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Executive Orders

"Going it Alone"?


Executive Orders are a direct expression of presidential power, and a central component of the modern American Presidency. President Obama famously said, "I've got a pen, and I've got a phone...where Congress isn't acting, I'll act on my own."



President Obama's comments were praised by some who lauded him for "going it alone." But they drew negative reactions from others, including from candidate Donald Trump, who criticized Obama for his excessive reliance on executive power. "[President Obama] goes around signing all these executive orders. It's a basic disaster. You can't do it."


When Donald Trump became president, however, he did not shy away from using his new presidential pen and phone. President Trump would go on to pass 220 executive orders, an average of 55 per year, outpacing President Obama's previous rate of 35 per year.


As of writing, President Biden has passed an average of 43 executive orders per year. This is close to the median average among the last 10 presidents (47), while just under the average (51.6):



Executive Power and Federalism


Executive orders are an important part of modern national government, and they affect the balance of power between the federal government and state governments. These orders allow the President to take unilateral actions and often involve the implementation of federal policies, which can either complement or conflict with state policies.


How much do modern Presidents rely on Executive Orders and what can we learn from analyzing the use of executive orders over time?



Executive Orders by President


To make sense of trends in executive action, it is useful to take a historical perspective and look at the "raw count" of executive orders over time since the founding:



Measured by volume, and when compared to wartime presidents (especially Franklin D. Roosevelt and Woodrow Wilson) both President Obama, Trump, and Biden's use of executive orders do not appear out of the ordinary. Sorting by raw count, FDR is the most active president. Today Franklin D. Roosevelt accounts for nearly 23% of all EOs:



Sorting by average per year provides some perspective. When sorted by average per year, Herbert Hoover ranks second with 242 executive orders per year:



Orders By Type


Executive orders are not the only kind of presidential directive. When analyzing the growth of "executive federalism", it is useful to consider the variety of executive actions at the disposal of the U.S. President. Author Phillip J. Cooper, in his book By Order of the President: The Use and Abuse of Executive Direct Action, wrote, "As a practical matter, the memorandum is now being used as the equivalent of an executive order, but without meeting the legal requirements for an executive order."


The following chart compares five major types of executive action from 1993-2023:



First 100 Days


Historically, Presidents have used the "First 100 days" in office as an opportunity to use make an impact through the use of Executive Orders. The following "race" chart shows the "Total Actions After _ Days in Office," up to 100 days:



Revoking Orders


Percent / Ratio of Orders that Revoke Previous Orders


Because executive orders are not approved by Congress, they can (and are) easily revoked. The American Presidency Project provides analysis of President Biden's first 100 Days in office. They note that President Biden was "far more active than other post-FDR presidents."

Twenty-one of Biden's 42 orders included revocations:



Key Takeaways


  1. Following Kincaid (2019), executive orders do play a small but significant role in the centralization of lawmaking. Understanding the use of executive orders therefore may have implications for understanding changes in the American federal system.

  2. In total, there are more than 15,540 executive orders across all presidential administrations.

  3. Democratic Presidents issued 36% of all Executive Orders during wartime (Woodrow Wilson and Franklin Delano Roosevelt). 

  4. This apparent difference between Democratic and Republican usage of Executive Order is less significant when measured by the rate of usage (i.e., when sorted "average per year").

  5. We observe a 27% decrease trend in the use of Executive Orders from 1995-2018. However, there does seem to be an increasing reliance on other types of executive action, including Memoranda, Notices, and Proclamations (esp. from 1995-2018). Proclamations are largely symbolic, although some commentators have included proclamations in the category of executive action known as "regulatory dark matter."

  6. Considering the raw count of executive orders, President Biden has been far more active than any other president since FDR. The number of non-symbolic actions by President Biden has exceeded the 100 day total for every president, except for FDR. President Biden has also been far more active than previous presidents (immediate predecessors) in undoing past action (see Woolley and Peters 2021, https://www.presidency.ucsb.edu/)

  7. Researchers who follow trends in executive action may be interested in the increase in efforts to check executive action in recent years, either through the enhanced leverage of state attorney generals, or the willingness of federal district court judges to block executive actions. See "Court Challenges" by John T. Woolley and Gerhard Peters for analysis and data:  https://www.presidency.ucsb.edu/analyses/biden-action-the-first-100-days


Sources



Recommended


  • We recommend the American Presidency Project for data and analysis. See: https://www.presidency.ucsb.edu/

  • By Order of the President: The Use and Abuse of Executive Direct Action, Phillip J. Cooper 2002.

  • For more on the different forms of presidential action see: https://www.presidency.ucsb.edu/statistics/data/executive-orders

  • For data on the growth of the Executive branch, see: https://www.presidency.ucsb.edu/statistics/data

  • "The Administrative Presidency: Reuniting A Divided House"(Nathan 1983)

  • “The State of American Federalism 2016–2017: Policy Reversals and Partisan Perspectives on Intergovernmental Relations.” (Goelzhauser and Rose, 285–313)

  • “Executive Orders.” (The Heritage Foundation)

  • “Executive Orders 101: What are they and how do Presidents use them?” (National Constitution Center 2017)

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