Executive Orders and Civil Rights
IN PREVIOUS CHAPTERS I have documented the ways in which presidents have used executive orders to create or alter institutions and processes that have grown central to executive leadership; to carve out new policy responsibilities in the face of congressional acquiescence and to protect those responsibilities from congressional encroachment; and to solidify their control over executive branch administration. All of these patterns are consistent with what the new institutional economics frameworkpredicts. In each case presidents, by relying on their inherent or delegated legal authority and in some cases by exceeding it, have managed to outmaneuver Congress and take advantage of the discretion that inevitably accompanies broad and general grants of constitutional and statutory authority. In the competition for control over institutions, presidents have significant advantages stemming from their relative unity contrasted with Congress's collective processes, and from judicial readings that usually favor executive authority even when Congress tries to contain it.
But the ability to create and alter is a two-edged sword, since organizations, once they are established, may be able to deflect presidential pressure by creating their own constituencies and mobilizing political supporters. In other words, presidents might establish a new institution or process only to find that it resists their (and future presidents') efforts to direct it. This is the classic principal-agent problem at the core of economic institutionalism: how can a principal (a president, in this case) be sure that an agent (a policy or advisory organization) will faithfully implement his policy wishes? Or how can a president control structures and institutions left over from a previous administration? The existing theory of executive orders and presidential prerogative offers the stockanswer that what was enacted by executive order can be undone by simply issuing another order. As the history of presidential involvement in civil rights shows, the process is not so simple. Over several decades, presidents expanded the scope of federal civil rights protections, using their constitutional and statutory powers to institute new policies by executive order. Not all of these policies were effective. Many, though, had a substantive impact on racial equality, and most helped shape the public debate on civil rights.
In making the case that the president played a key role in using executive orders to promote a civil rights agenda in the three decades before
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