Obama uses 'memos' in place of congressional action

WASHINGTON — The White House acknowledged Thursday that President Obama has used various forms of executive action when Congress has not acted, but it said the president was accurate when he said he has issued fewer executive orders than his predecessors.

It's true that Obama has issued fewer executive orders than any president in a century. But he's signed far more presidential memoranda, a lesser-known tool often used to initiate a change in federal regulations, than any other president.

"There's no doubt that the president has sought to use his executive authority to move this country forward within the confines of the law, oftentimes in the face of congressional inaction," spokesman Josh Earnest said. "I will readily concede that this president has used both executive orders and presidential memoranda to move this country forward as much as he possibly can."

Earnest responded to questions about Obama's use of presidential memoranda after USA TODAY reported Wednesday that he had signed more of those executive actions than any other president. Obama and his aides have said he issued fewer executive orders than any other president in 100 years but did not include presidential memoranda in that total.

Scholars call presidential memoranda "executive orders by another name." Earnest said there was "an important difference" between the two.

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"Generally speaking, presidential memoranda are associated with more technical issues and are often directives that are related to a subset of agencies," Earnest said. "Executive orders, therefore, are more sweeping and therefore often more impactful."

That's not always the case, said Kenneth Mayer, author of With the Stroke of a Pen: Executive Orders and Presidential Power.

"There's no definitive answer. I imagine that if you stacked up all 200 of these memoranda, some of them would be of great significance, and some of them would be extremely trivial," said Mayer, a professor at the University of Wisconsin-Madison. "So the upshot is just counting any particular instrument, or any particular type of instrument, doesn't really tell you the whole story."

This year, Obama has used executive orders to impose economic sanctions, establish a non-discrimination policy for gays and lesbians in the federal government and give federal workers the day after Christmas off. He's used presidential memoranda to overhaul enforcement of immigration laws and extend student loan relief, and this week, he declared Bristol Bay, Alaska, off-limits to oil and gas exploration.

Mayer said the technical difference between the two forms of action isn't important outside the executive branch. "Basically, the way that the term is popularly used, executive order is synonymous with executive action," which includes orders, memoranda, proclamations, military orders and a number of other instruments.

Congressional Republicans accused the White House of engaging in semantics.

"This administration has used word games to try to hoodwink the public about the extent of his executive actions," Sen. Chuck Grassley, R-Iowa, said in a column in USA TODAY. "Sadly, the Senate has also failed to uphold its own constitutional duty to check over expansive executive power."

Grassley said the issue will be on the Senate Judiciary Committee's agenda when he takes over its chairmanship next year.

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