Executive Orders Under Judicial Scrutiny: The Role of Partisanship in Judicial Outcomes

Abstract

Scholars have extensively examined the executive branch’s success in the federal judiciary, principally through the Solicitor General’s influence on the U.S. Supreme Court. Yet, scholars have focused little attention on the factors that affect the president’s ability to successfully defend legal challenges to executive orders . This question is especially important given the president’s increasing reliance on executive orders to enact policy. I argue that presidential success defending executive orders is not only influenced by the legal merits, but also by the political context, including judge partisanship and presidential approval. I construct an original dataset of all litigation in federal courts involving executive orders enacted since 1945. I present several key findings. First, I show that the president’s ability to successfully defend their executive orders varies considerably. And, while few executive orders are ruled wholly unconstitutional, courts routinely limit their scope and executability. I also find a statistically significant relationship between copartisan judges (i.e., those appointed by presidents of the same party as the executive order author) and rulings in favor of the executive. Additionally, I find a statistically significant relationship between judges’ ruling on executive orders and whether the case was adjudicated during versus after the issuing president’s tenure. These results lend empirical evidence to the claim that judges, like other political figures, are motivated by partisan and ideological considerations. This research underscores the importance of understanding the partisan factors that affect judicial decision-making on executive orders as they become an increasingly common tool for presidential policymaking.