Difference or Distinction wrote:
OTOH, there's this wrote:An executive order is not a piece of legislation.
And that matters, how exactly? Are you saying courts, as a matter of fact, give more or less deference to executive orders than to legislation? Or are you saying they should?
From the little I know of this area of the law, it is not very well-developed or coherent.
In principle, an EO should attract greater scrutiny, as the legislature is more directly representative of the populace (contrary to the "equal branches" theory). But in practice, there are indeed too few examples.
The most famous EO to land at SCOTUS was Lincoln's suspension of habeas corpus (see Article 1, Section 9 of US Constitution, which ostensibly applies to Congress, though ex post facto a law was passed to allow the executive to do it), which Taney's Supreme Court struck down, and Lincoln simply ignored them.
The main example thereafter was Youngstown vs Sawyer (1952), in which Truman tried to continue FDR's wartime factory seizures (ostensibly to avert a strike, with steel being of national importance), which was decided on the basis that the executive had usurped the legislative authority, noting in particular the Taft-Hartley Act of 5 years prior notably refused to authorize executive seizure in the context of labor disputes. The court found there was no basis for Truman's actions. OTOH, at least the US Government argues that there is a basis for the Trump travel ban under USC 1182(f), with the (major) issue being rather whether the administrative process to make the "finding" in question proceeded according to a proper form (e.g., without impermissible discrimination).
On the legislative side of it, Scalia was quite scathing that overly broad allowance with "legislative intent" was simply a way that those who lost the political battle could take up arms in the judicial arena, by attempting to re-engineer the result.