Executive orders in court.

• Author: Newland, Erica
• Position: Introduction through III. Courts Appear to Lack a Theory of the Constitutional Relationship of Congress to Executive Orders B. Doctrines That Negotiate the Relationship of Executive Orders to Statutory Law Interact so as to Augment Presidential Power 1. Authorizing Executive Orders p. 2026-2062

INTRODUCTION I. OVERVIEW OF FINDINGS II. METHODOLOGY A. The Scope B. The Courts C. The Cases III. COURTS APPEAR TO LACK A THEORY OF THE CONSTITUTIONAL RELATIONSHIP OF CONGRESS TO EXECUTIVE ORDERS A. Presidents Often Fail To Clarify the Sources of Their Authority To Issue Executive Orders B. Doctrines that Negotiate the Relationship of Executive Orders to Statutory Law Interact so as To Augment Presidential Power 1. Authorizing Executive Orders: Congress Need Not Act in Order To Delegate Its Powers to the President 2. Executive Orders in the Statutory Shadow: The Tools of Interpretation that Courts Apply to Executive Orders Often Augment Executive Power a. Defining the Relationship: How Courts Handle Statutes and Executive Orders that Potentially Collide b. Roads Paved with Good Intentions: Presidential Versus Congressional Intent in the Interpretation of Executive Orders 3. Executive Orders as Tools of Statutory Construction IV. EXECUTIVE ORDERS BIND THE GOVERNED BUT NOT THOSE WHO GOVERN A. The Non-Justiciability of Executive Orders B. In Practice, Executive Orders Lack Commitment Devices CONCLUSION APPENDIX I: METHODOLOGY A. Identifying Cases of Potential Relevance B. Isolating Cases for Further Study C. Designing a Draft Survey Instrument APPENDIX II: ADDITIONAL RESULTS A. The Executive Orders Themselves B. The Reasons for Litigating C. The Parties D. The Decades: 1865-2013 E. The Details: More Information About Figure 2 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 activities (4)--has largely escaped public (5) and congressional (6) 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 power (21) 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. (23) As 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 law (36) 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...