Earlier this month, President Obama signed a cluster of Presidential Executive Orders whose purpose was to try to reduce gun violence. Various conservative groups went, to put it mildly, apeshit. There have been many cries about Obama’s being a dictator (by a presidential candidate) or king. He uses the power of the EO to bypass congress and do what he wants.
However, reply many who support our current president. When we compare the number of times the sitting president has used the EOs, President Obama has the lowest total (per 4-year term) since Grover Cleveland (his second term). I use the 4-year term, because the data available is broken down by term (for those presidents having 2 terms) and I don’t think it’s right to compare one president’s 4-year period to another president’s 8-year period.
But, the conservative forum posters begin yelling, you have to look at the content of those EOs. Just numbers are comparing apples to oranges.
That’s a pretty good point. Many people don’t know that the Emancipation Proclamation was an executive order. The New Deal was as well. Of course, there have been some EOs that gave people permanent jobs. And some that weren’t so hot. The Japanese internment of WWII was one. So was an EO that prevented Chinese people from entering the Panama Canal.
So, yes, EOs have vastly different quality and effects. Some are horrible and some are awesome and some are so inconsequential as to not even be foot notes in history.
So, with that in mind, I found an article that talks about the court case win rate of Executive Orders (in part) by Erica Newland in the Yale Law Jounral. It’s a very interesting article and I would suggest that everyone talking about the legality of Executive Orders read this document first. The author surveyed the court cases involving executive orders.
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.
The author also coded the cases to determine what kind of issue was at stake. Half of the cases had to do with the interpretation of the order or whether it had been properly implement. Just under half the cases where whether the President could legally issue the order. About 13% involved the Consitutionality of the EO. Since these don’t add up to 100%, I assume that some cases covered several aspects.
More than 45% of the cases confirmed, expanded or allowed for the flexibility of the EOs, while only about 13% reduced the power of the EOs.
Take a good look at Figure 6. In terms of Consitutionality, the Federal government won the case more than 90% of the time. Is the EO authorized also won about 90% of the cases. These show that the courts tend to side with the president about EOs. Now, past performance is no indicator of future results, but it is telling.
This cases are not tied to specific presidents, however the cases are broken down by decade (Figure 13). For example, the Bush Era (2001-2009) saw a 60+% EO confirmation rate. The Clinton Era (1993-2001) saw a 65+% confirmation rate.
Just like statutory law, executive orders can impose legal obligations on citizens and create new powers for the federal government, and they can be harnessed to alter the judicially acknowledged meaning of statutory language. At least some, and possibly all, valid executive orders can preempt conflicting state law.
The paper shows that, unless challenged in court (with about 10-15% win rate for the plaintiffs), EOs are legal… regardless of purpose or intentions.
