The Most Dangerous Directive: The Rise of Presidential Memoranda in the Twenty-First Century as a Legislative Shortcut

The modern president faces an increasingly divided and polarized legislature. In the face of this legislative inertia, presidents must increasingly rely on the executive power to institute policy change. This Comment examines the historical expansion of the executive power through the use of presidential directives. Recently, there has been a resurgence in the use of presidential memoranda as a vehicle for significant policy change. This Comment will use President Barack Obama’s Hospital Visitation Memorandum to illustrate the issues and implications of using memoranda to enact significant presidential policy objectives with the force of law. Because memoranda lack effective procedural safeguards that are necessary to ensure a government of separated powers, this Comment argues that memoranda should not be used as a substitute for legislation that affects the rights of individuals.