Academic journal article Presidential Studies Quarterly

Circumventing Adversity: Executive Orders and Divided Government

Academic journal article Presidential Studies Quarterly

Circumventing Adversity: Executive Orders and Divided Government

Article excerpt

The influence of divided government on the president's executive order activity remains largely unresolved in research on the unilateral presidency. Much of the literature has analyzed the "strategic model," (1) which theorizes that presidents rely on executive orders to circumvent a hostile Congress (see Deering and Maltzman 1999). To date, this strategic model has been met with mixed results. The bulk of the research challenges this model by finding little evidence to show that presidents are more likely to behave unilaterally through executive orders when faced with an adverse political climate on Capitol Hill (Gleiber and Shull 1992; Mayer 1999; 2001; Mayer and Price 2002; Warber 2006). However, other studies find that presidents do indeed issue more executive orders when they encounter a

Congress that is less willing to cooperate with the White House on policy making (Deering and Maltzman 1999). As a result, scholars of the unilateral presidency are left with an empirical puzzle regarding whether and how divided government influences presidential use of executive orders. We argue that this puzzle persists because the existing literature has yet to test fully the underlying assumptions of the strategic model.

In this article, we examine the influence of presidential-congressional adversity on the president's decisions to issue executive orders. We argue that a more robust test is necessary to assess the validity of the strategic model by accounting for the effect of several dimensions of divided government on different types of executive orders. While previous studies have tested the strategic model by treating all executive orders as equal in terms of policy substance, the theory behind this model should only apply to major policy executive orders. Furthermore, since the justification for examining party control is that divided government is likely to translate into policy conflict between the president and Congress, we distinguish between Congresses in terms of the number of seats held by the president's party and the amount of ideological congruence between these political actors. By incorporating these factors, we offer a new and more complete test of the strategic model to investigate differences across distinct types of executive orders from Dwight Eisenhower through George W. Bush.

Our study makes two primary contributions to the literature. First, we show that the strategic model is an appropriate framework for understanding the president's executive order power. Second, and more importantly, we demonstrate that partisan and ideological differences between the president and Congress affect the different types of executive orders that presidents issue in substantively distinct ways.

Mixed Evidence on the Strategic Model

The strategic model of executive orders posits that presidents are most likely to engage in unilateral actions when they are unable to achieve their preferred policy outcomes directly through the legislative process (see Bessette and Tulis 2009, 165-68; Deering and Maltzman 1999). Accordingly, presidents will prefer legislation enacted by Congress because such policy outcomes are more permanent than a signed executive order that could be easily reversed by later administrations or challenged by the Congress or in federal courts. However, when presidents are unable to achieve policy success by working with Congress, they may prefer to use their unilateral policy tools (Barilleaux and Kelley 2010, 192).

Conventional wisdom suggests that the strategic model provides the best explanation for understanding how presidents exercise their unilateral powers in relation to the political environment in Congress. Accordingly, presidents should issue more executive orders during divided government. Despite Mayhew's (1991) early work on the effect (or lack thereof) of divided government, most subsequent studies find that periods of divided government lead to failed legislation and policy gridlock (e. …

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