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News — Presidential power comes in many forms, some more obvious than others. One direct way that presidents exert power is through executive orders. In the early weeks of the second Trump administration, more than 70 presidential executive orders were issued, on policy areas from immigration to deregulation. Trump is far from the only president to use executive orders—they’ve been popular among most presidents since World War II. 

But executive orders are not the only way the executive branch creates and affects policy in the U.S. Presidents can also instruct the departments and agencies in the executive branch in all manner of policies using what are called published and unpublished memoranda, which are issued with little or no fanfare. 

Unpublished presidential memoranda in particular are hidden from public view and have been used by presidents most often when facing opposition from Congress. Dealing with a Republican-led Congress in the mid-1990s, Bill Clinton issued more unpublished memoranda creating policy than were used in the final two years of Trump’s first administration, which faced a Democratic-led House of Representatives.

Presidential power, especially in the face of Congressional opposition, is an area that Meredith McLain, an assistant professor of political science, has studied in depth. She published  on the traceability of presidential policymaking and unilateral action, especially while confronting an oppositional Congress. She examined the use of these methods of creating policy from 1980 to 2020, the last year data was fully available for her study.

Tufts Now spoke with McLain to learn more about how presidents use unilateral power to affect policy, and what it means for democracy in the U.S.

What are differences between an executive order, a published memorandum, and an unpublished memorandum?

Executive orders and published and unpublished memoranda look quite similar. Presidents use them to instruct the bureaucracy on policy implementation, and in some cases create policy themselves.

Executive orders are usually used to create policy from scratch. They are regulated by the Federal Register Act, which was passed in the 1930s. It requires that executive orders be published in the , a public compilation of government documents. Executive orders often are issued with pomp and circumstance, with signing ceremonies, very similar to what happens with legislation.

Memoranda became popularized in the way that we see them today in the 1980s. They are not regulated by the Federal Register Act, and presidents are not required to publish them in the Federal Register. Still, sometimes they choose to put them in the Federal Register—these are called published memoranda. Unpublished ones are not included in the Federal Register and not issued with any publicity.

If a memorandum is unpublished—it’s not in the Federal Register—how do you find it?

I study presidents’ public papers, which have executive orders and published and unpublished memoranda. Presidents control when they release public papers. They could be released three months after they are issued, or presidents can wait till the end of their term to release papers. So we can find things after the fact that members of Congress are not able to find in the moment.

What is the function of these executive orders and memoranda? 

Usually they detail how to implement legislation, delegating authority and discretion to bureaucrats in executive departments and agencies—essentially saying, “here’s exactly what I want, say, the Department of Health and Human Services to do about this particular issue.” 

They can involve policy creation, creating a task force, actively directing the department to make a rule change, or routine administrative things, such as succession planning.

In the orders and memoranda, presidents have to say where they get the legal authority to do this, and if there is legal precedent, to cite that. Otherwise it’s easier to challenge these things in the courts if those opposed to it don’t believe there is legal precedent. 

How much latitude do presidents have to create policy with executive orders and memoranda?

They have a fair bit of leverage to do this. Presidents have been granted pretty broad authority from Congress in the past, especially related to foreign affairs. But they have leeway, too, in domestic policy, granted to them via statute. 

Congress can try to counteract these policies with new legislation, but sometimes Congress has difficulty overturning presidents’ policy initiatives. They try sanctioning presidents with things like oversight hearings. Increasingly the courts are becoming the best backstop for a president who is trying to overreach in unilateral creation of policy, even though historically the courts were very deferential to presidents for a variety of reasons, such as the fact that the courts don’t have enforcement power. 

Still, in Trump’s first administration, a lot of his unilateralism did face pushback. The Muslim travel ban at the very beginning of his term, for instance, faced heavy pushback from the courts. The courts might be the most effective at overturning presidential unilateralism, in a way that Congress is not effective at doing.

Why did you focus on the use of unpublished memorandums in your study?

The existing political science literature focuses mostly on executive orders, and there’s this surprise that presidents use fewer executive orders during times of divided government, when Congress is controlled by the other party. Because of this, some political scientists theorize that Congress is good at constraining presidents, since they’d expect more use of executive orders at times like that.

But I thought maybe it’s not that Congress is so good constraining presidents, but that presidents use alternative means to get what they want. I suggest that they use unpublished executive memoranda during these periods because they’re less traceable. 

In my research, I found some strong peaks of their use. They had been used previously, but not expansively, until Clinton, who used them quite regularly. He used them for all sorts of policy-related things, all over the spectrum.

Then their use dipped during the George W. Bush administration—in general Republicans tend to use unilateralism less than Democrats.

That said, Trump does not look like his Republican predecessors in many ways, so I would not feel comfortable saying that Trump’s use of executive orders is indicative of a larger shift in Republican presidents’ use of executive orders. We would need to see future Republican presidents act similarly to make that claim.

Why would Democratic presidents historically use unilateral action more than Republicans? 

One theory about this is that Democrats believe in a more expansive government—they want government to be doing more things, which requires them to instruct government administrators to do these actions, which require more directives.

On the other hand, Obama decided to create more transparency in government, so used fewer unpublished memoranda.

When the first Trump administration faced a divided government in its last two years, it issued far more unpublished memoranda than in its first two years, though still fewer than Clinton. While Trump issued executive orders on immigration in his first two years, in the last two years he used unpublished memoranda to address the way that the federal government implements immigration policy.

My theory is that when you have more support, you’re more likely to use the most traceable directives, but as support starts dwindling—or you have fears about support dwindling—you see presidents using less traceable directives.

If you were a two-term president, could you be issuing unpublished memoranda for eight years and they wouldn’t be public until the ninth year?

Yes, though you might release them earlier for some reason. You might wait three months and say, “I don’t see much of a risk of releasing this now.” But presidents could have been issuing things and not have anybody know about them that whole time. 

There’s also informal communication with the bureaucracy. A president could call up a bureaucrat and say, I want you to do X, Y, and Z, and the administrators start doing that. They don’t necessarily need an executive order or memorandum to implement policy. It’s really hard to study this, of course.

Is there a balance between presidents wanting to get credit for changes they make through executive orders and not being able to publicize their efforts—and get credit—with unpublished memoranda? 

Presidents want policy to be implemented the way they want it done. They don’t necessarily want to work with Congress—it’s a time-consuming process and often involves compromise. Unilateral action allows you to get policy implemented that’s closer to your ideal outcome. 

While using unpublished memoranda during divided government is quite attractive, the public is much less likely to know about it. Still, a president might want people to know about it—it might, say, help their reelection chances down the line. 

So it’s a constant balance between wanting people to know—to be able to claim credit for the things you’re doing—versus not wanting to face sanctioning for the policies from Congress. Presidents are always balancing these two urges, to do things in secret while also wanting people to know the things they’re doing in secret.

What are the implications for our democracy of presidents using unpublished memoranda to create policy on the sly—how do we know what the government is actually doing?

There are two ways you can think about this. One is that presidents want to do things in secret and don’t want the public to know about them—so they won’t be held accountable. That raises concerns about democratic accountability, and about our separation-of-powers system. 

If we think that there is strong value in having separation of powers, where Congress is the legislative body and presidents are just interpreting and implementing things that Congress wants, then it’s concerning that presidents are circumventing this system and doing things without check.

A rosier interpretation is that presidents, informed by experts in the federal bureaucracy, sometimes have a more accurate idea of what’s in the public’s best interest and are willing to implement these policies, even if the public—or their representatives in Congress—wouldn’t agree. 

That said, using unpublished memoranda to create policy is circumventing the separation-of-powers system and is concerning. While Congress is slow in passing legislation, and often involves compromise, the fact that it holds us back from having speedy policy change is not a bad thing. While it’s frustrating when people see their own party in power not getting things done, and a president feels that pressure more than any member of Congress does—the same is true when the opposite party is in power.