Document Type

Article

Comments

Israel H. Peres Prize Paper (J. Resnik, T. Meares, A. Schwartz) (Best student Note or Comment appearing in the YLJ)

Abstract

This Note presents a study of judicial decisions that have engaged with executive orders. The study was designed to elucidate the contexts in which courts have considered executive orders; to identify the questions that courts have posed about executive orders; and to synthesize the doctrine that courts have developed in response to those questions. This study reveals that, although the executive order is a powerful tool of the presidency, courts have not tended to acknowledge, in a particularly theorized way, the special challenges and demands of the executive order as a form of lawmaking. This Note argues that, in the absence of a thicker jurisprudential conception of the executive order, doctrinal asymmetries that heavily favor executive power have emerged. These asymmetries carry costs and therefore merit closer attention.

Date of Authorship for this Version

2015

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