In Re Neagle

Because they are not specifically mentioned in the Constitution, executive orders have led some advocates of limited government to question their legitimacy. In 1890, the Supreme Court decided whether or not such orders are constitutional in the case of In re Neagle.

The case arose from a very complex set of events. In 1888, Supreme Court Justice Field made a judicial decision against a married couple, Mr. and Mrs. Terry. The Terrys were extremely angry with Justice Field and made threats against his life. The president authorized a federal marshal named Neagle to guard Field. When Mr. Terry attempted to attack Justice Field, Terry was shot and killed by Neagle.

Mrs. Terry filed a lawsuit regarding the death of her husband. She argued that the president had no authority to assign a bodyguard for Justice Field without congressional approval. The Supreme Court disagreed with her, saying "We cannot doubt the power of the President to take measures for the protection of a judge of one of the courts of the United States, who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death..."

In this decision, the Supreme Court upheld the power of presidents to do things that are not explicitly authorized by the Constitution, thereby upholding the constitutionality of executive orders. Having received the Supreme Court's blessing, and faced with public demands for greater federal regulation, presidents began to make considerably more use of executive orders over the next few decades.