Agencies are bound generally by the Administrative Procedure Act's rulemaking requirements, but Presidents emphatically are not. (1) That dichotomy presents an interesting question: If a President orders an agency to adopt a specific policy in a rulemaking, and if his chosen policy fits within the broader limits of discretion that Congress conferred upon the agency in its substantive statute, then to what extent does the APA still obligate the agency to respond to criticism of the President's chosen policy in the notice-and-comment rulemaking process?
In the D.C. Circuit, at least, the answer is simple: if the President orders an executive agency to take action within the lawful limits of the agency's substantive statute and the agency implements that policy choice through a rulemaking, then the agency is not required to respond to public comments challenging the merits of the President's policy choice. (2)
In this Article, I consider principles and trends that preceded--and, I think, justify--this doctrinal development, rightly understood. 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. (3) 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.
This is a question of more than merely theoretical or scholarly interest. Recent Presidents have proven increasingly willing to use executive orders to drive substantive rulemakings, most recently on issues such as financial policy, (4) energy policy, (5) infrastructure development, (6) and land-use policy. (7) If Presidents continue that trend by including more specific policy directives in executive orders, then substantial policy questions increasingly will be implemented by agencies at the President's direction--thus reducing, at least in part, the range of issues subjected to the ordinary notice-and-comment process.
Which is to say, executive orders may become a prominent presidential "trump card" in the rulemaking process, a logical extension of decades of increasing presidential responsibility for the modern administrative state.
EXECUTIVE ORDERS AND PRESIDENTIAL POWER
Executive Orders: Ascertained by Substance, Not Form
Although presidential action has been a central feature of American governance from the start (as recounted very briefly in Section II.B, below) and studied at untold length, "executive orders" are a form of presidential directive that lacks a formal legal definition. Neither Congress, nor the President, nor the supreme Court has attempted to clearly define and demarcate them. Even the 1948 executive order expressly focused on the "preparation, presentation, filing, and publication of Executive orders and proclamations" did not attempt to define "executive order." (8)
In the most general sense, an executive order is a presidential directive that binds executive branch officials and sometimes also binds the public with the force of law. (9) As the Supreme Court explained in The Steel Seizure Case, an executive order lawfully binds the public when it "stem[s] either from an act of Congress or from the Constitution itself." (10) More recently, in Dames & Moore v. Regan, the Court suggested that executive orders might even obtain the force of law based on Congress's tacit acquiescence. (11)
Thus, executive orders are best ascertained by their substance, not their form. As a seminal study published by the U.S. House Committee on Government Operations observed in 1957:
Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law. There is no law or even Executive order which attempts to define the terms "Executive order" or "proclamation." In the narrower sense Executive orders and proclamations are written documents denominated as such.... Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly.... Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President's proclamations are not legally binding and are at best hortatory unless based on such grants of authority. (12) The difficulty in drawing bright lines between "executive orders" and other presidential documents owes to the fact that a document's form does not define its substantive effect and vice versa. The Office of Legal Counsel (OLC) explained this in a 2000 opinion: "As this Office has consistently advised, it is our opinion that there is no substantive difference in the legal effectiveness of an executive order and a presidential directive that is [not] styled... as an executive order." (13)
"We are aware of no basis for drawing a distinction as to the legal effectiveness of a presidential action based on the form or caption of the written document through which that action is conveyed," OLC further explained. It added, "[i]t has been our consistent view that it is the substance of a presidential determination or directive that is controlling and not whether the document is styled in a particular manner. This principle plainly extends to the legal effectiveness of a document styled as a 'presidential directive.'" (14)
The federal government's modern approach to publishing and numbering executive orders dates only to 1907, when scattered executive orders issued by previous Presidents were retroactively numbered. The numbering project was nonexhaustive. Indeed, through the nation's first century Presidents often issued executive orders that did not identify themselves as such; thus, when the House committee produced its 1957 study of executive orders, it cited not just clear examples of executive "orders" but also informal notes signed by the President that "might be construed as Executive orders." (15) Even after 1907, executive orders were such a "haphazard operation both as to form and procedure" (16) that Erwin Griswold took to the pages of the Harvard Law Review to complain that executive orders tended to be "printed on a single sheet of paper, fragile and easily lost." (17) "And yet," he added, "these ephemera have the 'force and effect of law.'" (18) A year later, Congress passed the Federal Register Act, providing for the publication of executive orders and rulemakings, (19) and in 1936 President Franklin D. Roosevelt signed Executive Order 7298, which standardized the process for publishing executive orders--but, as usual, did not attempt to define the term "executive order." (20)
Thus, for purposes of this Article, "executive order" refers to presidential orders or directives that are intended to bind executive officers or the public at large with the force of law, in terms of substance rather than form.
Executive Orders as a Means of Administration: Energy in the Executive, from the Start
Alexander Hamilton's argument for "energy in the executive" is well known--but perhaps is still not known well enough. For while Federalist 70's argument for executive power is remembered primarily in terms of foreign policy and national defense, (21) Hamilton took care to stress that "[e]nergy in the Executive is a leading character in the definition of good government" in domestic governance, too:
It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.... A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. (22) In that way, executive orders can be a means toward the Hamiltonian goal of good government, a transmission belt by which the President's energy is conveyed to executive-branch officials administering the laws on the President's behalf and under his general oversight. (23)
This theory was inspired by the young nation's recent experience with government lacking true executive power, (24) by the experience of the pre-Constitution states, (25) and even by some of the conduct of King George III in the prerevolutionary era, (26) and the theory was put into practice from the start by President Washington. In June 1789, just three months into his first term in office, President Washington sent letters to the then-acting Secretaries of War and of the Treasury, and the Postmaster General and the Board of Treasury (who were held over from the prior government pending appointment of officers under the new Constitution), asking them to report back "a full, precise, and distinct general idea of the affairs of the United States." (27)
One New Deal Era study identifies this as the first executive order. (28) That same study identifies the second executive order as Washington's 1789 directive to territorial officials, ordering them to take measures necessary to ascertain the intentions of certain Indian tribes and authorizing them to call up the militia from virginia and...