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The Number of Executive Orders Is the Least Interesting Part



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Barack Obama is constantly mocking the House lawsuit by referencing the fact he’s issued the fewest executive orders of any president over the last century. His spin squad, paid and unpaid, parrots the argument at every turn. My yell-at-the-TV gripe about this has mostly revolved around the fact that the number of executive orders has nothing to do with anything. The president could issue a hundred executive orders a day — about casual-Friday dress codes, the need to label food in the West Wing fridge, about how August 15 will hence forth be known as “Wacky Sock Day” — and no one would care. Or he could issue one executive order during his entire presidency. If that one order was about “Wacky Sock Day,” again no one would care. But if he ordered the nationalization of an industry or the rounding up of an ethnic group without trial or the shuttering of media outlets he didn’t like, that one executive order would matter more than all the others combined. He hasn’t done any of those things (though other Democratic presidents have), but the point remains: Quantity isn’t the issue, quality is. 

Moreover as Andrew Rudalevige at the Washington Post makes clear, the entire issue of executive orders amounts to misdirection. The serious complaint is that Obama is abusing executive powers (which he is) not that he’s abusing executive orders (which he may or may not be). Obama is surely capable of defending himself intelligently. But he and his choir always revert to the mode that his opponents aren’t merely wrong, but that they are laughable idiots who don’t know what they’re talking about.

Anyway, the whole post is worth reading. Here’s the beginning:

There are plenty of reasons for the House not to sue the President (see hereherehere, and here). Not on the list, though: that President Obama has barely used his executive powers.

This claim was made most recently by the White House itself, when senior adviser Dan Pfeiffer spoke to ABC’s George Stephanopoulos on Sunday’s “This Week.” The threat of impeachment is credible, Pfeiffer said, since the GOP is so crazed that “the House [took] an unprecedented step to sue the President of the United States … even though he is issuing executive orders at the lowest rate in 100 years.”  Or as Sally Kohn put it in a CNN op-ed, after listing executive order totals for Obama, TR, Eisenhower, Reagan, and Bush, “House Republicans are using taxpayer dollars to fund a lawsuit against a President who has literally done not only what every president before him has done but has done it less often . . .”

To be pedantic (I think I’m supposed to say first that I hate to be pedantic, but I’m a professor, and that would be a lie), this is both true and hugely misleading.  It is true that President Obama has issued fewer executive orders both in absolute terms, and on an order-per-year basis, than most of his recent or even recent-ish predecessors. It’s also true that executive orders can matter greatly, as with Obama’s expansion of protections for the employees of federal contractors.

And yet to equate executive orders (a formal type of presidential directive) with executive powers, as the White House and its allies seek to do, is to misdirect — to hope that the hand will be quicker than the eye. As Philip Bump has put it, the fuss is about executive actions more broadly. While Obama issued only 20 executive orders in 2013 (the lowest single-year total in more than a century), that same year he issued 41 presidential memoranda to the heads of departments and agencies, along with nine additional presidential “determinations” designed to serve as the basis for bureaucratic behavior.



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