Obama finding ways to wield power without executive orders

President Obama could wind up issuing fewer executive orders than any two-term president in a century, records show.

Obama has often exerted the power of his office in pursuit of his agenda, drawing charges from Republicans that he is acting like a “monarch” intent on destroying the Constitution’s balance of powers.  

But a review of the historical record shows Obama is on track to issue roughly the same number of executive orders as President George W. Bush, and fewer than President Clinton.

Comparing Obama’s use of executive power to his predecessors is tricky, however, since presidents can wield their authority in a number of ways. His executive orders tell only part of the story, experts say.

ADVERTISEMENT
“They’re not the only measure of presidential assertion of authority,” said Kenneth Mayer, a University of Wisconsin political science professor who has studied the presidency extensively. “He’s actually been pretty aggressive on a number of fronts.”

Instead of executive orders, Obama has enacted policy shifts through informal “executive actions” on issues like gun control, immigration and drone strikes overseas.

His 2011 decision to halt the deportations of hundreds of thousands of undocumented immigrants, for example, was communicated via a memo from Homeland Security Secretary Janet Napolitano.

“Clearly, she was acting as an instrument of the president,” said Mayer, who penned a book on executive power entitled, “With the Stroke of a Pen.”

That fact was not lost on Sen. Chuck Grassley (R-Iowa), who described the move as “an affront to the process of representative government.”

“He’s circumventing Congress with a directive he may not have the authority to execute,” Grassley said at the time.

The administration argued that it had the power to enforce the new policy through prosecutorial discretion.

Obama is not the first president who has been accused of overstepping, especially when it comes to national security. Bush faced his own criticism after ordering warrantless wiretapping in the aftermath of the Sept. 11 attacks.

Historically, executive orders vary widely on scope and importance. Obama’s orders, for instance, have ranged from the mundane (his order to shut the federal government last Christmas Eve) to the substantive (his 2009 order to shut Guantanamo Bay).

As of Wednesday, Obama has issued 149 legally binding executive orders during his presidency, according to records kept by the National Archives and published in the Federal Register. The total includes 147 from his first term, and two this year.

The actual number is far smaller than the figure of 923 that was widely circulated — and quickly debunked by an assortment of fact-checking websites — in the run-up to Obama’s reelection last November.

By comparison, Bush had issued 173 executive orders through the end of his first term, according to The American Presidency Project, an undertaking by the University of California, Santa Barbara. Clinton had issued 200 executive orders through his first term.

Franklin D. Roosevelt issued by far the most executive orders — 3,522 — and the practice dates back to President George Washington, who issued eight of them.

Obama has at times used the power of legally binding executive orders to enact measures that Congress would not. Such was the case last month, when he issued an order meant to bolster the country’s defenses against the increasing threat of cyberattacks.

That executive order came in lieu of cybersecurity legislation, which failed to pass Congress last year. Business groups and some Republican senators — including John McCain (R-Ariz.), John Thune (R-S.D.) and Saxby Chambliss (R-Ga.) — panned Obama’s unilateral move, saying the order could not “achieve the balanced approach that must be accomplished collaboratively through legislation.”

But many of Obama’s boldest executive moves have come without a formal executive order.

Earlier this year, the president unveiled 23 separate executive “actions” meant to curb gun violence in the wake of the shooting spree that left 26 people dead at Sandy Hook Elementary in Connecticut. Three of them — including a measure ordering the Centers for Disease Control and Prevention (CDC) to study the causes of gun violence — were communicated via formal memoranda.

The remaining 20 were directives that did not require the president’s signature at all, according to White House officials.

The gun measures, which are still in the process of being enacted, sparked outrage from some congressional Republicans, including Sen. Rand Paul (R-Ky.), who complained that Obama was acting “like a king or a monarch.”

The centerpiece of Obama’s executive power push has been the “We Can’t Wait” campaign he rolled out in the fall of 2011. The slogan was a direct shot at the gridlocked Congress.

“We can’t wait for an increasingly dysfunctional Congress to do its job,” Obama said. “Where they won’t act, I will."

The campaign included dozens of actions meant to address an array of issues, ranging from steps to help borrowers refinance the terms of home loans and create a new manufacturing hub in Ohio, to contentious recess appointments.

The measures — some controversial, some not — were accomplished through a combination of new regulations promulgated by agencies, executive orders and other directives.

Reached Wednesday for comment, one White House official acknowledged the president uses a wide variety of tools available to him as he looks for the best ways to implement his agenda.

At times, that has meant wading into murky legal territory. The administration, for example, came under fire from lawmakers and groups across the political spectrum following last month’s release of a Justice Department white paper outlining specific circumstances under which the United States can conduct a drone strike against an American overseas.

The president has signaled his intention to move forward unilaterally on other issues, including steps to counter climate change.

But Obama’s powers are far from absolute. His orders could be undone by judicial action, new laws passed by congress or future presidents.

That said, the president enjoys a measure of flexibility thanks to the lack of consensus about the limits of his authority, a subject that has been debated for generations, Mayer said.

“It comes from his power as chief executive and the fact that no one really knows what that means,” he said. “When authority is ambiguous, presidents act.”