Cite as: 526 U. S. 172 (1999)
Rehnquist, C. J., dissenting
The fourth element essential to today's holding is the conclusion that if the final part of the Executive Order requiring removal were not authorized, the bulk of the order would fail as not severable. Because this is the first time we have had occasion to consider the severability of Executive Orders, the Court first assumes that the standards for severability of statutes also apply to the severability of Executive Orders. Next, the Court determines to seek the "legislative intent" of President Taylor in issuing the order. Ante, at 191. And finally, the Court concludes that President Taylor would not have issued the Executive Order in the absence of a removal provision, because the 1850 order embodied a coherent policy of Indian removal. As noted above, this approach to the Executive Order stands it on its head— the order first extinguishes the hunting privilege and only then—in its last five words—orders removal.
But even if I were to assume that the President were without authority to order removal, I would conclude that the removal provision is severable from that terminating the treaty privileges. There is no dispute that the President had authority under the 1837 Treaty to terminate the treaty privileges. We have long held that "[w]hen the President acts pursuant to an express or implied authorization from Congress, . . . the executive action 'would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.' " Dames & Moore v. Regan, 453 U. S., at 668 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S., at 637 (Jackson, J., concurring)). Against this deferential standard, the Court musters little more than conjecture and inference, reinforced by its upside-down reading of the Executive Order's plain text. Not only does the Court invert the plain meaning of the Executive Order, it inverts the proper standard of review. Given the deference we are to accord this valid action made pursuant to a treaty, the order's termination of
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