Judicial review of executive orders is a vital mechanism for upholding constitutional principles and maintaining the balance of power among branches of government. Historical and contemporary cases illustrate the courts’ dual role in checking executive overreach and affirming legitimate presidential authority. As executive orders continue to address complex and contentious issues, judicial review will remain a critical forum for resolving disputes and ensuring that presidential actions align with constitutional and statutory mandates. The evolving jurisprudence in this area underscores the enduring tension between executive ambition, legislative intent, and judicial oversight in the American democratic system.

New Delhi (ABC Live): The United State President Donald Trump on first week of his presidency issued 57 executive orders on issues ranging from citizenship by birth to immigrants to unleashing American energy etc.

ABC Research team led by Dinesh Singh Rawat, a practising lawyer in the supreme court of India prepared research report on Judicial Review of Executive Orders of U.S. Presidents and reported as under:

Executive orders are a vital tool for U.S. presidents to direct federal operations and implement policy objectives. However, they exist within the framework of the U.S. Constitution and are subject to judicial review. Courts play a critical role in determining the constitutionality, scope, and application of these orders. This report explores the judicial review of executive orders, tracing its constitutional foundation, historical precedents, and contemporary challenges. It also examines landmark cases, the balance of powers, and the implications of judicial intervention in executive actions.

Introduction

Executive orders are directives issued by the President of the United States to manage operations within the federal government. While they are not explicitly defined in the Constitution, their authority is derived from the President's constitutional powers, particularly Article II. However, the judiciary ensures that these orders do not exceed constitutional boundaries, violate statutory authority, or infringe upon individual rights. Judicial review—the process by which courts assess the legality of executive orders—is thus a cornerstone of maintaining the balance of power among the branches of government.

The Constitutional Basis for Judicial Review

The principle of judicial review was established in the landmark case of Marbury v. Madison (1803). Chief Justice John Marshall affirmed that the judiciary has the authority to review and invalidate actions by the executive or legislative branches that conflict with the Constitution. While Marbury did not address executive orders specifically, it laid the foundation for courts to assess the constitutionality of presidential actions.

Presidential powers are derived primarily from:

1. Article II of the Constitution: Grants the President executive power, the role of Commander-in-Chief, and the authority to ensure laws are faithfully executed.
2. Congressional Authorization: Many executive orders are based on statutory authority granted by Congress.

Judicial review ensures that executive orders align with these constitutional and statutory frameworks.

Historical Development of Judicial Review of Executive Orders

Early Challenges

The judiciary's scrutiny of executive orders began in earnest in the early 20th century as presidential use of such directives expanded. One of the first significant cases was:

• Youngstown Sheet & Tube Co. v. Sawyer (1952): During the Korean War, President Harry Truman issued an executive order to seize and operate steel mills to avert a strike. The Supreme Court ruled the order unconstitutional, stating that the President lacked statutory or constitutional authority for such action. Justice Robert Jackson’s concurring opinion established a tripartite framework for assessing executive authority:
1. When the President acts with congressional authorization, authority is at its maximum.
2. When the President acts in the absence of congressional authority, authority is uncertain and must be scrutinized.
3. When the President acts against congressional intent, authority is at its weakest.

Expansion of Executive Authority

The judiciary has since examined executive orders addressing diverse issues, including national security, civil rights, and immigration. Notable cases include:

• Korematsu v. United States (1944): The Court upheld Executive Order 9066, which authorized the internment of Japanese Americans during World War II. Though widely criticized, this decision demonstrated the judiciary's deference to executive authority in times of war. In 2018, the Court explicitly repudiated Korematsu in Trump v. Hawaii.
• United States v. Nixon (1974): The Court limited executive privilege by ordering President Richard Nixon to release tape recordings during the Watergate scandal, affirming that no President is above the law.
• Dames & Moore v. Regan (1981): The Court upheld President Jimmy Carter’s executive order to freeze Iranian assets in the United States as part of the resolution of the Iran hostage crisis. This case reinforced the President’s authority in foreign affairs and national emergencies.

Contemporary Challenges and Landmark Cases

Immigration and National Security

• Trump v. Hawaii (2018): President Donald Trump’s executive order restricting travel from several predominantly Muslim countries faced legal challenges, with plaintiffs arguing it violated the Establishment Clause. The Supreme Court upheld the order, deferring to the President’s broad authority over immigration and national security.
• Texas v. United States (2021): President Joe Biden’s decision to rescind the "Remain in Mexico" policy, implemented through an executive order, faced judicial challenges. The case highlighted the judiciary’s role in balancing presidential discretion with statutory requirements.

Environmental and Economic Policy

• Massachusetts v. EPA (2007): The Court ruled that the Environmental Protection Agency (EPA) had the authority to regulate greenhouse gases under the Clean Air Act, even in the face of executive reluctance. This case demonstrated judicial willingness to hold the executive branch accountable for statutory obligations.
• West Virginia v. EPA (2022): The Supreme Court curtailed the EPA’s authority to regulate carbon emissions under the Clean Air Act, emphasizing the "major questions" doctrine, which requires clear congressional authorization for executive actions with significant economic and political implications.

Public Health and Emergency Powers

• Alabama Association of Realtors v. HHS (2021): The Court struck down a federal eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) under President Biden, ruling that the executive branch exceeded its statutory authority.

Key Themes in Judicial Review of Executive Orders

1. Separation of Powers: Courts often assess whether an executive order encroaches upon legislative authority or exceeds constitutional boundaries.
2. Deference to Executive Authority: In areas such as national security and foreign affairs, courts frequently defer to the executive branch, acknowledging its institutional expertise and discretion.
3. Statutory Interpretation: Judicial review often hinges on whether the President’s actions align with congressional intent as expressed in statutes.
4. Major Questions Doctrine: Recent decisions reflect the judiciary’s growing insistence on explicit congressional authorization for executive actions with broad societal impacts.
5. Judicial Activism vs. Restraint: The judiciary faces criticism for both overstepping its role and failing to check executive overreach, depending on the political and legal context.

Implications of Judicial Review

For the Presidency:

• Judicial review ensures accountability but may constrain presidential flexibility, particularly in addressing urgent issues.
• Presidents may seek to circumvent judicial scrutiny through alternative mechanisms, such as agency rulemaking.

For Governance:

• Judicial intervention in executive orders shapes the development of administrative law and federal policies.
• Prolonged legal battles over executive orders can create uncertainty and delay policy implementation.

For Democracy:

• Judicial review safeguards constitutional principles and prevents abuse of power, reinforcing democratic norms.
• However, excessive reliance on courts to resolve political disputes risks undermining public confidence in the judiciary’s impartiality.

Conclusion

Judicial review of executive orders is a vital mechanism for upholding constitutional principles and maintaining the balance of power among branches of government. Historical and contemporary cases illustrate the courts’ dual role in checking executive overreach and affirming legitimate presidential authority. As executive orders continue to address complex and contentious issues, judicial review will remain a critical forum for resolving disputes and ensuring that presidential actions align with constitutional and statutory mandates. The evolving jurisprudence in this area underscores the enduring tension between executive ambition, legislative intent, and judicial oversight in the American democratic system.

 List of executive order issued by President Trump 20/01/2024 to 23/01/2024

1. Removing Barriers to American Leadership in Artificial Intelligence
2. PRESIDENT’S COUNCIL OF ADVISORS ON SCIENCE AND TECHNOLOGY
3. Declassification of Records Concerning the Assassinations of President John F. Kennedy
4. Strengthening American Leadership in Digital Financial Technology
5. Federal Recognition of the Lumbee Tribe of North Carolina
6. Executive Grant of Clemency for Terence Sutton
7. Designation Of Ansar Allah as a Foreign Terrorist Organization
8. Executive Grant of Clemency for Andrew Zabavsky
9. Nominations Transmitted to the Senate
10. Ending Illegal Discrimination And Restoring Merit-Based Opportunity
11. Keeping Americans Safe in Aviation
12. Guaranteeing The States Protection Against Invasion
13. Restoring Names That Honor American Greatness
14. Designating Cartels And Other Organizations As Foreign Terrorist Organizations And Specially Designated Global Terrorists
15. Reforming The Federal Hiring Process And Restoring Merit To Government Service
16. Ending Radical And Wasteful Government DEI Programs And Preferencing
17. Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government
18. Establishing And Implementing The President’s “Department Of Government Efficiency”
19. America First Policy Directive To The Secretary Of State
20. Protecting The United States From Foreign Terrorists And Other National Security And Public Safety Threats
21. Unleashing Alaska’s Extraordinary Resource Potential
22. Protecting The American People Against Invasion
23. The Organization for Economic Co-operation and Development (OECD) Global Tax Deal (Global Tax Deal)
24. Organization of the National Security Council and Subcommittees
25. Reevaluating And Realigning United States Foreign Aid
26. Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects
27. Declaring a National Energy Emergency
28. Restoring Accountability for Career Senior Executives
29. Promoting Beautiful Federal Civic Architecture
30. Restoring The Death Penalty And Protecting Public Safety
31. Putting People Over Fish: Stopping Radical Environmentalism to Provide Water to Southern California
32. Securing Our Borders
33. Protecting The Meaning And Value Of American Citizenship
34. Realigning the United States Refugee Admissions Program
35. Unleashing American Energy
36. Clarifying The Military’s Role In Protecting The Territorial Integrity Of The United States
37. America First Trade Policy
38. Memorandum to Resolve the Backlog of Security Clearances for Executive Office of the President Personnel
39. Declaring A National Emergency At The Southern Border Of The United States
40. Holding Former Government Officials Accountable For Election Interference And Improper Disclosure Of Sensitive Governmental Information
41. Restoring Accountability To Policy-Influencing Positions Within the Federal Workforce
42. Withdrawing The United States From The World Health Organization
43. Application Of Protecting Americans From Foreign Adversary Controlled Applications Act To TikTok
44. Granting Pardons And Commutation Of Sentences For Certain Offenses Relating To The Events At Or Near The United States Capitol On January 6, 2021
45. Putting America First In International Environmental Agreements
46. Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis
47. Hiring Freeze
48. Regulatory Freeze Pending Review
49. Return to In-Person Work
50. Ending The Weaponization Of The Federal Government
51. Restoring Freedom Of Speech And Ending Federal Censorship
52. Initial Rescissions Of Harmful Executive Orders And Actions
53. Flying The Flag Of The United States At Full-Staff On Inauguration Day
54. President Trump Designates Chairmen and Acting Chairmen
55. President Trump Announces Acting Cabinet and Cabinet-Level Positions
56. President Trump Announces Sub-Cabinet Appointments
57. President Trump Announces Cabinet and Cabinet Level Appointments