(Susan Walsh/AP)

“The truth is, even with all the actions I’ve taken this year, I’m issuing executive orders at the lowest rate in more than 100 years.  So it’s not clear how it is that Republicans didn’t seem to mind when President Bush took more executive actions than I did.”

–President Obama, speech in Austin, July 10, 2014

“The history is that I have issued fewer executive actions than most of my predecessors, by a long shot. The difference is the response of Congress — and specifically the response of some of the Republicans….If you ask historians, take a look at the track records of the modern presidency, I’ve actually been very restrained.”

–Obama, interview on ABC News’ “This Week,” Nov. 23, 2014    

A number of readers have asked about these statements by the president, especially in the wake of a recent USA Today article that highlighted President Obama’s use of another form of executive action, known as a presidential memorandum. The article asserted that Obama has “issued a form of executive action known as the presidential memorandum more often than any other president in history” and that when executive orders and memorandums are combined, Obama has taken more “high-level executive action” than any president since Harry S. Truman.

The White House has often cited the data on executive orders to rebut claims, made by Republicans, that he is circumventing the Constitution through his use of executive action. In one of the quotes above, the president even said his predecessor had taken “more executive actions than I did.”

This is a complex issue, and certainly worth exploring. A big problem is that data is very fuzzy, which makes it susceptible to manipulation.

The Facts

As a practical matter, there is little legal difference between executive orders and presidential memoranda, as both are used by presidents to direct the actions of government officials and agencies. However, under the law, executive orders are required to be published in the Federal Register and are numbered; there is no such requirement for presidential memoranda.

Memoranda are published in the Federal Register only when the president determines that they have “general applicability and legal effect,” which certainly leaves a lot of wiggle room.

So already one can see that it is difficult to count presidential memoranda; not all of Obama’s were published in the Federal Register, although they all are listed on the White House Web site. In fact, comparing the number of executive orders by presidents is difficult enough because they only started to be numbered in 1907, so historians had to dig into the records to find them before that date. It was only after a law was passed in 1935 that executive orders were required to be published in the Federal Register.

Thus executive orders are the easiest to track — the tip of the iceberg, so to speak — while presidential memoranda are hidden beneath the surface. But not all executive orders are earth-shattering; some appear banal, such as changing the name of the National Security Council staff and making the day after Christmas a holiday for federal workers. Meanwhile, one of the presidential actions on the Affordable Care Act — the delay in implementing the employer mandate — that led to a lawsuit by House Republicans was accomplished through neither an executive order nor a presidential memorandum; it was just a Treasury Department notice.

Just going by the numbers on executive orders, Obama has issued them at a lower rate than any president since Grover Cleveland. Much like the White House, various news organizations have frequently cited the count on executive orders to suggest the GOP attack on Obama’s alleged overreach lacked much basis.  The Washington Post has done so on at least two occasions; other news organizations include 538, the New Republic and The Huffington Post.

The data on executive orders comes from the American Presidency Project at the University of California at Santa Barbara, which has a terrific Web site that tracks presidential statements and documents. But John T. Woolley, co-director of the project, objects to use of the executive-order data in this manner.

“That tally is almost entirely irrelevant to this dispute [over executive action] because executive orders are only one way a presidential administration can take action without congressional approval,” he said, noting for instance the use of presidential memoranda. In fact, many of Obama’s most controversial actions on immigration and gun rights also did not involve executive orders.

In its examination of presidential memoranda, USA Today relied heavily on the research of Kenneth S. Lowande, a graduate student at the University of Virginia, who published an article in the December issue of Presidential Studies Quarterly tracking the presidential memoranda published in the Federal Register since 1945.

Lowande said he picked that start date as “practical research decision” because he did not have enough time to go back further.  He added that “my data only include those that presidents chose (for whatever reason) to publish.” He noted that USA Today’s assertion that Obama has issued the “most ever” was not correct. “More accurately, he has deemed more of his important enough to publish in the Federal Register,” he said.

In other words, while the research is interesting, it actually tells you little about how different presidents have used this tool to further their policies.

Indeed, administration officials argue that one reason for increased publication of presidential memoranda is an effort at transparency. The White House certainly has not been shy about touting its executive actions, issuing a 37-page “year of action” report on “80 executive actions” in December. Officials say that the use of presidential memoranda reflects an effort to highlight certain agency actions that in previous administrations would not have been accompanied by such a directive.

“The president publishes things for a reason, which can include transparency (and giving due notice to affected part of the private sector); increasing the positive monitoring of agency behavior by interested outside groups; signaling more clearly to constituents that the president is  working in their interest,” Woolley said.

Woolley, however, expressed some skepticism that transparency was the main reason.  “I suspect the president (and his staff) are interested in minimizing numbered executive orders simply because they are easily countable,” he said. “Presidents mostly don’t like ‘score-keeping’ especially when it can be used to criticize them. But the other benefits that come with publication are real, so he publishes unnumbered orders often.  And selectively emphasizes other executive action.”

But administration officials argue that because all of the orders and memoranda are made publicly available, there is no compelling reason to favor one over the other. Moreover, officials say that in the Obama administration there are distinct differences between executive orders and presidential memoranda.

An administration official, who would not be directly quoted, said executive orders are usually used when amending a previous EO, issuing a presidential directive to a large number of agencies, or issuing a directive that has a substantial effect on the public; presidential memoranda are generally used for directives that are to a limited number of agencies or for issues that are more technical or limited in scope. (He provided numerous examples, mainly to rebut the implications of the USA Today article.)

Woolley said that, historically, this was not the case, however.  “In the old days, orders were issued and enumerated that were very specific, nitpicking things,” he said.  “In creating a history of EOs, people working in the 1930s gathered all kinds of little orders and called them EOs.  So in a historical sense, there is just not much basis for saying that there has been some kind of clearly understood hierarchy of orders.”

But, he added, “the counting of memorandums is just about pointless in terms of illustrating what is going on and whether it is controversial.”

Ultimately, then, none of these numbers, especially when viewed in isolation, are especially relevant to the question of executive overreach. “I’m a little leery of making ‘the most ever’ sorts of designations,” said Andrew Rudalevige, a government professor at Bowdoin College. “But I am very comfortable with saying the wider range of presidential unilateral directives should be included in any assessment of the use of executive authority.”

The Pinocchio Test

Sometimes data can be misleading. While the counting of executive orders appears to be an easy way to measure the extent of presidential action, it provides only a partial picture. Such charts also assume that every executive order is equal, which is clearly not the case.

But there is also no easy and accurate way to count presidential memoranda across presidential administrations, especially because it is up to each president to determine whether they should be published in the Federal Register. So merely counting these documents would actually punish a president seeking to gain additional visibility for his or her actions.

What matters then is substance, not the numbers. As we noted, many of Obama’s most controversial executive actions were undertaken with neither an executive order nor a presidential memorandum.

The White House appears to want to have its cake and eat it too, bragging about its “year of action” while pointing to numbers that play down Obama’s use of executive authority; the president even said he had been “very restrained.” But the media has dropped the ball too, highlighting an unhelpful numbers game. Two Pinocchios all around.

Two Pinocchios

 


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