Agency Interpretations of Executive Orders

71 Administrative Law Review 555 (2019)

51 Pages Posted: 1 Jul 2018 Last revised: 27 Sep 2019

See all articles by Matthew Chou

Matthew Chou

Yale University, Law School, Alumnus

Date Written: September 25, 2019

Abstract

Executive orders are an important tool of presidential power that often rely on agencies to interpret and implement them. Moreover, agency interpretations of executive orders frequently arise in court. However, neither courts nor commentators have developed a well-reasoned interpretive methodology for agency interpretations of executive orders. Instead, relevant case law essentially has not developed since 1965, notwithstanding landmark shifts in administrative law marked by Chevron, Auer, and their progeny. This Article proposes a new legal test that both (i) reflects modern understandings of legal interpretation and (ii) outlines when courts should defer to an agency’s interpretation of an executive order.

Keywords: executive orders, administrative law, interpretation, deference, Chevron, Auer, Tallman, sanctuary cities

JEL Classification: K00, K23

Suggested Citation

Chou, Matthew, Agency Interpretations of Executive Orders (September 25, 2019). 71 Administrative Law Review 555 (2019). Available at SSRN: https://ssrn.com/abstract=3200261 or http://dx.doi.org/10.2139/ssrn.3200261

Matthew Chou (Contact Author)

Yale University, Law School, Alumnus ( email )

127 Wall Street
New Haven, CT 06511
United States

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