January 4, 2015 9:30am by Marcus Vinicius

The use of executive orders by US Presidents

Introduction

The goal of this post is to give an overview of this important topic in US presidential politics. There are numerous web links included for readers who want to go into more detail. First a definition of a presidential executive order:

Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law…. In the narrower sense Executive orders and proclamations are written documents denominated as such…. Executive orders are generally directed to, and govern actions by, Government officials and agencies.

For an explanation of the presidents powers see this article from the Cornell University Law School. The powers discussed are found in Article II of the Constitution.

Historical context

Of particular note is that the first presidents from Washington through to the first half of the 19th century made very little use of executive orders. In the 20th century the use of the orders increased markedly especially from the time of Theodore Roosevelt thru to Harry Truman. In the case of FDR the use of the orders coincided with the Great Depression and WWII and were issued almost daily. Some well known executive orders:

During the early stages of the Civil War in 1861 Abraham Lincoln suspended the writ of habeas corpus (the right to seek relief from illegal imprisonment).
In 1864 the emancipation proclamation was issued by Lincoln.
Franklin Delano Roosevelt established internment camps during WWII.
Equal treatment of all members of the US armed forces was mandated by Harry Truman.

Modern presidents

Much has been made of Barack Obama’s use of presidential executive orders especially in regards to his immigration order. Opponents of Obama consistently attack him over this issue and criticise him for being a progressive with a big government agenda. So how does he compare with other presidents? The chart below compares Barack Obama to every president from FDR onwards. US_Pres_EO

Source: The American Presidency Project: Presidential Executive Orders. The orders issued by Barack Obama are those up until 20th October 2014. The webpage cited has a full list of all presidents and the number of orders issued.

Of the presidents listed in the table FDR has the highest yearly average by far with Truman second. Jimmy Carter a big government progressive is next. As for Obama he currently has made the least use of executive orders (ie. the yearly average) of any president going back to Grover Cleveland’s first term in 1885-9. Furthermore one has to go back to the Chester Arthur in 1881-85 to find a Republican president who has a lower yearly average than Barack Obama. Also since the days of Jimmy Carter in the White House the use of the orders has trended down.

Comments

So although there has been fierce debate about Obama’s immigration order the issue of the use executive orders is not a new debate it was an even bigger issue in 1861. So should the debate on executive orders be about the quality of each order as opposed to just the number issued by each president? My view is that executive orders should only be used when absolutely necessary and not be a means to avoid less ‘convenient’ ways of implementing policy.

Update: 5.1.2015

One of the commenters ‘Scrubone’ has noted an article by USA Today on Obama’s use of memoranda. The data used by USA Today is from research by one Kenneth S. Lowande a graduate student from the University of Virginia. Glenn Kessler from the Washington Post has covered this topic in some detail. The use of memoranda by Barack Obama can be found in the full list on the White House website. On the topic of presidential memoranda and their usage by presidents Kessler writes.

Lowande said he picked that start date [1945] 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 [Lowande] 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.

So the upshot of this is that whilst Obama’s use of memorandums is a valid debating point from a policy perspective but it is not easy to get accurate data to compare him to his predecessor’s. Previous presidents typically chose not to publish a complete record of their memoranda in the Federal Register.