Executive orders in court.

• Author: Newland, Erica
• Position: 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 2. Executive Orders in the Statutory Shadow through Conclusion, with appendices and footnotes, p. 2062-2099

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 Eo 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-a-vis Congress.

   1. 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 clearances (148)--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 'presence] 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 canon (159) 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, intended (161) to preclude "zone of twilight" executive orders of this nature. (162) This case thereby illustrates one means through which courts (163) 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...