Bulletin n. 1/2015 | ||
June 2015 | ||
Newland Erica |
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Executive Orders in Court | ||
in Yale Law Journal (The) , Volume 124, Issue 6 - 2015 , 2015 | ||
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. | ||