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December 19, 2014

Memo to Obama: Your Power Has Limits

It’s not the number of Obama’s orders and memos, it’s their scope.

The scope of Barack Obama’s abuse of power is even worse than previously thought. According to Gregory Korte of USA Today, Obama’s clever use of executive “memoranda” together with traditional executive orders puts him in the running to take more high-level executive actions than any president since Harry Truman. So much for his claim to be the “most transparent” president ever.

We’re all painfully aware of the executive actions Obama has taken while in office and the contempt he holds for Rule of Law. Earlier this year, when it became clear that Congress was not going to bend to his imperial will, he vowed, “We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen … and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.” These words and the actions Obama has since taken to back them up have created a constitutional crisis.

Naturally, statists say we shouldn’t worry. In a typical child’s playground tactic, leftists get caught doing something they’re not supposed to and then point the finger at someone else, saying, “But look what he did.”

Press Secretary Josh Earnest blamed Congress, arguing that Obama’s actions are only meant to “move this country forward” in the face of “congressional inaction.”

And in February, then-Press Secretary Jay Carney told reporters with a straight face, “There is no question that this president has been judicious in his use of executive action [and] executive orders, and I think those numbers thus far have come in below what President George W. Bush and President Bill Clinton did.”

Shadee Ashtari, writing for the Huffington Post in November, bent over backward to point out that Obama has released fewer executive orders than any president since McKinley. She also notes, with glee no doubt, that Obama’s per-year average of executive orders falls below the last three Republican presidents.

That’s just executive orders, though. As Korte’s analysis inadvertently points out, no one seems to be counting executive memoranda. Obama has already signed 33% more presidential memos than Bush did in a full eight years in office and 45% more than Clinton. Add the memos to the executive orders and Obama now becomes the president to issue more executive actions than any president since Truman.

But it’s not the number that’s the problem. It’s the scope. One executive order clarifying a law does not equal a memo essentially writing a new law.

So why issue one instead of the other? Executive orders carry legal weight, and are numbered, indexed and noted in the Federal Register. Memoranda carry essentially the same legal force, but they are not numbered, and although they must also be published in the Register they are not required to contain a “citation of authority” noting the law they are based on like executive orders. Until recently, memos were not really tracked except in the historical record.

There’s also a difference of impression. An executive order sounds like what it is – an edict from the White House to make or change a rule without consultation with Congress. A memo sounds like a harmless note someone would draft to call attention to an issue.

Would any sane American consider Obama’s recent unilateral action on immigration harmless? Contrary to popular misconception, that was accomplished via a series of presidential memoranda, not an executive order.

Obama also issued memoranda after the Newtown shootings ordering federal law enforcement to trace firearms that are part of federal investigations and expand the data available to federal background checks. Other memos have tinkered with labor regulations for federal employees. As recently as this week, a presidential memorandum declared Bristol Bay, Alaska, off-limits to oil and gas exploration.

The difference between orders and memoranda is much more than just a semantic one, but Obama has counted on our inability to connect the two to obscure the fact that he has stretched the power of his office far beyond constitutional bounds.

We the People should be very alarmed. Obama has found an unconstitutional route around his lame-duck incumbency, and his hubris and utter contempt for our constitutional system of checks and balances will assure that he doesn’t lose sleep at night while he does it. Worse, now that he’s no longer accountable to the electorate in any way for the next two years, the harm he has already caused may be small by comparison. If he wants to do something, he’s just going to do it and dare Congress to stop him.

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