Once again Obama supporters are
distorting the record changing the parameters Obama is judged by. 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. Obama has issued
227 executive orders as of the end of December. Published alongside them in the
Federal Register are 198 presidential memoranda— all of which carry the
same legal force as executive orders, for a total of 425 executive actions.
When these two forms of directives
are taken together, Obama is on track to take more high-level executive actions
than any president since Harry Truman battled the "Do Nothing
Congress" almost seven decades ago, according to a USA TODAY review of
presidential documents.
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.
This is how the Obama record is
being distorted and duping Americans into supporting him.
This tactic is also done with other
things, Gun Control, Healthcare, Unemployment, the economy, etc.
He's already signed 33% more
presidential memoranda in less than six years than Bush did in eight. He's also
issued 45% more than the last Democratic president, Bill Clinton, who
assertively used memoranda to signal what kinds of regulations he wanted
federal agencies to adopt.
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.
"There's been a lot of
discussion about executive orders in his presidency, and of course by sheer
numbers he's had fewer than other presidents. So the White House and its
defenders can say, 'He can't be abusing his executive authority; he's hardly
using any orders," said Andrew Rudalevige, a presidency scholar at Bowdoin
College. "But if you look at these other vehicles, he has been aggressive
in his use of executive power."
So even as he's quietly used
memoranda to signal policy changes to federal agencies, Obama and his allies
have claimed he's been more restrained in his use of that power.
Obama issued three presidential
memoranda after the Sandy Hook school shooting two years ago. They ordered
federal law enforcement agencies to trace any firearm that's part of a federal
investigation, expanded the data available to the national
background check system, and instructed federal agencies to conduct research into the causes and possible
solutions to gun violence.
Two more recent memos directed the
administration to coordinate an overhaul of the nation's immigration system — a
move that congressional Republicans say exceeded his authority. Of the dozens
of steps Obama announced as part of his immigration plan last month, none was
accomplished by executive order.
Indeed, many of Obama's memoranda do
the kinds of things previous presidents did by executive order.
• In 1970, President Nixon issued an
executive order on unneeded federal properties. Forty years later,
Obama issued a similar policy by memorandum.
• President George W. Bush
established the Bob Hope American Patriot Award by executive order in 2003. Obama created the
Richard C. Holbrooke Award for Diplomacy by memorandum in 2012.
• President Bush issued Executive Order 13392 in 2005, directing agencies
to report on their compliance with the Freedom of Information Act. On his week
in office, Obama directed the attorney general to revisit those reports — but
did so in a memorandum.
The difference may be one of
political messaging, he said. An "executive order," he said,
"immediately evokes potentially damaging questions of 'imperial
overreach.'" Memorandum sounds less threatening.
Though they're just getting
attention from some presidential scholars, White House insiders have known
about the power of memoranda for some time. In a footnote to her 1999 article in the Harvard Law Review,
former Clinton associate White House counsel Elena Kagan — now an Obama
appointee to the U.S. Supreme Court — said scholars focused too much on
executive orders rather than presidential memoranda.
Kagan said Clinton considered
memoranda "a central part of his governing strategy," using them to
spur agencies to write regulations restricting tobacco advertising to children,
allowing unemployment insurance for paid family leave and requiring agencies to
collect racial profiling data.
"The memoranda became, ever
increasingly over the course of eight years, Clinton's primary means,
self-consciously undertaken, both of setting an administrative agenda that
reflected and advanced his policy and political preferences and of ensuring the
execution of this program," Kagan wrote.
Presidential scholar Phillip Cooper
calls presidential memoranda "executive orders by another name, and yet
unique."
The law does not define the
difference between an executive order and a memorandum, but it does say that
the president should publish in the Federal Register executive orders
and other documents that "have general applicability and legal
effect."
"Something that's in a
presidential memorandum in one administration might be captured in an executive
order in another," said Jim Hemphill, the special assistant to the
director for the government's legal notice publication. "There's no
guidance that says, 'Mr. President, here's what needs to be in an executive
order.' "
There are subtle differences.
Executive orders are numbered; memoranda are not. Memoranda are always
published in the Federal Register after proclamations and executive
orders. And under Executive Order 11030, signed by President
Kennedy in 1962, an executive order must contain a "citation of
authority," saying what law it's based on. Memoranda have no such
requirement.
Obama, like other presidents, has
used memoranda for more routine operations of the executive branch, delegating
certain mundane tasks to subordinates. About half of the memoranda published on
the White House website are deemed so inconsequential that they're not counted
as memoranda in the Federal Register.
Sometimes, there are subtle
differences. President Eisenhower signed Executive Order 10789 in 1958 giving emergency
contracting authority to the Department of Defense and other Cabinet
departments. President Bush added other departments in 2001 and 2003, but he
and Obama both used memoranda to give temporary authority to the U.S. Agency
for International Development to respond to crises in Iraq and western Africa.
When the president determines the
order of succession in a Cabinet-level department — that is, who would take
over in the case of the death or resignation of the secretary — he does so by
executive order. For other agencies, he uses a memorandum.
Both executive orders and memoranda
can vary in importance. One executive order this year changed the name of the National Security Staff
to the National Security Council Staff. Both instruments have been used to
delegate routine tasks to other federal officials.
Whatever they're called, 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 — which
is responsible for advising the president on executive orders and memoranda —
says there's no difference between the two. "It has been our consistent
view that it is the substance of a presidential determination or directive that
is controlling and not whether the document is styled in a particular
manner," said a 2000 memo from Acting Assistant Attorney General Randolph
Moss to the Clinton White House. He cited a 1945 opinion that said a
letter from President Franklin Roosevelt carried the same weight as an
executive order.
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."
Other classifications of
presidential orders carry similar weight. Obama has issued at least 28
presidential policy directives in the area of national security. In a Freedom
of Information Act lawsuit last year, a federal court ruled that these, too, are
"the functional equivalent of an executive order."
Even the White House sometimes gets
tripped up on the distinction. Explaining Obama's memoranda on immigration last
month, Press Secretary Josh Earnest said the president would happily "tear
up his own executive order" if Congress passes an immigration bill.
Obama had issued no such executive
order. Earnest later corrected himself. "I must have misspoke. I meant
executive actions. So I apologize," he said.
