Elena Chachko (UC Berkeley School of Law), Kathleen Claussen (Georgetown University Law Center), and David T. Zaring (University of Pennsylvania – Legal Studies Department) have posted How Executive Orders Can Fail (Administrative Law Review, forthcoming) on SSRN. Here is the abstract:
Executive orders are one of the President’s most powerful tools, but the legality and impact of these directives largely turn on whether and how agencies implement them. This Article examines that neglected dimension. Focusing on “framework executive orders”—system-wide directives intended to reshape how agencies carry out their statutory missions—the Article tests prevailing theories of presidential administration against qualitative and quantitative evidence. Contrary to conventional accounts that assume robust presidential control, the Article demonstrates that meaningful agency implementation of such directives is far from assured. Our finding is especially important in this moment, as the second Trump Administration has relied heavily on executive orders and proclamations to redirect the trajectory of the administrative state across domains ranging from fiscal governance to foreign affairs. Drawing on interviews, Federal Register materials, and government data in building out a case study, the Article shows that framework orders can fail, unexpectedly, to alter preexisting agency practice. We argue that the success of executive orders depends less on formal presidential authority than on sustained White House engagement, institutional design, and bureaucratic incentives over time. The Article concludes by elaborating what it takes for executive orders to translate presidential priorities into durable bureaucratic change.
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