Executive directives — and misdirection

August 5
Does an executive order by any other name smell as sweet? (Photo: Reuters/Jason Reed)
Does an executive order by any other name smell as sweet? (Photo: Reuters/Jason Reed)

There are plenty of reasons for the House not to sue the President (see here, here, here, and here). Not on the list, though: that President Obama has barely used his executive powers.

This claim was made most recently by the White House itself, when senior adviser Dan Pfeiffer spoke to ABC’s George Stephanopoulos on Sunday’s “This Week.” The threat of impeachment is credible, Pfeiffer said, since the GOP is so crazed that “the House [took] an unprecedented step to sue the President of the United States … even though he is issuing executive orders at the lowest rate in 100 years.”  Or as Sally Kohn put it in a CNN op-ed, after listing executive order totals for Obama, TR, Eisenhower, Reagan, and Bush, “House Republicans are using taxpayer dollars to fund a lawsuit against a President who has literally done not only what every president before him has done but has done it less often…”

To be pedantic (I think I’m supposed to say first that I hate to be pedantic, but I’m a professor, and that would be a lie), this is both true and hugely misleading.  It is true that President Obama has issued fewer executive orders both in absolute terms, and on an order-per-year basis, than most of his recent or even recent-ish predecessors. It’s also true that executive orders can matter greatly, as with Obama’s expansion of protections for the employees of federal contractors.

And yet to equate executive orders (a formal type of presidential directive) with executive powers, as the White House and its allies seek to do, is to misdirect — to hope that the hand will be quicker than the eye. As Philip Bump has put it, the fuss is about executive actions more broadly. While Obama issued only 20 executive orders in 2013 (the lowest single-year total in more than a century), that same year he issued 41 presidential memoranda to the heads of departments and agencies, along with nine additional presidential “determinations” designed to serve as the basis for bureaucratic behavior.

And there are lots of other avenues for that. We could include regulatory action, signing statements, legal interpretations, and administrative orders technically issued by department heads but at the behest of the White House.  (We could also include unpublished memoranda, and classified orders, and military orders, and the Presidential Policy Guidance and Presidential Policy Directive documents produced that year through the National Security Council advising process.)

Indeed, consider a few of the greatest hits touted by those who feel Obama has abused his executive authority:

1. The actual topic of the lawsuit, implementation of the Affordable Care Act. Some of the delays in question were achieved by (as per Assistant Secretary Mark Mazur’s 2013 letter) the “exercise of the Treasury Department’s longstanding administrative authority to grant transition relief when implementing new legislation.” Others were rules changes announced by an administrative bulletin issued by the Centers for Medicaid and Medicare Services.

2. Waivers to the provisions of the No Child Left Behind Act. Granted by the Secretary of Education under authority granted by, well, the No Child Left Behind Act. (The oft-bruited, but hypothetical, waivers to the work mandates of the 1996 welfare reform law are linked to a July 2012 Health and Human Services guidance document which flowed from a 2011 presidential memorandum aiming to enhance states’ administrative flexibility. However, the work requirements themselves were excluded from the law’s waiver section.)

3. Deferring deportations. This of course (so far) was of a limited category of non-citizens — basically, the proposed beneficiaries of the DREAM Act. It was carried out by the Secretary of Homeland Security via administrative memorandum as a means of setting priorities for her department given insufficient resources to deport everyone eligible for same.

4. Other selective enforcement of laws. Here, guidance minimizing federal statute’s conflict with Washington and Colorado drug laws flowed from the Department of Justice, which urged U.S. Attorneys to “address the most significant threats in the most effective, consistent, and rational way.”  The Attorney General himself issued a memo in August 2013 “refin[ing] our charging policy” to avoid incurring mandatory minimum sentences for “low-level, non-violent” offenders.

5. Failing to defend the Defense of Marriage Act in court. Again, as with (3) and (4), a version of prosecutorial discretion, tied up in the long debate over the president’s role as Constitutional arbiter, implemented by a presidential determination declaring his opinion that DOMA was unconstitutional, and conveyed to Congress by a letter from Justice.

6. The “job-destroying environmental regulations” attacked by Speaker Boehner and others. Flows from the regulatory authority delegated to the EPA by the Clean Air Act and the Supreme Court’s interpretation of same. Not every proposed regulation is legal, as shown in a recent case, but nearly every law bequeaths a process of rulemaking.

7. The release of Guantanamo detainees in exchange for Bowe Berghdal, without following a statutory notice requirement.  It is not clear what mechanism formally authorized the transfer, but no executive order to this effect is published on the White House web page; Obama had noted in a signing statement that he doubted the constitutionality of the provision requiring notice.

8. Drone warfare (including the targeting of American citizens abroad) — justified by the Justice Department’s Office of Legal Counsel in an opinion finding “justified” killings of this sort part of warfare and presumably carried out by national security directive.

None of this is to evaluate the substance or process these actions entailed; I’ve commented elsewhere on that. It is to point out that none of them was carried out by executive order, per se.

Is this just playing with words? Well, if we use “executive order” as a catch-all, we can’t also use it as evidence that President Obama has renounced the administrative presidency. He has not. I suggest that instead we need to catch up with what the administrative presidency now includes.

Andrew Rudalevige is Thomas Brackett Reed Professor of Government at Bowdoin College. He specializes in the study of American political institutions, primarily the presidency and the interbranch relations, with a recent focus on presidential management of the executive branch.
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