(Mis)measuring executive branch overreach

July 8

House Speaker John Boehner’s announcement that the U.S. House of Representatives will pursue litigation to challenge alleged instances of executive overreach has produced a significant degree of commentary.  Yet rather than address the substance of the complaints, some commentators have resorted to quantitative analyses of executive actions.  Such analyses are interesting, but they are not particularly relevant to the issues at hand, and tell us nothing about the legal merits of Speaker Boehner’s complaints or the viability of his planned suit.

Several commentators, including The Washington Post’s Jonathan Capehartpoint to a Brookings Institution analysis showing that President Obama has issued fewer Executive Orders than his predecessors.  This is true, but wholly irrelevant.  First, as already noted, the frequency of an action tells us nothing about its legality.  So the number of EOs a President issues may tell us something about his willingness to assert executive authority but tells us nothing — zero, zilch, nada — about whether the President has exceeded his authority.

Second, not every presidential directive or decision is (or results in) an EO.  EOs, as they are called, are a specific type of executive direction to federal agencies.  (Here’s a CRS report on that.)  If one looks at President Obama’s EOs one can plainly see that many things — like the decisions to delay or ignore various aspects of the PPACA — are nowhere to be found.

Most of the actions about which Speaker Boehner and others have complained are not EOs at all.  As Capehart quoted Speaker Boehner in the article noted above, “In my view, the president has not faithfully executed the law.”  There’s no concern with EOs here, nor in the Speaker’s CNN commentary cited in this Capehart follow up.  Rather, Speaker Boehner believes the President has taken actions that are not authorized by law and, in other cases, has failed to execute the law as required by the Presidential oath. Wrote Boehner:

 too often over the past five years, the President has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold.

Speaker Boehner made no mention of signing statements either, though this is the focus of yesterday’s Capehart column.  Writes Capehart: “there is nothing extraordinary about Obama’s use of executive orders or signing statements,” pointing to more quantitative analyses. Here again, the number of signing statements is not important as the authority the claim, a point Capehart eventually acknowledges.  But signing statements really have little to do with the proposed suit against the President.  Most criticism of the President’s use of signing statements has focused on the President’s inconsistency — he was opposed to signing statements before he could use them himself — or on a handful of instances in which specific statements may have gone too far.  I have not seen anyone make the claim that there is a problem with the number of signing statements from President Obama.

An earlier WonkBlog analysis of regulatory activity under President Obama by Christopher Ingraham  has the same failings as the effort to count EOs or signing statements: The number of actions tells us nothing about their legality or whether the executive is engaged in overreach.  This specific analysis “found that Obama has issued an average of 56 economically significant regulations per year during his time in office. This is greater than Clinton or George W. Bush, but similar to the annual average under George H. W. Bush – hardly anyone’s idea of an overbearing executive.”  Again, this tells us nothing about executive overreach.  (It also displays a degree of historical ignorance. President George H. W. Bush was well-known for presiding over a surge in regulatory activity.  The National Journal even published a cover story declaring the first President Bush to be the “regulatory president.”)

While the number of economically significant regulations issued or proposed in a given year is significant, it tells us even less about how a President is using executive power than a count of EOs because many regulations are the result of legislative enactments.  Laws like the 1990 Clean Air Act, Sarbanes-Oxley, the PPACA, or Dodd-Frank all require federal agencies to issue rafts of new rules, so much of what a President does is implement laws that were passed by Congress and signed into law by his or her predecessors.

If we want to know how aggressive executive branch regulatory agencies are being, we have to look at what authority and responsibility they have been given by the relevant authorizing statutes, whether that authority and responsibility has changed, and how that authority is being used.  More to the point, if we want to know whether a President is engaged in “lawless” or “unprecedented” action, we have to look at the substance of regulatory action, and consider whether agencies are acting within the scope of the authority delegated to them by Congress.

As noted above, the real objections to the President’s use of executive authority are not to the frequency of EOs, signing statements, or regulations, but to the substance of specific actions and decisions that have been made.  See, for example, the testimony of law professors Jonathan Turley and (VC contributor) Nicholas Quinn Rosenkranz at this House Judiciary Committee hearing.  To focus on one area of policy, look at the string of illegal actions taken by the Administration in implementing the PPACA, discussed in greater detail by Michael Cannon at that same hearing. (Simon Lazarus offered a contrary view.  While I disagree wholeheartedly with his analysis, it’s more substantive than the commentary discussed above.)

Writing in the New England Journal of Medicine, Michigan law professor Nicholas Bagley noted that the Administration has taken many actions without clear legal authority, and that some of these actions are without precedent.  Professor Bagley generally supports the President and the PPACA, but he is nonetheless concerned about the implications of what this Administration has done.  Focusing on the Administration’s decisions to delay aspects of the PPACA he writes:

the delays appear to exceed the traditional scope of the President’s enforcement discretion . . . [and] set a troubling precedent. . . . [A] future administration that is less sympathetic to the ACA could invoke the delays as precedent for declining to enforce other provisions that it dislikes, including provisions that are essential to the proper functioning of the law. The delays could therefore undermine the very statute they were meant to protect — and perhaps imperil the ACA’s effort to extend coverage to tens of millions of people.

More generally, the Obama administration’s claim of enforcement discretion, if accepted, would limit Congress’s ability to specify when and under what circumstances its laws should take effect. That circumscription of legislative authority would mark a major shift of constitutional power away from Congress, which makes the laws, and toward the President, who is supposed to enforce them

None of the above means that Speaker Boehner’s lawsuit will (or should) succeed. Though I believe the Administration has acted without legal authority, I am not convinced that the House of Representatives has standing to bring the suit. (For a contrary view, see here and here.)  The legislature has numerous ways to try and check executive authority, including oversight hearings and appropriations.  I am not sure litigation should be added to the list.

Whether the Speaker’s lawsuit is viable or not, those responding to claims of executive overreach should actually respond to allegations of executive overreach. Pointing to pretty charts about the number of EOs is not a serious or substantive response.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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