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’s editorial Brief of Amici Brief of Amici See Administrative Law Review * HOU C 555 ATTHEW M 9/10/19 10:19 PM EXECUTIVE ORDERS EXECUTIVE ORMATTED )_ME F Defining Executive Orders ...... 559 ...... Defining Executive Orders 561 ...... Sources of Executive Order Power AGENCY INTERPRETATIONS OF OF AGENCY INTERPRETATIONS

ELETE A. B. D OT N Executive orders are an important tool of presidential power that often rely on agencies an important tool of presidential power that Executive orders are * Yale Law School, J.D. 2018. I can be reached at [email protected]. For reached at [email protected]. * Yale Law School, J.D. 2018. I can be RECENT DEVELOPMENTS DEVELOPMENTS RECENT M K O team (Leah Regan, Eric Emanuelson, and many others). I am also grateful to Anne Joseph many others). team (Leah Regan, Eric Emanuelson, and Shane, Peter L. Strauss, Farber, Peter M. O’Connell, David Freeman Engstrom, Daniel Pritt, who gave me the opportunity to think Kathleen Hartnett, Anne O’Leary, and Max brief. about issues in this Article when we worked together on an amicus for Summary Law Professors in Support of Plaintiffs’ Motion Curiae Administrative Judgment, Cty. of Santa Clara v. Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017) (3:17-cv- 00485-WHO). I.Background on Executive Orders ...... 559 ...... I.Background on Executive Orders (D their generous and thoughtful feedback, I owe much to Jamie Durling, Tara Grove, Judge owe their generous and thoughtful feedback, I Thalhofer, Kyle Nicholas Parrillo, Jeffrey Scott Levy, Lisa Manheim, Hardiman, Thomas M. Yeh, and the Ryan West, Garrett Victor, Kathryn Watts, to interpret and implement them. Moreover, agency interpretations of executive orders often them. Moreover, agency interpretations to interpret and implement developed a well-reasoned neither courts nor commentators have arise in court. But of executive orders. Instead, relevant case interpretive methodology for agency interpretations despite landmarklaw essentially has not developed since 1965, shifts in administrative law This Article proposes a new legal test that marked by Chevron, Auer, and their progeny. interpretation and (ii) outlines when courts both (i) reflects modern understandings of agency of an executive order. should defer to an agency’s interpretation Introduction ...... 556 C Y adm_71-3_41554 Sheet No. 66 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 66 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 66 Side B 09/18/2019 13:09:53





















M K C Y note 24. [71:3 [71:3 EVIEW See infra R AW Part I-A. For the sake of this Article’s read- L See infra NTRODUCTION I DMINISTRATIVE DMINISTRATIVE A 9/10/19 10:19 PM General Analysis: President vs. Congress ...... 575 ...... President vs. Congress General Analysis: 578 . vs. Current Presidential Intent Complication 1: Past Speech and Agency Complication 2: Presidential 580 ..... with an Order’s Text Interpretations Inconsistent

EVIEW

Conflict with a Prior Interpretation Anywhere in the Conflict with a Prior Interpretation 593 ...... Executive Branch, or a Post Hoc Rationalization 599 ...... Independent Agencies 602 ...... Rejected Exception: Mead “Step Zero” i. ii. iii. 582 ...... Political Accountability 584 ...... Technical Expertise 586 ...... Rule of Law Intent ...... Intent ...... 575






)_ME R Exceptions ...... Exceptions ...... 593 1. 2. 3. 2. 3. 4. 590 ...... Text Step One: Prioritizing Unambiguous Interpretation of Step Two: Deference to a “Reasonable” 592 ...... Ambiguous Text Process for Issuing Executive Orders ...... 562 ...... Orders Executive for Issuing Process 564 ...... in Court Orders of Executive Agency Interpretations 566 ...... Udall v. Tallman Court Precedent: Supreme Instability of Tallman, and Tallman’s Applications Lower Court 568 572 ...... Deference The Four Goals Underlying 575 ...... to Executive Orders Applying the Justifications 1.








ELETE C. A. B. C. D. A. B. A. B. D But executive orders standing alone can accomplish little. Orders rely But executive orders standing alone 1 OT N We live in an era of presidential unilateralism. A key tool of presidential We live in an era of presidential unilateralism. 1. include “proclamation,” “memoran- presidential directives for formal terms Other O (D ability, I generally use “executive orders” throughout. on the components of the Executive Branch—including agencies—to inter- on the components of the Executive about how the judiciary should pret and implement them. And questions ap- evaluate these agency interpretations often arise in litigation. They have peared in cases involving major policy concerns: the 1971 nationwide wage- Conclusion ...... 605 Conclusion ...... IV.A New Framework ...... 589 ...... IV.A New Framework 556 566 ...... of Executive Orders Interpretations Doctrine on Agency II.Current 572 ...... Applying Justifications for DeferenceIII.Examining and dum,” “directive,” and “determination.” dum,” “directive,” and “determination.” power is the formal presidential directive, better known as the “executive or- power is the formal presidential directive, der.” adm_71-3_41554 Sheet No. 66 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 66 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 67 Side A 09/18/2019 13:09:53 6 , Brief of the in- 3 , See Auer v. Robbins 557 557 5 , RDERS the case preliminarily the case preliminarily , if they do at all, and , if they do at all, 7 , O Udall v. Tallman But case law has not de- But case 4 City & Cty. of San Francisco v. doctrine. So, it is perhaps doctrine. So, it 2 Tallman XECUTIVE E Tallman aff’d sub nom. Kisor v. Wilkie, 139 S. Ct. 2400, 2408 (2019) (affirming 139 S. Ct. 2400, 2408 (2019) (affirming Kisor v. Wilkie, County of Santa Clara v. Trump County of Santa Clara see also 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I GENCY ORMATTED A )_ME F Montana Wilderness Ass’n v. Connell, 725 F.3d 988, 994 (9th Cir. 2013) (deferring Ass’n v. Connell, 725 F.3d 988, Wilderness Montana at 4. ELETE D Id. See OT but “reinforc[ing] its limits”). but “reinforc[ing] its limits”). N According to the Supreme Court’s 1965 opinion Court’s 1965 opinion to the Supreme According A recent example of a court wrestling an agency interpretation of an ex- of a court wrestling an agency interpretation A recent example 3. 380 U.S. 1 (1965). 4. 2. 5. 467 U.S. 837 (1984). 6. 519 U.S. 452 (1997); 7. 250 F. Supp. 3d 497 (N.D. Cal. 2017), M K O veloped this rule despite landmark shifts in administrative law marked by despite landmark shifts in administrative veloped this rule Inc. v. Natural Resources Defense Council, Chevron U.S.A., Inc. terpretive rule in such cases is that courts should defer to agency interpreta- defer to agency is that courts should rule in such cases terpretive they are “reasonable.” orders if tions of executive 2019] en- of nuclear management monuments, of national freeze, protection price and de- at federal agencies, bargaining clearances, collective ergy security among others. of foreign nationals, portability (D to the Bureau of Land Management’s interpretation of President Clinton’s Proclamation No. interpretation to the Bureau of Land Management’s in 2001); El-Ganayni River Breaks National Monument 7398 establishing the Upper Missouri (3d Cir. 2010) (deferring to Department of v. U.S. Dep’t of Energy, 591 F.3d 176, 183 En- in case challenging revocation of a secu- 12,968 ergy’s interpretation of Executive Order No. F.3d 1272, 1275 Fed. Labor Relations Auth., 204 rity clearance); Am. Fed’n Gov’t Emps. v. did not constitute an election to bargain); (9th Cir. 2000) (holding Executive Order 12,871 v. Ilchert, 998 F.2d 661, Wong by hold- 663 (9th Cir. 1993) (allowing appellant’s deportation Service (INS) correctly interpreted Executive Order and Naturalization ing that Immigration Univ. of S. Cal. v. Cost of Living Council, No. 12,711 to exclude appellant as a beneficiary); to Cost of Living Council and 1972) (deferring 472 F.2d 1065, 1071 (Temp. Emer. Ct. App. No. Emergency Preparedness interpretation of President Nixon’s Executive Order of Office freeze). 11,615, which ordered a nationwide wage-price enjoining President Trump’s Executive Order No. 13,768. At stake in the Trump’s Executive Order No. 13,768. enjoining President Auer Trump, 897 F.3d 1225 (9th Cir. 2018). Author disclosure: Under attorney supervision, I Trump, 897 F.3d 1225 (9th Cir. 2018). Author disclosure: Under attorney supervision, drafted an amici curiae brief in this case at the motion for reconsideration stage. and their progeny. Nor have courts or commentators thoroughly examined Nor have courts or commentators and their progeny. interact with the how these later cases courts inconsistently apply unsurprising that grounds. to decide interpretation cases on alternative instead often strain in ecutive order appears Amici Curiae Administrative Law Professors in Support of Plaintiffs’ Motion for Summary for Summary Law Professors in Support of Plaintiffs’ Motion Curiae Administrative Amici Judgment, Cty. of San Francisco v. Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017) (3:17-cv- Freeman Engstrom, Daniel Farber, Pe- David (amici Anne Joseph O’Connell, 00574-WHO) Shane, and Peter L. Strauss).ter M. own and All thoughts and errors in this Article are my do not reflect information learned from representation. C Y adm_71-3_41554 Sheet No. 67 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 67 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 67 Side B 09/18/2019 13:09:53 M K C Y And late last 13 The district court re- The district Yet the Department of Yet the 9 10 [71:3 [71:3 Missing from the court’s Missing from the court’s fruitless search for 12 EVIEW R AW L County of Santa Clara 14 Even so, after a motion for reconsideration, the Even so, after a DMINISTRATIVE DMINISTRATIVE 11 , 250 F. Supp. 3d at 512–13. A , 250 F. Supp. 3d at 507–08. 9/10/19 10:19 PM EVIEW By its text, Executive Order No. 13,768 directs the Attorney No. 13,768 directs Executive Order By its text, 8 )_ME R at 1210 (applying City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, at 1210 (applying City of Lakewood v. at 1209. ELETE Id. See id. County of Santa Clara D See County of Santa Clara Exec. Order No. 13,768, § 9(c), 82 Fed. Reg. 8799, 8801 (Jan. 30, 2017).Exec. Order No. 13,768, § 9(c), 82 OT . N This Article is one of the first pieces of scholarship to propose answers to This Article is one of the first pieces As this Article will show, the 11.267 F. Supp. 3d 1201, 1206 (N.D. Cal. 2017). County of Santa Clara v. Trump, 12. 13. 14. City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1238 (9th Cir. 2018). 9 10. 8. O (D 770 (1988) to reject the Attorney General’s memorandum). more relevant case law reveals a larger problem—the underdeveloped and problem—the more relevant case law reveals a larger for agency interpretations of executive outdated nature of deference doctrine left several questions unanswered: Do orders. This lack of development has furthering lawmaker intent, justifications for administrative deference—i.e., expertise—apply to the executive or- political accountability, and technical presidential speech that contradicts der context? How should courts weigh order? What degree of deference to the plain language of an executive orders accords with the rule of law? agency interpretations of executive And test for the modern era? what is an appropriate new deference inform whether and how much courts these questions, and thereby aims to jected DOJ’s interpretation as contradicted by both (i) the order’s plain lan- as contradicted by both (i) jected DOJ’s interpretation General. comments by the President and Attorney guage and (ii) public Cit- of the order, the concerns based on its reading ing several constitutional In response, the a nationwide preliminary injunction. district court issued ratifying the issued a two-page memorandum purportedly Attorney General DOJ’s litigation position. General and the Secretary of Homeland Security to prohibit “sanctuary ju- to prohibit of Homeland Security and the Secretary General “[f]ederal grant money.” from receiving risdictions” 558 billion for $1.2 Clara and for Santa funds in federal billion is about $1.7 case San Francisco. discussion was a clear legal framework for the level of deference owed agency legal framework for the level of discussion was a clear Instead, the court extended a case limit- interpretations of executive orders. Amendment context. ing governmental discretion in the First year, a divided panel of the Ninth Circuit affirmed the district court’s deci- year, a divided panel of the Ninth Circuit to the many established principles for sion, but recognized that “[i]n contrast to be few such principles to apply in interpreting legislation, there appear interpreting executive orders.” district court again rejected DOJ’s interpretation as not an “accurate and rejected DOJ’s interpretation as district court again of Executive Order No. 13,768. credible reading” Justice’s (DOJ’s) trial attorneys characterized the order as merely an exercise the order as merely characterized trial attorneys Justice’s (DOJ’s) effect. with no legal bully pulpit of the President’s adm_71-3_41554 Sheet No. 67 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 67 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 68 Side A 09/18/2019 13:09:53 revolution Presidential Laws Auer . 2245, 2251 (2001). 559 559 In breaking new new In breaking RDERS EV , https://founders.ar- . (forthcoming 2019), 15 and O L.J. 2026, 2033 (2015). EV RDERS . L. R O ALE RCHIVES .L.R ARV A Chevron HI . (forthcoming 2020), https://pa- C , 124 Y declaring the United States’ EV XECUTIVE 18 , 114 H XECUTIVE E E ATIONAL , 86 U. .L.R , N A P Defining Executive Orders
Executive Orders in Court , 168 U. A. Presidential Administration ACKGROUND ON 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS B I But no one has yet analyzed how agency interpretations analyzed how agency interpretations But no one has yet Reviewing Presidential Orders GENCY 17
ORMATTED A I. , Elena Kagan, )_ME F Erica Newland, Note, Note, Erica Newland, ELETE See Neutrality Proclamation, 22 April 1793 See, e.g. D Erica Newland has identified that executive orders command no co- orders command that executive has identified Erica Newland 16 OT N My argument proceeds in four parts. Part I briefly describes the history in four parts. Part I briefly describes My argument proceeds Executive orders have a long and storied history. In 1793, George Wash- Executive orders have a long and storied 17. 18. 15. published To my knowledge, there are two other articles, which were or will be 16. M K O pers.ssrn.com/sol3/papers.cfm?abstract_id=3338466; and Lisa Marshall Manheim & Manheim pers.ssrn.com/sol3/papers.cfm?abstract_id=3338466; and Lisa Marshall A. Watts, Kathryn chives.gov/documents/Washington/05-12-02-0371 (last visited June 11, 2019). chives.gov/documents/Washington/05-12-02-0371 of orders should influence judicial constructions of those orders. judicial constructions of those of orders should influence interpretations of orders, as well as how agency and nature of executive the muddled state end up in court. Part II examines executive orders can deference doctrine, which the of executive order for deference to Part III applies general justifications have left behind. whether those jus- of executive orders and analyzes agency interpretations the executive order context. Finally, tifications are stronger or weaker in reflects modern understand- both (i) Part IV proposes a new legal test that when a court should defer to an ings of legal interpretation and (ii) outlines order or instead give an order itsagency’s interpretation of an executive best reading. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3255953. 2019] orders. executive of interpretations agency defer to should (D herent theory of judicial interpretation, resulting in the expansion of judicial interpretation, resulting herent theory of executive power. around the same time as this one. They are the excellent Tara Leigh Grove, around the same time as this one. They are Interpretive Theory and the Missing ground, this Article builds on literature about executive orders and judicial executive orders on literature about Article builds ground, this For instance, and regulations. of statutes to agency interpretations deference di- argued that presidential Elena Kagan have like then-Professor scholars of stat- agency interpretations role in evaluating play a key rectives should utes. neutrality in the conflict between Britain and France. And in the years since, neutrality in the conflict between Britain to purchase the Louisiana Territory, presidents have used executive orders the military, implement affirmative ac- suspend habeas corpus, desegregate channel proposed agency regulations tion policies for federal contractors, ington issued the Neutrality Proclamation, C Y adm_71-3_41554 Sheet No. 68 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 68 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 68 Side B 09/18/2019 13:09:53 M K 22 C Y RDERS AND O . 539, 546–47 (2005). EV XECUTIVE ., E L. R However, the Federal However, the Federal 1 (Comm. Print 1957); Stack, [71:3 [71:3 21 ONG OWA C note 16, at 2291. 27 Thus, there are no require- TH , 90 I OWERS EVIEW 23 P R supra ,85 AW L PERATIONS RESIDENTIAL P O T ’ The Statutory President OV SE OF Nor does the specific labeling of a presidential Nor does the specific labeling of 25 19 G DMINISTRATIVE DMINISTRATIVE 24 A AU ON note 17, at 2033; Kagan, . 9/10/19 10:19 PM note 16, at 2291–92. But this characterization ignores that even orders di- But this characterization ignores TUDY supra OMM 26 EVIEW note 20, at 546–47. Thus, my Article’s analysis applies to all types of note 20, at 546–47. Thus, my Article’s analysis supra C Kevin M. Stack, Kevin M. :AS supra , Executive Order No. 11,030, 27 Fed. Reg. 5847 (June 19, 1962).Fed. , Executive Order No. 11,030, 27 , H. )_ME R Kagan, Newland, ELETE Both Congress and the Executive Branch have avoided establishing avoided establishing Branch have and the Executive Both Congress Id. See, e.g. See Id. See, e.g. See See generally 44 U.S.C. § 1505 (2012). D 20 . OT note 20, at 547 n.19. N The academy has also struggled to distinguish “executive orders” from The academy has also struggled to And yet, there is no black letter definition of what constitutes an executive what constitutes an definition of there is no black letter And yet, Regardless of their exact definition, executive orders are formal actions Regardless of their exact definition, 22. 23. 21 27. 25. 26. 24. Stack, 19. 20. O ROCLAMATIONS (D Register Act of 1935 neither requires publication of other presidential actions neither requires publication of other Register Act of 1935 proclamations.” “executive orders” or “presidential nor defines the terms a definition, thereby leaving in place a panoply of undefined terms for presi- of undefined terms in place a panoply thereby leaving a definition, “di- “memorandum,” order,” “proclamation,” “executive dential orders: Register Act of among them. The Federal rective,” and “determination” “[e]xecutive orders” in the Federal Register for 1935 mandates publication applicability and proclamations,” if they have “general and “[p]residential or persons in their ca- other than “[f]ederal agencies legal effect” for entities agents, or employees thereof.” pacity as officers, ments about the types of presidential actions that the President must take ments about the types of presidential through executive order. supra presidential instruments with legal effect, no matter their superficial label. But to avoid the their superficial label. with legal effect, no matter presidential instruments over and over, I generally use the term “exec- wordiness of writing “presidential instruments” utive order.” P 560 create wide-rang- and cell research, stem review, halt House White through programs. ing intelligence rected solely at government officials can have tremendous effect on nongov- rected solely at government officials to do so. ernmental parties and can be intended action alter its legal effect. other terms for presidential orders. One attempt at characterizing “executive other terms for presidential orders. One the actions of and address federal gov- orders” is that they typically govern ernment officials. In 1999, House legislation seeking to define “presidential orders” failed to seeking to define “presidential In 1999, House legislation Branch efforts: hearing. As for Executive advance after a subcommittee instituted procedures for issuing future while several executive orders have executive orders, none include a definition. order. adm_71-3_41554 Sheet No. 68 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 68 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 69 Side A 09/18/2019 13:09:53 .L. IRECT D OLUM Empirical 31 , 106 C OLITICS OF 561 561 P note 16, at 2328 (“An HE RDERS supra :T O 443, 454 (Michael Nelson ed., 6th 443, 454 (Michael Kagan, cf. ERSUASION XECUTIVE YSTEM P E S The Presidency and the Bureaucracy: The Presidential Yet because the Constitution doesn’t Yet because the 30 ITHOUT 29 OLITICAL W P 28 Sources of Executive Order Power Executive Order Power Sources of OWER
,P 9/10/19 10:19 PM B. NTERPRETATIONS OF NTERPRETATIONS I The President’s Statutory Powers to Administer the Laws OWELL 7 (2003). GENCY ORMATTED A G. H RESIDENCY AND THE P CTION , Sherley v. Sebelius, 689 F.3d 776, 784 (D.C. Cir. 2012) (“NIH may not , Sherley v. Sebelius, 689 F.3d 776, 784 (D.C. A )_ME F HE T ILLIAM in ELETE , See, e.g. D OT . 263, 320 (2006) (quoting Terry M. Moe, Moe, . 263, 320 (2006) (quoting Terry M. N The second source of authority is congressional delegations of power of authority is congressional delegations The second source Executive orders derive their power from two sources. The first, Article derive their power from two sources. Executive orders 30. W 29. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., 28. 31. Stack, Kevin M. M K O EV RESIDENTIAL concurring). interpretive principle presuming an undifferentiated presidential control of executive agency presidential an undifferentiated interpretive principle presuming other, the general intent and accurately than any reflect, more understand- officials thus may ing of Congress.”). simply disregard an Executive Order. To the contrary, as an agency under the direction of To the contrary, as simply disregard an Executive Order. to the extent permit- policy directives President’s the executive branch, it must implement the Labor Relations Auth., 204 F.3d 1272, 1274– ted by law.”); Am. Fed’n Gov’t Emps. v. Fed. that [Executive Order No. 12,871, which states 75 (9th Cir. 2000) (“There is also no question that certain agencies ‘shall’ negotiate,] is mandatoryto obey the Or- and that agencies failing Entitled “Federal Regulation,” Exec. Order der are answerable to the President.”); Proposed of Executive Order No. 12,291, which required 5 Op. O.L.C. 59 (1981) (asserting the legality Office proposed major rules to submit not independent agencies—to executive agencies—but and Budget for cost-benefit review); of Management ed. 2000)). P 2019] Many actions. presidential to other compared weight carry significant that language— in mandatory orders written agree that executive commentators on nonin- binding source(s) of authority—are upon legitimate and drawing executive agencies. dependent (D R explicitly grant the power to issue orders, presidents have essentially “in- power to issue orders, presidents explicitly grant the through practice. vented” the power Advantage through statute. In areas of concurrent congressional-presidential authority, areas of concurrent congressional-presidential through statute. In historically acquiesced to the expansion both Congress and the courts have Congress “are unlikely to oppose incre- of presidential power. Members of of presidents unless the issue in ques- mental increases in the relative power of their constituents.” tion directly harms the special interests II of the Constitution, implicitly authorizes the President to issue implicitly authorizes the President II of the Constitution, executive (b) of concurrent con- exclusive to presidential power and orders in areas (a) with the ex- authority, if the order isn’t “incompatible gressional-presidential of Congress.” press or implied will C Y adm_71-3_41554 Sheet No. 69 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 69 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 69 Side B 09/18/2019 13:09:53 , M K 32 C Y the 37 , [71:3 [71:3 Executive Orders: Washington-Obama Franklin v. Massachusetts note 17, at 2040–41, 2065–67, 2094 EVIEW R supra note 20, at 556–57 (discussing Dames & AW L And in Part of what drives this expansion in what drives this expansion Part of supra 36 33 Newland, (Jan. 21, 2019), http://www.presidency.ucsb.edu/ (Jan. 21, 2019), http://www.presidency.ucsb.edu/ see also Process for Issuing Executive Orders Process for Issuing Executive ROJECT DMINISTRATIVE DMINISTRATIVE P
A 38 C. note 30, at 178–79 (“Federal judges ruled in favor of the president note 30, at 178–79 (“Federal judges ruled in 9/10/19 10:19 PM supra , EVIEW note 20, at 552. RESIDENCY P 34 , Chrysler Corp. v. Brown, 441 U.S. 281, 304–06 (1979) (declining to decide , Chrysler Corp. v. Brown, 441 U.S. 281, 304–06 supra )_ME R at 321; Gerhard Peters & John T. Woolley, at 321; Gerhard Peters & John T. Woolley, OWELL H at 553. at 800–01. ELETE See, e.g. See id. See Id. Id. The due process rights guaranteed by the Fifth Amendment theo- rights guaranteed by the Fifth Amendment The due process D MERICAN 35 OT A N There are essentially no enforceable procedural requirements for issu- no enforceable procedural requirements There are essentially 34. 32. 33. 35. Stack, 36. 37. 505 U.S. 788 (1992). 38. O HE (D (illustrating this trend through 152 judicial decisions on executive orders from 1865 to 2013 (illustrating this trend through 152 judicial for the D.C. Circuit). in the Supreme Court and the Court of Appeals by the Federal Property and Administrative whether Executive Order 11,246 was “authorized CivilServices Act of 1949, Titles VI and VII of the the Equal Employment Rights Act of 1964, notion that the Executive can impose reason- Opportunity Act of 1972, or some more general of its procurement authority” because the case in the exercise able contractual requirements Dominion of the President’s authority); Old could be resolved without specifying the source n.5 (1974) (rooting Executive Order No. 11,491’s Branch No. 496 v. Austin, 418 U.S. 264, 273 power in both “the President’s [Article II] responsibility for the efficient operation of the Exec- 7301); Stack, utive Branch” and 5 U.S.C. § T Supreme Court held that the Administrative Procedure Act (APA) doesn’t Supreme Court held that the Administrative apply to the President. data/orders.php (compiling the number of executive orders by each president).data/orders.php (compiling the number of retically serve as some constraint, but no due process challenge to an some constraint, but no due process retically serve as ever succeeded. executive order has 562 issued have presidents While incentives. institutional these confirms research only a few. has overridden Congress executive orders, about 50,000 presidential power is the presidential practice of amalgamating several of amalgamating presidential practice power is the presidential no specific invoking and Article II powers)—or law (e.g., statutes sources of that justifies an ex- create an amorphous body of powers authority at all—to ecutive order. (or the party defending an order he issued) in fully 83 percent of the court challenges that went fully (or the party defending an order he issued) in to trial between 1942 and 1998.”); Moore v. Reagan, 453 U.S. 654 (1981), which upheld a presidential assertion of statutory power a v. Reagan, 453 U.S. 654 (1981), which upheld Moore the President’s action). statute authorizing in the conceded absence of any particular Courts, too, have sometimes interpreted executive orders to deprive Con- orders to interpreted executive have sometimes Courts, too, power. its statutes of their gress and ing, modifying, or repealing executive orders or other presidential direc- repealing executive orders or other ing, modifying, or tives. adm_71-3_41554 Sheet No. 69 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 69 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 70 Side A 09/18/2019 13:09:53 39 ALE UIDANCE G , 127 Y ONTROL AND C Third, if the Third, if 41 563 563 EGULATORY NTERNAL , Developments in the Law , Developments in the Law RDERS I O W. Neil Eggleston & Amanda W. See, e.g. If either the OMB Director If either the OMB 42 see also XECUTIVE TRENGTHEN E , GAO-15-368, R S Federal Agency Guidance: An Institutional Perspec- Second, if OMB approves the order, if OMB approves Second, FFICE In all, the process generally involves In all, the process 40 . 2057, 2090 (2012). OULD O 43 C EV .L.R at 19–27. , . Q. 138, 148 (2012); ARV The Contemporary Presidency: Executive Orders and Presidential Unilat- 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS U.S., public 169–80 (2017) (describing three models for taking 20 (2015) (finding that, historically, Department of Labor (DOL) 20 (2015) (finding that, historically, Department I TUD Nicholas R. Parrillo, R. Nicholas EPARTMENTS S CCOUNTABILITY D See note 15 A 44 Second, by giving the Executive an opportunity to de- Second, by giving the Executive T ’ 45 GENCY ORMATTED supra OF THE A . OV RACTICES P ELECTED ONF )_ME F RESIDENTIAL :S Grove, .C § 2(e). § 2(b). In practice, the Department of Justice’s Office of Legal Counsel (OLC) Counsel (OLC) of Legal of Justice’s Office 2(b). In practice, the Department § The Trump Administration and the Breakdown of Intra-Executive Legal Process ELETE Id. See Id. D , 42 P DMIN OT A N The purpose of these procedures is twofold. First and most important, the procedures is twofold. First and The purpose of these But as a matter of nonbinding but codified custom, the President usually the President custom, but codified of nonbinding a matter But as 45. Andrew Rudalevige, 39. being significant guidance range from agency procedures for issuing In comparison, 42. 27 Fed. Reg. at 5847. Exec. Order 11,030 § 2(c), 43. 44. 40. 11,030 § Exec. Order 5847 (June 19, 1962) (codified at 1 C.F.R. 2(a), 27 Fed. Reg. 41. , M K O ISSEMINATION ROCESSES eralism tive reviews all proposed executive orders for form and legality. reviews all proposed executive orders for form – Presidential Authority, 125 H Elbogen, comment on guidance documents, the most onerous of which can leave guidance incomplete comment on guidance documents, the most G for years); U.S. Attorney General approves the order, the Director of the Office of the Fed- approves the order, the Director of Attorney General review it for clerical errors. eral Register will L.J.F. 825, 826–28 (2018) (explaining the value of existing procedures that require interagency L.J.F. 825, 826–28 (2018) (explaining the value of existing procedures that require interagency cooperation to ensure executive orders are effective and legal). P D 2019] (D procedures shield the President from “decisions made on the fly in informal the President from “decisions made procedures shield officials,” encounters which could bilateral encounters with administrative and legality the President doesn’t result in orders whose policy consequences fully understand. extensive consultation with agencies, including agencies drafting and debat- with agencies, including agencies extensive consultation ing an order’s text. the Attorney General will review both its “form and legality.” both its “form General will review the Attorney onerous to nonexistent. or the Attorney General disapproves of a proposed order, “it shall not there- disapproves of a proposed order, or the Attorney General by a statement of to the President unless it is accompanied after be presented disapproval.” the reasons for such and Health and Human Services (HHS) have had little to no written procedures for issuing and Health and Human Services (HHS) have significant guidance). pt. 19). First, a proposed order or proclamation, along with an explanation of the with an explanation proclamation, along order or First, a proposed to the Office is submitted and effect,” purpose, background, order’s “nature, (OMB). and Budget of Management follows a three-step approval process when issuing an executive order. issuing an executive process when three-step approval follows a C Y adm_71-3_41554 Sheet No. 70 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 70 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 70 Side B 09/18/2019 13:09:53 M K C Y by To In Yet Tweets 52 55 County And 48 Youngs- 51 53 49 and agency and agency 54 Youngstown Court invali- 47 46 rights created by enforce Youngstown [71:3 [71:3 EVIEW . 934, 941–43 (2018). R EV enforcement” of an order. enforcement” of an AW L .L.R prevent ARV note 45, at 828–29; Recent Social Media Posts, Posts, note 45, at 828–29; Recent Social Media is paradigmatic. The is paradigmatic. The 50 , 131 H supra DMINISTRATIVE DMINISTRATIVE A 9/10/19 10:19 PM is an example of a case in this first category. Agency Interpretations of Executive Orders in Court of Executive Agency Interpretations note 17, at 2091. note 17, at 2094. note 17, at 2091.
EVIEW D. Dames & Moore v. Regan, 453 U.S. 654, 669 (1981) (adopting Justice Dames & Moore supra supra supra note 2 and accompanying text discussing history of Executive Order jurisprudence. of Executive Order note 2 and accompanying text discussing history , El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d 176, 183 (3d Cir. 2010); Cham- )_ME R ., County of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017). ., County of Santa Clara v. Trump, see also Eggleston & Elbogen, ELETE See e.g See, e.g. See supra See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., D . OT N Courts have reviewed executive orders for over 100 years, orders for over reviewed executive Courts have Courts group cases involving executive orders into two categories. The first involving executive orders into two Courts group cases The second category comprises cases brought to “ The second category comprises cases 54. 55. Newland, 53. 47. Newland, 48. 49. Newland, 50. 343 U.S. 579 (1952). 51. Exec. Order 10,340, 17 Fed. Reg. 3139, 3141 (Apr. 10, 1952). 52 46. O (D ber of Commerce v. Reich, 74 F.3d 1322, 1326–32, 1338 (D.C.C. 1996). ber of Commerce v. Reich, 74 Jackson’s concurrence as a general framework). concurring); these cases, justiciability is considerably more muddled.these cases, justiciability is considerably It often turns on Justice Jackson’s famous concurrence outlined three levels of judicial deference concurrence outlined three levels Justice Jackson’s famous providing the “widest latitude of judicial to presidential action, with the courts acts pursuant to an express or implied au- interpretation” when the “President with caution” when “the President thorization of Congress,” but “scrutin[y] express or implied will of Congress.” takes measures incompatible with the the justiciability of executive orders—or agency action taken under executive executive orders—or agency action the justiciability of universe of justiciable of doctrinal inconsistency. And the order—is a matter some courts and commentators suggest. cases is bigger than cases brought to “ category comprises interpretations of executive orders have been contested in many cases. executive orders have been contested interpretations of 564 proce- the justifications, and legal rationales policy share and publicly velop accountability. values and political rule of law dures promote dated President Truman’s Executive Order 10,340, which “authorized and di- Executive Order 10,340, which dated President Truman’s under strike. of Commerce to seize steel mills rected” the Secretary on Transgender Military Servicemembers on Transgender Military alleging constitutional or statutory violations; the mere fact that agency action alleging constitutional or statutory violations; shield it from judicial review. is under a presidential directive doesn’t obtain judicial review, plaintiffs seeking to enjoin an order echo obtain judicial review, plaintiffs seeking town Sheet & Tube Co. v. Sawyer town Sheet & Tube Co. of Santa Clara v. Trump executive order,” rather than to prevent implementation of an order. executive order,” rather than to prevent adm_71-3_41554 Sheet No. 70 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 70 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 71 Side A 09/18/2019 13:09:53 57 Surface , 689 F.3d In re Manhattan- aff’d 565 565 RDERS O Defs. of Wildlife v. Perciasepe, of Wildlife Defs. neither the majority opinion neither the majority see also 61 58 , XECUTIVE E a foundational case repeatedly relied on to a foundational case repeatedly relied 62 , Sherley v. Sebelius is inconsistent with the D.C. Circuit’s is inconsistent with the D.C. Circuit’s 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I Instead, the court implicitly assumed justiciability and implicitly assumed justiciability and Instead, the court 59 Sherley The district court opinion affirmed by the court of appeals opinion affirmed by the court of appeals The district court GENCY ORMATTED A 60 , Meyer v. Bush, 981 F.2d 1288, 1296 n.8 (D.C. Cir. 1993) (“The Executive , Meyer , Exec. Order 13,768, § 18(c), 82 Fed. Reg. 8799, 8803 (Jan. 25, 2017). , Exec. Order 13,768, § 18(c), 82 Fed. )_ME F at 784. ELETE See, e.g. See id. Id. See, e.g. Orders thus usually aren’t justiciable, because the text of a modern the text of a modern justiciable, because thus usually aren’t Orders D 56 OT N At first glance, That said, the universe of justiciable cases is larger than many argue (or of justiciable cases is larger than That said, the universe 57. 62. 350 F.2d 451 (D.C. Cir. 1965). 58. 2012). 689 F.3d 776 (D.C. Cir. 59. 60. 61. F. Supp. 2d 1, 22 (D.D.C. 2011) (internal quotation marks Sherley v. Sebelius, 776 56. M K O Bronx Postal Union v. Gronouski nor the two concurring opinions even mentioned the order’s express attempt opinions even mentioned the nor the two concurring to preclude review. executive order expressly states in its final section that it “is not intended to, that it “is not in its final section order expressly states executive enforcea- or procedural, or benefit, substantive not, create any right and does departments, United States, its party against the or in equity by any ble at law person.” agents, or any other employees, or or entities, its officers, agencies, 2019] justiciable create a issue to order at executive the intends the President whether right. (D 714 F.3d 1317, 1324 n.6 (D.C. Cir. 2013) (stating that Executive Order 13,563 doesn’t create 714 F.3d 1317, 1324 n.6 (D.C. Cir. 2013) (stating because the order contains standard language a procedural right that could establish standing precluding judicial review). stated: “NIH may not simply disregard an Executive Order. To the con- not simply disregard an Executive stated: “NIH may per- extent the to directives policy President’s the implement must trary . . . it mitted by law.” 776 (D.C. Cir. 2012). Mining Regulation Litig., 627 F.2d 1346, 1357 (D.C. Cir. 1980) (“[E]xecutive orders without Litig., 627 F.2d 1346, 1357 (D.C. Regulation Mining are not judicially enforceable in private civil specific foundation in congressional action 1319, 1330 & n.14 (9th Cir. 1979) (reviewing suits.”); Legal Aid Soc’y v. Brennan, 608 F.2d Executive Order because “[n]othing in an executive order and its implementing regulations order “a housekeeping measure rather than [is- 11246 precludes judicial review,” nor is the authority”); sued] pursuant to constitutional or statutory 981 F.2d 1288, 1303 n.6 (D.C. Cir. 1993), v. Bush, omitted) (quoting Meyer Order carefully stated that its purpose was only for internal management and that it created Order carefully stated that its purpose was it had any legal significance.”); no private rights. As such, it is doubtful that made the same point: “‘An executive order is, for many purposes, a form of made the same point: “‘An executive is inconsistent with an executive order presidential law.’ A regulation that that authorizes its promulgation is unlawful.” believe) because the rule of nonjusticiability isn’t uniformly applied, particu- rule of nonjusticiability isn’t uniformly believe) because the an executive order. In of agency action inconsistent with larly in the context case the 2012 D.C. Circuit C Y adm_71-3_41554 Sheet No. 71 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 71 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 71 Side B 09/18/2019 13:09:53 M K 63 see C Y , 81 , we 68 Sherley , 350 F.2d at In re Surface Mining Regu- In re Surface Mining ’s expansive dicta, or ’s expansive dicta, 67 Manhattan-Bronx NTERPRETATIONS OF [71:3 [71:3 , Executive Order No. 13,505, I RDERS or its progeny in or its progeny in O Sherley EVIEW Udall v. Tallman R GENCY A AW L Manhattan-Bronx First, the court found that the agency court found that First, the 64 declining to hear the case, the court re- to hear the case, declining Judging Under the Constitution: Dicta About Dicta XECUTIVE E show it doesn’t categorically preclude judi- categorically show it doesn’t Manhattan-Bronx . 689 F.3d at 785. This third characteristic is that Execu- OCTRINE ON D DMINISTRATIVE DMINISTRATIVE prudentially A Sherley 3 U.S.C. § 301 (authorizing the President to delegate executive 3 U.S.C. § tracks the law in the Third Circuit, which is that the Third Circuit, which is that tracks the law in Supreme Court Precedent: See 9/10/19 10:19 PM
, 350 F.2d at 456 & n.10. , 350 F.2d at 456. A. Sherley Surface Min. Regulation Litig., 627 F.2d 1346, 1357 (D.C. Cir. 1980). Regulation Surface Min. EVIEW Manhattan-Bronx URRENT as (i) a step back from as (i) C In re Second, in Second, , . 1249, 1256–63 (2006). )_ME R at 456 n.9, 457. For a definition of dictum and an argument on why it should and an argument at 456 n.9, 457. For a definition of dictum 66 EV Sherley
, 627 F.2d at 1357. But the order at issue in , 627 F.2d at 1357. But the order at issue ELETE So the court’s comments that judicial review would be inappropriate would be inappropriate judicial review comments that So the court’s Manhattan-Bronx See id. See, e.g. Manhattan-Bronx D II. 65 OT N El-Ganayni Executive v. U.S. Dep’t of Energy, 591 F.3d 176, 190 n.9 (3d Cir. 2010) (“The In sum, whether cases brought to enforce an order are nonjusticiable is cases brought to enforce an order In sum, whether Given the power of executive orders and the frequency with which they Given the power of executive orders 65. 66. 63. 64. reading, permissive also justifies a more that There is a plausible third characteristic 67. 68. Contractors Ass’n of E. Pa. v. Sec’y of Labor, 442 F.2d 159, 175 (3d Cir. 1971); O (D Order is a delegation of inherently executive authority by the President to another member of inherently executive authority by the President to another member is a delegation Order of the Executive Branch. functions to the head of agencies). An agency head is bound by the terms of that delegation.”). N.Y.U. L. R were dicta. (ii) a “compelling” situation of political and ethical salience (e.g., stem cell of political and ethical salience a “compelling” situation (ii) research). And is invalid and sub- action pursuant to an Executive Order “[a]dministrative Order.” if beyond the scope of the Executive ject to judicial review can view inconsistent both within and across circuits. While neither the district court within and across circuits. While neither inconsistent both cited nor the court of appeals 566 orders. executive with inconsistent allegedly action of agency review decline receive less weight, see Pierre N. Leval, doesn’t refer to any statute either. 452, and thus “without specific foundation in congressional action.” 452, and thus “without specific foundation lation Litig. tive Order No. 10,988 didn’t refer to any statute other than a general civil service statute, other than a general civil service statute tive Order No. 10,988 didn’t refer to any a personal policy,” making the order “simply in furtherance of but while it explains cases like Chamber of Commerce v. Reich, 74 F.3d 1322, 1322 (D.C. v. Reich, 74 F.3d 1322, 1322 (D.C. of Commerce but while it explains cases like Chamber Cir. 1996), it doesn’t explain But two parts of But two parts served the right of review on “compelling” occasions. served the right of cial enforcement of executive orders. of executive cial enforcement in question—the Postal Service—wasn’t even in conflict with the executive in conflict with even Postal Service—wasn’t in question—the order. also adm_71-3_41554 Sheet No. 71 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 71 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 72 Side A 09/18/2019 13:09:53 73 70 But the 75 , the Court held 567 567 RDERS O Udall v. Tallman XECUTIVE E at 19–23, 20 n.16 (discussing “reasonable[ness]” of Tallman sued, arguing that Executive Order Tallman sued, arguing that Executive 72 That is, courts haven’t clarified whether defer- courts haven’t clarified That is, 69 see also id. 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I note 17, at 2026. Thus, the Court unanimously upheld the Secretary of unanimously upheld the Secretary Thus, the Court supra 71 GENCY ORMATTED A 74 note 98. )_ME F ’s facts were as follows. In the 1950s, D. J. Griffin and James K. In the 1950s, D. J. Griffin and ’s facts were as follows. Newland, at 2. at 19 (quoting Exec. Order No. 8979, 6 Fed. Reg. 6471 (Dec. 16, 1941)). at 5. ELETE Id. Id. Id. See infra See D OT N Tallman But in 1947, DOI had promulgated a regulation that “provided simply a regulation that But in 1947, DOI had promulgated The D.C. Circuit agreed with Tallman, stating “the Executive Order The D.C. Circuit agreed with Tallman, Only one Supreme Court case addresses how courts should handle agency courts should handle addresses how Supreme Court case Only one 72. 71. 380 U.S. 1, 4 (1965); 73. 74. 75. F.2d 411, 414 (D.C. Cir. 1963). Tallman v. Udall, 324 70. 69. None of the above-described lands excepting (a described area) shall be subject to None of the above-described lands excepting under disposition (except for fish trap sites) location, sale, or entry, or other settlement, or to classification and lease under the any of the public-land laws applicable to Alaska, to leasing Alaskan public lands]. provisions of [1926 and 1927 statutes pertaining M K O the agency’s interpretation of Executive Order 8979). No. 8979 had closed the Moose Range to leasing until a revised regulation No. 8979 had closed the Moose Range date of Tallman’s application. reopened the lands on August 14, 1958—the Executive Order No. 8979 provided: Supreme Court reversed, holding that “the Secretary’s interpretation may Supreme Court reversed, holding that Executive language of the orders [i.e., not be the only one permitted by the 2019] orders—including for executive legal doctrine that it isn’t ideal in court, arise orders—is undertheorized of executive agency interpretations how to evaluate applied. and inconsistently (D the Interior’s authority to issue oil and gas leases despite an alleged conflict to issue oil and gas leases despite the Interior’s authority No. 8979. D. Roosevelt’s Executive Order with President Franklin leases in the Alaskan applications for oil and gas Tallman filed competing (DOI) granted the of the Interior Kenai Moose Range. The Department leases to Griffin, not Tallman. ence doctrines or APA requirements apply those interpretations. This Article interpretations. apply those or APA requirements ence doctrines day. APA for another mostly leaving the judicial deference, focuses on that such leases had to be subjected to an approved unit plan and contain a to an approved unit plan and that such leases had to be subjected without the advance consent of provision prohibiting drilling or prospecting the Secretary.” interpretations of executive orders. Not only is the case dated, but also it executive orders. Not only is the interpretations of not the applica- appropriate judicial deference standard, only addresses the In the 1965 case bility of APA requirements. clearly did remove the land involved from oil and gas leasing.” clearly did remove the land involved that courts should defer to agency interpretations of executive orders if they defer to agency interpretations of executive that courts should are “reasonable.” C Y adm_71-3_41554 Sheet No. 72 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 72 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 72 Side B 09/18/2019 13:09:53 , M K See C Y and . and see, e.g. The ’s def- to the 81 76 Tallman Tallman deference Tallman Second, the Second, Instability 78 Tallman transfer of title transfer of and its progeny, Tallman’s [71:3 [71:3 , and EVIEW Chevron R , if they do at all. Only the Third, expressly declined to reach , albeit with significant limitations, in Ki- , albeit with significant limitations, standard. In the intervening fifty- standard. In the AW L Auer The lower courts’ uneven application The lower courts’ uneven application Sherley Tallman —have expressly applied 82 Tallman 83 Of the approaches to Tallman 84 Sherley deference—the deference owed to an agency’s deference—the deference These terms all contemplate all contemplate These terms 80 77 DMINISTRATIVE DMINISTRATIVE Auer A / at 20. 9/10/19 10:19 PM interpretation; courts must therefore respect it.” therefore respect courts must interpretation; Third, in later executive orders, the President had dele- orders, the President had Third, in later executive EVIEW 79 see also id. Lower Court Applications of )_ME R Seminole Rock
, detailed in the next section, reflects this confusion. , detailed in the next section, reflects reasonable Yanko v. United States, 869 F.3d 1328, 1335 (Fed. Cir. 2017) (citing at 19. at 20. at 17; B. at 790 (Brown, J., concurring). ELETE Id. Id. Id. Id. See D came in then-Judge Janice Rogers Brown’s concurrence. Judge Brown worried that Id. OT N Circuits are split on how to apply Given how much deference doctrine has changed since 1965, courts are deference doctrine has changed since Given how much 81. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837 (1984); 83. Circuit panel that affirmed The D.C. 82. Court recently affirmed The Supreme 76. U.S. 1, 4 (1965) (emphasis added). Udall v. Tallman, 380 77. 78. 79. 80. 84. Tallman O (D lands in question, which an oil and gas lease doesn’t effect. oil and gas lease question, which an lands in sor v. Wilkie, 139 S. Ct. 2400, 2410, 2414–18 (2019). sor v. Wilkie, United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). Corp., 533 U.S. 218, 226–27 United States v. Mead Court hinged its reasonableness determination on three grounds. First, the on three grounds. determination its reasonableness Court hinged sale, or en- location, barred only “‘settlement, Order 8,979 text of Executive designated lands. try,’” on of erence toward executive orders. gated to the Secretary “full power to withdraw lands or to modify or revoke “full power to withdraw lands gated to the Secretary any existing withdrawals.” Ninth, and Federal Circuit Courts of Appeals, and a D.C. District Court— Ninth, and Federal Circuit Courts the district court affirmed in 568 it is quite but No. 487], Order Land DOI’s Public and No. 8979 Order clearly a questioned Executive Order’s reference to the 1926 and 1927 statutes, which pertained reference to the 1926 and 1927 statutes, Executive Order’s disposition” to not DOI’s interpretation of “other to leasing, strengthened include leasing. interpretations of its own regulations. Sherley v. Sebelius, 689 F.3d 776, 785 (D.C Cir. 2012). The closest thing to an analysis of Sherley v. Sebelius, 689 F.3d 776, 785 (D.C Cir. 2012). The closest thing to an analysis Tallman Procedure Act’s (APA’s)] the [Administrative “executive power will expand at the expense of re- regulatory scheme and judicial review will be reduced to rubberstamping preordained Orders and deference for a later sults,” but “[left] the more technical questions of Executive day.” confused about the vitality of the confused about the Court has decided two years, the Supreme adm_71-3_41554 Sheet No. 72 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 72 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 73 Side A 09/18/2019 13:09:53 ’s Kester Sherley Sherley Kisor v. Kester Tallman , 96 GEO. and El-Ganayni The Continuum , and stating “an and stating “[i]n see also applied deference is the 569 569 91 , Auer Tallman is probably the most the is probably Tallman Later Ninth Circuit Later Ninth Circuit RDERS 85 87 Dehainaut v. Pena, 32 F.3d O and see The Fifth Circuit applied Court noted, many courts thought 92 Kester . Whether the strength of Whether the strength And this “plainly erroneous” And this “plainly Kisor 88 90 XECUTIVE Dehainaut v. Pena E deference has been correlated with a higher Tallman (The Supreme Court held in (The Supreme Court Auer Kester v. Campbell Kester , 776 F. Supp. 2d at 22. , No. 17-17478, slip op. at 29 (9th Cir. Aug. 1, , No. 17-17478, slip op. at 29 (9th Cir. Aug. in other circuits, 89 deference. Kester William N. Eskridge, Jr. & Lauren E. Baer, William to be good law. Chevron see also Sherley see also ; 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS , the Ninth Circuit Court of Appeals stated: “In light Appeals stated: Circuit Court of , the Ninth Id. I whenever the Supreme Court has invoked it). Kester ’s (once) highly deferential standard for agencies’ inter- ’s (once) highly deferential Kester v. Campbell, 652 F.2d 13, 15–16 (9th Cir. 1981); Kester Auer Chevron and GENCY ORMATTED A In City & Cty. of San Francisco City & , 86 )_ME F , 652 F.2d at 15–16. Montana Wilderness Ass’n v. Connell, 725 F.3d 998, 994 (9th Cir. 2013). Ass’n v. Connell, 725 Wilderness Montana , 139 S. Ct 2400, 2414, 2416 (2019). As the at 1073–74. at 15–16. For citations of ELETE Kisor Kester See, e.g. Id. Id. D , however, that the strength of “plainly erroneous” , however, that the see also OT deference was stronger. N Other circuits—the Seventh, Fifth, and Fourth—have applied Seventh, Fifth, and Fourth—have Other circuits—the 89. Auer v. Robbins, 519 U.S. 452, 461 (1997). 90. 87. 88. 91. 32 F.3d 1066 (7th Cir. 1994). 92. 85. 652 F.2d 13 (9th Cir. 1981). 86. M K O same as “reasonableness” same as “reasonableness” 2018); of an agency’s presumed expertise in interpreting executive orders charged executive orders in interpreting presumed expertise of an agency’s great defer- interpretations with such agency we review to its administration, ‘unless it is reasonable interpretation is considered The agency . . . ence or inconsistent with the (order).’” plainly erroneous standard mirrors own regulations. pretations of their Auer v. Sebelius, 776 F. Supp. 2d 1, 22 (D.D.C. 2011) (citing v. Sebelius, 776 F. Supp. 2d 1, 22 (D.D.C. deference standard without citation to deference standard without citation Wilkie of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan of Deference: Supreme Court Treatment of Agency L.J. 1083, 1099, 1103–05 (2008) (finding that stating that when an executive order or other presidential directive charges Office of Personnel presidential directive charges Office stating that when an executive order or other accord held that the court must “we have with administering the order, (OPM) Management of the Executive Order.”); broad deference to the agency’s interpretation 2019] Circuit’s the Ninth circuits, in those (3d Cir. 2010) (citing v. U.S. Dep’t of Energy, 591 F.3d 176, 187 1066, 1073–74 (7th Cir. 1994); agency win rate than (D cases have confirmed cases have confirmed more obliquely. The Seventh Circuit, in more obliquely. The influential, because both the Seventh Circuit and the district court in and the district court Seventh Circuit because both the influential, agency is presumed to have special expertise in interpreting executive orders charged to its interpreting executive orders in agency is presumed to have special expertise considerable deference to agency interpre- afford administration, and so judicial review must tations of such orders.”). reviewing the DOE’s actions in this case, we note that we owe ‘great deference’ to the DOE’s that we owe ‘great deference’ to the DOE’s actions in this case, we note reviewing the DOE’s the DOE has been charged with adminis- 12,968 because Order Executive interpretation of tering that Order.”); deference will adapt accordingly remains to be seen). deference will adapt have cited it. have cited C Y adm_71-3_41554 Sheet No. 73 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 73 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 73 Side B 09/18/2019 13:09:53 M K , 93 C Y and def- 94 Mead regulation Tallman deference. In deference. deference. The Tallman FCC v. Fox Television Stations, statutory Tallman [71:3 [71:3 only one opinion—by the only one opinion—by , that “[w]e thus hold fast to our Less directly, the Seventh Less directly, the 95 , 96 ’s executive order deference order deference ’s executive EVIEW about R Tallman ] that E.O. 11[,]246 was a proper exercise 97 AW L United States v. Miss. Power & Light Co., 638 United States v. Miss. Tallman Tallman . In fact, before the Ninth Circuit’s 2018 before the Ninth . In fact, see also , 751 F.3d 1282, 1302 (Fed. Cir. 2014) (reversing and deference endures after limits its applications of limits its applications Tallman and its progeny”) with and its progeny”) DMINISTRATIVE DMINISTRATIVE Tallman A New Orleans Public Service Mead 9/10/19 10:19 PM Dehainaut rev’d and remanded EVIEW , 380 U.S. 1, 17, 18 (1965) (explaining that an administrative interpretation administrative an that (explaining (1965) 18 17, , 380 U.S. 1, , 436 U.S. 942 (1978); )_ME R and stating “we give special deference to the Labor Department’s interpreta- Labor Department’s and stating “we give special deference to the City & County of San Francisco v. Trump City & County of San vacated Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 446 n.3 Kentuckians for the Commonwealth, , the panel stated that “[a]n agency changing its course must apply that “[a]n agency changing its course , the panel stated ELETE once, but in an opinion later vacated by the Supreme Court. Supreme by the vacated later an opinion but in once, See Dehainaut v. Pena, 32 F.3d 1066, 1074 (7th Cir. 1994) (quoting Greater Bos. D Tallman . OT N , which rejected the principle that agency changes in policy require “more searching , which rejected the principle that agency changes in policy require “more searching No court of appeals even acknowledges the substantial deference doctrine deference the substantial of appeals even acknowledges No court 97 93. Cir. 1977) United States v. New Orleans Pub. Serv., Inc., 553 F.2d 459, 465 (5th 94. 95. 897 F.3d 1225 (9th Cir. 2018). 96. 422, 440 n.10 (2013) (citing 108 Fed. Cl. Shell Oil Co. v. United States, O (D Dehainaut are being de- indicating that prior policies and standards a reasoned analysis not casually ignored.” liberately changed, Inc. Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970)). But it is unclear whether Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. this particular condition on Circuit has implied Circuit has implied Court of Federal Claims—directly discussed the interaction of other defer- Claims—directly discussed the interaction Court of Federal “ ence doctrines (e.g., that has accumulated since since that has accumulated 570 Tallman expressly not considering the lower court’s holding on Executive Order No. 9001 or executive expressly not considering the lower court’s holding on Executive Order No. 9001 or executive generally). order deference more F.2d 899, 905 (5th Cir. 1981) (stating, without citing F.2d 899, 905 (5th Cir. 1981) (stating, without (citing which that department was charged to ad- tion of the Order [Executive Order No. 11,246] minister.”), and oddly quoted from a section of quoted from a section and oddly And the Fourth Circuit has cited Fourth Circuit And the of its own an agency’s interpretation in the context of standard Federal Circuit reversed on separate grounds. Federal Circuit reversed its progeny,” and refusing to give deference to the Biddle Opinion, which interpreted Execu- its progeny,” and refusing to give deference tive Order No. 9001), erence when the agency interpretation fails to “meet[] the standards established in erence when the agency interpretation fails (4th Cir. 2003) (responding to the opinion concurring in the judgment in part and dissenting (4th Cir. 2003) (responding to the opinion concurring regulatory practice reflects its in part of Judge Luttig by stating: “the Corps’ interpretation”); cf. Tallman v. Udall of congressionally delegated authority.”). of two Executive Orders had “long . . . been a matter of public record and discussion” and applying the fairly susceptible “rule that the practical construction given to an act of Congress, with the duty of executing it is entitled to greatof different constructions, by those charged years, will not be disturbed except for cogent rea- respect and, if acted upon for a number of sons.”) (citation omitted). opinion in previous determination [in adm_71-3_41554 Sheet No. 73 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 73 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 74 Side A 09/18/2019 13:09:53 , . , 139 defer- Dehainaut 99 regulations Christopher v. United States v. Tallman Kisor v. Wilkie 571 571 ’s deference stand- see also RDERS , but disagreeing the inter- O Kester Tallman XECUTIVE E And the Seventh and Ninth Circuits And the Seventh 100 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS statutory construction section, and stating that the Supreme I note 16, at 2351 (“When the challenge is to an action delegated to note 16, at 2351 (“When line of cases—culminating most recently with most line of cases—culminating GENCY Tallman supra ORMATTED or selectively quoted from it to establish a vaguer deference from it to establish a vaguer deference or selectively quoted is still good law thus depends on at least two things. First, what the is still good law thus depends on at least A , Yanko v. United States, 869 F.3d 1328, 1335 (Fed. Cir. 2017) (“broad , Yanko v. United States, 869 F.3d 1328, )_ME F Kagan, Montana Wilderness Ass’n v. Connell, 725 F.3d 988, 1011 (9th Cir. 2013) (Gould, Ass’n v. Connell, 725 F.3d 988, 1011 Wilderness Montana Tallman Dehainaut See, e.g. ELETE See See At least one Justice, Elena Kagan, likely supports this view. Kagan, likely supports one Justice, Elena At least D 98 OT N It is also unclear whether APA requirements apply to agency interpreta- to agency apply requirements APA whether also unclear It is Altogether, the case law suggests that the usual administrative law frame- administrative that the usual the case law suggests Altogether, 100. 99. 98. 567 U.S. 142, 155 (2012). 567 U.S. 142, 155 (2012). M K O review” than initial decisions—with limited exceptions. 556 U.S. 502, 514 (2009). limited 514 (2009). exceptions. 556 U.S. 502, review” than initial decisions—with Whether 2019] (D tions of executive orders. It appears only one opinion—a Ninth Circuit one opinion—a It appears only orders. tions of executive sug- dissenting in part—has in part and Judge Gould concurring opinion by apply along with should the APA’s requirements gested that ence. work may not apply to agency interpretations of executive orders. At the to agency interpretations of executive work may not apply courts haven’t simply adopted same time, lower ard that the agency’s interpretation must be upheld if it is simply “reasona- interpretation must be upheld if ard that the agency’s lower courts have re- the Seventh and Ninth Circuits, ble.” Except for phrased weaker. standard that is potentially Seventh Circuit meant by an agency “casually ignor[ing]” its existing policies. Seventh Circuit meant by an agency “casually 32 F.3d at 1074. And second, whether courts apply to executive orders the 32 F.3d at 1074. And second, whether courts SmithKline Beecham Corp. deference”); El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d 176, 187 (3d Cir. 2010) El-Ganayni deference”); pertains to 380 U.S. 1, 16 (1965), which (“great deference”) (quoting Tallman v. Udall, of executive orders)); Sherley, v. Sebelius, “statutory construction,” not interpretations 553 F. Supp. 2d 1, 22 (D.D.C. 2011) (“considerable deference”); an agency head but directed by the President, a different situation obtains: then, the President an agency head but directed by the President, agency head, and the review provisions usually effectively has stepped into the shoes of an applicable to that agency’s action should govern.”). New Orleans Pub. Serv., Inc., 553 F.2d 459, 465 (5th Cir. 1977) (“special deference”); Cir. Kentuckians for the Commonwealth Inc. v. Rivenburgh, 317 F.3d 425, 446 n.3 (4th 2003) (quoting the Court deferred to the Department of Interior (DOI) because of long-standing agency except for co- “will not be disturbed practice, and stating that the agency interpretation gent reasons . . . .”). S. Ct. 2400 (2019)—that restrict changes in agency interpretations of their own restrict changes in agency interpretations of their own S. Ct. 2400 (2019)—that See pretation can survive APA hard look review under Motor Vehicle Mfg. Ass’n, v. State Farm Vehicle Mfg. under Motor pretation can survive APA hard look review Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Mutual J., concurring in part and dissenting in part) (agreeing agency’s interpreta- that with majority (agreeing J., concurring in part and dissenting in part) deference under tion of Presidential Proclamation deserves C Y adm_71-3_41554 Sheet No. 74 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 74 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 74 Side B 09/18/2019 13:09:53 M K C Y The intent , 1989 Chevron ’s defer- ’s “plainly ’s application ’s application deference). Tallman Auer Seminole Rock interpretation, Con- Tallman [71:3 [71:3 The Constitutional Case for USTIFICATIONS FOR USTIFICATIONS FOR statutory J . 95, 97–98 (2010). EVIEW R refer to both ambiguity and vagueness. and vagueness. refer to both ambiguity And even if a law doesn’t intend AW 106 ’s of an standard for interpretation EFERENCE L , 380 U.S. at 17. In contrast, the opinion’s , 380 U.S. at 17. In contrast, the opinion’s OMMENT PPLYING D A .C ’s standard for “interpretation of an ad- “interpretation for ’s standard ’s standard may be more deferential than may be more ’s standard Tallman Tallman ONST This inconsistency in This inconsistency to intentionally or knowingly delegate agen- to intentionally or knowingly delegate Judicial Deference to Administrative Interpretation of Law 104 105 Jonathan R. Siegel, Essay, , 27 C into The Four Goals Underlying Deference The Four Goals Underlying DMINISTRATIVE DMINISTRATIVE 101 A
Seminole Rock Seminole as an implicit delegation of interpretive power). And even if this see also A. 9/10/19 10:19 PM Seminole Rock XAMINING AND isn’t a model of clarity, the opinion isn’t a model quotes ’s/ E EVIEW Chevron 102 Auer
Tallman , Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843– unless we equate “plainly erroneous” with “reasonable” in ex- erroneous” with equate “plainly unless we , 139 S. Ct. 2400, 2416 (equating the two in regulatory/ , 139 S. Ct. 2400, 2416 (equating the two in )_ME R III. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1043 (9th Cir. 2013) (“To de- Project v. Abbey, 719 F.3d 1035, 1043 Watersheds W. 103 Kisor See See, e.g. ELETE ’s, at 18–23. D L.J. 511, 517 (1989); Id. OT N To lay the foundation for updated doctrine, this Article starts with first for updated doctrine, this Article To lay the foundation 103. While 104. 105. throughout this paper to I use “ambiguity” 101. Co., 325 U.S. 410, 413–14 (1945). Rock & Sand Bowles v. Seminole 102. 106. O UKE (D ministrative regulation” ministrative termine reasonableness, we adopted the standard applied for reviewing an agency’s interpre- applied termine reasonableness, we adopted the standard tation of its own regulations.”). erroneous or inconsistent with the regulation” standard only once, and while reviewing a reg- erroneous or inconsistent with the regulation” Land Order No. 487. ulation—Public asks only whether the order was “reasona- analysis of Executive Order No. 8979 seemingly ble.” sense” (like the word “cool”), while a term is A term is ambiguous “if it has more than one or might not apply.” Lawrence B. Solum,vague “if there are cases where the term might Interpretation-Construction Distinction cies interpretive or policymaking power. executive order. executive narily be known.” Antonin Scalia, ecutive order deference too. ecutive order ential standard. principles. These are the three underlying justifications for interpretive def- are the three underlying justifications principles. These constraining defer- or the President, plus a fourth factor erence to agencies may more accurately reflect the ence: the rule of law. First, deference of the interpreted law at issue. In the context of of the interpreted law at issue. In the gress uses textual ambiguity 572 imported have evidences at least doctrinal confusion, if not concern, with confusion, if not at least doctrinal evidences D 44 (1984) (justifying it cre- now knows that the ambiguities delegation isn’t the intention of ambiguity, “[c]ongress be resolved, within the bounds of permissi- ates, whether intentionally or unintentionally, will particular agency, whose policy biases will ordi- ble interpretation, not by the courts but by a Tallman adm_71-3_41554 Sheet No. 74 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 74 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 75 Side A 09/18/2019 13:09:53 108 and , 126 Chevron six times in the six times , but usually don’t As for agency As for agency is analogous: 573 573 . 901, 995–98 (2013) 107 Chevron EV Auer Chevron ’s rationale as a court “de- ’s rationale as a court RDERS O .L.R . 612, 629–31 (1996) (discussing TAN .’”) (quoting Decker v. Nw. Envtl. Chevron EV ’s faults], it would be a mistake to . 451, 524 (2017) (concluding that Constitutional Structure and Judicial Def- Constitutional Structure and Judicial EV , 65 S XECUTIVE .L.R Chevron E Chevron .L.R Court resist any analogy between OLUM , the rationale of , the rationale Agencies as Legislators: An Empirical Study of the Role Agencies as Legislators: An Empirical Study of the ASH at 2408–24 (mentioning Kisor ). .W Statutory Interpretation from the Inside—An Empirical Study the Inside—An Statutory Interpretation from , 96 C EO Auer See id. . regulations The Origins of Judicial Deference to Executive Interpretation The Origins of Judicial 109 and , 85 G Auer 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS Kisor at 2446 n.114 (Gorsuch, J., concurring in the judgment, joined at 2446 n.114 (Gorsuch, J., concurring in I ’s majority opinion practically said as much. It drew heavily upon ’s majority opinion practically said as much. . 937, 963–65 (2018) (defending . 937, 963–65 (2018) (defending id. note 271 (discussing how the Court imported an academic proposal note 271 (discussing how the Court imported EV Kisor , 139 S. Ct. at 4212 (“[I]f you don’t know what some text (say, a memo , 139 S. Ct. at 4212 (“[I]f you don’t know what infra GENCY ORMATTED A .L.R Kisor is in any way a ‘logical corollary to , Aditya Bamzai, , Aditya Bamzai, , omitted); , 139 S. Ct. at 2425 (Roberts, C.J., concurring in part) (“Issues surrounding , 139 S. Ct. at 2425 (Roberts, C.J., concurring AND )_ME F deference into Auer ’s three underlying justifications, the most important being that at an agency is important ’s three underlying justifications, the most See, e.g. See, e.g. ELETE Chevron , 71 V D to explain and narrow See Kisor Chevron L.J. 908, 933–38, 941–44 (2017) (arguing deference is owed to customary practice and (2017) (arguing deference is owed to customary L.J. 908, 933–38, 941–44 OT . N 108. of the be sure, four members To 109. 107. M K O ALE Auer judicial deference to agency interpretations of their own regulations are distinct from those judicial deference to agency interpretations to agency interpretations of statutes enacted by raised in connection with judicial deference today to touch upon the latter question.”)Congress. I do not regard the Court’s decision (ci- tation to long-standing interpretations); Jarrod Shobe, long-standing interpretations); Jarrod Shobe, of Agencies in the Legislative Process interpretations of their own of their own interpretations 2019] in- of a statute’s interpreters excellent may be agency an delegation, statute a cer- enforced the agency has customarily because the tent/meaning, origins. view of the statute’s or has a privileged tain way Deference (D “agencies are intimately involved in originating and reviewing the statutes they are tasked with “agencies are intimately . . . .”). implementing termin[ing] that a statute’s best interpretation is that the statute confers power on the agency”); that the statute interpretation is that a statute’s best termin[ing] Schultz Bressman, Abbe R. Gluck & Lisa Delegation, and the Canons: Part I of Congressional Drafting, by Thomas and Kavanaugh, JJ.) (“Regardless [of by Thomas and Kavanaugh, JJ.) (“Regardless or an e-mail) means, you would probably want to ask the person who wrote it. And for the or an e-mail) means, you would probably want to ask the person who wrote it. And (though the person is here a collective too same reasons, we have thought, Congress would often have direct insight into what that rule actor). The agency that ‘wrote the regulation’ will Comp. of Workers’ Coal Co. of Va. v. Dir., Office (quoting Mullins was intended to mean.”) Programs, 484 U.S. 135, 159 (1987)); John F. Manning, suppose that erence to Agency Interpretations of Agency Rules Def. Ctr., 568 U.S. 597, 620 (2013) (Scalia, in part and dissenting in part). J., concurring But desire to decide only one blockbuster deference this resistance is likely based on the Court’s many principles underlying deference really are case at a time. For as this Article argues, trans-substantive. And intend to delegate interpretive power through textual ambiguity). power through textual ambiguity). intend to delegate interpretive (finding that congressional staffers who draft legislation are aware of staffers who draft legislation are aware (finding that congressional opinion of the Court); about Y that agencies are best suited to understand accurately their own actions (or their own to understand accurately are best suited that agencies predecessors). those of their Seminole Rock Chevron C Y adm_71-3_41554 Sheet No. 75 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 75 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 75 Side B 09/18/2019 13:09:53 . M K C Y EV Chevron Chevron .L.R A . Unlike . Unlike , 92 V Step Zero the heads of executive the heads in which it held 110 [71:3 [71:3 115 , EVIEW democratic accountability democratic United States v. Curtiss-Wright Ex- United States v. Curtiss-Wright R 111 AW than the judiciary. For instance, in than the judiciary. L , 139 S. Ct. at 2416 (holding an agency’s reg- , the Court linked expertise back to legisla- , the Court linked Cass R. Sunstein, Chevron And though the Court muddied this And though the Court muddied this see see also Kisor 117 DMINISTRATIVE DMINISTRATIVE technical expertise A United States v. Mead Corp. 114 9/10/19 10:19 PM note 109, at 629. Kisor v. Wilkie Factors relevant to this “force of law” determination Factors relevant to this “force of . art. III § 1. 116 EVIEW supra , 139 S. Ct. at 2438–39, 2441 (Gorsuch, J., concurring in the judgment). ONST Kisor , 533 U.S. at 226–27; C , And in , 139 S. Ct. at 2417 (quoting Martin v. Occupational Safety & Health Review v. Occupational , 139 S. Ct. at 2417 (quoting Martin )_ME R the Court deferred to the President on military and foreign pol- to the President on military and foreign the Court deferred at 320. 113 112 Kisor Mead Id. ., ELETE , the Court observed that “[j]udges aren’t experts” in a “regulatory that “[j]udges aren’t experts” , the Court observed D See, e.g. OT N Third, judicial deference may lead to better policy results because the Ex- may lead to better policy results Third, judicial deference Second, judicial deference may improve improve may deference judicial Second, Counterbalanced against these three affirmative justifications is a condi- Counterbalanced against these three 114. 115. 218 (2001). Those who oppose deference doctrines often invoke the rule 533 U.S. 116. 111. Manning, 112. 304 (1936). 299 U.S. 113. 117. at 228, 232–33; 533 U.S. 110. U.S. O (D of law. Comm’n, 499 U.S. 144, 153 (1991)). judges who serve for life assuming “good behavior,” serve for life assuming judges who analysis applies only if Congress had delegated “force of law” authority to an analysis applies only if Congress had exercise of that authority on the inter- agency, and the agency had acted in pretation at issue. icy because of not only his constitutional prerogatives, but also his relative only his constitutional prerogatives, icy because of not expertise. 187, 225–26 (2006). include, among others: “the degree of the agency’s care, its consistency, for- include, among others: “the degree has “precedential value”; and whether mality”; whether the agency action view of the agency or the agency action is the authoritative/centralized out at a rate of 10,000 a year at an merely one of many decisions “churned agency’s 46 scattered offices.” best suited to interpret its own regulations). best suited to interpret its own regulations). 574 agencies (and to a lesser extent independent agencies) are accountable to a agencies) are accountable independent (and to a lesser extent agencies may more ac- interpretations So, agency elected president. democratically the people. the will of curately reflect can express they don’t, voters And if ballot box. through the their disapproval ecutive Branch has more ecutive Branch has Chevron and complex.” In scheme [that] is technical port Corp tive intent, stating that “[a]dministrative knowledge and experience largely that “[a]dministrative knowledge tive intent, stating interpretive lawmaking that Congress delegates ‘account for the presumption power to the agency.’” tion for judicial deference implied by the courts and identified by scholars— tion for judicial deference implied by rule of law. The Supreme Court im- that deference would accord with the plied this condition in adm_71-3_41554 Sheet No. 75 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 75 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 76 Side A 09/18/2019 13:09:53 122 defer- rule of Auer emphasized emphasized 575 575 Barnhart RDERS O justifications for deference justifications for deference —by deferring to an agency in- to an agency deferring —by XECUTIVE E 118 ’s focus on “care” and “consistency.” ’s focus on justification is equally strong. justification is equally Congress Is a “They,” Not an “It”: Legislative Intent as Oxy- Mead political accountability presidential intent is the will of an individual. at 19–27. Of course, agencies are involved in the legislative , 120 . 239 (1992) (discussing how legislative intent is an oxymoron). and Barnhart v. Walton note 107, at 467–83. It’s unclear which process they’re more 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I Applying the Justifications to Executive Orders Justifications to Executive Applying the CON note 15 intent As Tara Grove has found through interviews with Ex- As Tara Grove has found through
supra technical expertise and echoed and echoed note 15, at 27. B. 121 GENCY supra 119 Kenneth A. Shepsle, ORMATTED , 533 U.S. at 257–59 & n.6 (Scalia, J., dissenting)). .L.&E A supra EV Shobe, General Analysis: President vs. Congress General Analysis: President R Agency officials “pore over” text and sometimes spark “heated Agency officials “pore over” text and Mead )_ME F See L ’ Grove, at 3, 19–22. at 222. 123 NT Intent Id. See Id. See generally ELETE I D

, 12 OT 1. i. is weaker. The N The intent rationale for deference in the presidential directive context is just The intent rationale for deference in Second, agencies are usually very involved in the process for issuing pres- Second, agencies are usually very involved Applying these principles to agency interpretations of executive orders to agency interpretations Applying these principles 123. 122. Grove, 121. 118. 212 (2002). 535 U.S. 119. 120. M K O are stronger for executive orders vis-à-vis statutes, adherence with the orders vis-à-vis statutes, adherence are stronger for executive law process too. as strong, if not stronger, than the rationale in the statutory context. First, as strong, if not stronger, than the than congressional intent. The most presidential intent is less of a legal fiction the President is an individual vested with obvious support for this idea is that executive orders, while Congress is the unilateral authority to issue and revoke legislation through bicameralism and a 535-member body that can only pass may bepresentment. Thus, congressional intent because while “Con- fictional gress is a ‘they,’ not an ‘it,’” ulatory interpretation “the agency’s ‘authoritative’ or ‘official position’” to receive ulatory interpretation “the agency’s ‘authoritative’ moron 2019] in Zero” analysis “Step (D idential directives. shows that while the shows that while the influential in. This review often involves agencies both commenting on and drafting an or- This review often involves agencies der’s text. ecutive officials across the political spectrum, virtually all orders go through ecutive officials across the political review takes at least several weeks. some type of agency review, and that “the careful consideration the Agency has given the question over a long pe- the question over the Agency has given consideration “the careful . . .” riod of time terpretation that wasn’t the result of a formal process— result of a formal that wasn’t the terpretation ence) (quoting C Y adm_71-3_41554 Sheet No. 76 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 76 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 76 Side B 09/18/2019 13:09:53 M K C Y .L. TAN . 1189, 1197– , 66 S . 51, 88 (1979) EV note 15. I agree EV supra .U.L.R The Authorization-Appropri- .U.L.R ASH [71:3 [71:3 ATH W Statutory Interpretation from the In- Perhaps the next-closest Perhaps the next-closest there is only one binding there is only one 128 The order that results often results order that The , 95 127 , 29 C EVIEW 124 R ders, Grove disagrees that we should defer ders, Grove AW Part III-B-2 & 3, at pp. 130–33. L See infra DMINISTRATIVE DMINISTRATIVE A Congress in the Administrative State 9/10/19 10:19 PM note 127, at 87–88. EVIEW action. Otherwise, an agency could likely disregard the leg- action. Otherwise, an agency could supra , Lisa Schultz Bressman & Abbe R. Gluck, , Lisa Schultz Bressman & Abbe R. Gluck, at 32–37. )_ME R e.g. So agencies likely know the purposes behind an order directed at an order directed purposes behind likely know the So agencies , at 21 (quoting interviews with Chris Fonzone, Dep. Ass’t and Dep. Counsel to at 21 (quoting interviews with Chris Fonzone, But inserting that legislative history requires some level of collec- legislative history requires some level But inserting that See See id. Id. Id. 125 ELETE statutory 129 D 126 OT .legislative 725, 768 (2014) (explaining the difficulties with inserting instructions into the N Third, as an individual with unilateral authority, the President can more the President unilateral authority, an individual with Third, as 127. 125. 126. In her article on interpreting executive or 124. 128. Fisher, 129. O EV (D side—an Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II Empirical Study of Congressional side—an with Grove’s premises, but not her doctrinal solution. The president’s extensive consultation The but not her doctrinal solution. with Grove’s premises, suggests to me that, on average, agencies under- of agencies during the order drafting process order better than courts. And even leaving aside stand the origins and meaning of any given intent, deference also furthers political order’s whether deference to agencies effectuates an accountability and expert policymaking. to agency interpretations. She argues for a purely textual approach because the text of an to agency interpretations. She argues for order the [agency consultation and executive to executive order is what “best give[s] effect Article II.” Grove, created under drafting] structure the President has President and Legal Adv. to Nat’l Sec. Council, Obama Admin. (May 22, 2018) and C. Admin. (May Obama President and Legal Adv. to Nat’l Sec. Council, Vice Pres. and Counsel to Bush Admin., H.W. Counsel, George House White Boyden Gray, (June 27, 2018)). Bush, Reagan Admin. George H.W. oversight tool available to Congress: legislation. oversight tool available tive action. Not only must a committee agree to include the history in an must a committee agree to include tive action. Not only but also the legisla- and ensure that the bill becomes law, appropriations bill credible threat that disobeying it will be tive history must be backed by the met by history); Brian D. Feinstein, R 576 word.” of a particular the use over arguments 98 ( 2018) (describing the burdens of public hearings); Louis Fisher, ation Process in Congress: Formal Rules and Informal Practices thing to a binding mechanism is legislative history in appropriations bills, mechanism is legislative history thing to a binding oversight over an inserted by the committee(s) with which is usually agency. reflects an agency’s preferences more than the president’s ideal policy pref- president’s ideal more than the agency’s preferences reflects an erences. them. (discussing “tenuous” nonstatutory controls like Conference Report language).(discussing “tenuous” nonstatutory controls easily correct or endorse erroneous agency interpretations than Congress. Congress. interpretations than agency or endorse erroneous easily correct of agency have many oversight tools for disapproving While Congress does instructions into burdensome public hearings; inserting actions (e.g., calling of appropriations bills), the legislative history adm_71-3_41554 Sheet No. 76 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 76 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 77 Side A 09/18/2019 13:09:53 133 , 114 577 577 Weakening Oversight: Two Weakening Abbe R. Gluck & Richard RDERS O See If amending an order is If amending an Controlling Presidential Control . 2118, 2118 (2016) (reviewing 134 EV that virtually all presidential directives 130 Peter Hanson, XECUTIVE I see no reason why a President would E .L.R with ARV See id. In particular, two presidential powers In particular, two (2014)). The legislative history would still have (2014)). The legislative history would still note 44, at 27. Her point is well taken. But as note 44, at 27. Her 132 Kathryn A. Watts, A. Watts, Kathryn (Feb. 5, 2018), http://thehill.com/opinion/finance/ (Feb. 5, 2018), http://thehill.com/opinion/finance/ supra see , 129 H ILL TATUTES H S HE Grove, note 131, at 698, 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS See , T I . 1298, 1324–26 (2018) (finding that all but one judge in the sample . 1298, 1324–26 (2018) (finding that all but one UDGING supra ,J EV note 31, at 294; And the President’s control over agencies is only increas- over agencies is President’s control And the GENCY ORMATTED A 131 .L.R Watts, Watts, , NLRB. v. SW Gen., Inc., 137 S. Ct. 929, 941–42 (2017); Brett M. Ka- (2017); Brett M. 941–42 Gen., Inc., 137 S. Ct. 929, , NLRB. v. SW supra . 683, 698 (2016) (arguing that the Obama presidency “‘elevated White House presidency “‘elevated White . 683, 698 (2016) (arguing that the Obama ARV )_ME F ATZMANN EV Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Statutory Interpretation on the Bench: A Survey of Fixing Statutory Interpretation Compare See, e.g. ELETE A. K D , 131 H .L.R OT N In contrast, the President wields many weapons against erroneous agency against erroneous many weapons the President wields In contrast, 131. Stack, 132. 133. expertly details the laborious process Grove 130. 134. 1, 4 (1965). 380 U.S. v. Udall, Tallman ICH M K O OBERT ing while Congress’s is decreasing. ing while Congress’s interpretations of an executive order, including informal communications, informal communications, order, including of an executive interpretations high-level appointees and vetting of control of review, and staff, regulatory DOJ litigation. Warning Signs in Appropriations Warning control over agencies’ regulatory activity to its highest level ever, relying on a mix of covert its control over agencies’ regulatory activity to control and overt command.”). 2019] stat- favors doctrine interpretation statutory current because history, islative considerations. over extra-textual utory text (D admitted using legislative history). M R can definitively stop an erroneous interpretation: (1) amendment of the in- an erroneous interpretation: (1) can definitively stop (dis)approve of certain remove ambiguities or specifically terpreted order to of the heads of exec- under the order, and (2) removal agency actions taken amend orders is itself a these two weapons, the power to utive agencies. Of interpretation, check against an erroneous agency theoretically sufficient 372060-weakening-oversight-two-warning-signs-in-appropriations (quantifying a “staggering (quantifying a “staggering 372060-weakening-oversight-two-warning-signs-in-appropriations decline” in oversight activity highlightingsince the 104th Congress, and failures in the House and Senate to complete appropriations bills). go through, and thus suggests that amending an executive order to fix an erroneous interpre- an go through, and thus suggests that amending tation wouldn’t be so easy. vanaugh, Grove herself recognizes, a President may opt for a modified process that skips customary process that skips customary for a modified opt Grove herself recognizes, a President may steps (e.g. OLC “form and legality” review). some force, since many judges still consult it after the legal text. force, since many some A. Posner, Appeals infeasible or insufficient, then firing agency officials and hampering an then firing agency officials infeasible or insufficient, agency’s operations is an alternative. because even under current doctrine, an interpretation that unambiguously current doctrine, an interpretation because even under wouldn’t be “reasonable.” contradicts the order feel bound to go through a tedious process if his only purpose is to correct an agency’s erro- feel bound to go through a tedious process if his only purpose is to correct an agency’s neous interpretation of an order. If correcting an error requires a tremendous amount of conceptualized as a change in policy.work, perhaps the “correction” is better C Y adm_71-3_41554 Sheet No. 77 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 77 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 77 Side B 09/18/2019 13:09:53 M K C Y So So 135 Legislature’s enacting executive orders while [71:3 [71:3 all EVIEW R Section IV-C-1 (discussing order that by- Section III-B-4, at pp. 133–37 (discussing AW L It’s intuitive, then, that when interpret- and infra with infra 136 DMINISTRATIVE DMINISTRATIVE A 9/10/19 10:19 PM EVIEW 5 U.S.C. § 553 (2012), 5 U.S.C. § , Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2072 (2018) (inter- Cent. , Wisconsin , New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019); Exxon Mobil Corp. Exxon Mobil 539 (2019); , New Prime Inc. v. Oliveira, 139 S. Ct. 532, complicate this simple account of intent are two issues. One: account of intent are two issues. complicate this simple Complication 1: Past vs. Current Presidential Intent Complication 1: Past )_ME R Thus, if it is clear what the current President means to do under Thus, if it is clear what the current does Compare See, e.g. See, e.g. 137 ELETE D
OT ii. N But this intuition becomes less compelling once we consider the unilateral But this intuition becomes less compelling Granted, political backlash or limited decisionmaking resources may limit may resources decisionmaking or limited backlash political Granted, What When interpreting statutes, courts generally look to what the legislature statutes, courts generally look to When interpreting 137. 136. 135. O (D passed virtually all process). secret modification and waiver of orders), preting words in a regulation “at the time the IRS promulgated the regulation in 1938”); the IRS promulgated the regulation preting words in a regulation “at the time must defer to the Secre- 504, 512 (1994) (“[W]e Thomas Jefferson Univ. v. Shalala, 512 U.S. by the regulation’s plain lan- is compelled tary’s interpretation unless an ‘alternative reading of the regulation’s promul- intent at the time guage or by other indications of the Secretary’s Jenkins, 485 U.S. 415, 430 (1988)). gation.’”) (quoting Gardebring v. a previous President’s order, it seems pointless to require him to “reissue” a previous President’s order, it seems And to the extent the President that order to make his intentions effective. perhaps every President would want can direct a court’s interpretive method, influence over an interpretive rule that extends his ing an executive order, the issuing President’s intent should control. ing an executive order, the issuing President’s Congress, the President can unilaterally nature of executive “law.” Unlike he can even do so without customary amend his orders. Unlike agencies, process. too when interpreting regulations. 578 v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“Extrinsic materials have a role in statu- v. Allapattah Servs., Inc., 545 U.S. 546, 568 they shed a reliable light on the tory interpretation only to the extent (emphasis added). understanding of otherwise ambiguous terms.”) how much the President may employ those powers. Even so, these political powers. Even so, employ those the President may how much So, if defer- Congress alike. to the President and constraints and managerial iner- despite congressional of statutes to agency interpretations ence is owed damag- should be particularly presidential inertia is no reason that tia, there of executive orders. interpretations ing to agency by a former Presi- interpreting an executive order issued When an agency is intent control? former President’s or current President’s dent, should the presidential state- is conflict between an order and other Two: Where there assuming coherent in- courts discern presidential intent, ments, how should address these two issues below. tent even exists? I (or relevant linguistic community) enactment. intended at the time of adm_71-3_41554 Sheet No. 77 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 77 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 78 Side A 09/18/2019 13:09:53 , .L. see also ARV NCLEAR ’s Inevita- U , 138 S. Ct. at Executive Orders , 130 H 579 579 NTERPRET I standard). . 2104, 2132–35 (2009) EV RDERS O OW TO Skidmore .L.R :H Wisconsin Cent. Ltd. Wisconsin ARV ULES The Law of Interpretation R XECUTIVE require phrases like ‘domestic Violence’ E , 122 H could but for now there is no such thing. but for now there EFAULT 142 D 139 (Jan. 21, 2019), http://www.presidency.ucsb.edu/ (Jan. 21, 2019), http://www.presidency.ucsb.edu/ TATUTORY ROJECT , 139 S. Ct. at 539 (statutes); note 140, 1132–36. P ,S . 1392, 1456 & n.455 (2017) (noting that the Dodd-Frank Act 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I EV supra LHAUGE .L.R GENCY rather than a rule that gives him enduring influence over over influence enduring gives him rule that than a rather E ORMATTED A RESIDENCY Preferences, Laws, and Default Rules ASH 138 New Prime Inc. P , at 1132–34, 1138–40 (discussing the nature of interpretive rules and limits on INER )_ME F .W 41–42 (2008) (making this argument, but for statutory interpretation); 41–42 (2008) (making this argument, but E EO So we shouldn’t adopt such a different interpretive methodology adopt such a different interpretive So we shouldn’t See id. See, e.g. See ELETE Perhaps a change like this could come from an executive order that like this could come from an executive Perhaps a change D MERICAN 140 141 A OT . 1079, 1132–35 (2017) (arguing that for most texts, “the law of interpretation, at the time, texts, . 1079, 1132–35 (2017) (arguing that for most , 85 G N So, we are back to analyzing how deference to agency interpretations of analyzing how deference to agency So, we are back to Still, the best course is to hold that the issuing/enacting actor’s intent actor’s hold that the issuing/enacting best course is to Still, the 142. 141. Sachs, & Baude 140. 139. active president as 50,000 presidential orders, but even the most There are as many 138. M K O EV HE EGISLATION deliberate change of those rules); Nicholas Bednar & Kristin E. Hickman, Chevron bility to be read according to their evolving meanings over time; for obvious reasons, very few do.”). to be read according to their evolving meanings over time; for obvious reasons, very few likely cross-referenced the linguistic practices of the time, and not any unknown practices to likely cross-referenced the linguistic practices be developed in the future” and that “[a] society data/orders.php (showing that President Roosevelt issued the most orders—3,721—in his issued the most orders—3,721—in data/orders.php (showing that President Roosevelt issued only 1,803 orders in his 8 years Wilson 12.1 years in office, that runner-up Woodrow issued only hundreds of orders each). presidents have in office, and that modern 2072 (regulations); William Baude2072 (regulations); William & Stephen E. Sachs, R L 2019] in office, he is (D commands courts to review certain agency decisions using the courts commands will probably only issue a few thousand. Gerhard Peters & John T. Woolley, Peters & John T. Woolley, will probably only issue a few thousand. Gerhard T (identifying problems with Elhauge’s argument, which are less relevant when dealing with a which are less relevant with Elhauge’s argument, (identifying problems unitary actor). Elizabeth Garrett, directs a certain interpretive method, directs a certain interpretive without a clear change in what some have called the “law” of interpreta- in what some have called the without a clear change tion. the relatively few orders he issues. few orders he the relatively executive orders best effectuates the issuing president’s intent. The analysis effectuates the issuing president’s executive orders best and executive order issue in the same is easy when the agency interpretation agencies generally help draft executive administration. As discussed above, president issues an order, his oversight orders directed to them, and once the tools over agencies are formidable. should control. To illustrate this point, consider a textually unambiguous or- a textually unambiguous this point, consider To illustrate should control. would the issuing president It is implausible that a century ago. der issued to weigh would expect—courts community the relevant linguistic want—or would risk an in- other factors. To consider these factors semantic drift and original understanding. order that contradicted everyone’s terpretation of the other legal instru- how courts interpret nearly every That would be unlike ment. C Y adm_71-3_41554 Sheet No. 78 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 78 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 78 Side B 09/18/2019 13:09:53 M K C Y note 106. as a modifiable as a modifiable don’t toggle supra But other forms Auer Chevron 145 and [71:3 [71:3 Chevron EVIEW R : implied delegation and agency delegation and : implied In other words, textual ambiguity words, textual ambiguity In other AW L 143 Auer And just as and 144 note 140, at 1127, 1134 (discussing Chevron DMINISTRATIVE DMINISTRATIVE supra A 9/10/19 10:19 PM So while bicameralism and presentment gives statutory gives So while bicameralism and presentment can be an implied delegation (through can be an implied a background rule 146 EVIEW interpretations should be able to contradict an order’s plain interpretations should be able to contradict notes 106–109. Auer Complication 2: Presidential Speech and Agency Interpretations Speech and Agency Interpretations Complication 2: Presidential Order’s Text Inconsistent with an )_ME R agency Baude & Sachs, § 1505(a)(2). and Id. See See supra ELETE D
OT iii. N But the analysis is less straightforward when an agency interprets an exec- an interprets an agency when straightforward is less analysis But the On the other hand, as a pragmatic matter of accurately discerning intent, On the other hand, as a pragmatic matter A second issue is how to evaluate presidential speech (or informal presiden- to evaluate presidential speech (or A second issue is how 145. § 1505(a)(1) (2012). 44 U.S.C. 146. 144. 143. Chevron O (D “closure rule”—a rule that determines outcomes in cases of uncertainty); outcomes rule that determines “closure rule”—a of interpretation) all the same. of interpretation) text its power over extra-textual elements, nothing formally privileges execu- text its power over extra-textual elements, argument further, one might tive order text. Extending this antiformalist claim that of presidential actions or speech can also have “general applicability and legal of presidential actions or speech can by mandating that other “docu- effect.” The Act demands this conclusion President may determine from time to ments or classes of documents that the legal effect” must also be published in the time have general applicability and Federal Register. 580 could reflect the issuing president’s intent that a future administration adapts a future administration intent that the issuing president’s could reflect at all, which reflect nothing Or ambiguity could to changing times. an order in knowledge about the purposes of about the purposes knowledge law. a utive order from a different administration. Here, the intent-based rationale Here, the intent-based administration. from a different utive order reasons for mirrors our text because agencies might have a sense of what the President “really wants,” text because agencies might have a sense be represented in court as bona fide. and any litigated interpretations will off when a presidential administration changes, neither should a deference administration changes, neither off when a presidential interpretations of executive orders. doctrine for agency tial documents) that conflict with the unambiguous text of an executive order. conflict with the unambiguous text tial documents) that formalistic justification for disregarding On the one hand, courts lack a strong disregard legislators’ floor statements. presidential speech as they might force in the executive order context than That’s because textualism carries less discussed in Part I, executive orders lack it does in the statutory context. As more binding than other presidential an express constitutional basis for being orders with their unusual force, statements or actions. To imbue executive of executive orders as well as the presidents rely on the historical weightiness publication of proclamations and exec- Federal Register Act, which requires and legal effect.” utive orders “having general applicability adm_71-3_41554 Sheet No. 78 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 78 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 79 Side A 09/18/2019 13:09:53 . EV could .L.R EX , 96 T L.J. 969, 996 (1992). 581 581 be taken at face The Constitutional Duty ALE RDERS O shouldn’t , 101 Y XECUTIVE E Gillian E. Metzger, Gillian E. Metzger, but would also increase the costli- but would also increase See 149 If governmental and nongovernmental If governmental and 147 Judicial Deference to Executive Precedent 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I Beyond the Bully Pulpit: Presidential Speech in the Courts if he had wanted to. Thus, a court cannot be positive that an agency’s repre- Thus, a court cannot be positive that L.J. 1836, 1902 (2015). GENCY 151 ORMATTED The President or his staff cannot police the activities of all The President or his staff cannot police A ALE 150 —an ultra-plain statement rule that wouldn’t only hamper the rule that wouldn’t only hamper —an ultra-plain statement )_ME F 148 Bond v. United States, 572 U.S. 844, 872 (2014) (Scalia, J., concurring) (suggest- Bond v. United States, 572 U.S. 844, 872 § 1505(a)(1). Id. Cf. , 124 Y ELETE D OT N Second, not every lawsuit against agency action reaches the attention of the attention action reaches Second, not every lawsuit against agency Framing these two reasons another way, focusing on the text of an execu- Framing these two reasons another 151. Merrill, W. Thomas 150. Shaw, Katherine 147. 148. 149. even be an unconstitu- intends may Significant confusion over what the President M K O federal agencies. parties alike were to believe that executive orders parties alike were value, then the president would have to expend more effort to issue direc- would have to expend more value, then the president that he “really have to provide some extrinsic evidence tives. He would mean[s] it” ness of judicial interpretation as courts search for and weigh competing ex- as courts search for and ness of judicial interpretation approach makes the plain statement trinsic evidence. In contrast, a better If the text of an executive order and the text of the executive order itself. to contradict one another, defaulting to later presidential statements seem of action because the President the executive order is the best course have amended the order the President. 71, 125 (2017). 2019] order text executive unambiguous privilege to two reasons are at least there in the documents not published statements or (1) other presidential over both unambiguous First, letting interpretations. and (2) agency Federal Register of other pres- the interference themselves without orders speak for executive of executive the binding status preserves agency communications idential or As dis- of presidential power. important form preserving an orders—thus from historical prac- orders derive their force largely cussed above, executive agencies” as op- they are “effective only against Federal tice, especially when parties. posed to nongovernmental (D implementation of presidential intent, implementation of ing that Congress should define all words that could have an alternative meaning other than ing that Congress should define all words that their standard definitions). tional violation of the President’s prerogatives. to Supervise sentations in court accurately reflect the President’s intentions instead of sentations in court accurately reflect gone unchecked because of presiden- merely the agency’s wishes, which have the text of an executive order in ques- tial inertia or mismanagement. When to assume the president has inten- tion is ambiguous, it may be reasonable to an agency. But when an tionally delegated interpretative authority this assumption is less plausible. executive order is textually unambiguous, all actors to bifurcate presidential tive order to determine its effect enables C Y adm_71-3_41554 Sheet No. 79 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 79 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 79 Side B 09/18/2019 13:09:53 . M K 154 C Y ARV . (forthcom- , 123 H EV L. R 153 Whether tweets 155 ORNELL [71:3 [71:3 , 104 C EVIEW R at 43–54. AW L See id. note 46, at 941–42. Doctrine: Insights from the Rule of Lenity supra Chevron DMINISTRATIVE DMINISTRATIVE Speech, Intent, and the President And courts would have to divine which presidential divine which presidential would have to And courts A In the context of statutes, while it is unlikely that In the context of statutes, while it it is unclear whether (i) “official statements” neces- it is unclear whether (i) “official statements” 152 157 note 16, at 2284–85 (describing how a written memorandum ac- note 16, at 2284–85 (describing how a written 156 9/10/19 10:19 PM note 150, at 131. Justifying the supra EVIEW supra , Note, , Note, )_ME R Defendant’s Supplemental Submission and Further Response to Plaintiffs’ Submission Post- Defendant’s Supplemental Recent Social Media Posts, Recent Social Media Katherine Shaw, Kagan, Shaw, Political Accountability See, e.g. See See See See See ELETE D
OT 2. N Further supporting the difference between binding and nonbinding the difference between binding Further supporting The greater political accountability of agencies relative to courts is gener- The greater political accountability 157. 156. 155. 153. 154. 152. O (D Briefing Notices at 2, James Madison Project v. Dep’t of Justice, 320 F. Supp. 3d 143 (D.D.C. Project Briefing Notices at 2, James Madison 2018) (No. 1:17-cv-00144-APM). companying a spoken announcement by President Clinton gave the Secretary of Labor more companying a spoken announcement by President address, and distinguishing between leeway than Clinton’s oral remarks at a commencement of “formal directives” and nonbinding “appropriation” of agency action, which take the form informal public announcements). ing 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3200695, draft at 37–43. draft at 37–43. ing 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3200695, generally shouldn’t be weighed when interpret- Shaw thus concludes that presidential speech But she supports weighing speech when it relates ing the scope of a presidential instrument. to the constitutionality of a president’s intent. 582 legal to have intended versus speech speech into messaging communications of speech these two types a distinction between to preserve effect. Failing the courts. the President and for both at the extreme, unworkable would be, a stray com- the public, lest communicating with would fear The President legal effect. ment have will remain nonbinding will be a question of future Executive Branch prac- will be a question of future Executive will remain nonbinding may be “official state- will consider law. While tweets tice and what courts States” in the view of the DOJ as of ments of the President of the United November 13, 2017, speech is that the Executive Branch itself has recognized the distinction. Executive Branch itself has recognized speech is that the For instance, the military declined to act on President Trump’s July 26, 2017 declined to act on President For instance, the military from the military, to exclude transgender individuals tweets that purported issued a presidential memorandum. until the President statements are reliable indicia of intent—a challenge like identifying useful identifying useful challenge like of intent—a are reliable indicia statements or looking out- history (for statutory interpretation) information in legislative record (for review of agency action). side the administrative sarily have binding effect, (ii) DOJ’s view is the entire government’s, or (iii) sarily have binding effect, (ii) DOJ’s courts adopt. this view should indeed be one that ally one of the strongest justifications for judicial deference to agency inter- ally one of the strongest justifications pretations of statutes. adm_71-3_41554 Sheet No. 79 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 79 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 80 Side A 09/18/2019 13:09:53 EGAL L Justifying for def- , 8 J. . 359, 371–78 EV stronger 583 583 .L.R ]. RDERS TAN O Dep't of Commerce v. New cf. Doctrine , 69 S XECUTIVE 161 Chevron Gundy v. United States, 139 S. Ct. 2116, E But see note 109, at 626; judicial deference to an interpretation of judicial deference to an interpretation Can the Administrative State Be Tamed? Justifying the 159 Judicial Deference to Executive Agencies and the Decline of the supra Constitutional Administration . L.J. 269, 270 (1988). 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I note 157, at 2051. DMIN supra GENCY So where there is statutory ambiguity, courts defer to agen- ambiguity, courts there is statutory So where ORMATTED , 2 A , A Part 1. , Christopher DeMuth, , Christopher DeMuth, 158 , Ilan Wurman, , Ilan Wurman, , Douglas W. Kmiec, Kmiec, , Douglas W. )_ME F Doctrine See, e.g. See, e.g. See, e.g. See supra 121, 121 (2016); Manning, 121, 121 (2016); Manning, ELETE But deference to statutory interpretation is technically constitution- But deference to statutory interpretation D . 2043, 2048 (2010) [hereinafter 160 OT EV N The political accountability rationale is also a good reason for courts to rationale is also a good The political accountability rationale may even be In fact, the political accountability 161. 158. 159. 160. Chevron M K O NALYSIS Nondelegation Doctrine York, 139 S. Ct. 2551, 2571 (2019) (stating that the Secretary of Commerce’s actions under York, 139 S. Ct. 2551, 2571 (2019) (stating and the weighing of incommensurables the Census Act “called for value-laden decisionmaking didn’t need to follow technocratic recommenda- under conditions of uncertainty,” and thus tions from the Census Bureau). L. R A 2019] author- legislative of delegation intentional is an interpretation agency every a de facto act interpretation is that every agency it is likely ity from Congress, of lawmaking. (D ally dubious, given that inter-branch delegation of powers is still unconstitu- ally dubious, given that inter-branch tional as a matter of law (but not practice). cies in part because agencies are more accountable to voters than judges. than judges. to voters are more accountable because agencies cies in part reports to the ultimately and the President report to the President, Agencies citizenry. the rationale is at of executive orders. Here, defer to agency interpretations though the substantiveit is in the statutory context, even least as strong as actor is still That is, the choice between the interpretive law at issue differs. these two options, an or an agency. Faced with only between the courts standpoint. stronger from a democratic accountability agency is obviously accountable for the public can theoretically hold Congress Moreover, just as the public could that delegate power to the Executive, ambiguous statutes that diffuse power accountable for vague executive orders hold the President within the Executive Branch. erence to agency interpretations of executive orders. While deference to erence to agency interpretations of judicial acquiescence to a form agency interpretations of statutes is effectively (i.e., Congress delegating legislative of inter-branch delegation of powers power to the Executive Branch), an executive order implicates few delegation issues. Deference to the latter an executive order implicates few delegation by reducing judicial intervention in the promotes the separation of powers interpretation of an executive order Executive Branch. After all, if an agency to correct the interpretation unilater- is inaccurate, the President has tools ally. (2017) (lambasting nondelegation doctrine as a legal fiction that should be discarded); the C Y adm_71-3_41554 Sheet No. 80 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 80 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 80 Side B 09/18/2019 13:09:53 . M K C Y ASH .W Dep't of EO cf. , 58 G 167 164 [71:3 [71:3 EVIEW L.J. 81, 146 n.312 (2015); R Motor Vehicle Mfrs. Ass’n, Inc. v. State Vehicle Mfrs. Motor UKE AW L (citing . , 65 D Chevron—The Intersection of Law & Policy Intersection of Law & Chevron—The DMINISTRATIVE DMINISTRATIVE A note 162, at 823. 9/10/19 10:19 PM Regulatory Textualism note 151, at 1011. supra But expertise should also be conceptualized as a separate But expertise should also be conceptualized EVIEW note 166, at 146 n.312 supra 166 —for the subset of agencies that are independent. Commenta- that are independent. subset of agencies —for the Independent agencies are less accountable to the President be- less accountable to agencies are Independent supra )_ME R 162 163 Laurence H. Silberman, at 996. Others combine the expertise justification with the political account- expertise justification with the political Others combine the Technical Expertise Id. See Nou, ELETE D 165 . 821, 823 (1990) (“[A]gencies—even the independent ones—have superior political the independent ones—have . 821, 823 (1990) (“[A]gencies—even
. OT 3. EV N Granted, the political accountability rationale is weaker—although argu- weaker—although is rationale accountability political the Granted, The expertise rationale is grounded in a few different principles. Some is grounded in a few different The expertise rationale 163. Merrill, 164. 165. Silberman, 166. Jennifer Nou, 167 162. O (D standing to the life-tenured federal judiciary in performing that policy making function [of performing that policy making in standing to the life-tenured federal judiciary choosing between interpretations].”). cause the President has less statutory control over them. cause the President tors, such as Professor Thomas Merrill, argue that the less directly account- that the less directly Merrill, argue as Professor Thomas tors, such draws on the the interpretation President, the less is to the able an interpreter as executive it should be and the weaker constitutional authority President’s precedent. Commerce v. New York, 139 S. Ct. 2551, 2573 (2019) (“[A] a court may not set aside an Commerce v. New York, 139 S. Ct. 2551, 2573 (2019) (“[A] a court may not set aside agency’s policymaking decision solely because itcon- might have been influenced by political is not a ‘rar- Agency policymaking siderations or prompted by an Administration’s priorities. ified technocratic process, unaffected by political considerations or the presence of Presidential 657 F.2d 298, 408 (D.C. Cir. 1981)). power.’”) (quoting Sierra Club v. Costle, ability justification, citing the “often-inextricable relationship between politics citing the “often-inextricable relationship ability justification, and expertise.” 2131–48 (2019) (Gorsuch, J., dissenting, joined by Roberts, C.J., and Thomas, J.) (discussing 2131–48 (2019) (Gorsuch, J., dissenting, joined doctrine; claiming that the court “regu- three principles for reinvigorating the nondelegation and noting Justice Alito’s willingness to re- larly rein[s] in” delegation under other doctrines; consider nondelegation doctrine). 584 L. R Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).Farm Mut. rationale grounded in policy outcomes—i.e., that courts should defer to agency rationale grounded in policy outcomes—i.e., lead to better results than judicial inter- interpretations because they generally arbitrary-or-capriciouspretations. Indeed, in the context of review, the Su- policy decisions on expertise; it cannot preme Court requires agencies to base political support. merely cite congressional intent or active ably viable commentators have collapsed the expertise rationale with the intent rationale, collapsed the expertise rationale with commentators have intent” be- has “superior knowledge of congressional arguing that an agency statute(s) relative to the substantive expertise in its organic cause of its greater courts. adm_71-3_41554 Sheet No. 80 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 80 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 81 Side A 09/18/2019 13:09:53 , . ICH Auer M Sec- 168 , 106 Yet under 174 585 585 RDERS O —a doctrinal compromise that 175 XECUTIVE and (iii) the benefits of national and (iii) the benefits E 170 ), 332 U.S. 194, 203 (1947). (ii) differing implementation methods, (ii) differing implementation note 157, at 2045. 169 supra , Chenery II more than anything else. On the Costs and Benefits of Aggressive Judicial Review of Agency Action On the Costs and Benefits of Aggressive Judicial Review Auer Doctrine 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I Further, a judge could decline to defer to an agency if she Further, a judge could decline to defer Chevron 173 GENCY ORMATTED If taken at face value, the logic of the rationale demands that If taken at face value, the logic of the A , 139 S. Ct. at 2417 (“When the agency has no comparative expertise in , 139 S. Ct. at 2417 (“When doctrine, courts take neither of these logical steps. Under doctrine, courts take neither of these , Skidmore v. Swift & Co., 323 U.S. 134, 137–39 (1944); Reuel E. Schiller, (1944); Reuel E. Schiller, , Skidmore v. Swift & Co., 323 U.S. 134, 137–39 172 , Kisor v. Wilkie, 139 S. Ct. 2400, 2413–14 (2019) (plurality opinion). 139 S. Ct. 2400, 2413–14 (2019) (plurality , Kisor v. Wilkie, Applying these concepts to executive orders, we should gen- to executive orders, we should Applying these concepts )_ME F e.g. 171 Cass R. Sunstein, SEC v. Chenery Corp. ( , at 2046 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)). at 2046. L.J. 522, 532–33 (1989). , courts must take the first step (asking whether the agency employed , courts must take the first step (asking See See, e.g. See Justifying the Id. Id. See Kisor Chevron Court spoke in general terms about what may implicate an agency’s expertise, not may implicate an agency’s expertise, Court spoke in general terms about what ELETE D UKE .See . 399, 406, 419–21 (2007). Kisor OT Kisor EV N Even so, the expertise rationale for deference is weaker than the intent and rationale for deference is weaker Even so, the expertise Similarly, in the context of executive interpretation, permitting judges to ask Similarly, in the context of executive The idea that expertise will lead to better policy outcomes itself has two itself has outcomes policy to better will lead expertise idea that The 169. 168. 170. 171 172. 173. 174. 175. M K O felt technically adept in the subject matter of the interpretation. felt technically adept in the subject matter erally expect better policy goals and policy implementation from agencies policy goals and policy implementation erally expect better identify who because the President can presumably vis-à-vis courts, especially execute his orders. has the expertise to a statute or an no matter if an agency is interpreting accountability rationales, in the context of stat- commentator has even stated that executive order. One justification “may be dispensed with utory interpretation, the agency expertise immediately.” 1989 D 2019] (D L. R ond, and perhaps less intuitive, is that an agency will be better at implement- at will be better is that an agency perhaps less intuitive, ond, and a court would That is, even if program. and administrable ing a coherent superior real- agency achieves policy goal, an superior select a theoretically of switch- such as the costs constraints, given (i) administrative world results new policy goal; ing to or adding a such as rulemaking versus adjudication; such as rulemaking current uniformity. The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law The Era of Deference: Courts, Expertise, and the Emergence courts ask whether an agency has actually employed its expertise when issuing courts ask whether an agency has actually an interpretation. may reflect concerns with whether an agency has exercised its subject-matter expertise in interpreting an whether an agency has exercised its subject-matter of judicial economy and accuracy. executive order would create problems parts. First, an agency may select a better policy goal than a court. goal than a select a better policy an agency may parts. First, resolving a regulatory ambiguity, Congress presumably would not grant it that authority.”). would not grant it that authority.”). resolving a regulatory ambiguity, Congress presumably The about whether a given judge’s expertise outmatches the agency’s expertise. its comparative expertise) but not the second its comparative expertise) but not the after C Y adm_71-3_41554 Sheet No. 81 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 81 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 81 Side B 09/18/2019 13:09:53 . M K C Y EV As 179 .L.R see generally HI C (1990). . 1, 6 (2008). EV 180 , 56 U. L. R In addition, many 177 OLICYMAKERS “legal certainty, predict- EORGIA P [71:3 [71:3 178 , 43 G EVIEW R DVISORS AS AW codified rule of law principles in de- A L ns of technical advisory committees, ns of technical advisory committees, CIENCE The Rule of Law as a Law of Rules Barnhart :S they aren’t law in the same way statutes are. they aren’t law in the same way statutes So although the expertise rationale has some So although the expertise 181 176 and RANCH DMINISTRATIVE DMINISTRATIVE B A Mead The Concept and the Rule of Law . 9/10/19 10:19 PM IFTH Antonin Scalia, F EVIEW HE see also Part I. ,T Part IV.A at 18, 40, 55. )_ME R at 6; Rule of Law See supra See id. Id. ELETE ASANOFF D J
. See infra OT 4. N The rule of law rationale for deferring to agency interpretations of execu- The rule of law rationale for deferring Counterbalancing the three affirmative justifications for deference is the re- the three affirmative justifications for Counterbalancing 180 181. 178. 179. 176. For an account of the pros and co 177. Waldron, Jeremy O HEILA (D weight, conclusions on judicial deference shouldn’t hinge on expertise. on judicial deference shouldn’t hinge weight, conclusions And consequently, judicial deference to agency interpretations of executive And consequently, judicial deference law if the underlying order isn’t law-like. orders may conflict with the rule of 1175, 1179 (1989) (“Predictability, or as Llewellyn put it, ‘reckonability,’ is a needful charac- than teristic of any law worthy of the name. There are times when even a bad rule is better no rule at all.”). discussed in Part IV.A, formulations of the rule of law emphasize formality, formulations of the rule of law emphasize 586 about what questions tough raises this inquiry Framing would of expertise level discover the a judge have to For example, would yet sufficient. be feasible, on the employees who worked of the agency thought processes resume and demonstrate would suffice to type of information If not, what interpretation? the interpre- subject matter of is expert at the Moreover, if a judge expertise? the judge’s who would verify expertise rationale), weakening the tation (thereby of generalist judges, advisory committee, a panel expertise upon review—an altogether? or something else ability, and settlement; on the determinacy of the norms that are upheld in so- ability, and settlement; on the determinacy their administration by the state.” ciety; and on the reliable character of termining whether to defer to agency interpretations of statutes. termining whether to defer to agency tive orders is weaker than the rationale vis-à-vis statutes because executive tive orders is weaker than the rationale of law that statutes have. In particu- orders lack some crucial characteristics by less formality, less legal certainty, lar, executive orders are characterized That is, even though executive orders and less administrative predictability. can act with the force of law, S quirement that deference accord with the rule of law. The rule of law has many accord with the rule of law. The quirement that deference law have the prevailing said, most conceptions of the rule of dimensions. That framework of in power should act “within a constraining principle that people of their own preferences, their own ide- public norms, rather than on the basis right and wrong.” ology, or their own individual sense of adm_71-3_41554 Sheet No. 81 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 81 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 82 Side A 09/18/2019 13:09:53 without So the the So As a re- a As 184 186 182 According 185 , https://www.dol. 587 587 ABOR L RDERS O T OF ’ Office of Federal Contract Com- Office EP See they often aren’t judicially en- they often aren’t XECUTIVE 183 E of public executive orders on and off—and of public executive 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I force or GENCY ORMATTED A text discussing justiciability accompanying note 56. text discussing justiciability accompanying text discussing sources of law accompanying note 34. note 34. text discussing sources of law accompanying operation supra )_ME F . This purported presidential authority stems from three declassi- presidential authority stems from three . This purported Id. ELETE D . See supra OT N Second, the Executive Branch secretly purports that the President can tog- Branch secretly purports that the Second, the Executive Three caveats apply to the effect of these OLC opinions. First, it is unclear Three caveats apply to the effect of these There are two major ways in which an executive order may not have the not have order may executive an in which major ways are two There 183. which since 1965 has protected employ- 11,246, Executive Order See, for example, 184. See 185. of Sen. (daily ed. Dec. 7, 2007) (statement 153 Cong. Rec. S15,011, S15,011–12 186. 182 One: There is no constitutional requirement An Executive order cannot limit a President. whenever he wishes to depart from the for a President to issue a new Executive order than violate an Executive order, the terms of a previous Executive order. Rather or waived it. President has instead modified No. 2: authority under [A]rticle II, can determine The President, exercising his constitutional the President’s authority under [A]rticle II. whether an action is a lawful exercise of And 3: President’s legal determinations. The Department of Justice is bound by the M K O ees of federal contractors—about one-fifth of the entire U.S. labor force—from discrimination discrimination labor force—from of the entire U.S. one-fifth ees of federal contractors—about on the basis of race, color, religion, and national origin. pliance Programs, “History of Executive Order 11246,” D gov/ofccp/about/50thAnniversaryHistory.html. Whitehouse). 2019] (D President can toggle the judicial enforceability of an operative executive order executive the judicial enforceability of an operative President can toggle the force of law. result for documents that can bear on and off—an odd gle the very public notice “highly classified” Office of Legal fied legal propositions from otherwise government surveillance. Counsel (OLC) opinions related to sult, historical practice, not legal necessity, makes executive orders formal, le- not legal necessity, makes executive sult, historical practice, while executive orders predictably administered. Indeed, gally certain, and reliance interests, can generate significant to Senator Sheldon Whitehouse, a former member of the Senate’s Select to Senator Sheldon Whitehouse, a propositions are: Committee on Intelligence, the three customary characteristics of law. First, as discussed in Part I, executive orders in Part I, executive law. First, as discussed characteristics of customary leaves their mooring, which express constitutional don’t have (unlike statutes) from where is it usually clear on norms. Nor and dependent status unsure often ag- because presidents to source its power order even claims any given executive orders. to authorize their sources of law gregate several forceable unless the President omits language precluding review. President omits language precluding forceable unless the C Y adm_71-3_41554 Sheet No. 82 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 82 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 82 Side B 09/18/2019 13:09:53 M K 189 C Y L.J.F. ALE While at And third, And third, 190 , 126 Y 187 But even with these But even with these 188 , 67 Admin. L. Rev. 65, 125 [71:3 [71:3 EVIEW R A Resurgence of Secret Law (Sept. 26, 2007). AW L . 59, 72 (2015). For an example of seemingly EWS 135 S. Ct. 1199, 1209 (2015) (eliminating the 135 S. Ct. 1199, 1209 (2015) (eliminating , ES N .R OL , ABC .P M “‘Do This! Do That!’ and Nothing Will Happen”: Executive Orders “‘Do This! Do That!’ and Nothing Will A DMINISTRATIVE DMINISTRATIVE A , 43 Agency Avoidance of Rulemaking Procedures 9/10/19 10:19 PM note 177. EVIEW supra 192 )_ME R Joshua B. Kennedy, Connor Raso, Perez v. Mortg. Bankers Ass’n Perez v. Mortg. Jameel Jaffer & Brett Max Kaufman, Kaufman, Jaffer & Brett Max Jameel the fact is that the absolute level of compliance with executive or- the fact is that the absolute level of Philanthropy and the Presidency See See See See ELETE D 191 noncompliance may be troubling. This is especially true if noncompli- be troubling. This is especially true noncompliance may OT N Moreover, even when the President wants an order to be in full effect, the President wants an order Moreover, even when 190. 189. Waldron, 191. 192. 188. 187. O (D “one-bite” doctrine for agency interpretive rules, a doctrine which required agencies to prom- a doctrine which required agencies to “one-bite” doctrine for agency interpretive rules, to change a type of informal agency guid- wished ulgate relatively formal regulations if they 556 U.S. 502, 502–03 (2009) (rejecting, with lim- ance); FCC v. Fox Television Stations, Inc., changes in policy to more searching review ited exceptions, the rule that courts subject agency than initial decisions). caveats, the possibility that the President can secretly violate an executive that the President can secretly caveats, the possibility all Executive Branch the public (and potentially nearly order—an order that certainty, predicta- binding—cuts to the heart of “legal itself) believes to be that are upheld in on the determinacy of the norms bility, and settlement; by the state.” reliable character of their administration society; and on the 588 context, the surveillance outside to apply claim OLC opinions far these how the opinions. or revoked has amended the current Administration or whether within as a matter of practice may be binding OLC opinions Second, while have recently Second Circuit Circuit and the Branch, the D.C. the Executive working law. cannot constitute that OLC opinions suggested and Bureaucratic Responsiveness (2015). least one empirical scholar speculates that executive orders may receive more least one empirical scholar speculates compliance than statutory require- White House oversight and agency ments, it is arguable that in the context of administrative guidance, courts have es- guidance, courts of administrative that in the context it is arguable sudden changes the Executive Branch’s right to execute sentially condoned consideration or public notice. in policy without much 242, 245–48 (2016) (discussing Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1 (D.C. 242, 245–48 (2016) (discussing Elec. Frontier New York Times Co. v. U.S. Dep’t of and Cir. 2014), cert. denied, 135 S. Ct. 356 (2014) Justice, 806 F.3d 682 (2d Cir. 2015)). ders is far from perfect, thereby leaving room for doubt about relative levels ders is far from perfect, thereby leaving of compliance. agency and severe than noncompliance ance with executive orders is more frequent Clinton said in 2007, “[o]ne of with statutes and regulations. As President when I was president, was that I had the things that I was frustrated about, all these executive orders, and then you all these great ideas, and I’d issue they were implemented.” can never be 100 percent sure that adm_71-3_41554 Sheet No. 82 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 82 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 83 Side A 09/18/2019 13:09:53 Regu- 29, 38–49 In contrast, ULLETIN 193 589 589 thus means that, far thus means .B EG Auer at 76–77. These reasons RDERS R O see id. ON Roncervert Almond et al., J. see ALE XECUTIVE deference is permissible, agency is permissible, agency deference RAMEWORK E F —i.e., deference to agency interpre- to agency —i.e., deference Part C); and rule of law concerns (also ad- , 35 Y . To be sure, values like notice and . To be sure, values Auer note 15, at 75; EW infra Auer , 139 S. Ct. at 2422 (plurality opinion) (dismissing , 139 S. Ct. at 2422 (plurality opinion) (dismissing Auer N supra , because agency action is always an exercise of the A Auer
But see Kisor IV. 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I GENCY ORMATTED A . Yet it is difficult to see how interpretations of executive orders . Yet it is difficult to see how interpretations , Kisor v. Wilkie, 139 S. Ct. 2400, 2421–22 (2019) (Gorsuch, J., concurring , Kisor v. Wilkie, note 109, at 631. )_ME F Auer supra See, e.g. ELETE Thus, in the executive order context, any proposed legal test should Thus, in the executive order context, D than the legalistic rationale for legalistic rationale than the 194 OT ’s greatest flaw is that it weakens the separation of powers by combining it weakens the separation of powers ’s greatest flaw is that N This Article’s analysis demonstrates that—rule of law concerns aside—the This Article’s analysis demonstrates Even so, the rule of law argument against agency interpretations of execu- of interpretations agency against argument of law so, the rule Even 194. that “there are good reasons for statement & Watt’s I thus quibble with Manheim 193. M K O legislative and executive power, if not also judicial power. power, if not also judicial legislative and executive tations of their own regulations. Both judges and scholars have identified that and scholars have Both judges their own regulations. tations of Auer dressed above and below). threaten these values more than interpretations of regulations. of regulations. threaten these values more than interpretations interpretations of executive orders should receive deference as well. The rule deference as well. orders should receive of executive interpretations orders is of executive to agency interpretations for deferring of law rationale stronger include deference doctrine’s need for public process, as exemplified by Mead (which I don’t include deference doctrine’s need for public process, as exemplified by Mead (which I believe should apply to executive orders, see the courts to resist trying to transfer into the presidential-order context something akin to the courts to resist trying to transfer into the presidential-order context something akin & Watts, Chevron deference.” Manheim the separation-of-powers criticism of takes legislative or judicial forms). executive power, even when the action (2017) (Author disclosure: I was the Yale Journal on Regulation’s editor for this article.). (2017) (Author disclosure: I was the Yale Journal latory Reform in the Trump Era—The First 100 Days latory Reform in the Trump Era—The systemic noncompliance with one recent executive order, President Trump’s Executive Order order, President Trump’s Executive Order systemic noncompliance with one recent executive order), 13,771 (the “two for one” deregulatory executive 2019] (D agency interpretations of executive orders don’t formally violate the separation of executive orders don’t formally agency interpretations orders derive their extent. Unlike regulations, executive of powers to the same or at most from an from the President’s Article II powers, power either solely Thus, agency interpre- II power and statutory authority. amalgam of Article executive power alone orders are more an exercise of the tations of executive at issue in than the interpretations predictability are still implicated in the executive order deference context as still implicated in the executive order predictability are they are in justifications for deferring to agency interpretations of executive orders are justifications for deferring to agency to agency interpretations of stat- stronger than the justifications for deferring utes. tive orders shouldn’t be overstated. If shouldn’t be overstated. tive orders in the judgment, joined by Thomas, Alito, and Kavanaugh, JJ.) (“ Alito, and Kavanaugh, joined by Thomas, in the judgment, and interpreting laws are united enforcing, from being ‘kept distinct,’ the powers of making, in the process a cornerstone of the rule of law is compromised.”); in the same hands—and U.S. 50, 68 (2011) (Scalia, J., concurring); Bell Tel. Co., 564 Talk Am., Inc. v. Michigan Manning, C Y adm_71-3_41554 Sheet No. 83 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 83 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 83 Side B 09/18/2019 13:09:53 M K C Y See, Presiden- rationali- one or more post hoc unless [71:3 [71:3 EVIEW R AW there are no special circumstances no special circumstances there are L “reasonable[ness]” deference if those if deference “reasonable[ness]” and . 2187, 2266–73 (2018) (arguing that breaching 195 EV Chevron .L.R or DMINISTRATIVE DMINISTRATIVE ARV Step One: Prioritizing Unambiguous Text Step One: Prioritizing Unambiguous Text A
9/10/19 10:19 PM Tallman A. , 131 H EVIEW Is the text within the four corners of the executive order the four corners of the executive Is the text within Exception 1: The agency’s interpretation conflicts with a Exception 1: The agency’s interpretation (whether by that same prior interpretation of the order or is a agency or other executive agencies) agency, not an Exception 2: The agency is an independent executive agency. zation in response to litigation. If the text is ambiguous, then a court generally should defer If the text is ambiguous, then a court

o o )_ME R rule shows why courts shouldn’t ignore unambiguous text. If an rule shows why courts shouldn’t ignore ambiguous, the text controls. Step 1: If the text is to the agency’s interpretation? ambiguous in relation un Step 2: “reasonable” to the agency’s interpretation if it is of following exceptions are true, in which case a court should give of following exceptions are true, in the text of the order its best reading. ELETE D

contrary OT • • N Prioritizing the unambiguous text of an executive order over other sources Prioritizing the unambiguous text of My proposed test is therefore: My proposed test 195. proper interpretation of a presidential proposed test addresses the To be clear, my , Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Daphna Renan, O (D norms alone may justify judicial intervention in extreme circumstances). alone may norms of meaning—e.g., agency interpretation or presidential speech—addresses of meaning—e.g., agency interpretation above. First, on preserving exec- both of the rule of law concerns highlighted force of law, imagining the operation utive orders as a tool imbued with the of a agency could override unambiguous text, then executive orders would be bet- agency could override unambiguous taken ter called “executive suggestions.” In judicial review of agency action 590 at least agencies give tial Norms and Article II rule of law concerns are addressed, concerns are addressed, rule of law ration- or technical expertise accountability, the intent, political weakening First, ex- are two-fold. the rule of law concerns In sum, ales for deference. Executive be- usefulness to the legal force and risk losing their ecutive orders authority they source their overreach, because political or judicial cause of authorization. and practice, not express constitutional mainly from history presidential speech as doctrine that weighed all For instance, an interpretive would significantly to (or amendments of) executive orders legally equivalent orders raise no- of executive orders. Second, executive erode the usefulness orders are secret concerns, because some executive tice and predictability modified. OLC, even public orders may be secretly and, according to instrument, not its legal validity. Presidential instruments can be unlawful in many ways. instruments can be unlawful in many ways. not its legal validity. Presidential instrument, e.g. adm_71-3_41554 Sheet No. 83 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 83 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 84 Side A 09/18/2019 13:09:53 to 196 —the only Said an- Sherley 198 200 or 591 591 note 16, at 2272. 35–36, 91–97, 125, 132, in that it looks RDERS supra O Tallman Chevron RESIDENCY P Preserving this distinction has XECUTIVE , 139 S. Ct. at 2423–24. Executive order 197 E Kisor , note 15 (advocating a purely textualist approach). E.g. supra NSTITUTIONAL I note 30, at 21–22; Kagan, note 187, at 242. HE supra ,T Grove, supra , Cf. 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I URKE OWELL P. B GENCY ORMATTED A Part III, Section B.1.iii. OHN , J supra )_ME F Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015). 135 S. Ct. 1199, 1204 (2015). Bankers Ass’n, Perez v. Mortgage Jaffer & Kaufman, See See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). ELETE Scenario (b) raises serious due process concerns, particularly if a se- Scenario (b) raises serious due process D . . e.g. See, OT 199 N Second, on furthering public notice and predictability, prioritizing unam- Second, on furthering public notice Thus, an agency’s inconsistency with an unambiguous executive order is inconsistency with an unambiguous Thus, an agency’s departures from rule—one that only enables agency Even a more limited 197. See 198 196 199. 200. M K O The Supreme Court has stressed the importance of thoroughly interpreting statutory and regu- The Supreme Court has stressed the importance of thoroughly interpreting statutory and latory text before asserting it is ambiguous. other way, it would likely breed public confusion and distrust if courts were other way, it would likely breed public cret modification is used retroactively to justify agency action. cret modification is used retroactively 2019] in as order—such a constitutionally-valid under (D 148, 183 (2d ed. 2000); H little cost, because the President can unilaterally and easily designate any little cost, because the President can or as otherwise bearing legal force. communication as an “executive order” differs from Thus, the proposed Step 1 notably the text within the four corners of the order, not the expanded universe of the text within the four corners of of statutory construction.” sources available as “traditional tools biguous text avoids the absurd result of a court upholding agency action that biguous text avoids the absurd result (a) the agency unilaterally decided to hurts reliance interests because either or (b) the President secretly amended deviate from an unambiguous order, Scenario (a) would transform executive the order to authorize the action. which cannot have the force of orders into de facto executive “guidance,” law. text shouldn’t be any different. strong evidence that the agency is in fact in conflict with the President. Said the agency is in fact in conflict with strong evidence that are in fact of one assumes that the President and agencies another way, if one order and what, the President even issue the unambiguous mind, why would regime of unam- the order affect? Under an alternative if anything, would it is unclear why exec- order language signifying nothing, biguous executive retain any legitimacy or force. utive orders would the agency interpreta- when presidential speech supports unambiguous text between presidential communications tion—would collapse the distinction don’t. that have legal effect and those that agency would automatically prevail, because its action would define the order its action would define prevail, because automatically agency would at resemble legal interpretation rule wouldn’t of its language. This regardless would choose. the President that this rule is one it is improbable all. And that the rule is the reality of this alternative the implausibility Underscoring conflict. alignment or even often in imperfect and agencies are President C Y adm_71-3_41554 Sheet No. 84 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 84 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 84 Side B 09/18/2019 13:09:53 M K C Y ALE note , 116 Tall- That supra 202 , 127 Y Space” and . L.J. 1083, 1099 Chevron EO 201 in the Circuit Courts , 1984 8 (1949) (“[T]he RWELL [71:3 [71:3 Bednar & Hickman, O Judging Ordinary Meaning See Hamdan, 96 G A weaker standard would be EVIEW The Continuum of Deference: Supreme Court to R 207 EORGE ). ). G agreement that Auer’s “plainly erroneous” agreement AW L cf. Kisor Chevron Chevron —limits deference ensures that executive —limits deference . 1143, 1145, 1164 (2012). (after EV note 130, at 2134–44. Auer .L.R DMINISTRATIVE DMINISTRATIVE A supra “Deference” is Too Confusing—Let’s Call Them “ Call “Deference” is Too Confusing—Let’s reasonableness OLUM 9/10/19 10:19 PM This Article’s “reasonable[ness]” standard mirrors This Article’s “reasonable[ness]” EVIEW , 112 C 206 , Kent Barnett & Christopher J. Walker, Chevron , Kent Barnett & Christopher J. Walker, , Thomas R. Lee & Stephen C. Mouritsen, , and now also )_ME R . 1, 6 (2017). It would further intent, political accountability, and technical intent, political accountability, and It would further Step Two: Deference to a “Reasonable” Interpretation of Ambiguous Text of Ambiguous Text Interpretation Deference to a “Reasonable” Step Two: EV Weight”
203 So to have a real-world effect on judicial outcomes, it is unnecessary So to have a real-world effect on judicial See, e.g. See, e.g. At the risk of making your eyes roll, ELETE B. D 204 . 205 Chevron .L.R OT , N A more pressing issue is the ideal strength of the deference standard. The A more pressing issue is the ideal strength Empirical research also suggests that creating a two-step framework and also suggests that creating a two-step Empirical research In contrast, when an order’s text is ambiguous, deference to an agency deference to text is ambiguous, when an order’s In contrast, 203. to handle Congress’s delegation framework And even if it were, courts need some 204. 207. there was wide v. Wilkie, Before Kisor 205. 206. Lauren E. Baer, Eskridge, Jr. & N. William 202. Strauss, Peter L. 201 O ICH Skidmore (D (2008). of tremendous policymaking discretion to the Executive. of tremendous policymaking discretion to the 142, at 1398 (making the same argument for to resolve the live debate over the exact operation of a two-step test—e.g., to resolve the live debate over the clear text and delimiting distinguishing ambiguous text from “reasonable- ness.” M L.J. 788 (2018); Kavanaugh, Treatment of Agency Statutory Interpretations from 592 or- an executive written in (as words unambiguous president’s that a to rule expected. different than something entirely der) can mean some standard—here some standard—here cannot be so its force, and that agency interpretations order text maintains harm reliance interests. unpredictable as to than a formalistic interpretations would be more deferring to “reasonable” exercise. Supreme Court has recognized a spectrum of deference ranging from super- Supreme Court has recognized a spectrum security matters) to anti-deference (for strong (for foreign affairs and national criminal cases). three slogans of the Party stood out in bold capitals: WAR IS PEACE / FREEDOM IS FREEDOM IS PEACE / capitals: WAR three slogans of the Party stood out in bold SLAVERY / IGNORANCE IS STRENGTH.”). expertise values by increasing the likelihood that agencies will prevail in increasing the likelihood that agencies expertise values by court. “ man interpretation generally will not weaken the rule of law. One may concep- will not weaken the rule of law. interpretation generally bounded by the extent deference as creating a “space,” tualize the effect of power. within which an agency has interpretive of textual ambiguity, adm_71-3_41554 Sheet No. 84 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 84 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 85 Side A 09/18/2019 13:09:53 . UB Auer note supra , 28 P , 106 Geo. and Raso, see Chevron 593 593 RDERS So “reasonable[ness]” So “reasonable[ness]” O text accompanying note 71. text accompanying note 71. 209 (a unanimous decision). (a unanimous because the White House’s is likely too deferential be- is likely 210 and publicity surrounding the 208 See supra XECUTIVE 211 E Tallman note 166, at 100 (stating that while execu- An Empirical Defense of Auer Step Zero supra Exceptions
C. Nou, value to note 16, at 2299 (“Especially when agency resistance cf. , the court should defer to reasonable interpre- , the court should supra Up and Down with Ecology—the “Issue-Attention Cycle” Up and Down with Ecology—the 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I stare decisis note 16, at 2273 (“In a world of extraordinary administrative com- note 16, at 2273 (“In a world of extraordinary Kagan, ambiguous William Yeatman, Note, Yeatman, William cf. supra standard for foreign affairs, standard See GENCY ORMATTED A In addition, to defer to a noncontemporaneous interpretation In addition, to defer to a noncontemporaneous 212 )_ME F Kagan, Anthony Downs, Conflict with a Prior Interpretation Anywhere in the Executive Branch, or a Interpretation Anywhere in the Executive Conflict with a Prior Post Hoc Rationalization Id. See See ELETE D
OT 1. Curtiss-Wright . 38, 40–41 (1972); N When the text is 208. Exp. Corp., 299 U.S. 304, 320 (1936). States v. Curtiss-Wright United 209. 210. statutory mandates, executive orders to new analogize new If we 211. 212. M K O NT But the Kisor Court held the standards equal. 139 S. Ct. 2400 (2019) (plurality opinion). And 139 S. Ct. 2400 (2019) (plurality But the Kisor Court held the standards equal. of Auer deference may have been the same as even before Kisor, the recent empirical effect Chevron deference. (2006)). Gonzales v. Oregon, 546 U.S. 243 L.J. 515, 547 (2018) (analyzing the impact of scant supervisory attention turns elsewhere, cause it has historically guaranteed agency victory. historically guaranteed cause it has standard was stronger than Chevron’s “reasonable.” standard was stronger than Chevron’s “reasonable.” 2019] vis- stronger are generally deference for justifications because inappropriate, standard, (if not the strongest) statutes. A stronger orders than à-vis executive the (D I plexity and near-incalculable presidential responsibilities, no President can hope (even with plexity and near-incalculable presidential responsibilities, no President can hope (even so closely as to substitute all his prefer- the agencies the assistance of close aides) to monitor ences for those of the bureaucracy.”); 191, at 130, 131 Table 6, 132 Figure 1 (showing empirically that after Congress passed laws 191, at 130, 131 Table 6, 132 Figure 1 (showing Regulatory Flexibility Act in 1996, agency com- to expand procedural requirements under the only about one year before plummeting to about pliance of approximately 20% to 30% lasted 2% to 10%). tive orders have created mechanisms for sharing information within the Executive Branch, they have fallen into disuse over time). order fades. is the best standard, because it achieves similar outcomes to it achieves similar standard, because is the best tations unless special circumstances weaken the intent, political accountabil- circumstances weaken the intent, tations unless special A noncontemporane- rule of law rationales for deference. ity, expertise, and long-standing least one not merely codifying ous agency interpretation—at related to intent and rule of law. practice under the order—raises problems suggests that pressure to faithfully im- As for intent, the empirical literature over time, plement an executive order subsides while according some while according C Y adm_71-3_41554 Sheet No. 85 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 85 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 85 Side B 09/18/2019 13:09:53 M K 214 C Y in- non- , which all statutory As for the As for the interpretive interpretive 213 Tallman 216 as a case in which the permanent [71:3 [71:3 -like prerequisite to defer- -like prerequisite Tallman L.J. 47, 79 (2015). Reinforcing this EVIEW R Barnhart at 988 (discussing legislative history). AW MORY L id. Sanne H. Knudsen & Amy J. Wildermuth, Sanne H. Knudsen & Amy J. Wildermuth, there are other indicia of the agency’s there are other indicia of the agency’s see unless DMINISTRATIVE DMINISTRATIVE A 380 U.S. 1, 5–16 (1965) (interpreting Public Land Order 487 (1965) (interpreting 380 U.S. 1, 5–16 at 935 (stating the contemporaneous exposition “canon was not at 935 (stating the contemporaneous exposition Seminole Rock, 65 E note 16, at 2379 (“The delegation of power to an agency to admin- note 16, at 2379 (“The delegation of power 9/10/19 10:19 PM note 107, at 987. While Bamzai only explicitly refers to note 107, at 987. While See id. supra EVIEW supra )_ME R Kagan, Cf. Barnhart v. Walton, 535 U.S 212, 222 (2002). Barnhart v. Walton, ELETE Indeed, such a requirement would mirror the facts of would mirror the facts of Indeed, such a requirement D /Bamzai perspective, at least four Justices read . 215 OT N But there are two reasons to believe withholding deference from believe reasons to But there are two 213. 214. Bamzai, 216. Udall v. Tallman, 215 O (D contemporaneous interpretations of executive orders would go too far. would go too far. interpretations of executive orders contemporaneous between the Pres- above, the principal-agent relationship First, as discussed on average, than the is likely to be more effective, ident and his agencies the courts. between the President and principal-agent relationship So even of an ambig- a noncontemporaneous interpretation when an agency makes “best reading” of that order will be uous order, it isn’t obvious that a court’s more accurate than the agency’s Court “accept[ed] a regulatory interpretation by the Secretary of the Interior that was Court “accept[ed] a regulatory interpretation 139 S. Ct. consistent, widely disseminated, and heavily relied upon.” Kisor v. Wilkie, Alito, 2400, 2429 n.27 (2019) (Gorsuch, J., concurring in the judgment, joined by Thomas, and Kavanaugh, JJ.). authority to an agency, which may not be empirically accurate. may not be empirically to an agency, which authority to presidential preferences need take only the form of inertia, publicity can serve as a useful of inertia, publicity form to presidential preferences need take only the turning a spotlight on and creating a constituency for weapon in the hands of a President — to agency officials.”). the costs of noncompliance the action ordered, and thereby increasing 594 delegated has implicitly the President assume that is to rule of law, Aditya Bamzai has recently argued that the APA permits judicial that the APA permits has recently argued Aditya Bamzai rule of law, re- only if that interpretation “if and to agency interpretations deference law at issue. under the practice” customary or contemporaneous flected a ister a statute, even when manifested in explicit rulemaking and adjudicatory authority, does rulemaking and adjudicatory authority, does ister a statute, even when manifested in explicit (rather than the courts) to answer the agency to not necessarily entail a delegation of power give rise.”). which the statute may any and all interpretive questions to history underlying his argument broadly applies terpretation, the case law and APA legislative law,to agency interpretations of any substantive which would include presidential directives with the force of law. Barnhart unfaithfulness. It may thus appear attractive to impose a appear attractive It may thus should receive defer- agency interpretations ence that only long-standing ence. involved an agency interpretation at least seven years old. interpretation at least seven years involved an agency directed at statutes alone: it was viewed as a generalized method of proper interpretation, directed at statutes alone: it was viewed as of legal instruments.”); applicable to all manner to not exclude leasing since at least 1951); Unearthing the Lost History of Unearthing the Lost History adm_71-3_41554 Sheet No. 85 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 85 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 86 Side A 09/18/2019 13:09:53 221 Third 219 note 214, at 944– The compari- 222 595 595 217 . supra RDERS O And fourth is when the the when is fourth And But then, second, this re- Bamzai, Bamzai, noncontemporaneous in- noncontemporaneous regulations 220 223 all see also XECUTIVE rationalization’ advanced by an E and its progeny provide doctrinal and its progeny provide , 519 U.S. 452, 462 (1997)) (quotation marks Auer post hoc Second is when the agency’s interpretation Second is when the 218 Auer v. Robbins 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS Kisor, 139 S. Ct. at 2417; I deference—the separation of powers—is absent when deference—the separation of powers—is accord GENCY ORMATTED , 567 U.S. at 155 (first quoting Bowen v. Georgetown Univ. Hosp., 488 Univ. Hosp., 488 , 567 U.S. at 155 (first quoting Bowen v. Georgetown A Auer , courts generally defer to an agency’s interpretation of its own defer to an agency’s interpretation of , courts generally is relevant because, if the case for deferring to agency to agency the case for deferring because, if is relevant )_ME F Kisor, 139 S. Ct. at 2418–19 (barring deference to several types of new interpre- Kisor, 139 S. Ct. at 2418–19 (barring deference at 2417. at 2416 at 2417 Corp., 567 U.S. 142, 155 (2012)). (quoting Christopher v. SmithKline Beecham Auer Auer Id. Id. Id. Id. Christopher See For example, while agencies do help draft executive orders, I would guess that on , getting deference for agency interpretations of executive orders of executive interpretations deference for agency , getting ELETE D . OT Auer N Under To justify a more limited deference rule for executive orders, three things To justify a more limited deference Second, a rule withholding deference from from deference withholding a rule Second, 223 218. 219. 220. 221. 222. 217. M K O ambiguous regulation except in four situations. First is when the agency’s except in four situations. First ambiguous regulation interpretation is unreasonable. average, they have a bigger role in drafting their own regulations. So, they may have a better own average, they have a bigger role in drafting their idea of what their own regulations mean. 47 (summarizing a line of Supreme Court precedent invalidating executive action on the 47 (summarizing a line of Supreme Court precedent invalidating executive action interpretations of the law). or customary grounds the action conflicted with contemporaneous terpretations of executive orders would be inconsistent with how courts cur- with how would be inconsistent of executive orders terpretations of its own an agency’s interpretation rently treat son to to the case similar in strength orders is at least of executive interpretations for though normally, courts should deny deference even guideposts for when granted. deference would be shouldn’t be harder. What’s more, shouldn’t be harder. is when the agency’s interpretation doesn’t “implicate its substantive exper- interpretation doesn’t “implicate is when the agency’s prop- common-law the interpretation involves “a simple tise,” such as when fee.” erty term” or “the award of an attorney’s 2019] (D duced interpretive faithfulness would have to outweigh the fact that the worst duced interpretive faithfulness would problem with and citations omitted); and citations omitted); tation, but not all). U.S. 204, 213 (1988); then quoting comes from an “ad hoc statement not reflecting the agency’s views.” hoc statement not reflecting the agency’s comes from an “ad agency seeking to defend past agency action against attack.” agency seeking to defend past agency such as when “the agency’s interpretation conflicts with a prior interpreta- such as when “the agency’s interpretation is nothing more than a ‘con- tion, or when it appears that the interpretation venient litigating position’ or a ‘ would have to be true. First, agencies would need to be less accurate in inter- would have to be true. First, agencies to their administration than interpreting preting executive orders entrusted enough. their own regulations. This is plausible interpretation doesn’t reflect the agency’s “fair and considered judgment,” interpretation doesn’t reflect the agency’s C Y adm_71-3_41554 Sheet No. 86 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 86 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 86 Side B 09/18/2019 13:09:53 M K C Y 229 David J. Barron But cf. 226 And once an order is And once an order ’s “ad hoc statement” bar is a [71:3 [71:3 225 Kisor practice to disfavor legal inter- EVIEW deference because we presume, for a R or that issue during litigation. Auer Justice Department Renews Citizenship Question 228 AW L , 2001 Sup. Ct. Rev. 201, 238 (2001) (arguing , 2001 Sup. Ct. Rev. 201, 238 (2001) (arguing Court justifies not deferring in situations not deferring Court justifies Executive Branch Moreover, these indicia aren’t merely judicial Moreover, these Kisor . J. (July 3, 2019), https://www.wsj.com/articles/trump- T Office of Legal Counsel—Limitation on Opinion Function, on Opinion of Legal Counsel—Limitation Office 227 But we shouldn’t presume that of the President that of the President shouldn’t presume But we . S DMINISTRATIVE DMINISTRATIVE 224 A ALL Nondelegation Doctrine see also note 214, at 945 n.149 (compiling Opinions of the Attorney Gen- note 214, at 945 n.149 (compiling Opinions 9/10/19 10:19 PM , W supra EVIEW Jess Bravin & Janet Adamy, Jess Bravin & Janet Adamy, Part III.B.1. cf. , 139 S. Ct. at 2416 (“[W]e give , 139 S. Ct. at 2416 (“[W]e Fox Television ; )_ME R Texas State Comm’n for the Blind v. United States, 796 F.2d 400, 428 (Fed. Cir. Bamzai, Bamzai, FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (stating that agen- FCC v. Fox Television Stations, Inc., 556 U.S. and See id. See supra See See See See Kisor ELETE D OT N Third, we’d have to presume that the President intends to delegate less intends to delegate that the President have to presume Third, we’d Taken together, these three points at least offset each other, if not weigh in three points at least offset each other, Taken together, these 229. 228. 227. 226. 224. 225. O (D 3 Op. O.L.C. 215–16 (1979); Memorandum from O.L.C. on Best Practices for OLC Legal from 3 Op. O.L.C. 215–16 (1979); Memorandum 1986) (stating “[t]he Department of Justice is not allowed to issue a ruling on a matter already 1986) (stating “[t]he Department of Justice is not in litigation” and citing 38 Op. Att’y Gen.(1932), and 32 149 (1934), 37 Op. Att’y Gen. 34 Op. Att’y Gen. 472 (1921)); pretations that conflict with prior practice eral, including 19 Op. Att’y Gen. 354 (1889), which stated that long-standing and uniform eral, including 19 Op. Att’y Gen. 354 (1889), which stated that long-standing executive practice precluded reaching a different statutory interpretation). creations. It tracks traditional issued, an agency official’s misinterpretation of that order may result in official’s misinterpretation of that issued, an agency embarrassment or unemployment. prompt professional cies must provide more detailed justifications for changes in policy “when, for example, its new changes in policy “when, for example, detailed justifications for provide more cies must which underlay its prior policy; or when those policy rests upon factual findings that contradict be taken into account”). interests that must its prior policy has engendered serious reliance tweet-sows-confusion-on-census-11562175122 (detailing DOJ’s public embarrassment when tweet-sows-confusion-on-census-11562175122 President’s position on an issue). the agency seemingly misinterpreted the two through four above. two through 596 power. executive only exercise and thus orders executive interpret agencies scope of pre- does. For the than Congress power to agencies interpretive is how the sumed delegation set of reasons relating to the comparative attributes of courts and agencies, that Congress attributes set of reasons relating to the comparative is vast and varied, realm would have wanted us to. But the administrative and we have under- hold.”) (citation omitted). stood that such a presumption cannot always Push as Confusion Spreads here. There aren’t many situations in which the President would want courts the President would in which aren’t many situations here. There above, agencies interpreting an order. As explained rather than agencies the President in drafting orders. work closely with favor of executive order deference. Courts thus should defer to an agency’s order deference. Courts thus should favor of executive the interpretation bears ambiguous executive order unless interpretation of an those mentioned in of unreliability. These indicia include established indicia Christopher & Elena Kagan, Chevron’s to similar that the justification for a deference requirement intent). “policy consideration[],” not congressional adm_71-3_41554 Sheet No. 86 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 86 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 87 Side A 09/18/2019 13:09:53 235 from Sen- 230 232 , CNN (Jan. , CNN So at the So at the Presidential Laws 231 597 597 DHS therefore But by January 233 234 RDERS O Aziz v. Trump, 234 F. Supp. see ounsel to the President, to the Acting ounsel to the President, to the Acting XECUTIVE E . (forthcoming 2020), https://papers.ssrn. of Homeland Sec. John Kelly, on the Entry Sec. John Kelly, of Homeland EV Travelers Stranded and Protests Swell Over Trump In the one-page memo, McGahn went In the one-page memo, McGahn .L.R A 236 P Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Judge Blocks Trump Order on Refugees Amid Chaos , 168 U. 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS Inside the confusion of the Trump executive order and travel ban Inside the confusion of the Trump executive order and I (Jan. 28, 2017), https://www.nytimes.com/2017/01/28/us/refugees- GENCY ORMATTED (Jan. 29, 2017), https://www.nytimes.com/2017/01/29/us/politics/ A IMES T IMES )_ME F T Id. , N.Y. ELETE D OT , N.Y. N This scenario of intra-Executive Branch conflict over an executive order executive over an conflict Branch of intra-Executive scenario This 236. II, C F. McGahn Donald from Memorandum 235. by Sec’y Dep’t. Statement Press Release, 230. 8977, 8978 (Feb. 1, 2017). 13,769, § 3(c), 82 Fed. Reg. Exec. Order 231. 2017) 3d 570, 620 (D. Md. 265 F. Supp. Int’l Refugee Assistance Project v. Trump, 232. al., et Perez, Evan 233. 234. et al., Shear D. Michael M K O barred permanent residents from enteringbarred permanent the country. ior White House advisors insisted that the order also barred permanent res- insisted that the order also ior White House advisors to overrule DHS’s interpretation. idents and purported seven countries. Trump issued the order “without traditional interagency traditional the order “without Trump issued seven countries. in the order. agencies addressed surprising the consultation,” white-house-official-in-reversal-says-green-card-holders-wont-be-barred.html. detained-at-us-airports-prompting-legal-challenges-to-trumps-immigration-order. html. detained-at-us-airports-prompting-legal-challenges-to-trumps-immigration-order. 2017), of Lawful Permanent Residents into the United States, (Jan. 29, https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-perm anent-residents-united-states; see Peter Baker, Order 3d 724, 736 (E.D. Va. 2017) (internal citations omitted); Tara Leigh Grove, 3d 724, 736 (E.D. Va. 2017) (internal citations Interpretive Theory and the Missing (citing IRAP v. Trump, 241 F. Supp. 3d 539, 558–59 (2017)); Advice and Written Opinions to Attorneys of the Office of the Assistant Attorney Gen. 3 (July of the Assistant Attorney Gen. to Attorneys of the Office Opinions Advice and Written likely to arise avoids opining on questions 16, 2010) (“As a prudential matter, OLC generally States as a party.”). involving the United litigation in pending or imminent 2019] (D 29, DHS had seemed to reverse course again by declaring that legal resi- to reverse course again by declaring 29, DHS had seemed of significant derog- the United States “absent the receipt dents could enter safety and welfare.” indicating a serious threat to public atory information time of the order’s issuance on January 27, 2017, the Department of Home- issuance on January 27, 2017, the time of the order’s whether the order and White House officials disagreed land Security (DHS) holders). residents (a.k.a. “green-card” applied to lawful permanent com/sol3/papers.cfm?abstract_id=3338466, draft at 30 (noting “widespread agreement” that com/sol3/papers.cfm?abstract_id=3338466, all agency review”). Executive Order No. 13,769 “bypassed virtually index.html. 30, 2017), https://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/ Worldwide And on February 1, White House Counsel Donald F. McGahn issued “au- And on February 1, White House Counsel of State, Attorney General, and the thoritative guidance” to the Secretary Secretary of Homeland Security. isn’t just speculative. Consider, for example, President Trump’s Executive President Trump’s for example, speculative. Consider, isn’t just days “the barred for ninety Ban”), which (a.k.a. the “Travel Order 13,769 United States of aliens” entry into the and nonimmigrant immigrant C Y adm_71-3_41554 Sheet No. 87 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 87 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 87 Side B 09/18/2019 13:09:53 M K C Y and ., 853 . Golden . Golden deference reh’g denied Christopher Auer note 45, at 841; Jaffer & cert. denied sub nom supra [71:3 [71:3 Thoughts on the Proper Role of the White Thoughts on the Proper Role of the White EVIEW R AW L Bob Bauer, So where there’s already intra-Execu- 240 purposes, the reasons for not deferring in purposes, the reasons see also —is favored by the Executive. Yet it’s still doubtful that the White House the White House still doubtful that Yet it’s is limited to an agency’s interpretations of its is limited to an agency’s What Happens When the Justice Department Files a Brief Against Happens When What , 858 F.3d 1168 (9th Cir. 2017), 237 Auer DMINISTRATIVE DMINISTRATIVE if any note 195, at 2229 (noting violations of Executive Branch legal A Christopher supra 9/10/19 10:19 PM reh’g denied (Feb. 21, 2017), https://www.lawfareblog.com/thoughts-proper- and W. Neil Eggleston & Amanda Elbogen, W. EVIEW 238 Analogously, if there is conflict within the Executive Branch Analogously, if there is conflict within See Auer , Renan, AWFARE 239 note 187. )_ME R , L Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019) (holding that an agency interpre- Kisor v. Wilkie, supra See Id. context because ELETE D . e.g. See, OT Auer regulations. But if we conceptualize the Executive Branch as one large if we conceptualize the Executive Branch regulations. But , there is another left unstated. When different agencies (or high-ranking unstated. When different agencies , there is another left N To be fair, an interpretation issued by the Department of Justice might To be fair, an interpretation issued In addition to the indicia of unreliability expressly listed in unreliability expressly to the indicia of In addition 240 239. 237. 238. 1165–66 (9th Cir. 2017), 847 F.3d 1151, v. Trump, Washington O (D review norms); Jonathan H. Adler, v. Washington, 138 S. Ct. 448 (2017); v. Washington, House Counsel role-white-house-counsel. It is also unclear whether the Attorney General—and by extension, by whether the Attorney General—and role-white-house-counsel. It is also unclear authoritatively interpret powers—can delegated who exercises the Attorney General’s OLC, executive orders. Kaufman make tation “must at the least emanate from those actors, using those vehicles, understood to authoritative policy in the relevant context”). own “agency” for give become clear. A court wouldn’t such a chaotic scenario to an agency if the agency could not internally agree on an interpretation for agency could not internally agree on to an agency if the its regulation. Sec’y of State, the Acting Att’y Gen., and the Sec’y of Homeland Sec. (Feb. 1, 2017), Sec’y of State, the Acting Att’y Gen., and https://case.edu/executive-order-updates/docs/f.pdf. F.3d 933 (9th Cir. 2017), 598 do not and 3(e) 3(c) that Sections clarify “I now writing: than DHS, further such individuals.” apply to Counsel can bind the Secretary of State, the Attorney General, or the Sec- Attorney General, of State, the can bind the Secretary Counsel issue an White House Counsel nor can the Homeland Security; retary of order. executive over how to interpret an ambiguous order, and the President has not resolved over how to interpret an ambiguous then courts cannot be sure which that conflict by amending the order, agency’s interpretation— cure this problem of which agency’s interpretation controls, because the DOJ cure this problem of which agency’s Branch on legal issues. But this DOJ almost always speaks for the Executive other norm, may be deviated from in supremacy is a norm that, like any certain cases or generally eroded. tive conflict suggesting the norm has already broken down for a given order, tive conflict suggesting the norm has Fox under conflicting have taken (or directed) agency action Executive officials) give the order its best an executive order, courts should interpretations of has not arisen in of intra-Executive Branch conflict reading. This scenario the adm_71-3_41554 Sheet No. 87 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 87 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 88 Side A 09/18/2019 13:09:53 599 599 A special rule would rule A special RDERS O 241 ing DOJ amicus brief against the e-department-of-justice-files-a-brief XECUTIVE E The Uneasy Case for Department of Justice Control of The Uneasy And judicial deference doesn’t further And judicial deference 244 243 .of L. 558, 578–79 (2003) (arguing that giving DOJ control (Mar. 18, 2017), https://www.washingtonpost.com/news/vo 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS ONST I OST .P .J.C A GENCY ORMATTED ASH A U. P Neal Devins & Michael Herz, Neal Devins & Michael , W at 604–05 (arguing that cases based on an agency’s regulatory program should , 5 )_ME F at 578–79 (stating that Bush 41’s White House embraced dueling briefs in Metro House embraced dueling briefs in Metro at 578–79 (stating that Bush 41’s White Independent Agencies Cf. id. See also Id. ELETE D And it presumes the President wants to pick sides between the DOJ sides between the wants to pick the President And it presumes
OT 2. 242 N All in all, when there’s intra-Executive conflict over an executive order, intra-Executive conflict over All in all, when there’s Deference to independent agency interpretations of executive orders runs Deference to independent agency interpretations 244. Corp., 567 U.S. 142, 155 (2012). Beecham Christopher v. SmithKline 242. 241. 243. M K O Federal Litigation Broad., Inc. v. FCC, 497 U.S. 547 (1990)). a Federal Agency? 2019] be unwise. may to the DOJ rule deference a special (D federal litigation is “possibly a perverse way of achieving presidential control of agency policymak- federal litigation is “possibly a perverse way of itself may differ). ing,” and noting how policy positions across the Executive and even within DOJ also assume that when there’s agency conflict but the President hasn’t issued but the President agency conflict that when there’s also assume assumption triumph. But this DOJ’s view to order, he wants a clarifying all policy ar- the President on closeness to overgeneralizes DOJ’s probably eas. the intent, political accountability, or rule of law aims of deference. No mat- accountability, or rule of law aims the intent, political agency (e.g., DHS) the court defers to, at least one ter which interpretation or significant executive be in conflict with another agency would potentially to believe the Pres- White House Counsel). It is difficult branch official (e.g., internecine conflict, or that an executive order result in ident would intend or that this public preferences, that contradictory policies could vindicate legitimacy of executive orders. Thus, conflict enhances the predictability and conflict, a court should give an order when there is intra-Executive Branch to clarify definitively the mean- its best reading, and leave it to the President ing of the order should he disagree. and an opposing agency, when in fact he may prefer to let courts resolve a prefer to let courts in fact he may agency, when and an opposing intervention. conflict without his CFPB and dueling briefs in Buckley v. Valeo, 424 U.S. 1 (1976)). v. Valeo, CFPB and dueling briefs in Buckley lokh-conspiracy/wp/2017/03/18/what-happens-when-th (not -against-a-federal-agency/?utm_term=.7a0e3999eb63 an agency’s interpretation likely doesn’t reflect “fair and considered judg- likely doesn’t reflect “fair an agency’s interpretation in question.” ment on the matter be left to the agency, because agencies are more likely to have familiarity with the program’s likely to have familiarity with the program’s be left to the agency, because agencies are more history and context). contrary to the intent and political accountability justifications for deference. contrary to the intent and political accountability would implicitly delegate in- Presidents As for intent, it seems unlikely that agencies. As evidenced by the text of terpretive authority to independent C Y adm_71-3_41554 Sheet No. 88 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 88 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 88 Side B 09/18/2019 13:09:53 , M K 246 C Y alt- . 433, 247 EV see also Kisor Defining Def- .L.R views . . . also DMIN note 247; initial But the 2009 case But the 2009 case 248 supra Fox, 62 A [71:3 [71:3 deference, the courts have deference, the courts , Justice Scalia wrote in the EVIEW Auer R interpretation of its own regulations”) (em- AW and L Deference, and Fox Television Chevron Chevron revealed a Supreme Court split on whether and revealed a Supreme Court split on whether executive agency’s 249 DMINISTRATIVE DMINISTRATIVE A Scalia therefore rejected two different dissenting per- Scalia therefore rejected two different note 166, at 138 n.274 (noting styles of regulatory interpretation note 166, at 138 n.274 (noting styles of regulatory Presumably, presidents wouldn’t normally delegate normally presidents wouldn’t Presumably, note 16, at 2376–77, 2377 n.506; May, note 16, at 2376–77, 2377 n.506; May, 9/10/19 10:19 PM 250 245 supra note 16, 2376–77. supra EVIEW supra at 2438–39 & n.84 (using the term “executive agency” rather than just , Kisor v. Wilkie, 139 S. Ct. 2400, 2408–24 (2019) (plurality and majority (2019) (plurality and 139 S. Ct. 2400, 2408–24 , Kisor v. Wilkie, , Nou, , Nou, id. )_ME R Kagan, at 525 (joined by Chief Justice Roberts, Justice Thomas, and Justice Alito, but Id. See See, e.g. See, e.g. ELETE D OT N Admittedly, in the context of Admittedly, in the 249. 502 (2009) (plurality opinion). 556 U.S. 250. 248. 246. Kagan, 247. 245. O (D not Justice Kennedy, who was the fifth vote for his majority opinion). not Justice Kennedy, who was the fifth vote for his majority “agency” four more times). phasis added); 139 S. Ct. at 2425 (Gorsuch, J., concurring in the judgment) (asserting, without comment, that 139 S. Ct. at 2425 (Gorsuch, J., concurring in the “Auer requires judges to accept an historically refused to distinguish independent and executive agencies, to distinguish independent and executive historically refused 437 (2010). hough some commentators—including then-Professor Kagan and now possi- then-Professor hough some commentators—including argued that they should. bly four other Justices—have FCC v. Fox Television Stations 600 over in- control limited their recognize presidents orders, executive several agencies. dependent like Justice Scalia’s “regulatory textualism”). or “independent” agencies, let alone condi- opinions) (omitting any mention of “executive” agency); Randolph J. May, tioning deference on an agency being an executive erence Down, Again: Independent Agencies, broad authority to entities they cannot control. As for political accountabil- As for political they cannot control. to entities broad authority between them gap an “almost inexorabl[e]” agencies have ity, independent from the legal insulation due to (1) and the President presidential removal agency often features multiple structure that an organizational power, (2) (3) longstanding norms serving staggered terms, and heads of diverse parties and Congress. held within both the bureaucracy of independence widely Thus, any political accountability for incorrect interpretations of executive accountability for incorrect interpretations Thus, any political or the public at have to stem mainly from Congress orders would somehow pressure. large, not Presidential how to distinguish independent vs. executive agencies in the context of APA how to distinguish independent vs. arbitrary and capricious review. In plurality portion of his opinion that “it is assuredly not ‘applicable law’ [under plurality portion of his opinion that “it regulatory agencies is subject to the APA] that rulemaking by independent heightened scrutiny.” spectives presented by Justices Stevens and Breyer. Echoing the contempora- spectives presented by Justices Stevens above, Justice Stevens (writing for him- neous interpretation canon discussed should be disfavored because self) argued that changes in FCC interpretation that the FCC’s “[t]here should be a strong presumption adm_71-3_41554 Sheet No. 88 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 88 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 89 Side A 09/18/2019 13:09:53 the 195–213 enacted of independent RECEDENT 601 601 P 254 In contrast, Justice In contrast, 251 RDERS O UDICIAL J AW OF L XECUTIVE E would essentially allow the current HE ., T then deferring to an independent then deferring to an independent 255 rule), but discussing difficulties with identifying the Congress—which, assuming some congres- 253 past executive order Marks ARNER ET AL 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS A. G I Justice Kennedy’s possibly controlling opinion didn’t possibly controlling opinion didn’t Justice Kennedy’s 252 RYAN B GENCY ORMATTED A )_ME F at 523. at 541 (Stevens, J., dissenting) (emphasis added). Stevens, Souter, and Ginsburg). Justices at 547 (Breyer, J., dissenting) (joined by Id. Id. Id. See generally FCC v. Fox Television Stations, Inc., 556 U.S. 502, 525 (2009) (plurality opinion). U.S. 502, 525 FCC v. Fox Television Stations, Inc., 556 ELETE D . OT N The strongest counterargument to “heightened scrutiny” for independent The strongest counterargument to “heightened But importantly for our analysis, “heightened scrutiny” our analysis, But importantly for 255. 254 251. 252. 253. M K O agency interpretations is even more warranted in the executive order context is even more warranted in the executive agency interpretations plurality opinion and context. Examining Justice Scalia’s than the statutory instructive. If we main- Justice Breyer’s dissents in turn is Justice Stevens’ and are sheltered not from does, that “independent agencies tain, as Justice Scalia their freedom from Presidential that . . . President, and politics but from the by increased subservi- has simply been replaced oversight (and protection) ence to congressional direction,” agency’s interpretation of an arises, separation of powers problem statutory provision at issue, a similar with the potential twist that a sional turnover, cannot be held politically accountable—is now exerting in- sional turnover, cannot be held politically does, that independent agencies are fluence. If we think, as Justice Breyer is evenpolitically insulated, that political insulation more complete when an an executive order instead of a statute. independent agency is interpreting under statute, both the President and When an independent agency is acting in oversight, because the independent Congress have an institutional stake (at least nominally) and implementing agency is part of the Executive Branch independent agency is acting under an a legislative mandate. But when an incentive or authority to conduct executive order, Congress has a weaker generally draw upon a vague amalgam oversight, because executive orders they cite a statute at all). of Article II and statutory powers (if 2019] to authority Commission the that delegated Congress of the the views reflect statute.” in the enacting not fully defined flesh out details (D narrowest opinion). (2016) (discussing how with a plurality decision, the only opinion with precedential value is (2016) (discussing how with a plurality decision, the only opinion with precedential value the narrowest opinion (a.k.a. the reveal Justice Kennedy’s views. reveal Justice Kennedy’s Breyer echoed Kagan-like concerns in arguing that the FCC’s “comparative that the FCC’s concerns in arguing Kagan-like Breyer echoed the more important makes it all from ballot-box control freedom that courts provisions of with applicable assure compliance decisionmaking to review its based upon policy decisions be that major law requiring the law—including articulable reasons.” Congress to exercise Presidential power. If we believe, as Justice Stevens Congress to exercise Presidential power. agents of the Congress that does, that independent agencies are C Y adm_71-3_41554 Sheet No. 89 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 89 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 89 Side B 09/18/2019 13:09:53 M K C Y But But 259 After all, in ’s “authoritative” 258 But this coun- But this , Kisor v. Wilkie, 139 , Kisor v. Wilkie, Kisor 256 See, e.g. [71:3 [71:3 deference). EVIEW deference); King v. Burwell, 135 S. Ct. R Chevron Auer AW L note 162. agencies will be more faithful and polit- will be more faithful agencies and individual legislators. supra 257 “Step Zero” deference). And if a deference doctrine doesn’t constrain independent DMINISTRATIVE DMINISTRATIVE Mead A Auer Silberman, Silberman, see 9/10/19 10:19 PM —i.e., take place in a relatively formal process like formal —i.e., take place in a relatively formal EVIEW , Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652, 1661 (2017) , Advocate Health Care Network v. Stapleton, , Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, Traffic Safety Admin., , Ctr. for Auto Safety v. Nat’l Highway Mead ’s effect on , 139 S. Ct. at 2427–31 (Gorsuch, J., concurring in the judgment) (discussing )_ME R at 525–26 (“There is no reason to magnify the separation-of-powers dilemma at 525–26 (“There is no reason to magnify Kisor Kisor Rejected Exception: See, e.g. See, e.g. Id. ELETE D .”
OT 3. N This Article’s proposed test includes only two major exceptions. test includes only two major This Article’s proposed 259. also consider other conditions to deference. might We 257. 258. 256. O (D (“[E]xcerpts from committee hearings and scattered hearings and scattered committee (“[E]xcerpts from floor statements by individual lawmakers of legislative history.’”) forms illuminating the least [are] the sort of stuff we have called ‘among Inc., 137 S. Ct. 929, 943 (2017)). General, (quoting NLRB v. SW 2480, 2489 (2015) (major questions exception to S. Ct. 2400, 2417 ( 2019) (requiring that agencies have an “authoritative” interpretation and have an “authoritative” interpretation and S. Ct. 2400, 2417 ( 2019) (requiring that agencies “implicate [their] substantive expertise” to receive posed by the headless Fourth Branch, by letting Article III judges—like jackals stealing the jackals Article III judges—like Branch, by letting posed by the headless Fourth that Congress has wrested from the unitary Exec- some of the power lion’s kill—expropriate utive.”) (citation omitted); 810 (D.C. Cir. 2006) (holding that agency guidelines were nonbinding policy statements rather were nonbinding policy statements 810 (D.C. Cir. 2006) (holding that agency guidelines to issue issued the guidance had no authority than legislative rules because the official that binding regulations or make certain final determinations). condition, for example, maps well onto Exception 1 above. But at some point, adding more condition, for example, maps well onto Exception all is said and so riddled with holes that, when [deference doctrine] conditions only “leaves than done, courts may find that it does not constrain their independent judgment any more Skidmore his view of the benefits of deference. then it fails to realize courts’ judgment, terargument proves too much. Reliance on comparative institutional com- comparative institutional Reliance on proves too much. terargument deference to justify strong faithfulness could or principal-agent petencies don’t that courts legal interpretations interpre- force of law—e.g., assign the agency staff tations by low-level ically-accountable agents of the President than the courts. the President than agents of ically-accountable 602 section the above in is, as discussed orders of executive interpretations agency 1, that even on Exception courts could also conceivably require that agency interpretations of courts could also conceivably require executive orders satisfy cases involving legal interpretation, such actors are more involved in the ex- interpretation, such actors are more cases involving legal and they are also cer- legislation at issue than judges are, ecutive action or theory alone will accountable. So, a principal-agent tainly more politically must show affirmative to independent agencies. One not justify deference such reasons don’t exist. reasons to defer, and adm_71-3_41554 Sheet No. 89 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 89 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 90 Side A 09/18/2019 13:09:53 , (July proce- IMES T avoid , N.Y. note 130, at 2144. 603 603 supra 264 . RDERS O Kisor note 16, at 2289. . It would also impose a condi- . It would supra Moreover, when the President Moreover, when XECUTIVE E 262 Mead deference after deference Auer Misreading Like a Lawyer: Cognitive Bias in Statutory Interpretation Misreading note 39, at 30–34 (summarizing reasons to prefer guidance note 39, at 30–34 (summarizing reasons to into executive orders would morph this aphorism into executive orders When an Executive Order does set out formal pro- When an Executive Order does set supra 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS , I 263 Mead True to Form, Clinton Shifts Energies Back to U.S. Focus True to Form, Clinton Shifts Energies Back to U.S. note 191, at 107–11; Kagan, GENCY United States v. Mead Corp., 533 U.S. 218 (2001). (2001). Corp., 533 U.S. 218 United States v. Mead ORMATTED supra . 1521, 1527–63 (2014) (detailing inherent ambiguity in some ordinary . 1521, 1527–63 (2014) (detailing inherent ARRILLO A EV , Exec. Order 7998, § 5, 3 Fed. Reg. 2603 (Oct. 29, 1938) (creating the In- 5, 3 Fed. Reg. 2603 (Oct. 29, 1938) , Exec. Order 7998, § , P , Jill C. Anderson, )_ME F an interpretive rule that demands unambiguity or express dele- an interpretive rule that demands Raso, .L.R Importing 265 See, e.g. See See, e.g. See generally See, e.g. That said, such a requirement wouldn’t only be inconsistent with be inconsistent wouldn’t only such a requirement That said, ELETE D promulgate rules and regulations relating to the establishment, coordination, and rules and regulations relating to the establishment, coordination, and promulgate 261 ARV 260 OT N shall First, consider intent. It is dubious that Presidents intend that agencies intend that dubious that Presidents intent. It is First, consider Said another way, because ambiguity is practically unavoidable in legal Said another way, because ambiguity 265. 264. 263. 260. 261. Bennet, James 262. M K O 127 H terdepartmental Committee on Printing and Processing, and stating “[t]he Commit- on Printing and Committee terdepartmental tee maintenance of uniform policies and procedures, consistent with law, for the efficient and maintenance of uniform policies and procedures, consistent with law, for the efficient economical utilization of printing and processing in the executive branch of the Govern- ment.”) (emphasis added). verbs, and arguing courts often misinterpret these verbs); Kavanaugh, dural hurdles and to effect changes in administrative action. In the words of to effect changes in administrative dural hurdles and [l]aw of the . . . pen President Clinton, “[s]troke of the a senior advisor to land.” wants to direct formal procedures for interpreting ambiguous terms, the his- wants to direct formal procedures for knows how to do it, even on seemingly tory of executive orders shows he trivial subject matters. the intent and political accountability justifications for deference, but also for deference, justifications and political accountability the intent for to the Court’s justifications contrary for isn’t even needed tion that without either (a) using terms in executive orders cannot interpret ambiguous of interpretive au- or (b) receiving an express delegation formal procedures, orders to order. Presidents issue executive thority within a given cedures, the White House’s priority is generally to accomplish underlying cedures, the White House’s priority for its own sake. policy goals, rather than follow process 2019] defer- judicial receive rulemaking—to or notice-and-comment adjudication ence. (D drafting, to legislative rulemaking). to legislative rulemaking). gations of interpretive authority would be inefficient. Under such an inter- gations of interpretive authority would to label the appropriate interpretive pretive regime, a President would have 5, 1998), http://www.nytimes.com/1998/07/05/us/true-to-form-clinton-shifts-energies-ba to President Clinton). ck-to-us-focus.html (quoting Paul Begala, Counselor into something like: “stroke of the pen, law of the land after notice-and-com- “stroke of the pen, law of the land into something like: successfully defeating (or on-the-record adjudication) and ment rulemaking these agency actions.”legal challenges to C Y adm_71-3_41554 Sheet No. 90 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 90 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 90 Side B 09/18/2019 13:09:53 . M K C Y EO Mead Mead Seminole , 79 G guidance, default rule, ’s Domain Mead informal as a prerequisite to cost of issuing executive [71:3 [71:3 Third, agencies will alter Mead 268 ex post EVIEW R AW requirement would also reduce it in requirement would L As just discussed, it is unlikely presi- As just discussed, 266 Mead -like rule into the executive context. -like rule into the would have more executive orders bogged would have more executive orders Mead Mead DMINISTRATIVE DMINISTRATIVE A would weaken the causal link between presidential di- would weaken the causal link between ’s own reasoning. Because a default rule requiring for- ’s own reasoning. 9/10/19 10:19 PM note 16, at 2333. Mead Mead EVIEW supra Compared to an interpretive regime without a Compared to an interpretive regime . 1449, 1490–91 (2011) (advocating adding )_ME R 267 United States v. Mead Corp., 533 U.S. 218, 229 (2001). Corp., 533 U.S. 218, 229 (2001). United States v. Mead Pogoriler, Seminole Rock C. Stephenson & Miri Matthew at 2337. EV This lag in interpretation may lead to under-enforcement of an ex- to under-enforcement This lag in interpretation may lead deference, but describing difficulties with the idea). deference, but describing difficulties with the idea). Id. See See ELETE 269 D .L.R Auer OT / N Now consider As for political accountability, a As for political accountability, 267. Kagan, 268. 269. 266. ASH O (D rectives and agency action. As Kagan persuasively argues, “more nakedly as- rectives and agency action. As Kagan of presidential control are better at fur- sertive (and legally aggressive)” modes assertive control enables “the public, thering political accountability because the true wielders of administrative Congress, and interested parties to identify authority.” ecutive order and broad uncertainty about what the order means. ecutive order and broad uncertainty 604 an execu- of provision for each the courts) or agencies (e.g., particular actor on an agency formal procedures forcing or risk a court incorrectly tive order, drafting exer- this costly rather than go through the order. But acting under strokes quickly—perhaps to act in broad may want cise, a President even def- should receive interpretive which agencies whether and before deciding after the fact interpretation questions about then resolve erence—and channels. through informal intentions, generally not reflect the President’s mal procedures would a militates against importing W agencies may abstain from announcing informal interpretations of executive agencies may abstain from announcing orders. orders has increased, they would increase their use of secretive or informal their use of secretive or informal orders has increased, they would increase Lower public scrutiny makes it more channels not subject to judicial scrutiny. interests. likely the President will play to parochial their behavior too. As the cost of complying with an executive order increases, their behavior too. As the cost of complying to the extent an agency expects that a compliance will decrease. In addition, issued in a formal process if court will be reluctant to uphold an interpretation issued in the court had rejected that same interpretation an interpretive regime with down in formal processes and litigation. The outcome after such an extended, down in formal processes and litigation. as easily traceable to the President. Sec- legalistic, and multilateral process isn’t that the ond, because presidents would realize Rock dents generally intend their agencies to be so constrained. dents generally intend three ways. First, rests on the idea that when Congress intends to delegate interpretive author- when Congress intends to delegate rests on the idea that by authorizing agency generally shows that intent ity to an agency, Congress adjudication. rulemaking or formal adm_71-3_41554 Sheet No. 90 Side B 09/18/2019 13:09:53 B 09/18/2019 No. 90 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 91 Side A 09/18/2019 13:09:53 ’s 273 . Kisor Mead Barron & See , and their prog- 605 605 in 2001. Court thus adopted— opinion in Auer , RDERS Kisor O Chevron Court’s choice of citation Court’s choice of dissenting Chevron Kisor So the agency’s interpretation interpretation So the agency’s deference—again, a senseless re- a senseless deference—again, XECUTIVE 271 E Auer ONCLUSION C requirement would make executive order defer- order executive would make requirement 9/10/19 10:19 PM NTERPRETATIONS OF NTERPRETATIONS I Mead GENCY ORMATTED A Part 1 (discussing why the biggest objection to regulatory deference doesn’t Part 1 (discussing why the biggest objection , 139 S. Ct. at 2416 (citing deference to official staff memoranda). , 139 S. Ct. at 2416 (citing deference to official staff memoranda). Driving this point home is the Driving this point 272 deference requires that an agency’s interpretation be its “authori- agency’s interpretation requires that an deference )_ME F . See supra See Kisor Id Auer ELETE D OT 270 N Finally, imposing a imposing Finally, Executive orders are key to defining and exerting presidential power. But key to defining and exerting presidential Executive orders are 271. Corp., States v. Mead (quoting United 139 S. Ct. 2400, 2416 (2019) v. Wilkie, Kisor 270. 272. 273. M K O tative” or “official position,” but it needn’t “come[] from,” or “even [be] in the from,” or “even but it needn’t “come[] “official position,” tative” or chief advisers.” the Secretary or his name of, sult. needn’t come from a formal adjudication or a (circular) notice-and-comment a (circular) notice-and-comment adjudication or from a formal needn’t come rulemaking. 2019] (D 533 U.S. 218, 257–59 & n.6 (2001) (Scalia, J., dissenting)). The apply to executive order deference). for this “official position” principle:for this “official position” Justice Scalia’s ence harder to come by than regulatory/ to come by than ence harder while executive orders can have the force of law, courts have avoided how to can have the force of law, courts while executive orders interpretive method- order means. This lack of an decide what an executive an executive order, relevant when agencies act under ology is particularly ends up in court. While and that agency action eny have developed a comprehensive framework for evaluating agency ac- eny have developed a comprehensive is no such framework for executive tion under statute or regulation, there the four goals underlying judicial orders. To create a framework, I examined effectuating lawmaker intent, fur- evaluations of agency legal interpretations: better policy outcomes through thering political accountability, enabling the rule of law. The resulting two-step technical expertise, and preserving on existing doctrine, it aspires to be test satisfies these goals. And by drawing if this test is necessarily correct, the judicially administrable. But no matter determines their purported interpretation of presidential directives—which analysis than it has so far received. legal force—deserves more rigorous albeit with what appear to be pro-deference changes—an approach that Justice Kagan ( albeit with what appear to be pro-deference changes—an author) and then-Professor David J. Barron had advocated for Kagan, supra note 224, at 234–57. C Y adm_71-3_41554 Sheet No. 91 Side A 09/18/2019 13:09:53 A 09/18/2019 No. 91 Side Sheet adm_71-3_41554