that will and therefore must exercise its own discretion. Scigliano (1989) notes that scholars have

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1 The Dual Executive and Unilateral Power Brandon Rottinghaus Associate Professor Department of Political Science University of Houston Abstract The study of presidential unilateral powers profiles a powerful president and charts the shifting balance of powers between the executive and legislative branches. While presidents do rely on their constitutional powers when issuing unilateral orders, they also justify their actions based on Congressional statute or other Congressional sources of authority. The puzzle, then, is whether unilateral action can be a form of power sharing with Congress rather than acting alone. Given that the Constitution requires the two branches to share in policy making power, when taking unilateral action are presidents more likely to act in accord with or against, the will of Congress? Our view is that the unilateral powers literature lacks an explanation of when and how presidents use their unilateral orders as part of a system of both shared and separated powers. Presidents behave differently depending on their political environment and presidents issue different types of unilateral orders in different circumstances in reaction to specific political conditions or events sometimes cooperatively, sometimes contentiously. In this abbreviated paper (from our book), we examine two distinct phases of the policy process (before Congress acts and after laws are passed) to determine when and under what conditions presidents are more likely to act alone. We find that the president is more likely to issue command and adaptive implementation orders when relying on broad substantive discretion and constitutional authority, when party polarization is higher, or when the distance between the presidents and the Senate filibuster pivot is larger. Unilateral power, like executive power, is diverse. As Mansfield (1989) argued, the word executive has two meanings. The executive serves to carry out the will of the legislature and to enforce that will and therefore must exercise its own discretion. Scigliano (1989) notes that scholars have embraced two conceptions of executive power: one makes the president subordinate to Congress, whereas the other allows him to be autonomous and self-directing within broad limits (238). Justice Marshall, in Marbury v. Madison (1803) wrote that, By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion but as Marshall and later courts have recognized, a ministerial act which the law enjoins must also be carried out by the president. The same is true with regard to unilateral power. 1

2 We cannot assume a singular nature to the use of presidential unilateral action. The president can use a unilateral order to pursue his administration s policy interests without Congressional support or exercise his duties and obligations related to the management of government equally with Congress. A New Approach to Unilateral Power In this paper (and the larger book project) we propose a new approach to the study of unilateral powers by providing a framework for studying unilateral orders within the executive- Congressional relationship. We argue there are dual roles for the executive: an independent president who pursues his agenda and a president who administers government functions often with the support of Congress. The study of the exercise of unilateral power has not considered fully how these dual responsibilities jointly shape presidential unilateral action. The use of unilateral orders is dynamic, where the president functions both as adversary or ally of Congress and as an independent agent or as routine manager. Therefore, the next step in understanding the use of unilateral power is to investigate the shared nature of these orders through the dual functions of executive authority and power as framed by the Constitution. The type of order a president issues, the political circumstances surrounding it and the specific executive function he is operating under will largely dictate when and under what circumstances an order is issued. Theoretically, then, we should see differences in the findings based upon the nature of the president s authority to act, the timing of the order in the policymaking process and the intent of the president s action. This conceptualization tells us something important about how presidents make policy, especially unilateral policy, in a shared power context. The nature and timing of unilateral orders in the political system are not well understood since these orders are often treated as monolithic. In fact, these orders are used for different purposes at distinct moments in the policy process. The substance, tone and timing of the orders identified in this book can clarify the use (and abuse) of 2

3 presidential executive power. Indeed, scholars presume that unilateral power allows the president to act without restraint and when the need suits him. Although scholarship has demonstrated that the president acts with possible Congressional or judicial reactive restraint in mind, fears of an aggressive White House marauding over their constitutionally assigned window of responsibility remain constant. This helps to put some of these fears to rest by identifying the moments of shared political power between the branches that both allow presidents to act with dispatch, as the Framers intended, and to work with Congress as a means to navigate and implement public policy. While motivation, opportunities and execution of overreaching executive unilateral actions has occurred, and will no doubt continue, this book places these moments in the proper context of the shared power arrangements outlined by the Constitution. Presidential Power in the Unilateral Context Most studies of presidential power rightfully genuflect on the role that Richard Neustadt s Presidential Power (1990) played in reshaping the discipline s views of how presidents exercise power. Strictly unilateral uses of power are described by Neustadt as a painful last resort to be used expediently only after bargaining has failed (11, 24). Challenging Neustadt s conceptualization of presidential power, several scholars confront Neustadt s view of a weak president arguing it is at odds with the formal powers presidents exercise when engaging in unilateral action (Howell 2003; Mayer 2009; Waterman 2009). It is clear that unilateral orders are powerful (and often dramatic) examples of the president s ability to command (Cooper 1986; Shull 1993; Mayer 2001). Cooper (2002) argues that there is virtually no significant policy area in which presidents operate that has not been shaped to one degree or another by the use or abuse of these tools (ix). Presidents have the capacity to establish rules, norms and policy consistent with their own preferences and without input from Congress. In several instances, including institutional executive power, regulatory authority, budget authority and civil rights, the president s ability to move first, combined with 3

4 Congress s relative inability to respond effectively, tilted competition in favor of the executive (Mayer 2001, 112). Unilateral orders allow the president to do what Congress could not or would not do (Neighbors 1963, 118). According to Fleishman and Anfses (1976), executive lawmaking by unilateral order is powerful enough to undermine democratic decision procedures, and threatens the rule of law (40; Hebe 1972). The suggestion that unilateral orders are powerful policy tools that can be used at the president s discretion gave rise to the idea that president may use these powers to short circuit the separation of powers. By formal arrangement, the growth of institutional power, and the ambiguity of the Constitution, presidents can and do make new law and thus shift the existing status quo without the explicit consent of Congress (Moe and Howell 1999, 133). Unilateral orders allow presidents to act alone in an efficient and alternative manner compared to the legislative process (Krause and Cohen 1997,462; Deering and Maltzman 1999). Described by scholars as the strategic model (or evasion hypothesis, Martin 1999), presidents are strategic actors who issue unilateral orders to bypass or evade Congress (Morgan 1970; Nathan 1983; Peterson 1990; Fine and Warber 2012). The growth of unilateral action chiefly during emergencies (wars or economic crises) is a direct outgrowth of the deference granted to presidents during these times by Congress (Cooper 1986, 236; Howell 2005) and the opportunities they present for presidents to act alone (Howell and Pevehouse 2005). These temporal entreaties beget further, seemingly innocuous, expansions into a wide range of policy making, in both foreign and domestic policy (Moe and Howell 1999). Shared Powers in the Unilateral Context The emphasis on the president s formal powers guides our contemporary estimations about presidential power but may underestimate the degree to which unilateral powers are shared between the branches with the president and Congress working together. This notion of shared powers is true even in the unilateral power context. The issuance of a unilateral order itself does not 4

5 mean that the president is necessarily fulfilling his own prerogative. In reality the president may be executing the will of Congress through prearranged policy or acting administratively to continue government functions with the tacit consent of Congress or in the context of Congressional disinterest. For instance, Shull (1997) suggests that the issuance of unilateral orders is influenced by interactions with Congress (97) and presidents seldom act without input and constraint from others (98). Shull (1997, 123) also previews this line of argument when he suggests that presidents often issue executive orders that are highly supported by Congress, they [presidents] appear to be using them as a way of implementing legislation with which they agree or for routine matters rather than seeking alternative policy adoption. Dickinson (2008) argues that the phrase unilateral action implies presidents work alone but this belies the fact that that presidents must bargain with policy stakeholders inside and outside of the executive branch widely even when issuing unilateral orders. Two of the three examples in the beginning of this chapter show an extended working relationship with Congress behind the façade of the unilateral action. If the president uses unilateral orders to carry out dual executive functions he should be alternatively acting independently and as an administrative agent in the legislative process. For instance, scholars have suggested that presidents may preempt legislation they dislike with a more moderate unilateral order (Howell 2003), where they are more likely to do so when Congress is weaker or when they are unable to pass legislation through Congress (Fleishman and Anfses 1976). Yet, the president may agree with the proposed legislation and help Congress to overcome possible collective action problems. Presidents may also use their orders to implement legislation in specific ways after it has been passed, where the need to bargain with Congress is lessened. Acting unilaterally, the president may rely on statutes or their own authority to execute their current political agenda or modify a prior order. Because legislation may be complex, incomplete or vague upon passage, presidents may issue interpretive orders to remedy these problems, both with and without 5

6 Congressional support. More frequently, presidents use unilateral orders for carrying out routine bureaucratic functions (Schramm 1981), with nearly 60% of executive orders are used for routine purposes (Warber 2006, 39). Underpinning the theory that presidents employ different types of unilateral orders to execute their dual executive functions is the notion that the political environment dictates the use of these orders. At their heart, theories of unilateral action often draw the distinction between unilateral and bargaining actions, which are sometimes difficult to show because the president acts under both conditions. The president s unilateral action is also subject to prior policy restraint since Congress initially limits the policy action that presidents can undertake (Shull 1997, 98). The president may direct the action relying on his own authority to effectuate policy change or implement policy. The president both commands using his inherent authority and acts as administrator by carrying out delegated and necessary functions. This duality in executive function suggests that there is a need to examine unilateral activity with respect to the roles that the executive plays within the larger institutional dynamic between the two branches of government (see Marshall 2011). Rethinking Unilateral Power The continuing debate about the role of unilateral orders provides an opportunity to rethink our approach to unilateral powers. Indeed, Mayer (2009) suggests that the disparate and conflicting results [in prior studies] strongly suggest that we do not have a complete understanding of the interbranch dynamics of unilateral actions (441). We argue a shared power arrangement is not anathema to presidential unilateral powers. Recent work on the unilateral presidency finds that presidents can (and often do) act unilaterally with respect to their political position but that the use of orders is limited by the president s shared structural, institutional constraints. For instance, Mayer (1999) argues that certain orders are hybrid since they constitute a potential reservoir of 6

7 independent authority, but one that presidents do not use without regard to circumstance or consequence (448). Likewise, Howell (2003) argues that institutional constraints lie at the heart of a theory of direct presidential action for they determine what presidents can actually accomplish. The freedom the president has, at any moment, to unilaterally set public policy depends critically upon how the other branches of government will respond (176). Moe and Howell (1999) argue that presidents are political animals and are keenly aware that extreme action taken in one policy domain may jeopardize their effectiveness in another. Thus, presidents may self-check, moderate their actions and take much smaller steps than their de facto powers would allow (153). A New Approach to Unilateral Action We propose a new approach to the study of unilateral powers by analyzing its application within the separate and shared powers framework. This framework allows us to consider how the use of unilateral orders tracks the dual role of the executive as independent (where presidents use unilateral orders to advance their own policy objectives) and administrator (where the president keeps the wheels of government oiled or acts as the agent of Congress). The independent executive fulfills the expectation in existing scholarly research which shows presidents acting against Congress and on behalf of his own agenda. Administrator presidents use their unilateral authority as expressly connected to Congressional intent or as a means to carry out routine executive functions. This work helps to delineate scholarship which both shows that much unilateral action is of a routine nature and scholarship that demonstrates that presidents are aggressive agents in acting unilaterally. To highlight these differences, this book explores the decision-making process pertaining to unilateral orders within three separate and shared policy creating arrangements focusing on the circumstances under which presidents issue unilateral orders and the key factors that influence the decision to build Congressional preferences into unilateral action. 7

8 Our book develops an organizational model to chart the process of when and how a unilateral order is used and, from this model, we derive several theoretical explanations for when the president should act as independent or administrator. We create the context for analyzing these roles based on whether the president s institutional role is independent or shared with Congress. In order to test our expectations concerning the dual executive, we consider the influence of multiple integrated power arrangements including: the source of authority presidents use in justifying their orders (Congressional statute, Congressional resolution, the Constitution or inherent executive authority), the amount of delegation Congress gave the president with respect to each unilateral order issued, whether the president used an executive order to preempt or facilitate Congressional legislation on the same topic and how presidents use unilateral orders after legislation is passed to faithfully implement law (or not). This approach demonstrates the dual role of the executive and the connection to unilateral orders and fits within the system that requires shared powers via the Constitution. The Executive s Dual Roles No one would suggest that presidents are only either clerks or commanders (in Neustadtian typology) rather presidents have evoked both types of interpretations of their power. With an independent president, unilateral orders are used to put his own issues on the agenda and to initiate policy goals consistent with an energetic executive (Rossiter 1956). This is the expectation of scholars who suggest that presidents use executive orders to set a policy agenda, act when Congress won t, and preempt an action Congress is considering of which the White House disapproves (Neighbors 1963). An administrator president uses orders as a means to manage the affairs of government, about which the president is either agnostic with respect to the issue or shares the views of his lawmaking partners. In this capacity, the president fulfills a central but largely benign executive function of administering governmental maintenance by carrying out laws that 8

9 have been passed or initiating the policy implementation process. In the discussion below, we functionally separate unilateral orders into these two categories to mirror the roles that presidents play in the exercise of power. FIGURE 1.1 Scale of Presidential Unilateral Action NSC Name Change Contractor Overtime Pay Order Less Unilateral Administrator More Unilateral Independent The scope of presidential unilateral action, then, can be placed on a scale of action ranging from more to less unilateral. Figure 1.1 illustrates this span on a simple scale and a discussion of these two examples illustrate the differences. In the same week in February of 2014, President Obama issued two executive orders of very different ilk. In one order, the President issued an order which changed the name of the National Security Staff to the National Security Council Staff. The order specifically notes that it shall not be construed to impair or otherwise affect (i) the authority granted by law to an executive department, agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. 1 Although issued by the stroke of a pen, the order raised no concern in Congress and was little more than cosmetic in nature and as without objection from Congress who gave him this authority to act. In another order (Executive Order 13658), the President, as part of his promise to sidestep Congress and reduce income inequality, ordered the Labor Department to revise overtime pay rules to make millions more workers eligible for extra 1 Executive Order 13657, Changing the Name of the National Security Staff to the National Security Council Staff. February 10,

10 pay when they work more than 40 hours a week (Joachim 2014). 2 Getting little traction in Congress on legislation on raising wages, the President acted without Congress using an order in a more unilateral way. The order was issued before Congress acted on the matter and raised the ire of both Congressional opponents and the business community. This range helps us to identify the scope and scale of presidential unilateral action. We describe the two unique types here. As suggested, presidential independent unilateral orders are used to further the president s policy objectives or protect the power of the executive branch. For these orders, we include: command orders (from issues on their political agenda) when presidents act before Congress acts, orders which preempt Congressional legislation and orders that adapt rather than implement law (where presidents issue an order to implement policy in a flexible way). On the other hand, we identify three companion orders (issued at matched points in time, see Figure 2.2 below) where we suggest that presidents should be more likely to work with Congress to further the policy process and engage in mutual and expedient movement of legislation into law we label these as the administrator orders. These include: routine orders (managing the affairs of government), support orders (issued before Congress legislates but in concert with Congressional preferences) and implementation orders (which faithfully enact legislation passed by Congress into law). The scope of the president s authority, the president s political environment and the institutional dynamic with Congress will dictate which of the types of orders the president issues at each stage. Consistent with independent executive orders, presidents should be more likely to issue these when they are less able to get agreement on a policy direction from Congress or where they disagree with Congress. For instance, when government is divided, an opposition Congress is less likely to support the president s initiatives and he may have greater incentive in these instances to 2 Executive Order 13658, Establishing a Minimum Wage for Contractors. February 12,

11 pursue an independent and unilateral policy (Deering and Maltzman 1999). Although presidents are limited by an anticipatory response from Congress they are nonetheless willing to maximize power and act against a recalcitrant Congress to achieve their policy objectives (Moe 1993). Presidents often use unilateral orders to accomplish policy goals that Congress could or would not do (Neighbors 1964). If unilateral orders are a way to make policy without Congress, we should see presidents using them more frequently when there is greater interbranch policy disagreement. In these instances presidents are less able to bargain (and legislate) with a divided and recalcitrant Congress. Presidents running for reelection or in the second half of their term or second term are often busily trying to convince Congress to work with them despite the fact that they are often unwilling to do so. Alternatively, using administrator orders, the president is more likely to work with Congress when they have mutually agreeable objectives, when there is more support in Congress for the action he is likely to take, or when Congress is disinterested in the outcomes and relies on the expertise of the executive to act. Under these conditions the president and Congress fortuitously share in policy development and can more easily achieve a satisfactory policy arrangement. For instance, presidents may treat unilateral orders as complimentary to the legislative process (see Gleiber and Shull 1992; Krause and Cohen 1997). If Congress and the president are closer aligned either in terms of party or ideology (or both), it stands to reason that they would, in general, agree more with each other and the president can use unilateral orders to their mutual benefit. Scholars have discovered that when the president has greater party support, he issues more orders because he is more likely to be in greater agreement with Congress (Shull 1997, 103; Gomez and Shull 1995). Even when the branches are in potential conflict, the institutional responsibility to act should transcend ideological disagreements for these orders in order to keep government running. 11

12 The Stages of Presidential Action In the previous section we discussed how we discern the dual roles of the executive from the Constitution where we see the branches sharing powers. In this section we map three stages that chart our conceptualization of the timing of the president s use of unilateral orders. As shown in Figure 2.2, in the first stage (upper panel) ( Direct Action ) unilateral orders are the output of the president s primary action, where the president s unilateral action occurs before the legislative process begins. Congress may be in the policy development stage and direct action represents an opportunity for the president to act first on information obtained by the executive branch. Presidents may also have a specific policy objective in mind and do not want to wait for the legislative process to initiate policy. In the second stage ( Legislative Process ), the president s unilateral order is issued during the legislative process related to bills that have already reached the Congressional agenda. The president now has an opportunity to work with Congress on proposed legislation where he may or may not find success or issue an order altering the trajectory of the legislative process. In the final stage ( Final Law ), legislation has been signed into law and authority delegated to the president which enables him to issue unilateral orders to implement final legislation. 12

13 FIGURE 1.2 Model of Unilateral Orders and the Policy Process The following sections expand on the nature of each of these orders with respect to the president s dual executive roles and provide examples to illustrate each specific order. Because we employ distinct legislative or operational cut points, we argue all orders can be classified into one of these time periods. We focus here on the first and third stages. Direct Presidential Action. When the president issues a unilateral order in the first stage, he is exercising action before Congress, generally at the policy incubation stage (Rudalvidge 2011). We identify, the two types of orders the president issues at this stage as routine and command. First, routine orders are primarily administrative or managerial in origin. This is an example of the administrative presidency working to maintain the function of government and keep the trains running. In our framework, these issues are not on the president s agenda and are used benignly to 13

14 jointly manage government. 3 For example, routine orders are used to make internal organizational changes within the executive branch such as altering a pay scale or job description, make necessary changes within the executive branch in order to comply with a judicial opinion, delegate authority or reorganize agency responsibilities or reporting mechanisms. These are not likely orders that would raise the ire of political opponents or Constitutional purists. The Obama Administration order to change the name of the National Security Council Staff referenced above is a clear example of this. Routine orders are primarily administrative. The purpose is generally, as Warber describes, (2006, 142) to accomplish a simple, noncontroversial, administrative task in the executive branch. For example, presidents use executive orders to create an investigatory board to solve labor disputes between union-represented employees and their employers pursuant to the Railway Labor Act (45 U.S.C. 151 et seq; see also Mayer 2001, 76). 4 Similarly, after the terrorist attacks of September 11, 2001, President Bush issued several executive orders providing for an order of succession within each executive department in response to this national emergency. 5 These orders provided for agency continuity in the event of a change in leadership and, in total, sought to preserve the continuity of government. Although the response to the terrorist attacks was foremost on President Bush s agenda, the change in succession wasn t specifically discussed as part of his public agenda nor was the order a request of Congress. Unilateral orders which command are distinguishable from those used to administer routine functions because they stem directly from the president s public agenda and are used to fashion his 3 To be considered on the president s agenda, the issue had to have been spoken by the president at least three times in public. This constitutes a high bar for an issue to be on the president s agenda because the president has publically prioritized the issue. We utilized the Public Papers of the President to document the president s agenda. 4 The president s authority is discretionary under Section 9A and mandatory under Section 10 of the Railway Labor Act. 5 Executive Orders were issued on December 18, 2001 and Executive Orders were issued on December 28,

15 own policy. More specifically, command orders signal to the Congress or the public the president s commitment to a larger initiative and, in some instances, set the agenda for Congress to follow. For example, relying on Constitutional authority and his role as Commander-in-Chief, President Carter issued Proclamation 4483 and Executive Order on January 21, 1977 pardoning Vietnam War draft evaders one day after taking the oath of office. President Carter fulfilled his campaign promise by acting quickly to execute the pardon but his unilateral action did not sit well with members of Congress who had been working on developing a legislative approach during the prior session. Command orders may also be used to centralize policy in the executive branch by establishing a formal mechanism such as a committee or commission. In the day before President Carter s final day in office he issued Executive Order establishing the President s Commission on Hostage Compensation. If a presidential commission is of particular importance, it may be continued from one administration to the next (which President Reagan did under subsequent executive orders). 6 The president may also do more than continue the commission by using unilateral orders as a way to amend, extend, and shape the composition of committees to allow the White House greater control over the policy development process. Executing Law. While Congress has the powers to make all laws, the president has the constitutional authority to execute and enforce them. The statutory authority specified in the language in the law that enables him to faithfully execute the will of Congress. This is the final phase of the policy process and the one in which the president assumes Neustadt s clerkship because no one else s services suffice (1990, 7). When unilateral orders faithfully implement legislation, the president is acting in concert with Congress, following the direction specified in the 6 Executive Order 12307, President's Commission on Hostage Compensation authorized the commission to conduct public hearings and gave the commission additional time to prepare the report (46 FR 30483; June 9, 1981) and Executive Order 12317, President s Commission on Hostage Compensation gave the commission additional time to prepare the report (46 FR 42241; August 20, 1981). 15

16 statute. To be considered faithful implementation of a law, the president must either (1) cite the specific statutory authority of legislation passed in the Congressional session in which the order was issued or (2) attribute his action in the statement or remarks accompanying the signing of unilateral order (either a speech or a signing statement). Orders that implement policy action can involve changing or enacting agency regulations, triggering a particular statutory action and responding to emergencies (Gleiber and Shull 1992; Shull 1997, 2006; Cooper 2002; Kerwin 2003). Sometimes presidents may use executive action to evoke multiple conditions as President Carter did by issuing an executive order to trigger a particular statutory action and respond to a natural gas emergency pursuant to the Emergency Natural Gas Act of 1977 which he had signed into law the same day. 7 Presidents are generally expected by Congress to faithfully implement legislation involving the management of policy within the executive branch such as the establishment of a commission, an organizational or administrative change, delegation or assignment of authority. The authority to implement a law is generally delegated by Congress to a division or agency within the executive branch or to the president. 8 The president may perform his statutory duty by sub-delegating his authority, as President Carter did to implement his obligations under the Diplomatic Relations Act. 9 However, Congress could have (but did not) direct the president only to designate an individual to carry out the duties under the law as in the Uniformed and Overseas Citizens Absentee Voting Act Executive Order 11969, Administration of the Emergency Natural Gas Act of 1977 (February 4, 1977; 42 FR 6791). Emergency Natural Gas Act of 1977 (Public Law 95-2, 91 Stat. 4). 8 For a debate on whether on the unitary executive and whether the president has discretionary authority over executive branch agencies receiving delegated statutory authority directly see Lessig and Sunstein (1994) and Calabresi and Prakash (1994). 9 Executive Order 12101, Privileges, immunities and liability insurance for diplomatic missions and personnel (Nov. 17, 1978; 43 FR 54195). HR 7819, P.L Diplomatic Relations Act Public Law , 92 Stat. 808; 22 U.S.C. 254a et seq.) 10 Executive Order 12642, Designation of the Secretary of Defense as the Presidential designee under title I of the Uniformed and Overseas Citizens Absentee Voting Act (June 8, 16

17 Yet, presidents may not always fully, faithfully implement law. Figure 2.2 indicates that, although these orders relate to the execution of law, the executive branch may seek to interpret laws differently than Congress. We classify these as adaptive orders which implement the general intent of legislation but the president may not implicitly follow the direction of the law or he may use different statutes or even his constitutional authority to adapt policy to meet his objectives. For instance, when President Reagan signed the Ethics in Government Act Amendments of 1985, the law expressed the sense of the Congress that the government should more aggressively use suspension or debarment of contractors convicted of crimes. 11 Rather than acting pursuant to the statute, President Reagan citing his Constitutional authority and the laws of the United States generally, issued an executive order creating a government-wide system for debarment and suspension from programs and establishing an Interagency Committee on Debarment and Suspension to oversee the implementation of his order. 12 President Reagan followed the sense of Congress but the order does not fall within the category of implementing law instead, we consider this as adapting law to meet the president s policy objectives. Specifically, Congress did not delegate authority to the president nor specify actions the government should take and unilateral action, allowing him flexibility in developing his own policy. Data, Methods and Expectations While scholars generally classify all unilateral orders as direct action with the president acting alone without Congress, in this chapter we segment and analyze our data set of unilateral orders to identify a direct action order is issued at a specific moment in the policy process. By definition, as explained in Chapter 2, the topic of a command order is on the president s agenda 1988; 53 FR 21975). HR 4393, P.L Uniformed and Overseas Citizens Absentee Voting Act (42 U.S.C. 1973ff. 11 H. J. Res. 465, Ethics in Government Act Amendments of 1985 (Public Law , 99 Stat. 1185) 12 Executive Order 12549, Debarment and Suspension (February 18, 1986; 51 FR 6370). 17

18 which means it was discussed by him in a message, statement, address, speech or public address of some type. In addition, the order has to come before any concurrent legislative action by Congress is apparent. Routine orders are also direct action but they are distinguished from commands because they are used to execute the president s administrative duties, not the president s agenda. The lynchpin that separates a command order from a routine order is whether or not the issue in question was a presidential promise or priority as defined by the president talking about it in public and before Congress has acted. We operationalize direct action for the purpose of analysis by creating a binary categorical dependent variable coded 1 for commands and 0 for routine orders. We restrict our analysis of orders to those that are in the Executing Law phase as shown in Figure 1.1. This includes unilateral orders that implement or adapt a recently enacted law. We determined that the president s unilateral order was used to faithfully implement a law if the specific statute (law) was cited in the order and if the law was enacted within one of the two legislative sessions that make up the four years of the president s administration. An order met the criteria for adapting law if it related to a law enacted within one of the two legislative sessions that make up the four years of the president s administration but the president did not cite it exclusively as a source of authority in the order. In order to determine if an order related to a recently enacted law, we again analyzed the content of each order and then searched several electronic databases (discussed in Chapter 2) in order to identify whether a law relating to the order had been enacted during the president s administration. 13 A binary dependent variable was created and coded 1 if the unilateral order was used to adapt law and 0 if it was used to implement law. The total number of orders 13 A legislative history was created for each unilateral order as part of this research. This enables us to classify all the orders that met the criteria for Direct Action and Legislative Process, and those that fell within the category of Executing Law. The next step was to determine which orders were used to implement law and which were used to adapt law. 18

19 that related to the execution of recently enacted law includes a total of 482, of which 385 were issued to implement law and 97 to adapt law. The president commands when he acts first by setting policy unilaterally before Congress can act. The advantage to the president is he does not necessarily share power with Congress. By this classification, routine orders are not the subject of prior Congressional action. Our expectation is that, in the battle for agenda control, the president will act when the issue is on the prior Congressional agenda or the subject of current Congressional hearings because the president wants to set policy before Congress does. We determine the extent of Congressional involvement in the topic of the president s unilateral action to understand when presidents are proactively acting first on issues before legislation can be introduced. The topic of a unilateral order may have been the subject of the prior Congressional agenda or current Congressional hearings. We investigate whether the topic of each unilateral order was all or part of the subject of a Congressional committee hearing before legislation has been introduced into the current legislative session (Congressional Hearing) or the subject of a bill on Congress s agenda in the prior session (Prior Congressional Agenda). We also include several presidency-centered variables since the president has some degree of control over the timing of his order with respect to political or temporal conditions. First, Second Half is coded as the second half of a president s term (either first or second term). Second, Second Term is coded as the second term for a president (our data include Presidents Reagan, Clinton and Bush as second term presidents). Related to these two variables, we interacted them to form a variable (Second Half, Second Term). Third, Election Year is coded as any full year in which there is a presidential election. These are consistent with how Mayer (1999; 2001) and Warber and Fine (2012) construct these variables. Following the logic from Chapter 4, we continue to explore the influence of the source of authority presidents cite in their orders to justify their action. We expect that the president is more 19

20 likely to rely on statute when issuing routine orders and the Constitution for issuing a command order. In the latter, he is executing a prearranged policy. In the former, he is acting more clearly under his own prerogative. We include a binary categorical variable for orders where the president issues an order citing a statute (Statutory Authority) and one for orders where the president cites his Constitutional authority (Constitutional Authority). Unlike in Chapter 3 and 4, these sources of authority include cases where statute was cited alone or in conjunction with other authority. We also expand our measure of the presidential authority to include a variable measuring broad substantive discretion (Substantive Discretion) with the expectation that greater discretion should yield a higher probability of issuing a command order. Several explanatory variables are also included to test our assertions pertaining to whether or not presidents are working with or against Congress with respect to interbranch and intrabranch gridlock. First, as a measure of intrabranch gridlock, or the measure of disagreement within a chamber and or between the parties, we operationalized this in two ways. To create a measure of internal distance between each of the two political parties in Congress (Party Distance) within each chamber. This measure is a shorthand way of determining how likely it is that the parties in Congress can get along enough to pass legislation; greater distances imply less cooperation while closer distances imply more potential cooperation. We calculate the absolute value of the difference of the CS-NOMINATE scores (which range from -1 for conservatives to +1 for liberals) for the median member of each party (the average ideological Member) within the House and Senate (Poole and Rosenthal 1991; 1997; McCarthy and Poole 1995). 14 These measures represent an approximate positioning of each institution on a liberal-conservative ideological scale. Next, to measure the ideological distance within the parties in each chamber (Party Polarization) we subtract the absolute 14 Poole, Keith T., DW NOMINATE Data, website accessed, August 2011: 20

21 value of the CS-NOMINATE scores for the extreme members within each party within the House and Senate. In both cases, with Congress less able to act, as in instances where intrabranch conflict is higher, presidents should issue more command orders since Congress will be less able to legislate and since the president will want to act with dispatch. Second, we measure interbranch gridlock between the president and Congress in three ways. In the first measure we create a variable representing the ideological distance between the president and the median member of each chamber (Distance between House / Senate Median and President). We again operationalize this by using CS-NOMINATE scores for the president s ideology and subtract this from the chamber median of the majority party then take the absolute value of the difference (see Deering and Maltzman 1999). In general, we should expect presidents to be more likely to issue command orders when they are more likely to be at odds with Congress but more likely to issue a routine order when they are more likely to be in agreement with Congress. We then operationalize the size of the majority party by using a continuous variable of the total number of seats held by the majority party in the House and Senate (Majority Party House/Senate). Presidents are likely to issue more command orders when Congress is weaker and will issue fewer when Congress is stronger. The third measure of interbranch gridlock measures the distance ideological between the president and the filibuster pivot in the Senate (Filibuster Pivot). Specifically, we sort each Senator within each session using the CS-NOMINATE scores and, taking the 60 th member for each Congress, calculate the absolute value of the distance between this member and the president. Routine and Command Orders Over Time To further explicate the use of routine and command orders in this phase of the policy making process, Figure 1.4 charts the individual instances of the use of these orders by presidents. Presidents appear to collectively use these orders in this policymaking phase in similar total amounts over time. Two term presidents like Reagan, Clinton and George W. Bush all issued about

22 orders in this phase of the process, with Clinton and Bush using 307 and 309 respectively. One term presidents like Ford, Carter and George H.W. Bush also used between 150 and 200 such orders. The number of orders issued for Presidents Ford and Bush was only three orders different. One implication to this commonality is that all presidents appear to have a consistent need to manage government at this level using their unilateral power, consistent with the discussion above about executive control and maintenance of government. Given that the orders in this category are the most frequently used, this period is also the most important for study of the use of unilateral executive power. Command orders tend to be more frequently used in eras where Congress is institutionally stronger than the president. This is most acute in the Ford and Carter terms where the number of command orders issued is lower than average for the presidents studied. President George H.W. Bush, who served in a moment when Congress was resurgent following several Reagan Administration scandals and a backlash against strong executive power from a Democraticcontrolled legislature. As presidential power swells during the Reagan, Clinton and W. Bush eras, so too does the use of command orders. Perhaps not surprisingly, the use of command orders appears to be highest when government is divided. This is especially true for the Reagan (149 command orders) and Clinton (191) Administrations which made the most frequent use of these orders. 22

23 FIGURE 1.4 Use of Routine and Command Orders by President Ford Carter Reagan H.W. Bush Clinton W. Bush Routine Command When Presidents Issue Routine and Command Orders Because our dependent variable is a binary categorical one, we use a series of logistic regression models, a generalized linear model for a binomial regression to test our hypotheses. 15 This method allows us to predict a binary probabilistic response from a dichotomous variable based 15 These models allow us to (1) utilize a dichotomous variable arrangement (where y i = 1 if y i* > 0 and y i = 0 if y i* 0) and (2) determine the probabilistic effect of the key independent variables on the dependent variable (Agresti 2002). That is, because the models require a dependent variable to be binary, these models can test the above propositions regarding under what conditions a preemptive order was issued. The model is briefly summarized as follows: Pr(y= 1 x) = exp (α + β x β x n ) / 1 + exp (α + β x β x n ), where x n is the total number of independent variables described above. Since the estimated parameters from the equation does not provide directly useful information, predicted probabilities (the predicted positive outcome for each observation, given the values on the independent variables for that observation) and/or the marginal change are used to estimate the relative importance of each coefficient (Long and Freese 2001). Alternative specifications (such as an ordered logit and count models) revealed substantially similar findings. 23

24 on the predictor (independent) variables. A positive coefficient indicates a president was more likely to issue a command order while a negative coefficient indicates a routine order. 16 The results in Table 5.1 show the inclusion of several different models to estimate the institutional and temporal effects on the use of unilateral orders as command or routine action. Presidents are more likely to issue a command order when it relates to the subject of a Congressional hearing during the current session which suggests that they act first to adopt policy in which Congress has an interest. This finding demonstrates that the battle between the branches for the nation s policy agenda is partially adjudicated by the president s use of use of information from Congressional hearings to take unilateral action. Presidents are also more likely to issue a command order when the issue was on Congress s prior legislative agenda. In the last model in Table 1.1, presidents are more than 32% likely to issue a command order when the issue was on Congress agenda in the prior session. If the president thinks Congress will consider the issue again, as evidenced by the fact that they considered it previously, he will act first. For example, after being elected to a second term in office, President Reagan issued Executive Order 12498, which signified his continued commitment to proactive regulatory action directing agencies to prepare a yearly agenda containing all contemplated regulatory actions for the coming year. (Mayer 2001, ). 17 This order was also effective in anticipating regulatory reform legislation from the prior session. 18 Congress may or may not approach the issue 16 Given the nature of these orders, it might be expected that those orders that dealt with defense, emergencies, foreign aid or foreign trade would be more likely to engender a command order from the president. This proved to be correct in models which truncated the sample to those issues, the results were substantially similar. Because the results were fundamentally the same, we have omitted these results for purposes of presentation. 17 EO 12498, Regulatory planning process (50 FR 1036; January 8, 1985). 18 Regulatory Reform Act: Hearings on H.R Before the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary, 98 th Cong. 1 st Sess. 312 (1983). S 1080 Regulatory Reform Act 97 th Cong., 1 st Sess., 127 CONG. REC (1981); The Senate passed S 1080 March 24, 1982 by a 94 0 vote. The Regulatory Reform Act Hearing on S. 24