Courtesy of Occupy Democrats, with over 48,000 likes and 46,000 shares. This meme manages to be false, misleading and snarky in its assessment, but we’ll focus only on the first two.
As of January 6, 2016, Obama has issued 227 executive orders (not 175), and 80 of those are from his second term (not 25). The other president’s numbers do check out as accurate. These errors might result from this being an old meme, as perhaps these numbers were more correct a year or two ago. However, this meme was posted on January 6th by Occupy, and a simple Google search of “how many executive orders has Obama issued” will quickly lead one to the correct answer. That Occupy Democrats failed to do even this amount of research for their almost 2 million followers speaks volumes.
While it’s technically true Obama still has less executive orders than his predecessors (with still one year left), this leaves out a crucial context, and is a misleading statement.
There is another executive action that can be taken by the president, called an executive memorandum. This appears to be virtually identical to an executive order, but since neither are defined precisely, it’s a distinction without a difference. Neither require Congressional approval, and both have the same force of law behind them. Most legal experts agree on this, and there was even a Federal Court that ruled the same. When looking at Obama’s executive actions, many of his most significant ones are issued by memorandum, including gun control and immigration.
The only apparent difference between the two is that executive orders are numbered, while memoranda aren’t, making them a bit more difficult to count. In fact, they don’t even have to be published in the federal record, except when they have “general applicability and legal effect”, which could be interpreted broadly.
The Meme Policeman took on the mundane task of counting all of the executive memoranda published by the White House as of January 6, 2016, and counted 478. When added to the executive orders, the total number of executive actions amounts to 705. With one year left, Obama appears to be on track to have more executive actions than other presidents in recent memory.
As a note, the MP can’t make this statement definitively, as finding the number of memoranda of past presidents is elusive, but the USA Today asserts there have been far more under Obama than either Bush or Clinton. The motivation for issuing more memoranda instead of executive orders are understandably stronger with Obama than previous presidents, as the stigma around them has grown more sour. Also, he made this statement in 2008, prior to entering office:
“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America.”
By issuing memoranda instead of orders, he was able to claim this, in an Austin speech, which has been repeated by his administration:
“The truth is, even with all the actions I’ve taken this year, I’m issuing executive orders at the lowest rate in more than 100 years.”
Only the more savvy and nuanced observer will ever discover the difference, allowing him to essentially issue executive orders while at the same time claiming he’s not.
Content of Executive Orders
While the number of orders and memorandums matters, it’s more the content and language that those worried with the president “abusing his power” are concerned with. These range from the fairly benign, like giving some federal employees the day after Christmas off, to more significant, like delaying the employer mandate from Obamacare, or declaring sanctions. It’s hard to quantify which presidents asserted, or abused more powers with their orders, but the Mercatus Center of George Mason University issued a study claiming Obama’s language was more restrictive than his recent predecessors. (Note: the Mercatus Center is a free-market research group, likely biased against Obama).
The reality is that it mostly comes down to one’s political views in determining which president abused executive power more. Obama supporters likely consider his executive orders to be good for the country, while his detractors consider them harmful and abuses of power. Libertarians might claim every president has abused their constitutional powers. However, when both executive orders and memoranda are correctly viewed as the same, it’s clear Obama is certainly at the same level, if not more so, than recent presidents in asserting executive power.