Chapter 7: The Presidential Dimension of Regulatory Dark Matter: Executive Orders and Memoranda
Executive orders, presidential memoranda, presidential directives, ersatz fact sheets of recent administrations, and other executive proclamations make up a substantial component of what has replaced much actual lawmaking in today’s United States.
Although executive orders and actions ostensibly deal with the internal workings and operations of the federal government, they increasingly can have binding effect and influence private behavior, which is unlawful. Congress should give them more oversight.
Executive orders date back to George Washington’s administration. Since the nation’s founding, presidents have issued 15,611 of them (see Table 4). The reporting and numbering of these documents have not been consistent until recent decades. As for executive orders’ durability, presidents have traditionally been presumed to be able to overturn at will those issued by prior administrations.
Table 4. Executive Orders by Administration
Joe Biden issued 77 executive orders in his first year of 2021, easily the most seen in recent decades, followed by a drop to 29 in 2022 (see Figure 16). Sixteen executive orders issued by 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 for George W. Bush). Trump also issued 63 executive orders in 2017, 35 in 2018, and 47 in 2019, with oft-stated intent to streamline the federal government. Obama’s executive order totals were in line with those of other presidents. By the end of their terms, Obama had issued 276 executive orders, compared with George W. Bush’s final tally of 291 (see Table 4 for all predecessors).
Following are most of Biden’s 29 executive orders from 2022. In instances such as the bipartisan infrastructure law and the CHIPS Act, Congress has handed substantial lawmaking and regulatory powers to the executive branch. These powers will likely surface in future presidential decrees.
- Establishing the President’s Advisory Council on African Diaspora Engagement in the United States, December 19, 2022
- Lowering Prescription Drug Costs for Americans, October 19, 2022
- Enhancing Safeguards for United States Signals Intelligence Activities, October 14, 2022
- Expanding Eligibility for Certain Military Decorations and Awards, October 6, 2022
- Promoting the Arts, the Humanities, and Museum and Library Services, October 5, 2022
- Ensuring Robust Consideration of Evolving National Security Risks by the Committee on Foreign Investment in the United States, September 20, 2022
- Implementation of the Energy and Infrastructure Provisions of the Inflation Reduction Act of 2022, September 16, 2022
- Advancing Biotechnology and Biomanufacturing Innovation for a Sustainable, Safe, and Secure American Bioeconomy, September 15, 2022
- Implementation of the CHIPS Act of 2022, August 30, 2022
- Securing Access to Reproductive and Other Healthcare Services, August 11, 2022
- Bolstering Efforts to Bring Hostages and Wrongfully Detained United States Nationals Home, July 21, 2022
- Establishing an Emergency Board to Investigate Disputes between Certain Railroads Represented by the National Carriers’ Conference Committee of the National Railway Labor Conference and Their Employees Represented by Certain Labor Organizations, July 20, 2022
- Protecting Access to Reproductive Healthcare Services, July 13, 2022
- Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals, June 21, 2022
- Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, May 31, 2022
- Enhancing the National Quantum Initiative Advisory Committee, June 9, 2022
- Strengthening the Nation’s Forests, Communities, and Local Economies, April 27, 2022
- Continuing to Strengthen Americans’ Access to Affordable, Quality Health Coverage, April 8, 2022
- Prohibiting New Investment in and Certain Services to the Russian Federation in Response to Continued Russian Federation Aggression, April 8, 2022
- Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency, March 18, 2022
- Prohibiting Certain Imports, Exports, and New Investment with Respect to Continued Russian Federation Aggression, March 15, 2022
- Ensuring Responsible Development of Digital Assets, March 14, 2022
- Prohibiting Certain Imports and New Investments with Respect to Continued Russian Federation Efforts to Undermine the Sovereignty and Territorial Integrity of Ukraine, March 10, 2022
- Blocking Property of Certain Persons and Prohibiting Certain Transactions with Respect to Continued Russian Efforts to Undermine the Sovereignty and Territorial Integrity of Ukraine, February 23, 2022
- Protecting Certain Property of Da Afghanistan Bank for the Benefit of the People of Afghanistan, February 15, 2022
- Use of Project Labor Agreements for Federal Construction Projects, February 9, 2022
Presidential memoranda and notices 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 own determination of “general applicability and legal effect.” Nor are memoranda always classified or numbered the way executive orders are now, although one does find the categories in addition to “Memorandum.” These include “Determination” (the baby formula emergency decree was a determination), “Notice,” “Proclamation,” “Presidential Order,” and “Other.”
They can be minor declarations celebrating events or people; or noting grave and sweeping needs, such as the February 2022 Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic; or extending mask requirements on planes and public transit, as masking in health care facilities was quietly set aside by the Centers for Disease Control and Prevention. Notable in 2022 have been Biden’s boasts of new executive actions on gun dealers, and background checks, serial numbers, and the like, to address the “epidemic of gun violence.”
In 2022, Biden made promises on student loan forgiveness known to be unconstitutional, unjustified by any emergency, and imposing costs well beyond the $30 billion per year already acknowledged. Congressional authority is needed for debt forgiveness. Raising tuition for future students will add further costs to the rule and may contribute to a decline in college enrollment. Behind the scenes in classic dark-matter fashion, a Department of Education website notice disqualified millions who thought they were covered under debt relief, by which time the Consumer Financial Protection Bureau had already issued guidance to lenders on their loan-forgiveness communications with borrowers.
As Figure 16 shows, according to the FederalRegister.gov online database (which records totals back to 1994), there were 30 memoranda in 2021, with 26 from Biden and 4 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 the highest 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 occurs in transition years, one sees that during the eight calendar years encompassing George W. Bush’s presidency, 129 memoranda were published in the Federal Register, whereas the Obama years saw 255. Clinton published 84 memoranda during his presidency. Following is a sample of Biden’s 46 presidential memoranda of 2022:
- Over 20 “delegations of authority” under the 1961 Foreign Assistance Act (the last on December 28, 2022), a law until recently seen as a Cold War “anachronism”
- Certifications Regarding Disclosure of Information in Certain Records Related to the Assassination of President John F. Kennedy, December 20, 2022
- Promoting Accountability for Conflict-Related Sexual Violence, December 6, 2022
- Uniform Standards for Tribal Consultation, December 5, 2022
- Presidential Waiver of Statutory Requirements Pursuant to Section 303 of the Defense Production Act of 1950, as Amended, October 6, 2022
- Delegation of Authority under Sections 102 and 106 of the CHIPS Act of 2022, August 15, 2022
- Partnership for Global Infrastructure and Investment, June 6, 2022
- Establishment of the White House Task Force to Address Online Harassment and Abuse, June 22, 2022
- Delegation of Authority under the European Energy Security and Diversification Act of 2019, June 14, 2022
- Addressing the Long-Term Effects of COVID-19, April 4, 2022
- Maximizing Assistance to Respond to COVID-19, March 4, 2022
- Maximizing Assistance to Respond to COVID-19,January 3, 2022
The pertinent question regarding federal intervention is what these executive orders and memoranda are used for and what they do, as well as the authority or lack thereof used to justify them. One must also recognize that the Federal Register, apart from the solid cataloging of executive orders, is an incomplete compendium of executive actions.
Orders and memoranda can have significant effects. A smaller number of them may not necessarily mean smaller effects. One finds presidents of both parties promising and following through on unilateral executive actions if Congress fails to act on their agenda and, in Biden’s case, facing pressures to act aggressively even in the wake of Supreme Court decisions at odds with a progressive agenda.
As with the Federal Register rule counts, the tallies of orders and memoranda are noteworthy and necessary to track, but do not tell the full story. In 2014, Obama administration memoranda and directives, which did not appear among the presidential ones embedded in Figure 16, 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 Executive Order 13563 on regulatory review and reform. That deviation did apparently deliver a few billion dollars in cuts that ended up swamped by other rules and guidance. The same may be said, in some respects, for the Trump program.
The foundational executive orders directed at regulatory restraint were Clinton’s 1993 Executive Order 12866 and President Ronald Reagan’s Executive Order 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.” It was dominant until Biden’s “Modernizing Regulatory Review” directive, although still nominally invoked by the administration.
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 and the subsequent Reconstruction period. President Ulysses S. Grant’s 217 set a record.
From the 20th century onward, 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 U.S. history, elected to four terms and serving a full three—issued 3,467 executive orders. Table 4 provides a look at executive order counts by administration since the nation’s founding through Biden’s second year.
In addition to the notices and executive orders that appear in the Federal Register, there are pronouncements on the periphery. As in the Obama years, one sees numerous unclassified and uncounted fact sheets, such as that on “Equity Action Plans.” Others include a Justice Department meat processing directive, new standards for a national electric vehicle charging network, specifications on clean school buses and other infrastructure, an effort under way to expand the number of government agencies tracking and countering private drones, and one titled “The United We Stand Summit: Taking Action to Prevent and Address Hate-Motivated Violence and Foster Unity.”