The Contemporary Presidency: Executive Orders and Presidential Unilateralism

Article excerpt

In the last decade or so, students of the American presidency have renewed their interest in the formal authorities and unilateral possibilities of presidential power, driven both by methodological logic and by events. On the theoretic side, scholars working within the broad framework of the "new institutionalism," especially its rational choice variant, have made a case that the formal, legal, and organizational aspects of the presidency--and the incentives and constraints for presidential behavior these implied--had been too long neglected in favor of impressionistic accounts of the "personal presidency." A focus on the formal powers that underlay the presidential office, and the way these could be used to enhance an incumbent's influence, was needed to fill that gap (e.g., Howell 2003; Kelley 2007; Moe 1985, 1993; Moe and Howell 1999). After all, as Kenneth Mayer argued (2001, 11), "in most cases, presidents retain a broad capacity to take significant action on their own, action that is meaningful both in substantive policy terms and in the sense of protecting and furthering the president's political and strategic interests."

The assertive--even "imperial"--stance taken by recent presidents provided empirical grist for this mill. President George W. Bush was particularly notable in acting aggressively to expand his office's powers vis-a-vis other political actors (Cooper 2002; Goldsmith 2007; Rudalevige 2005, 2010; Savage 2007). Redressing the perceived constriction of the presidential office after the Watergate/Vietnam years provided a new rationale for unilateral command--even before the terrorist attacks of September 11, 2001. Barack Obama, while disavowing some of his predecessor's rationales, has acted in a similar manner in a number of areas. The assassination of American citizens acting with al-Qaeda in Yemen; the evasion of the War Powers Resolution in Libya; the use of the state secrets act in fending off judicial inquiry--all these suggest a continuing approach to presidential authority that overrides shifts in the incumbent's personality.

From either direction, the upshot has been important recent work on a presidential administrative toolkit that includes appointments (Lewis 2008), signing statements (Evans 2011; Kelley and Marshall 2010; Korzi 2011), executive agreements (Krutz and Peake 2009), proclamations (Rottinghaus and Bailey 2010; Rottinghaus and Maier 2007), rulemaking and guidance (Graham 2010; Kerwin and Furlong 2010), and especially executive orders (Gibson 2009; Howell 2003; Mayer 1999, 2001; Rodrigues 2007; Warber 2006; Wigton 1996). Indeed, at this point it is safe to say that a standard textbook in the field could not--as it did even after Watergate--exclude "executive orders" and "signing statements" from the index (Koenig 1975). The study of the contemporary presidency thus requires serious attention to that office's executive authority.

The aim of this article is to do just that while extending and complicating the empirics and implications associated with unilateralism. It takes seriously the conclusion drawn by Professor James Hart some 85 years ago. "In theory, but only in theory, the President controls all executive formulation of policy, all ordinance making," Hart wrote in The Ordinance-Making Powers of the President (1925, 297). "In practice the heads of departments may themselves merely accept ordinances drawn up by bureau chiefs, while the President may have only passing knowledge of the whole affair." The data presented here are preliminary--but serve as cautionary correlatives of Hart's point and as a reminder that the "old" institutionalism still has lessons for its heirs.

Unilateralism, in Theory

We know a fair bit of the "what" regarding executive directives, especially executive orders. That is, we have a literature that explores in some depth the timing of order issuance and some idea of the systemic factors, many of them legislative in nature, that explain when it is issued--in the maximum likelihood sense of calculating how those external factors increase or decrease the likelihood of that issuance actually occurring. …