Executive Orders as Lawful Limits on Agency Policymaking Discretion

Authors

Adam J. White, George Mason University Antonin Scalia Law School

Abstract

After briefly retracing previous Presidents’ general uses of executive orders and debates over presidential power more generally, culminating with the late twentieth century executive orders on White House regulatory oversight, I review the case of Sherley v. Sebelius, in which the D.C. Circuit held that when an agency receives an executive order lawfully cabining or directing the its regulatory discretion, it is excused from its otherwise general duty to respond to rulemaking comments challenging its policy choice. Then, examining this general duty of agencies to respond to rulemaking comments, I consider whether the D.C. Circuit’s approach comports with the values and purposes underlying that duty.

Recommended Citation

Adam J. White, Executive Orders as Lawful Limits on Agency Policymaking Discretion, 93 Notre Dame L. Rev. 1569 (2018).
Available at: https://scholarship.law.nd.edu/ndlr/vol93/iss4/8