Regulatory Dark Matter: Presidential Executive Orders and Memoranda

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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 They may  or may not be published, depending on each administration’s own determination of “general applicability and legal effect.”439 George W. Bush published 131 memoranda during his entire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.

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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