Many of President Trump’s executive orders aimed to “deconstruct” the administrative state by exercising unprecedented control over agency action. While presidents have exercised directive authority over executive agencies for several decades, these recent directives are particularly troubling because many of them direct agencies to act contrary to congressionally mandated procedures designed to ensure that agencies engage in predictable, transparent, and justified decision-making. This phenomenon poses a threat not only to agency rulemaking but also to corresponding rule of law principles—all at a time when public confidence in government officials has steadily declined and more and more Americans perceive their officials as corrupt, untrustworthy, or otherwise unable to serve the public interest. With Congress unmotivated and unable to act, the Judiciary is the only branch left to check such potentially dangerous directives. This Article seeks to show why courts can and should adjudicate challenges to such problematic orders issued by current or future presidents, despite potential standing problems when orders are challenged directly, in order to promote the rule of law and democratic governance.
Emily Morgan and Michael R. Barsa,
Presidential Administration, the Appearance of Corruption, and the Rule of Law: Can Courts Rein in Unlawful Executive Orders?,
104 Marq. L. Rev. 285
Available at: https://scholarship.law.marquette.edu/mulr/vol104/iss2/3