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Why counting executive orders is an awful way to measure presidential power

During the past couple years of debate over President Obama's use of presidential power, some liberals have been skeptical of the very idea that he might be expanding it at all. Some version of a chart showing how frequently presidents use executive orders is often cited (this one, from earlier this summer, is courtesy of the Brookings Institute):

Executive order chart Brookings

Yet this chart of executive orders actually shows us very little about presidential power, as Kenneth Mayer, a political science professor at the University of Wisconsin-Madison, told me when I was reporting a feature this summer. Mayer is the author of the book With the Stroke of a Pen: Executive Orders and Presidential Power, so he should know.

1) Executive orders vary hugely in significance

First of all,  executive orders vary wildly in importance — some are vast and wide-ranging, while many others are utterly insignificant. For example, on most years, the president issues an executive order midway through December directing agencies to let employees leave work at noon on December 24th. And last February, Obama issued a four-page executive order renaming the "National Security Staff" to the "National Security Council Staff."

By contrast, Harry Truman issued an executive order to desegregate the military. And, obviously, other executive orders fall somewhere in between.

"With executive orders, the number is less important than the substance," Mayer said. In one of his studies, he drew up a sample of about 1,000 executive orders and tried to determine which actually had substantive importance — and found that only between 15 and 25 percent did.

2) Executive orders are only a small part of possible presidential actions

"In the press, you frequently will see the term executive orders as meaning anything a president can do unilaterally or by himself — but that's not right," Mayer told me. "There is a formal legal document called the executive order, which is published in the federal register. But that's actually only a very small part of the range of unilateral actions the president has."

Bowdoin political science professor Andrew Rudalevige elaborated in this paper analyzing Obama's use of executive power:

"Obama's 20 executive orders in 2013 marked the lowest single-year total in more than a century. But that same year he issued 41 presidential memoranda to the heads of departments and agencies, along with nine additional presidential 'determination's designed to serve as the basis for administrative action. This count does not include any such memoranda not published on the White House website, nor classified orders, nor the half dozen-plus Presidential Policy Guidance or the Presidential Policy Directive documents produced that year through the National Security Council advising process. Nor does it include proposed regulations, signing statements, legal interpretations, or administrative orders technically issued by department heads but at White House behest."

"You'll frequently see very cursory examinations that conclude that Obama's issued fewer executive orders, so people draw the inference of 'well, he's fine.' That doesn't do it," Mayer continued. "There are lots of other actions he's taken. And most of the Obama actions that have so exercised Republicans have not been executive orders."

For instance, neither Obama's 2012 deportation relief program nor the various delays to the Affordable Care Act came about through executive order.

So why do executive orders tend to get so much attention? As Rudalevige writes in his paper, they're "easy to measure." They're published in the Federal Register and now on the White House website here. "Perhaps partially as a result" of this relative transparency, Rudalevige continues, "they are not always presidents' preferred vehicle for directing administrative behavior" — and they've been in decline for decades.