Reviewing Presidential Orders
87 Pages Posted: 3 Oct 2018 Last revised: 24 Jan 2019
Date Written: September 15, 2018
Beginning with Ronald Reagan, Presidents of both political parties increasingly have relied on executive orders and other unilateral written directives as a means of exerting significant control over agencies’ policymaking activities. Nevertheless, no coherent or well-theorized legal framework exists to guide courts as they review presidential orders. In contrast, a robust body of administrative law principles—rooted largely in the Administrative Procedure Act (APA) of 1946—exists to guide courts in their review of agency action, including agency action that is heavily influenced by the President. Until recently, this gap in the legal framework did not prove particularly problematic because litigants generally waited for an agency to act in response to a President’s order and then relied on well-settled administrative law doctrines to challenge the agency’s action instead of the President’s order. Donald Trump’s entrance into the White House, however, prompted an explosion of lawsuits that took direct and immediate aim at presidential orders involving everything from sanctuary cities to transgender troops. As this Article explains, this new and forceful form of litigation aimed at the President confirms the need for a coherent legal framework to guide judicial review of presidential orders. This Article sketches out what such a framework might look like. In doing so, it borrows from administrative law doctrines but also identifies critical differences between presidential action and agency action—differences that must inform the development of any legal framework for judicial review of presidential orders.
Keywords: Presidency, executive orders, presidential proclamations, presidential memoranda, judicial review, standards of review, administrative law
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