Judicial Review of Agency Noncompliance with Presidential Administrative Orders and OMB Circular A-4

President Biden’s Executive Order 14,094, Modernizing Regulatory Review, continues the line of presidential directives dating back to the Reagan Administration that centralize the President’s control over administrative agencies’ regulatory processes. Its express purpose is to ensure well-reasoned, high-quality regulations, but it affords no private right of action to enforce its terms.

The Administrative Procedure Act (“APA”) shares a similar goal of achieving reasoned agency decision-making, however, unlike the executive orders, the APA authorizes judicial review and expects courts to set aside agency regulations that are arbitrary and capricious. These two authorities make overlapping demands from agencies, but one eschews judicial review while the other requires it. This creates an issue for courts when plaintiffs bring challenges alleging that an agency’s failure to comply with the executive order requires vacating its final rule. Does the court have jurisdiction to consider the compliance failure?

Courts try to bifurcate the issues and dismiss arguments grounded in the executive order. The issues are so intertwined, however, that this approach fails to account for the reality that the President’s views on what well-reasoned decision-making requires informs our conception of what good governance looks like and cannot be ignored, regardless of whether the executive order creates a private right of action.

This Essay argues that Congress has given the courts an imperative under the APA to consider all the relevant facts when reviewing unelected experts’ policy decisions. This obligation does not depend on whether the President has created a private right of action through executive order—the APA already does so. It is further argued that courts fail to fulfill Congress’s expectations when they put on blinders to the executive orders’ requirements; instead, courts should treat noncompliance with presidential directives as persuasive evidence of arbitrary and capricious agency action.