Graph by Eric Posner
(Graph by Eric Posner)

In Tuesday night’s State of the Union address President Obama highlighted his desire to “go it alone” more often through executive orders. The comment dismayed some commentators and politicians, who are even talking about taking court action against such moves. In the words of Sen. Marco Rubio (R-Fla.):

“I think it’s unfortunate. I think it’s divisive and, quite frankly, borderline unconstitutional on many of those issues. I understand the [legislative] process takes long and can be frustrating, but I think it truly undermines the republic.”

And Sen. Tim Scott (R-S.C.):

“We continue to erode the whole notion of the rule of law. To the extent that he continues to move unilaterally without the consent of Congress, I think it doesn’t sit well with a message of unity.”

The graph above, by Eric Posner at the University of Chicago, provides some useful context. So far, the president has been less prolific in his use of executive orders than past presidents. He could add a good 10 executive orders a year before he reaches the annual averages of Presidents Ronald Reagan, George H.W. Bush and Bill Clinton. That doesn’t mean that each individual executive order is constitutional or a good idea. Yet, it is nonetheless striking that in an era with so much talk about Congressional obstructionism, executive orders have been used less often than in the recent past.

ps. Andrew Rudalevige offers an important addendum.