President Barack Obama made news heading into in his second term by issuing nearly two dozen executive actions designed to prevent gun violence in the United States, one of his primary agenda items. Many of the media reports mistakenly described the policy proposals as official executive orders, legally binding directives from the president to federal administrative agencies.
But the 23 executive actions – ranging from universal background checks on anyone trying to buy guns, restoring a ban on military-style assault weapons, and cracking down on straw purchases of guns by people whose intention is to resell them to criminals – carried none of the weight executive actions carry.
So why is that? What are executive actions and how do they compare to executive orders?
Executive Actions Versus Executive Orders
Executive actions are any informal proposals or moves by the president. The term executive action itself is vague and can be used to describe almost anything the president calls on Congress or his administration to do. But most executive actions carry no legal weight. Those that do actually set policy can be invalidated by the courts or undone by legislation passed by Congress.
The terms executive action and executive order are not interchangeable. Executive orders are legally binding and published in the Federal Register, though they also can be reversed by the courts and Congress.
When Executive Actions Are Used Instead of Executive Orders
Presidents favor the use of nonbinding executive actions when the issue is controversial or sensitive. For example, Obama carefully weighed his use of executive actions on gun violence and decided against issuing legal mandates via executive orders, which would have gone against the legislative intent of Congress and risked enraging lawmakers of both parties.
Executive Actions Versus Executive Memoranda
Executive actions are also different from executive memoranda.
Executive memoranda are similar to executive orders in that they carry legal weight allowing the president to direct government officials and agencies. But executive memoranda are typically not published in the Federal Register unless the president determines the rules have “general applicability and legal effect.”
Use of Executive Actions by Other Presidents
Obama was the first modern president to use executive actions in lieu of executive orders or executive memoranda.
Criticism of Executive Actions
Critics described Obama’s use of executive actions as an overreach of his presidential powers and an unconstitutional attempt to bypass the legislative branch of government, even though the most substantial of the executive actions carried no legal weight.
Some conservatives described Obama as a “dictator” or “tyrant” and said he was acting “imperial.”
U.S. Sen. Marco Rubio, a Republican from Florida who is considered a potential presidential candidate in the 2016 election, said Obama was “abusing his power by imposing his policies via executive fiat instead of allowing them to be debated in Congress.”
Republican National Committee Chairman Reince Priebus called Obama’s use of executive actions as an “executive power grab.”
Said Priebus: “He paid lip service to our fundamental constitutional rights, but took actions that disregard the 2nd Amendment and the legislative process. Representative government is meant to give voice to the people; President Obama’s unilateral executive action ignores this principle.”
But even the Obama White House acknowledged that most of the executive actions carried no legal weight. Here’s what the administration said at the time the 23 executive actions were proposed:
“While President Obama will sign 23 Executive Actions today that will help keep our kids safe, he was clear that he cannot and should not act alone: The most important changes depend on Congressional action.”