Whenever conservatives object to the POS using Executive Orders to take unilateral action in disregard of Congress, his defenders inevitably trot out the fact that President George W. Bush had issued more Executive Orders than Obama. Indeed, as of Nov. 21, 2014, Obama has issued 194 Executive Orders, whereas George W. had signed 291 Executive Orders in the 8 years he was in office. (Wikipedia)
In so doing, the Left are merely repeating what Obama himself had said in a speech in Austin last July, “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.”
However, what Obama and his defenders conveniently leave out is this:
Obama, cunningly, also deploys another form of executive action known as the presidential or executive memorandum, and he has issued those memoranda more often than any other president in history.
There is no constitutional provision or statute that explicitly permits either Executive Order or Executive Memorandum. Both are forms of executive orders (note the small e and o) or directives, and both have the full force of law.
As Gregory Korte points out in a thoughtful and informative article in USA Today, Dec. 17, 2014:
President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.
When these two forms of directives [executive orders and executive memos] are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman ….
Obama has issued executive orders to give federal employees the day after Christmas off, to impose economic sanctions and to determine how national secrets are classified. He’s used presidential memoranda to make policy on gun control, immigration and labor regulations. Tuesday, he used a memorandum to declare Bristol Bay, Alaska, off-limits to oil and gas exploration.
Like executive orders, presidential memoranda don’t require action by Congress. They have the same force of law as executive orders and often have consequences just as far-reaching. And some of the most significant actions of the Obama presidency have come not by executive order but by presidential memoranda.
Obama has made prolific use of memoranda despite his own claims that he’s used his executive power less than other presidents…. Obama has issued 195 executive orders as of Tuesday. Published alongside them in the Federal Register are 198 presidential memoranda — all of which carry the same legal force as executive orders….
Obama is not the first president to use memoranda to accomplish policy aims. But at this point in his presidency, he’s the first to use them more often than executive orders…even as he’s quietly used memoranda to signal policy changes to federal agencies….
While executive orders have become a kind of Washington shorthand for unilateral presidential action, presidential memoranda have gone largely unexamined. And yet memoranda are often as significant to everyday Americans than executive orders.
Executive Orders are numbered; Obama’s begin with #13489. Memoranda are not numbered, not indexed and, until recently, difficult to quantify.
Kenneth Lowande, a political science doctoral student at the University of Virginia, counted up memoranda published in the Code of Federal Regulations since 1945. In an article published in the December issue of Presidential Studies Quarterly, he found that memoranda appear to be replacing executive orders.
Indeed, many of Obama’s memoranda do the kinds of things previous presidents did by executive order. “If you look at some of the titles of memoranda recently, they do look like and mirror executive orders,” Lowande said. The difference may be one of political messaging in that an “executive order immediately evokes potentially damaging questions of ‘imperial overreach'” whereas memorandum sounds less threatening.
Another difference between Executive Orders and Executive Memoranda, ironically, is spelled out in an Executive Order. Executive Order 11030, signed by President Kennedy in 1962, says that an Executive Order must contain a “citation of authority,” saying what law it’s based on, but Executive Memoranda have no such requirement.
Whatever they’re called — whether executive order or executive memorandum or “presidential determination” or “presidential notice,” those executive actions are binding on future administrations unless explicitly revoked by a future president, according to legal opinion from the Justice Department.
The Office of Legal Counsel signs off on the legality of executive orders and memoranda. During the first year of Obama’s presidency, the Office of Legal Counsel asked Congress for a 14.5% budget increase, justifying its request in part by noting “the large number of executive orders and presidential memoranda that has been issued.”
Below are some examples of Obama’s executive memoranda:
• In his State of the Union Address in January 2014, Obama proposed a new retirement savings account for low-income workers called a MyRA. The next week, he issued a presidential memorandum to the Treasury Department instructing it to develop a pilot program.
• In April, Obama directed the Department of Labor to collect salary data from federal contractors and subcontractors to monitor whether they’re paying women and minorities fairly.
• In June, Obama told the Department of Education to allow certain borrowers to cap their student loan payments at 10% of income.
• Obama issued three presidential memoranda after the 2012 Sandy Hook school-shooting false flag:
- ordering federal law enforcement agencies to trace any firearm that’s part of a federal investigation;
- expanding the data available to the national background check system; and
- instructing federal agencies to conduct research into the causes and possible solutions to gun violence.
The most controversial Obama executive memoranda are his amnesty-to-illegals memos, which both congressional Republicans and many states say exceed his authority. Please see my post, “Federal judge stops Obama’s executive amnesty for illegals,” on the rulings of two federal judges on Obama’s amnesty executive memos.