“And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.” — President Obama on 1/14/2014, continuing his “pen and phone” comments about advancing his economic agenda as he convened his first Cabinet meeting of the year
A few weeks ago, I defined and explained the differences between “executive authority” and “executive privilege”, particularly in regards to U.S. government. I promised to also address three more, similar and related terms — “executive action”, “executive order”, “executive memorandum” — in hopes of clarifying their differences and how they may (not) be used by the President to further his agenda. I’ll do that now, and I’ll even throw in a fourth term — the “presidential proclamation” — for good measure.
“Executive action” is actually a somewhat vague and broad term, referring to just about any informal proposal or move that the President expresses his desire to make, usually calling on Congress or his administration to do something. However, even when the President lays out some “executive actions”, they are simply his (or her) personal wishlist of things he wants to accomplish — i.e., items for his desired agenda. None of the “actions” has any legal weight behind it until either an executive order, memo, or proclamation is issued to implement it. These executive instruments are the ones we need to be wary of. But, according to political writer Tom Murse, “Those that do actually set policy can be invalidated by the courts or undone by legislation passed by Congress.” I might also add that sometimes the term “presidential action” is used instead. At whitehouse.gov, “Presidential Actions” is used as an umbrella term to include executive orders, presidential [aka executive] memoranda, and proclamations. Apparently, it does not list the unimplemented “actions”.
Given the way the terms “executive action” (EA) and “executive order” (EO) are sometimes used, one might think they are interchangeable. Even the professional media have been known to mislabel one for the other on occasion. For example, when Obama issued 23 executive actions to curb gun violence back in Jan. 2013, some were touting them as “executive orders” (which gives the impression of accomplishing more than they are) or at least assuming they had the same legal force. But, they don’t. So, while conservatives and others were justified in objecting to much of what Obama wanted to do re the gun issue, those like Sen. Marco Rubio (R-FL) were wrong (this time) when they accused the President of “abusing his power by imposing his policies via executive fiat.” (One might say Rubio jumped the gun on that one.) On the contrary, Obama was perfectly within his rights to express his desire to take “executive action”.
What about executive orders, then? Political writer Robert Longley puts it this way:
“A presidential executive order (EO) is a directive issued to federal agencies, department heads, or other federal employees by the President of the United States under his statutory or constitutional powers. In many ways, presidential executive orders are similar to written orders, or instructions issued by the president of a corporation to its department heads or directors. Thirty days after being published in the Federal Register, executive orders take effect. While they do bypass the U.S. Congress and the standard legislative law making process, no part of an executive order may direct the agencies to conduct illegal or unconstitutional activities.”
It should also be noted (as Murse does) that executive orders can be reversed by the courts, and Congress can overturn one by passing legislation in conflict with the EO. Alternatively, as always Congress may use its “power of the purse” to refuse to fund, in part or as a whole, the execution of policy measures contained within an executive order.
The first U.S. President to issue an “executive order” was, of course, George Washington in 1789, though it wasn’t called that. Executive orders are not explicitly mentioned in the U.S. Constitution, but the courts have determined that such a thing is justified by the requirement (Article II, Section 3, Clause 5) that the president “take Care that the Laws be faithfully executed”. For many decades, executive orders had no official form or substance and went largely unannounced and undocumented. To restate what Longley said, they are typically issued to direct or facilitate 1) the operational management of the Executive Branch; 2) the operational management of federal agencies or officials; or, 3) the execution of statutory or constitutional, presidential responsibilities.
Some notable examples include FDR’s Executive Order 6581, which created the Export-Import Bank of the United States; Truman’s Executive Order 9981, which ordered the integration of the armed forces shortly after World War II. Clinton’s Executive Order 13155 would have required federal benefits and services to be provided in foreign languages, but it was overturned by the Supreme Court. The Heritage Foundation, in a paper by Todd F. Gaziano (Director, Center for Legal & Judicial Studies), has accused presidents of abusing executive orders, using them to bypass Congress to make laws and to redirect existing laws from their original mandates.
While the abovementioned 23 executive actions did not carry much weight, the 3 presidential memoranda issued at the same time did. What is an executive/ presidential memo[randum]? According to New York Magazine, “executive memo” is just a less “controversial and politically charged” term for an executive order. But, technically it is a different type of “administrative order”, issued to manage and govern the actions, practices, and policies of the Executive Branch’s various departments and agencies. Though an executive memo is generally considered less “prestigious” than an executive order, they are both vaguely defined and often either one can be used to do the same thing. Whereas executive orders are numbered, memoranda are not numbered, not indexed and, until recently, difficult to quantify.
According to the Congressional Research Service Report for Congress No. 95-722 A,
“They differ in that executive orders must be published in the Federal Register whereas presidential memoranda are similarly published only if the President determines that they have “general applicability and legal effect.” [Note: That is a very important difference.] If issued under a valid claim of authority and published, executive orders and presidential memoranda have the force and effect of law and courts are required to take judicial notice of their existence…. One may say that the difference between executive orders and presidential memoranda may be, similar to executive orders and proclamations, one more of form than of substance…. [I]t is important to examine the legal basis for each executive order and presidential memoranda issued and the manner in which the President has used these instruments.”
The presidential memorandum comes in three flavors: presidential finding/determination, memorandum of disapproval, and hortatory memorandum. The first is a document issued by the White House stating a determination resulting in an official policy or position of the Executive Branch. It must be required by a statute and issued before certain actions can be taken. (E.g., President Clinton’s Presidential Determination 95-45, exempting the U.S. Air Force’s facility in the vicinity of Groom Lake, NV (aka “Area 51”) from environmental disclosure laws.) The second type is essentially a public veto statement, in which the President explains that he is withholding his approval for a particular bill/act/resolution for stated reason(s). The hortatory memorandum is a broad policy statement issued to direct (or “encourage”?) an executive agency to take certain (types of) actions. (More on these memos below.)
As for presidential proclamations, I’m going to cheat a bit and cite the following from Wikipedia (which, in turn, cites an authority):
“According to political science professor Phillip J. Cooper, a presidential proclamation “states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized)”. Presidents define situations or conditions on situations that become legal or economic truth. These orders carry the same force of law as executive orders -— the difference between the two is that executive orders are aimed at those inside government while proclamations are aimed at those outside government.
The administrative weight of these proclamations is upheld because they are often specifically authorized by congressional statute, making them “delegated unilateral powers”. Presidential proclamations are often dismissed as a practical presidential tool for policy making because of the perception of proclamations as largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.”
Or, more succinctly, as per the San Diego State University on-line library:
“Proclamations (Proc.) are issued for ceremonial purposes (Proc. 7211 Parent’s Day) or as broad policy statements (Proc. 4865 High Seas Interdiction of Illegal Aliens).”
In my research, Lincoln’s Emancipation Proclamation, which ostensibly freed the American slaves, was referred to as an executive order. However, given its name and the fact that it was a broad policy statement not limited to those inside government, it does indeed appear to be better classified as a presidential or executive proclamation.
So, you may be asking, where is the threat from the Obama administration? Some have pointed to the number of executive orders issued, but liberals — including Sen. Harry Reid (D-NV) and the President himself — have countered that he has actually issued fewer executive orders than any president in the past century. And, as of Dec. 2014, at least, they are correct. But, that doesn’t tell the whole story. Obama has issued more presidential memos “than any other president in history -— using it to take unilateral action even as he has signed fewer executive orders.” The report at usatoday.com continues…
“When these two forms of directives are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman battled the “Do Nothing Congress” almost seven decades ago, according to a USA TODAY review of presidential documents.
Obama has issued executive orders to give federal employees the day after Christmas off, to impose economic sanctions and to determine how national secrets are classified. He’s used presidential memoranda to make policy on gun control, immigration and labor regulations… [and] to declare Bristol Bay, Alaska, off-limits to oil and gas exploration.”
Clyde Wayne Crews Jr. of the Competitive Enterprise Institute, observes that after laws and “normal” regulations, presidential memoranda now have the most regulatory impact.
But, even those numbers are insufficient. Think-tanks like the Brookings Institution and the Mercatus Center have pointed out that some executive orders (and proclamations) have much more impact on policy than others. So, Mercatus decided in 2014 to analyze the content, not just the number, of executive orders and proclamations. (I wish they had been able to include presidential memoranda in their study. According to USA Today, “About half of the memoranda published on the White House website are deemed so inconsequential that they’re not counted as memoranda in the Federal Register.”)
“[W]e have used RegData, a database producing statistics based on the Code of Federal Regulations, to examine some of the content of these executive orders and proclamations for the past six presidencies, through the end of Obama’s first term. In particular, we examine the usage of restrictions —- words that create binding, legal obligations, such as “shall” and “must.” Although the current administration has issued fewer executive orders than other modern administrations, the figures below show that its total usage of restrictions in executive orders and proclamations exceeds that of any of the past six administrations, with the exception of Clinton’s first term….
Executive orders and proclamations do not have to contain restrictions…. Executive orders can be used to provide information or suggestions, or they can be used to create constraints on actions sets in a way that is similar to regulation. Restrictions create binding, legal constraints, whereas suggestions may not….
Simply counting executive orders, pages, or words can produce misleading statistics. In legal language, at least, the frequency with which restrictions occur can serve as a proxy for measuring the overall restrictiveness of text. Content matters.”
(Check out the Mercatus report at the link to see more charts and further analysis, revealing additional trends. Also, the USA Today report is very eye-opening.)
These are not the only questionable methods the current administration uses to accomplish its policy goals, particularly in the face of pushback from a Republican majority in Congress. But, the somewhat deceptive use of presidential memoranda and the excessively restrictive nature of executive orders and proclamations — all of which carry legal force — reveals Obama’s always pushing the limits of his authority, even to the point of executive overreach.
As Crews says, Obama’s “imperious” use of pen-and-phone tactics are increasingly threatening, especially given the administration’s lack of transparency and accountability. It’s also easier to do, apparently, what with the increased intrusion of the federal government into the private sector. Crews also points out that, with the issuance of 12 memos over the first half of 2014, Obama was able to: “create a dubious new financial instrument, implement new positive rights regarding work hours and employment preferences, seem to nod toward California-style written consent before sex, blur energy and infrastructure in a manner aimed at extending government control and more.” All without an act of Congress.
President Obama says that, as long as Congress keeps obstructing his agenda, “I’ll keep taking actions on my own.” I believe him, and now we have a little better understanding of what that involves. If you aren’t angry or, at the very least, concerned about this, I hope your eyes are opened soon.