Only one of the many manifestations of unilateral power (NARA)
My colleague Erik Voeten observed earlier today, quite correctly, that President Obama has issued fewer executive orders than most of his recent predecessors. This decline continues a secular trend that dates from the 1950s — before that, Franklin Roosevelt issued nearly 300 orders per year (3,500 overall), and Harry Truman more than 100, many of them linked to wartime administrative policies ranging from setting aside land for military use to price controls. From Dwight Eisenhower to Jimmy Carter, about 60 to75 were issued per year. But from Ronald Reagan on, as noted, presidents have issued more like 30 to 50 annually.
However, it is worth noting — as political scientist Graham Dodds does in his recent book Take Up Your Pen — that the formal executive order is only one mechanism for presidential unilateral action. Executive orders can be powerful, but they have their substantive limits; plus, most of them are published openly in the Federal Register and follow a standard formulation sequence, neither of which always suit presidential preferences.
In her lengthy 2001 law review piece “Presidential Administration,” future Supreme Court Justice Elena Kagan detailed several more vehicles for unilateralism, centering on the use of administrative memoranda (to one or more departments) and rule-making prompted by the Executive Office. But even more sweeping was a Congressional Research Service study, updated in 2008, which found more than 20 formal types of presidential directive. Since the CRS count did not include administrative memoranda, written determinations, signing statements or regulatory action, the total seems to be closer to 30 than 20.
So the jury is still out on whether Obama has expanded the use of unilateral action as compared to his predecessors. But thanks to their wide-ranging administrative creativity (plus his own), he has plenty of ways to do so.
