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Regulatory Dark Matter: Presidential Executive Orders and Memoranda

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Regulatory Dark Matter: Presidential Executive Orders and Memoranda

Ten Thousand Commandments 2019 - Chapter 6

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Executive orders, presidential memoranda, and other executive actions make up a large component of executive “lawmaking.” They merit heightened attention from lawmakers, since they can have binding effect.[i]

Executive orders ostensibly deal with the internal workings and operations of the federal government. Subsequent presidents have traditionally been presumed able to overturn them. Their use is not new, dating back to President George Washington’s administration.[ii] However, their reporting has not been consistent until recent decades. 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 (see Figure 15). Trump issued 63 orders in 2017, far outstripping anyone since Bush’s 2001 high-water mark, and 35 in 2018.[iii] Among these 35 executive orders and 30 memoranda of the past year are some intended to reduce burdens (see Box 1).

Memoranda are trickier to tally. They may or may not be published, depending on the administration’s own determination of “general applicability and legal effect.”[i] George W. Bush published 131 memoranda during his entire presidency, whereas Barack Obama issued 257 that were published in the Federal Register. Bill Clinton published just 14 during his presidency.[ii] Donald Trump issued 38 memoranda in 2017, the highest level since 2010, and 30 in 2018.

The pertinent question as far as regulatory burdens are concerned is what these executive orders and memoranda are used for and what they do. Whether lengthy or brief, orders and memoranda can have significant effects, and 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.[iii] However, four of Obama’s executive orders addressed overregulation and rollbacks.[iv] As with the Federal Register, counts are interesting but do not tell the full story. Obama’s Executive Order 13563 concerning regulatory review and reform sought to roll back regulation.[v] It amounted to a few billion dollars in cuts, which were swamped by other, newly issued rules and negated by costly guidance.

In Trump’s case, a handful of his executive orders and memoranda itemized at the beginning of this report comprise perhaps the most aggressive attempt by the executive branch to streamline regulation. Other key executive orders directed at regulatory restraint were President Clinton’s 1993 Executive Order 12866[vi] and President Ronald Reagan’s Executive Order 12291, which formalized central regulatory review at OMB.[vii] Clinton’s was a step back from the stronger oversight of the Reagan order in that it sought “to reaffirm the primacy of Federal agencies in the regulatory decision-making process.”[viii]

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 Abraham Lincoln and the subsequent Reconstruction period. President Ulysses S. Grant issued 217, then a record. From the 20th century onward, executive orders have numbered over 100 during each presidency and sometimes reached into the thousands. President Franklin D. Roosevelt—the longest-serving president in U.S. history, elected to four terms and having served a full three—issued 3,721 executive orders.[ix] Table 4 provides a look at executive order counts by administration since the nation’s founding through Obama.

Table 4. Executive Orders by Administration

Read Chapter 7: Regulatory Dark Matter: Over 22,000 Public Notices Annually

Read Chapter 5: Thousands of Pages in the Federal Register

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