Unilateral Action and Presidential Power: A Theory

Article excerpt

What are the foundations of presidential power? Almost forty years ago, Richard Neustadt (1960) offered an answer that transformed the study of the American presidency. Neustadt observed that presidents have very little formal power, far less than necessary to meet the enormous expectations heaped on them during the modern era. The key to strong presidential leadership, he argued, lies not in formal power, but in the skills, temperament, and experience of the man occupying the office and in his ability to put these personal qualities to use in enhancing his own reputation and prestige. The foundation of presidential power is ultimately personal.

Neustadt's notion of the personal presidency dominated the field for decades, but its influence is on the decline. The main reason is that it seems increasingly out of sync with the facts. The personal presidency caught on among political scientists at just the time that the presidency itself was rapidly developing as an institution and as studies of presidential leadership found themselves focusing on the "institutional presidency" (Burke 1992; Moe 1985; Nathan 1983). As time went on, it became clear that the field needed to adjust to a new reality, in which formal structure and power have more central roles to play (Moe 1993).

This adjustment was hastened by the rise of the "new institutionalism" in political science generally. Scholars across fields exhibited renewed interest in institutions of all kinds, new analytical tools were developed for the task, and the presidency became part of the revolution. To date, the new analytic work emerging from this movement has rarely focused on the presidency per se (for an exception, see Cameron 1999). But by including presidents as one of several key players--in models of political control of the bureaucracy (Ferejohn and Shipan 1990), for instance, or policy gridlock under separation of powers (Krehbiel 1998; Brady and Volden 1998), or the appropriations process (Kiewiet and McCubbins 1991)--scholars have taken the first steps toward a rigorous institutional theory of the presidency.

In this article, we will continue this line of inquiry and encourage its evolution into a new phase that focuses more directly on the presidency itself. Our point of departure is the same question that motivated Neustadt. What are the foundations of presidential power? The new institutional literature speaks to this issue by providing rigorous treatments of specific formal powers granted presidents under the Constitution. Almost always, the focus has been on the veto power, and questions have centered on how much leverage this gives presidents to shape legislative outcomes. Another is the appointment power, which offers presidents important formal means of engineering bureaucratic outcomes. Both are surely key parts of the larger picture of presidential power.

Our aim here is to highlight an institutional basis for presidential power that has gone largely unappreciated to this point but that, in our view, has become so pivotal to presidential leadership, and so central to an understanding of presidential power, that it virtually defines what is distinctively modern about the modern American presidency. This is the president's formal capacity for taking unilateral action and thus for making law on his own. Often, presidents do this through executive orders. Sometimes they do it through proclamations or executive agreements or national security directives. But whatever vehicles they may choose, the end result is that presidents can and do make new law--and thus shift the existing status quo--without the explicit consent of Congress.

The fact is, presidents have always acted unilaterally to make law. The Louisiana Purchase, the freeing of the slaves, the internment of the Japanese, the desegregation of the military, the initiation of affirmative action, the imposition of regulatory review--these are but a few of the most notable examples. …