In the lengthening shadow of the administrative state, Richard Nathan (1986, 82) wrote of an "administrative presidency"--necessitated by the fact that "in a complex, technologically advanced society in which the role of government is pervasive, much of what we would define as policymaking is done through the execution of laws in the management process." Two decades years later, one-time White House policy adviser and future Supreme Court Justice Elena Kagan would observe (2001, 2385) that "by the close of Clinton's presidency, a fundamental ... transformation had occurred in the institutional relationship between the administrative agencies and the Executive Office of the President." The new relationship was one that involved using a multitude of executive management tools to enhance presidential control of the bureaucracy--in Kagan's phrase, to create "presidential administration."
Another 15 years have passed, but the dynamics Kagan described remain key to understanding presidential behavior. She wrote that Clinton acted to expand executive management of the bureaucracy because he was "faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues" (Kagan 2001, 2248), nor was he less aggressive in his use of unilateral tools in foreign policy too (Hendrickson 2002). This motivation rings equally true and perhaps even louder for the Obama administration--and probably its successors--given increasing levels of partisan polarization. Hence, Obama's 2011 cry that "we can't wait" for "an increasingly dysfunctional Congress to do its job." Hence his fealty to utilizing his "pen and phone" during a "year of action." As the president declared in early 2014, "I can use that pen to sign executive orders ... and take executive actions and administrative actions that move the ball forward" (Obama 2011b; 2014a; and see Lowande and Milkis 2014).
As the Obama years come to a close, where is that ball? This essay provides a brief, relatively informal overview of the late-term patterns of the Obama administrative presidency. What follows has its inspiration in a series of blog posts written originally for The Monkey Cage blog on the Washington Post website. (1) Because such pieces are built to react to current events, reviewing them helps highlight trends in presidential behavior. In this case three related themes stand out. The first is the range of tools available to an administrative president. Obama's tactical application of managerial strategy has centered not on executive orders per se, despite misleading commentary to the contrary both outside and inside the administration, but on the wider range of "executive actions and administrative actions" noted above.
The second is the frequent use of administrative statutory interpretation to drive these actions, whether by producing legal opinions, issuing guidance documents, or more formal rulemaking. When new laws could not be passed, old laws were given new interpretations. The Obama administration was keen to stress its fidelity to statute, in contrast to the Bush administration's emphasis on presidential prerogative, especially as amplified in wartime (Savage 2015). But that only made the interpretation of that statute all the more important.
The actions that the Obama team's interpretations justified were frequently contested by Congress and in the courts, with mixed outcomes. But this was less true in the third thematic case, which centers on the administration's claims about the expansive scope of the 2001 Authorization for the Use of Military Force (AUMF) and the contrastingly narrow application of the 1973 War Powers Resolution (WPR). Here, Obama was given much more leeway, at some cost to the powers and duties of Congress.
Defining the Administrative Presidency: Actions, Not Orders
It is common for journalists, politicians, and sometimes even scholars to call any sort of presidential directive an "executive order." The Obama administration serves as a salutary reminder that this conflation can be problematic.
The president's promised "year of action" was met with angry charges that he was overstepping his authority. The White House and its allies responded that far from abusing his power, Obama was doing much less than most presidents had. White House Senior Advisor Dan Pfeiffer stressed that Obama was "issuing executive orders at the lowest rate in 100 years," a statistic Obama himself cited in a subsequent press conference (Bell 2014; Obama 2014b). In November 2014 the president added that "I have issued fewer executive actions than most of my predecessors, by a longshot.... [T]ake a look at the track records of the modern presidency, I've actually been very restrained" (Obama 2014e).
Obama's use of the word "actions" instead of "orders" in November seems to have been off script. For it was true that as of mid-2016, he had issued fewer executive orders--both in absolute terms, and on an order-per-year basis, than most of his recent predecessors. Obama peaked at 39 orders, in 2009 and 2012, with a low of just 20 in 2013. With exactly seven months to go in his term (through June 20, 2016), he had issued 240 executive orders in all, for an average of 32.4 per year to that point. (2) That compared to 47.6 executive orders per year under Ronald Reagan and 45.5 per year under Bill Clinton.
But even those administrations represented a decline in order issuance beginning in the 1950s. Before that, Franklin Roosevelt issued nearly 300 orders per year (some 3,500 overall), and Harry Truman more than 100, many of them linked to wartime and postwar administrative policies. From Dwight Eisenhower to Jimmy Carter, the figure dropped to about 60 to 80 orders per year. And no president since has issued an annual average of more than 50. George H. W. Bush issued just over 40 per year, and George W. Bush--no shrinking violet in the administrative realm--only 36.4.
Executive orders are certainly a real measure of unilateralism, and they have been the basis of much important presidency scholarship (e.g., Howell 2003; Mayer 2001; Warber 2006). They can be a vehicle for important substantive change--as with Obama's expansion of protections for the employees of federal contractors, seeking to restrict government procurement dollars to companies who agreed to pay a higher minimum wage, ban discrimination on the basis of sexual orientation and identity, provide paid sick leave, and tighten compliance with laws mandating "integrity and business ethics." (3)
But executive orders are one item of many in the administrative toolbox. They follow a standard intra-administration clearance sequence, must be grounded specifically in statute or constitutional authority and are normally published in the Federal Register. Where these constraints are inconvenient, another sort of directive may be utilized--for example, an executive memorandum, touted by Kagan (2001) as key to Clinton's tactics. As Cooper (2014, 169) argues, "memoranda can be used to make important and often unrecognized policy changes in ways that are unlikely to be traced or subjected to oversight." While Obama issued only 20 executive orders in 2013, that same year he issued 41 presidential memoranda to the heads of departments and agencies (Korte 2014; Lowande 2014).
Nor is that the president's only option: that tally does not include signing statements, statutory "findings," letters, and guidance documents and administrative orders technically issued by department heads but at the behest of the White House. A study by the Congressional Research Service lists more than 20 such managerial vehicles (Relyea 2008). And according to the Justice Department's Office of Legal Counsel (2000), "there is no substantive difference in the legal effectiveness of an executive order and a presidential directive that is not styled as an executive order."
To get a sense of the breadth of Obama's unilateral options, consider a top-10 list of alleged presidential overreach populated with actions critiqued by both academics (e.g., Ackerman 2014; 2015; Bernstein 2015; Fisher 2012) and partisan opponents (e.g., Boehner 2014; Cruz 2014; Ryan 2016). A sampling of these will be discussed in more detail below, but a quick summary of each is enough to make the point:
The use of American force in Libya and, in aid of combating the so-called Islamic State in Iraq and Syria (ISIS), in those nations as well, without explicit congressional authorization. In Libya this was done as part of a NATO operation with humanitarian overtones; with regards to ISIS the administration has argued that the September 2001 AUMF extends to that conflict because ISIS can be seen as a successor organization to al-Qaeda.
Targeted killing via drone warfare, including that of American citizens abroad. Carried out by presidential directive, after administration legal opinions found killings of this sort part of warfare and not assassinations (Savage 2015; Shane 2015).
Creative implementation of the Affordable Care Act, for instance, over the Obama administration's action to postpone the effective dates of certain mandates in the law. Some of the delays in question were achieved by what the Treasury called the exercise of its "longstanding administrative authority to grant transition relief when implementing new legislation," others by rules changes announced by an administrative bulletin issued by the Centers for Medicaid and Medicare Services (Rudalevige 2016, 17-18).
Waivers to the provisions of laws such as the No Child Left Behind Act. These waivers were granted by the Secretary of Education under authority granted in turn by, well, the text of the No Child Left Behind Act (Rudalevige 2014, 47).
Deferring deportations of certain people not "lawfully present" in the United States. The two stages of this story (discussed in detail below) were carried out at presidential direction by the Secretary of Homeland Security via guidance documents implementing...