In the summer of 1787, a bunch of guys sat around and were arguing....mostly without beer or alcohol. I know, that part is fairly surprising.
They discussed and argued over things for hours. A point would be brought up, then it'd be discussed to the ninth degree, and on some occasions.....folks would stand there and come to some mutually accepted decision.
It was a room with lots of static electricity....at least in terms of excitement and brilliance. There were fantastic and creative things done in this room.
At some point, it was decided that there would be three institutions to counter-balance each other. So, the Supreme Court was born. The original make-up of the Court was six individuals....one Chief and five judges. To mandate anything....you needed four votes.
In 1807, because of additional territory added to the US.....it was decided to expand out to seven judges. In 1837, they added two more positions....bringing the 'team' up to nine judges.....because of national expansion. In 1863, they added another position.....going to ten. But by 1865, they'd decided that ten were too much, and reverted back to nine.
At some point in the early stages of the FDR era, the pressure was upon the conservative court (it was rather packed from the appointments of the 1920s)....that FDR was considering adding more positions (he had the vote in both the House and Senate).....and would just put enough judges on the court to ensure his decisions were continually put down (several of the first top ten programs of the FDR era failed the Supreme Court test and were rescinded). The judges on the court made the decision to force themselves to allow various FDR programs to ride on.....and not throwing them out.
Over the past week, since the President utilized the executive order....I've come to visualize him now as "the tenth Supreme Court judge".
This executive order business is basically the way that a judge would deal with things he doesn't like. In this case....the President can't repack the Supreme Court, using FDR's threat. The news media control of year's past? That's gone.....a guy can reach a mass of a hundred million Americans in a matter of hours, bypassing the standard control methods that a President would enjoy.
The tenth judge? Unless the nine guys come out and state that they are the only judges at that level.....that's about the only general way that this game comes to an end. The sad thing is that no one in the big room of 1789 ever sat there and thought about the extent of executive orders and how it might go. You needed some abilities to lead the country, and they didn't want to handicap the guy. It probably made sense not to list out what you could or could not do.....by executive order.
We are where we are today.....simply because people limited their scope of vision in 1789, and tried to be logical. And in today's world.....we revolve around the illogical.