Signed by One, Shielded by Nine: Supreme Court Judicial Review of Executive Orders

Abstract

In his second term, President Trump has dramatically increased the number of executive orders (EOs) issued compared to his predecessors. EOs carry the full force of the law and yet they operate within a legal gray area within the courts, which serve as the main check on their abuse. Given this surge in new EOs, this thesis asks three related questions: 1) whether the jurisprudence surrounding EOs has changed over time, 2) if it has, how has the jurisprudence surrounding EOs changed, and 3) to a lesser extent, why the jurisprudence has altered if it has done so. To answer them, this thesis performs a qualitative case study analysis of the 20 EO-related cases on the Supreme Court from the Rehnquist Court (1986) to the present. This also employs the use of a probit model in a supplementary quantitative analysis of justices’ votes across these cases. This thesis concludes that the present-day Roberts Court has not broken with jurisprudence in any significant way as the same principles are applied in EO review across both Courts and prior. Though the Court’s recent use of the “major questions doctrine” could mark the beginning of a shift in jurisprudence. However, despite a lack of jurisprudence change, the Roberts Court has meaningfully shifted the balance of power towards the executive through procedural shifts: discontinuation of universal injunctions and increased use of the shadow (emergency) docket. The probit model also produced weak statistically significant results, potentially implicating justice political alignment with EO issuer and appearance on the shadow docket as both affecting votes in favor of the administration in EO-related cases. The Roberts Court’s procedural changes have tipped the scales towards the executive and placed decisiveness over accountability, raising questions about whether the Court can fulfill its duty to be a check on expanding presidential power.