It would never pass judicial review, just ask Harry Truman. Presidential Executive Orders cannot undo enacted law. It doesn't work that way.
At this point, it’s about Obama getting the senate bill passed in the house. He doesn’t care what he has to promise in order to do that and he wouldn’t care if the EO was thrown out by the courts either, because the senate bill would have already passed the house at that point. In fact, it makes it easier for him to put anything under the sun into the EO, because he knows it won’t withstand scrutiny.