President Barack Obama’s final-year aspirations as outlined in an earlier-than-usual State of the Union Address will likely showcase executive action on gun control (watch for the symbolic empty chair), Syrian refugees, closing Guantanamo, global warming and addressing themes like income inequality.
Since the president’s final year is no time to lay out a legislative agenda that Congress would reject, one must instead anticipate more executive actions and regulations to implement the progressive agenda of more federal power and middle-class dependency on the same – in service both to his own legacy and to aiding his potential Democratic party successor.
In Obama we have a president willing push boundaries on social and economic issues when it comes to legislating without Congress, a president who taunts Congress with a “We Can’t Wait” web page.
What we don’t have is a Congress willing to restore the Constitution’s checks and balances.
Washington’s lack of gridlock (of which the Republican grassroots seems to have had its fill this primary season) propels unbounded spending, Obama’s pen and phone and regulation without limit. When 2015 ended, I slapped together my latest “Unconstitutionality Index“: Last year Congress passed 87 laws, but agencies unloaded 3,408 rules and regulations, for a multiple of 39.
Beyond that, executive actions, agency “guidance,” notices and other regulatory dark matter take non-congressional lawmaking to heights still unappreciated by a marginalized Congress.
Ostensibly, executive orders affect just the current administration and internal operations of the federal government, and subsequent presidents can overturn them. Several Republican candidates promise to do just that.
Most E.O.s are not regulatory in nature; but for those that are, the complexity of overturning them grows as Washington administers everything, as what was once private or local or state activity gets absorbed, Borg-like, into D.C.’s federal machinery.
Examples include President Obama’s executive order for a minimum wage for federal contractors and a Non-Retaliation for Disclosure of Compensation Information, which are among E.O.s that will reverberate for private firms that deal with the government — and eventually those that don’t. The same holds for orders on cybersecurity information sharing and sanctions on individuals allegedly engaged in malicious cyber activity, both controversial for potential effects on privacy as well as for not passing through Congress.
In keeping with the nanny state ethic, the president even issued an executive order enabling the federal government, as helicopter parent, to better regulate us with behavioral science.
As of the end of 2015, President Obama had issued 242 executive orders according to the Federal Register office, 29 of them in 2015. The White House press office lists an even greater number that includes some not published in the Federal Register.
Despite being the most mentioned in policy debate, executive orders are not (yet) the fountain from which most big decrees issue, rather, presidential memoranda are where the real action is.
USA Today called presidential memoranda “Executive orders by another name” that are “not numbered” and “not indexed,” Memoranda may or may not be published, depending on a president’s determination of “general applicability and legal effect.” That makes it tricky to count them.
Executive decrees issued in today’s era of activist government have different implications from those issued in a limited government context, that of our abandoned federalist system with power decentralized to states and individuals.
The pertinent question is what executive orders and memoranda are used for and what they do. Actions can expand governmental power, or they can liberalize and enhance freedom. Examples of the latter include Lincoln’s Emancipation Proclamation, and Reagan’s E.O. 12291 on cost-benefit analysis that slashed the numbers of rules and Federal Register pages. A future example could be a “Meataxe” taken to Obama’s unilateral pen and phone executive actions in the event some non-establishment/non-RINO Republican were to assume power.
Some of what transpires today appears without precedent, as even the Washington Post characterized Obama’s unilateral executive action on immigration as one that “flies in the face of congressional intent.”
Obama’s pace for memoranda tops that of the George Bush years. Bush published 131 memos that were published in the Federal Register over his entire presidency, while President Obama issued 219 during his first seven years, with another year to go.
Not all memoranda get published in the Federal Register; additional ones appear on the Obama White House press office page. The nearby chart shows both tallies.
Not all memoranda are likely to have regulatory impact, but Obama’s proclamations have sought such things as a new financial investment instrument and to implement rights regarding work hours and employment preferences.
Note that memoranda are not laws passed by Congress; nor are they formal regulations; they are not even executive orders; they are memos that “hereby direct” the federal hierarchy to expand state power. While often aimed at federal government contractors, they affect private sector planning, and they don’t disappear unless a future president revokes them.
Here are some examples that appeared in the Federal Register:
- Student Aid Bill of Rights to Help Assure Affordable Loan Repayment 03/13/2015
- Establishment of the Cyber Threat Intelligence Integration Center 03/03/2015
- Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems 02/20/2015
- Expanding Federal Support for Predevelopment Activities for Nonfederal Domestic Infrastructure Assets 01/22/2015
- Modernizing Federal Leave Policies for Childbirth, Adoption, and Foster Care To Recruit and Retain Talent and Improve Productivity
- Enhancing Workplace Flexibilities and Work-Life Programs 06/27/2014
- Helping Struggling Federal Student Loan Borrowers Manage Their Debt 06/12/2014
- Advancing Pay Equality Through Compensation Data Collection 04/11/2014
- Updating and Modernizing Overtime Regulations 03/18/2014
- Creating and Expanding Ladders of Opportunity for Boys and Young Men of Color 03/07/2014
- Job-Driven Training for Workers 2/05/2014
- Enhancing Safeguards To Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own 02/05/2014
- Retirement Savings Security 02/04/2014
- Establishing a White House Task Force To Protect Students From Sexual Assault 01/27/2014
- Establishing a Quadrennial Energy Review 01/14/2014
- Cost-benefit analyses exist for just a handful of the 3,000-plus rules issued annually. Interestingly, the number of memos exceeds the numbers of rules with Office of Management and Budget-reviewed cost-benefit analyses.
In other words, while administrations often emphasize the alleged “net benefits” of major rules and assess such for only a handful, those few are rivaled by the number of “mere” memoranda, many of which appear significant.
But even this just scratches the surface when we step back and look at thousands of unilateral decrees, guidance documents and proclamations by federal agencies beyond their thousands of “normal” regulations.
A recent example is the Labor Department’s “Administrative Interpretation” declaring that many independent contractors are henceforth employees; another is the realization that Obama’s immigration order was actually a Department of Homeland Security memorandum. (For detail see my report “Mapping Washington’s Lawlessness: A Preliminary Inventory of ‘Regulatory Dark Matter’.”)
The outsize executive branch and regulatory bureaucracy stand to be major topics of this year’s presidential campaign, more so than a celebratory and aspirational State of the Union Address will imply.
Originally posted at Forbes.