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.     

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.     

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.     

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.     

Public Outreach,Executive Orders,and the Unilateral Presidency

Scholars have traditionally and loosely defined executive orders as presidential directives that instruct bureaucrats about how to implement policy. In contrast, proclamations are thought to be used by presidents to address policy matters regarding the general public. This has been an assumption that scholars have accepted without empirical evidence. We have long known that presidents strategically pursue policy to build support among numerous groups, such as African Americans, religious organizations, women, educators, and labor unions. Presidency scholars also know that executive orders are an expedient tool that an administration utilizes to pursue its policy agenda. As a result, why should we assume that the exclusive target population of executive orders is members of the federal bureaucracy? This is the first study to explore whether and how presidents from 1936 through 2008 use executive orders to target specific populations with policy.     

Court-day crowds in colonial Virginia

ABSTRACT

For a generation, legal historians investigating colonial Virginia have emphasized the dramaturgy of court day. According to the dramaturgical school of interpretation, administrative and judicial activities of county court officials amounted to theatrical performances that simultaneously enforced economic order and stabilized traditional social relationships. Such interpretations assume a large audience routinely attended county courts to observe legal dramas. Often, however, only a small number of persons can be documented as present during court day. The independence theorem from probability theory suggests that the number of documentable attendees is a useful and easily calculated estimate for actual total crowd size. If so, some Virginia court sessions were attended by hundreds of people, while others drew only a few participants. A variety of factors apparently inhibited court attendance in older Virginia counties. By contrast, in newer frontier counties, mid-eighteenth-century revisions of court calendars produced heavy attendance at court day. Regardless of the number of people in attendance, any Virginia county court could still effectively enforce credit contracts.     

The Politics of Executive Nominations in the Post-Nuclear Senate

In response to an ever more inefficient, intrusive, partisan, and plodding executive nominations process, a variety of increasingly potent reform measures have been recently enacted within Congress. The solutions have ranged from cutting the number of appointments requiring Senate confirmation to reducing the power of the filibuster on most nominations. Although these reforms may speed the nominations process, they may also influence the balance of power between Congress and the presidency by allowing more unilateral and unrestricted appointments. Is Congress conceding confirmation for expediency? In this investigation, I explore recent reforms with respect to the speed and outcomes of the executive nominations process as well as the balance of power between the executive and legislative branches.     

Court politics in a federal polity

This article uses a case study from Queensland to demonstrate the court politics approach's potential to reinvigorate executive studies. Court politics focuses on webs of interdependence within the core executive. It examines the beliefs and practices of elite actors and their fluid and contingent relationships. This article examines the patterns of executive politics that prevailed under Premier Anna Bligh. It seeks to answer three key questions. First, why is court politics a useful approach to studying the Australian core executive? Second, what is the nature and extent of court politics in Australian state governments? Finally, recognising that local traditions shape the beliefs and practices of political elites, how does the court politics approach need to be modified for application in Australia?     

Judicial Intervention and Local Spending

This study develops a methodology for examining the impact of court orders on local budgets and applies it to one of the most important areas of judicial involvement-local jails. During the 1980s an increasing number of local jails came under court order due to overcrowded facilities. In many counties this has been matched by equally rapid growth in jail capacity and expenditures. Based on simple comparisons of these trends and case studies of individual counties, previous research on court intervention has concluded that the courts have forced reluctant local governments to increase expenditures on corrections. However, past research on judicial intervention may be misleading because of inadequate controls for other factors that may affect both jail capacity and spending. We examine the determinants of jail spending for a national sample of jails in the mid-1980s. Our results indicate that court orders influence capacity expansion (their impact on current expenditures is less clear); however, other jail and demand factors may have a stronger effect. Contrary to conventional wisdom, our findings suggest that many jurisdictions, given adequate fiscal resources, budget for jail expansion when they need its not when forced by the courts to act.     

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.     

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 Last Stand of Colonialism? The Unofficial Members of the Executive and Legislative Councils and the Sino-British Negotiations Over Hong Kong, 1982–1984

ABSTRACT

As influential leaders in Hong Kong, the Unofficial Members of the Executive and Legislative Council (UMELCO) were arguably the only group of Hong Kong people permitted to take part in the Sino-British negotiations that defined the future of Hong Kong. But almost no studies have explored the broader significance of their participation in the negotiations. Using recently declassified British documents, this article argues that, in the wider history of decolonisation, UMELCO’s petition for British administration belonged to the less noticed voices that called for alternatives to independence. UMELCO’s participation also reveals how the negotiations challenged Hong Kong’s autonomy. Although governors at times advocated Hong Kong’s interests vis-a-vis London, the governor’s autonomy during the negotiations was restricted, so the appeal of UMELCO was further weakened. Although UMELCO wanted to preserve the existing system, their actions inadvertently boosted the rise of ‘Hong Kong people’ as an idea and encouraged local people to demand more democracy. The structure of ExCo, LegCo and the government was mostly inherited by post-1997 Hong Kong, while some of UMELCO shifted to the Chinese side, suggesting the irony that a supposedly anti-colonial China lived with a state that came largely from colonial rule.     

Text and Tradition: Justice Scalia’s Consistent Application of His Original Public Meaning Approach to Separation of Powers

In this article, I argue that Scalia consistently and objectively applied his original public meaning approach to preserve separation of powers, ruling both for and against the legislative, executive, and judicial branches when the text and traditional understanding of the Constitution required it. I focus, in particular, on his opinions in Morrison v. Olson (1988), Printz v. United States (1997), Lujan v. Defenders of Wildlife (1992), and Plaut v. Spendthrift Farms (1995), in which he defended executive power and judicial power from congressional encroachments; NLRB v. Noel Canning (2014) and Zivotofsky v. Kerry (2015), in which he defended congressional power from executive overreach; Young v. United States ex rel. Vuitton (1987) and Hein v. Freedom from Religion Foundation (2007), in which he sought to rein in judicial power; and in Talk America v. Bell Telephone Company (2011) and Perez v. Mortgage Bankers Association (2015), in which he sought to reassert judicial power that the Supreme Court in general and he in particular had previously relinquished.     

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.     

Effectiveness of FRCM Reinforcement Applied to Masonry Walls Subject to Axial Force and Out-Of-Plane Loads Evaluated by Experimental and Numerical Studies

ABSTRACT

An experimental campaign and a numerical analysis devoted to the investigation of the out-of-plane behavior of masonry walls reinforced with Fiber Reinforced Cementitious Matrix (FRCM) are presented here. The main goal of this study is to analyze and evaluate the effectiveness of the strengthening system, by discussing failure modes and capacity of strengthened masonry walls, in order to assess their behavior under out-of-plane horizontal actions, such as, for example, seismic actions. A purposely designed experimental set-up, able to separately and independently apply an axial force and out-of-plane horizontal actions on masonry walls, was used. Experimental results are discussed and compared with the outcomes of nonlinear analyses performed on simplified finite element models of the walls. A proper evaluation of the flexural capacity of FRCM strengthened walls is the first step of the ongoing process of drawing reliable code guidelines leading to a safe design of strengthened masonry structures.     

Going Global: Assessing Presidential Foreign Travel

Abstract

Since President Franklin Delano Roosevelt broke the “Ironclad Custom”—and especially following World War II—presidents have routinely traveled outside of the United States to visit other countries and meet foreign leaders and publics. Presidents are expected to engage in face-to-face diplomacy, but they must also be present and active in domestic politics. To balance these pressures, presidents need to be strategic and mindful of their limited political resources and the opportunities the political environment creates. How, then, do international and domestic political resources and opportunities affect the extent and frequency of foreign travel? To examine this question, we collected and analyzed a dataset of presidential foreign travel—number of trips, countries visited and days spent abroad—during the post-World War II period (1953–2016) and estimated the frequency of travel with a set of explanatory variables that capture U.S. foreign involvement as well as the domestic policy agenda and political incentives that affected presidents from Eisenhower to Obama. Our findings demonstrate that domestic policy and political incentives are strong determinants of presidential foreign travel.     

Assessing Reagan's Legacy

Abstract

I have argued in other research that modern presidents have been facilitators rather than directors of change. They are highly dependent on their environments and can do little to increase their resources of influence. This article probes such a theory of presidential leadership further by examining the congressional leadership of George Washington.

Perhaps the most revered political leader in American history, Washington entered office with tremendous prestige, a Congress dominated by men he viewed as political allies, and, because he was the first president, the fewest constraining precedents of policy or process. Thus, Washington enjoyed the greatest potential to serve as a “director” and move the country in new directions through his leadership.

Yet the study reveals that Washington was mainly a facilitator, not a director of change—much like George Bush two centuries later. Systemic factors such as political culture and the structure of the constitutional system determined that Washington had to be a facilitator, dependent on the opportunities the electorate handed him rather than a director, creating opportunities for change through his own leadership. Similar features characterize the leadership of the current administration.     

Dark tourism and moral disengagement in liminal spaces

Abstract

Dark tourism, which deploys taboo subjects and commercially exploits the macabre, has always raised moral conflicts at a collective and individual level while providing new spaces in which morality is communicated, reconfigured and revitalized. Although earlier studies in dark tourism have focused upon the collective notions of morality with a considerable amount of discussion on the comprehension and the manner in which the history and information of dark tourist attractions are presented for tourist consumption, the individual differences of tourist morality and how tourists morally engage with death and its various forms of representation, has been neglected. In order to understand morally transgressive behavior displayed by tourists at emotionally sensitive or controversial sites and the various ways they justify their actions, the narratives of international tourists who are interested in death-related rituals at a cremation ground in India were collected and analyzed. Drawing upon a socio-cognitive theory, the moral mechanisms involved in tourist judgment towards photography of death-related rituals are discussed. It was observed that the cremation ground offers a liminal space for tourists to exercise their moral agency in an inhibitive form, as well as proactive form and that transgressive behavior among tourists is likely if they disengage from processes related to moral conduct using various moral disengagement mechanisms. This behavior arises due to an obscuring and fragmentation of human agency during moral disengagement thereby making it possible for tourists to not take ownership of the consequences of their actions.     

Social relations on stage: Witnesses in classical Athens

The study of witness testimony raises questions which are fundamental for the student of other cultures, whether past or contemporary. What are the standards expected of a reliable informant and how is reliability to be recognised? How is reliable knowledge about the past established?

The aim of this paper is to analyse the use of witnesses in classical Athenian lawcourts both for its epistemological implications — what does it tell us about Athenian ideas of ‘expert witnesses’, of reliability, of truthfulness and bias — and for the information it gives us about Athenian society and court practice. What kind of men did Athenian litigants select to act as witnesses for them, and what effect did they hope their witnesses’ testimonies would have on the jury?

If we start out from the assumption of modern courts that witnesses are called to ‘establish the facts of the case’ we shall misunderstand the Athenian data. What witnesses actually testified often was not very important: their testimonies might be insignificant, irrelevant or repetitive. To understand their role it is necessary to see them as minor characters in a drama, whose presence provides the backdrop against which the litigant wishes his own actions and character to be seen. Respectable witnesses — officials, members of the ‘professions’, reputable politicians — establish his own respectability. The support of neighbours, associates and kin shows that those who know the milieu in which the dispute arose are on the litigant's side. Denigration Of the opponent's witnesses, kin and associates presents him as a vicious and unreliable character. In the construction of a character‐portrait in court witnesses had an important role to play.