President Donald Trump signed a sweeping executive order on Tuesday, February 18, 2025, that significantly alters the power dynamics within the executive branch. The order, titled “Ensuring Accountability for All Agencies,” includes a controversial provision that centralizes the authority to interpret laws for the executive branch solely in the hands of the President and the Attorney General.

Specifically, Section 7 of the order states:

“The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties.”

Key aspects of this provision include:

1. The President and Attorney General will provide “authoritative interpretations of law” for the entire executive branch.
2. Their legal opinions are deemed “controlling on all employees in the conduct of their official duties”.
3. Executive branch employees are prohibited from advancing legal interpretations that contradict those of the President or Attorney General, unless explicitly authorized.

The order explicitly targets what the administration views as a lack of accountability within “independent regulatory agencies,” arguing that these bodies have operated with insufficient Presidential oversight, leading to regulations promulgated without proper review.

Key Provisions of the Executive Order:

• OIRA Review: Mandates that all executive departments and agencies, including independent agencies, submit proposed and final “significant regulatory actions” to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President for review before publication in the Federal Register. This expands the power of OIRA, which already reviews regulations from many executive branch agencies.
• Performance Standards: Directs the Director of the Office of Management and Budget (OMB) to establish performance standards and management objectives for independent agency heads and to report periodically to the President on their performance.
• Budgetary Control: Empowers the Director of OMB to review independent regulatory agencies’ obligations for consistency with the President’s policies and priorities. It also allows OMB to adjust these agencies’ apportionments, potentially restricting spending on activities that do not align with the President’s agenda, so long as such restrictions are consistent with law.
• White House Liaison: Requires heads of independent regulatory agencies to establish a “White House Liaison” position within their agencies, a role designed to facilitate coordination with the Executive Office of the President.
• Legal Interpretation: Affirms that the President and the Attorney General’s interpretations of the law are controlling on all employees in the executive branch, preventing employees from advancing interpretations that contradict those of the President or Attorney General unless explicitly authorized.

Potential Implications and Reactions

This Executive Order represents a potentially significant shift in the balance of power between the President and other branches of the government.

The U.S. Constitution does not explicitly grant the President or Attorney General exclusive authority to interpret laws for the executive branch. Instead, it establishes a system of checks and balances among the three branches of government:

1. Article II, Section 1 vests “executive power” in the President.
2. Article II, Section 3 requires the President to “take Care that the Laws be faithfully executed”.
3. The executive power primarily consists of enforcing laws and appointing officials to carry out this duty.
4. Article III grants the judicial branch the power to interpret laws and determine their constitutionality.

The Constitution’s framers designed this separation of powers to prevent any single branch from becoming too powerful. While the President has significant authority in executing laws and conducting foreign affairs, the Constitution does not explicitly grant the power to be the sole interpreter of laws for the executive branch.

Making Laws:

The legislative branch, specifically Congress, is responsible for making laws. Article I, Section 1 of the Constitution states, “All Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”. The process of lawmaking involves both houses of Congress drafting, debating, and voting on bills before they are sent to the President for approval.

Interpreting Laws:

The judicial branch, particularly the Supreme Court, is primarily responsible for interpreting laws. The Supreme Court is considered “the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States”. However, it’s important to note that there is ongoing debate about the extent of this power, with some arguing that other branches and even citizens should have a role in constitutional interpretation.

The Supreme Court has recognized that the President has certain implied authorities, including supervising executive officials and recognizing foreign governments. However, the Court has also stated that the Constitution “refutes the idea that the President was intended to be a lawmaker”.

In cases of conflict between presidential and congressional powers, courts have used frameworks like Justice Jackson’s three-part test from Youngstown to determine the extent of presidential authority.

Justice Jackson’s three-part test from Youngstown, also known as the “tripartite framework,” is a method for evaluating the extent of presidential power in relation to Congress. This framework, introduced in Justice Robert Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952), outlines three categories of presidential action: 

1. Maximum Power: When the President acts with express or implied authorization from Congress, his authority is at its strongest. In this category, the President’s actions are supported by both his inherent powers and those delegated by Congress.
2. Zone of Twilight: When Congress has neither granted nor denied authority to the President, there exists a “twilight zone” where the distribution of powers between the executive and legislative branches is uncertain. In this category, presidential power can depend on the context, including congressional acquiescence or inaction.
3. Lowest Ebb: When the President acts in contradiction to the express or implied will of Congress, his power is at its weakest. In this category, the President relies solely on his own constitutional powers, which must be carefully scrutinized to avoid upsetting the balance of power within the federal government.

This framework has become a cornerstone for assessing executive power in subsequent Supreme Court cases and continues to be used when evaluating assertions of presidential authority.