The Contemporary Presidency After the Orders: Presidential Memoranda and Unilateral Action

The "Mexico City Policy," which prohibited U.S. foreign aid to organizations that funded abortions, has been the subject of an executive tug-of-war since established by the Reagan administration. Bill Clinton repealed the policy in one of his first actions as president (Clinton 1993). In 2001, George W. Bush reinstated the policy, writing that it was his "conviction that taxpayer funds [...] should not be given to foreign nongovernmental organizations that perform abortions or actively promote abortion" (Bush 2001a, 17303). President Barack Obama eliminated it for the second time in his first days in office (Obama 2009). These actions constitute important examples of what might be termed "unilateral action." (1) However, none of them were taken by the most familiar means of such action--the executive order. In each case, policy change occurred by way of presidential memoranda', a class of presidential actions that contains orders to administrators and is not subject to the statutory reporting requirements of executive orders and proclamations. In response to a relatively constrained view of presidents--forced to "bargain" their way to policy accomplishment--an important vein of presidency scholarship has shifted focus to the president's formal and informal instruments of unilateral action. This has led to systematic analyses of the tools available to the president: executive orders; proclamations; and, most recently, signing statements. The aim of this article is to consider this additional tool--presidential memoranda--and to suggest what the study of unilateral action, more broadly, could gain by including them. To preview those conclusions, the payoff of including presidential memoranda is that they reveal additional observations of unilateral action and provide initial analytical leverage for understanding what induces presidents to use one tool over another. I argue that these memoranda contain important policy content, and that in recent years, they have been used interchangeably with executive orders. Memoranda perform a variety of functions, however, like executive orders, they are essentially orders to administrators. Researchers typically reference executive orders to highlight the degree to which the president is capable of making policy independent of other institutional actors. This extends to a subset of presidential memoranda, as it does for a subset of executive orders. Presidents have used memoranda to set policy, sometimes acting independent of authorizing legislation. In light of this, it is significant that over the last 50 years, published memoranda have surged as executive order issuance has declined. Analyzing memoranda issued between 1946 and 2013,1 find evidence that memoranda are increasingly significant, measurable outputs of executive action. Presidents have increasingly used memoranda rather than executive orders to effect similar ends. (2) Moreover, memoranda and executive orders both appear to be indications of presidential unilateralism. Taking into account variables, which others have shown to effect the frequency of executive orders from year to year, memoranda are positively related to their more well-known counterpart. The observed relationships highlight the malleability of these administrative tools--which often have few formal, legal standards. Far from being fixed, presidents largely determine the definition of these instruments and how they ought to be used. More specifically, the increased frequency and importance of presidential memoranda suggests changing incentive structures have contributed to a corresponding reduction in executive orders. Presidential memoranda may be a less politically costly means of action as public and elite awareness of executive orders have increased. Contemporary news coverage of executive orders is ubiquitous, such that the tool immediately evokes potentially damaging questions of "imperial overreach." (3) Recent events during the first and second terms of the Obama administration indicate that the shift between executive orders and presidential memoranda may mirror the move from signing statements to "statements of administrative policy"--which, as Crouch, Rozell, and Sollenberger (2013) note, perform similar functions without the negative publicity associated with signing statements since the end of the second Bush administration. …