Elena Chachko (UC Berkeley School of Law) has posted The Executive Order (74 UCLA Law Review, forthcoming) on SSRN. Here is the abstract:
Executive orders have been a defining feature of the second Trump presidency. Hundreds of orders and proclamations have introduced sweeping policies and an exceptionally broad view of presidential control over the administrative state. Yet existing scholarship on executive orders offers only a partial view of this key presidential governance instrument. Scholars have largely focused on the constitutional and statutory underpinnings of executive orders and treated them as monolithic instruments within a broader toolkit of presidential administration. The structure of executive orders and how agencies interact with them have received far less attention.
This Article offers a novel account of executive orders that focuses on how their internal structure determines agency implementation. Based on an original dataset of 1,982 executive orders issued between 1981 and late 2025, the Article identifies three distinct categories of executive order elements: (1) action-forcing elements that operate as mandates, (2) methodology-setting elements that impose trans-substantive regulatory requirements, and (3) policy-setting elements that merely articulate aspirational policy goals. The Article empirically examines additional structural features, including cited legal authority, domestic or foreign policy orientation, and the relationship between those elements and an order’s composition.
The Article argues that each category of elements interacts with agencies and White House oversight in fundamentally different ways, shaping the likelihood, form, and intensity of agency implementation. Action-forcing elements are likely to trigger substantial agency implementation efforts. They are significantly correlated with citations to statutes, not just vague invocations of Article II authority. Policy-setting elements are highly susceptible to bureaucratic pushback, inattention, and indecision. Methodology-setting elements often have robust White House backing, but methodological ambiguity and resource constraints hamper their implementation. Orders that rely heavily on policy-setting and methodology-setting elements—like many of President Trump’s recent orders—are therefore subject to important limitations on the President’s ability to generate agency compliance.
Highly Recommended!
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