WASHINGTON – President Barack Obama has a new go-it-alone strategy: When Congress blocks his way, the president says he plans to act on his own more often. (He’s already done it quite a bit.) Five things to know about executive orders and other presidential edicts:
1. EVERY PRESIDENT DOES IT. The strategy goes all the way back to George Washington, who issued 8 executive orders, although that precise term wasn’t in use then. Some big examples of unilateral executive action: Thomas Jefferson and the Louisiana Purchase. Abraham Lincoln’s Emancipation Proclamation. Harry Truman desegregating the armed forces. George W. Bush establishing military tribunals to try “unlawful enemy combatants.” Obama giving young people brought to this country illegally a reprieve from deportation.
2. THE OTHER PARTY HATES IT — UNTIL IT’S THEIR TURN. Members of the opposing party can be expected to criticize presidents who make an end run around Congress. They especially squawk about so-called midnight regulations that a president issues just before turning the White House over to someone of the opposing party. But once the tables are turned, the next president is apt to do the same thing. And the party that’s now on the outside is sure to complain about an abuse of power.
3. NOT ALL EXECUTIVE ORDERS ARE “EXECUTIVE ORDERS.” It’s complicated. There are executive orders, proclamations, directives, memos and all sorts of other ways for presidents to get their way — within the limits of the Constitution and federal law. Proclamations, for example, have the same force of law as executive orders. The difference? Executive orders are aimed at those within government; proclamations at those outside government. Examples: Obama’s move to raise the minimum wage for new federal contractors will be an executive order. His deferred deportation program came out as a policy memo from his Homeland Security secretary. Bill Clinton’s last-minute move to protect more than a million acres of land by creating new national monuments came as a series of proclamations. Gerald Ford pardoned Richard Nixon with a proclamation. Jimmy Carter pardoned Vietnam draft evaders with a proclamation.
4. EXECUTIVE ACTIONS AREN’T SET IN STONE — OR FOOLPROOF. Future presidents can reverse their predecessors with the stroke of a pen. The so-called “global gag rule,” which denies U.S. dollars to any international family planning group that provides abortion-related services or information, has gone back and forth like a ping-pong ball. It was imposed by Ronald Reagan, rescinded by Clinton, re-instituted by Bush, yanked again by Obama.
Sometimes, though, presidential actions are harder to reverse. In Clinton’s final days in office, his administration set tighter standards for the amount of arsenic allowed in drinking water. Bush suspended the rules for a while, but ultimately let them go through after facing a public outcry.
Some executive actions just don’t pan out. In his first week in office, Obama signed an executive order to close the prison at the U.S. naval base in Guantanamo, Cuba.
Not so fast, Mr. President: Congress has used its budgeting power to block Guantanamo detainees from being moved to the United States ever since.
5. OBAMA’S USE OF EXECUTIVE POWER ISN’T OUT OF THE ORDINARY. Executive actions are hard to quantify, since they take so many forms. Further, numbers don’t tell the whole story since one action might celebrate a birthday and another declare slaves to be free. As for executive actions overall, Obama “has used them a lot, but his use of them is not at all unusual or exceptional,” says Kenneth Mayer, a political science professor at the University of Wisconsin-Madison who’s written a book on the executive orders. Obama has issued about 34 formal executive orders per year; compared to about 36 per year for Bush, 46 for Clinton and 48 for Ronald Reagan, according to The American Presidency Project at the University of California-Santa Barbara.
“With the Stroke of a Pen: Executive Orders and Presidential Power,” by Kenneth Mayer.
The American Presidency Project, University of California-Santa Barbara
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