This guide explains how the Administrative Procedure Act (APA) affects the dozens of Executive Actions we have seen President Trump sign  and what the Supreme Court has to say about Executive Orders and Administrative Law (i.e. laws not passed by Congress).

 

What Is an Executive Order?

An Executive Order is an official directive or command issued by the President of the United States to executive branch agencies. It instructs federal agencies on how to interpret or carry out laws under the President’s instructions. Executive Orders do not create new laws by themselves; instead, they guide how existing laws or authorities are used.

 

Source of Authority

• Constitutional Power: The Constitution designates the President as head of the executive branch, with a duty to “take care that the laws be faithfully executed.” This role underpins the authority to manage federal agencies.
• Statutory Power: In some cases, Congress passes laws explicitly giving the President or agencies discretion over certain areas. An Executive Order may rely on those statutes to direct agency action.

 

How Executive Orders Work

1. Issuance: The President signs an Executive Order, and the White House releases it publicly.
2. Agency Action: Federal agencies then follow the instructions to shape policy or enforce laws. For instance, an order might require stricter air-pollution standards, prompting the Environmental Protection Agency to issue new rules.
3. Limits: Executive Orders cannot override existing laws or exceed the President’s constitutional/statutory powers. Courts may block them if they cross legal boundaries or are unconstitutional. 

 

Effects on Government and the Public

• Policy Influence: Executive Orders can quickly shift federal priorities and enforcement strategies—on immigration, energy, environment, and more.
• Legal Challenges: Critics sometimes sue, claiming an order violates the Constitution or other laws. Judges may strike down or limit the order if it is found unlawful.

 

Interaction With Other Laws

• Administrative Procedure Act (APA): If the order leads agencies to develop new regulations or alter existing ones, those agencies must still follow the APA’s “notice and comment” procedures. An Executive Order cannot bypass these steps.
• Budget/Spending Restrictions: The President cannot use an Executive Order to spend money that Congress has not allocated or to ignore spending decisions set by Congress.

 

Summary

An Executive Order is an instruction manual from the President to federal agencies explaining how to implement and enforce existing laws. It’s a central tool for Presidents to shape national policy—yet its impact has limits:

• An Executive Order must adhere to laws set by Congress and to the Constitution’s boundaries on presidential authority.
• Agencies cannot skip the legal steps (like APA rulemaking) required to make lasting regulatory changes.
• Courts will step in if an Executive Order conflicts with the Constitution or statutes.

In short, Executive Orders are powerful but not all-powerful, needing both legal and constitutional support to stand.

 

 

The Administrative Procedure Act (APA): How Federal Agencies Make Rules

 

The APA, passed in 1946, is a law that instructs federal agencies how to create or change regulations—also known as “rules.” It requires agencies to:

• provide notice to the public of rule making,
• collect public input (written comments, hearings),
• respond and justify their final decisions on rules, and
• show their rules are not arbitrary, capricious or contrary to laws passed by congress.

 

How the APA Interacts With Executive Orders

 

When a President issues an Executive Order, it usually tells executive agencies what policies to follow or how to use their legal powers. However, even with this directive from President Trump, agencies still must comply with the APA before adopting or revising regulations. They cannot ignore the required “notice and comment” steps or skip a proper explanation.

In short, if President Trump instructs, for example, the Environmental Protection Agency or the Department of Homeland Security to change rules, those agencies must go through the APA process to make those changes legally binding. Otherwise, courts will throw out the rules as “Arbitrary and Capricious” (meaning, created without proper consideration). 

 

The Impact of the Loper Bright v. Raimondo Decision (Overturning Chevron Deference)

 

For nearly four decades, courts used Chevron U.S.A. v. Natural Resources Defense Council (1984) to let agencies interpret unclear laws if their interpretation was “reasonable.” This gave agencies like the EPA or DHS broad leeway when the statute they relied on was ambiguous.

The Supreme Court’s 2024 case Loper Bright v. Raimondo ended Chevron deference. Now courts do not automatically accept agencies’ interpretations of ambiguous laws; instead, judges decide what the law means. Agencies can offer their views, but courts must do an independent check.

In practical effect, if President Trump’s administration issues regulations based on uncertain or vague laws or tries to exploit these laws, federal courts will interpret those laws themselves, rather than deferring to the agency’s view. That can make it harder to defend new rules in court unless they clearly match the law’s text.

 

Consequences for the Current Trump Administration

 

President Trump has been active in 2025, releasing multiple Executive Orders on topics such as trans people, environmental policy, health care, immigration, and more. Given the new legal landscape:

1. All Agencies Must Follow the APA
   • Agencies cannot skip notice-and-comment requirements, and they must justify any new or revised rules in a rational manner.
   • Executive Orders alone do not eliminate these legal steps.
   • You can and should comment on public “rules” courts consider these comments when the rules are challenged.  
2. Closer Judicial Review
   • Courts no longer use Chevron deference. Under Loper Bright v. Raimondo, judges interpret any murky statute on their own. This can be helpful for civil rights cases. 
   • This could mean more legal challenges if critics claim the agency is stretching or misreading the law.
   • In the past, the courts would simply send the case back to the agency to “review”.
3. Need for Clear Statutory Authority
   • Without the fallback of deference, agencies have to rely on very clear legal mandates.
   • If the law itself is not explicit, a court might reject an agency action that previously might have been upheld under Chevron.
   • This can help us to prevent the worst harms that the Trump Administration might try to undertake. 

 

Other Supreme Court Cases Shaping Agency Action

In addition to the Loper Bright v. Raimondo ruling, other major decisions are influencing how agencies must operate:

• West Virginia v. EPA (2022): The “major questions doctrine” says that for large-scale or highly significant policies, an agency must have a very clear congressional statement to act.
• DHS v. Regents of the Univ. of Cal. (2020): The Court blocked a Trump Administration action to end DACA due to APA procedural failings.
• Department of Commerce v. New York (2019): The Court struck down adding a citizenship question to the census, finding the agency’s rationale was “contrived” under the APA.

These cases warn agencies that courts now closely examine not just the correctness of an agency’s reading of a statute but also whether they followed proper process and gave honest, well-supported reasons for their decisions.

 

What does this all mean for Trans People? 

 

In his first few weeks in office we have seen President Trump issue executive orders attempting to define sex as only male and female for federal government purposes; banning gender affirming care for young people and some adults; and reinstating his transgender military ban. Each of these Executive Orders are a set of instructions to federal agencies like the Department of Defense, the State Department, and Health and Human Services to create new rules.  These new rules must conform to the US Constitution, any laws passed by Congress on the same subject, and the Administrative Procedures Act. 

The last Trump Administration would frequently skip the public comment and consideration period required under the Administrative Procedures Act, making their rules automatically “arbitrary and capricious” and thrown out by the courts.  Just as the courts threw out the repeal of DACA, a citizenship question on the Census, and the so-called Muslim Ban. 

Legal organizations and states will be monitoring very closely how federal agencies act and what steps they take to implement new rules. If they begin to exercise Executive Orders without following the Administrative Procedures Act, courts are likely to strike down the rules and Executive Order.