Presidential Executive Orders and Executive Memoranda
In 2014, President Obama famously pledged to use his “pen and phone” to implement parts of his policy agenda without congressional approval.
Now, President Trump likewise stands accused by some of exceeding legitimate executive authority. Executive orders, presidential memoranda, and other executive actions make up a large component of “pen and phone” lawmaking, which is not well measured and merits heightened attention from lawmakers.
Executive orders ostensibly deal with the internal workings and operations of the federal government. Subsequent presidents can overturn them. Their use is nothing new, and they date back to President George Washington’s administration. Consternation aside, President Obama’s executive order totals were not high compared with those of other presidents. At the end of his term, Obama had issued 276 executive orders, whereas President George W. Bush’s final tally was 291, and that of President Bill Clinton was 364, according to the National Archives’ tally (see Figure 15).
Key: Blue = Executive Orders; Green = Presidential Memoranda
Memoranda may or may not be published, depending on the administration’s own determination of “general applicability and legal effect,” which make presidential memoranda difficult to count. George W. Bush published 131 memoranda over his entire presidency, whereas Barack Obama issued 257 that were published in the Federal Register. Bill Clinton published just 14 during his presidency.
The pertinent question as far as regulatory burdens are concerned is what these executive orders and memoranda are used for and what they do. Executive actions can liberalize and enhance freedom, such as President Abraham Lincoln’s Emancipation Proclamation. Or they can expand government power, such as President Harry Truman’s failed attempt to seize control of America’s steel mills or President Franklin D. Roosevelt’s confiscation of the nation’s gold.
Whether lengthy or brief, orders and memoranda can have significant effects. A smaller number of them does not necessarily mean small effects. In 2014 alone, Obama memoranda created a new financial investment instrument and implemented new positive rights regarding work hours and employment preferences for federal contractors. Yet Obama’s Executive Order 13563 concerning regulatory review and reform was a pledge
to roll back regulation. (It amounted to only a few billion dollars in cuts, which were swamped by other, newly issued rules.) In all, four of Obama’s executive orders directly address overregulation and rollbacks. As with the Federal Register, counts are interesting but do not tell the whole story.
Other key executive orders directly intending regulatory restraint were President Clinton’s 1993 Executive Order 1286662 and President Ronald Reagan’s Executive Order 12291, which formalized central regulatory review at OMB. Clinton’s was a step back from the heavier oversight of the Reagan order in that it sought “to reaffirm the primacy of Federal agencies in the regulatory decision-making process.”
The United States existed for many decades before a president issued more than two dozen executive orders—that was President Franklin Pierce, who served from 1853 to 1857. Orders numbered in the single digits or teens until President Lincoln and the subsequent Reconstruction period. President Ulysses S. Grant’s administration issued 217, then a record. From the 20th century onward, executive orders numbered over 100 during each presidency and sometimes reached into the thousands. President Franklin D. Roosevelt issued 3,721 executive orders. Table 4 provides a look at executive order counts by administration since the nation's founding.
We live in an era in which the government— without actually passing a law—increasingly dictates parameters for various economic sectors, including health care, retirement, education, energy production, finance, land and resource management, funding of science and research, and manufacturing. One prominent recent example is the Internal Revenue Service’s granting of waivers of the Patient Protection and Affordable Care Act’s employer mandate without regard to the statute’s language.
Counting rules and regulations, executive orders, memoranda, and other regulatory guidance gets us only so far. These alternative regulatory actions should receive more scrutiny and oversight, because they have become powerful means of working around the constitutional system of government envisioned by the Framers of the Constitution and many Americans today: legislation made by elected representatives.