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Volokh Conspiracy

(Mis)Measuring executive overreach revisited


This week USA Today published an extensive story on President Obama's use of presidential memoranda (PMs) in lieu of executive orders (EOs). Here's a snippet:

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 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 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

The article is valuable in that it underscores the point (made here) that looking at the number of executive orders issued by a given president is a poor measure of the extent to which a president is using his authority, let alone the extent to which a president is acting unilaterally or potentially engaging in executive overreach.

As the article notes, the narrow focus on how actions are labeled be misleading. Some presidents issue directives as executive orders that others would issue as memoranda, and still others may accomplish similar goals by simply directing a given agency head to pursue a given course of action. Thus, these sorts of quantitative analyses are of limited use in trying to measure the degree of executive action.

In terms of the specific claims made in the article, the claim that Obama is "on track" to use PMs and EOs combined more than any President since Truman ignores the rate at which such actions are taken. As the data compiled by USA Today show, Presidents John F. Kennedy and Jimmy Carter were far more active, quantitatively, on an annual basis. A fairer quantitative measure than the absolute number of actions would be the number of such actions taken per year or per term, though this still would not take into account the extent to which control of Congress might affect the extent to which the president seeks to act unilaterally.

If we want to understand the extent to which a president is relying upon unilateral executive authority to advance policy goals, there is no substitute for looking at the nature of the specific actions taken, the precedents for such action, and the extent to which the president is acting pursuant to a valid delegation of authority from Congress. Such analyses take more work, and necessarily involve a degree of judgment that is not easily reducible to quantitative statistics, but it's still the only real way to measure executive overreach.