Measure Executive Orders By Content, Not Number

Kevin Glass | November 28, 2014 1:44 PM

President Obama's liberal use of his executive authority has been defended by progressives as being firmly in line - and even less so - than the executive powers claimed by previous presidents. They'll point to the number of executive orders that President Obama has issued as evidence that his use of this authority is not abnormal.

Over at FiveThirtyEight, Dhrumil Mehta argues that President Obama has been more restrained in his use of executive orders than every President since Grover Cleveland:

We looked at data from the American Presidency Project and found that the use of executive orders peaked in the era of the New Deal (FDR set the record) and has been on the decline since. In the past 100 years, Democrats have used them more than Republicans. Here’s every president’s tally per year that he served in office.

Mehta shows that executive orders peaked with Franklin Roosevelt but have fallen since then, and that Barack Obama has actually issued the fewest executive orders per year in more than 100 years.

This kind of analysis is incomplete. The number of executive orders is not the sole lens through which we should view this kind of executive authority. It should be the way in which a President exercises it.

At the Mercatus Center, Patrick McLaughlin has come up with a better way:

While other analysts have examined the number of executive orders issued by different administrations, we have used RegData, a database producing statistics based on the Code of Federal Regulations, to examine some of the content of these executive orders and proclamations for the past six presidencies, through the end of Obama’s first term. In particular, we examine the usage of restrictions—words that create binding, legal obligations, such as “shall” and “must.” Although the current administration has issued fewer executive orders than other modern administrations, the figures below show that its total usage of restrictions in executive orders and proclamations exceeds that of any of the past six administrations, with the exception of Clinton’s first term.

President Clinton is still the reigning modern champion of executive orders, but President Obama is right there with him. It's possible that President Obama also catches up to Clinton - his attitude about dealing with the incoming Republican congress might get his executive order pen itching to issue a few.