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.     

Lincoln as Commander-in-Chief

Abstract

Abraham Lincoln's presidency was defined and dominated by war, yet Lincoln himself had very little direct experience with warfare; nor had the American presidency been truly tested by war when he took office. Lincoln had to negotiate very difficult political and constitutional terrain as he waged the Civil War: issues of executive authority, constitutional powers and their limitations, and the nature of civil liberties during war constantly bedeviled him. His guiding principle in all these matters, and the greatest lesson we can learn from him today, was his flexibility and his pragmatism.     

The Contribution of Reinhold Niebuhr's ‘Moral Ambiguity’ to Contemporary Discussions on the Morality of Intervention and the Use of Force in a Post-Cold War World

Abstract

The post-Cold War world poses challenges to traditional principles guiding the ethics of the use of force. Military intervention and the current war on terror are two phenomena that challenge just war criteria such as just cause, right authority, and reasonable hope for success. The just war tradition is helpful but needs to be expanded and re-thought to address the pressing issues of our time. This paper suggests Reinhold Niebuhr's category of ‘moral ambiguity’ as a contribution to the discussion. His application of moral ambiguity to his situation during World War II and the Cold War witnesses to the depth that such a category can add to current international circumstances fraught with moral complexity. Though it too requires critique, contemporary discussions on military intervention reflect many of Niebuhr's evaluations of the ambiguity in the use of force as different global actors seek humane alternatives to provide relief to intense human suffering.     

The President and the Public: Inaugural Addresses in American History

This article examines presidential inaugural addresses to gain a perspective on the changing relationship between the people and the presidency throughout American political history. The analysis suggests three distinct models of inaugural address—constitutional, party, and plebiscitary—each articulating a different understanding of presidential leadership and the relationship between the presidency and the people. The constitutional presidents see themselves largely as restrained, constitutional officers with a minimal relationship to the people. The party model yields a role for the president which is more tied to the people's will, especially as expressed through party. Even though tied more strongly to the public, party presidents recognize constitutional limits on their roles and powers. Plebiscitary presidents often eschew party affiliation and the guise of constrained constitutional officer, and cast themselves as engines of the American political system fully tied to public opinion. Plebiscitary presidents often make few references to other political actors or to the Constitution. Beyond helping us to better understand the contours of American political development, this analysis challenges the prevalent assumption in studies of the presidency that nineteenth-century presidents were not popular or “public” leaders.     

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.     

James Naughtie,The Accidental American: Tony Blair and the Presidency

Abstract

The terms "justice" and "necessity" are often employed in discussions of war. The just war tradition seeks to delineate when wars are and are not just; other theologians who do not find this approach helpful may nevertheless resort to the logic of necessity. Although unjust, some wars may still be deemed necessary. Barth employs both the language and logic of justice and necessity in his approach to war. The purpose of this paper is to address Barth's exposition of war in relation to his approach to divine justice and the necessity of Christian affliction. It does not attempt to make any large claims about the just war tradition or other approaches to war. Rather, it is intended to be an immanent critique of Barth from Barth's own theology, showing that, although consistent with his view of church and state, Barth's theology of war is inconsistent with his view of both God's character as just and the external necessity of affliction to Christian witness.     

The Later Jefferson and the Problem of Natural Rights

Abstract

The late Jefferson presents a puzzle to scholars. In his last years the author of the Declaration of Independence strongly opposed the Missouri Compromise and set important precedents for the political strategy of the antebellum South. This essay argues that these problematic aspects of Jefferson's career are more closely linked to his natural rights doctrine than is generally recognized and extend tendencies already present in Jefferson's draft of the Declaration. Unlike previous scholars who explain Jefferson's problematic politics by his racism or the inherent selfishness of Lockean natural right, I argue that the core flaw in Jefferson's natural rights doctrine is the encouragement it gives to self-righteousness. Because he responded to the problem of slavery in a spirit of angry self-defense, Jefferson's understanding of natural rights blinded him to the ways in which his actions strengthened slavery and undermined his own most cherished political achievements.     

The Politics of Credit in Presidential Signing Statements

The separation of powers often makes it difficult to understand who is responsible for legislative outcomes. Both members of Congress and presidents seek to shape perceptions of policy responsibility to their advantage. Yet, the relative size of the president's rhetorical stage gives him disproportionate influence in molding these discussions at critical moments. Given these circumstances, how, when, and why, do presidents claim credit for themselves and attribute credit to members of Congress for legislation? Using an original dataset based upon a content analysis of all presidential signing statements from 1985–2008, we find that presidential strategies to claim and attribute credit for laws are greatly impacted by both political context (approval, divided government, midterm elections, and party power) and bill-specific attributes (appropriations, salience, and veto threats). The theory and results highlight the importance of taking multiple institutions into account when thinking about credit.     

Response to Langdon Gilkey's Inaugural Address at the Niebuhr Society, 22 November 2003 in Atlanta

Abstract

After applauding Professor Gilkey for focusing attention on Reinhold Niebuhr's book, Moral Man and Immoral Society, I framed my response by setting forth seven salient elements of Niebuhr's political theory. After affirming Gilkey's portrayal of the differences between our contemporary situation and that which Niebuhr addressed in the 1930s, I focused on a third characteristic of Niebuhr's thought that Gilkey neglected to mention, namely, the impact of his thought on African-American activists in their struggle for racial justice in the United States. That impact mainly pertained to his perceptive analysis of power conflicts among social groups and especially the societal power of racism. Niebuhr's sensitivity to that problem was heightened during his ministry in Detroit and thereafter. Thus, Martin Luther King, Jr, his protégé, Jesse Jackson and many others came to view Niebuhr as a major source of inspiration for their struggle. But, in spite of Niebuhr's appreciation of Gandhi and his support of King's non-violent resistance approach, they disagreed about the moral value of pacifism. Most importantly, I join with another African-American scholar in pointing out Niebuhr's uncritical paternalistic assumptions about African Americans and their struggle.     

Interpreting the Syria vote: parliament and British foreign policy

This article presents three distinct interpretations of how parliamentary war powers affect British foreign policy more generally, based on a detailed analysis of the debate preceding the vote in parliament in August 2013 on whether Britain should intervene in the Syrian civil war. The first interpretation treats parliament as a site for domestic role contestation. From this perspective, parliamentary war powers matter because they raise the significance of MPs' doubts about Britain's proper global ‘role’. The second interpretation treats parliament as a forum for policy debate. There is nothing new about MPs discussing international initiatives. But now they do more than debate, they decide, at least where military action is involved. From this perspective, parliamentary war powers matter because they make British foreign policy more cautious and less consistent, even if they also make it more transparent and (potentially) more democratic in turn. The final interpretation treats parliament as an arena for political competition. From this perspective, parliamentary involvement exposes major foreign policy decisions to the vagaries of partisan politicking, a potent development in an era of weak or coalition governments, and a recipe for unpredictability. Together these developments made parliament's war powers highly significant, not just where military action is concerned, but for British foreign policy overall.     

Pocock,Machiavelli and Political Contingency in Foreign Affairs: Republican Existentialism Outside (and Within) the City

SUMMARY

In this essay, inspired by J.G.A. Pocock's appropriation of Machiavelli's theory of political contingency, and building upon my previous engagements with Pocock's ‘republican existentialism’, I focus on the role played by ‘accidents’ in Machiavelli's analysis of war and foreign affairs within The Prince and the Discourses. In so doing, I consider the following issues: the ways through which a potential imperial hegemon might consolidate control over nearby lesser powers—and, conversely, how such less powerful polities might resist imperial encroachments on their autonomy; the contrasting military modes and orders characteristic of ancient and modern republics; and the extent to which Machiavelli actually thought that accidents in foreign affairs were ever truly ‘accidental’ in light of his determinations concerning well- versus badly ordered domestic institutions.     

A Challenge to Presidential Wars: Smith v. Obama

From World War II to the present time, presidents have exceeded constitutional and statutory authority in exercising the war power. In doing so, they violate the rule of law, the principle of self-government, and the system of checks and balances. The U.S. Constitution expressly rejected the British model that placed with the Executive exclusive authority over external affairs, including taking the country from a state of peace to one of war. The Framers assigned that power solely to Congress. A lawsuit filed in 2016, Smith v. Obama, asked a federal district court to decide whether President Obama may engage in war without receiving express authority from Congress.     

The Greek Communist Party (KKE) and the Greek-Italian War, 1940–1: an Analysis of Zahariadis' Three Letters

Abstract

An analysis of the position of the Greek Communist Party (KKE) during the Greek-Italian war is interesting not only because it involves a hitherto unsolved puzzle – how and why the KKE's General Secretary, Nikos Zahariadis, wrote his ‘three letters’ – but also because, it involves background factors that help explain how the KKE emerged, during the occupation period, in possession of an invaluably useful ‘patriotic’ image. Such an image, obtained from Zahariadis' ‘first’ letter, undeniably facilitated the party's successful efforts to build up the country's largest liberation movement (EAM) and, through this movement, to come close to capturing power during the years 1943–4.     

The power of words: the changing role of the Italian head of state during the Second Republic

Many authors use the metaphor of an accordion to describe the enlargement of the constitutional functions of the Italian head of state: because of the weakness of the political parties the president is able to ‘open and play the accordion’ according to his own interpretation of his institutional powers. While useful, this metaphor does not take into account the structural changes that have occurred over the last 30 years, as well as the informal powers that recent presidents have resorted to, which were the most important factors in the metamorphosis of the presidential figure. Structural changes include the end of the Cold War, the collapse of the First Republic and the mediatisation and personalisation of politics and party structure. Informal powers include those of ‘esternazione’ (a term that roughly means ‘to render public personal statements without previous consultation with the cabinet’) and of moral suasion. By analysing the development of these two powers, this article aims to describe the changing role of the head of state during the Second Republic. It also defines a typology of presidential moral suasion, which is proposed as a useful tool to analyse presidential style and strategy in influencing law-making. The analysis of the innovative use of communicative powers by the last two presidents, Ciampi and Napolitano, shows how the transformation of the Italian presidency can probably be considered permanent.     

Humphrey and Civil Rights: The Politics of Racial Progress

Abstract

This article explores and defends Leo Strauss's interpretation of Edmund Burke's thought. Strauss argues that Burke's conservatism is rooted in the modern empiricist school of John Locke and others. Following Strauss, this article sets out to consider the suitability of these foundational principles to conservative politics. Burke wants to temper or ennoble Lockean politics by inspiring sublime attachment to the political community and its traditions, but he shies away from stating universal standards according to which the traditions of political communities ought to be judged. This respect for reason in history without moorings in transcendent standards of reason or revelation leaves his conservatism on precarious ground.     

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.     

Painting for the blind: Nathaniel Hone’s portraits of Sir John Fielding

ABSTRACT

Nathaniel Hone’s three portraits of Sir John Fielding establish a public image for the magistrate and a visual language for representing his blindness. Fielding is represented in 1757 as a family man, in 1762 as a sociable member of the Republic of Letters, and finally in 1773 as the embodiment of Justice. The movement across the portraits from empiricism to allegory not only conveys his increasing social status and celebrity, but also the mingling of philosophical and poetic ideas about blindness in Enlightenment thinking. This paper argues that Hone’s construction of Fielding’s vision impairment in the latter two portraits reflects changing attitudes to blindness resulting from Lockean sensationalism and the widespread success of cataract operations. The more academically ambitious final portrait, however, also draws on iconographic tropes of blind justice, casting Fielding in allegorical guise that confers upon him heightened powers of reason and impartiality. For Hone, Fielding’s blindness is a crucial part of his status and identity, but it also provides opportunities to push portraiture beyond its association with the imitation of the visible and into the realm of invention.