The Statutory President
ABSTRACT American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. This Article aims to develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they do for agencies, that the president's actions be justified by an identifiable statutory authorization. The statutory president, I suggest, is subject to administrative law. Second, within the framework of judicial review applicable to agencies, the president's claims of statutory authority should receive deference under the rule of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. The president's accountability, visibility, and the transparency of presidential orders provide strong grounds for applying Chevron deference to the president's assertions of statutory authority. This theory thus emphasizes the role of Congress in defining the boundaries of presidential power, while according deference to the president's interpretations of ambiguities within those boundaries. In this way, it aims to structure the judicial role to demand that political accountability be the basis for political power.
- SourceAvailable from: scholarship.law.duke.edu
Article: Regulatory Moratoria[Show abstract] [Hide abstract]
ABSTRACT: Despite significant scholarly attention given to tools that the political branches use to exert control over the administrative state, one emerging tool has gone largely unnoticed: regulatory moratoria. Regulatory moratoria, which stem from legislative or executive action, aim to freeze rulemaking activity for a period of time. As this Article demonstrates, regulatory moratoria have worked their way into the political toolbox at both the federal and state levels. For example, at least fifteen federal bills proposing generalized regulatory moratoria were introduced in the first session of the 112th Congress, and from 2008 to 2011 alone, no fewer than nine states implemented some kind of executive-driven regulatory moratorium. In addition, beginning with President Reagan, all U.S. presidents other than George H.W. Bush have issued short-term regulatory moratoria immediately upon coming into office to facilitate review of midnight regulations passed by their predecessors. President Bush, who followed a member of his own party into the White House, instead implemented a one-year moratorium during his last year in office.This Article aims to situate regulatory moratoria within the existing literature on political control of the administrative state. The goal of this Article is largely descriptive: to provide the first overarching description of the emergence of and proposals for regulatory moratoria at both the federal and state levels and the different contexts in which regulatory moratoria have arisen. The Article also seeks to identify and analyze the major arguments for and against regulatory moratoria from both a legal and a policy perspective. In weighing the pros and cons of regulatory moratoria, this Article warns against the use of “hard” moratoria — defined as long-term moratoria often spanning a year or more. It also suggests, however, that “soft” moratoria — meaning short-term moratoria keyed to a brief period of political transition — might appropriately further notions of democratic accountability when used carefully by the executive branch following a change in administration to ensure that the regulatory machinery is aligned with the policies of those newly elected to power.05/2012;
Benjamin N. Cardozo School of Law
Jacob Burns Institute for Advanced Legal Studies
Working Paper No. 123
THE STATUTORY PRESIDENT
Kevin M. Stack
Assistant Professor of Law of Law
Benjamin N Cardozo School of Law
55 Fifth Ave.
New York , NY 10003
(212) 790-0478 (Phone)
(212) 790-0205 (Fax)
This paper can be downloaded free of charge from the Social Science Research Network at
STACK_POST_PP.DOC 4/11/2005 12:38 PM
The Statutory President
Kevin M. Stack*
ABSTRACT: American public law has no answer to the question of how a
court should evaluate the president’s assertion of statutory authority. In this
Article, I develop an answer by making two arguments. First, the same
framework of judicial review should apply to claims of statutory authority
made by the president and federal administrative agencies. This argument
rejects the position that the president’s constitutional powers should shape
the question of statutory interpretation presented when the president claims
that a statute authorizes his actions. Once statutory review is separated from
consideration of the president’s constitutional powers, the courts should
insist, as they do for agencies, that the president’s actions be justified by an
identifiable statutory authorization. The statutory president, I suggest, is
subject to administrative law.
Second, within the framework of judicial review applicable to agencies, the
president’s claims of statutory authority should receive deference under the
rule of Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc. The president’s accountability, visibility, and the transparency of
presidential orders provide strong grounds for applying Chevron deference
to the president’s assertions of statutory authority. This theory thus
emphasizes the role of Congress in defining the boundaries of presidential
power, while according deference to the president’s interpretations of
ambiguities within those boundaries. In this way, it structures the judicial
role to demand that political accountability be the basis for political power.
am grateful to David Franklin, Michael Herz, Harold Krent, and Stewart Sterk for their
generous comments on earlier drafts. A draft of this Article was presented at the 2004
Stanford/Yale Junior Faculty Forum at Yale Law School. I am grateful to John Manning, who
commented on the paper at the Forum, for his many helpful suggestions, as well as to the other
participants for their responses. I thank Matthew Grieco, Sara Klein, and Jenna Sunderland-
Barresi for valuable research assistance, and the Benjamin N. Cardozo Faculty Research Fund
for support. All errors are my own.
* Assistant Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. I
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540 90 IOWA LAW REVIEW 
I. PRESIDENTIAL ORDERS: A BRIEF OVERVIEW...........................................546
II. THE COURTS’ TREATMENT OF THE PRESIDENT’S STATUTORY
A. YOUNGSTOWN’S SILENCE ON WHAT COUNTS AS STATUTORY
B. INCOHERENCE IN REVIEW...................................................................559
1. The Background Presumption of Presidential
2. Statutory Interpretation Without Deference ........................561
3. Unstructured Deference.........................................................563
a. Express Statute-Specific Deference ..........................................563
b. Unarticulated Deference........................................................565
4. Statutory Authority Implied by Aggregation.........................566
C. CONSEQUENCES OF INCOHERENCE ......................................................568
III. JUDICIAL REVIEW OF PRESIDENTIAL ORDERS WITHIN THE AGENCY
A. THE NONAGGREGATION PRINCIPLE OF JUDICIAL REVIEW.....................570
B. AGAINST PRESIDENTIAL EXCEPTIONALISM..........................................575
1. Separating Constitutional Powers from Statutory Review....575
2. The Principle of Nonaggregation and the President...........579
C. THE UNITARY EXECUTIVE AND THE AGENCY FRAMEWORK...................583
IV. CHEVRON AND THE PRESIDENT’S ORDERS ...............................................585
A. CHEVRON AND CONGRESSIONAL INTENT ...........................................585
B. PRESIDENTIAL ORDERS UNDER MEAD ................................................588
C. DELEGATION OF INTERPRETIVE AUTHORITY TO THE PRESIDENT...........590
1. What Statutes Does the President Administer?.....................593
2. Chevron and the President’s Jurisdictional Authority ...........594
3. The Difference the President’s Status Makes........................597
D. MEAD REVISITED ..............................................................................598
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THE STATUTORY PRESIDENT 541
Presidents shape our national life. In executive orders and other written
directives, presidents have declared a nationwide freeze on wages and prices;
established major agencies such as the EPA, the Peace Corps, and the Office
(now Department) of Homeland Security; mandated nondiscrimination and
affirmative action programs for the vast portions of the economy engaged in
government contracting; suspended private legal claims against foreign
governments in domestic courts; established military tribunals; ordered that
an American citizen captured in Chicago be subject to military jurisdiction;
and initiated federal funding for faith-based organizations.1
As a legal basis for these orders, presidents have asserted statutory as
well as constitutional authority.2 American public law, however, has no
answer to the question of how a court should evaluate the president’s
assertions of statutory authority. Although judicial review of whether a
president’s action exceeds the authority granted by statute is available,3 the
Supreme Court has not developed a framework determining how a court
should review a president’s claim of statutory authority. Justice Jackson’s
familiar three-part categorization of presidential power in his concurring
opinion in Youngstown Sheet & Tube Co. v. Sawyer4 offers a framework for
constitutional review of presidential action but is silent on how a court is to
judge when a president acts “pursuant to” a statute.5 Subsequent decisions
have provided no resolution.
This uncertainty has high costs. The absence of a framework for review
of presidential assertions of statutory authority does nothing to check the
incentives of the president and his counsel to seek the widest possible
construction of the president’s authority. While wide constructions are not
in themselves objectionable, without oversight from other actors, they pose
the risks associated with the concentration of power. Moreover, Congress—
3. The Supreme Court has held that judicial review of the president’s statutory actions
for abuse of discretion is not available under the Administrative Procedure Act, Franklin v.
Massachusetts, 505 U.S. 788, 800–01 (1992), or more generally when a statute commits a
decision to the president’s discretion. Dalton v. Specter, 511 U.S. 462, 474–76 (1994). But, as
discussed below, infra text accompanying notes 59–72, judicial review of whether the president’s
actions have statutory authorization is available. See Dames & Moore v. Regan, 453 U.S. 654, 667
(1981) (reviewing whether the president’s actions were beyond his statutory and constitutional
powers); Chamber of Commerce v. Reich, 74 F.3d 1322, 1327–32 (D.C. Cir. 1995) (holding that
review of the legality of presidential action is available); cf. Dalton, 511 U.S. at 474 (assuming
review of some claims that the president violated a statutory mandate is available, and citing
Dames & Moore).
4. 343 U.S. 579, 635–39 (1952) (Jackson, J., concurring).
5. Id. at 635–36.
The citations for these orders appear in note 26 infra.
See infra note 26 (providing examples of executive orders that asserted statutory and
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542 90 IOWA LAW REVIEW 
one potential source of constraint and oversight—has been a less than
robust monitor of the president’s assertions of statutory authority. The
incentives for Congress to delegate authority broadly have been well
documented.6 But despite the breadth of congressional delegations
generally, and delegations to the president in particular, Congress has
provided scant formal policing of the president’s own assertions of authority
under those delegations. Between 1945 and 1998, Congress legislatively
overturned only four of the more than 3,500 executive orders issued.7 For a
wide range of institutional reasons, from constituent-driven pressures to the
costs attendant to coordinated action, Congress is a poor source of
constraint on presidential action.8 The judiciary thus has a critical role to
play in monitoring presidential compliance with statutory authority and
requires a theory of review to do so.
This Article aims to develop such a theory. Specifically, this Article
argues that the same framework of judicial review should apply to assertions
of statutory authority by the president and federal agencies. It challenges the
idea judicial review of the president’s claims of statutory authorization
should be influenced by whether the Constitution independently authorizes
the president’s actions. The president as a statutory actor—what I call the
statutory president—is subject to administrative law on the same terms as
agencies. Next, this Article argues that within the agency framework, courts
should grant deference under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc.9 to the president’s claims of statutory authorization.
(arguing that legislators delegate to insulate themselves from political accountability); DAVID
EPSTEIN & SHARYN O’HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS
APPROACH TO POLICY MAKING UNDER SEPARATED POWERS 29–33, 48–85 (1999) (summarizing
empirical literature on congressional incentives to delegate broad powers, and developing a
transaction-cost model to explain incentives to delegate); DANIEL A. FARBER & PHILIP P.
FRICKEY, LAW AND PUBLIC CHOICE 80–87 (1991) (summarizing empirical and public choice
explanations of congressional incentives to delegate); Morris Fiorina, Legislator Uncertainty,
Legislative Control, and the Delegation of Legislative Power, 2 J.L. ECON. & ORG. 33, 43–46 (1986)
(providing a model of the legislative choice to delegate to the judiciary or administration as a
function in part of the strength of legislators’ policy positions in the legislature and beliefs
about the administrative process); Morris Fiorina, Legislative Choice of Regulatory Forms: Legal
Process or Administrative Process?, 39 PUB. CHOICE 33, 49 (1982) (arguing that delegation resolves
legislative conflicts between dispersed and concentrated special interest groups by mollifying
the dispersed groups with the appearance of a policy solution while allowing the concentrated
groups to sway the outcome of decisions at the regulatory level); cf. JERRY L. MASHAW, GREED,
CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 140–57 (1997)
(defending broad delegations against public choice critique).
7. See WILLIAM G. HOWELL, POWER WITHOUT PERSUASION: THE POLITICS OF DIRECT
PRESIDENTIAL ACTION 113–16 (2003) (reporting statistics on congressional overrides as part of
an empirical study of legislative action on executive orders from 1945 to 1998).
8. See infra Part III.B.2 (arguing that structural and institutional limitations make
Congress a poor monitor of presidential action).
9. 467 U.S. 837 (1984).
6. See, e.g., DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 101 (1990)
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THE STATUTORY PRESIDENT 543
This approach maintains that when the asserted basis for the president’s
actions is statutory, Congress is the ultimate source of power; its delegation is
the basis of the president’s authority, and courts should insist, as they do for
agencies, on an identifiable source of statutory authorization. But within that
basic structure, the president’s accountability, visibility, and ability to
coordinate policy provide strong reasons for presuming that Congress would
prefer that the president’s assertions of statutory authority be reviewed
deferentially. This position thus grants the president an advantage over
agencies. The president’s orders based on statutory authority, unlike many
agency actions, are assured Chevron deference.10
The range of actions the Constitution authorizes the president to take is
the subject of vigorous debate.11 This Article does not directly engage or
defend a position on that debate because it concludes that courts should not
alter their analysis of whether the president’s assertion of statutory power is
valid based on their view of whether the Constitution independently
authorizes the president’s action. The argument I develop for that
conclusion does not depend on any particular construction of the
president’s independent constitutional powers. It does assume, however,
that the president’s constitutional powers and status do not require the
judiciary to grant his interpretations of statutes special interpretive
deference, or at least that the basis for such interpretive authority is
sufficiently weak or uncertain that it must yield to the institutional and
structural considerations that I highlight.12
Swift & Co., 323 U.S. 134 (1944). See United States v. Mead Corp., 533 U.S. 218, 221 (2001)
(holding that Skidmore, not Chevron, deference is applicable to a United States Customs Service
tariff ruling). Under Skidmore, agency decisions may merit some variable amount of persuasive
deference in view of the “experience and informed judgment” of the agency, depending on
“the thoroughness evident in its consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it power to persuade.” 323
U.S. at 140.
11. The literature is too vast to capture in a single citation. A few treatments that I have
found particularly helpful are: Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism
and Foreign Affairs, 102 MICH. L. REV. 545 (2004) (challenging the thesis that the Vesting Clause,
U.S. CONST. art. II, § 1, cl. 1, grants the president broad residual powers not specified in Article
II); Erwin Chemerinsky, Controlling Inherent Presidential Power: Providing a Framework for Judicial
Review, 56 S. CAL. L. REV. 863, 887–95 (1983) (arguing that courts should evaluate challenges to
presidential acts that lack express statutory or constitutional authorization by determining
whether they infringe on legislative or judicial powers); Henry P. Monaghan, The Protective Power
of the Presidency, 93 COLUM. L. REV. 1, 11 (1993) (arguing that the president has lawmaking
power only over protection of “personnel, property, and instrumentalities of the United
States”); H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Executive Branch
Perspective, 67 GEO. WASH. L. REV. 527, 529, 545–49, 554–76 (1999) (defending the president’s
primary constitutional authority over foreign affairs).
12. This assumption does not imply that I view the president’s position as the elected head
of the executive branch as irrelevant to the character of judicial deference the president’s
claims of statutory authority should receive. On the contrary, as noted above, I argue that the
10. Agency action may receive Chevron deference or the lesser deference of Skidmore v.
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544 90 IOWA LAW REVIEW 
The president also has figured prominently in debates in administrative
law. But those debates have focused on the president’s role in directing the
actions of others, not on judicial review of the president’s assertions of
delegated statutory authority in his own name.13 In view of the fact that
courts should assess the statutory basis for a presidential order before
president’s accountability, visibility, and ability to coordinate policy justify applying Chevron
deference to his assertions of statutory power. This claim that the president’s accountability and
powers-in-fact justify judicial deference is distinct from the idea that the president’s
constitutional status endowed by the Vesting Clause, U.S. CONST. art. II, § 1, as a co-ordinate
branch of government, or the Constitution’s grant of specific powers, such as the duty to take
care that the laws are faithfully executed, U.S. CONST. art. II, § 3, require the judiciary to grant
special deference to the president’s interpretations of statutes. The validity of the assumption I
make may depend upon the resolution of the contested question of the extent to which the
judiciary is or should be the authoritative interpreter of the Constitution and other federal laws.
I do not engage that wide-ranging debate in this Article.
13. See, e.g., Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the
Administrative State, 78 N.Y.U. L. Rev. 461, 466 (2003) (arguing that the presidential control
model of administrative law is not sufficient to legitimize agency action); Cynthia R. Farina, The
Consent of the Governed: Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 989
(1997) (arguing against the idea that the president’s elected status is sufficient to solve the
legitimacy problem of the administrative state); Michael Herz, Imposing Unified Executive Branch
Statutory Interpretation, 15 CARDOZO L. REV. 219 (1993) (defending presidential oversight of
agency action and its implications for judicial review, focusing on the president’s own assertions
of statutory authority); Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2246–
52, 2281–2314, 2331–46, 2376–78 (2001) (documenting and defending increased presidential
control over agency action, and proposing that Chevron deference to agency action should turn
on presidential involvement); Thomas O. McGarity, Presidential Control over Regulatory Agency
Decisionmaking, 36 AM. U. L. REV. 443, 450–51, 454–55 (1987) (arguing that White House
involvement in regulation may have undesirable consequences and does not increase
accountability); Peter L. Strauss, Presidential Rulemaking, 72 CHI.-KENT L. REV. 965, 967 (1997)
(recognizing and criticizing President Clinton’s direction and public appropriation of
rulemakings). The one focused and helpful treatment of the topic, Harold H. Bruff, Judicial
Review and the President’s Statutory Powers, 68 VA. L. REV. 1 (1982), is more than twenty years old.
It was completed prior to the Supreme Court’s decision in Chevron, prior to the Supreme
Court’s decision that the Administrative Procedure Act does not apply to the president, see text
accompanying infra notes 59–62 (discussing the availability of judicial review of presidential
action), and prior to recent empirical work on the president’s assertion of directive authority.
See infra text accompanying notes 33–38 (discussing recent empirical studies). Bruff takes the
view that when the president’s independent constitutional powers are present, the courts
should be more deferential to the president’s assertions of statutory authority and more willing
to “draw some support for the decision from the penumbras of statutes.” Bruff, supra, at 38. I
challenge the idea that the president’s constitutional powers to act should shape the character
of judicial review of his statutory assertions of authority. See infra Part III.B. Others have
examined the application of Chevron, on different grounds than I defend, with regard to
specific aspects of the president’s activity, see Curtis A. Bradley, Chevron Deference and Foreign
Affairs, 86 VA. L. REV. 649 (2000) (examining the application of Chevron to foreign affairs law),
or as a constraint on presidential power. See Abner S. Greene, Checks and Balances in an Era of
Presidential Lawmaking, 61 U. CHI. L. REV. 123, 185–87 (1994) (arguing that the Chevron
doctrine, even strictly applied, would not be adequate to check presidential lawmaking, and
proposing a concurrent congressional resolution mechanism to check presidential action).
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THE STATUTORY PRESIDENT 545
considering the president’s constitutional authority,14 a framework for
review of the president’s own assertions of statutory power is critical.
This Article proceeds in four Parts. Part I provides a brief primer on
executive orders and presidential orders more generally. Part II shows that,
while the Supreme Court has embraced a background principle that the
president’s constitutional status provides grounds for limiting judicial review
of presidential actions and for some form of judicial deference, neither the
Supreme Court nor the lower courts have developed a conception of the
character and scope of deference the president’s claims of statutory
authorization should receive. I illustrate this incoherence by describing
three different stances that courts have taken in assessing the statutory basis
for presidential orders, ranging from granting the president virtually no
deference to giving the president’s assertions of statutory authority
substantial deference, and even to implying authority for the president by
aggregating powers delegated in a variety of related statutory provisions.
Part III argues that the same framework of judicial review should apply
to claims of statutory authorization by agencies and the president. This
framework provides an attractive principle of review of the president’s
actions because it insists upon a basis to conclude that the president’s
statutory assertions are grounded in an executive-legislative agreement. I
argue that the agency framework accomplishes this through a fundamental
principle that statutory authority may not be implied by aggregation from a
collection of delegations, none of which individually authorizes the action.
Instead, delegation of authority must be traceable to some identifiable
statutory authorization. I call this the principle of nonaggregation and defend
its difference from other, now-accepted forms of implication of authority.
Part III then argues that this principle should apply not only to agency
action, but also to the president’s assertion of statutory authority. I contend
that the president’s independent constitutional powers—that is, authority to
act granted directly by the Constitution—do not justify aggregating statutory
authority on the president’s behalf, and that in fact the president’s
independent constitutional powers do not bear on how a court should
determine what can count as statutory authorization. Building on recent
empirical work in political science and public choice theory, I also suggest
that the fact that Congress is poorly structured to monitor the president’s
review that courts address the statutory basis for executive action before examining the
constitutional basis for authority with the aim of avoiding constitutional decisions); Harmon v.
Brucker, 355 U.S. 579, 581 (1958) (“In keeping with our duty to avoid deciding constitutional
questions presented unless essential to proper disposition of a case, we look first to petitioners’
non-constitutional claim that respondent [Secretary of the Army] acted in excess of powers
granted him by Congress.”); Bruff, supra note 13, at 1 (noting that courts will review statutory
questions before constitutional questions to avoid making a constitutional decision).
14. See Dalton v. Specter, 511 U.S. 462, 472 (1994) (affirming the principle of judicial
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546 90 IOWA LAW REVIEW 
compliance with statutory delegations justifies requiring some identifiable
statutory source as a basis for the president’s actions.
Part IV argues that Chevron deference should apply to the president’s
assertion of a qualifying statutory source of authority. In view of the
president’s status, visibility, and accountability, as well as the transparency of
presidential orders, I suggest that the grounds that support the application
of Chevron to the president’s orders are even stronger than the grounds that
support Chevron’s application to agency action. This argument also
demonstrates a problem with the Supreme Court’s decision in United States
v. Mead Corp.,15 the Court’s most important decision on the scope of
Chevron’s application. The Mead Court focused on whether the agency was
required to act with procedural formality, such as notice-and-comment
rulemaking, as the primary trigger for Chevron deference.16 Delegations to
the president, however, do not require the president to act with procedural
formality. The application of Chevron to the president requires adjustment of
the Mead principle, and suggests grounds for revision that dovetail with
recent critical commentary on Mead. In this way, the statutory president is
not only subject to, but also helps to clarify the demands of administrative
By distinguishing the president’s constitutional powers from the
question of his statutory authority, this conception of judicial review insists
that courts validate a president’s assertion of statutory power only if there
are good grounds to believe that it reflects the agreement of the legislature
and the executive. In this way, the theory emphasizes Congress’s political
accountability as the source of the statutory president’s power. At the same
time, the theory acknowledges that the president’s superior political
accountability to the judiciary justifies according deference to his
interpretations of ambiguous statutory provisions. Thus, at each level, the
theory structures the judicial role to require that political accountability be
the basis for political power.
I. PRESIDENTIAL ORDERS: A BRIEF OVERVIEW
Before turning to these arguments, this Part provides a brief primer on
presidential orders: what they are, their scope of use, their legal status, the
legal requirements the president must satisfy before issuing them, and the
availability of judicial review.
What are executive and other presidential orders? American law provides no
definition of executive orders.17 Nor are there legal requirements on the
of 1935, 44 U.S.C. § 1505 (2000), establishes publication requirements for executive orders and
proclamations, but provides no definition of what an executive order or proclamation is.
533 U.S. 218 (2001).
Id. at 229–31.
There is no current statutory definition of executive orders. The Federal Register Act
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THE STATUTORY PRESIDENT 547
types of directives that the president must issue as an executive order, as
opposed to other headings, such as a proclamation, memorandum,
directive, or determination. Further, the particular form in which a directive
is conveyed does not determine its legal effect, and may reflect nothing
more than a bureaucratic choice.18 For these reasons, I refer to executive
orders along with these other forms of written presidential directives as
“presidential orders” and define each simply as written directives that the
president designates as such.19
Several executive orders have established procedures for issuing executive orders, see infra note
55, but none include a definition. In 1999, a bill introduced before a House committee
included the following definition of a “presidential order”: “(1) any executive order,
Presidential proclamation, or Presidential directive or (2) any other Presidential or Executive
action whatever name described purporting to have prescriptive effect that is issued under the
authority of the President or any other officer or employee of the executive branch.”
Presidential Order Limitation Act of 1999, H.R. 3131, 106th Cong. After a hearing before the
House Subcommittee on Commercial and Administrative Law, no further action was taken on
the bill. See Congressional Limitation of Executive Orders: Hearing on H.R. 3131, H. Con. Res. 30, and
H.R. 2655 Before the Subcomm. on Commercial and Administrative Law of the House Comm. on the
Judiciary, 106th Cong. 8–67 (1999) (hearing testimony on the Presidential Order Limitation Act
18. In response to a request for a legal opinion from President Clinton, the Department
of Justice’s Office of Legal Counsel concluded that there is no difference between the legal
effect of a presidential directive and an executive order. See Memorandum from Randolph D.
Moss, Acting Assistant Attorney General, Office of Legal Counsel, to the President, Legal
Effectiveness of a Presidential Directive, As Compared to an Executive Order (Jan. 29, 2000)
(stating that the substance of the directive or order determines its legal effect, not the form or
caption of the written document through
http://www.usdoj.gov/olc/predirective.htm (on file with the Iowa Law Review); see also Wolsey
v. Chapman, 101 U.S. 755, 769–70 (1879) (holding that an administrative order by the
Secretary of Interior had the legal effect of a presidential proclamation and rejecting the
suggestion that any “particular form of such announcement is necessary”). Harold Bruff also
takes the view that the form in which a directive is conveyed may reflect nothing more than
bureaucratic tradition. Bruff, supra note 13, at 14.
19. Attempts by legal scholars and political scientists to classify these different forms of
orders have been unavailing. The most widely noted general characterization is that executive
orders are typically directed to, and govern the actions of, federal government officials, whereas
proclamations address private citizens or the public generally. E.g., HOUSE COMM. ON GOV’T
OPERATIONS, 85TH CONG., EXECUTIVE ORDERS AND PROCLAMATIONS: A STUDY OF PRESIDENTIAL
POWERS 1 (Comm. Print 1957) [hereinafter HOUSE STUDY]; William D. Neighbors, Presidential
Legislation by Executive Order, 37 U. COLO. L. REV. 105, 106 (1964). But such a classification tends
to obscure the fact that even orders formally directed at other government officials can have
practical effects on private parties. For instance, President Franklin Roosevelt formally imposed
nondiscrimination requirements on “contracting agencies of the government,” Exec. Order No.
8802, 3 C.F.R. 957 (1938–1943), but in practical effect established principles of
nondiscrimination for the significant portion of the nation’s economy that was engaged in
government contracting. In response to these and other difficulties of categorization, other
commentators have embraced the formal definition of executive orders that I adopt—i.e.,
written directives the president designates as such. See, e.g., PHILLIP J. COOPER, BY ORDER OF THE
PRESIDENT: THE USE AND ABUSE OF EXECUTIVE DIRECT ACTION 16–17 (2002) (defining executive
orders as written directives the president designates as such); KENNETH R. MAYER, WITH THE
STROKE OF A PEN: EXECUTIVE ORDERS AND PRESIDENTIAL POWER 34–35 (2001) (same); Joel L.
which that action is conveyed),
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548 90 IOWA LAW REVIEW 
Modern presidents have used presidential orders to initiate many of
their most important policies.20 The president may issue or repeal prior
presidential orders on his own initiative, and in almost all cases, may do so
without having to satisfy any procedural requirements.21 Moreover, with
appropriate constitutional or statutory authorization, these orders may have
the force and effect of law.22 As a result, presidential orders often leave other
institutions, such as Congress, administrative agencies and the courts, as well
as the public in the position of responding to or implementing the policy
and law they embody.
Scope of Use. Presidents have asserted power unilaterally through
presidential orders since the time of the Founding.23 In 1793, Washington
issued the Neutrality Proclamation, which proclaimed the neutrality of the
United States in the conflict between Britain and France, without statutory
authority to do so.24 Marbury v. Madison itself arose from a challenge to the
validity of an order from President Jefferson to his Secretary of State, James
Madison, to withhold William Marbury’s judicial commission.25 Executive
and other presidential orders have been the source of a wide range of
significant moments in national life.26 Executive orders or proclamations
Fleishman & Arthur H. Aufses, Law and Orders: The Problem of Presidential Legislation, LAW &
CONTEMP. PROBS., Summer 1976, at 1, 7 (same); John E. Noyes, Executive Orders, Presidential
Intent, and Private Rights of Action, 59 TEX. L. REV. 837, 839 (1981) (same).
20. See HOWELL, supra note 7, at 6–7 (summarizing significant presidential actions
implemented by presidential orders); MAYER, supra note 19, at 4–11 (summarizing the
significant presidential policies implemented by executive order, including nondiscrimination,
regulatory review, and creation or expansion of agencies); PETER M. SHANE & HAROLD H.
BRUFF, THE LAW OF PRESIDENTIAL POWER 88 (1988) (noting the importance of executive orders
as policy-initiation tools); see also infra note 26, and text accompanying notes 27–32 (providing
examples of important policies initiated through presidential orders).
21. See infra text accompanying note 54 (noting a few statutes that impose consultation
and reporting requirements on the president).
22. See infra notes 42–45 and accompanying text.
23. For brief and helpful histories of executive orders, see Hugh C. Keenan, Executive
Orders: A Brief History of Their Use and the President’s Power to Issue Them, in SENATE SPECIAL COMM.
ON NAT’L EMERGENCIES & DELEGATED EMERGENCY POWERS 93D CONG., EXECUTIVE ORDERS IN
TIMES OF WAR AND NATIONAL EMERGENCY, (Comm. Print 1974); Robert B. Cash, Presidential
Power: Use and Enforcement of Executive Orders, 39 NOTRE DAME L. REV. 44, 44–51 (1963); HOUSE
STUDY, supra note 19, at 7–37; JAMES HART, THE ORDINANCE MAKING POWERS OF THE PRESIDENT
OF THE UNITED STATES 69–119 (1925).
24. This provoked the famous Pacificus-Helvidius exchange between Hamilton and
Madison over the scope of executive power. See Alexander Hamilton, First Pacificus Letter (June
29, 1793) reprinted in 1 W. GOLDSMITH, THE GROWTH OF PRESIDENTIAL POWER 398–404 (1974);
James Madison, First Helvidius Letter (Aug.–Sept. 1973), reprinted in 1 W. GOLDSMITH, supra, at
405–11; see also HOUSE STUDY, supra note 19, at 16–18 (discussing the significance of
Washington’s Proclamation of Neutrality and the subsequent debate); COOPER, supra note 19,
at 122–25 (same).
25. 5 U.S. (1 Cranch) 137, 138 (1803).
26. These orders are cited in the order in which they appear in the first paragraph of this
Article. See, e.g., Exec. Order No. 11,615, 3 C.F.R. 602 (1971–1975) (establishing a wage and
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THE STATUTORY PRESIDENT 549
declared the emancipation of slaves in confederate states,27 the suspension
of the writ of habeas corpus during the Civil War,28 the internment of the
Japanese-Americans during World War II,29 the desegregation of the
military,30 the establishment of the government’s security classification
system,31 and the imposition of centralized executive review of agency
regulations.32 Presidential orders are clearly a significant source of law and
price freeze, and claiming authority under “the Constitution and statutes of the United States,
including the Economic Stabilization Act of 1970 (P.L. 91-379, 84 Stat. 799), as amended”);
Reorg. Plan No. 3 of 1970, 3 C.F.R. 1072 (1966–1970), reprinted in 42 U.S.C. § 4321 (1994), and
in 84 Stat. 2086 (1970) (establishing the EPA); Exec. Order No. 10,924, 26 Fed. Reg. 1789 (Mar.
1, 1961) (establishing the Peace Corps, and claiming authority under “the Mutual Security Act
of 1954, 68 Stat. 832, as amended 22 U.S.C. § 1750 et seq.”); Exec. Order No. 13,228, 3 C.F.R. 796
(2001) (establishing the Office of Homeland Security, and claiming authority under “the
Constitution and the laws of the United States of America”); Exec. Order No. 11,246, 3 C.F.R.
339 (1964–1965) (establishing nondiscrimination policy for government contractors and
subcontractors, and claiming authority under “the Constitution and statutes of the United
States”); Exec. Order No. 11,114, 3 C.F.R. 774 (1959–1963) (extending nondiscrimination
policy to all federally-assisted construction projects, and claiming authority under “the
Constitution and statutes of the United States”); see also Padilla v. Rumsfeld, 352 F.3d 695, 724–
25 (2d Cir. 2003) (providing redacted version of June 9, 2002 order from President George W.
Bush to the Secretary of Defense regarding the detention of Jose Padilla and claiming authority
under the “Authorization for the Use of Military Force Joint Resolution (Public Law 107-40”
and the Constitution), rev’d, 124 S. Ct. 2711 (2004); Military Order of Nov. 13, 2001, 3 C.F.R.
918 (2001) (establishing military tribunals, and claiming authority as “Commander in Chief of
the Armed Forces of the United States [under] the Constitution and the laws of the United
States of America, including the Authorization for Use of Military Force Joint Resolution
(Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code”);
Exec. Order No. 13,198, 3 C.F.R. 750 (2001), reprinted in 5 U.S.C.A. § 601 (2004) (establishing
faith-based initiatives, and claiming authority under “the Constitution and the laws of the
United States of America”); Exec. Order No. 12,294, 3 C.F.R. 139 (1982) (suspending legal
claims against Iran, and claiming authority under “the Constitution and statutes of the United
States, including Section 203 of the International Emergency Economic Powers Act . . . ,
Section 301 of Title 3 of the United States Code, Section 1732 of Title 22 of the United States
Code, and Section 301 of the National Emergencies Act”); MAYER, supra note 19, at 182–217
(2001) (examining the role of executive orders in civil rights policy).
27. Abraham Lincoln, The Emancipation Proclamation (Jan. 1, 1863), reprinted in 8A
COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 3358–59 (James D. Richardson
28. Abraham Lincoln, Proclamation Suspending Writ of Habeas Corpus (Sept. 15, 1863),
reprinted in 6 COLLECTED WORKS OF ABRAHAM LINCOLN 451 (Roy P. Basler ed., 1953).
29. Exec. Order No. 9066, 3 C.F.R. 1092 (1943–1948).
30. Exec. Order No. 9981, 3 C.F.R. 772 (1943–1948).
31. Exec. Order No. 8381, 3 C.F.R. 634 (1938–1943).
32. Exec. Order No. 12,291, 3 C.F.R. 127 (1981); Exec. Order No. 12,866, 3 C.F.R. 638
(1993), amended by Exec. Order No. 13,258, 3 C.F.R. 204 (2004), reprinted in 5 U.S.C.A. § 601
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The patterns of presidents’ use of executive orders have been the
subject of recent empirical studies.33 The sheer number of executive orders
issued per year has declined from the peak it reached during the New Deal
and World War II.34 This decline in the gross number of orders does not,
however, correspond to a diminution in the importance of executive orders
as a policymaking tool. On the contrary, the significance of the president’s
assertions of authority through executive and other presidential orders has
increased in the twentieth century. “Whereas at the turn of the century
presidents issued only a handful of important executive orders in their
entire term,” Terry Moe and William Howell report, “now presidents can be
expected to issue between 15 and 20 important orders every year.”35
Likewise, using slightly different criteria to judge significance, Kenneth
Mayer concludes that since the 1970s, on average, presidents have issued
about fourteen significant executive orders per year.36 Moreover, the
percentage of presidential orders that apply to the general public has
increased dramatically.37 Nor are there indications that the perceived
importance of presidential orders to the president is declining.38
Legal Status. As a statement of black letter law, presidential orders must
have either constitutional or statutory authorization.39 The simplicity of the
statement of this rule cloaks the enduring uncertainty about the scope of the
(charting the number of significant and insignificant executive orders issued between 1900 and
1998); MAYER, supra note 19, at 66–108 (charting the use of executive orders in five subject
matter areas: defense/foreign policy, domestic policy, executive branch management, creation
of board/commissions, and war/emergency); George A. Krause & David B. Cohen, Presidential
Use of Executive Orders, 1953–1994, 25 AM. POL. SCI. Q. 458 (1997) (providing a quantitative
model of the president’s willingness to use executive orders).
34. See HOWELL, supra note 7, at 83–84 (chart of overall number of executive orders issued
between 1900 and 1998 showing highest number of orders issued per year during World War II
and the New Deal era); MAYER, supra note 19, at 71 (noting that between July 1932 and June
1942 President Franklin Roosevelt issued 286 executive orders); Terry M. Moe & William G.
Howell, The Presidential Power of Unilateral Action, 15 J.L. ECON. & ORG. 132, 156 (1999)
(summarizing trends in the number of executive orders issued by modern presidents).
35. Moe & Howell, supra note 34, at 156. Kenneth Mayer’s independent study comes to a
similar conclusion. See infra note 36 and accompanying text.
36. MAYER, supra note 19, at 86.
37. See Lyn Ragsdale & John J. Theis, III, The Institutionalization of the American Presidency,
1924–92, 41 AM. J. POL. SCI. 1280, 1288–89 (1997) (documenting that the percentage of
executive orders setting policy that affected private entities increased from single digits in the
1920s to over 60% since the 1960s).
38. See MAYER, supra note 19, at 87 (noting that executive orders are useful political tools
of the president); Moe & Howell, supra note 34, at 160 (noting the use of executive orders to
39. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188–89 (1999)
(noting same as statement of “black letter law”); Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 585 (1952) (“The President’s power, if any, to issue the order must stem from an act
of Congress or from the Constitution itself.”).
33. Those comprehensive treatments are provided by HOWELL, supra note 7, at 76–100
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THE STATUTORY PRESIDENT 551
president’s powers under Article II and what counts as a statutory
authorization of power.
The Constitution does not mention the president’s authority to issue
orders, though the president’s power to do so is by now beyond dispute. As
to the scope of the president’s powers under Article II or of any inherent or
prerogative powers, over 200 years of constitutional history have furnished
only broad outlines.40 These uncertainties have generated extensive
literature on the scope of the president’s constitutional powers.41 The courts
also have not developed, as I show in Part II, a settled understanding of how
to determine whether the assertion of statutory authority in an executive
order is valid.
Putting aside the president’s authority to act pursuant to a
constitutional power, for a presidential order to have the force and effect of
law, it must have statutory authorization.42 When a presidential order has
statutory authorization, it can be enforced by the government against private
parties43 and may preempt conflicting state law.44 Such an order also may
create rights enforceable by private parties.45
a half of debate on the scope of the president’s powers had yielded no net results); Moe &
Howell, supra note 34, at 134 (arguing that the president’s powers of unilateral action are an
important force in American politics in part because of the ambiguity of the constitutional basis
of the president’s power); Monaghan, supra note 11, at 3 (noting that time has only confirmed
the difficulty, recognized by Justice Story, of discerning the powers of the executive
41. For a sampling of this literature, see supra note 11.
42. See Chrysler Corp. v. Brown, 441 U.S. 281, 307 (1979) (holding that where
congressional authorization for an executive order was not clearly identifiable, regulations
issued based on the order did not have the force and effect of law); Youngstown, 343 U.S. at
587–89 (holding that the constitutional framework refutes the idea that, absent congressional
authorization, the president has lawmaking power); Chen v. INS, 95 F.3d 801, 805 (9th Cir.
1996) (holding that the “[e]xecutive [o]rder lacked the force and effect of law because it was
never grounded in a statutory mandate or congressional delegation of authority”); see also
Monaghan, supra note 11, at 10 (arguing that Youngstown establishes that the president may
invade private rights pursuant only to a specific constitutional power or an affirmative legislative
authorization); cf. Zhang v. Slattery, 55 F.3d 732, 747 (2d Cir. 1995) (holding that executive
orders are only judicially enforceable in private suits where they have a “specific foundation in
Congressional action”) (quoting Surface Mining Regulation Litig., 627 F.2d 1346, 1357 (D.C.
Cir. 1980)); Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1338 (4th Cir. 1995) (“An executive
order is privately enforceable only if it is issued pursuant to a statutory mandate or delegation of
43. See, e.g., UAW-Labor Employment & Training Corp. v. Chao, 325 F.3d 360, 366–67
(D.C. Cir. 2003) (holding that an executive order requiring government contracts to include a
requirement that the contractor post rights not to participate in unions was valid because it had
statutory authorization); United States v. Arch Trading Co., 987 F.2d 1087, 1091 (4th Cir. 1993)
(upholding a criminal conviction for violation of an executive order authorized by statute);
Farmer v. Phila. Elec. Co., 329 F.2d 3, 8 (3d Cir. 1964) (concluding that executive orders
requiring non-discrimination provisions in government contracts had statutory authorization
and the force of law).
40. See Youngstown, 343 U.S. at 634–35 (Jackson, J., concurring) (noting that a century and
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But even statutorily authorized executive orders often create no private
rights. Contemporary executive orders routinely disclaim any intention to
create any right of enforcement either against the government or against
private individuals.46 Courts generally treat such express limitations as a bar
to judicial enforcement and decline to infer a private right of enforcement
when the executive order is simply silent as to judicial review.47 Indeed, the
inquiry into the judicial enforceability of executive orders has largely
focused on the intention, in the order itself, to create a private right of
In sum, as long as presidential orders have statutory authorization, then,
like agency regulations, they bind with the force of law, may preempt state
law, and when they expressly so provide, can create rights of private
Process and Publication. In contrast to legislation or agency regulation,
there are almost no legally enforceable procedural requirements that the
president must satisfy before issuing (or repealing) an executive order or
other presidential directive. That, no doubt, is central to their appeal to
U.S. 264, 273 n.5 (1974) (stating that as to an executive order authorized by statute that “we
have no difficulty concluding that the Executive Order is valid and may create rights protected
against inconsistent state laws through the Supremacy Clause”); Jenkins v. Collard, 145 U.S.
557, 560–61 (1891) (holding that executive orders are equivalent to laws when based upon
legitimate constitutional or statutory authority). Indeed, an executive order with statutory
authorization has also been held to provide a statutory basis for withholding information under
the Freedom of Information Act. Times Publ’g Co. v. United States Dep’t of Commerce, 236
F.3d 1286, 1291–92 (11th Cir. 2001). The D.C. Circuit has upheld the retroactive application of
an executive order so long as the order itself made clear that it applied retroactively. Sea-Land
Serv., Inc. v. ICC, 738 F.2d 1311, 1314 (D.C. Cir. 1984).
45. See, e.g., Chambers v. United States, 451 F.2d 1045, 1050, 1053 (Ct. Cl. 1971) (awarding
the plaintiff backpay for the government’s violation of an executive order regarding
nondiscriminatory employment practices).
46. A statement to the following effect regarding judicial review is typical: “This order does
not create any right or benefit, substantive or procedural, enforceable at law or equity, against
the United States, its departments, agencies, or other entities, its officers or employees, or any
other person.” E.g., Exec. Order No.13,284, 3 C.F.R. 161 (2004), reprinted in 6 U.S.C.A. § 121
(2004) (including provision); Exec. Order No. 13,329, 69 Fed. Reg. 9181 (Feb. 24, 2004)
(same); Exec. Order No. 13,328, 69 Fed. Reg. 6901 (Feb. 6, 2004) (same).
47. Facchiano Constr. Co. v. Dep’t of Labor, 987 F.2d 206, 210 (3d Cir. 1993) (declining
to infer private enforceability under an executive order); Indep. Meat Packers Ass’n v. Butz, 526
F.2d 228, 236 (8th Cir. 1975) (denying the private right of enforcement of an executive order
where the executive order “does not expressly grant such a right”); Manhattan-Bronx Postal
Union v. Gronouski, 350 F.2d 451, 456 (D.C. Cir. 1965) (declining to find an executive order
privately enforceable where the order did not provide for any role for judicial enforcement);
Farmer v. Phila. Elec. Co., 329 F.2d 3, 8 (3d Cir. 1964) (declining to a provide private cause of
action to enforce nondiscrimination provisions in government contracts required by an
executive order where the order did not expressly provide for such enforcement).
48. See John E. Noyes, Executive Orders, Presidential Intent, and Private Rights of Action, 59 TEX.
L. REV. 837, 838–39, 852–78 (1981) (arguing that private enforceability should turn on
congressional intention, not the intention in the order itself).
44. See, e.g., Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418