An Update on Biden Administration Executive Orders and Presidential Memoranda

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Executive orders, presidential memoranda, “Fact Sheets,” and other executive proclamations make up a substantial component of what passes for lawmaking in the United States today.

While executive orders and actions ostensibly deal with the internal workings and operations of the federal government, they merit heightened attention from the legislative branch, since they increasingly can have, or appear to have, binding effect and influence private behavior.

The use of executive orders is certainly not new, and dates back to George Washington’s administration. Since the nation’s founding, presidents have issued more than 15,611 of them (see Table: Executive Orders by Administration in the 2022 Ten Thousand Commandments).However, the reporting and numbering of these documents has not been consistent until recent decades (as was the case with notice-and-comment rules and regulations before 1970, and as remains the case with department- and agency-level guidance documents and policy statements). As for executive orders’ durability, presidents have traditionally been presumed able to overturn those issued by prior administrations at will, but that capability is less clear today.

Joe Biden issued 77 executive orders in his first year of 2021, the most seen in recent decades, followed by a drop to 29 in 2022 (see the chart below). Sixteen executive orders issued by Donald Trump in the closing weeks of his term in January 2021 brought the total for that year to 93. Trump had issued 67 executive orders in 2020, a level not seen since 2001 (but which, as a transition year, included 14 Clinton orders and 53 Bush ones). Trump also issued 63 executive orders in 2017, 35 in 2018, and 47 in 2019, with frequently stated intern to streamline the federal government. Interestingly, Barack Obama’s executive order totals—as distinct from “pen-and-phone” memoranda and directives from the departments and agencies he led—were not unusual in number compared with those of other presidents. By the end of their terms, Obama had issued 276 executive orders, compared with President George W. Bush’s final tally of 291.

Following is a sample of Biden’s 29 executive orders from 2022 (The reader is referred to Box 1 in the 2022 Ten Thousand Commandments for Biden’s foundational “whole-of-government” executive directives). In instances such as the bipartisan CHIPS Act, Congress has handed substantial lawmaking and regulatory powers to the executive branch that we see emerge here.

Presidential Memoranda are trickier to tally than executive orders. They may or may not be published in the Federal Register or other readily accessible sources, depending on each administration’s determination of “general applicability and legal effect.” Nor are memoranda classified in any particular way or numbered the way executive orders are now.

As the chart above shows (according to the online database, which records totals back to 1994) there were 30 memoranda in 2021: 26 from Biden and four from Trump. There were 46 memoranda from Biden in 2022. Apart from Trump’s higher final count of 49 that pressed a deregulatory agenda, 2022 marks thehighest single-year count to appear in the Federal Register database (2010’s 42 comes in second). Trump issued 137 memoranda during his term.

Recognizing that overlap that occurs in transition years, during the eight calendar years encompassing President George W. Bush’s presidency, 129 memoranda were published in the Federal Register, whereas the Barack Obama years saw 255. Bill Clinton published 84 during his presidency.Following is a sample of Biden’s 46 Presidential Memoranda of 2022. 

The pertinent questions are what these executive orders and memoranda are used for, what they do, and the authority or lack thereof for them.

Whether lengthy or brief, orders and memoranda can have significant effects, and, like rules, a smaller number of them may not necessarily translate into small effects. We find presidents of both parties promising and following through on unilateral executive actions if Congress fails to act on their agenda.

The Federal Register, apart from the solid cataloging of executive orders, is by no means a complete compendium of executive actions. As with the Federal Register rule counts and laws themselves, the tallies of orders and memoranda are necessary to track but they do not tell the full story.

In 2014, Obama administration departmental and administration memoranda (which did not appear among the presidential ones in the chart above) created a new financial investment instrument, implemented new positive rights regarding work hours, and applied employment preferences for federal contractors. In contrast, four of Obama’s executive orders addressed overregulation and rollbacks, such as Obama’s E.O. 13563 on regulatory review and reform. That deviation did apparently deliver a few billion dollars in cuts that ended up being swamped by other rules and guidance, of which the same in some respects may be said for the Trump program (see the “Swamp Things” section in the 2021 Ten Thousand Commandments).  

While not equivalent in fervor to Trump’s deregulatory agenda, the foundational executive orders  directed at regulatory restraint were President Bill Clinton’s 1993 E.O. 12866 and President Ronald Reagan’s E.O. 12291, which formalized central regulatory review at OMB. Clinton’s was a pullback 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,” and it was dominant until Biden’s “Modernizing Regulatory Review” directive (itself a memorandum rather than executive order), although the administration still nominally invokes E.O. 12866.  

The United States existed for several decades before any 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’s federal consolidations that brought to fruition decades of Whig party ambitions and the subsequent Reconstruction period, wherein President Ulysses S. Grant’s 217 set a record. Since the 20th century, executive orders have numbered over 100 during every presidency and have sometimes soared into the thousands. President Franklin D. Roosevelt, the longest-serving president in history, issued 3,721 executive orders.

In addition to the notices and executive orders that appear in the Federal Register, there are pronouncements on the periphery often sticking a federal nose into private and state and local business. As in the Obama years, we see numerous unclassified and uncounted “Fact Sheets” now, such as one accompanying a Justice Department meat-processing supply chain directive and another on “clean school buses” and other infrastructure.

An important job for the 118th Congress, apart from getting its own hyper-spending house in order, is to get a firm grasp on the scope of regulatory and sub-regulatory decrees from the executive branch.