inquiry into whether Congress, in passing Title VII, intended161 to preclude “zone of twilight” executive orders of this nature.162 This case thereby illustrates one means through which courts163 interpret executive orders to deprive Congress—and its statutes—of their due power.164

The Supreme Court made a similar, if more subtle, move in U.S. ex rel. Knauff v. Shaughnessy.165 In ex rel. Knauff, the Justices debated whether the War Brides Act of 1945, which sought to ease the immigration process for alien brides of servicemen, prevented the executive from detaining and denying entry to such a “war bride” without a hearing. The President sought to detain the war bride under a 1941 presidential proclamation and regulations promulgated pursuant thereto.166 The majority decision read the capacious War Brides Act narrowly—with a “decimating spirit”167—and was therefore able to give wide berth to the President’s proclamation and to uphold its application to the case. Justice Jackson, in an incisive dissent,168 insisted that, in considering the proclamation’s relationship to the War Brides Act, the majority had given short shrift to the statute.169

While Rattigan and ex rel Knauff might be read to suggest a transparent doctrine of “presidential exceptionalism,”170 the case law does not bear this out.171 The data discussed in Part II illustrates the President’s strong win-loss ratio, but there are a few too-big-to-ignore exceptions to the generally pro-executive trend.172 For example, in the 1996 case Chamber of Commerce v. Reich,173 the D.C. Circuit struck down an executive order that President Clinton had issued pursuant to authority delegated by the Procurement Act. The order had provided that “contracting agencies [of the federal government] shall not contract with employers that permanently replace lawfully striking employees.”174 But the NLRA generally “guarantees the right [of management] to hire permanent replacements”175 during labor strikes. Unlike in Rattigan (which post-dates Reich by fourteen years), the court did not seem interested in harmonization. Acknowledging that “undeniably there is some tension between the President’s Executive Order and the NLRA,” the court explained that “[t]o determine whether that tension constitutes unacceptable conflict we look to the extensive body of Supreme Court cases that mark out the boundaries of the field occupied by the NLRA.”176 Moreover, while “the progenitors of these cases originally arose in the context of state actions that were thought to interfere with the federal statute,” they apply “equally to federal governmental behavior that is thought similarly to encroach into the NLRA’s regulatory territory.”177 Applying this preemption doctrine, the court found that the NLRA preempted the executive order.

What distinguishes a case like Reich from a case like Rattigan—or from an even more analogous case like ex rel. Knauff? After all, both Reich and ex rel. Knauff featured a potential conflict between a partially Article I executive order178 and a distinct statute. The Supreme Court in ex rel. Knauff implicitly treated the order and the statute as coequals, while the D.C. Circuit in Reich allowed the relevant statute to preempt the order.

Perhaps the best explanation is that the plaintiffs in Reich (the Chamber of Commerce)could bring the court a pre-packaged preemptiondoctrine—an extensive body of NLRA-specific doctrine—on which it could rely to determine if Congress had preempted executive authority. But in the absence of subject matter-specific doctrine, courts do not usually apply the vocabulary of preemption (traditionally understood as a federalism doctrine179) in these cases. Left with a doctrinal void, the generic advice of Youngstown, and little in the way of a theory of executive orders, courts draw on canons of statutory interpretation, even though these canons were developed to apply to a pair of statutes rather than to a statute and an executive order. In so doing, courts subvert Congress’s role in making law.

b. Roads Paved with Good Intentions: Presidential Versus Congressional Intent in the Interpretation of Executive Orders

Courts have long used the same set of tools to interpret both executive orders and statutes. But while courts often seek to effectuate (some version of) congressional intent when interpreting statutes,180 their guiding principle when interpreting executive orders—including Article I executive orders—has generally been to give effect to presidential intent.181 In many respects, the wisdom of such an approach is incontrovertible. Executive orders are written by Presidents, and so when interpreting these orders, courts should see themselves as faithful agents of the President. Moreover, intentionality is far easier to locate in a single President than in the hydra that is Congress.182 The President is also far better situated to correct a mistaken interpretation than is Congress.183

A 1984 case, Sea-Land Service, Inc. v. Interstate Commerce Commission, illustrates this move.184 In Sea-Land, the D.C. Circuit found itself choosing between the presumption that Congress does not legislate retroactively and the explicit, contradictory intent of the President, whose executive order—promulgated pursuant to authority delegated by Congress—sought to apply the legislation retroactively. Presidential intent carried the day. Explaining that the relevant question was “one of statutory interpretation” and that “[t]he ‘law’ at issue in this instance is an Executive Order promulgated by the President,” the court concluded that “it is to his intent that we must turn for guidance in deciding the issue” at hand.185 In other words, when interpreting an executive order that drew on statutory authority, the court’s source of “law” lay in the President’s inherent constitutional powers rather than in his delegated statutory ones. The court thereby endowed the President with a power that Congress may not have intended to delegate.

The cases discussed in this Part share in common an under-theorized understanding of the executive order as a form of lawmaking. Reich, explicitly drawing on statute-specific doctrine,treats executive orders as subsidiary to statutory law in much the same way that state law is subsidiary to federal law. Rattigan, Sea-Land, and other cases in this study present examples of how courts sometimes elevate executive orders over statutory law, and the President over Congress. Meanwhile, Old Dominion Branch,186 discussed above, suggests that executive orders of indeterminate provenance can preempt state law via the Supremacy Clause, raising sensitive questions about federalism with no obvious answers.187

3. Executive Orders as Tools of Statutory Construction

The previous Parts discussed how courts resolve tensions between statutory law and executive orders. But executive orders interact with statutes in another way as well188: for the better part of a century, courts have been using executive orders as a crutch for divining statutory meaning.189

For example, in the 1947 case, Fleming v. Mohawk Wrecking & Lumber Co.,190 the Supreme Court considered a controversial presidential construction of Section I of the First War Powers Act. The Court wrote that while

Section 1 of the First War Powers Act does not explicitly provide for creation of a new agency which consolidates the functions and powers previously exercised by one or more other agencies . . . the Act has been repeatedly construed by the President to confer such authority. Such construction by the Chief Executive, being both contemporaneous and consistent, is entitled to great weight.191

More recently, the D.C. Circuit explained that “[w]e have considered Executive Order practice as relevant only when we have been ‘unable to determine congressional intent after applying traditional tools of statutory construction.’”192

Even if executive orders do not sit at the top of the judiciary’s interpretive toolbox, they clearly retain power to mold the judicially recognized meaning of statutory law.193 Executive orders are certainly more powerful than presidential signing statements—a reality that has not been lost on Congress.194 In negotiations with the White House over the Affordable Care Act, Representative Bart Stupak insisted that the President issue an executive order, rather than a signing statement, to promulgate his preferred interpretation of the controversial statute.195 According to Tom Daschle, Representative Stupak “thought signing statements were worthless” and wanted “a Presidential action that would carry actual force.”196

Stupak’s assessment carries with it no small amount of historical irony. The Reagan Administration famously fought a multi-front war to increase executive power vis-à-vis Congress. One of the Administration’s many battles in this war took the form of promoting signing statements as evidence of the legislative intent behind statutes.197 In an effort to make signing statements available to “[b]oth the Bench and the Bar” as a form of legislative history, then-Attorney General Edwin Meese worked to have the statements printed in the U.S. Code Congressional and Administrative News.198 As then-Deputy Assistant Attorney General Samuel Alito wrote, “the President’s approval is just as important as that of the House or Senate, [so] it seems to follow that the President’s understanding of the bill should be just as important [to courts and litigants] as that of Congress.”199 Years later, the second Bush Administration took up this fight, inspiring such controversy over its use of signing statements that an American Bar Association task force published a report critical of the practice.200 Today, despite all the furor, signing statements play a de minimis role in judicial construction of statutes,201 while executive orders play a far more important part.

While the practice of relying on executive orders as evidence of statutory meaning is a cousin of the congressional acquiescence doctrine discussed earlier, it serves a different purpose. The acquiescence doctrine rests on a legal fiction that congressional assent can be inferred from silence and that this assent suffices as congressional authorization of the order. The interpretive tool described in this Part is concerned not with the source of authority for a given executive order, but rather with the information that an executive order can provide courts about the proper construction of statutory law. Executive orders that are contemporaneous with legislation are seen both as reflecting the “objectively” correct construction of the statute in question and as “determining the meaning of [the] statute”202 in real time.

However, the practices described both here and in Parts III.B.1 and III.B.2 do share something in common. Each invites the President to expand his own power vis-à-vis Congress—whether by creating law that Congress has not yet blessed, by delineating the boundaries of the authority that Congress purportedly delegated, or by altering the meaning of congressional legislation altogether.

IV. executive orders bind the governed but not those who govern

Part III discussed judicial elevation of the executive at sites of executive-congressional dialogue—an elevation born not necessarily from “presidential exceptionalism”203 but rather from an under-theorized understanding of the role of executive orders in our system. This Part concerns a different means through which the relevant doctrine empowers the executive: it allows the President to circumvent commitment devices that might otherwise bind him to his own orders.

A. The Non-Justiciability of Executive Orders

Part III argued that courts have applied doctrines that widen, rather than narrow, the distance between legislative intent and presidential exercises of authority. Congress’s reduced role vis-à-vis executive orders is compounded by the failure of courts to force other types of commitment devices on presidential use of these instruments. For example, drawing on a gestalt of aggregated Article I, “zone of twilight,” and inherent authority,204 the President may use an executive order to vest the executive branch with judicially enforceable rights vis-à-vis third parties,205 to fill in the gaps of criminal statutes and thereby define prosecutable crimes,206 to “make the fundamental policy determination respecting the factors that warrant the death penalty,”207 to deny an immigrant a detention hearing,208 and to override state law via the Supremacy Clause.209

Yet executive orders often do not bind the President himself.210 Today, it is established law that executive orders that derive their power from Article II of the Constitution “are not judicially enforceable in private civil suits.”211 There are three classic rationales for this doctrine. First, “[f]ederal courts have stated that no federal [subject matter] jurisdiction exists over private causes of action alleging violations of constitutionally based executive orders.”212 Courts have generally rejected the argument that 28 U.S.C. § 1331, which vests federal courts with “jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,” creates subject-matter jurisdiction over civil actions arising under executive orders.213 This presents something of a paradox. Even though Article II executive orders are authorized by the Constitution rather than by statute, may well have the power to bend the meaning and scope of congressional law,214 and can preempt conflicting state law,215 civil actions that arise under executive orders fail to qualify as “arising under the Constitution [or] laws” of the United States.

The second and third rationales for refusing to find private rights of actions in executive orders are prudential. Courts have explained that (1) an alternative remedy for violations of executive orders can be found through appeal to the President, who has the authority to direct the activities of the executive branch, and (2) the principle of separation of powers counsels a hands-off approach for the judiciary. The D.C. Circuit referred to both of these rationales in its 1965 decision Manhattan-Bronx Postal Union v. Gronouski, in which it held that an executive order governing labor relations with federal employees did not vest any justiciable rights in those employees:

If appellants disagreed with the Postmaster General’s decision as to this aspect of personnel policy, and believed it to be contrary to the President’s wishes, it is obvious to whom their complaint should have been directed. It was not to the judicial branch. Congress has given the District Court many important functions to perform, but they do not include policing the faithful execution of Presidential policies by Presidential appointees.216

Manhattan-Bronx has been consistently reaffirmed by the courts.217 So today, even if a President were explicitly to offer to subject himself to suit, it is not clear that he could do so without help from Congress.218 A Congress looking to reassert its powers vis-à-vis executive orders might consider clarifying jurisdictional grants.

It has not always been this way.219 For example, in the 1956 case Haynes v. Thomas, the D.C. Circuit considered a claim brought by Frank L. Haynes, a “trial” (or “probationary”) employee who alleged he had been “discharged for security reasons without observance of the procedures prescribed by an Act of August 26, 1950.”220 While the Act, by its own terms, did not cover trial employees like Haynes, the Court observed that Executive Order 10,450 “was intended to extend the provisions of the statute even to applicants for employment.”221 In so doing, the President was not drawing on a delegated power, but rather on his supervisory authority over the executive branch:

In the exercise of his power to employ and discharge executive personnel, which is absolute unless limited by statute, the President can impose upon his subordinates the duty of observing statutory procedures in cases which the statute itself does not reach. This he has done in the Executive Order, even if it be thought [the Act] does not by its own terms apply to probationary employees.222

Yet even though Executive Order 10,450 was effectively indistinguishable from those orders later ruled incapable of creating judicially enforceable rights, the D.C. Circuit held in this case that the government’s failure to follow the order was a remediable injury. It ordered that Haynes be reinstated.223 Haynes and related cases224 have since been superseded by Manhattan-Bronx and its progeny.

Article I executive orders are often associated with statutes that create private rights of action. Yet private parties are rarely able to enforce the provisions of such executive orders via these statutory causes of action. For when courts evaluate claims brought pursuant to executive orders, even claims brought pursuant to Article I executive orders, they generally inquire into whether the President intended to create a justiciable right.225 The clear answer is usually “no”: the typical modern executive order explains that it is “not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”226 But as John Noyes has pointed out, it is odd for courts to look to presidential intent when interpreting the justiciability of the rules set down via executive orders that derive their authority from congressional statute.227 As Noyes has suggested, courts might instead look to the original source of authority—the statute—to determine if Congress intended to empower the judiciary to enforce any gap-filling rules that might thereafter be established by executive order.228

Juxtaposing this doctrine with the discussion in Part III, an inconsistency emerges: courts broadly interpret congressional intent to delegate authority—so broadly, in fact, that Congress need not pass an actual law in order to effect such a delegation. But courts also give presidents license to narrowly interpret congressional intent with respect to those causes of action that might empower individuals to enforce rights against the executive. While this asymmetry is consistent with some of the judiciary’s recent efforts to narrow access to the courts,229 it is inconsistent with any coherent theory of the executive order.

B. In Practice, Executive Orders Lack Commitment Devices

Part IV.A discussed how justiciability doctrine deprives the public of access to the courts to vindicate any interest in executive compliance with executive orders. This Part suggests that, in practice, executive orders subvert even the public’s basic reliance interest in knowing the content of its government’s laws. This is because the non-justiciability of many orders makes it possible for presidents to regularly waive,230 or even secretly modify, executive orders when such orders prove uncooperative.

For example, according to Senators Russ Feingold and Sheldon Whitehouse, an OLC memo issued under the George W. Bush Administration held that a President may “depart from the terms of a previous executive order” whenever he so desires because “an executive order cannot limit a President”231 —and this despite the fact that presidents are required, by statute, to publish executive orders in the Federal Register.232 Moreover, as Senators Feingold and Whitehouse explained, under OLC’s interpretation, the President need not “change the executive order, or give notice that he’s violating it, because by ‘depart[ing] from the executive order,’ the President ‘has instead modified or waived it.’”233

As the Senators observed:

Now, no one disputes that a President can withdraw or revise an Executive Order at any time; that is every President’s prerogative. But abrogating a published Executive order without any public notice works a secret change in the law. Worse, because the published Order stays on the books, it actively misleads Congress and the public as to what the law is.234

As discussed above, since there is generally no private right of action to enforce an executive order, individual plaintiffs can do little to challenge these practices—if they even know about them.235

This secrecy subverts one common rationale for exempting executive orders from the constraints of the Administrative Procedure Act and for giving the President a long leash on which to interpret congressional delegations: the orders’ purported publicity, which—in theory236—permits public scrutiny that can serve as a pressure point on executive decision making.

Returning to an example with which this Note opened, statutes like FISA not only empower the government to conduct surveillance activities, but also place restrictions on those activities—restrictions that are, theoretically anyway, legally enforceable.237 Moreover, such restrictions may not be withdrawn or modified without the public approval of Congress and the President. In contrast, E.O. 12,333, the executive order counterpart to these statutes, appears to have created new surveillance powers for the federal government “with the stroke of the pen.”238 Meanwhile, judicial decisions have rendered the restrictions that the order publicly purports to place on government activities239 unenforceable in courts. Indeed, the George W. Bush Administration reportedly ignored these restrictions when setting up its warrantless wiretapping program240—a program that has become synonymous with presidential abrogation of the rule of law.241

The doctrine discussed in this Part thus provides the “two” in a one-two punch: once given the power to bind the governed—and the permission to circumvent the procedural hurdles of bicameralism and presentment—executive orders are exempted from one of the hallmarks of law: they bind those who are governed but not those who do the governing.

conclusion

This Note has discussed the doctrinal asymmetries that characterize the “jurisprudence” of executive orders. Just like statutory law, executive orders can impose legal obligations on citizens and create new powers for the federal government, and they can be harnessed to alter the judicially acknowledged meaning of statutory language. At least some, and possibly all, valid executive orders can preempt conflicting state law.

But unlike statutes, under current doctrine and practice, executive orders do not similarly constrain those who do the governing. Their imprecision about the sources and boundaries of their authority, especially in “[t]he absence of a framework for review,” does “nothing to check the incentives of the president and his counsel to seek the widest possible construction of the president’s authority.”242 Indeed, the courts have generally, and generously, affirmed these capacious constructions, at least where courts lack direct guidance from other areas of the law. Meanwhile, the President can wish away many uncooperative executive orders, without risk of lawsuit, rendering these instruments fair-weather friends for everyone but the President himself.

This Note has suggested that this jurisprudence of executive orders may not derive from any coherent doctrine of presidential exceptionalism but instead from an under-theorized understanding of the role of executive orders and how they should function as part of our separation of powers. The doctrinal imbalances highlighted here should motivate further study of executive orders and of the doctrine that has developed around them. Does this doctrine, some of it quite old, suggest that the aforementioned asymmetries have become a gloss on our constitutional design? Given the diverse genealogies of different types of executive orders, is the term “executive order” itself misleadingly broad? Are courts in fact intentionally buttressing the executive order—perhaps as a tool that preserves flexibility that the modern presidency requires?243 Or have courts failed to realize that in the shadows of this inchoate doctrine, executive orders—as repeat players in the push and pull of debates over the separation of powers—have taken on a life of their own?

appendix i: methodology

A. Identifying Cases of Potential Relevance

This section details the process that I designed to identify cases that fall within the parameters described in Part II of this Note.

I isolated an initial corpus of cases through three Westlaw Next search queries. I conducted the first of these searches (search #1) within Westlaw Next’s “Key Number search” (searching within all key numbers). A “key number” search identifies Westlaw headnotes that include the search terms. Because headnotes aim to capture the “specific point[s] of law” made in each case,244 they are useful for identifying decisions in which judges engage with legal questions pertaining to executive orders. Through the key number search, headnotes, along with associated case information, can be exported into Excel for sorting and reviewing. I conducted this first search using the following search query: adv: (“Executive order!” or “president! memorand!” or “president! proclamation”).245 Exporting the results and filtering them for decisions issued by the U.S. Supreme Court and the Court of Appeals for the D.C. Circuit yielded 894 headnotes (excluding duplicates) from 339 cases.

I conducted the second search (search #2) using Westlaw Next’s general search function. Here, I used the SY() field, which queries Westlaw’s case synopses.246 I searched on the query adv: SY(“Executive order!” or “president! memorand!” or “president! proclamation”) and filtered for decisions issued by either the Supreme Court or the Court of Appeals for the D.C. Circuit. This search returned 117 cases, 48of which had not been identified in the keynote search.

The third search (search #3) was designed as a sort of safety net: the goal here was to make sure I had not missed any Supreme Court decisions featuring substantive, but otherwise overlooked, discussions of executive orders.247 This search query identified those Supreme Court cases that included five mentions of any of the three types of presidential orders. I conducted the following search using Westlaw’s Next general search function: adv: LE(ATLEAST5(“Executive order!”) or ATLEAST5(“president! memorand!”) or ATLEAST5(“president! proclamation”)) % HE(“Executive order!” or “president! memorand!” or “president! proclamation”) % SY(“Executive order!” or “president! memorand!” or “president! proclamation”).248I then filtered for cases heard by the Supreme Court. This search yielded 26 cases.

I initially conducted these searches in March 2013. In November 2013, I searched for new cases (search #4), using all of the searches described above, and identified three new cases for further review.

B. Isolating Cases for Further Study

The 416 cases I initially identified using the methodology described above were found by casting a wide net. The next step involved narrowing this pool of cases.

I began by reviewing each of the 894 headnotes from the 339 cases that I had identified in search #1. When first reading a headnote, I operated from a presumption of “relevance.” At this stage, I marked as “irrelevant” only those headnotes that (1) merely referenced an executive order in passing (often as a historical footnote) or (2) only included exceedingly fact-specific, non-analytic statements or assessments in reference to executive orders. Because I was using headnotes, rather than the full text of the case, to make this relevance determination, I erred heavily toward including cases.249 Where the Order’s context was not clear, I retained the case. I ultimately marked 369 headnotes from 192 cases as “relevant.” I read these 192 “relevant” cases in full.

Search #2 had yielded 117 cases, 48 of which had not been identified in search #1. Of the 117 cases, I read all of those that I had not already read in full in conjunction with search #1 (the 48 that had not been identified in search #1 plus 27 cases whose headnotes I had discarded as “irrelevant” using the process described above). I also read all 26 cases that I identified during search #3.

When reading these decisions in full, I applied a more exacting standard of “relevance” (call it a “highly relevant” standard). I considered each case against initial lists of potential “issues resolved” and “topics of judicial discussion.”250 If the case neither implicated any of the items on these lists nor fell within the general categories of “Article I and executive orders,” “Article II and executive orders,” “Article III and executive orders,” “interpreting executive orders,” or “rights and executive orders,” then I discarded it. The overarching question that I kept in mind while making these determinations was: “Does this contribute anything to our understanding of the role of executive orders in our system?”

I erred on the side of retaining cases and marked those that I felt might conceivably be on the border. When I re-coded the cases against the new taxonomy (see Part III, infra), I checked these borderline cases against the new taxonomy and ultimately chose to keep some and discard others.

The borderline cases that I ultimately discarded varied in their characteristics. For example, in Cotton Petroleum Corp. v. New Mexico,251 the Supreme Court engaged in a discourse on the historical distinctions between American Indian reservations created via treaty and those created via executive order. However, neither the Court’s disposition of the case nor the doctrinal discussions within the opinion shed any light on the executive order as a form of law. The Court’s treatment of executive orders was purely historical and highly context specific. To take another example, in the 1989 case U.S. v. Sperry Corp.,252 the Supreme Court heard a Takings Clause challenge to Section 502 of the Foreign Relations Authorization Act. The Court held that no takings could have occurred because its earlier holding in Dames & Moore v. Regan (itself a highly relevant case) had clarified that executive orders had validly nullified certain American property interests in Iranian assets. I determined that the Court said nothing new here about executive orders—it did not shed light on “executive orders and constitutional rights”; rather, it simply reaffirmed the holding in Dames & Moore. (The Court did discuss some other constitutional challenges to Section 502, challenges that had no connection to any executive order.) The Court’s decision was unanimous, and it appears that the case was taken mostly for the purposes of reversing an incorrect opinion by the Federal Circuit.

Another borderline case I discarded was Rostker v. Goldberg.253 In Rostker, the Supreme Court considered whether Congress’s decision to exclude women from the draft was constitutional. In describing the history of the Vietnam War-era draft, the Court referenced presidential proclamations that instituted the draft pursuant to the Military Selective Service Act. The case had appeared relevant on the basis of its headnotes, but read in full, it contributed nothing to our understanding of executive orders.

Meanwhile, in Amell v. United States,254 which referenced an executive order in a footnote (and its headnote), the only actual discussion of an executive order in the text of the case came in the following sentence, which simply summarizes long-established understandings of government employment law:

By virtue of their governmental employment, the petitioners’ right to join unions and to select bargaining representatives, unlike that of private seamen, exists only by express leave of the President, Exec. Order No. 10988, 27 Fed. Reg. 551 (1962), and they are forbidden, under pain of discharge, fine and imprisonment, from exercising or asserting the right to strike, 69 Stat. 624, 5 U.S.C. §§ 118p—118r (1964 ed.).255

In total, I determined that 121 cases from search #1, 26 cases from search #2, and 3 cases from search #3 were highly relevant. I also read all 3 cases that I identified through search #4 (conducted in November 2013) and determined that 1 was “highly relevant.” An additional case was listed in a foundational source,256 but it was not uncovered via this methodology; it was added as well.

In total, I read 297 cases and coded 152 of them. Of the cases I coded, 72 were heard by the Supreme Court and 80 were heard by the Court of Appeals for the D.C. Circuit.

C. Designing a Draft Survey Instrument

The first time that I coded cases, I used the following procedure: upon reading a case in full, I would first determine if it was “highly relevant”; if it was, then I would immediately code it using a survey instrument (a Google Form) that I had previously designed. This procedure had a major drawback: the survey instrument had been designed before I had read enough cases to understand the nuances that the survey would need to capture. Ultimately, I used this first experience of reading and coding cases to inform design of a second survey instrument. The study described in this Note documents the result of rereading and re-coding the (previously labeled) “highly relevant” cases using the second survey instrument. Cases were coded in chronological order, which helped me better identify those cases that appeared to be contributing to the doctrine.

appendix ii: additional results

As mentioned in the Introduction, this Note makes two types of contributions to the literature. First, it offers a foundational lay-of-the-land with respect to executive orders in court. Basic questions have never been answered: among them, who is bringing these doctrine-advancing cases and why? What types of executive orders are being challenged in these cases? This Appendix offers preliminary answers to these basic who, what, when, where, and why questions.

A. The Executive Orders Themselves

The orders that litigants brought into the courtroom reflected the diversity of substantive topics more broadly covered by executive orders.257 As Figure 6 illustrates, some cases featured orders whose relevant parts covered purely domestic matters,258 such as labor rights during peace time,259 while others involved orders whose relevant parts implicated foreign relations,260 national security,261 issues of war and peace,262 or more than one of the above.263

Figure 7.

spheres of authority implicated by the order(s) at the center of the litigation

As Figure 8 and Figure 9 illustrate, across these three non-domestic categories (foreign relations, war powers, and national security), the executive’s success rate was roughly correlated with the levels of historic congressional involvement in the spheres represented by the respective categories. Thus, the executive has historically fared better in cases involving foreign relations (which, the Senate’s Treaty Power excepted, has largely been the special province of the executive), than in cases involving war powers and national security—in which Congress has traditionally been thought to have a more meaningful role.264 It is, however, surprising to see that the President generally fared better in domestic cases than in those involving war powers and national security.

A chronological look at the data, brings this story into sharper focus. All of the national security and war power cases in which courts contracted executive authority were decided before 1960. While the sample size here is small, these cases counsel toward a reevaluation of more modern assertions that the judiciary historically deferred to the executive in these arenas.265 Fast-forwarding to the present, courts currently may be in the process of reducing historical levels of executive primacy in foreign relations: the few foreign relations cases that contract executive authority were decided during or after 2010. These holdings are not inconsistent with the thematic bent of the Supreme Court’s recent ruling in Zivotovsky v. Clinton.266

Figure 8.

implications for executive authority, by sphere

Figure 9.

federal government win rate

B. The Reasons for Litigating

As Figure 10 illustrates,267 cases involving executive orders were generally litigated for one of four reasons. First, some cases (38%) arose because a private individual,268 business,269 interest group,270 Congressperson,271 or state/municipality/Indian tribe272 sought to prevent enforcement of an executive order. In such litigation, common plaintiffs’ arguments included assertions that the executive order was not actually authorized by statute or was even precluded by a statute, that the executive lacked independent constitutional authority to issue the order, or that the order violated a constitutional right.

Second, some plaintiffs (22%) used the courts to try to enforce rights created by an executive order. Such cases were brought by the federal government 273 as well as by other entities—ranging from unions274 to Indian tribes.275 However, as Part IV discusses, unless the statute authorizing the executive order explicitly provides a cause of action, courts are generally reticent to find that executive orders create rights that are appropriate for judicial remedy.

Third, plaintiffs sometimes (29% of cases) initiated proceedings for reasons otherwise related to an executive order. For example, in the 1969 case Nestor v. Hershey,276 the litigants debated which of two sections of the Military Selective Service Act an executive order was issued pursuant to; the answer would determine whether the appellant could qualify for a draft deferral. Finally, executive orders figured prominently into courts’ resolution of some cases (16%) in which, upon initiation of proceedings, executive orders appeared facially irrelevant to the plaintiffs’ claims.277

Figure 10.

reason for initiating proceedings

C. The Parties

Different types of parties have been responsible for bringing executive orders into the courtroom. In this study, a private individual was the named plaintiff in 47% of cases; interest groups—including unions—were named plaintiffs in about 22% of cases. Businesses were responsible for bringing 18% of coded cases to court; the federal government was responsible for 14%. A handful of cases were brought by state/municipal entities or by American Indian tribes; such cases often involved disputes over allocation of land or other natural resources.278

While different types of plaintiffs were responsible for bringing executive orders into the courtroom, the named defendant was by and large the federal government—a statistic no doubt exacerbated by this study’s focus on the D.C. Court of Appeals.

Figure 11.

(a) type of defendant, (b) type of defendant (by court) & (c) types of parties initiating article iii proceedings

D. The Decades: 1865-2013

The 152 judicial decisions coded in this study—eighty from the Supreme Court and seventy-two from the Court of Appeals for the D.C. Circuit—were issued over a 148-year span. Their distribution over the decades is illustrated in Figure 12. The types of orders implicated in these cases varied, predictably, over time. The pre-1920 cases were largely concerned with wartime proclamations—first the Civil War279 and then the Spanish-American War280—as well as with executive orders and proclamations that governed land allocation.281 Starting in the 1940s, the case law began to track some of the nation’s most contentious social and political issues. The wartime restriction of Japanese-Americans’ civil rights brought executive orders into the courtroom,282 as did the Korean War,283 the Second Red Scare,284 desegregation,285 the Vietnam draft,286 affirmative action,287 the Iran-Contra affair,288 the War on Terror,289 and stem cell research.290 The fact that courts have meaningfully grappled with executive orders in all of these contexts demonstrates the degree to which executive orders are woven into the fabric of national law and policy.

Figure 12.

cases coded: distribution across the decades

Figure 13 chronologically maps outcomes (for executive authority) over the decades, with no obvious trend emerging.

Figure 13.

implications for executive authority: over the years

E. The Details: More Information About Figure 2

This Part provides more information about the categories shown in Figure 2. The results featured in Figure 2 are organized into five topical categories consisting of a combined twenty-one sub-components.

The first of these topical categories is “Article I and executive orders.” Its sub-components all query the extent to which a judicial decision discussed Congress’s role vis-à-vis the relevant executive order. The decisions reviewed as part of this project discussed “Article I and executive orders” in different ways, each captured by a different sub-component. Some engaged with Congress’s power to delegate authorities to the President,291 while others asked whether the executive order, either in full or as interpreted or implemented, did or could rest its authority on congressional authorization.292 In some opinions, the court studied interactions (or the lack thereof) between legislative and executive branches for guidance in interpreting the executive order or determining whether it had the force of law.293 In cases that fell in this latter category, courts often found congressional “ratification” of,294 or acquiescence to,295 an executive order. Finally, in some cases, courts drew on executive orders to inform their inquiries into statutory meaning.296

Many of the decisions reviewed as part of this study also engaged with questions of “Article II and executive orders.” Figure 2 shows the different Article II powers in which courts located the authority to issue executive orders: the commander-in-chief power;297 the President’s authority over foreign relations;298 the powers created through the Take Care Clause and the Vesting Clause;299 and the President’s supervisory authority over the executive branch.300

The third category, “Article III and executive orders,” largely involved questions relating to justiciability doctrines, including whether an executive order had the power to create judicially enforceable rights.301 With respect to basic mootness,302 forum,303 standing,304 and exhaustion305 questions, the courts apply the same standards to executive orders that they apply to statutes,306 although establishing taxpayer standing to challenge activities conducted pursuant to an executive order may be even more challenging than establishing taxpayer standing to challenge statutory law.307

A fourth category, “interpreting executive orders” engages with the standard interpretive questions: did the court consider what might be the best interpretation of the executive order?308 Did it discuss the rules of construction on which it relied?309 How much deference did it give to agency interpretations of the executive order?310 A few additional cases featured discussions of whether the executive order contained sufficiently developed reason-giving.311

The fifth and final category includes sub-topics related to “executive orders and rights.”Did the court consider how the executive order might impact either constitutional rights312 or other pre-existing legal rights?313 This category also incorporated the question of whether the court discussed components of federalism.314