Unilateral Powers. Ryan D. Williamson

Transcription

1 Unilateral Powers Ryan D. Williamson

2 Objec8ve By the end of this class, students should be able to Iden8fy how and why presidents enact policy change on their own

3 Moe and Howell The fact is, presidents have always acted unilaterally to make law. The Louisiana Purchase, the freeing of the slaves, the internment of the Japanese, the desegrega8on of the military, the ini8a8on of affirma8ve ac8on, the imposi8on of regulatory review these are but a few of the most notable examples. Most presiden8al orders are far less drama8c, of course. But they are numerous and olen important, and it appears the strategy of unilateral ac8on has grown increasingly more central to the modern presidency.

4 What mo8vates presidents? Explaining the behavior of Congress is simple once you consider electoral mo8va8ons. The same cannot be said for presidents. What then can explain the behavior of modern presidents? Cemen8ng their legacies through changes in policy.

5 How can they accomplish this? They must exercise as much control over government and its outcomes as they can. The ambiguity of the Cons8tu8on gives them plenty of opportuni8es to do just that.

6 For example The President is the commander-in-chief of armed forces, which has been used to u8lize military force without a formal declara8on of war from Congress. Similarly, the President can enter into an execu8ve agreement with foreign countries without the Senate formally agreeing to a treaty with said countries.

7 4,000 3,000 Executive Orders 2,000 1,

8 How could Congress stop them? Presidents cannot appropriate government funds. The many different cons8tuencies of Congress create numerous veto points. A large enough coali8on could override a president s decision.

9 How could the Court stop them? Presidents are exercising powers nowhere explicitly granted to them by the Cons8tu8on, and the Supreme Court has every right to step in and prohibit them from doing these things.

10 How could the Court help them? The Court can simply avoid deciding many issues that arise about ins8tu8onal power, arguing that these are mawers that the president and Congress have to resolve on their own. The Court can issue rulings favorable to presidents, but jus8fy its decisions by appearing to give due deference to the legislature. The Court can decide against presidents when, perhaps as a result of unwise ex ante poli8cal calcula8ons, presidents take ac8ons that are highly unpopular with the public, Congress, and opinion leaders.

11 Why would the Court help them? They believe it s the correct side Avoid backlash and maintain legi8macy

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13 For example Korematsu v. United States USSC upheld the execu8ve order crea8ng internment camps Youngstown Sheet & Tube Co. v. Sawyer USSC ruled against the President s ability to seize private property even under emergency circumstances

14 Therefore Presidents can enact policy change on their own. But they must do so moderately and strategically in order to gradually accrue power over 8me.

15 When do we see execu8ve orders? Approval: Higher or lower? Lower Government: Unified or divided? Unified

16 Unilateral Powers II

17 Objec8ve By the end of this class, students should be able to Iden8fy the characteris8cs of presiden8al unilateral ac8ons

18 Unilateral Ac8ons Last 8me, we talked about execu8ve orders and their status as unilateral powers. We also alluded to execu8ve agreements and the deployment of military forces as unilateral ac8ons. Today, we are going to try to outline a set of condi8ons that define what is a unilateral power using recess appointments as a reference.

19 Recess Appointments One (at least poten8al) means by which the president can unilaterally influence policy is through recess appointments. The Cons8tu8on states the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by gran8ng commissions which shall expire at the end of their next session.

20 Can Congress stop this? If the Senate does not confirm the appointee, he or she is then removed from that posi8on at the end of the session. Furthermore, the President cannot exercise this power unless the Senate has been in recess for longer than 10 days. Therefore, since 2007 the Senate has scheduled its proceedings in such a way to avoid a recess long enough for the President to make a recess appointment.

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22 What Makes an Ac8on Unilateral? Black et al. iden8fy 3 criteria: The president manipulates ambigui8es in the Cons8tu8on The president must use the power first and use it alone, pueng the legislature and courts in a posi8on such that they must react to the president s ac8on The president s ac8on must affect policy

23 Criterion 1 It can be argued that the original purpose of the relevant provision was simply a means by which the president could maintain a func8oning government. However, presidents could use it to put someone in power for almost 2 years who wouldn t have passed the tradi8onal confirma8on process. Finally, what cons8tutes a recess and a vacancy isn t always very clear.

24 Criterion 2 The president is in a unique posi8on to enact policy change rather swilly. Reac8ng is difficult for MCs because they cannot act alone. Reac8ng is also difficult for the courts because they must wait un8l a case is brought to them. If no one challenges the president s ac8ons, his decision stands. However, without ac8ng moderately and strategically, presidents are indeed likely to elicit a reac8on from Congress and/or the courts.

25 Criterion 3 Presidents also use these powers to enact policy change. This allows them to appoint ideologicallysimilar people to posi8ons on the courts and within execu8ve agencies. This could (at least theore8cally) alter legal and administra8ve outcomes.

26 Recess Appointments Do recess appointments meet these criteria? Totes. What other ac8ons fit this framework? Execu8ve agreements Execu8ve orders What ac8ons don t fit this framework? Disaster declara8ons Signing statements

27 Unilateral Powers III

28 Objec8ve By the end of this class, students should be able to Describe ci8zens aetudes toward presiden8al usage of unilateral powers.

29 Reeves and Rogowski Earlier research suggested that voters are agnos8c towards presiden8al power Pew Survey: 59% correctly name Joe Biden as the vice president in an open-ended ques8on.

30 Reeves and Rogowski Later research concluded that aetudes were simply shaped by par8sanship.

31 Reeves and Rogowski They argue that the first theory is incorrect and the second is incomplete. Instead, the contend that aetudes are shaped by Presiden8al popularity Belief in the rule of law How do they evaluate this? What do they find?

32 Increased presiden8al approval leads to increased support for unilateral ac8on.

33 Increased belief in the rule of law leads to decreased support for unilateral ac8on.

34 Support for unilateral power is also context specific. Certain condi8ons lead voters to be more tolerant of unilateral powers.