Academic journal article Political Research Quarterly

In Lieu of Legislation: Executive Unilateral Preemption or Support during the Legislative Process

Academic journal article Political Research Quarterly

In Lieu of Legislation: Executive Unilateral Preemption or Support during the Legislative Process

Article excerpt

In exercising their executive power within the legislative arena, presidents generally pursue a "legislative presidency" (Wayne 1978). From the president's perspective, this is a tenuous choice because the process of passing legislation is afflicted by collective action problems, an outlay of political capital, lengthy debates, and large transaction costs but provides certainty in achieving a lasting policy outcome (Moe and Howell 1999, 146). In an effort to improve their chances for success, a president may choose to enter the legislative arena using several means sanctioned by the Constitution or the strategic use of executive power: suggest an agenda item to Congress as outlined by Article II, Section 1 of the Constitution issue an executive statement of administrative procedure (Rice 2012); and issue a veto threat in advance of a veto (Deen and Arnold 2002) and the use of the veto (Cameron 2000, 28). Each of these tools provides the executive with some strategic participation in the legislative process.

Beyond the conventionally proscribed techniques for the president's legislative functions, presidents may also use direct or unilateral action as a means of improving their success in implementing their policy agenda outside the legislative arena (Cooper 2002; Mayer 2001; Warber 2006). Direct action is strategically useful for presidents when faced with a legislative arena that forces them to share political powers (Howell 2003, 2005; Mayer 2001; Moe and Howell 1999). The process of issuing unilateral orders is generally described as an alternative to pursuing legislation by bargaining with Congress (Howell 2003; Moe and Howell 1999). This approach enables the executive to "act quickly and with flexibility in responding to problems and changing political, economic and social circumstances as they arise" (Moe and Howell 1999, 138). This unilateral approach, however, is not always independent of the legislative process. As Jones (2005, 253) argues,

Efforts to comprehend presidential power in lawmaking require study of congressional power even if the president acts "with the stroke of a pen" as when issuing executive orders. Those who are separated must agree or acquiesce if there is to be law.

Neustadt ([1960] 1990, x) suggests that presidents are "dependent on consent from other sharers" in government, especially Congress, because "he must bargain with them, buttressing his share with his resources in their eyes of personal reputation and of public standing."

If unilateral orders can be used as a bargaining tool in the legislative process, when presidents issue a unilateral order during the legislative process, under what conditions does that order preempt or support proposed legislation? Using an original data set of unilateral orders (executive orders and proclamations) from Presidents Ford through George W. Bush (93rd to 110th Congresses), we analyze when and how presidents unilaterally preempt or support proposed legislation. Although the literature suggests that presidential strategies of bargaining or using unilateral actions are opposed to one another, our approach unites Neustadt's "power stakes" (how presidential resources influence bargaining) with theories of direct presidential action. We argue that the president will act using a unilateral order during the legislative process to preserve a policy trajectory in Congress favorable to the executive or to shiftpolicy closer to his ideal point. Our theory suggests flexibility in a president's use of unilateral orders in the legislative arena: sometimes to halt the legislative process, sometimes to foster it, depending on the institutional context. We argue that unilateral orders are used while negotiating in the legislative process. This notion expands the conceptual study of the executive's use of unilateral power to the legislative arena, a linkage yet unexplored. In doing so, we seek to develop a better understanding of shared rather than separate powers in the context of executive-legislative relations where unilateral orders can be used to augment the legislative process. …

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