February 3, 2014

Sunstein: What, exactly, are these ‘executive orders’?

Editor’s Note: For information about the limits of Presidential authority, please see here.

From: Bloomberg View via Richmond Times-Dispatch


In the aftermath of President Barack Obama’s State of the Union address, there is a lot of confusion about the phrase “executive actions.” The president has an assortment of different tools, and it is important to distinguish among them.

“Executive orders,” issued by the president personally, often involve large-scale, government-wide matters, and contain his own orders to the officials who work for him. For example, an executive order might require executive agencies to reassess and streamline existing regulations, to promote diversity in the federal workforce or to improve customer service.

Executive orders are nothing new. In his first five years, Obama issued 167 executive orders — a lower rate than George W. Bush (291 over eight years), Bill Clinton (364 over eight years), George H.W. Bush (166 over four years), Ronald Reagan (381 over eight years) or for that matter Dwight Eisenhower (486 over eight years).

“Presidential memoranda,” also issued by the president personally, often involve more technical matters and might be issued to one or a few members of the executive branch. For example, a presidential memorandum might direct the Environmental Protection Agency to regulate greenhouse gas emissions from power plants, or might direct agencies to modernize the nation’s electric transmission grid by improving the process for siting, permitting and reviewing transmission lines. The line between executive orders and presidential memoranda is not always crisp and clear, but the former tend to involve more significant matters.

In the general category of “executive action,” much of the most important work comes from “regulations,” which typically have the force of law, and which may well bind the private sector (or, for that matter, state and local governments). Regulations are issued by agencies, not by the president personally, but they reflect his commitments and priorities.

For example, the Obama administration has issued a series of regulations increasing the fuel economy of motor vehicles. The regulations were issued by the Department of Transportation and the Environmental Protection Agency, not by the president himself.

As of today, 112 regulatory actions are under review at the Office of Information and Regulatory Affairs, and summaries are publicly available. Eighteen of the pending rules come from the Department of Health and Human Services, 16 from the Department of Transportation, nine from the Department of Energy, five from the Department of Housing and Urban Development.

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