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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 2020 - 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, or appear to have, binding effect.436

Executive orders ostensibly deal with the internal workings and operations of the federal government, and presidents have traditionally been presumed able to overturn those issued by their predecessors. Their use is not new, dating back to President George Washington’s administration.437 However, this reporting has not been consistent until recent decades. President Obama’s executive order totals, “pen and phone” notwithstanding, 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 Table 4 and Figure 15). Trump issued 63 orders in 2017 (far outstripping anything since Bush’s 2001 high water mark), 35 in 2018, and 47 in 2019.438

Memoranda are trickier to tally. They may  or may not be published, depending on each administration’s own determination of “general applicability and legal effect.”439 George W. Bush published 131 memoranda during his entire presidency, whereas Barack Obama issued 257 that were published in the Federal Register (Figure 15). Bill Clinton published just 14 during his presidency.440 Donald Trump issued 38 memoranda in 2017, the highest level since 2010, and 30 in 2018. Among the 47 executive orders and 26 memoranda of the past year under Trump are some intended to reduce burdens (see Box 1); but some such proposals are regulatory.

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.441 On the other hand, four of Obama’s executive orders addressed overregulation and rollbacks.442 Obama’s Executive Order 13563 concerning regulatory review and reform, for example, sought to roll back regulation.443 It amounted to a few billion dollars in cuts, which were swamped by other, newly issued rules and negated by costly guidance. As with the Federal Register, counts are interesting but do not tell the full story.

Other key executive orders directed at regulatory restraint were President Clinton’s 1993 Executive Order 12866444 and President Ronald Reagan’s Executive Order 12291, which formalized central regulatory review at OMB.445 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 decisionmaking process.”446 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.

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.447 Table 5 provides a look at executive order counts by administration since the nation’s founding through the Obama presidency.448

Table 5. Executive Orders by Administration

 

 

Sequence Number

Total Number of Executive Orders

Ending

Beginning

George Washington

n/a

n/a

8

John Adams

n/a

n/a

1

Thomas Jefferson

n/a

n/a

4

James Madison

n/a

n/a

1

James Monroe

n/a

n/a

1

John Quincy Adams

n/a

n/a

3

Andrew Jackson

n/a

n/a

12

Martin van Buren

n/a

n/a

10

William Henry Harrison

n/a

n/a

0

 

 

Sequence Number

Total Number of Executive Orders

Ending

Beginning

John Tyler

n/a

n/a

17

James K. Polk

n/a

n/a

18

Zachary Taylor

n/a

n/a

5

Millard Fillmore

n/a

n/a

12

Franklin Pierce

n/a

n/a

35

James Buchanan

n/a

n/a

16

Abraham Lincoln

n/a

n/a

48

Andrew Johnson

n/a

n/a

79

Ulysses S. Grant

n/a

n/a

217

Rutherford B. Hayes

n/a

n/a

92

James Garfield

n/a

n/a

6

Chester Arthur

n/a

n/a

96

Grover Cleveland I

n/a

n/a

113

Benjamin Harrison

n/a

n/a

143

Grover Cleveland II

n/a

n/a

140

William McKinley

n/a

n/a

185

Theodore Roosevelt

n/a

n/a

1,081

William Howard Taft

n/a

n/a

724

Woodrow Wilson

n/a

n/a

1,803

Warren G. Harding

n/a

n/a

522

Calvin Coolidge

n/a

n/a

1,203

Herbert Hoover

6,070

5,075

996

Franklin D. Roosevelt

9,537

6,071

3,467

Harry S.Truman

10,431

9,538

894

Dwight D. Eisenhower

10,913

10,432

482

John F. Kennedy

11,127

10,914

214

Lyndon B. Johnson

11,451

11,128

324

Richard Nixon

11,797

11,452

346

Gerald R. Ford

11,966

11,798

169

Jimmy Carter

12,286

11,967

320

Ronald Reagan

12,667

12,287

381

George H.W. Bush

12,833

12,668

166

William J. Clinton

13,197

12,834

364

George W. Bush

13,488

13,198

291

Barack Obama

13,764

13,489

276

Donald Trump

13,802

13,490

138

Total Number of Executive Orders

15,691

Source:W. Crews’s tabulations; Executive Orders Disposition Tables Index, Office of the Federal Register, National Archives, http://www.archives.gov/federal-register/executive-orders/disposition.html; “Executive Orders,” The American Presidency Project, ed. John T.Woolley and Gerhard Peters (Santa Barbara, CA: 1999–2014), http://www.presidency.ucsb.edu/data/orders.php. Executive orders for President Trump are as of March 26, 2020.

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

Read Chapter 5: Tens of Thousands of Pages in the Federal Register

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