Presidential Administration, the Appearance of Corruption, and the Rule of Law: Can Courts Rein In Unlawful Executive Orders?

61 Pages Posted: 2 Nov 2020

Date Written: September 12, 2020

Abstract

Many of President Trump’s executive orders are aimed at “deconstructing” the administrative state by exercising unprecedented control over agency action. While presidents have exercised directive authority over executive agencies for several decades, these recent directives are particularly troubling because many of them direct agencies to act contrary to congressionally mandated procedures designed to ensure that agencies engage in predictable, transparent, and justified decision-making. This phenomenon poses a threat not only to agency rulemaking but to corresponding rule of law principles, all at a time when public confidence in government officials has steadily declined and more and more Americans perceive their officials as corrupt, untrustworthy, or otherwise unable to serve the public interest. With Congress unmotivated and unable to act, the judiciary is the only branch left to check such potentially dangerous directives. This Article seeks to show why courts can and should adjudicate challenges to these problematic orders, despite potential standing problems when orders are challenged directly, in order to promote the rule of law and democratic governance.

Keywords: Executive Orders, Presidential Administration, Standing, Rule of Law, Agencies, Administrative Law

JEL Classification: K23

Suggested Citation

Morgan, Emily and Barsa, Michael, Presidential Administration, the Appearance of Corruption, and the Rule of Law: Can Courts Rein In Unlawful Executive Orders? (September 12, 2020). Marquette Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3691610

Emily Morgan

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

Michael Barsa (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
22
Abstract Views
125
PlumX Metrics