How Legislative (In)Activity,Ideological Divergence,and Divided Government Impact Executive Unilateralism: A Test of Three Theories

During the past two decades scholars from a variety of different fields (law, history, journalism, political science) have written extensively about the development and implementation of the Unilateral Presidency. Because several explanations for unilateral action have been posited, we provide a thorough test of three theories of executive unilateral action. Applying a newly-developed methodology to the most comprehensive dataset of unilateral presidential directives to date, results of the Bayesian Poisson Vector Autoregressive model suggest that although executive orders, memoranda, and proclamations are all strategic tools that presidents utilize to unilaterally alter policy, fundamental differences exist between them, as well as the inter-dependence among them. More important, our results show that whereas the percentage of bills passed is related to presidential proclamations, legislative activity actually depends on the number of executive orders issued. However, CQ success scores are related to both executive orders and presidential proclamations. We also find that presidential ideology and congressional ideology are related to executive action, whereas the impact of divided government is at best only weakly related.     

Executive Branch Management and Presidential Unilateralism: Centralization and the Issuance of Executive Orders

Despite the useful simplifying assumptions of recent work on unilateral power, archival analysis shows the issuance of executive orders is a process rife with transaction costs as presidents bargain with the bureaucracy over formulating their scope and substance. As a result, presidents must create what Williamson (1985) called “governance structures” to minimize those costs, with the Office of Management and Budget's clearance process at its heart. As with legislative policy formulation, presidents assert more centralized control over executive orders (EO) production on items that affect large numbers of departments, on matters of executive reorganization, and on significant matters. Political contexts are trumped by managerial concerns. Orders dealing with implementation of recently passed statutes or other presidential “clerkship” functions tend to follow a far less centralized formulation process.     

Agency Characteristics and the Use of Executive Orders

Past scholarship has offered varying explanations for why presidents choose to use executive orders. However, to this point, much of what we know of unilateral powers does not adequately address the role the bureaucracy plays in the president's decision. This research seeks to account for bureaucratic factors as a strategic presidential consideration in the employment of such directives. I classify executive orders from 1989–2012 based on which agency or agencies they apply to, and consider the importance of various characteristics (e.g. agency ideology, level of centralization, politicization, etc.) in determining which organs of the bureaucracy presidents will direct executive orders to generally. The results provide evidence that the White House directs fewer executive orders to agencies that have a politically independent leadership structure, and this result holds across a variety of measures judging an order's impact. The results demonstrate that the type of directive is crucial in determining a president's strategic decision to use executive orders, in line with previous research, and that agency centralization is one crucial component of this strategic calculation.     

The Right Tool for the Job: The Canalization of Presidential Policy Attention by Policy Instrument

This article investigates how presidential policy attention is allocated across policy tools and whether there is a channeling of tool use by policy area. I also examine whether there is evidence of disproportionate information processing within presidential policy attention allocation and whether it is common across presidential policy tools. Presidential messages, hearings on administrations' legislative proposals, amicus briefs, and executive orders are employed to capture presidential policy tools. The allocation of attention via these four instruments is examined from 1957–2007 in the policy areas of defense and foreign affairs, macroeconomics, banking and commerce, civil rights, law and crime, and labor and immigration. I find that there is a canalization of presidential policy attention by instrument, and that the opportunity structure of policy tools shapes attention allocation. Additionally, I find evidence for punctuated equilibrium theory in the allocation of presidential policy attention via these four tools. When presidents do shift their attention to an issue area, they often attack the issue with some coordination of their policy instruments.     

A New Model of Executive Power: A Montesquieuan Explanation of the Obama Presidency

Abstract

The perennial concern over executive overreach continues well into Obama's presidency, leading many to wonder if the “unitary executive” is here to stay. Discussions of executive war powers focus on three models. The Hamiltonian perspective gives presidents the lead position in foreign affairs; the second model, following Madison, presents Congress as the leader when initiating hostilities. Finally, Jeffersonians present emergency powers as extra-legal, giving presidents a sphere of actions that cannot be contained within constitutional discussions. Problematically, current scholarship implicitly or explicitly grounds these explanations in Locke's political philosophy. This occurs despite a dearth of references to Locke during the Constitutional Convention and infrequent references to his thought during early debates over executive-congressional divisions of war powers. Comparatively, all of these seminal American figures frequently mention Montesquieu, often fighting over the specifics of his theory. While scholars widely acknowledge this influence, they rarely mention him during discussions of war powers or the nature of executive power in general. This article examines the Montesquieuan understanding of executive power and shows how this model represents a viable alternative to the Lockean one. Most importantly, examining the executive from a Montesquieuan perspective provides solutions to current problems that the Lockean perspective does not.     

Presidential Unilateral Actions: Constitutional and Political Checks

Throughout history, presidents have invoked a broad array of powers. Some are legitimate and well grounded; others exceed constitutional boundaries and have met defeat in Congress, the courts, and the public. Still others originate from historical errors by the Supreme Court, particularly in the field of external affairs. The powers analyzed in this article begin with these: enumerated, implied, inherent, prerogative, ministerial, and discretionary. Presidential instruments of power include executive orders and proclamations. The erroneous “sole organ” doctrine, first appearing in the Curtiss-Wright case of 1936, was at issue in the Jerusalem passport case of Zivotofsky v. Kerry. The scope of unilateral executive authority is being tested in initiatives by the Obama administration in the field of immigration policy.     

The Pendulum of Congressional Power: Agenda Change,Partisanship and the Demise of the Post-World War II Foreign Policy Consensus

Many scholars contend that Congress rarely matters in the realm of foreign policy. The source of this collective impotence is often explained by the weaknesses in congressional institutions vis-a-vis the president, as well as a general inability to respond effectively to a dynamic international political environment. We contend that the debate over congressional activism has not adequately addressed the role of agenda change. We analyze all roll call votes in the House of Representatives relating to the international affairs agenda between 1953 and 1998. We find that presidents have become significantly more likely to stake out positions on economic and trade issues as compared to other international issues. We also observe that presidential positions in the realm of foreign policy are increasingly characterized by interparty and interinstitutional conflict. While this increased conflict has dramatically decreased the president's ability to successfully pass executive priorities in foreign affairs more generally, presidential success on economic and trade issues has witnessed a significantly greater decline. We infer from these results that changes to the foreign policy issue agenda represent one important factor that has affected not only the incentives for political parties to participate actively, but also the willingness of Congress to challenge the president in the foreign policy debate.Asked one day whether it was true that the navy yard in his district was too small to accommodate the latest battleships. Henry Stimson (chair of the House Naval Affairs Committee early in the century) replied, 'That is true, and that is the reason I have always been in favor of small ships.'1Carriers have been, are and will be for the foreseeable future an absolutely essential part of our deterrence force…2John Warner, senator from Virginia, home state of Newport News Shipbuilding     

Punctuated Equilibrium and the Supreme Court

In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This article addresses that gap by providing evidence that legal policy change—here conceptualized as changes in what precedents the Supreme Court most often cites—is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.     

Racial Stratification, Intellectual History, and Presidential Action in the Civil Rights Domain

Using an historical approach, this paper assesses the role of the American presidency in the pursuit of civil rights policy. The basic argument is that the drivingforces in the passage of civil rights policies since Reconstruction have been external pressures on the presidency. Rather than being protagonists in the progression of civil rights, presidents are portrayed as political actors primarily interested in maintaining social order and attracting African-American votes. Rarely have presidents pushed for civil rights progress outside of that context.     

Checking Executive Power: A Simulation Model of Unilateral Executive Behavior

Abstract

What systematic influence does the court exert on unilateral authority? Though questions relating to the expansion and the exercise of unilateral executive power remain a perennial concern in political science, existing studies of the unilateral presidency generally focus on relations between the executive and the legislature, with less attention paid to the impact of the judiciary on executive behavior. Using a system of differential equations to model executive unilateralism and judicial constraints, simulation results identified four broad patterns of unilateral executive behavior and judicial influence. Overall, presidents strategically anticipate reactions from the courts and employ unilateral actions accordingly. Although they are cognizant of the court’s ability to strike down their actions, and thereby harming their preferred policy preferences and legacies, presidents nonetheless act unilaterally, albeit at a lower level. Results add to existing studies in separation of powers and constraints on unilateral executive behavior.     

Misunderstanding Executive Representation: Causes and Consequences

Prevailing beliefs about executive representation tend to rely on implicit assumptions that are not carefully examined. I argue that there is confusion regarding both the type of representative role adopted by presidents, and the legitimacy of the representative role of the executive. Presidents are often associated with the "virtual" form of representation, which is consistent with the symbolic role of the president, but the fact that the president, as an elected official, satisfies the requirements of an actual representative is overlooked. Identifying and distinguishing the representative roles in the executive demonstrates the conflict between the two. The institution links the executive with a very large, heterogeneous constituency, requiring presidents to address individual interests, while at the same time endowing the office with national leadership qualities that call for attention to a broader, national interest. An examination of executive representation demonstrates the structural nature of both representative roles, which, while not easily reconciled, are fundamental institutional characteristics.     

Assessing Presidential Communications in Civil Rights Policymaking

This chapter compares the public communications of modern presidents across target groups and issue areas of civil rights. We find that attention, support, and symbolism on civil rights vary considerably across individual presidents and political party. Not surprisingly, in their public messages Democratic presidents are more attentive and supportive of civil rights than are Republican presidents. Some results were expected, while others were surprising. Lyndon B. Johnson was attentive and supportive; but, unexpectedly, George H. W. Bush was highly attentive to and quite nonsupportive of civil rights. Also surprisingly, on most indicators, Bush's policy statements were less symbolic and less equivocal than were Ronald W. Reagan's. Most attention is given to blacks as a target group (although this is declining) and to the employment issue area. Overall, the findings reveal the considerable flexibility and discretion in presidents' public communications in the civil rights realm.     

The President as Legislative Leader: The Use of Veto Power in Environmental Policy Making

Presidents use legislative powers in many ways to influence environmental policy. The relationship between partisanship and the use of these powers is an open question. Previous research has shown that legislative powers such as the passage of legislation and budgetary decisions display bipartisan effects. This study argues that this does not hold true for veto power. Presidents of different parties approach environmental legislation differently and use vetoes in dissimilar ways. Understanding these differences allows for a better comprehension of how environmental policy decisions are made and the role of presidents in this process.     

Presidential Speeches and the Stages of the Legislative Process

Presidents go public frequently to increase their success in Congress. Yet scholars know little about when presidents speak within the legislative process or why. If presidential speeches are indeed a source of power for presidents, then presidents are likely to use them throughout the legislative process, not speak only to affect final passage. We argue that presidents speak generally to meet broad electoral and political goals, but target speeches according to their goals at each stage of the legislative process: to frame the debate at the agenda-setting stage, to push bills out of committee, and to finalize support from legislators at the roll call stage. We analyze 116 bills between 1989 and 2004, supplemented by Bush Library archival data and a case study of the Clean Air Act Amendments of 1990. The results illustrate that presidents speak mostly at the agenda-setting and roll call stages and presidential attention at each stage varies by informational cues provided by the larger political environment.     

George Bush and Executive Branch Domestic Policymaking Competence

This article critiques the George Bush domestic policymaking process and argues that Bush had the second-lowest level of policy competence among postwar presidents, ranking above only Ronald Reagan. Although not overtly antianalytic like Reagan, Bush gave little thought and effort to restoring the badly damaged executive branch domestic policymaking process. The article closes with suggestions about the steps needed for, and the difficulties in establishing, a strong White House policymaking process that generates fruitful interaction among key policy advocates over time and that establishes sufficient Executive Office of the President (EOP) capacity to monitor the implementation and management of presidential policies.     

The Administrative Presidency as Supervised Collaboration: The Case of Ocean and Coastal Zone Management

Scholars have paid little attention to the operation and effectiveness of offices, councils, committees, task forces, and the like within the Executive Office of the president. This neglect may be understandable given the opacity within the White House. Yet it is also unfortunate given the popular view of executive centralization as a counterpoise to a fragmented bureaucracy and given that “supervised collaboration” is the primary mechanism through which presidents can seek to coordinate policy implementation. With this in mind, the following study examines attempts to integrate the management of America's oceans and coasts under the past two administrations. Limited progress in this area to date speaks to institutional incentives and constraints that should temper the enthusiasm of those who look to the presidency as a source of administrative coordination. White House initiatives have come only recently and have resulted much more from a desire to shape policy than from concerns about efficiency, per se. Even so, the case of ocean and coastal zone management speaks to the limitations of unilateral presidential action.     

Theorizing Presidential Tenure: The Difficult Case of FDR's Fourth Term

This article examines Franklin Delano Roosevelt's pursuit of a fourth term in 1944, despite the significant erosion of his physical health beginning in late 1943. Not only did Roosevelt pursue a fourth term against long odds that he would not survive it, but he put little effort into the selection and policy education of Vice President Truman. This pursuit of a fourth term is critical to debates over presidential tenure, and particularly evaluations of the 22nd Amendment, which since 1951 has limited presidents to two terms. It is a "difficult case," however, because despite obvious miscalculations on the part of FDR and his advisors in 1944– which reinforce arguments of term limits proponents–a two term limit would have prevented a third term for Roosevelt as well, thereby depriving the nation of his experienced leadership in a time of war, especially in the crucial early years of the war. The article concludes by supporting the existing two term limitation which, despite its faults, effectively addresses problems of long presidential tenure while also providing periodic renewals of leadership.     

Global Public Policy,Transnational Policy Communities,and Their Networks

Public policy has been a prisoner of the word “state.” Yet, the state is reconfigured by globalization. Through “global public–private partnerships” and “transnational executive networks,” new forms of authority are emerging through global and regional policy processes that coexist alongside nation‐state policy processes. Accordingly, this article asks what is “global public policy”? The first part of the article identifies new public spaces where global policies occur. These spaces are multiple in character and variety and will be collectively referred to as the “global agora.” The second section adapts the conventional policy cycle heuristic by conceptually stretching it to the global and regional levels to reveal the higher degree of pluralization of actors and multiple‐authority structures than is the case at national levels. The third section asks: who is involved in the delivery of global public policy? The focus is on transnational policy communities. The global agora is a public space of policymaking and administration, although it is one where authority is more diffuse, decision making is dispersed and sovereignty muddled. Trapped by methodological nationalism and an intellectual agoraphobia of globalization, public policy scholars have yet to examine fully global policy processes and new managerial modes of transnational public administration.