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Judicial Review of Executive Orders

Since the early days of the republic, the federal judiciary has reviewed the constitutionality of legislation enacted by Congress. The Court’s decision in Marbury v. Madison (1803) implied, and later cases confirmed, that federal courts also possess authority to review the actions of the executive branch. As another essay in this series explains, that review frequently concerns the actions of administrative agencies, particularly since the early twentieth-century inception of the modern administrative state. On various occasions throughout history, and more frequently in modern times, the judiciary has also been called upon to assess the validity of formal directions the president has issued to executive branch agencies and officials, most commonly in the form of executive orders. Federal court review of executive orders helps to define the scope of presidential powers and serves as a significant aspect of the checks and balances woven into the American constitutional system.

Article I of the U.S. Constitution vests the legislative power of the United States in Congress alone. The line between legislative and executive power is not always clearly defined, however. In the course of directing the activities of the executive branch, presidents since George Washington have issued executive orders on a wide variety of subjects, including public lands, military matters, economic crises, and civil rights. Franklin D. Roosevelt issued over 3,700 executive orders, far more than any other president, while Theodore Roosevelt, Woodrow Wilson, and Calvin Coolidge each issued more than a thousand. Most executive orders have dealt with routine administrative matters, while others, such as Abraham Lincoln’s Emancipation Proclamation of 1863 and Harry Truman’s desegregation of the armed forces in 1948, have made substantial policy changes. Modern presidents have not necessarily issued more executive orders than their earlier counterparts, but many of their orders have been broader in scope and significance. 

A president’s authority to issue an executive order typically comes, either explicitly or implicitly, from a congressional statute, but on occasion presidents have justified orders on the basis of their constitutional power to execute the nation’s laws. Whether the Constitution empowers the president only to execute policies devised by Congress or additionally vests the president with substantive policymaking powers has long been a matter of dispute. As a result, orders based on inherent presidential powers not authorized by Congress are more likely to raise separation-of-powers concerns. In these cases, courts must determine whether the president has exercised legislative power belonging only to Congress.

Courts may strike down executive orders not only on the grounds that the president lacked authority to issue them but also in cases where the order is found to be unconstitutional in substance. In some cases, it is not an executive order itself that is challenged in court, but instead a regulation promulgated pursuant to an order or the manner in which executive branch officials have interpreted an order. While many executive orders have been challenged on specific statutory and constitutional grounds, others have been subjected to “reasonableness review.” In the early twentieth century, the Supreme Court began to read the Due Process Clause of the Fifth and Fourteenth Amendments to include a guarantee of “substantive due process.” This legal concept permitted courts to review both statutes and executive actions limiting the rights to life, liberty, or property to ensure that they were reasonable. Critics of reasonableness review, many of them progressive reformers, argued that the practice was antidemocratic because it substituted the judgment of courts for that of elected officials. Moreover, many believed that the courts applied reasonableness review too aggressively, in particular where economic regulation was concerned.

In the late 1930s, as the Supreme Court began to uphold New Deal economic regulations similar to those it had previously struck down, it also embraced a more deferential approach to executive action by adopting “rational basis” review. Under this standard, an executive order would survive a due process challenge if it was rationally related to a legitimate governmental purpose. Unlike the reasonableness standard, rational basis review did not require the submission of evidence to establish valid grounds for an order. Instead, any rational basis for the order the court could imagine was sufficient. Since the 1940s, rational basis review has continued to govern most due process challenges to executive orders, but federal courts have in some instances engaged in the more stringent reasonableness review. The Supreme Court has not established a uniform standard governing the level of scrutiny courts must give to executive orders.

Executive orders have most frequently come before the federal courts in the context of attempts to invalidate them or halt their enforcement. Some cases, however, have been brought to enforce rights allegedly created by an executive order. One especially common example of such suits, typically occurring in the 1960s and later, was a suit in which one private party sued another for damages arising from the defendant’s violation of an order forbidding employment discrimination. Courts have often refused to hear such cases, particularly when the order was issued under the president’s inherent constitutional powers. While the federal courts have jurisdiction over civil suits arising under the Constitution, federal law, and treaties (otherwise known as “federal question” jurisdiction), courts have held that executive orders not authorized by Congress are not “federal law” for these purposes. In the 1940s, for example, federal courts dismissed several lawsuits on jurisdictional grounds because the 1942 order the plaintiffs sought to enforce—providing extra wages for war workers required to work seven days in a row due to emergency conditions—was not based on congressional authority and was therefore not a law.

Likewise, courts have rejected the argument that a case between private parties arises under the Constitution merely because it involves a constitutionally authorized executive order. In Farmer v. Philadelphia Electric Co. (1964), for example, the plaintiff alleged violation of an executive order prohibiting racial discrimination by government contractors. The U.S. Court of Appeals for the Third Circuit noted that the Constitution was meant to impose limits on governmental power. Because the complaint did “not assert any claim against anyone acting under . . . Governmental authority, but one against a private corporate employer,” the case did not arise under the Constitution.

Executive order cases have often been dismissed because of separation-of-powers concerns. The creation of a private cause of action—the ability of a private party to enforce a right through the judicial process—is a core legislative function. Courts have held, therefore, that an executive order based on inherent presidential powers cannot create an enforceable cause of action. Similarly, executive orders that are authorized by congressional statute generally do not include private rights of action unless the authorizing statute shows that Congress intended the order to be enforceable in court. As a result, private civil suits regarding executive orders of any kind are rare.

Some of the most notable executive order cases in the nation’s history have occurred during times of war, when presidents have often sought to exercise more robust powers in the interest of prosecuting the war or protecting national security. The federal courts have deferred to these assertions of presidential power in some cases and sought to restrain them in others. Wartime orders issued by Abraham Lincoln and Franklin D. Roosevelt are a study in contrasts. In the early days of the Civil War, Lincoln sought to counter acts of sabotage by Maryland secessionists by authorizing his military commanders to suspend the writ of habeas corpus along troop transportation routes between Washington, D.C., and Philadelphia. In Ex parte Merryman (1861), Chief Justice Roger Taney, sitting on the U.S. circuit court in Maryland, held that the power to suspend the writ rested exclusively with Congress. Despite holding Lincoln’s order unconstitutional, Taney acknowledged that he had no way of compelling the president or military authorities to comply with his ruling.

The Supreme Court struck down another of Lincoln’s wartime executive orders in Ex parte Milligan (1866). In 1863, Lincoln issued General Order No. 100, a code of conduct for the military during wartime. The order provided for trial by military commissions, rather than civilian courts, for civilians alleged to have aided the Confederacy. Lambdin Milligan, an alleged Confederate sympathizer in Indiana, was convicted by such a commission and sentenced to death. The Court held that Milligan’s trial violated several constitutional provisions—including the right to a jury trial in criminal cases—and that trials by military commission could not be held in states where the civilian courts were operating, as they had been in Indiana throughout the war. The Court’s opinion suggested that trials of civilians by military commissions might have been unconstitutional even in states under Confederate control but did not decide that issue. The Court distinguished Milligan in Ex parte Quirin (1942), upholding Roosevelt’s World War II order providing for trial by military tribunal for those accused of espionage or sabotage. Unlike in Milligan, the Court in Quirin found that the defendants had been properly classified as enemy combatants.

The Court deferred to Roosevelt again in its widely criticized decisions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944). In Hirabayashi, the Court upheld a curfew order directed at Japanese Americans, while in Korematsu, the Court approved an order excluding Japanese Americans from certain areas on the West Coast, which displaced thousands of people, forcing them to move to relocation camps. Both military orders were promulgated under Roosevelt’s executive order authorizing these measures as a defense against espionage and sabotage in the wake of the Pearl Harbor attack. In both cases, the Court ruled that the orders were not the product of racial animus or discrimination, but rather were legitimate military measures taken to protect national security. Three justices filed dissenting opinions in Korematsu on the basis that the exclusion order constituted impermissible racial discrimination. Nevertheless, the decisions showed great deference to military officials and, implicitly, to Roosevelt’s executive order authorizing their actions. In 2018, the Supreme Court explicitly repudiated Korematsu.

Federal courts have occasionally invalidated presidential orders on the basis that Congress overstepped its bounds by authorizing the president to make the order. The non-delegation doctrine holds that Congress, being vested by the Constitution with all legislative power, may not delegate that power to the other branches of government. In Panama Refining Co. v. Ryan (1935), the Supreme Court struck down executive orders regulating the transport of petroleum that Roosevelt had issued pursuant to the National Industrial Recovery Act. Because the NIRA provided no standards or guidelines for the president to follow in deciding whether to allow or prohibit transport, the Court found Congress to have impermissibly delegated its legislative authority. A few months later, in Schechter Poultry Corp. v. United States (1935), the Court made a similar finding with respect to a code of competition for the poultry industry that Roosevelt had approved by executive order. As a result, the Court struck down the order as well as Title I of the NIRA, which authorized such industrial codes.

The year after Panama Refining and Schechter, the Court demonstrated that it was less likely to apply the non-delegation doctrine to executive orders issued in the sphere of international affairs. In U.S. v. Curtiss-Wright Export Corp. (1936), the Court held that Congress had not improperly delegated legislative authority to Roosevelt when it authorized him to ban weapons sales to either side in a war between Paraguay and Bolivia. Because the president was the voice of the nation in foreign affairs, the Court noted, Congress could grant the president more discretion in that area without running afoul of the Constitution.

Perhaps the most prominent Supreme Court case regarding the separation of powers between Congress and the president involved Roosevelt’s successor, Harry Truman. Youngstown Sheet & Tube Co. v. Sawyer (1952) became a landmark case both because of its resolution of a major national controversy and because of the Court’s complex analysis of the constitutional limits of inherent executive power, particularly when a president sought to expand that power in the pursuit of national security. In 1952, the United Steelworkers of America announced a nationwide strike. Fearing the effects of a disruption of steel production in the midst of the Korean War, Truman ordered Secretary of Commerce Charles Sawyer to seize and operate the country’s steel mills. Acting without authorization from Congress, Truman relied on the inherent constitutional powers of the presidency to justify the order. The Court struck down the executive order by a vote of 6-3 on the grounds that it had been issued without proper authority.

The Court’s majority opinion reasoned that steel production was too attenuated from military operations to find justification for the seizure in Truman’s powers as commander in chief. Truman’s inherent executive authority did not provide grounds for the order either because the seizure was not aimed at the execution of a congressional policy. Instead, the Court held that the order established a new policy and was an unlawful exercise of legislative power. Justice Felix Frankfurter noted in his concurring opinion that the seizure appeared to be in direct contravention of the will of Congress, which had considered including this power in the Labor Management Relations Act of 1947 but declined to do so. The Defense Production Act of 1950, which expanded presidential authority over wartime production, likewise included no such authority.

Justice Robert Jackson’s widely admired concurring opinion, frequently cited by courts and legal scholars alike in ensuing years, set out a three-part classification for executive orders. According to Jackson, presidential power was at its apex when used in accordance with the express or implied will of Congress, and at its lowest ebb when the opposite was true. In the middle lay a “zone of twilight” where Congress and the president could have concurrent authority, or the distribution of authority might be uncertain. Jackson proposed no specific test for evaluating such cases, noting that the result would depend on “the imperatives of events and contemporary imponderables.” In Youngstown, Jackson shared Frankfurter’s view that Truman had acted against the will of Congress.

The Supreme Court referred to Jackson’s framework from his concurrence in Youngstown in Dames & Moore v. Regan (1981) (the named defendant was Secretary of the Treasury Donald Regan). Dames & Moore addressed executive orders Presidents Jimmy Carter and Ronald Reagan made during and after the Iranian hostage crisis of 1979–1981. The orders culminated in the suspension of federal court proceedings against Iranian assets so that those cases could be resolved by the U.S.-Iran Claims Tribunal. In response to a challenge by an American claimant, the Supreme Court upheld the orders, finding that they had been issued in accordance with the implied will of Congress. While no statute explicitly authorized the suspension of federal court proceedings, the Court found that the “general tenor” of congressional legislation over the years indicated an intent to vest the president with “broad discretion” in dealing with foreign assets. The International Claims Settlement Act of 1949 had “implicitly approved the practice of claim settlement by executive agreement.” Moreover, the International Emergency Economic Powers Act of 1977 provided explicit authorization for the president to freeze Iranian assets and transfer them to the Federal Reserve to facilitate the claims process. According to Jackson’s framework from Youngstown, therefore, Carter and Reagan had significant power to act in this policy area. In making its ruling, the Court pointed out that cases might occupy various points across a spectrum rather than fitting neatly into one of Jackson’s three categories.       

Federal court review of executive orders is one of the most important facets of the relationship between the executive and judicial branches. In evaluating presidential actions, the courts uphold the separation of powers between Congress and the executive and place a check on executive power. On occasion, federal courts are required to perform this function in moments of national crisis. While there have been notable instances in which the Supreme Court has struck down executive orders, the Court has been loath to do so frequently, preferring to be cautious when reviewing the exercise of presidential power.

Further reading:
Bruff, Harold H. “Judicial Review and the President’s Statutory Powers.” Virginia Law Review 68, no. 1 (Jan. 1982): 1–62.

Driesen, David M. “Judicial Review of Executive Orders’ Rationality.” Boston University Law Review 98, no. 4 (Sept. 2018): 1013–1066.

Newland, Erica. “Executive Orders in Court.” Yale Law Journal 124, no. 6 (April 2015): 2026–2099.

Noyes, John E. “Executive Orders, Presidential Intent, and Private Rights of Action.” Texas Law Review 59, no. 5 (May 1981): 837–878.