Agency Interpretations of Executive Orders

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