In their Spring 2020 article “Regulatory Agencies Get Guidance on ‘Guidance,’ ” John Cohrssen and Henry Miller discuss two Trump administration executive orders (EOs) intended to prevent the imposition of new requirements by agency “guidance” documents. The authors rightly mention reasons for skepticism that the EOs will solve the problem.

I would add another reason: So long as courts defer to merely “reasonable” agency interpretations under Chevron (as to statutes) and Auer (as to regulations), the EOs will not solve the problem. Their chief effect will be to drive interpretations underground. Instead of jumping through the EOs’ hoops, agencies will bring prosecutions based on interpretations that first appear in court briefs. And because EOs are not enforceable in court, judges will continue to defer under Chevron and Auer.

The EOs also lack teeth. For example, one bars agencies from treating a violation of a standard of conduct “announced solely in a guidance document as itself a violation of applicable statutes or regulations.” But no agency will ever think that its guidance document violates that prohibition. All will indulge themselves in the thought that the announced standard of conduct was always to be found somewhere in the statute or regulation being interpreted. That is, after all, what agencies have been doing all along. The source of the problem is judicial deference.

The Trump administration lost an opportunity to fix the problem at its source during the recent Kisor litigation in which the Supreme Court considered and by one vote rejected an argument that Auer should be overruled. The solicitor general should instead have been instructed to acquiesce in the argument that Auer (and implicitly Chevron) should be overruled. That might have turned the tide.