My paper originally started with the idea of examining executive orders that had been overturned in the court system and seeking to find some sort of pattern. I was also hoping that the courts would have created through their decisions, a system of boundaries for presidents to follow. However, as I started reading many of the court decisions, I found that several patterns do emerge. However, due to the fact that since 1789, Presidents have issued over 13,562 executive orders and very few have been challenged or examined by the judiciary. Glendon Schubert, in Presidency in the Courts, compiles a list that maintains that only 38 Presidential Orders, which includes Proclamations and regulations issued by Executive Branch Agencies, have been finally determined to be unconstitutional from 1804-1956. William Howell, in Power without Persuasion: The Politics of Direct Presidential Action, can only find 83 instances of Executive Orders being challenged in Federal Court from 1943 to 1997 with only 14 being declared unconstitutional. The inherent difficulty I encountered was that that the subject of Executive orders is very broad and the cases I could examine were not very numerous.
However, I was able to hone my research into early and modern executive orders. First, I examined the 52 cases that Schubert and Howell listed in their books. I also read them chronologically, which assisted me into creating a “table” that tabulated the reasons for the unconstitutional decision. My research showed me that for the early executive orders, from Adams to before Lincoln, presidents simply took Congressional directives and expanded their authority unconstitutionally. For example, in the Supreme Court case Little v. Barreme, Congress had enacted an embargo in which the President was given the power to instruct the Navy to stop any American ships suspected to be en route to, and only, to a French port. Under this auspice, President Adams issued an executive order commanding the Navy to capture ships travelling both to and from any French port. Adams simply defended his actions by declaring that he was of the mindset that his order is what Congress intended and he simply made the embargo more effective. I found that Jefferson, Monroe and Quincy Adams had similar orders overturned.
On the subject of later executive orders, I found that a great deal of these orders related to the military or to specific executive department agencies. In these situations, the vast majority of challenges are dismissed. The modern courts are reluctant to challenge some of these orders because they give great deference to the president’s role of Commander in Chief and chief executive officer. For example, over 15 challenges to President Truman’s Executive Order 9981, which abolished segregation in the Armed Forces, were dismissed because courts upheld his authority to legislate over the armed forces as the Commander in Chief.
I was not expecting the entire nature of Executive Orders to change, from directives to military focused orders, but it does seem to lend well to searching for a pattern.