Pen and phone power: How presidential documents are changing the rules

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Presidential executive orders and directives have long played a pivotal role in shaping federal policies and regulations. As President Obama famously remarked in 2014, "I've got a pen, and I've got a phone," signaling the alarming potential power of executive action to drive change without waiting for Congress.

This approach, reminiscent of FDR's bold, unilateral, and semi-threatening decisions made during times of crisis, has come to symbolize the expanding authority of the executive branch-often at the expense of legislative oversight.

In a new Forbes article, I explore the growing significance of these executive actions in today's climate of skyrocketing federal spending and pervasive regulation. While formal agency rules are documented and counted, the same cannot be said for informal guidance documents and memoranda. These instruments, even though not sanctioned by the Constitution, exert substantial influence over policy implementation and often escape public scrutiny.

Similar outsized influence applies to executive actions that sidestep traditional notice-and-comment processes required for regulatory changes. As I've often referenced, the Biden-Harris administration has embraced a sweeping "whole-of-government" approach to advancing progressive policy priorities-from climate change to equity to economic controls of pricing and even business structure. Restraints on power were always important, but such alarming developments make it more urgent than ever to scrutinize unilateral executive maneuvers.

Despite recent Supreme Court rulings aimed at curbing federal agency powers, the executive branch's ability to push through sweeping changes using both carrots and sticks remains potent-and could grow even stronger. With inadequate checks on government power, executive actions have increasingly become a vehicle for laundering regulatory expansion, bypassing both Congress and the public.

To restore and maintain oversight and ensure proper checks and balances, it is vital for policymakers to compare and evaluate the directives issued by presidents across different administrations-and to be ready for what comes next. In my Forbes article, I emphasize the importance of understanding the scope and nature of these actions, and as a first step I've compiled a chart cataloging the types of presidential documents from recent administrations.

In the article, I delve into each type of document and offer examples from both Donald Trump and Joe Biden. Also noted there is the manner in which these directives can substitute for one another to either publicize and elevate policy changes or obscure them. Recent elections have demonstrated the dramatic reversals in policy that can occur with a change in political party, making comprehensive analysis and monitoring of executive orders, memoranda, and other proclamations increasingly urgent.

By first acknowledging the interplay between unchecked spending and regulation, and then by taking stock of the scope and effects of presidential actions that exploit both, we can begin to restore the bloated federal government to reasonable dimensions. Reestablishing proper checks on power and ending the misuse of presidential authority are necessary-no matter which party holds the pen and phone.