State governors have issued a growing number of executive orders in areas where legislation already exists or where the legislature has declined to act. Recent judgments suggest the courts are becoming less willing to treat this as routine.
Where the power comes from
An executive order is an instruction within the executive branch. It does not create new offences, cannot override a statute, and cannot authorise something the constitution prohibits. Within those limits it is a legitimate instrument.
Where it has been stretched
The contested cases share a pattern. An order is used to impose an obligation on people outside the executive branch, in a field where a law would ordinarily be required.
An order that binds only the civil service is administration. An order that binds the public is legislation wearing a different name.
The judicial response
Two recent decisions restrained orders on the basis that the subject matter required legislation. In both, the court avoided the question of whether the policy was a good idea, and decided only the question of whether the instrument was the right one.
That restraint is significant. It keeps the analysis about institutional competence rather than policy merits, which makes the reasoning harder to characterise as political.
What to watch
The unresolved question is consequence. Where an order is struck down, the practical effect depends on what has already been done under it, and the judgments so far have not had to address that in detail.
