Judicial Review of Executive Orders' Rationality

42 Pages Posted: 5 May 2018

See all articles by David M. Driesen

David M. Driesen

Syracuse University College of Law

Date Written: April 18, 2018


This article addresses the question of how courts should assess the reasonableness of executive orders. Prior to the New Deal, a unified framework applied to assessment of all executive and legislative decisions, including executive orders. In the 1930s and 40s, a dichotomy began to develop. The Supreme Court created a highly deferential rational basis test to govern its review of legislation's reasonableness. On the other hand, the Court applied a much less deferential arbitrary and capricious test to review the reasonableness of administrative agency rulemaking under the Administrative Procedure Act. This dichotomy left open the question of what standard should govern judicial review of executive orders. This article addresses this question in the context of statutory executive orders, rather than orders relying on implied or express independent constitutional authority.

It combines a constitutional analysis of separation of powers, due process, and the nondelegation doctrine with an analysis of relevant administrative law. This analysis provides a constitutional framework for understanding how to review executive orders for reasonableness. In the end, this article concludes that the need for "faithful" law execution in light of due process and separation of powers considerations leads to the conclusion that the courts should apply arbitrary and capricious review to executive orders issued pursuant to statutory authority, rather than the rational basis test that applies to legislation.

Suggested Citation

Driesen, David M., Judicial Review of Executive Orders' Rationality (April 18, 2018). Boston University Law Review, Vol. 98, No. 1, 2018, Available at SSRN: https://ssrn.com/abstract=3165141

David M. Driesen (Contact Author)

Syracuse University College of Law ( email )

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