Explainer: the presidential executive order and the memorandum

If you pay attention to headlines and TV news soundbites, you might think that President Trump has issued almost two dozen executive orders. And that he has done so at a record pace.

First, less than half of Trump’s executive actions have been executive orders. Most have been presidential memoranda. More on the difference in a minute.

Update: How Trump’s travel ban broke from the normal executive order process, 9 February 2017

Second, from 21-30 January 2009, President Obama signed nine executive orders. In an equivalent 10-day period, President Trump has signed seven executive orders. The tenor of each man’s EOs is very different, however, which may explain the form of news coverage. Certainly, the country did not explode in ad hoc protests in 2009.

Trump did set a record for number of executive actions (executive orders and presidential memoranda) issued in the first week in office.

What are they good for?

George Washington issued the first executive order, a presidential proclamation which has the full effect of law.

Executive orders can liberalize and expand freedom.

Perhaps the most famous such action was President Lincoln’s Emancipation Proclamation. President Truman desegregated the armed services by executive order. After segregation of schools was declared illegal, President Eisenhower used an executive order to federalize the Arkansas National Guard; in so doing, he ensured that nine black children could safely attend Little Rock High School. President Johnson used Executive Order 11246 to bar discrimination in federal employment based on race, color, religion, sex, or national origin. Using an executive order, President Carter pardoned Vietnam-war draft dodgers.

Executive orders can also restrict freedom.

Perhaps the most famous in this category was President Roosevelt’s internment of Japanese-Americans during WWII. However, President Grant had used executive orders to push Native Americans onto reservations. And President George W. Bush created the Department of Homeland Security via executive order. He also declared 27 organizations as “global terrorists” via Executive Order 13224 but courts found it “unconstitutionally vague on its face.”

Or they can be very narrow, very specific. President Ford pardoned Richard Nixon “for any offenses he might have committed during his presidency” through executive order.

But when Truman tried to nationalize American steel factories via Executive Order 10340, the Supreme Court overruled the action, noting that the president did not have Congressional authorization. But judicial review of executive actions is the exception, not the rule.

 

What’s the difference: executive orders versus presidential memoranda

The executive branch of government – overseen by the president – enforces or carries out federal law (legislation passed by Congress and signed by the president). Executive actions — orders or memoranda — direct executive agencies on how to go about their business.

An executive order must be published in the Federal Register which is published by the National Archives and Records Administration (NARA); after 30 days, the order takes effect. These formal documents must cite specific constitutional or statutory authority; they cannot be conjured out of thin air. Moreover, an executive order can only be amended or rescinded via a subsequent executive order. Unless a president writes an executive order of rescission, executive orders are binding on subsequent administrations.

Addendum: An executive order is akin to a CEO telling a department vice president how to implement a specific policy. Therefore, the relationship is usually not adversarial nor are such CEO-to-veep communications produced in a vacuum, with no input from the veep. Not at well-run, profitable companies, that is. But this dysfunctional model characterizes at least one Trump executive order: the seven nation travel and refugee ban.

Presidential memoranda may or may not be published in the Register, but in order to have “general applicability and legal effect” they must be published. Memoranda are not required to cite legislative authority and are usually directions to an agency. Memoranda may be amended or rescinded via another memorandum or an executive order. Unless a president writes an executive order or memorandum of rescission, presidential memoranda are binding on subsequent administrations.

From USA Today:

Executive orders are often organizational, used to create new executive branch committees, processes or lines of responsibility. They can impose economic sanctions on other countries, declare states of emergency, or give federal workers a day off. Presidential memoranda are used to delegate tasks and reports assigned by Congress to the president, start a regulatory process, or direct a specific department or agency to do something.

Regardless, the Office of Legal Counsel signs off on both executive orders and memoranda.

What’s the difference: Obama versus Trump

In 1948, a frustrated President Truman campaigned against a “do nothing Congress.” Despite unprecedented gridlock, the 80th Congress passed 900 bills in its two-year term.

After 2014 came to a close, Pew reported that the 113th Congress (2013-14) “just barely avoided the dubious title of ‘least productive Congress in modern history‘.”  The least productive? The predecessor 112th Congress (2011-12).

In the face of legislative gridlock, executive action (whether by executive orders or presidential memoranda) may be the only way to move government forward.

Because presidential memoranda are not numbered and may or may not have been filed with the Federal Register, it is not straightforward to “count” how many were issued. However, Obama came to rely upon memoranda in his second term.

Nevertheless, the substance of executive actions is more important than the number.

President Obama Executive Orders, January 2009

1. Executive Order 13489 – Presidential Records
2. Executive Order 13490 – Ethics Commitments by Executive Branch Personnel (Lobbyist Gift Ban, Revolving Door Ban, Employment Qualification Commitment, freeze White House salaries)
3. Executive Order 13491  – Ensuring Lawful Interrogation (relating to torture)
4. Executive Order 13492 – Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Close of Detention Facilities
5. Executive Order 13493 – Review of Detention Policy Options (policies regarding the detention, trial, transfer, and release of individuals captured in counter-intelligence operations)
6. Executive Order 13494 – Economy in Government Contracts (costs that are not directly related to the contractors’ provision of goods and services to the Government shall be unallowable for payment)
7. Executive Order 13495 – Nondisplacement of Qualified Workers Under Service Contracts (procurement interests in economy and efficiency are served when the successor contractor hires the predecessor’s employees)
8. Executive Order 13496 – Notification of Employee Rights Under Federal Labor Laws (designed to promote economy and efficiency in Government procurement)
9. Executive Order 13497 – Revocation of Certain Executive Orders Concerning Regulatory Planning and Review (revokes Executive Orders 13258 and 13422)

President Trump Executive Orders, January 2017

1. Executive Order 13765 – Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal (seek the prompt repeal of the Patient Protection and Affordable Care Act)
2. Executive Order 13766 – Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (streamline and expedite environmental reviews and approvals for all infrastructure projects)
3. Executive Order 13767 – Enhancing Public Safety in the Interior of the United States (focus on “Sanctuary Cities”)
4. Executive Order 13768 –  Border Security and Immigration Enforcement Improvements (continue building a wall on US-Mexican border)
5. Executive Order 13769 –  Protecting The Nation From Foreign Terrorist Entry Into The United States (seven nation travel and refugee ban)
6. Executive Order 13770 –  Ethics Commitments By Executive Branch Appointees (revolving door, no lobbying on behalf of foreign nationals
7. Executive Order 13771 –  Reducing Regulation and Controlling Regulatory Costs ( for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process)

In this same period, Trump has signed 11 presidential memoranda. According to QZ, Obama  had signed 10 during this same period.

Repeating myself: the substance of executive actions is more important than the number. In  other words, relative numerical equivalence is only one measure of over-reach/precedent or business-as-usual.

The Christian Science Monitor shared this exchange with Samuel Abrams, a research fellow at Stanford University’s Hoover Institution on War, Revolution, and Peace:

“Businesspeople [like Trump] always over-act, they are setting their norm, they’re putting their stake in the ground, and they’re seeing how people react to it,” says Abrams. “People do this all the time in negotiations, especially in New York.”