Speaker John A. Boehner will ask the House to approve a lawsuit designed to "compel the president to follow his oath of office and faithfully execute the laws of our country." The unusual action, he wrote in a letter to his colleagues, stems from President Obama's having "circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce."
This is generally being interpreted as Boehner (R-Ohio) expressing frustration about executive orders. That's incorrect. At least, that's not the whole picture. This is, really, a fight about executive action.
As Wonkblog and others have noted, Obama has actually signed far fewer executive orders than past presidents. The Brookings Insitution determined that he'd signed fewer per day of his presidency than anyone since Grover Cleveland. And most of the executive orders he signs are hardly the sort of thing that would seem to put America on the brink of a constitutional crisis. You can see them indexed at the National Archives Web site. We skimmed the topic areas and figured that the 160-odd orders Obama has signed fall roughly into five categories.
Aha, you say, all of those administrative orders! That's the problem! Well, no. Those are mostly orders creating various government bodies, such as establishing the National Action Plan on Women, Peace and Security (E.O. 13595). Only a dozen or so of all of the orders are anything even remotely controversial, and none of them is the sort of thing cited in press accounts of Obama's tendency to act independently of the legislative branch.
At the White House Web site, you quickly get a sense for what's at work here. Alongside the menu item for executive orders is one for presidential memorandums. And at a quick glance, you can see that the issues tackled in memorandums are very similar to those in the executive orders. One from June 9, picked at random: Federal Student Loan Repayments. "Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following," etc., etc.
What's the difference between an executive order and a presidential memorandum? New York magazine looked at this in January 2013 and found a 1999 report that summarized the difference flatly. "Although they possess a different title than executive orders," it reads, in part, "it appears as though these instruments are very much alike. Both are undefined, written instruments by which the president directs, and governs actions by, Government officials and agencies." The only difference, really, is that orders need to be published in the Federal Register, given that they meet fairly loosely defined parameters.
So let's consider a key example of executive authority that's mentioned when the president's actions are criticized: his 2012 determination that the children of people who entered the country illegally would be allowed to remain. That action went into effect on Friday, June 15, 2012. The closest executive order to that date is Executive Order 13616, which concerns broadband implementation.
Then it must be a memorandum, right? Well, no. The closest memorandum to that date filed on the White House site deals with child soldiers.
There's a third category that encompasses the other two: executive action. The immigration action went into effect via a letter from Janet Napolitano, then head of the Department of Homeland Security. As head of the executive branch, the president can instruct DHS to take an action, and it does -- no order or memorandum involved. Same with the upcoming rules on reducing carbon dioxide pollution. Obama tells the EPA to draft rules; it drafts rules.
In his letter to his peers, Boehner never mentions executive orders. "President Obama has circumvented the Congress through executive action," he writes, without pointing to specific examples. The fight isn't over executive orders; it's over executive authority. That's a much different -- and much bigger -- battle.