Executive Orders and the Modern Presidency: Legislating from the Oval Office 9781626373433

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EXECUTIVE ORDERS AND THE

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EXECUTIVE ORDERS AND THE

MODERN PRESIDENCY Legislating from the Oval Office

Adam L. Warber

b o u l d e r l o n d o n

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Published in the United States of America in 2006 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com and in the United Kingdom by Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2006 by Lynne Rienner Publishers, Inc. All rights reserved Library of Congress Cataloging-in-Publication Data Warber, Adam L., 1971– Executive orders and the modern presidency : legislating from the Oval Office / Adam L. Warber. p. cm. Includes bibliographical references and index. ISBN 1-58826-401-7 (hardcover : alk. paper) 1. Presidents—United States. 2. Executive orders—United States. 3. Executive power—United States. 4. Political planning—United States. I. Title. JK516.W35 2006 352.2'35—dc22 2005020650 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library. Printed and bound in the United States of America The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5

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Contents

List of Tables Acknowledgments

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1 Executive Orders as Strategic Policy Tools

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2 Policymaking by Presidential Decree

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3 The Policymaking Environment

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4 Safeguarding Executive Orders

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5 White House Lawmaking: An Unfinished Journey

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Appendix A: Content Analyzing Executive Orders

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Appendix B: Yearly Number of Published Executive Orders Issued by Modern Presidents

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Bibliography Index About the Book

155 165 175

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Tables

2.1 2.2 2.3 2.4 2.5 2.6

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3.1 3.2

3.3 3.4 3.5

Total Number and Percentage of Symbolic, Routine, and Policy Executive Orders Yearly Average of Executive Orders Issued by Presidents Yearly Average of Executive Orders and Party Control of the White House Number of Executive Orders Revoked, Superseded, and Amended that Are Excluded from Analysis Yearly Average of Executive Orders Revoked, Superseded, and Amended Yearly Average of Executive Orders Revoked, Superseded, and Amended that Were Issued by Predecessors of the Same and Opposing Party as the President Yearly Average of Executive Orders Revoked, Superseded, and Amended by Republican and Democratic Presidents that Were Issued by Predecessors of the Same and Opposing Parties Yearly Average of Executive Orders During Divided and Unified Government Yearly Average of Executive Orders During Divided and Unified Government While Accounting for Party Control of the White House Monthly Average of Executive Orders Issued by Richard Nixon Monthly Average of Executive Orders Issued by William Clinton Yearly Average of Executive Orders Issued During an

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39 40 45 52 56

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66 69 69

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3.7 3.8 3.9 3.10 3.11

3.12 3.13 3.14 4.1

4.2 4.3

4.4 4.5 4.6 4.7 4.8

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Administration’s Last and Previous Years in Office Yearly Average of Executive Orders During an Administration’s Last and Previous Years in Office While Accounting for Party Control of the White House Yearly Average of Executive Orders During Election and Nonelection Years Yearly Average of Executive Orders Targeting Specific Groups During Election and Nonelection Years Common Types of Executive Orders Addressing Military and War Policy Total Number of Executive Orders Regarding Military and War Policy Total Number of Executive Orders Regarding Military and War Policy While Accounting for Party Control of the White House Yearly Average of Executive Orders Initiating Executive Branch Reforms Yearly Average of Executive Orders Categorized as Distributive and Redistributive Policy Yearly Average of Executive Orders Categorized as Regulatory Policy Yearly Average of Executive Orders Citing Sources of Authority During the Franklin Roosevelt Administration Yearly Average of Executive Orders Citing Sources of Authority During the Harry Truman Administration Yearly Average of Executive Orders Citing Sources of Authority During the Dwight Eisenhower Administration Yearly Average of Executive Orders Citing Sources of Authority During the John Kennedy Administration Yearly Average of Executive Orders Citing Sources of Authority During the Lyndon Johnson Administration Yearly Average of Executive Orders Citing Sources of Authority During the Richard Nixon Administration Yearly Average of Executive Orders Citing Sources of Authority During the Gerald Ford Administration Yearly Average of Executive Orders Citing Sources of Authority During the Jimmy Carter Administration

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72 74 75 78 79

80 82 84 85

93 94

94 95 95 96 96 97

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Tables

4.9 4.10 4.11 4.12 4.13 4.14 4.15 4.16 4.17 4.18 4.19

4.20 4.21

4.22 5.1

Yearly Average of Executive Orders Citing Sources of Authority During the Ronald Reagan Administration Yearly Average of Executive Orders Citing Sources of Authority During the George H. W. Bush Administration Yearly Average of Executive Orders Citing Sources of Authority During the William Clinton Administration Number of Executive Orders that Cite No Sources of Authority Yearly Average of Executive Orders Citing Specific and Vague Authority Sources, by Administration Average Number of Executive Orders Each Year Citing Specific and Vague Sources of Authority Total Number of Executive Orders that the House of Representatives Debated on the Floor Total Number of Executive Orders that the Senate Debated on the Floor Percentage of Executive Orders that the House of Representatives Debated on the Floor Percentage of Executive Orders that the Senate Debated on the Floor Yearly Average of Executive Orders that the House of Representatives Debated During Divided and Unified Government Yearly Average of Executive Orders that the Senate Debated During Divided and Unified Government Yearly Average of Executive Orders that Congress Debated on the Floor During Election and Nonelection Years Percentage of Executive Orders that Congress Modified Through Statutory Law Yearly Average of Executive Orders Citing Sources of Authority During the First Term of the George W. Bush Administration

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97 98 98 101 102 104 112 113 115 115

116 117

118 119

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Acknowledgments

M

y research into executive orders has benefited enormously from the wisdom of several scholars who have always provided valuable advice. Particular thanks to George C. Edwards III for training me to think critically about the US presidency and for his thoughtful suggestions and guidance while I worked on this book. James E. Anderson provided me with encouragement and valuable critiques on each chapter—and also made sure that I did not drift too far into mindless number crunching without first questioning the theoretical importance of the resulting data. I also appreciate Kenneth J. Meier’s helpful comments on an early draft of the book. Finally, I am indebted to Robert Durant for enhancing my knowledge about the administrative presidency. Since my arrival at Clemson University, the Department of Political Science and the College of Business and Behavioral Science have been both intellectually and financially supportive. Specifically, I wish to thank Bruce Yandle, Jerry Trapnell, and Bill Lasser. Laura R. Olson carefully read parts of my work and offered invaluable comments; my thanks to her and to the entire political science faculty for providing such a positive environment. Throughout the years, numerous scholars have offered excellent criticisms and suggestions at professional conferences and through other exchanges. I especially thank William Howell, Kenneth Mayer, Karen Hult, Lyn Ragsdale, Steven A. Shull, Jeffrey S. Peake, Bryan Marshall, Jon Schaff, Michelle L. Chin, and H. W. Brands. To collect the data for this book, I spent hour upon hour peering at microfilm copies of executive orders. I am grateful for the techni-

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cal assistance that I received from Ron Hambric, Brian Carpenter, and the rest of the microtext staff at the Sterling C. Evans Library at Texas A&M University. Finally, Leanne Anderson and the rest of the staff at Lynne Rienner Publishers have been supportive of this project since its inception. The book you hold in your hands has been greatly improved by their thoughtful suggestions—as well as by the advice and constructive criticisms of their anonymous reviewers. —Adam L. Warber

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EXECUTIVE ORDERS AND THE

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1 Executive Orders as Strategic Policy Tools

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residential influence on the policy process has become a staple subject within presidential research (see Bond and Fleisher 1990; Edwards 1980, 1989; Gleiber and Shull 1992; Neustadt 1990). Despite scholarly attention, studies have only scratched the surface regarding the scope of presidential power, because scholars focus their main attention on determining presidential success within the formal legislative process. Apart from shaping the policy process in Congress, chief executives possess legislative powers, such as the ability to issue executive orders, proclamations, memoranda, executive agreements, and national security directives, that allow them to unilaterally establish law (see Cooper 2002). In a period where presidents vigorously pursue administrative strategies to centralize control over the executive branch, unilateral powers theoretically provide presidents with the most cost-effective tool for establishing public policy. However, because most unilateral powers are not directly derived from the Constitution, the exercise of these powers can also be one of the most risky forms of presidential power. This book focuses on one policy tool in the president’s arsenal of unilateral powers by analyzing a core question: To what degree have modern presidents been active and strategic in using executive orders to establish policy? Very few studies have analyzed the strategic nature of executive orders to explain how presidents have used them to pursue major policies. At this point, scholars continue to assume that executive orders are a powerful policy tool that presidents inherit when they enter office. This assumption is based mainly on studies that analyze only a sample of executive orders (see Howell 2003; 1

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Mayer 2001). As a result, the full extent of the strategic nature of executive orders remains a mystery. This book is the first study to content analyze the text of all published executive orders from March 1936 through the end of the William J. Clinton administration in January 2001, in an effort to expand our knowledge about the policy scope and political nature of these policy tools. An early assessment of George W. Bush’s use of executive orders during his first term in office is also provided, to give readers a glimpse into whether Bush has followed in the footsteps of modern presidents regarding his exercise of unilateral powers. Surprisingly enough, there has not been a significant expansion of power across the modern presidency regarding the chief executive’s authority to issue executive orders. Although there are clear instances when presidents act strategically in using executive orders to pursue major policy, there are cases when presidents are rather reticent in exploiting this unilateral tool. As a result, this book challenges conventional thinking about executive orders, and it questions Kenneth Mayer’s conclusions that presidential power has increased significantly because of executive orders (2001: 220–221). Historically, the president’s executive order authority has been controversial and the exercise of this power has received criticism from a variety of sources, including members of Congress, the media, presidential scholars, and presidents themselves. In his memoirs, former president Herbert Hoover criticized Franklin Roosevelt for using executive orders to expand presidential power: Roosevelt frequently denied any dictatorial tastes, but a small side evidence is indicative. That was the daily issuance of Executive Orders in peacetime. In his first term alone, he issued 1,486 such orders, as against an average of 166 for each previous four years of Presidents since George Washington. And that 143 years included four wars which necessitated more than the usual executive action. Such a quantity of orders constantly emphasized Congressional surrender of its responsibilities. (1952: 388–389)

Hoover failed to notify his readers that during his administration, from 1929 until March 1933, the White House issued approximately 1,000 executive orders (US Congress 1957: 36). Presidential historians frequently describe Hoover as a passive or “do-nothing” president, because his policy actions were not aggressive enough to combat the financial problems associated with the Great Depression

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(Milkis and Nelson 2003: 262–265). Hoover’s executive order activity, however, indicates a president who was rather active in using his unilateral powers. Hoover’s criticisms of Roosevelt are not new. During fall 2000, president-elect George W. Bush criticized the last-minute policy maneuvers of the Clinton presidency, which resulted in the chief executive issuing numerous executive orders, federal rules, and regulations before the Republicans took control of the White House. For example, President Clinton issued executive orders during his last year in office to protect coral reefs, such as creating the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, to provide opportunities for increasing the number of Hispanics that compose the federal personnel system, and to further support women who owned small businesses (Clinton May 2000, October 2000, December 2000). George W. Bush announced that his administration would review many of Clinton’s unilateral actions shortly after his inauguration in January 2001 (Yang 2001). Ironically, once in office, the Bush administration realized that executive orders were powerful policy tools that could assist it in achieving its policy goals. Nine days after Bush was sworn into office, he issued Executive Orders 13198 and 13199 to initiate his faith-based policy program to encourage religious institutions to assist the federal government in addressing social welfare issues throughout the country. Following the terrorist attacks on the World Trade Center and the Pentagon on 11 September 2001, President Bush signed an executive order that created the Office of Homeland Security, to combat terrorism domestically (see Toner 2001). Once the Bush administration realized that executive orders were a key policy and governing tool, its criticisms against President Clinton’s executive orders diminished over time. Presidential Lawmaking and Theory

Since the George Washington presidency (1789–1797), chief executives have held unilateral and shared powers. Shared powers are those that the Congress, president, and federal judiciary cannot exercise exclusively. Instead, these political institutions must work in conjunction with each other when exercising them. Presidents have a variety of broad powers that they must share with Congress and that can dra-

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matically affect policymaking. For example, Article II, Section 2, of the Constitution gives the president the power to develop treaties. However, this power is not an exclusive power for the president, because the Senate has the responsibility of providing “advice and consent” to a treaty. Presidents also nominate justices to the Supreme Court and other federal judges, but they must do so with the approval of the Senate. Apart from their shared powers, presidents also frequently rely on their unilateral powers to shape public policy. Theoretically, the term unilateral powers suggests that the chief executive can exercise sole power at times, related to policymaking, without any input or formal support from Congress, the White House staff, or political executives and careerists serving in the federal bureaucracy. Terry Moe and William Howell define unilateral action as a “president’s formal capacity to act unilaterally and thus to make law on his own” (1999a: 132). The power to pardon is a unilateral power that the Constitution gives to the president in Article II, Section 8. However, many of the president’s unilateral powers are implied or inherent, meaning that these powers are not clearly articulated in the Constitution (Miller and Barnes 2004: 73). Instead, these powers are alleged powers that presidents derive by reading into and interpreting the vague provisions of the Constitution (Pyle and Pious 1984: 76–77). An advantage of unilateral powers is that presidents can use them to pursue policy while bypassing Congress. There are numerous types of presidential powers that can be classified as unilateral, including executive orders, proclamations, executive agreements, and national security directives (Howell 2003: 14–15). Theoretically, the president has the exclusive power to issue these types of policy statements. Presidents do not send executive orders to Congress for a vote. Instead, an executive order merely becomes law after the president signs his name to a specific directive. Executive agreements are a policy tool that presidents have exercised either to bypass an obstructionist Senate that threatens to vote down a treaty or to simply circumvent the entire Senate ratification process. For example, Theodore Roosevelt issued an executive agreement after failing to obtain Senate support for a treaty with Santo Domingo in 1905 that would allow the United States to seize control of customhouses in that country (Corwin 1957: 212). Even though presidents possess an arsenal of unilateral powers, they must exercise them with

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great care, because their actions are not completely immune from congressional or judicial assaults. Scholars have devoted scant attention to developing a body of theory regarding the president’s unilateral powers. Recently, they have stressed the need for studies analyzing a president’s unilateral policy tools to achieve a set of generalizations that expand knowledge about his influence on the policy process (see Durant 1998; Cooper 1986, 1997, 2002). Presidential control over executive branch policy has been a frequent topic in contemporary studies on the presidency (Moe 1985; Wood and Waterman 1994; Wood 1988; Wood and Waterman 1991; West 1995). Ironically, this literature overlooks the importance of unilateral policy tools that allow presidents to directly influence the policy process. The number of works analyzing executive orders is limited, and there are no empirical studies on presidential proclamations, memoranda, and national security directives.1 My goal in this book is not to develop a new formal theory regarding presidential unilateral powers, but rather to build on previous works that address such powers by empirically exploring the strategic nature of executive orders during the modern presidency. The lack of theory on unilateral powers has seriously hindered scholarly research that attempts to study executive orders within a scientific framework. Recently, Moe and Howell began to devise a formal theory of presidential unilateral action. An underlying premise of their theory is that a significant degree of uncertainty surrounds the constitutional and statutory boundaries characterizing presidential power. This uncertainty provides presidents with greater latitude in expanding the scope of their powers. The authors caution that the growth of presidential power does not ultimately result in presidential efforts to supersede the powers of either Congress or the Supreme Court, but rather that unilateral powers provide chief executives with significant policy tools to achieve desired policy (Moe and Howell 1999a: 153–154; see also Moe and Howell 1999b; Howell 2000, 2003). According to Moe and Howell, the greatest threat to unilateral action is the appropriations power held by Congress (1999a: 147). That is, any presidential action requiring the appropriation of federal funds must be directly endorsed by the legislative branch. However, the major crux of Moe and Howell’s theory is that since unilateral powers are mainly implied powers, presidents possess a degree of flexibility in expanding and exercising them, while there are signifi-

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cant costs incurred by Congress when challenging such actions. At the same time, Congress does possess a constitutional check on executive power. As a result, chief executives will often exercise caution with respect to unilateral powers (1999b: 864–865). Mayer recognizes that a theory of executive orders must encompass a mixture of elements related to a president’s political behavior and institutional arrangements. Specifically, Mayer relies on “rational choice institutionalism,” more commonly referred to as the “new institutional economics,” to build a theory for studying unilateral authority. This framework focuses on hierarchical process controls used by presidents to control the executive branch and allows scholars to view executive orders as “an instrument of executive power that presidents have used to control policy, establish and maintain institutions, shape agendas, manage constituent relationships, and keep control of their political fate generally” (2001: 23–24, 28). The purpose of Mayer’s theoretical framework is to explain that presidents use executive orders for strategic reasons and that there is a logic related to the different types of directives that they decide to issue. Mayer’s theory is also important because it is not based on the notion that executive orders are purely a command tool that presidents have at their disposal. Instead, executive orders are a powerful policy tool that allows presidents to establish “new processes that alter the organizational position, powers, and incentives of other actors, or that create new institutional structures with new actors; in effect, the president’s order channels behavior in order to ultimately produce results” (2001, pp. 29–30). In essence, presidents can issue executive orders to manipulate the complex and dynamic political environment in the executive branch in a manner that assists them in producing a more favorable environment to achieve their policy agendas. Moe and Howell’s theories are very primitive, because they do not adequately explain how presidents can use their unilateral powers in a strategic manner. Although Mayer begins to move the study of executive orders within an empirical framework, rational choice theory, the ideas of the administrative presidency (see Nathan 1983; Durant 1992), and the recently developed notion of the neoadministrative presidency (see Durant and Warber 2001) are core to developing a tightly knit theory for the exercise of unilateral powers. Presidents entering office certainly have a core set of policy goals that they seek to enact into law. Since chief executives can serve no

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more than two terms in office, they will seek the most direct, effective, and efficient route to pursue their policy goals, because they are rational actors. Unilateral powers are one option available to presidents. Toward a Refined Theory of Executive Order Activity

In his seminal work, Richard Neustadt claimed that “presidential power is the power to persuade” (1990: 11). Neustadt’s theoretical insights into the essence of presidential power have become a central guide for scholars analyzing presidential influence within the legislative process. This theory involving persuasion does not adequately explain all forms of presidential power. Instead, Neustadt’s assertion must be incorporated with other theoretical considerations in order to understand the exercise of unilateral authority. The degree of persuasion required to invoke unilateral powers is small. That does not mean that presidents can assume success by just exercising their unilateral authority. Instead, they must anticipate possible reactions from Congress and the judicial system that might question the constitutionality of these presidential actions. Therefore, most activities of persuasion occur when presidents craft the language of their various policy statements, which serve as the vehicle for their unilateral authority. There may be isolated cases when presidents engage in the traditional give-and-take along with arm-twisting tactics to appease members of Congress or federal agency officials before they approve and sign the official copy of an executive order. Presidents might utilize these devices to ensure that political opposition against a directive will be minimal. More important, chief executives might have to shore up support from certain interest groups, public or private organizations, or other entities that have a vested interest in a unilateral action. Presidents might have to seek support from these groups to legitimize their actions and to diminish any political roadblocks that might occur after they have taken action. For example, presidents might appease groups by agreeing to compromises in the wording of an order, to deflect a public relations disaster from erupting after an order has become law. Finally, presidents might have to engage in the art of persuasion to convince administration officials or other political institutions of the need for an executive order when interest

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groups or other entities put political pressure on chief executives to exercise a unilateral action. The presidency literature contains no studies addressing the importance of persuasion in relation to the president’s executive order authority because scholars consider executive orders as a tool of command. There is anecdotal evidence suggesting that interest groups in society lobby presidents to issue executive orders to aid them in promoting their policy agendas. For example, during the presidential election of 1960, John F. Kennedy stated that, if elected, he would sign an executive order to reduce discrimination against those who received public housing from the federal government. Once in office, Kennedy postponed his decision to issue an antidiscrimination directive, because he viewed this policy as highly controversial and feared that it might produce negative consequences that could impact his leadership abilities. Eventually, Kennedy capitulated to the demands of civil rights groups, especially those promoting better conditions for African Americans, by signing into law Executive Order 11063 on 20 November 1962, titled “Equal Opportunity in Housing” (Mayer 2001: 8; Morgan 1970: 60). This example suggests that there are other participants, such as interest groups or members of Congress, who might engage in the art of persuasion and bargaining to convince the president to sign a particular executive order dealing with a specific policy. Presently, there are no studies that analyze the role of other participants within the political system who attempt to influence the president’s executive order power. The Importance of Rationality

The analysis presented in this book rests on the fundamental assumption that presidents are rational actors who weigh political costs and benefits when deciding how to achieve policy, in order to cope with an uncertain, political environment. Anthony Downs (1957) asserted that the basic tenet of rational choice theory is that individuals are utility maximizers. In his study on federal bureaucrats, Downs defined individuals as rational when “they act in the most efficient manner possible given their limited capabilities and the cost of information. . . . In practical terms, this implies that whenever the cost of attaining any given goal rises in terms of time, effort, or money, they seek to attain less of that goal, other things being equal. Conversely,

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whenever the cost of attaining a goal falls, they seek to attain more of it” (1967: 2). This broad definition can be applied to analyzing presidential decisions centered on when and how to exercise unilateral actions. Although unilateral powers are typically inferred from the broadly constructed language of the Constitution, presidents must be continually aware of how they will use these policy tools. In some instances, the political costs of using executive orders to adopt policy far outweigh the benefits. However, if presidents discover a window of opportunity to achieve policy through unilateral actions, they will likely continue to follow this course of action as long as there is no major challenge brought on by the other branches of government. The problem encountered by presidents who behave rationally while utilizing executive orders is that they cannot be certain about the results of their policy actions. This occurs because they operate within a dynamic, political environment that constantly changes within a short time period. Often, presidents simply take a risk, because an uncertain environment restrains their ability to calculate the full consequences of their actions (Nurmi 1998: 5). Therefore, because of the complex political environment in US politics, presidents cannot completely anticipate the problems that might arise from their executive orders, nor can they take all the necessary safeguards when crafting the text of a directive to prevent the development of negative policy consequences. In the end, presidents will have to make an informed decision about whether to issue an executive order based on their perceptions of the projected costs and benefits associated with a directive. A valid question that arises when scholars study the political behavior of presidents within a rational choice framework is whether all presidential activity can be classified as rational. That is, do presidents undertake a utility maximizer role when approaching every decision confronting their administration? In reality, this is not always the situation (Hauptmann 1996: 78). The problem with rationality is that scholars can define this concept in numerous ways. For example, presidents are often guided by other types of motivational factors that scholars might consider to be rational behavior, such as their own worldview about policy, the interests of the general public, or a crisis that requires an immediate remedy. Scholars who include the concept of rationality within a theory of unilateral authority can also encounter a further problem, one that they must be aware of in their research. Presidents must deal with the

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issue of sunk costs when they are engaging in cost-benefit analysis to decide whether to issue an executive order, or when they are determining whether to revoke or amend an existing order issued by a predecessor. A presidential administration cannot ignore the substantial amounts of time and financial resources that a previous administration has invested in a policy issue (Anderson 2006: 124). For example, Lyndon Johnson’s decision to extend US involvement in South Vietnam during the 1960s was a response to the long-term investments made by his predecessors. Since the Harry Truman administration of the 1940s, the federal government had increasingly invested in both propaganda and material resources to stop the spread of communism. Johnson’s contemporaries might have viewed any efforts by him to disengage the United States from South Vietnam as a threat to national security (see Barrett 1993: 5; Berman 1982: 9–10). There are clearly sunk costs related to unilateral authority. For example, many presidents since Franklin Roosevelt have used executive orders to alleviate the problems of discrimination by issuing orders that require businesses receiving federal contracts to follow strict regulations that promote the hiring of minorities (Morgan 1970: 57–59). Because there is a history of orders addressing work force discrimination, and because extensive federal resources have already been committed to dealing with it, future presidents cannot easily change discrimination policy midstream. Instead, they must be aware of the potential costs when diverting from the policy paths taken by their predecessors or when deciding to terminate existing executive orders. A theory explaining how presidents use executive orders cannot rest solely on describing presidential behavior. The complex political environment within and outside of the executive branch is just as important as presidential political behavior when explaining how chief executives use executive orders. Therefore, a theory of unilateral powers must incorporate the idea that presidents are rational actors who operate within this type of environment. The exercise of executive orders by chief executives is a dynamic process that changes over time in relation to changes in the political environment. Presidents seek to centralize control over executive branch policymaking by building administrative strategies to cope with the fragmented policy process. Thus, not only are presidents rational when they weigh the costs and benefits of pursuing policy, but they also

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demonstrate rationality when using directives to cope with changes in the political environment that frustrate their ability to pursue their policy objectives. In essence, scholarly knowledge about how presidents behave in the political system must be linked with organizational theory. Presidential Rationality and the Administrative State

Since the birth of the modern presidency during the Franklin Roosevelt administration, presidents have increasingly struggled to cope with a dynamic political environment. First and foremost, chief executives have struggled with an evolving administrative state along with the growth in personnel layers composing the federal bureaucracy (Light 1995). These chronic problems, compounded with the traditional obstacles arising during the legislative process, such as party politics in Congress and periods of gridlock, present presidents with further challenges to building successful policy records during their brief terms in office. In short, the policy process has become further fragmented and decentralized over time, which seriously limits the amount of influence presidents can exert on the policy process. As a result, presidents devote considerable energies to centralizing and politicizing their control over executive branch activities (Moe 1985: 235). Presidents have perceived executive orders as an important tool for command since the creation of the administrative state in the 1930s. After this development, executive branch politics proceeded under the theoretical doctrine that hierarchical process controls were the most effective method for presidents to control executive branch policymaking and the appointees and careerists serving in this institution. During the late 1960s and early 1970s, Richard Nixon was credited as the first president during the administrative state to aggressively develop and refine a comprehensive strategy to centralize control over the executive branch (Nathan 1983: 7–9). Robert Durant and I assert that the rise of the neoadministrative state within US politics has further complicated the ability of presidents to directly control policymaking. Indeed, the political risks have dramatically risen for presidents who rely on unilateral authority to cope with the neoadministrative state. The reason for these risks is that recent presidents have not realized that fundamental changes have occurred within the administrative state. If presidents are to be

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successful policymakers, they must rethink how they will exercise those policy tools that have traditionally constituted their administrative presidency strategies, such as their appointment and removal powers, reorganization authority, impoundment power, executive orders, and proclamations (Durant and Warber 2001: 238). Presidents no longer have the luxury of assuming that merely achieving centralized political control over the executive branch is a necessary and sufficient condition for achieving effective policy. Instead, presidential power in recent decades has further fragmented and even decentralized beyond the boundaries that encompass the executive branch. This dispersion of power results from changes within the administrative state that have given way to the rise of the neoadministrative state in recent decades, a state characterized by the idea that “the challenges, choices, and opportunities faced in a post–cold war information age of global markets are met best by decentralizing, dispersing, and fragmenting federal responsibilities and authorities. These responsibilities and authorities move ‘upward’ to international bodies like the World Trade Organization, ‘downward’ within public agencies and to states and localities, and ‘outward’ to private and nonprofit organizations” (Durant and Warber 2001: 222). This greater uncertainty in the political environment poses new challenges to presidents seeking to exercise their unilateral powers. Durant and I argue that presidents will be more inclined to use unilateral powers, because they provide chief executives with an efficient policy option to cope with the neoadministrative state. This means that presidents might view the utility of executive orders as quick fixes for creating policy (Durant and Warber 2001: 238). This type of action by presidents can be risky, because they might not adequately consider all the relevant costs and benefits associated with their executive order actions. As a result, presidents might only focus their attention on building their policy records rather than considering the long-term policy consequences that their actions might have on the political system. Five Tenets of Unilateral Theory

To determine whether presidential executive order power has expanded throughout the modern presidency, and to develop a greater understanding about how presidents strategically use these directives to pursue significant policies, this book undertakes a systematic analysis

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that recognizes the following: (1) presidents are rational actors who maximize their unilateral action powers to the fullest in order to enact their agendas, (2) unilateral powers are useful tools for presidents to use in achieving their policy agendas, (3) presidents are strategically motivated in deciding when and how to use unilateral powers, (4) presidents will be more successful in using unilateral powers to achieve results in certain policy domains than in pursuing their policy agendas through traditional legislative strategies, and (5) there are costs associated with the exercise of unilateral powers. Although this approach cannot exclusively explain presidential behavior regarding executive order authority—nor is it intended to constitute a formal theory of unilateral powers—it is a useful way to explain a president’s exercise of unilateral powers, given that the existing literature on the matter has been either silent or extremely vague. Presidents as rational actors in the policy process. Following

their inauguration, presidents immediately adopt the role of utility maximizer when deciding what courses of action to follow in pursuing their various policy goals. The paths followed by presidents are those that promise to provide the most beneficial results in terms of policy outcomes. Presidents who are rational actors are interested in maximizing their executive order authority to achieve their policy goals rather than devoting extensive political resources to accomplishing routine tasks. Scholars assume that prior to Franklin Roosevelt, presidents primarily relied on executive orders to accomplish routine, administrative matters.2 However, beginning with Roosevelt, chief executives started to use executive orders to establish major policy (King and Ragsdale 1988: 122). A question that has not been raised in the literature regards the frequency with which presidents have issued executive orders to initiate major policy, as opposed to using them either to implement routine, bureaucratic matters or to accomplish symbolic acts. Executive orders classified as symbolic are those that are merely ceremonial, such as setting aside a certain day as a federal holiday or honoring the public service provided to the country by a recently deceased federal official (e.g., congressperson, Supreme Court justice, cabinet member). Directives classified as routine orders accomplish administrative tasks such as faithfully implementing legislation according to the wishes of Congress, updating the specific wording within an existing directive,3 providing new guidelines for retirement

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or financial benefits for federal employees, or closing down the federal government during a holiday. Symbolic and routine executive orders provide presidents with minimal benefits. Presidential investment in executive orders to achieve their policy agendas promises to provide them with a greater rate of return in terms of policy benefits. We might assume that, across time, there has been an increase in presidential efforts to maximize executive orders, for several reasons. Presidents since Nixon have vigorously refined and implemented administrative strategies to further centralize their power over the policy process (see Nathan 1983). Executive orders are one type of policy tool that centralizes a portion of the policy process into the hands of the president, since chief executives possess the sole authority to issue these directives. Furthermore, presidents continuously seek ways to expand the boundaries of their inherent powers (Spitzer 1993: 38). As individual presidents broaden the scope of their power, each new administration inherits a greater degree of leeway to accompany its powers. Incoming presidents do not remain idle in using their newly acquired and expanded powers to gain political benefits, including their authority to issue executive orders. Chapter 2 focuses on the president’s rational actions in developing a public policy record and explores the number of executive orders devoted to establishing major policies, as opposed to those that accomplish routine tasks. Despite conventional wisdom, the findings demonstrate that the number of major presidential policy directives has not increased across time. Political party identification is a classic variable that scholars control for when explaining political phenomena. Democrats naturally must focus on a larger number of policy areas than Republicans, because their party represents a more diversified and larger constituency that includes many African Americans, women’s groups, blue-collar workers, and labor unions (Maisel 2002: 168–169). This book explores the level of aggressiveness between Democratic and Republican presidents to demonstrate which political party has been more active in establishing major policies with executive orders. Executive orders as useful policy tools. Presidents encounter time

and resource limitations when pursuing their legislative initiatives in Congress. Executive orders are an efficient policy tool for overcoming these restrictions. The major advantage of these directives is that they allow presidents to establish policy in a relatively short period of

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time while circumventing the cumbersome policy process that occurs in Congress. Furthermore, a key ingredient of presidential success in Congress is building coalitions both before and during deliberations on proposed policies (Edwards 2000: 58). Unilateral actions do not require this intensive coalition building. Clearly, presidents must work closely with their staff, along with the federal agencies affected by a directive, when crafting the language of an order, to diminish the likelihood that political conflict will occur after an order becomes law. However, the ultimate decision to issue an executive order rests solely with the president. Executive orders are also efficient because they are a convenient method for presidents seeking to expand and customize their overall policy record. Since executive orders are law, their impact continues long after presidents leave office; courts have been known to refer to past executive orders when deciding cases. The record left by these directives also provides presidents with a written policy legacy that could benefit their party in future elections. For example, during midterm elections, congressional candidates from the same party as the president have an additional point of reference to rely on when informing voters of the recent policy accomplishments made by their party. That is, if the president has amassed a meager policy record in Congress, congressional candidates from the same party can rely on the policy record obtained through executive orders and possibly ride the coattails of the president to election. A further advantage of the efficiency of executive orders is that media reports on these directives appear to be minimal. As a result, the public is not well informed on policies arising from executive orders and therefore, any criticisms that arise typically produce little public relations damage to a president. In contrast, a president’s actions to promote an agenda in Congress are often scrutinized by the media. Finally and most important, executive orders are efficient policy tools because presidents can use them to change the direction of policy or to terminate policy that their predecessors established. Presidents are not bound to executive orders enacted by previous administrations. Instead, presidents have used executive orders to revoke, supersede, or amend directives issued by their predecessors (Fleishman and Aufses 1976: 38). In some instances, these actions may be warranted, such as to end the implementation of outdated orders. However, the ability to unilaterally nullify or change existing

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orders allows presidents to efficiently shift the direction of policy so that it is consistent with their ideological predispositions. The federal government encounters many obstacles when it attempts to drastically reform or terminate public policies. The process of reforming existing statutes is often time-consuming and complex. Presidential and congressional reform actions might trigger opposition groups in society to mobilize and develop rhetorical campaigns to prevent changes in the status quo. These challenges can create problems for governmental officials in the area of public relations (Anderson 2006: 285; Daniels 1997). As a result, presidents might opt to focus their efforts on reforming only a few existing policy areas carved out by previous Congresses. Since revoking or amending executive orders is an efficient option to quickly reform policy, the likelihood of chief executives doing so is high. However, because they behave rationally, presidents maximize the efficiency provided by these directives by focusing their attention on changing major policy, as opposed to spending a tremendous amount of time and resources on routine directives that net minimal policy results. This book moves beyond previous studies that have focused exclusively on the number of executive orders that administrations have produced, by exploring multiple dimensions of the president’s executive order power. Chapter 2 demonstrates that beginning with Nixon, chief executives have been active in altering and rescinding executive orders that were issued by previous administrations. The role of partisan politics is also examined, to demonstrate just how aggressive presidents are at changing existing directives that were issued by previous presidents of an opposing political party. An important implication from this analysis is the stark contrast between the level of policy change that occurs between Republican and Democratic administrations. A strategic presidency. Presidents do not pursue policy in a vacu-

um but are continuously attuned to the winds prevailing within the political system, such as the election cycle, public support for the president, party control of Congress, and the influence of state governments. A president’s decision regarding the nature of an executive order is highly dependent on the political environment. The strategic nature of the president’s executive order authority is addressed in Chapters 3 and 4. Scholars have underscored the importance of assessing how

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divided government affects presidential policymaking (Binder 2003: 20–23; Bond and Fleisher 2000: 187–189; Edwards, Barrett, and Peake 1997: 561–562; LeLoup and Shull 1999: 8–11; Mayhew 1991: 3–4). The literature has begun to analyze whether there is a relationship between the number of executive orders that presidents issue and the presence of either unified or divided government. Conventional wisdom states that presidents as strategic actors will increase the number of executive orders that they issue during periods of divided government. Presidents can rely on directives as an alternative approach to ensure that their policy goals are enacted when there is a legislative stalemate. In contrast, we should expect that presidents will rely less on their executive order power when the probability of cooperation between the president and Congress is at its peak during unified government (Mayer 1999: 460–461; Mayer 2001: 99–101). Based on Downs’s definition of rationality (1967), there is a rise in the costs of seeking legislation in Congress during periods of gridlock, resulting in presidents spending less energy pursuing a wide array of policy issues. Instead, chief executives seek alternative courses of action that promise a greater likelihood of producing policy results. When divided government occurs, presidents reassess their policy options and try to compensate for the lack of legislation that they will be able to push through Congress. This book explores the president’s level of executive order activity during unified and divided government in order to assess whether presidents assertively seek to circumvent the congressional process when it becomes difficult for the White House to work with Congress on policy. Apart from the influence of divided government, there are other forms of political stalemate arising between the president and Congress that might cause chief executives to rely on executive orders. One form occurs when the policy process slows down as a result of major scandals and investigations directly involving the president and Congress, such as Watergate, the Iran-Contra affair, and the Monica Lewinsky scandal. Although the investigations into the Lewinsky scandal during 1998 and 1999 diverted congressional attention away from legislating, President Clinton managed to issue sixty-six executive orders during these years. Nixon, in the last year of his presidency, when the Watergate scandal reached its climactic stage, issued forty executive orders (see the website of the US National Archives and Records Administration, http://www.archives. gov). Even though Congress may become somewhat impaired in its

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ability to legislate during major scandals, presidential ability to establish policy through executive orders is generally unaffected. Although presidential tenure is relatively short, certain years are more important to an administration than others. The key years are those in which there is a national election (either a presidential election or a congressional midterm election) and the final year of an administration, when chief executives put the finishing touches on their policy legacies. During these years, presidents become extremely strategic in developing policy. For example, in their last year in office, presidents might issue executive orders to enact policies that they were unable to effectively establish during their previous years in office. They might also pursue issues less salient to the public to further pad their policy records (see Wigton 1996: 479–480). Executive orders also provide presidents with the ability to further build support for their party during an election year, especially if these orders are directed toward a specific interest in society. Ruth Morgan noted that Truman’s issuance of Executive Order 9981, which ended segregation within the armed forces, was timed to strengthen the Democratic Party during the 1948 election. Truman’s order was viewed as a method for potentially winning additional votes from African Americans (1970: 27). Presidents are not entirely at the mercy of a dynamic political environment. There are direct actions they can undertake to protect their executive orders from the shifting political winds. The most direct action is to develop legal strategies that prolong the longevity of their executive orders both during and long after their terms in office. Although the Supreme Court has overwhelmingly upheld the president’s authority to issue executive orders, chief executives must strategically craft the language of a directive in order to minimize possible confrontations with the courts and Congress. One type of strategy available to presidents is to use vague language when citing an order’s sources of authority.4 This strategy is attractive because Congress is in the best position to effectively challenge an order that directly obtains its legitimacy from provisions within a statute. A successful challenge can occur if it is clear to a majority in Congress that presidents have improperly interpreted a specific statute passed by the legislative branch. Chief executives strategically craft the wording of their directives because they are rational actors seeking to maximize their policy outcomes from executive orders. The White House not only employs a variety of authority sources to insulate the

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president’s executive orders, but also strategically protects major policy directives by legitimizing them with vague grants of authority. In contrast, presidents are more explicit in citing specific sources of authority in those executive orders designed to execute routine, administrative matters. Policy domains. Unilateral powers allow presidents to develop and execute controversial policies, such as in the area of defense and national security, to bypass legislative roadblocks that Congress might create for chief executives who rely on legislative rather than on administrative strategies. Chapter 3 further elucidates the president’s strategic use of executive orders in specific policy domains. Historically, Congress has sought to curb the president’s authority to wage war. Although the War Powers Resolution was passed in 1973, presidents from Nixon onward have generally ignored attempts by Congress to fully limit their power by relying on other methods to circumvent this law (Spitzer 1993: 175). Executive orders provide presidents with an opportunity to “legally” defy the 1973 act and to develop war and military policies. Congress can easily reverse the military actions of a president, but if these actions are backed up by a legal document, its ability to rein in the chief executive’s war powers becomes problematic. Since the courts have widely upheld a president’s executive order power, Congress encounters great difficulty in challenging those directives that enact war policies. In order to ward off political attacks from their legislative counterpart, presidents also strategically craft some executive orders by using Article II, Section 2, of the Constitution, which provides them with the commander-in-chief responsibilities, to further legitimize a directive. As a result, Congress might be apprehensive about challenging the president, because its reaction might overstep the separation of powers principle and thus place it under intense scrutiny by the White House and the courts. Executive orders theoretically provide chief executives with a relatively safe haven for bypassing Congress when pursuing warrelated policy. Chapter 3, however, suggests that presidents have not relied on executive orders as a vehicle for expanding their commander-in-chief powers to pursue military and war policy. Instead, presidents have discovered that there are other types of policy domains worth pursuing with this type of unilateral power. One of the areas that has been of considerable interest to chief

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executives since the establishment of the Executive Office of the President in 1939 is policy that centralizes executive control over both the administrative structures and the federal personnel system in the executive branch. Executive orders are a flexible tool for achieving further administrative control, because they allow presidents to either dismantle organizational structures implemented by their predecessors or to reform an existing administrative apparatus, such as by placing specific federal positions into the executive schedule. Since the Franklin Roosevelt administration there has been an increase in the number of executive orders that strategically modify or reform the administrative and personnel structures within the executive branch. Instead of relying exclusively on Congress to pass major legislation prescribing reorganization within the executive branch, chief executives are able to establish the types of administrative structures that they believe will be the most effective in aiding their efforts to maximize policy outcomes. Presidents also arrive in office with the goal of implementing their party’s policy agenda. Executive orders have been frequently used to require members of the federal bureaucracy to implement existing policy in a certain manner. However, given their propensity to behave rationally, presidents sometimes use executive orders either to increase their political support from specific groups within society that have historically supported their party, or to enact policies that resemble the core policy platforms of their party. Historically, Republicans and Democrats have each pursued broad policies that define them as parties. Distributive and regulatory policies (see Lowi 1964) are two policy domains that have greatly distinguished Democratic from Republican administrations. Since Franklin Roosevelt, various minority groups, such as African Americans, and women have formed the general base of the Democratic Party. Democratic presidents are concerned about maintaining a high level of support from these groups and continuously seek to enact distributive and redistributive policies favorable to certain segments in society. Regulatory politics is also a salient issue that further differentiates the policy positions of the Republican Party from those of the Democrats. Republicans have vigorously sought to advance their philosophy of limited government by seeking specific policies that limit or reduce the regulatory role of the federal government, whereas Democrats have been more in favor of enacting regulatory policy. This book explores whether party differences regarding

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the pursuit of these types of policies spill over into the realm of executive orders. The analysis shows that Democratic presidents use executive orders to pursue regulatory policy more often than do Republican presidents. However, presidents from both parties are relatively inactive in using their executive order authority to develop distributive policy. The costs associated with the power of executive orders. The

framers of the Constitution created a political system premised on a separation of powers whereby each political institution was accorded a distinct and exclusive set of powers and responsibilities. Article II, Section 1, of the Constitution declares that “the executive Power shall be vested in a President of the United States of America.” Neustadt asserts that the framers actually did not design a political system based on a strict interpretation of a separation of powers, but rather a system of “separated institutions sharing powers” (1990: 32). Because the US political system is founded in part on separation of powers (see de Montesquieu 1966) and checks and balances, presidential success in exercising unilateral powers is dependent on the actions of Congress and the judiciary. Presidents do not have free rein when issuing executive orders. As a result, presidents as rational actors must minimize possible challenges to their power by anticipating confrontations that could arise with other institutions over specific directives. The Supreme Court can challenge a president’s use of executive orders by striking down specific directives. In 1952, for example, in Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court declared unconstitutional Truman’s executive order regarding the seizure of steel mills. Apart from this, the Court has not severely curbed presidential use of executive orders (Howell 2003: 154–155), but instead has legitimized this type of authority.5 The federal bureaucracy is another institution that can limit the effectiveness of executive orders. There is no guarantee that bureaucrats will fully comply with implementing executive orders according to a president’s wishes. Even if there is compliance, bureaucrats might misinterpret provisions that are broadly constructed. Chapter 4 focuses on the political costs that presidents encounter with Congress over executive orders. The analysis shows that Congress poses the greatest institutional threat to unilateral powers, since these actions overlap its lawmaking responsibilities and poten-

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tially threaten the separation of powers doctrine. Historically, the exercise and expansion of presidential power has been under the close scrutiny of the legislative branch. If Congress perceives presidents as encroaching on its constitutional responsibility to legislate, its criticisms toward the executive branch should rise. Congress has a few rhetorical options it can exercise to limit presidential use of executive orders. First, members of Congress might use strong rhetoric during debates on specific directives to criticize presidential actions, with the hope that these threats will limit unilateral actions in the future. Congressional committee and subcommittee hearings along with floor debates provide forums for members of Congress to express concerns about the president’s power to issue executive orders. In some instances, the mere mention of executive orders during floor debates might be purely benign. For example, Congress might be embroiled in a policy dispute that results in members pinpointing and discussing those executive orders that might be useful in strengthening any legislation Congress might decide to enact into law. There may be other times when Congress might discuss increasing the legal basis of a particular order by incorporating the provisions of a directive into law. Members of Congress might also hold hearings or engage in oversight to determine whether presidential power has expanded beyond its reasonable scope (Aberbach 1990; McCubbins and Schwartz 1984). Congressional hearings and oversight are rhetorical tools that committees and subcommittees can use in an attempt to limit the president’s executive order authority. Presidents might reduce their executive order activity in response to congressional investigations in order to prevent a major separation of powers battle from erupting or to limit media reporting on an investigation. In the late 1990s the Republican-controlled Congress held hearings to determine whether President Clinton had abused his executive order authority. It has continued to investigate whether presidential “lawmaking” authority has seriously violated the separation of powers principle (see Congressional Record July 1999), and to use its oversight authority as a rhetorical technique to strongly encourage chief executives to exercise their executive order power with caution. Oversight becomes more than a rhetorical tool once Congress concludes that a blatant abuse of power on the part of the president has taken place, requiring it to enact legislation to remedy a constitutional problem.

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Members of Congress are strategic politicians who also behave rationally (see Mayhew 1974). They have certain goals that motivate their political behavior, such as seeking reelection, enacting policy, or serving their constituents, which shapes their approach to dealing with congressional deliberations. Congress might criticize executive orders for purely political purposes rather than claiming that it is seeking to limit this power in the interests of safeguarding the Constitution. For example, during periods of divided government, the opposition party might be more critical of a president’s executive orders than during unified government. Congress might also use floor debates as a grandstanding technique to criticize the president during an election year. The opposition party might use this rhetorical technique to gain seats in Congress during a midterm election or to assist it in winning control of the White House during a presidential election year. Once an election is over, Congress may devote little attention to executive orders. A surprising finding in this book is that Congress has been extremely reticent throughout the entire modern presidency regarding the president’s executive order power. The amount of time that lawmakers in both the House and the Senate have spent on debating specific executive orders has been exceptionally meager. Chapter 4 analyzes this phenomenon against the backdrop of national elections and during periods of divided and unified government with respect to party control of the White House and Congress. Rhetoric does not always lead to congressional actions that limit presidential power. Presidents might respond to congressional criticisms by modifying the text of executive orders that the White House is preparing to issue in the near future, or they might reduce their executive order activity. Rhetorical challenges from Congress might also require that a president respond by identifying the statutory or constitutional authority that allows him to issue a certain directive. Phillip Cooper argues that “the broad kinds of grounds [authorities legitimizing executive orders] that can be asserted by the president can make it extremely difficult to challenge a presidential action” (1997: 534). If Congress is to successfully challenge executive orders, formal legislative action is required. The primary option of Congress is either to pass legislation that declares an entire order as null and void, or to fundamentally alter some of the provisions that are contained within an order. In addition, Congress can cut federal funding for pro-

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grams developed by an order (see Moe and Howell 1999b: 864–865). Theoretically, Congress could also issue a resolution denouncing a president’s actions without altering an existing order. However, this type of action could be classified as a rhetorical response, since some resolutions are merely symbolic acts. Apart from these options, Congress’s only other alternative is to sit on the political sidelines and allow the courts to question the constitutionality of a directive. Few studies have analyzed congressional responses to executive orders. The political benefits might be greater for legislators who decide to use the rhetorical strategy more often than direct action on an order, since it is in the interest of Congress to avoid entangling itself in a major separation of powers battle with the White House. Members of Congress often do not welcome a lengthy battle with the president over the exercise of power, because their main interest is getting reelected (Mayhew 1974: 15). Therefore, representatives and senators prefer to further build their public policy records to maintain the support from their constituents. Congress also realizes that if it enters into a separation of powers battle with the White House, someone will most likely emerge as the loser. Members of Congress are apprehensive at times about entangling their institution in a conflict, because they seek to avoid a public relations disaster from occurring if the president wins. Once a majority of Congress reaches the conclusion that an executive order either supersedes their legislative authority, violates the Constitution, or is beyond the reasonable scope of a president’s inherent powers, it will not hesitate to take action against a directive. Therefore, once such action occurs, Congress is more likely to change or invalidate existing executive orders that establish major policy than those directives that deal with routine matters. However, just as Congress has sat on the political sidelines regarding its rhetorical charges against executive orders, formal congressional action against existing executive orders remains rare in US politics. Conclusion

The presidency literature frequently claims that scholars know very little about the nature of presidential power. A reason given by leading scholars is that the presidency field has trailed behind other subfields in political science in adopting the scientific method to explain

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political phenomena more rigorously and systematically (Edwards and Wayne 1983: 5). Even though there has been an increase in the number of presidential studies using empirical approaches, the discipline continues to struggle in understanding the various dimensions of presidential power (see Edwards 1989). The president’s executive order authority is one topic that frequently eludes the empiricist’s microscope. A possible reason for this lack of attention is that a legal approach is the logical framework in which to study these directives, an approach that traditionally characterized presidential research before the introduction of Neustadt’s theory of presidential power in 1960 (see Corwin 1957; Pious 1979). This framework has been rooted in qualitative research, which is not highly favored by contemporary empiricists, who erroneously equate qualitative work with pure description. In fact, a portion of the executive order literature has consisted of case studies centered around broad policy domains, such as civil rights (Morgan 1970), the executive budget (Mayer 1996), and foreign trade (Rader 1999). These descriptive studies underscore the increasing importance that presidents have attached to their executive order power as an avenue to influence policy. However, these studies have provided no empirical evidence demonstrating this importance, nor do they develop a theory to explain the exercise of this power. Furthermore, the specific executive orders selected for study are not necessarily representative of all executive orders. Therefore, legal case studies are extremely limited in developing tentative generalizations about presidential power in relation to executive orders. Recently, there has been scholarly interest in applying the legal approach to presidential executive orders, but within a quantitative framework (Krause and Cohen 1997; Mayer 1999, 2001; Howell 2003). These studies have placed greater attention on assessing executive orders with sophisticated, statistical techniques. However, the prevailing literature provides a shaky foundation regarding the strategic nature of these directives. The decision by scholars to immediately apply advanced, statistical methods to study executive orders might be premature at this time. For example, no study has thoroughly accounted for the policy substance in every executive order, and thus an understanding of the purpose of these policy tools is lacking. To address this deficiency, Executive Orders and the Modern Presidency is the first book to examine the policy content of every published executive order since March 1936 rather than relying on a

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sample of directives. Although random sampling techniques can be useful for reaching tentative generalizations about the president’s executive order power, there remains an element of uncertainty with this approach. But because the full texts of executive orders dating back to March 1936 are readily available, it is possible to further close this gap. By exploring the multiple dimensions of executive orders, rather than merely analyzing the number issued each year, this book seeks to develop a greater understanding about the broad contours of presidential power. Notes 1. In many instances, this problem exists because of a lack of access to data. For example, many of the current national security directives are classified. Furthermore, because presidents have not been required to disclose all national security directives to Congress, their number is questionable (see Durant 1998: 4–5). Proclamations and presidential memoranda are becoming increasingly available, which will allow scholars to closely analyze their importance. 2. It is difficult to determine the exact number and nature of executive orders issued before 1936, because scholars do not have a complete list of all directives issued between the George Washington administration through the first few years of Franklin Roosevelt’s term in office. The argument that these executive orders were mainly used for administrative purposes is weak. Furthermore, many of the recorded orders issued during this time appear to have dealt with land policy (see Lord 1943: 1–226). 3. Executive orders that appear to be making minor, linguistic changes in the wording of previous directives should not be easily dismissed as routine directives. In some cases, the changing of a few words can fundamentally alter the meaning of an order. Although a directive appears to be routine, it could actually be an attempt by the president to modify existing policy so that it conforms to his ideological preferences. There are instances whereby presidents have issued orders that seem routine at first glance, but that are actually major policy shifts (e.g., Executive Order 13083, on federalism). 4. The two types of authority options that exist for presidents are constitutional and statutory (Fisher 1997: 113). However, some presidents have gone as far as citing other provisions, such as United Nations resolutions, as legitimate sources of authority. The actual sources of authority cited will be discussed later in this book. 5. The literature on presidential power has not adequately differentiated between the concepts of presidential leadership and authority. Instead, scholars have emphasized presidential leadership (see Burns 1978; Edwards 1980, 1989). James Burns defined leadership as “the reciprocal process of mobilizing, by persons with certain motives and values, various economic, political,

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and other resources, in a context of competition and conflict, in order to realize goals independently or mutually held by both leaders and followers” (1978: 425). According to George Edwards and Stephen Wayne, a core component of presidential leadership “involves obtaining or maintaining the support of other political actors for the chief executive’s political and policy stances” (2006: 19). There is no question that presidential leadership is found in unilateral actions. However, such leadership typically occurs after presidents have exercised them. For example, following the issuance of an executive order, presidents must solicit compliance and support from federal agencies in implementing it. The ability to exercise unilateral powers is not completely a form of presidential leadership, but is an exercise of presidential authority. That is, unilateral decisions are made by the president, without requiring him to build support among members of Congress, interest groups, or the general public. Even after unilateral powers are exercised, presidents do not have to invest significant resources and time in building support for their decisions. Thus an additional hurdle that scholars must overcome in developing a formal theory of unilateral powers is to adequately apply the concepts of presidential authority and leadership.

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2 Policymaking by Presidential Decree

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fter their inaugurations, presidents quickly learn that their ability to control executive branch policymaking is severely constrained by other administrative and leadership responsibilities that compete for their attention. Chief executives must screen and appoint loyal and competent appointees to head executive departments and federal agencies; they need to build and nurture their political relations with Congress; they must devote attention to honing their rhetorical skills to meet the public’s high policy expectations; and they must learn the ropes of governing and managing an expanding federal bureaucracy. Presidents rarely accomplish all of these tasks before their honeymoon period has ended. These complexities in executive branch politics can interfere with a president’s effort to establish a policy record. As a result, presidents are driven to develop policy strategies to cope with the dynamic political environment that their administration must contend with on a daily basis. Many scholars contend that executive orders are attractive policy tools for presidents because they provide alternative avenues for policymaking during times when there is an increase in the amount of uncertainty within the political environment (Mayer 2001: 90). However, a few studies have claimed that executive orders do not provide chief executives with an adequate tool for enacting major policy. Instead, executive orders are mainly suitable for carrying out routine, bureaucratic functions (see Schramm 1981; Light 1999; Peterson 1990). For example, Sarah Schramm (1977) demonstrated that approximately 70 percent of the executive orders that she analyzed were designed to accomplish routine tasks. 29

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Mark Peterson explained that presidents can issue executive orders to establish major policy. However, chief executives do not aggressively issue executive orders to establish significant public policies, because they are aware that these actions might lead to possible power struggles between the executive branch and Congress. Peterson also reminds scholars that the executive branch is not the only political institution in US politics that exercises unilateral authority. For example, “the tandem-institutions arrangement in American government gives members of Congress the instruments of budget control and oversight to engage in their own forms of relatively unilateral policy making” (1990: 87–88). Paul Light provided evidence that some administrations were more successful in achieving their policy agendas by working with Congress on legislative agendas rather than using the tools of the administrative presidency. Light’s work did not focus primarily on executive orders. Instead it analyzed the policy agendas of presidents since the Kennedy administration. However, Light found evidence that White House advisers serving presidents since 1961 believed that a vigorous legislative strategy was more important to their chief executives than an administrative strategy that relied on policy tools such as executive orders. According to the information that Light collected from interviewing 126 White House officials, many of these staffers asserted that “the executive option [comprising the administrative presidency tools] is generally reserved for routine decisions; it is not perceived as a suitable alternative for major initiatives. Executive orders, for example, offer a very limited and temporary alternative for policy initiatives” (1999: 117). The assertions made by scholars such as Schramm, Light, and Peterson have generally fallen on deaf ears. Instead, contemporary scholars who study executive orders typically begin their research with the assumption that these directives are an important policy tool that presidents have in their administrative presidency arsenal. Despite these assumptions, scholars have not systematically analyzed the actual content of executive orders to increase our understanding about how these orders can be a source of presidential power. Executive Orders as Policy Statements

Appendix A provides a detailed description of the content analysis that was used to generate the data presented in this book. One of the

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advantages of content analyzing the text of executive orders is that directives have multiple purposes related to executive branch management and policymaking that scholars have ignored in their research. Studies that randomly sample a group of executive orders without accounting for the policy information contained in these statements limit our understanding about the potential power of executive orders. In addition, although every executive order shares a set of common attributes, each directive is unique in its purpose and ultimate impact on the political process. The US political system accords executive orders the same legal status as legislation passed by Congress (Cooper 2002: 21). Ironically, presidential scholars focus more on the outcomes of presidential policymaking, such as the number of executive orders that presidents issue, rather than on the content of these policy statements themselves. Furthermore, most scholars lack interest in studying the process of formulating a variety of policy statements in the executive branch. In contrast, congressional scholars are aware of the complexities and politics surrounding the development of legislation on Capitol Hill. Congressional studies frequently account for the effect of the political environment on the creation of bills, the procedures involved in constructing legislation, and whether the bureaucracy is implementing statutes according to the original intent of Congress (see Aberbach 1990; Conlan, Wrightson, and Beam 1990; Dodd and Schott 1979; Reid 1980; Schneier and Gross 1993). Scholars should not assume that presidential legislation, including executive orders and other executive branch policy statements, is any simpler in its construction, purpose, and implementation than congressional legislation. Congressional laws are frequently complex and ambiguous documents, especially omnibus bills that consist of a multitude of policies wrapped into one statute or pieces of legislation that include numerous riders that are not germane to the original purpose of a bill (Krutz 2001; Schneier and Gross 1993: 368–369, 375). On the surface, the text of executive orders suggests that these policy statements are simple to comprehend, that their policy intentions are clearly stated, and that they do not require as much executive branch manpower and resources to implement. There is a degree of truth to this. However, there are many executive orders that are difficult to implement for a variety of reasons, such as the influence that politics has on the creation and implementation of these policy

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statements. Presidents frequently provide bureaucratic agencies and executive departments with a degree of administrative discretion to interpret and execute the policy responsibilities outlined in a directive. Executive orders are relatively clear in stating the overall policy goals or tasks that an organizational unit within the executive branch must accomplish for a president. In contrast, presidents sometimes do not provide federal agencies and executive departments with a clear set of guidelines for completing those tasks. For example, on 11 August 1966 Lyndon Johnson issued Executive Order 11297, which delegated responsibilities to the secretary of housing and urban development, Robert C. Weaver, and his designees at that time, regarding the coordination of urban programs administered by the federal government. However, the president was extremely vague in clearly defining the actual tasks of this cabinet department. One of the responsibilities that Johnson delegated to the secretary was “to promote cooperation among Federal departments and agencies in achieving consistent policies, practices, and procedures for administration of their programs affecting urban areas” (Johnson August 1966: 10765). This directive never communicated to Secretary Weaver the specific actions his department should have taken to achieve such cooperation. As a result, the secretary was left to decipher Johnson’s executive order. Even though executive orders might appear to be simple policy statements, in reality many of them are complex legal documents, even for the policy officials who implement them. Although executive orders typically focus on one overarching policy issue, they can be just as complex as congressional statutes that address a bundle of different policy issues, particularly if they comprise multiple goals or focus on intermestic policy (a combination of domestic and foreign affairs) (see Fisher 1998: 182; Manning 1977: 306). For example, as discussed in Appendix A, some executive orders are designed to accomplish a variety of tasks related to one policy theme that crosscuts foreign, domestic, and/or executive branch (i.e., administrative) policy. A single directive on economic policy might (1) delegate responsibilities to executive branch officials to implement congressional legislation that promotes growth in the economy, (2) create a presidential task force consisting of appropriate cabinet secretaries and presidential advisers to manage current economic policymaking in the White House, and (3) amend a few existing executive orders that address economic matters.

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The heterogeneity found in some executive orders extends beyond goals and policy domains. For example, presidents list a variety of constitutional, statutory, and other sources of authority in their executive orders to legitimize them. Some of these justifications fall within the scope of the president’s constitutional authority, while other directives raise serious questions about the separation of powers principle between the executive branch and Congress regarding lawmaking. It is important for presidency scholars studying unilateral powers to be aware of the multidimensionality found in executive orders. Research that classifies executive orders into a variety of categories based on their titles alone (see Ragsdale 1998: 353–356) overlooks the heterogeneity factor. One of the advantages of reading the text of executive orders is that we can observe some of these heterogeneous qualities, allowing us to develop a greater understanding about the many roles of executive orders that scholars have not accounted for in the presidency literature. The Functions of Executive Orders

Presidents frequently use executive orders to formally communicate policy decisions and to assign implementation responsibilities to heads of federal agencies and executive departments. These orders are important because they provide scholars and political officials with a written account regarding some of the policy decisions made by an administration. Theoretically, an executive order also provides a president with a legal document that allows him to hold bureaucratic agencies accountable for their policy actions. Presidential directives can serve as a legal foundation for legitimizing any sanctions a chief executive might have to levy against federal agencies or officials that decide to shirk from the president’s wishes regarding the implementation of an order. Therefore, an executive order might be an effective tool for chief executives to use to restrain bureaucratic agencies and departments that are tempted to depart from the president’s policy agenda. Executive orders are commonly issued to deal with administrative matters that arise within the executive branch. These directives can range from transferring certain authority from one department to another over a policy matter, to reorganizing organizational structures

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in federal agencies and executive departments, to increasing the number of positions within the five layers constituting the executive schedule, to delegating authority to specific executive branch officials to implement certain provisions of a statute. Presidents occasionally issue executive orders to centralize their control over White House policymaking. For example, on 14 May 1962 President Kennedy issued Executive Order 11022, creating the President’s Council on Aging. This order had several purposes and was designed to promote Kennedy’s commitment to health care policies. Executive Order 11022 identified the key officials, ranging from cabinet secretaries to heads of federal bureaus, that would compose Kennedy’s council. The power to create presidential commissions and councils through executive orders provides presidents with a powerful tool, because they have the sole authority to decide the participants that they would like to have on their boards to develop policy agendas. This process allows presidents to directly influence the direction of White House policy by establishing an advisory body that is removed from the jurisdiction of a federal agency or department. In addition, chief executives have the freedom to better ensure that individuals serving on presidential commissions will be true loyalists to their administration’s stand on public policy. Furthermore, any executive order that creates a presidential commission also serves as the vehicle for defining its policy mission and allows the president to establish that commission’s policy agenda. For example, in outlining the main responsibilities for the President’s Council on Aging, Kennedy required the commission to submit an annual report to keep him informed about policy activities accomplished by his board. More important, Kennedy required that the council inform him about the policy actions taken by “several Federal departments and agencies having programs relating to the aging” (Kennedy 1962: 4659). This simple provision in Executive Order 11022 appears to be routine; however, it was a bold attempt by Kennedy to use his council to centralize control and monitor bureaucratic actions that focused on aging policy. Therefore, a further purpose of Executive Order 11022 was to provide the White House with an oversight apparatus that allowed the president and his key advisers to keep watch over the policy agendas of federal agencies and executive departments. Kennedy’s policy actions demonstrate that some executive orders have more than one purpose. In addition to centralizing control over White House policymaking on aging, Kennedy might have believed

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that his executive order actions would send a cue to the elderly population that his administration was committed to policy issues of concern to them. Therefore, he might have viewed Executive Order 11022 as a political tool to increase his support among the elderly population were he to seek reelection in 1964. Another function of executive orders is that they allow presidents to deal with housekeeping matters related to the operations of the executive branch. For example, the number of political appointees serving in executive departments has increased because of title riding (see Light 1995). As a result, presidents are faced with updating previous executive orders that specify the succession of leadership in the event that a cabinet official resigns, becomes temporarily incapacitated because of illness, or dies in office. Presidents periodically revise these orders by clarifying the new chain of command that exists in an executive department. President George W. Bush began updating the line of succession in various cabinet departments on 18 December 2001, following the September 11 terrorist attacks, starting with the Department of Agriculture (Bush 18 December 2001: 66258–66259). Presidents have also used executive orders to stamp their ideological and philosophical views about public policy upon the US political system. Presidents do not view themselves as sideline policymakers. The presidential office provides chief executives with a vantage point to directly influence the direction of US public policy. As a result, the White House does not always wait for Congress to set the policy agenda (Edwards and Wayne 2006: 331; Genovese 1995: 68). Presidents have used executive orders either to move aspects of their administration in a new policy direction or to reverse policy trends enacted by their predecessors. President George W. Bush issued his first two executive orders, 13198 and 13199, on 29 January 2001, signaling the administration’s intent on developing a faithbased initiatives program that would reduce the role of the federal government in directly administering social welfare policy (see also Pika, Maltese, and Thomas 2002: 294–295). Bush issued Executive Order 13199 to create his White House Office of Faith-Based and Community Initiatives as the main organizational unit in the White House to promote his faith-based policy ideas (Bush 29 January 2001: 8499–8500). These orders also represented the White House’s departure from the liberal policies pursued during the Clinton administration and signaled Bush’s efforts to promote a stronger conservative agenda for solving policy problems.

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Unique Roles of Executive Orders

Some executive orders serve unique functions apart from traditional roles. Political scientists trained in the scientific method might overlook or even dismiss the importance of analyzing these unique orders because they are rare events. Scholars might consider rare executive orders as statistical outliers that provide no useful information, given the difficulty of making generalizations based on isolated cases. This argument is credible from a mathematical perspective. However, from a theoretical perspective, scholars who disregard this information restrict our knowledge about presidential power and leadership. Franklin Roosevelt’s Executive Order 9066, issued on 19 February 1942, resulted in the internment of many West Coast Japanese Americans in camps during World War II. Although this directive may appear to be an outlier in the list of presidential executive orders, its consequences for constitutional liberties and rights in US society have persisted ever since Roosevelt signed it (Robinson 2001). Scholars should be aware of the unique reasons that presidents issue executive orders, because many of these directives raise serious questions about the proper scope of presidential power. For example, a few executive orders have been issued to resurrect congressional laws that have expired because of sunset provisions. For example, Clinton issued Executive Order 12923, on 30 June 1994, to allow certain provisions of the Export Administration Act of 1979 to remain law even though this statute had expired. Clinton justified his actions by invoking the International Emergency Economic Powers Act (50 U.S.C. 1702) and explaining that US business and industry would be adversely affected in foreign trade if provisions of the Export Administration Act ceased to exist. Clinton also issued Executive Order 12923 to serve as an agenda-setting tool to encourage Congress to pass new legislation to replace the defunct export law. A section of Executive Order 12923 stated, “it is my [Clinton] intention to terminate this order upon the enactment into law of a bill reauthorizing the authorities contained in the Export Administration Act” (Clinton, June 1994: 34551). Although other presidents before Clinton issued executive orders to resurrect congressional laws that were no longer in effect, only rarely has executive authority been abused in this manner. Presidents have relied on their executive order authority to temporarily suspend or postpone provisions in various policy documents

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such as international agreements (Reagan, 24 February 1981: 14111) and other executive orders (US Government 1943: 353). In addition, some executive orders include an expiration date or a sunset provision that pinpoints termination of legal authority. For example, Franklin Roosevelt’s Executive Order 8051, issued in 1939, declared that its authority would cease to exist after a trade agreement was terminated between Canada and the United States (Roosevelt, February 1939: 959). Apart from these policy actions, presidents have issued directives to amend portions of executive orders and proclamations (see Truman, November 1950: 8101). The act of amending existing executive orders can alter dramatically the direction of policy that previous presidents have carved out in their executive orders. Presidents have utilized executive orders to disregard or nullify provisions of statutory law that they claim are not in the best interests of the nation. President Clinton issued Executive Order 12849, on 25 May 1993, to instruct bureaucrats to ease up on the trade limitations called for in the Buy American Act (41 U.S.C. 10a–10d). Clinton reasoned that portions of this act interfered with his ability to adequately implement and enforce a new international agreement between the United States and the European Community that was designed to strengthen the authority of the General Agreement on Tariffs and Trade. But again, based on content analysis, presidents use very few executive orders to nullify parts of existing laws. However, the fact that chief executives have developed and exercised a second type of veto power over legislation lends credibility to the conventional wisdom that presidents are willing to expand their sphere of influence in the US political system when they encounter a window of opportunity. Presidents will continue to have opportunities to use executive orders for increasing their power as long as Congress and the federal judiciary remain passive in challenging their unilateral authority. Executive Orders as Symbolic, Routine, or Policy Initiatives

Chief executives are rational actors who are mainly concerned about the pursuit of their policy goals. Theoretically, executive orders provide presidents with a relatively efficient tool to centralize control and directly influence executive branch policymaking.

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Executive orders are efficient tools because the president’s signature at the bottom of these policy statements is the only element that is necessary to enact them into law. Presidents issue orders to directly influence public policy in three broad ways. First, they can issue directives that require bureaucrats or political appointees to implement congressional statutes or federal rules and regulations. Second, they might opt to go over the heads of certain presidential appointees and careerists. A president can accomplish this by shifting certain implementation responsibilities from one federal agency, executive department, or executive branch official to another, in order to give him greater control over the implementation process. For example, a chief executive might perceive that a particular agency is hostile and prone to shirking against the policy aims of his administration. When this occurs, he might issue a directive to shift the implementation activities from that hostile agency to a friendlier bureau, to ensure that bureaucrats comply with his policy agenda. Finally, presidents might use executive orders to bypass the traditional legislative process in Congress in order to initiate policy on their own. Chief executives possess a powerful resource to unilaterally create policy if Congress does not formally respond to a president’s executive order by nullifying or amending it, or if the Supreme Court does not exercise judicial review over a president’s policy actions. The expectation put forth here is that presidents will rely on their executive order authority as a coping mechanism to meet the constraints and demands placed on them by an uncertain political environment. If we analyze the number and percentage of executive orders that presidents since Franklin Roosevelt have issued to initiate major policy, we should see an increase (and more acutely so during administrations since the Nixon presidency), as over time presidents will be honing their administrative strategies to better influence executive branch policymaking. The reason for this assumption is that since the Roosevelt presidency, there has been a gradual transition from the administrative to the neoadministrative state, forcing presidents to aggressively centralize their power over federal policymaking (see Durant and Warber 2001). The public management literature is unclear about whether presidents completely understand the presence and contours of the rising neoadministrative state. There is an expectation that chief executives will continue to exercise the traditional policy tools (i.e., budget

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authority, appointment powers, executive orders, and proclamations) that provided them with policy successes during the administrative state. Robert Durant and I further theorize that even if presidents are unaware of the changing nature of the administrative state, they may begin to experience some of its results when they start to notice that the effectiveness of their policymaking authority has weakened over time. As a result, presidents might vigorously utilize their unilateral tools to regain better control over the uncertain political environment. For example, we might find that presidents since Nixon have been more tempted to issue executive orders to compensate for the impact of the neoadministrative state on presidential power (Durant and Warber 2001: 238). Total Number of Executive Orders

The total number of executive orders issued by all administrations from 1936 to 2001 is 5,392. Of these, 3,221 (59.7 percent) were routine, 2,022 (37.5 percent) were issued to initiate major policy, while only 149 (2.8 percent) were designed to accomplish symbolic tasks. Table 2.1 provides the number and percentage of symbolic, routine,

Table 2.1

Total Number and Percentage of Symbolic, Routine, and Policy Executive Orders

Administration

Symbolic

F. Roosevelta Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton Total

18 (1.0%) 24 (2.8%) 31 (6.4%) 9 (4.2%) 14 (4.3%) 17 (4.9%) 8 (4.7%) 7 (2.2%) 6 (1.6%) 8 (4.8%) 7 (1.9%) 149 (2.8%)

Routine 1,334 (76.1%) 584 (66.9%) 344 (71.4%) 122 (57.0%) 176 (54.2%) 184 (53.2%) 81 (47.9%) 116 (36.3%) 137 (36.0%) 55 (33.1%) 88 (24.2%) 3,221 (59.7%)

Policy 400 (22.8%) 265 (30.4%) 107 (22.2%) 83 (38.8%) 135 (41.6%) 145 (41.9%) 80 (47.3%) 197 (61.6%) 238 (62.5%) 103 (62.1%) 269 (73.9%) 2,022 (37.5%)

Total Number 1,752 873 482 214 325 346 169 320 381 166 364 5,392

Note: a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

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and policy executive orders that each administration issued since Franklin Roosevelt signed Executive Order 7316 into law on 13 March 1936. Appendix B provides more detailed information, presenting the total number of published executive orders issued each year. Percentages have been included in Table 2.1 to show how each administration generally used its executive order power for symbolic, routine, or policy purposes. For example, of the 1,752 executive orders issued by Roosevelt, approximately 76 percent were designed to accomplish routine and administrative tasks, while nearly 23 percent were used to initiate significant policies during his administration. Roosevelt only issued 18 symbolic executive orders (1 percent of his total) between March 1936 and the time of his death, April 1945. Comparing Executive Orders Across Administrations

Table 2.1 is a useful introduction to the study of executive orders. However, these data present problems for comparing executive orders across administrations. Therefore, Table 2.2 provides the average

Table 2.2

Yearly Average of Executive Orders Issued by Presidents

Administration

Symbolic

Routine

Policy

Total Average Number

F. Roosevelta Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton

2.0 3.0 3.9 3.0 2.8 3.1 3.2 1.8 0.8 2.0 0.9

148.2 73.0 43.0 40.7 35.2 33.5 32.4 29.0 17.1 13.8 11.0

44.4 33.1 13.8 27.7 27.0 26.4 32.0 49.3 29.8 25.8 33.6

194.7 109.1 60.3 71.3 65.0 62.9 67.6 80.0 47.6 41.6 45.5

Note: a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

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number of symbolic, routine, and policy executive orders issued per year by each administration between 13 March 1936 and 18 January 2001. These average scores allow for an analysis of the core hypothesis that the number of executive orders devoted to establishing major policy, as opposed to routine or symbolic directives, has increased across time. The data listed in the policy column demonstrate that the average number of policy executive orders has not increased across time. Carter issued the most directives each year (49.3), while Eisenhower issued the least (13.8). Following Franklin Roosevelt’s average number of 44.4 directives per year, the number of policy orders declined during the Truman and Eisenhower administrations. Despite a minimal increase during the Kennedy years, every president serving between 1961 and 1976 typically issued approximately 30 policy orders each year. In the past thirty years, the Carter administration was the most aggressive. The number of policy directives declined from this high point in the succeeding administrations: Reagan, 29.8; George H. W. Bush, 25.8; and Clinton, 33.6. Kenneth Mayer developed a bar chart showing the average number of significant directives that presidents issued during each decade beginning with the 1940s. When these results are contrasted with the data in Table 2.2, Mayer’s estimates appear rather low for all decades since 1960. During the 1960s, Mayer estimated that presidents issued less than 10 significant orders per year, while Table 2.2 suggests that approximately 27 policy orders were issued each year. The table also demonstrates that during the 1970s, 1980s, and 1990s, approximately twice as many policy orders were issued compared to Mayer’s study (2001: 87). My results differ dramatically from those of Kenneth Mayer (2001) and William Howell (2000, 2003) because those authors only analyzed samples of executive orders. Mayer differentiates between a sample of significant and insignificant orders based on a modified version of David Mayhew’s classification scheme (1991) used to categorize congressional statutes. Mayer classifies a sample of orders issued between 1940 and 1999 based on the importance accorded to an order by members of Congress, the media, legal and presidential scholars, the judicial system, and presidents themselves. The policy provisions that compose the text of each order have minimal bearing on Mayer’s classification system. Mayer also differentiates between symbolic orders that deal with organizational issues within the execu-

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tive branch apart from those that shift the direction of federal policy (2001: 84–85; see also Mayer and Price 2002). Mayer found that approximately 14.3 percent of the 1,028 executive orders sampled were significant directives. The largest number of significant orders dealt with national security policy. Mayer also found that a larger number of significant orders were issued in the 1940s than during any decade since, but that beginning with the 1970s a trend emerged indicating that between 10 and 15 percent of the executive orders were significant. Mayer argued that this is an indication that contemporary presidents put a high premium on executive orders as a key policy tool. Mayer also discovered that presidents since 1950 have used directives for domestic and administrative management purposes. This trend continued to persist into the Clinton presidency (2001: 85–87). Howell makes a distinction between significant and nonsignificant executive orders to develop his theory of unilateral action. An executive order is significant when it is “mentioned in either the appendix of the Congressional Record or in the federal court opinions of at least two different cases” (2000: 103). Howell also relies on news reports from the New York Times to identify those significant directives that were issued since 1983. There are two trends that emerge from this data set. The first is that the number of significant executive orders has grown since 1900. In contrast, presidents issued more nonsignificant than significant directives during the twentieth century (Howell 2000: 106–107; Howell 2003: 81–84). We should expect that the approaches undertaken by Mayer and Howell will underestimate the total number of significant orders. For example, members of Congress are not concerned about every policy directive the president establishes. Instead, they will challenge those executive orders that either come in conflict with their own agendas or severely encroach on Congress’s constitutional authority. Furthermore, there may be instances when members of Congress are mute on the president’s actions, because either they are complacent or they lack the time and adequate resources to address them. Presidency and legal scholars are also likely to overlook the importance of some executive orders and will be drawn to analyzing those directives that clearly demonstrate that a breach of power has occurred on the part of the president. Since a sizable portion of the executive order literature consists of case studies, there is a potential

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problem of selection bias, because case studies generally focus on political phenomena that are unique rather than characteristic of a general population. Finally, when the media selects certain executive orders to report, they are not necessarily concerned about whether such actions are within the scope of presidential power, nor do they report on every important presidential action. In some instances, certain White House stories might take precedence over other newsworthy items, or a media outlet might decide to provide no coverage on the president’s policy agenda on a given day. President Clinton frequently encountered a press that was more eager to report on his administration’s scandals than on his policy actions (Dodds and Rozell 2000: 159). Furthermore, there may be isolated cases when the media report on insignificant executive orders. My coding scheme prevents the possibility of a trivial or routine order from being classified as a major policy order. Finally, Mayer states that “when there was ambiguity about whether an order was significant or not, I considered it insignificant” (2001: 85). I originally classified ambiguous orders as a hybrid of both policy and routine and then recoded them as policy directives. I argue that directives consisting of ambiguous language indicate a possible political maneuver on the part of the executive branch to disguise those executive orders that the president uses to pursue controversial policy issues. Therefore, these types of directives should be classified as significant policy orders. Although the average number of policy executive orders has not increased, Table 2.2 does demonstrate that the average number of routine directives has steadily diminished over time. Franklin Roosevelt issued an average of 148.2 routine orders each year, while the Clinton administration only issued 11.0. Another trend also emerges when comparing the average number of routine and major policy directives within each administration. Prior to the Ford administration, in summer 1974, presidents since Roosevelt issued more routine than policy directives per year. In contrast, Ford issued approximately the same number of routine (32.4) and policy (32.0) executive orders during his term. However, since the Carter presidency, every chief executive has issued a greater number of policy than routine directives. Table 2.2 also demonstrates that presidents do not consider symbolic policy a high priority. The numbers in the symbolic column

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range between 0.8 and 3.9. Eisenhower led presidents in the average number of symbolic orders (3.9), while Reagan (0.8) and Clinton (0.9) issued the fewest. There are two possible reasons why presidents have rarely issued symbolic executive orders. The most likely explanation is that chief executives use presidential proclamations as the preferred policy tool for dealing with symbolic matters. Since there are no studies that have systematically analyzed the texts of proclamations, it must be assumed at this point that a larger number of symbolic tasks are dealt with by proclamations than by executive orders. Traditionally, scholars have assumed that a common function of proclamations is to deal with symbolic issues that directly impact the mass public (Cooper 1997: 539). The second reason why presidents rarely issue symbolic executive orders is that the immediate policy payoffs of these directives are less than the benefits that presidents obtain from major policy directives. Presidents can issue symbolic executive orders to reach out to certain groups in society, such as women, Native Americans, African Americans, and veterans, to obtain greater political support from them. This type of strategy might be useful during an election year, when the president is attempting to connect with a variety of groups for their votes. In addition, Democratic presidents might find symbolic executive orders more appealing than would Republicans, because the Democratic Party represents a more diversified set of constituents. Symbolic orders might have a limited political payoff for presidents during nonelection years. When a president issues a symbolic order that affects a specific group, we cannot assume that enough members of that target population in society will be informed about his executive order. The problem is that the media appear to report more on the president’s legislative progress in Congress, his participation at international summits, and his going-public (see Kernell 1997) activities, than on executive orders that deal with symbolic issues. This lack of media attention can frustrate the president’s ability to use symbolic directives as a tool to boost his public approval ratings among the public. Table 2.2 suggests that there has not been an “aggrandizement of power” (see Corwin 1957: 307) over time, because the number of policy executive orders has not increased since 1936. There is also a degree of similarity between the number of policy orders issued by a

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majority of the administrations. Apart from Roosevelt, Eisenhower, and Carter, the remaining presidents issued between 25 and 34 policy directives each year. Although presidents might have attempted to increase their authority in other areas such as in budgetary politics and war (see Fisher 2000: 162–163), their executive order authority has not eroded the separation of powers principle. The Role of Party Politics

Party identification is an important variable that scholars control for when explaining the political behavior of policymakers. An effective approach to testing whether there is a statistical difference between the number of directives issued by Democratic and Republican presidents is to analyze the yearly average of executive orders. From 1936 to 2001 the Democrats controlled the White House for thirty-seven years, while the Republicans controlled it for twenty-eight. Table 2.3 provides the yearly averages of symbolic, routine, and policy executive orders while controlling for party control of the White House. Democrats issued a total of 104.0 executive orders every year, while Republicans issued 55.1. Table 2.3 shows that Democratic presidents issued 36.5 policy directives each year, while Republican presidents issued 24.0. Thus, on average, Democratic administrations issue 12.5 more policy orders each year than Republicans. This number is also greater than half the yearly number of policy executive orders (24.0) that the Republicans issued while in office. This finding further supports Mayer’s broad conclusion that party control of the White House is related to the number of executive orders issued by presidents (Mayer 1999: 457; Mayer 2001: 96).

Table 2.3

Yearly Average of Executive Orders and Party Control of the White House

Administration Democrats Republicans

Symbolic

Routine

Policy

Total Average Number

2.1 2.5

65.4 28.6

36.5 24.0

104.0 55.1

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Forging New Directions in White House Policy

The president’s executive order power allows him not only to establish new policies but also to either eliminate or modify the policy legacies of previous administrations. All incoming administrations inherit the policy records that their predecessors carved out with executive orders. Executive orders are binding policy statements, because their legal authority remains in effect until they are either revoked, superseded, or amended by future executive orders (Morgan 1970: 3). The term binding is somewhat misleading. The act of changing or even terminating executive orders is a common practice that is exercised by the White House. Theoretically, chief executives possess an absolute veto power over any existing executive order whose legal authority remains in effect. In reality, presidents must be cautious and strategic when deciding those policies that they wish to modify with new executive orders. The US political system can produce numerous roadblocks during the White House policymaking process, and it is sometimes unforgiving when presidents attempt to change the policy directions of their predecessors. Presidents are aware that their policy actions can create political consequences, but they are also interested in leaving a policy legacy that will define their administration in the history books (see Light 1999: 65; Landy and Milkis 2000: 3). Therefore, we should not expect presidents to pass up the golden opportunity of using their executive order authority to modify existing policy. The President’s Power to Reform Policy

Political scientists have not assessed why or how presidents eliminate or modify existing executive orders. As a result, there is no adequate theory or set of descriptive information in the literature to serve as a framework for understanding the process of modifying presidential directives. The major method chief executives use to either revoke or change an existing directive is by issuing a new executive order (Fleishman and Aufses 1976: 38). These new orders identify the directives that the president is reforming, and they usually explain his legal and policy justifications for taking these actions. For the most part, executive orders mandating policy change also state whether the

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president is revoking, superseding, or amending certain directives. There are instances when the text of an order does not communicate the type of policy action the president is taking in relation to a specific directive. In a few cases, it is necessary to judge whether an order had been revoked, superseded, or amended. There are some directives about which an informed decision can be made, because their language provides clues regarding the president’s intent. Presidents have three options they can use to “veto” and reform the direction of policy in existing executive orders. Presidential decisions to revoke, supersede, or amend depend on how far chief executives wish to modify the policy accomplishments of their predecessors. These policy tools are powerful, because there is no political counterpart that can directly override the president’s decision to terminate or alter executive orders. Congress and the Supreme Court can use indirect methods after presidents reform executive orders. Congress has the authority to enact new legislation incorporating the policy provisions of an order that is altered or revoked if legislators believe this action is in the public interest. The probability for congressional action depends on the political benefits that such new legislation will provide for members of Congress. Legislators might be inclined to reverse the president’s actions if their constituents demand a congressional response (Arnold 1990: 84). The literature has not analyzed whether the Supreme Court has been active or passive in challenging presidential authority to revoke, supersede, and amend directives. The Court recognizes that presidents have the power to veto and alter existing directives, otherwise it would have exercised judicial review to declare these policy tools unconstitutional. The Court could challenge the president’s policy actions if a majority of the justices concluded that such actions were an assault on constitutional principles (Fisher 1997: 113). Therefore, the Court’s power of judicial review serves as a check on the president’s executive order authority. Congress and the Supreme Court lack adequate resources and time to monitor all of the policy and administrative actions taken by the executive branch. Instead, members of these institutions must be selective in choosing those policy actions that they wish to further investigate or challenge. An exploration of the complete influence of Congress and the Supreme Court on the president’s ability to reform executive orders is beyond the scope of this book. However, we

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should keep in mind that presidential policymaking does not operate in a political vacuum. Presidents must constantly be aware of their political environment and exercise caution when influencing the policy process. Defining the Power to Revoke, Supersede, and Amend Directives

The literature fails to explain the difference between revoking, superseding, and amending executive orders. One reason for this problem is that presidents are not always consistent in their definitions of these policy actions. Instead, each administration inherits the discretion to decide what these concepts encompass. The Office of Legal Counsel in the Justice Department is responsible for reviewing the legal language of an order before a president signs it into law (Borrelli, Hult, and Kassop 2001: 563; Mayer 2001: 18–19). The possibility exists that careerists serving in the Justice Department possess institutional memory regarding how previous administrations defined the concepts of revoking, superseding, or amending executive orders. Currently scholars have not explored the role of the Justice Department in crafting executive orders. Since the political science literature lacks adequate information about the president’s power to revoke, supersede, and amend, I attempt to differentiate between these concepts based on the knowledge obtained from a content analysis of executive orders. My purpose is not to provide a definitive definition for each concept—this is an activity that is best left to the legal profession. Instead, my goal is to broadly differentiate between these concepts to inform the reader that presidents have several options available to them when they decide to change policies created by executive orders. Broadly speaking, executive orders that are revoked lose their status as law, while superseded orders have their legal status suspended. Amended directives are executive orders that have been altered but within which some elements still have the force of law. Revoked vs. Superseded Executive Orders

There are two options presidents have to veto the legal authority of executive orders. First, they might decide to completely revoke an existing directive. This type of action terminates the legal basis of an

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order. The second option is to partially revoke certain provisions within a directive. Although presidents often choose this latter action for political purposes, there are instances when a certain provision in an order is no longer necessary because it does not meet the policy demands of society or it is not needed to accomplish administrative tasks in the executive branch. President Clinton’s Executive Order 13083 provides an example of how the authority to revoke executive orders is a powerful policy tool. This directive revoked Clinton’s Executive Order 12875, which was signed into law in 1993. More important, Executive Order 13083 also revoked Executive Order 12612, which was issued during the Reagan administration in 1987 to address US federalism. Reagan’s executive order was a policy statement that signaled the White House’s intention to pursue the conservative view of federalism. Reagan’s directive announced that more policy authority would be devolved to state and local governments during his administration. Clinton used the text of Reagan’s federalism order as a template when creating Executive Order 12875. However, Clinton changed key wording in the order that promoted Reagan’s conservative ideology, replacing this text with a liberal interpretation of federalism to redirect more policy authority to the federal level while limiting the power of the states (Mayer 2001: 222). In the period leading up to the signing of Executive Order 12875, a firestorm of criticism began to build among state governors, who were predominately Republican. In an effort to diminish a public relations disaster, Clinton finally bowed to the pressures he received from states by issuing Executive Order 13083 to partially relax his liberal policy direction on federalism. Although he was forced to compromise, Clinton’s decision to revoke Reagan’s directive resulted in a major policy departure from the original federalism order (Mayer 2001: 222). The president’s authority to revoke is a powerful tool that can allow incoming administrations to directly control the policymaking process. During his first term, President Clinton issued Executive Order 12866, on 30 September 1993, to revoke Reagan’s infamous Executive Order 12291, which dealt with regulatory review in the executive branch. Reagan’s order subjected certain proposed regulations to a cost-benefit analysis before the bureaucracy could implement them. Rules would not be issued unless their benefits exceeded their costs. Opponents of the Reagan administration claimed that this

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process of regulatory review was an administrative strategy designed to slow the federal government’s capacity to issue many regulations. Cost-benefit analysis is a time-consuming and lengthy process that creates additional bureaucratic red tape. Reagan used cost-benefit analysis as a tool to promote his conservative philosophy of deregulation (Mayer 2001: 126–127; Waterman 1989: 129–131; West 1995: 116–117). Executive Order 12866 reformed Reagan’s regulatory review process. Although cost-benefit analysis remained an important tool for policy evaluation, Clinton’s directive eased some of the restrictions on regulatory review and expedited the rulemaking procedure (Anderson 2006: 278–279). In essence, Clinton revoked Reagan’s executive order to create a policymaking environment that would allow him to have an easier time pursuing liberal regulatory policies. Presidents also issue executive orders to completely or partially supersede existing directives. Presidency scholars have not developed a clear set of definitions to differentiate between executive orders that are revoked and superseded. Based on a content analysis of a large volume of executive orders, it might be suspected that presidents are not always sure what the term supersede means and how it differs from revoke. Nevertheless, there is a fundamental distinction. A question that the literature does not explore is, if a president revokes an order that supersedes another directive, is the legal authority of the original order that was superseded reinstated? An order that is superseded seems to have its legal authority suspended for an indefinite (in some cases, permanent) period of time until a president decides to resurrect it. For example, Clinton issued Executive Order 12994, on 21 March 1996, to supersede Executive Order 11776, which was issued during the Nixon administration in 1974. Nixon’s order was created to supersede Lyndon Johnson’s Executive Order 11280, which created the President’s Committee on Mental Retardation on 11 May 1966. Nixon issued an executive order to extend the life of Johnson’s presidential committee and to increase the size of its membership. Clinton decided to sign Executive Order 12994 to further extend the existence of this committee and to allow even more individuals to serve on it. As a result, both the original directive dealing with mental retardation (Executive Order 11280) and Nixon’s Executive Order 11776 no longer have legal authority, but they possess potential legal authority. For example, if a future

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president decided to revoke both the orders issued by Clinton and Nixon, we might assume that Johnson’s Executive Order 11280 would then go into effect and have the same legal authority as it did when Johnson originally issued it. As a result, the structure of the President’s Committee on Mental Retardation once again would be determined by the specifications outlined in Executive Order 11280 (Clinton March 1996: 13047–13049). Another problem is that the superseding of orders sometimes resembles the process of amending directives. For example, a president might modify outdated provisions within an existing order, but instead of indicating that he is amending a directive, he might classify his actions as superseding the order. Clinton issued Executive Order 13033, on 27 December 1996, to supersede both Executive Order 12984, which was issued in 1995, and Executive Order 12990, which was created in 1996. Executive Order 13033 was a routine directive that reformed the language in Executive Orders 12984 and 12990 in order to make incremental changes in the pay scales of federal employees (Clinton December 1996). In this case, Clinton could have stated in Executive Order 13033 that he was either superseding or amending two executive orders. The Department of Justice, which oversees the drafting of executive orders, might have recommended that Clinton supersede rather than amend when recording his actions, because the new order made significant changes to the original directives. Amending Executive Orders

Presidents have issued executive orders to completely or partially amend existing orders. The theoretical reasons for altering orders range from routine matters, such as reforming outdated provisions within an order, to making fundamental policy changes that ultimately transform the original intent of an order. In terms of content analysis, executive orders that are completely and partially amended can be combined into a single category of “amended orders,” as there is no logical reason for separating the two. Any order that is amended is a directive that has been altered in some manner, but it continues to have legal authority. Furthermore, there are executive orders that do not always clarify whether the president was completely or partially amending another order.

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Analyzing Policy Change

In analyzing the president’s power to revoke, supersede, and amend executive orders, there are two issues of importance regarding the data set used here. First, it is incomplete. There are many orders for which a copy of the text is not available, because they were issued before the administration of Franklin Roosevelt, prior to which no classification system existed for executive orders. Although the text of some of the older directives can be found in James Richardson’s A Compilation of the Messages and Papers of the Presidents, published from 1897 to 1916, this resource contains a limited number of executive orders. Since 1936, presidents have also altered certain executive orders whose text was not published in the Federal Register. There are instances when presidents decide to publish only the title rather than the text of an executive order. Table 2.4 provides the number of executive orders that were revoked, superseded, and amended for which a copy of the text, to code as symbolic, routine, or policy, could not be located. The greatest difficulty occurs in locating executive orders that Franklin Roosevelt revoked, superseded, and amended between 1936 and spring 1945. As a result, we should be extremely cautious when

Table 2.4

Number of Executive Orders Revoked, Superseded, and Amended that Are Excluded from Analysis Revoked

Administration F. Roosevelt Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton Total

Superseded

Completely Partially Completely Partially 174 26 12 — 4 1 4 — — — — 221

160 4 — — 45 — 1 — — — — 210

100 9 1 1 1 2 — — — — 1 115

33 2 — 1 — — — — — — — 36

Amended 150 33 15 4 2 1 — — — 2 — 207

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making inferences about Roosevelt’s policy actions. Fortunately, we can account for most of the executive orders that presidents have altered since the Truman administration. The second issue concerns the data themselves. The data could be easily separated into several categories consisting of executive orders that were completely and partially revoked, superseded, and amended. Based on the coding procedures reported in Appendix A in this book, these types of directives can be further classified as symbolic, routine, or major policy. The problem that results from this procedure is that the yearly averages for each presidential administration would be extremely small and in some cases, the yearly averages would amount to less than one executive order per year. Theoretically, the acts of revoking, superseding, and amending executive orders share a common attribute, because they all involve efforts by the president to change existing executive order policies. In order to overcome the problem of small yearly averages, this book relies on collapsed data in which the numbers of executive orders completely and partially revoked, superseded, and amended are combined into one category called “policy change.” Presidential Risks and Payoffs

Theoretically, the president’s power to veto or change existing orders is absolute. Presidents seeking to change controversial orders risk entangling themselves in political and public relations conflicts. Members of Congress and interest groups might publicly scrutinize presidential actions, especially if presidents reform directives that their predecessors from the opposition party issued while in office. Currently there is no research that analyzes institutional or public scrutiny of the president’s executive order authority. Presidents try to avoid major policy clashes with Congress that might pose a serious threat to their agenda. Clinton’s political struggle with state governors over federalism eventually concluded. However, because this battle occurred at the beginning of his administration, Clinton might have damaged political relations with some governors beyond repair, which could have hurt him later when he pursued other ventures such as environmental policy in certain regions of the country (Daynes and Sussman 2001: 110–111).

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The political costs from revoking, superseding, and amending appear to be lower than from presidential actions to develop and change federal rules and regulations. Attempts by presidents to alter executive orders receive minimal attention by the media. As a result, the mass public is not well informed about the president’s executive order activities. In contrast, presidential efforts to establish or reform agency rules attract a wider audience, because the Administrative Procedures Act of 1946 provides opportunities for the business community, the general public, interest groups, and other entities to participate in the rulemaking process. This act requires that a notice of proposed rulemaking be published in the Federal Register to allow anyone to voice his or her concerns to an agency that issues a proposed rule (Fesler and Kettl 1991: 301). Typically, federal agencies accept written statements from the public, but there are occasions when public hearings are held to allow interested participants to express their policy views (Kerwin 1994: 65–70). The federal government provides no formal mechanism for the general public to participate in or comment on the development of executive orders. Presidents often seek the advice of their White House advisers, the Department of Justice, and various other executive departments and agencies when crafting a directive. Since there are few participants involved during the policy formulation and adoption stages, presidents have the ability to shroud some of their executive order activity in secrecy. This process limits the amount of information that is made available to the media for reporting to the mass public. Since no systematic study has analyzed this topic, it can be theorized that media reporting of executive orders is minimal across presidential administrations. The lack of media and public attention provides chief executives with windows of opportunity to reshape existing policy. We can expect that presidents are forthcoming in strategically issuing executive orders to revoke, supersede, and amend directives signed by their predecessors. However, why should we expect presidents to invest some of their scarce resources to revoke, supersede, or amend existing orders if future presidents can easily reverse these actions by signing a new executive order? The political environment often dictates whether the political benefits from reforming orders outweigh the political costs. There may be time periods when an administration desires to reverse the course of a certain policy but decides to do nothing because the political conditions might lead to conflict among

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opposition groups. The political costs are greater when a president tinkers with a controversial directive that becomes salient among the mass media and public. Presidents lack the ability to forecast the policy actions that future administrations will take in relation to their executive order record. Despite this shortcoming, presidents are more concerned about establishing a policy record while in office in order to build their political capital, than with focusing on the implementation and future fate of their directives (Light 1999: 32–33). This political capital is necessary in the short term to assist presidents when they or members of their party in Congress seek reelection, deal with a divided Congress, or encounter a decline in public approval (see Edwards and Wayne 2006: 288–289). Presidents are likely more concerned with the short-term results that they achieve from revoking, superseding, or amending executive orders than they are with reaping the long-term benefits that extend beyond their term. In addition, presidents will act strategically regarding the types of directives that they nullify or modify. The White House is more likely to issue executive orders that revoke, supersede, and amend existing directives that initiate major policy than executive orders dealing with routine matters. In addition, chief executives will be more willing to transform major policy-oriented executive orders issued by previous administrations of an opposing political party than directives issued by presidents of the same party. Presidential Efforts to Transform Existing Policy

We should expect presidents, regardless of their political party affiliation, to be ambitious in exercising their unilateral powers to shift the direction of policy. Table 2.5 provides the yearly average of symbolic, routine, and policy executive orders that were revoked, superseded, and amended by every administration from March 1936 to January 2001. Overall, Reagan modified the largest number of executive orders per year, 98.3, followed by Carter, who changed 97.8 directives. In contrast, George H. W. Bush and Clinton altered the fewest executive orders, 24.5 and 35.0 respectively There is one anomaly that influences the results presented in Table 2.5 for the Reagan administration. Scholars might perceive the

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56 Table 2.5

Executive Orders and the Modern Presidency Yearly Average of Executive Orders Revoked, Superseded, and Amended

Administration

Symbolic

Routine

Policy

Total Average Number

F. Roosevelta Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton

0.4 1.4 1.1 2.0 2.2 0.4 1.2 1.5 0.6 0.8 0.6

34.9 37.6 25.4 28.3 35.4 18.6 25.2 41.8 58.8 6.8 7.6

15.7 29.9 18.9 26.3 27.4 38.6 28.0 54.5 38.9 17.0 26.8

51.0 68.9 45.4 56.7 65.0 57.5 54.4 97.8 98.3 24.5 35.0

Note: a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

sheer number of executive orders that Reagan modified as an indication that he was exercising his executive order authority rather excessively. This does not appear to be the case. On 25 February 1986, Reagan issued Executive Order 12553, titled “Revocation of Various Executive Orders.” The purpose of this directive was to clean house in the executive branch by revoking many orders that were obsolete or no longer needed to fulfill policy or administrative responsibilities in the federal government. For example, Reagan revoked a number of orders issued by his predecessors that had established emergency boards to solve labor disputes that arose between unions and various industries (i.e., railroad and airline). These directives typically include a thirty-day expiration date after presidents sign them that requires the emergency boards to complete their work and submit a report of their findings to the chief executive. Therefore, Reagan eliminated many orders whose responsibilities had already expired during previous administrations, even though these directives were still classified as law (Reagan February 1986: 7237–7243). Executive Order 12553 eliminated a total of 386 orders. Six of those orders are not included in the calculations for Table 2.5, as a copy of their text, to classify them as symbolic, routine, or policy,

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could not be obtained. In sum, Reagan accomplished approximately 48 percent of his total executive order modifications through a single executive order. Table 2.5 does not demonstrate that a clear and stable trend has developed since Franklin Roosevelt regarding the yearly average of executive orders changed by each administration. Presidents generally changed between 15 and 39 major policy directives each year. Carter led all presidents since 1936 by modifying the largest number of policy executive orders (54.5) per year, while Roosevelt changed the least number of policy directives (15.7). A partial trend emerges when we compare the yearly average of routine and policy executive orders that each president changed while in office. Presidents serving from 1936 through the end of the Lyndon Johnson presidency in 1969 changed more routine than policy executive orders. Kennedy is the only president during this time period who changed approximately the same number of routine (28.3) and policy (26.3) directives per year. However, beginning with Nixon, chief executives began to devote greater attention to changing more policy than routine orders. Reagan is the only president since 1969 to change more routine (58.8) than policy (38.9) executive orders each year. Although the difference between the average number of routine and policy orders that were transformed during the Ford administration is relatively small, the remaining administrations since Nixon were more ambitious in changing policy directives. For example, Nixon modified only 18.6 routine orders each year, while he transformed 38.6 policy directives. The George H. W. Bush and Clinton administrations devoted the least amount of effort to changing routine orders, fewer than any previous administration since 1936. Bush modified 6.8 routine executive orders each year, while he altered 17.0 policy directives. Overall, two-thirds of all the executive orders that Bush changed were significant policies. Clinton only changed 7.6 routine directives, while he modified 26.8 policy directives every year. In essence, three-fourths of all the executive orders that were modified during the Clinton presidency were policy directives. The Influence of Party Politics

The primary limitation of Table 2.5 is that it does not control for the effects of party politics. Furthermore, this information does not

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account for the fact that presidents often revoke, supersede, and amend executive orders that they themselves issued earlier in their administrations. This element can prevent us from making adequate conclusions about presidential policy strategies. To fully understand the president’s power to alter directives, we must control for these two elements. Thus the next analysis excludes those executive orders that presidents issued but decided later in their administration to either nullify or alter themselves, nor will it address presidential attempts to reform symbolic orders, because chief executives rarely devote their attention to reforming this type of directive. Table 2.6 presents the yearly average of those routine and policy executive orders revoked, superseded, and amended that a president’s predecessors of the same and opposing parties issued during their term in office. Overall, presidents modified 9.5 policy and 11.2 routine executive orders each year that were issued by previous administrations of an opposing party. In contrast, chief executives altered approximately 5.7 policy and 8.1 routine directives that were issued by their predecessors of the same political party.

Table 2.6

Yearly Average of Executive Orders Revoked, Superseded, and Amended that Were Issued by Predecessors of the Same and Opposing Party as the President Routine

Policy

Administration

Same

Opposition

Same

Opposition

F. Roosevelta Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton Total Average

0.2 17.0 — 9.7 15.0 2.9 14.0 12.0 19.0 4.3 2.0 8.1

3.9 0.4 12.3 14.3 13.2 11.6 6.8 25.0 34.4 1.8 2.9 11.2

— 13.5 — 10.3 10.4 2.0 10.4 9.8 5.3 7.0 4.1 5.7

— 0.1 12.5 12.3 4.6 21.1 2.8 24.5 18.1 3.5 9.3 9.5

Note: a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

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Apart from the total averages, there is no dramatic pattern that exists based on the political party affiliation of presidents. However, six of the eleven administrations modified more policy orders issued by presidents of an opposing party than those policy orders issued by previous administrations of the same party. Eisenhower is the only president to forego changing any existing policies developed by Republican presidents. Instead, he devoted his entire attention to modifying 12.3 routine and 12.5 policy executive orders established by Democrats. Nixon, Carter, Reagan, and Clinton were the most aggressive in changing policy orders that their predecessors of opposing parties originally signed into law. The most active president was Nixon, who changed 21.1 Democratic policy directives each year, while he only modified 2.0 Republican policy orders. In contrast, Franklin Roosevelt did not change any policy executive orders. Table 2.6 demonstrates that presidents have not drastically expanded their executive order authority across time regarding their efforts to change policy directives issued by an opposing party. The yearly averages reported in the last column of Table 2.6 fluctuate between 0 and 25. Carter modified the most policy orders (24.5) that the opposing party issued, followed by Nixon (21.1) and Reagan (18.1). Franklin Roosevelt (0.0), Truman (0.1), and Ford (2.8) were the least-active presidents in changing policy directives established by an opposing political party. A surprising finding emerges based on the data presented in Table 2.6. It might be assumed that both Democratic and Republican presidents alike will be strategic in their attempts to change the policy directions of their predecessors. However, if we further analyze the differences between presidents of the two parties, we find that Republicans are more active in changing Democratic policies than are Democrats in modifying Republican executive orders, as shown in Table 2.7. The key finding in Table 2.7 is that Republicans modified approximately twice as many policy orders each year that the opposition party issued than did Democratic presidents, 13.6 compared to 6.3. Furthermore, Republicans also changed almost three times more Democratic policy executive orders each year than Republican policy directives. In contrast, there is no significant difference between the number of Republican and Democratic policy orders that Democrats changed while in office.

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60 Table 2.7

Executive Orders and the Modern Presidency Yearly Average of Executive Orders Revoked, Superseded, and Amended by Republican and Democratic Presidents that Were Issued by Predecessors of the Same and Opposing Parties Routine

Administration Democrats Republicans

Policy

Same

Opposition

Same

Opposition

8.3 7.9

7.3 16.5

7.1 3.8

6.3 13.6

Table 2.7 should be regarded as preliminary evidence that Republican presidents are more aggressive than Democrats in changing White House policies enacted by their predecessors of an opposing party. Since only a limited data set for the Franklin Roosevelt administration is available, a definitive conclusion about the role of party politics regarding executive order politics cannot be made. However, Table 2.6 demonstrates that, based on the available data, Roosevelt made no efforts to change significant policy orders established by Republicans. Therefore, there is some justification for making the conclusion that Republicans appear to be more strategic regarding the types of executive orders that they change once they are in office. Conclusion

The number of major policy executive orders issued each year has not increased since 1936. However, presidents have gradually shifted from creating routine directives to producing orders that initiate major policies. Presidents issue symbolic orders rather sparingly, because they provide them with minimal policy benefits. The role of party politics is also an important variable to consider when studying executive orders. The analysis in this chapter indicates that Democratic administrations issue more policy orders each year than do Republican administrations. This activity on the part of Democrats is consistent with the anecdotal information that academics, policymakers, and party officials generate in their informal discussions about party politics. These individuals frequently claim that

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Democrats issue directives in a larger number of policy areas than do Republicans because their party represents a more diversified constituency. Not only does a president’s executive order power include the ability to establish new orders to shift the direction of policy, but this authority also allows chief executives to fundamentally transform policy contained in existing directives. The president’s power to revoke, supersede, and amend executive orders has managed to escape the research agendas of presidential scholars. This is unfortunate, because if we are to understand the unique characteristics of executive orders and apply sophisticated tools to analyze them, scholars must realize that there is a degree of interdependency that exists among executive orders. That is, the fate of every directive is dependent on the future policy actions of the president. Presidents are active in changing the policy directions that previous administrations established through executive orders. However, the analysis in this chapter suggests that the scope of the president’s power to make such modifications has not significantly grown since 1936 to the degree that the executive branch has overstepped its authority in the policymaking process. Although most presidents since Nixon modified more policy than routine directives, there is no definitive trend to indicate that presidents as a whole have exercised their power in an excessive manner that should cause constitutional or congressional scholars to become immediately alarmed about executive authority. Carter used executive orders a bit more aggressively than other chief executives to influence executive branch policy. There is no literature to suggest theoretically why presidents since 1936 have not significantly expanded their administrative powers to revoke, supersede, and amend executive orders. The policymaking environment might be an important element that shapes and restrains the president’s policy behavior. The president’s actions to change policy mean that some or all of the components of a particular policy are terminated or modified within an executive order. The act of changing policy can generate significant problems for presidents, especially when they decide to terminate existing policy, because the complex structure of the US political system is better suited for incremental policymaking rather than policy termination (Anderson 2006: 125–126; Hayes 1992; Lindblom 1959: 82). Policymakers seeking to end policies encounter significant political roadblocks that can con-

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sume the time and resources they need for pursuing a variety of other items on their policy agendas. There is a major factor that limits policy termination, according to Mark Daniels: The American political system is characterized by multiple access points to government. Affected interest groups can gain access to government decision-making processes through legislative hearings, the enactment of legislative bills, the executive branch, the bureaucratic apparatus of government, the courts, and even through the media. These multiple points of access provide many opportunities for organized groups to oppose changes in specific government programs. Thus, American politics usually results in small or incremental changes in public policy. (1997: 72–73)

The presidential political capital that is necessary for accomplishing policy results is extremely limited within the uncertain political environment (see Light 1999: 33). As a result, chief executives might lack the necessary resources and political support to mount an effective campaign against those who oppose presidential actions that revoke and supersede policy orders. This is not to suggest that the act of amending orders does not invite conflict. However, it might be easier for presidents to build support, reach compromises, and minimize political opposition over policy actions that involve incremental changes in existing policy rather than the termination of policy. As a result, presidents might be forced to limit the amount of executive orders that they issue to completely end policies. Instead, they might direct more of their attention to merely modifying portions of existing policies.

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3 The Policymaking Environment

E

xecutive orders allow presidents to strategically pursue a variety of policy domains, especially when the White House is unsuccessful in achieving policy results in Congress. President Clinton encountered growing resistance from lawmakers following the 1994 midterm election when pushing his policy ideas through a Republican Congress. This resistance increased further when the Clinton presidency struggled with the political fallout from the Monica Lewinsky scandal (Berman 2001: 103–104). Although Clinton’s agenda suffered as a result of changes in the political environment, his ability to influence policymaking was not completely paralyzed. The Clinton White House understood that unilateral powers provided the chief executive with a policy safety net to cope with challenges that arise in the political environment. Clinton adviser Paul Begala gave the impression to the media in 1995 that the president was fully prepared to rely more on administrative tools to achieve his agenda during turbulent times, by stating “stroke of the pen . . . law of the land. Kind of cool” (Bennet 1998: 10). A key question worth exploring is whether presidents strategically use executive orders to influence policymaking within a complex political environment. I begin by exploring some of the key elements in the political environment that might influence the president’s executive order activity, such as the impact of divided government, major White House scandals, and the importance of national elections. I then analyze whether presidents have used executive orders to achieve results in certain policy domains. My goal is to provide further clues for determining whether presidents have 63

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been exploiting their executive order power to directly influence public policy. Divided Government

The president’s decision to exercise his unilateral powers is partially dependent on Congress. Party composition in the legislative branch is a key element that frequently influences the policy behavior of the White House. A common view held by scholars and Washingtonians is that when the opposing party controls either one or both houses of Congress, chief executives will encounter resistance from lawmakers regarding their policy agenda. As a result, the likelihood is that the White House and Congress will approach a state of political stalemate over major policies (Cutler 1988: 490; Jones 1994: 287–289; Ripley 1983: 355; Ripley 1969: 168). Recent studies on the presidency have claimed that we should expect divided government to impact the number of executive orders that a president issues during his tenure (Mayer 1999: 460–461; Mayer 2001: 99–100). The failure of presidential policies to obtain congressional attention during periods of divided government does not mean that the president’s policymaking authority has reached its limits. The White House can circumvent the lawmaking process in Congress by using unilateral tools to shape public policy. The political costs associated with using these tools are high. Therefore, presidents must use caution when relying on their unilateral powers to cope with divided government. It may be expected that presidents are unlikely to issue major policy orders excessively when the opposing party controls Congress. Although presidents want to build a policy record, it is also in their best interest to avoid entangling the executive branch in a major separation of powers battle with Congress over lawmaking responsibilities. However, it is likely that chief executives will slightly increase the number of policy executive orders during divided government. This approach allows the White House to salvage part of its policy agenda during divided government without aggressively overstepping Congress’s constitutional authority to make laws. Table 3.1 controls for the influence of divided government in order to determine whether party control of Congress has any impact on the number of major policy orders that presidents issue during

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Yearly Average of Executive Orders During Divided and Unified Government

Party Control Divided Unified

Symbolic

Routine

Policy

Total Average Number

2.0 2.6

26.4 74.9

25.8 36.9

54.2 114.5

their administration. The results do not support this hypothesis. Presidents issue a larger number of policy executive orders during unified government. Chief executives issued 36.9 major policy orders each year during periods of unified government, while they signed 25.8 per year when the White House and Congress were controlled by opposing parties. On average, the White House issues 11.1 more policy orders each year during unified rather than divided government. Most of the literature analyzing executive orders has found evidence that challenges the conventional wisdom that presidents are more aggressive in using their executive order power during divided government (Krause and Cohen 1997: 470; Howell 2000: 118; Mayer 1999: 460–462). George Krause and David Cohen (1997) found that between 1953 and 1994, presidential success in Congress directly impacted whether chief executives were more inclined to issue orders (see also Gleiber and Shull 1992). Ironically, the statistical results led to the conclusion that presidents issue more orders when they are successful in achieving their policy goals in Congress (Krause and Cohen 1997: 470). Kenneth Mayer found evidence to corroborate the conclusion reached by Krause and Cohen that presidents do not necessarily issue more executive orders when their policy support in Congress dwindles. Instead, the evidence suggests that executive orders increase when a president’s political party controls Congress (Mayer 1999: 460–462). William Howell is the first scholar to theorize that the number of significant executive orders will increase when the president’s own party controls Congress. During divided government, the probability is that presidents will encounter greater congressional resistance for their policy proposals. This resistance could also be directed against attempts by chief executives to invoke their unilateral policy tools to

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circumvent Congress. The president has a better chance of using his executive order authority during unified government, when the party in control of Congress is more willing to give the chief executive greater autonomy to exercise his unilateral powers (2000: 85–87). Table 3.1 further corroborates the findings of contemporary studies regarding the relationship between the president’s executive order activity and divided versus unified government (Howell 2000: 118; Mayer 2001: 99–102). The results also show that presidents sign a larger number of routine orders during unified government. Presidents issued 74.9 routine orders each year during unified government, while they created 26.4 when there was divided government. There is no significance between the number of symbolic orders that are issued during divided compared to unified government. The information in Table 3.1 limits our ability to reach conclusions about the influence of divided government on the number of policy executive orders that presidents issue while in office. Table 3.2 accounts for party control of the White House in order to determine whether there are differences in executive order activity between Democrats and Republicans during unified and divided government. There is one issue related to the data that limits the statistical power of the results presented in the table: Republican presidents only encountered two years of unified government, an event that occurred between 1953 and 1955, during the Eisenhower administration, when the eighty-third Congress was in session. Democratic presidents

Table 3.2

Yearly Average of Executive Orders During Divided and Unified Government While Accounting for Party Control of the White House

Administration Unified Democrats Republicans Divided Democrats Republicans

Routine

Policy

Total Average Number

76.5 53.0

38.2 18.5

114.7 71.5

25.4 26.8

30.1 24.4

55.5 51.2

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experienced twenty-nine years of unified government and eight years of divided government between 1936 and 2001. Republican administrations encountered congressional gridlock for twenty-six years (Thurber 2002: 11). Table 3.2 indicates that during unified government, Democratic administrations issued 8.1 more policy executive orders than during divided government—38.2 policy directives each year under a unified Congress compared to 30.1 when there was a divided government. In contrast, Republican presidents issued 18.5 policy directives during unified government and 24.4 when the Democrats controlled Congress. This result demonstrates that Republican presidents issue 5.9 additional policy orders each year when there is divided government. We can only make limited conclusions about the impact of unified and divided government during Republican presidencies. There might have been other contextual variables apart from a unified Congress that caused President Eisenhower to issue a small number of policy executive orders between 1953 and 1955. As demonstrated in Table 2.2, Eisenhower issued the fewest policy executive orders (13.8) per year than any other administration from 1936 to 2001. Therefore, even before considering the role of divided government, Eisenhower was the least-active president in using his executive order authority to pursue policy. Presidential Scandals

Revelations about scandalous activity abound in Washington politics. The White House is not immune from the political consequences that can emanate from a presidential scandal. The term scandal is a broad concept that can encompass a wide degree of inappropriate activity. However, major scandals can interfere with the chief executive’s ability to pursue his policy agenda in Congress. President Nixon soon learned that many of his legislative initiatives, such as his national health care proposal, were proceeding nowhere once congressional investigations into the Watergate scandal began during his second term in office (Hoff 1994: 137–138; Light 1999: 39). Although President Clinton continued to enjoy high approval ratings along with a period of economic growth during his presidency, the Monica Lewinsky scandal began to take a toll on his policy agenda when the

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House of Representatives began impeachment hearings in 1998. The combination of divided government and the controversy surrounding Clinton’s scandalous behavior significantly diminished the president’s ability to pursue major policy initiatives during the remainder of his term in office (Thurber 2002: 40–41). Theoretically, we should expect that the president’s legislative agenda in Congress would come to a halt when his administration is forced to deal with the political fallout from a major scandal. We should not assume that White House policymaking would necessarily diminish to the point that the president is unable to further develop his policy record. There is no doubt that the president’s policymaking activity will be reduced, because his administration must shift some resources and time to cope with the public relations problems that occur from a scandal. However, presidents still have unilateral tools at their disposal to pursue a portion of their policy goals. During periods of political scandals or investigations that result in a slowdown of the legislative process in Congress, there should not be a dramatic decline in the number of executive orders initiating major policy. This proposition is a bit difficult to systematically analyze, for several reasons. A major problem concerns the difficulty that scholars encounter when defining the term scandal. Every administration since that of Franklin Roosevelt has dealt with political charges made by others, such as the media, the mass public, or politicians, claiming that a degree of impropriety occurred within an administration. In order to test the hypothesis, the best two cases that have occurred within the presidency—the Watergate scandal during the Nixon administration and the Clinton impeachment episode—are analyzed here. Although analyzing only two events prevents us from making sweeping generalizations about the impact of scandals on executive order activity, very few presidential scandals have truly gripped the nation’s attention for a sustained period of time during the modern presidency. The Clinton and Nixon scandals are prime examples, as both of these chief executives encountered a stalemate when pursuing their policies in Congress after lawmakers shifted their attention to investigating the charges brought against the White House. To determine whether Presidents Nixon and Clinton changed their executive order activity during the midst of scandal, Tables 3.3 and 3.4 present the monthly average of symbolic, routine, and poli-

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cy executive orders issued each year during these two administrations. Overall, there are no major fluctuations in the number of executive orders that Nixon issued throughout his administration, generally between four and six each month. More important, based on the data presented in the policy column in Table 3.3, there is no dramatic change in the number of policy orders. The Nixon White House issued two policy orders each month in 1969, followed by three in 1970. There was a slight decline in 1971 (1.9) and 1972 (1.8). The media placed significant attention on reporting a possible scandal fol-

Table 3.3

Monthly Average of Executive Orders Issued by Richard Nixon

Year

Symbolic

1969 1970 1971 1972 1973 1974

0.3 0.3 0.4 0.3 0.2 0.0

Table 3.4

Routine 2.2 2.8 2.9 2.6 3.1 3.1

Policy 2.0 3.0 1.9 1.8 2.1 2.3

Total Average Number 4.5 6.0 5.3 4.6 5.3 5.3

Monthly Average of Executive Orders Issued by William Clinton

Year

Symbolic

1993 1994 1995 1996 1997 1998 1999 2000

— 0.2 — 0.2 — 0.1 — 0.2

Routine 1.3 1.5 1.0 1.3 0.7 0.7 0.7 0.2

Policy 3.7 2.8 2.3 2.7 2.5 2.4 2.3 3.1

Total Average Number 5.0 4.5 3.3 4.1 3.2 3.2 2.9 3.4

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lowing the arrest of five individuals who burglarized the offices used by the Democratic Party at the Watergate complex on 17 June 1972 (Bernstein and Woodward 1974: 13–15). However, there was no significant change during 1973 regarding the number of policy orders that Nixon issued, 2.1. He issued 2.3 executive orders in 1974, before he was forced to resign in August of that year. Although Nixon did not issue a larger number of executive orders to compensate for Congress’s lack of interest in his policies beginning in 1972, Watergate did not seriously impair his executive order activity. Table 3.4 shows that President Clinton’s executive order activity did not significantly change when Congress dealt with the issue of impeachment and conviction during 1998 and 1999. The number of executive orders that Clinton issued in January 2001 has been excluded from Table 3.4 because this was the only month in 2001 that Clinton served as president. The Clinton White House issued between two and five executive orders per month during his term, with the number of policy executive orders ranging between two and three. Although the number of routine directives declined after 1993, there was no significant change in the number of policy directives throughout Clinton’s term. For example, during 1998 and 1999, when the Monica Lewinksy scandal was the centerpiece of Washington politics, Clinton did not reduce the number of policy orders that he issued each month: 2.4 in 1998 and 2.3 in 1999. Clinton’s efforts to influence policy were not deterred even when the House and Senate were highly involved in handling the scandal. For example, Clinton issued four executive orders between 19 December 1998, when the House of Representatives voted on impeachment, and 12 February 1999, when the Senate voted on whether to remove the president from office (see the website of the US National Archives and Records Administration, http://www. archives.gov), three of which were significant policies. Tables 3.3 and 3.4 demonstrate that Nixon and Clinton did not reduce the number of policy executive orders that they issued when Congress was investigating a major presidential scandal. This conclusion is important because it indicates that presidents can continue to make public policy during scandals, while Congress’s ability to pass major legislation becomes threatened when lawmakers and committees are forced to investigate charges of wrongdoing levied against the executive branch. Congress does not have access to the types of unilateral policy tools that presidents possess, that can pro-

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vide legislators with an alternative avenue for pursuing their policy goals. The President’s Tenure in Office

The president’s tenure is extremely short in comparison to the typical member of Congress, who does not have to face the realities of term limits. Scholars have explained that the first few months of any administration are the most crucial to presidents in pursuing their policy agenda, especially if they hope to achieve policy success in Congress (LeLoup and Shull 1999: 24; Pfiffner 1996). The influence of time can be important when presidents consider how to strategically use their executive order authority. Last Year in Office

Traditionally, presidents have a better chance securing policy in Congress during their first year in office rather than the last, during the latter of which the president is either entering the final phases of his lame duck period or is confronting the uncertainties of reelection (Pfiffner 1996). As a result, presidents might not fully exploit their executive order authority during their first year in office in order to maintain some degree of cooperation with Congress over the policy process. The president’s last year in office does not mean that his power has diminished to the point that he can no longer significantly influence the policy process. Executive orders allow chief executives to further build their policy record to help their party during an upcoming election or to enhance their own policy legacy. The White House might also use executive orders during the last year to pursue some of those policies that the president failed to convince Congress to adopt into law. Table 3.5 compares the yearly average of symbolic, routine, and policy executive orders that presidents issued during their last year in office with those directives that they signed during the previous years. This table does not include data for the Franklin Roosevelt, John Kennedy, and Richard Nixon administrations because each of these presidencies ended abruptly due to the occupant’s death or resignation. It demonstrates that chief executives issued 32.5 policy executive orders in their last year, while they issued 27.3 directives

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during each previous year. Presidents also signed a few more routine and symbolic executive orders during their last year in office than during other years. We should expect that every administration, whether Democratic or Republican, would be proactive in using executive orders to pursue the remainder of their policy agenda in their last year in office. However, when we control for the effects of party, as presented in Table 3.6, an important finding emerges that suggests a difference between Republican and Democratic presidents. Data for symbolic orders are excluded from the table because the number of these executive orders is extremely small. Table 3.6 shows mixed results when we account for party control of the White House. Democrats issued more policy orders (41.3) during their last year in office than during previous years (31.9). There are no major differences when we analyze the results for Republican

Table 3.5

Yearly Average of Executive Orders Issued During an Administration’s Last and Previous Years in Office

Year in Office

Symbolic

Routine

Policy

Total Average Number

Last year Previous years

3.4 1.9

33.1 31.7

32.5 27.3

69.0 60.9

Table 3.6

Yearly Average of Executive Orders During an Administration’s Last and Previous Years in Office While Accounting for Party Control of the White House Democrats

Policy Routine

Republicans

Last Year

Previous Years

Last Year

Previous Years

41.3 38.5

31.9 36.8

23.8 27.8

22.2 25.9

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administrations. Republicans slightly increased the number of policy executive orders during their last year (23.8) as opposed to other years in office (22.2). The lesson that we can derive from Table 3.6 is that scholars should not discount the role of party when analyzing executive orders. National Elections

Executive orders provide presidents with a unique opportunity to further build public support for their party and administration during an election year. This tool not only allows presidents to build a policy record in a short time to increase support among the electorate, but also gives voters the perception that a president is active in the policy process. This latter issue could be extremely useful during election years when there is divided government. Furthermore, presidents who persistently use their unilateral powers during election years might fare better with the public than with a Congress that spends considerable energy criticizing the excessive amount of executive orders. Presidents challenged by a Congress can simply remind voters that their administrations are interested in pursuing the public’s policy interests. This tactic might be more successful in years when Congress fails to establish a major policy record. Presidents can use this lack of a record to remind voters that there exists a “do nothing” Congress, in order to increase support for their administration. Presidents will likely value their executive order authority during national elections and the number of policy directives will likely increase during this time as opposed to nonelection years. Policy orders can provide presidents with an additional electoral benefit. Although some scholars traditionally think that presidents use executive orders to instruct bureaucrats regarding how to implement public policy, others have explained that certain orders indirectly target specific groups of individuals in society (Mayer 2001: 58; Morgan 1970: 82). For example, when President Truman issued Executive Order 9981, on 26 July 1948, to desegregate the armed forces, the direct target of this directive was the military. Truman also realized that his policy actions indirectly impacted the African American community. His executive order might have created the illusion among the mass public that the administration was partially committed to promoting better civil rights conditions for minorities. More important, Truman issued Executive Order 9981 less than two

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weeks following the Democratic national convention to repair relations with the African American community. Truman left out specific language in the order that indicated when desegregation would be achieved, in order to maintain his political support among Southern whites (Mayer 2001: 192–193; Morgan 1970: 20–21). It may also be assumed that presidents are more interested during election years in pursuing major policy executive orders that indirectly benefit specific populations in society. This strategy allows presidents to increase their electoral support among certain groups that either lead to their reelection or will benefit their party. In addition, during presidential and congressional midterm election years, compared to nonelection years, chief executives will issue more policy executive orders targeting specific interests in society that have traditionally supported their party. Table 3.7 presents the yearly average of symbolic, routine, and policy executive orders that presidents issued during national election and nonelection years between 1936 and 2001. Overall, chief executives issued more policy directives during nonelection (34.0) than during presidential (24.5) and midterm (32.4) election years. In fact, presidents issued the least number of major policy executive orders during presidential election years. A possible reason why chief executives are more restrained in using executive orders during election years is to prevent opponents from claiming that they are aggressively using and perhaps abusing the powers of their office to ensure that their party maintains control of the White House. Claims such as these can attract media and public attention that might detract from the president’s ability to campaign.

Table 3.7

Yearly Average of Executive Orders During Election and Nonelection Years

Symbolic Presidential elections Midterm elections Nonelection years

2.2 2.1 2.5

Routine

Policy

Total Average Number

48.0 52.8 48.8

24.5 32.4 34.0

74.6 87.3 85.2

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Table 3.8 presents the yearly average of routine and policy executive orders that Democratic and Republican presidents issued during national election and nonelection years that targeted specific groups in society. There are several findings in this table that are important to the study of executive orders. Overall, Democrats issued more targeted policy orders during nonelection than during presidential or midterm election years: 14.1 policy directives each year when there were no national elections compared to 11.9 policy executive orders during a presidential election year and 11.4 during a midterm election year. In contrast, Republican administrations issued 7.3 targeted policy directives during midterm election years, followed by 6.9 during nonelection years and 5.7 during presidential election years. The literature has remained relatively silent on assessing the influence of elections on the president’s executive order behavior. Mayer found that presidents issue a greater number of executive orders in those years when they are seeking reelection. However, he noted that his statistical results did not demonstrate that this relationship was significant (2001: 96–97). Although their study did not exclusively focus on executive orders, Lyn Ragsdale and Jerrold Rusk provided evidence that presidential and congressional midterm elections influenced the number of executive orders issued by chief executives. Their analysis suggested that there was no relationship between the timing of elections and presidential decisions to issue orders. That is, presidents do not necessarily create more orders at the end of their term to increase their

Table 3.8

Yearly Average of Executive Orders Targeting Specific Groups During Election and Nonelection Years

Democrats Presidential elections Midterm elections Nonelection years Republicans Presidential elections Midterm elections Nonelection years

Routine

Policy

9.9 10.8 8.8

11.9 11.4 14.1

5.3 4.6 4.0

5.7 7.3 6.9

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probability for reelection. However, Ragsdale and Rusk did find statistical evidence that there is a correlation between the results of presidential and congressional elections and executive orders: “for every 2 percentage points gained in their victory at the polls, presidents are inclined to issue one less executive order. . . . Ten congressional seats held by the president’s party translate into one more policy executive order” (1999: 112). We develop a clearer understanding about how executive orders are used during elections by differentiating between symbolic, routine, and major policy orders. The analysis shows that presidents pursue fewer policy executive orders during national election years than during nonelection years. Presidents also do not dramatically rely on policy executive orders as a vehicle for obtaining political support from key segments of the population during national elections. Policy Domains

Presidents might find it advantageous to use executive orders to bypass Congress on certain policy issues. There are policy domains that are more important to chief executives because they provide political benefits, such as public support, that might be valuable to an administration during an election year. Some policy issues, including military and war policy, are very controversial and can shape relations between the president and Congress. Presidents might rely on executive orders to deal with these policy concerns in order to avoid a direct clash with Congress. Military and War Policy

A core policy domain that the president and Congress have struggled over since the creation of the Constitution is war policy (Westerfield 1996: 13). This debate was seriously revisited by policymakers during the Vietnam era when Congress passed the War Powers Resolution in 1973. Presidents have claimed that the commander-inchief clause contained in Article II of the Constitution grants them appropriate authority to engage in military campaigns. Although Congress has tried to curb the president’s war powers, many chief executives have argued that the War Powers Resolution is unconstitutional. As a result, presidents continue to take a proactive role in mili-

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tary and war policy and they have exploited the legal loopholes that exist in the War Powers Resolution (Fisher 2004: 267–277; Fisher 1998: 201, Fisher 2000: 67; Pious 1996: 459–460). Executive orders allow the president to deal with issues of war and military policy without directly confronting members of Congress. The problem is that executive orders focused on these policy areas create a double-edged sword for an administration. Presidents might find that executive orders avoid entangling their administration in a short-term legislative battle with Congress over war policy. However, a chief executive that issues a series of executive orders related to this subject risks the possibility of damaging political relations between the White House and Congress that may affect other parts of his agenda in the future. It may be expected that presidents will not aggressively use executive orders to handle military and war policy. However, in order to avoid direct confrontations with Congress over war powers, it may also be expected that presidents since the passage of the War Powers Resolution will have relied more often on executive orders to deploy troops and wage war compared to presidents serving before this act. Based on content analysis, presidents rarely use executive orders to directly develop war policies. Scholars have suggested that presidents use these tools to indirectly influence military policy within both domestic and international affairs (Westerfield 1996: 126–127). For example, prior to the first Gulf war, President George H. W. Bush issued two executive orders in August 1990 to ban all financial dealings between the United States and Iraq. The purpose of this order was to place sanctions on Iraq for invading Kuwait and to cut off any money supplies that might be used by Saddam Hussein to further strengthen his military in the Middle East (Bush 1991: 1095–1096). These executive orders indirectly influenced the president’s war agenda, because they did not directly impact a military exercise nor did their provisions apply to specific units within the armed forces. The focus here is on executive orders that directly shaped a president’s military campaign or orders that were used by an administration to exert greater control over the affairs of the armed services. Presidents are aware that a window of opportunity may emerge when there is a state of emergency requiring troop deployments. These emergencies might convince the White House that there is a justification for issuing executive orders to directly deal with policy issues that involve a military response. Table 3.9 provides a list of the

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military and war executive orders presidents have issued while in office. This table does not provide an exclusive list of executive orders related to war policy, but it encompasses the common actions that presidents have taken in this policy area with their unilateral powers. For example, presidents use executive orders to call military units to active duty. President Bush issued Executive Order 12727, on 22 August 1990, to deal with the Gulf crisis. This executive order “authorized the Secretary of Defense to call Reserve units of the Armed Forces to active duty. The order permits the Secretary of Defense to call to duty selected members and units of the Reserve components of the Army, Navy, Air Force, and Marine Corps as needed to support United States and multinational operations now underway” (Bush 1991: 1156–1157). Table 3.10 provides the total number of routine and major policy executive orders that deal with military and war policy for each administration from 1936 to 2001. The average number of directives that presidents issued each year is not included in the table because these types of executive orders are rare and, in most instances, presidents issued less than one per year related to this policy domain. The purpose of Table 3.10 is to provide background information that pinpoints the level of attention each president placed on war policy. George H. W. Bush and Lyndon Johnson were the most active in using executive orders for military purposes. These two administrations each issued approximately 1.8 war directives each year. In contrast, Reagan, Carter, and Eisenhower were the least active in pursuing policy directives for military purposes.

Table 3.9

Common Types of Executive Orders Addressing Military and War Policy

Calling military units to active duty Delegating authority to secretary of war or attorney general related to military matters Determining combat zones in other countries Draft evaders/clemency boards Extending length (i.e., time) of enlistments Increasing enlistment size because of a national emergency Prisoner of war issues/troop loyalty Reorganizing branches of the military Terminating combat activities

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Total Number of Executive Orders Regarding Military and War Policy

Administration

Routine

Policy

Total Number

F. Roosevelta Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton

— — 2 2 2 1 — — — — —

16 5 3 3 7 1 2 1 1 7 5

16 5 5 5 9 2 2 1 1 7 5

Note: a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

Table 3.11 provides the total number of routine and policy orders dealing with military and war policy before and after the War Powers Act of 1973, and also accounts for party control of the White House. Presidents issued a total of forty-two executive orders addressing war between 1936 and 1973. This number translates into approximately 1.1 directives per year. Thirty-five of these executive orders were major policies, while only seven were routine. In contrast, chief executives issued sixteen policy executive orders following the passage of the War Powers Resolution. Table 3.11 shows that there are differences between Democrats and Republicans. Democratic administrations issued thirty-one policy executive orders related to military and war policy before 1974, but they only signed six after Congress enacted the War Powers Act. Republicans issued ten policy orders between 1974 and the end of the George H. W. Bush administration, while they enacted only four before 1974. Therefore, Table 3.11 demonstrates that only the Republicans used policy executive orders more often for military and war purposes after Congress formally curbed the president’s war powers in 1973. We should be cautious about the types of generalizations we reach based on the information in Table 3.11, because the number of

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Page 80

Executive Orders and the Modern Presidency Total Number of Executive Orders Regarding Military and War Policy While Accounting for Party Control of the White House Democrats

Policy Routine

Republicans

1936–1973

1974–2001

31 4

6 —

1936–1973 4 3

1974–2001 10 —

military and war executive orders is quite small. Furthermore, the Democrats controlled the White House for twenty-five years between 1936 and 1973, while they controlled the executive branch for twelve years between 1974 and 2001. This phenomenon might partially explain why Democrats issued a larger number of policy directives before 1974. A second explanation is the impact of World War II. For example, Democrats issued thirty-one military executive orders before 1974. Franklin Roosevelt signed sixteen of these policy statements between 1939 and 1942. Despite the small numbers of executive orders found in Table 3.11, a significant point to be made is that executive orders provide presidents with alternative avenues for circumventing Congress regarding war and military policy. Despite the effort of lawmakers to curb the president’s power with the passage of the War Powers Resolution in 1973, every president since Nixon has viewed this act as encroaching too far on his authority to act as commander in chief (Fisher 2004: 154; Spitzer 1993: 175). The finding that presidents have not aggressively expanded their executive order power to promote a military agenda should be reassuring to members of Congress who continue to criticize the White House in this regard. However, it cannot be definitively concluded that presidents have been restrained in using military powers, because they have other options apart from executive orders to accomplish their policy agenda, such as national security directives or executive agreements. National security directives are ideal for presidents seeking to avoid or delay a major separation of powers struggle with Congress over war, because the executive branch considers these directives to be classified information (Cooper 1997:

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545). Although we do not know the actual reasons why presidents rarely use executive orders to address military and war policy, the important finding is that presidents do not actively use executive orders to circumvent Congress in this policy domain. Administrative Reforms

Executive orders cannot be used by presidents to make sweeping organizational changes, because major reorganizations in the executive branch require Congress to approve the allocation of funds. However, presidents can use executive orders to manipulate the organizational structure in an effort to centralize policy control over the executive branch. For example, Clinton issued Executive Order 12835, on 25 January 1993, to create the National Economic Council. The purpose of this directive was to better centralize economic policy (both foreign and domestic issues) under the direction of Clinton appointees (Patterson 2000: 90–91). There is no doubt that presidents occasionally must use executive orders to accomplish routine administrative tasks, such as updating the pay scales of federal personnel employees to account for increases in the cost of living. For the most part, politics has been a major factor influencing the administrative design and organizational structure of the executive branch since the creation of the administrative state during the Franklin Roosevelt presidency (Pemberton 1979: 176–177; Radin and Hawley 1988: 5). It may be expected that presidents since Franklin Roosevelt have increasingly used executive orders to reform administrative and personnel structures within the executive branch to centralize White House control over policy. Presidents have used executive orders to pursue a variety of administrative reforms. For example, they have issued directives to shape federal personnel policies, create presidential boards and commissions to study public policy problems, extend the tenure of executive branch committees, reorganize departmental units, and shift policy responsibilities from one department or official to another (see also Cooper 2002: 28–33). The term administrative reform can be misleading, since it suggests that changes are routine and managerial. However, presidents can issue administrative policy orders to strengthen their authority to control policymaking in the executive branch. Table 3.12 provides the yearly average of symbolic, routine, and

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Executive Orders and the Modern Presidency Yearly Average of Executive Orders Initiating Executive Branch Reforms

Administration

Symbolic

Routine

Policy

Total Average Number

F. Roosevelta Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton

— 0.1 — — 0.4 — — — — — 0.1

1.8 12.6 8.4 14.3 10.4 5.8 4.0 3.8 3.4 2.3 2.4

8.3 8.4 6.0 12.7 15.2 17.5 19.2 29.0 16.0 12.0 16.0

10.1 21.1 14.4 27.0 26.0 23.3 23.2 32.8 19.4 14.3 18.5

Note: a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

major policy executive orders that promote administrative reforms in the executive branch. Overall, there is no pattern regarding the total average number of executive orders devoted to administrative matters. Carter issued the most administrative orders per year (32.8), while Roosevelt issued the fewest (10.1). Another finding in Table 3.12 is that presidents since Roosevelt, with the exception of Truman, Eisenhower, and Kennedy, issued more policy than routine orders regarding administrative reform. This conclusion is important because it shows that executive orders are a vital component in a president’s administrative strategy to influence policymaking. Table 3.12 also demonstrates that Lyndon Johnson showed interest in administrative matters, because he issued more policy than routine directives each year. Richard Nathan, in his landmark study, argued that Nixon was the first president to develop a well-refined administrative strategy to pursue policy (1983: 7–8), an assertion that has not been adequately tested within an empirical framework. The evidence presented here suggests that perhaps scholars need to visit the administrative presidency phenomenon in those administrations before Richard Nixon.

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Distributive, Redistributive, and Regulatory Policy

Presidents have a vested interest in pursuing distributive and redistributive policies to increase their political support among segments within the population. According to Randall Ripley and Grace Franklin, “distributive policies and programs are aimed at promoting private activities that are argued to be desirable to society as a whole and, at least in theory, would not or could not be undertaken without government support” (1991: 17, 21). Legislation classified as distributive policy frequently provides subsidies to target populations such as farmers. Presidents are prohibited from issuing executive orders that involve the direct spending of federal funds unless Congress approves of such actions, since all spending legislation originates in the House of Representatives. However, the White House has discovered methods to reallocate certain funds earmarked for federal programs to implement executive orders (Mayer 2001: 190). Congress has not been passive in allowing presidents to sign directives that require financial backing. For example, Senator Richard Russell of Georgia added an amendment to a congressional bill in 1944 that prevented presidents from unilaterally spending federal funds to implement executive orders that created administrative departments or agencies within the executive branch (Fisher 1975: 230–231; Fisher 1998: 35). Based on content analysis, presidents avoid including language in executive orders that indicate the White House will need to use money to implement a directive. There are executive orders that resemble distributive policy, without providing the promise of financial assistance, that might benefit certain groups or regions within the country. For example, President Clinton issued Executive Order 13122, on 25 May 1999, to create the Interagency Task Force on the Economic Development of the Southwest Border. A main responsibility of this commission was to improve the economic condition of those areas in Arizona, Texas, New Mexico, and California along the Mexican border. This task force was designed to develop policy proposals and to work with local communities to bring about economic revitalization (Clinton May 1999: 29201). Executive Order 13122 is an example of a distributive policy. Chief executives also use executive orders to achieve redistributive policies that benefit minorities. These policies seek “to manipulate the allocation of wealth, property, political or civil rights, or

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some other valued item among social classes or racial groups” (Ripley and Franklin 1991: 21). As mentioned earlier in a discussion of the president’s role in war policy, President Truman issued Executive Order 9981 to end segregation in the armed forces following World War II. This executive order is an example of a redistributive policy. Presidents have also used executive orders to require industries that receive federal contracts to comply with affirmative action guidelines when hiring women or African Americans. The goal of these orders is to eliminate discrimination in the workplace (see Eisenhower August 1953: 48990). Table 3.13 provides the yearly average of symbolic, routine, and policy executive orders classified as distributive and redistributive, and also accounts for party control of the White House. The overall finding is that presidents do not frequently use executive orders to pursue distributive and redistributive policy. This is an important finding because studies about executive orders frequently mention presidential efforts to use these tools to end discrimination in the public and private sector when the government contracts out for goods and services (Mayer 2001: 183–184; Morgan 1970; Shull 1999: 120–124). Democrats issued a total of fifty-one (1.4 per year) distributive and redistributive executive orders, while Republicans signed thirteen (less than 1.0 per year). Democrats also issued more policy directives (1.3) each year than did Republicans (0.3). Although there are differences between Democrats and Republicans, the act of using executive orders to establish distributive and redistributive policy is a rare event. Therefore, we should not exaggerate the conclusions reached based on the findings in Table 3.13. Broadly speaking, all executive orders are regulatory policy,

Table 3.13

Yearly Average of Executive Orders Categorized as Distributive and Redistributive Policy

Administration Democrats Republicans

Symbolic — —

Routine 0.1 0.2

Policy 1.3 0.3

Total Average Number 1.4 0.5

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because the president uses these policy tools to command governmental officials, federal departments, or agencies to act in some manner. However, in reading the text of many directives, it becomes apparent that executive orders can be classified into a variety of policy types beyond this broad view of regulation, such as distributive, redistributive, and regulatory policies. A common definition of regulatory policy is one that “involves a governmental choice as to ‘who will be indulged and who deprived’ on the basis of some general rule” (Wilson 1995: 328). During the modern presidency, Democrats have supported increasing the federal government’s role in regulating a variety of policy issues related to the environment, consumer protection, and business and industry. Republicans advocate a smaller federal government, to be achieved by devolving more policy authority to states and local communities. Therefore, it may be anticipated that Democratic presidents tend to issue more orders establishing regulatory policy than do Republican presidents. Although presidents rarely use executive orders for distributive and redistributive policy, they are more active in pursuing regulatory policy. Table 3.14 presents the yearly average of symbolic, routine, and policy executive orders classified as regulatory policy. The results clearly demonstrate that Democrats are more active than Republicans in pursuing regulatory policy through executive orders. Democrats issued a total of 47.0 executive orders each year, while Republicans issued 15.7. Democrats also issued approximately 69 percent of all the policy orders that were issued each year related to regulatory policy—12.8 in contrast to 5.8 issued by Republicans.

Table 3.14

Yearly Average of Executive Orders Categorized as Regulatory Policy

Administration Democrats Republicans

Symbolic

Routine

Policy

Total Average Number

0.7 0.5

33.5 9.5

12.8 5.8

47.0 15.7

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Conclusion

This chapter provides mixed evidence that presidents have strategically used executive orders to influence the policy process. Presidents have been more active in exercising this power during unified government and in years when there are no national elections. The level of executive order activity in the president’s last year in office has not dramatically increased. The presence of a major scandal in an administration does not necessarily signal that a president’s ability to shape public policy has come to an end. The chapter also provides mixed evidence regarding the various policy domains that presidents focus their attention on, such as distributive, redistributive, regulatory, war, and administrative policy. Presidents act strategically when pursuing certain policy domains, such as regulatory policy, while they are less active in issues involving war and the military. Apart from the strategic behavior of the president, this chapter demonstrates that we cannot ignore the role of party when analyzing the president’s executive order authority. Scholars might easily assume that presidents, regardless of party identification, naturally exploit their executive order power once in office. This may be the case in certain instances, but there are times when the role of party is an important variable. The strategic behavior of the president is a core component for understanding executive orders, but we cannot ignore other elements within the political system that influence the president’s ability to exercise this power. Congress poses the greatest threat to the president’s executive order authority, because this tool treads on Congress’s constitutional lawmaking responsibilities. However, the White House has the ability to head off congressional assaults by developing legal strategies to justify its power to issue an executive order.

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4 Safeguarding Executive Orders

C

ontemporary scholars of public policy rarely study the politics of crafting policy statements. Instead, the research in this field emphasizes the actual outputs and outcomes associated with a policy, the political behavior of governmental and nongovernmental entities participating in the policy process, the sources and influence of policy demands that arise in the environment and require the political system to respond, and the policymaking stages characterizing US politics (Dye 1992: 23–24). There are case studies analyzing the content of public policies that provide scholars with some knowledge about how public officials strategically construct their policy statements (see, for example, Bailey 1950; Bryner 1995; Conlan, Wrightson, and Beam 1990; Light 1992). The main drawback is that case studies prevent scholars from deriving generalizations and thus from constructing a body of theory to explain the crafting strategies of policy statements. Policy statements provide scholars with a written record that is useful for studying the strategies and motivations of policymakers. Public officials not only craft statements to reflect their policy goals, but also frequently include language to safeguard their policies from future assaults. Presidents are aware that their policy actions can come under fire at any time because of the political environment in Washington. Chief executives have no guarantee that the introduction of significant executive orders during a spirit of bipartisanship in Washington politics means that these directives will always be free from criticism. These orders could encounter significant challenges in later years resulting from numerous factors, such as the election of a 87

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new administration, changes in party control of Congress, or a change in society’s concern or approach for solving a public policy issue. The anticipation of change might encourage the White House to construct the language in its policy statements so that they can withstand the attempts made by political opponents to terminate or modify them. Crafting Executive Orders

Presidents seek to maximize the life-span of their policy directives. The main obstacle for presidents is that they are not able to predict the future direction of the political environment. Presidents are keenly aware that their support from the US public can fluctuate as a result of changes within the political environment involving the national economy, foreign or domestic policy, the saliency of public policy issues, the presence of a crisis, and the influence of media reporting (Edwards, Mitchell, and Welch 1995: 121; Kernell 1978: 518; Kinder 1981: 17; Krosnick and Kinder 1990: 509–510; Lau and Sears 1981: 296). Richard Neustadt further reminds presidents and scholars that the Washingtonians are constantly assessing the chief executive’s approval ratings. The amount of political support that an administration has with members of Congress or other political officials might diminish if the public’s approval of the president begins to erode over time (1990: 73–74). Not only are presidents worried about the short-term changes in the political environment that might affect their executive orders, but they are even more concerned about long-term changes in Washington politics. As explained earlier, presidents have methods that they can use to roll back existing executive orders, such as revoking, superseding, or amending directives. Administrations that lack the political resources to reform an executive order have other options that they can use to influence existing directives. For example, presidents might instruct bureaucratic agencies to slow the process of implementing those orders that they do not support. In addition, presidents might reinterpret the original intent of a broadly constructed executive order that a previous administration signed into law. Presidents also realize that the partisan and ideological makeup of political institutions varies over time. As a result of this uncertain-

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ty within the US political environment, we should expect that presidents are active in fine-tuning their directives, especially those that initiate significant policies. Specifically, the evidence that presidents present to legitimize their directives must be persuasive enough to guarantee (or at least prolong) the survival of an executive order. A main policy technique that the White House uses to legitimize its directives is to cite various authorities within them in order to maximize their credibility and constitutionality. Sources of Authority

Political scientists have overlooked the authority sources that presidents cite in executive orders to legitimize their policy actions.1 This information is important for those scholars seeking to understand the legal strategies that presidents devise when they craft their directives. The types of authority sources are also important, because this body of knowledge might allow us to determine why certain executive orders have been able to weather the political assaults launched by Congress or the federal judiciary while other directives have met defeat. There may be specific authorities that are more successful at legally or politically insulating orders that become the target of opponents leading political campaigns to either terminate or severely reform presidential policies. Further, and more realistically, certain authority sources might be more suited for legitimizing major policy rather than routine executive orders. It may be assumed that presidents are more interested in protecting their major policy orders and that they will develop strategies to insulate them. There is no constitutional provision, congressional statute, or court ruling that directly governs the president’s executive order power. In 1952 the Supreme Court attempted to define the president’s proper scope of authority in Youngstown Sheet & Tube Co. v. Sawyer. This case challenged Harry Truman’s Executive Order 10340, signed on 8 April 1952, which required the Department of Commerce to seize the nation’s steel mills in order to avoid a possible strike by workers. Justice Hugo Black wrote the majority opinion, stating: “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our

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attention has been directed from which such a power can fairly be implied.” Black’s statement is very vague, and it did not seriously limit the president’s power to issue executive orders. Presidents since this ruling have continued to use a variety of sources beyond constitutional and statutory authority to support their directives. For example, chief executives have cited resolutions passed by the United Nations as a reason for issuing an executive order (US Congress 1957: 39). In addition, based on content analysis, presidents periodically claim that a directive is in the nation’s interest, that it will promote national security, that the health of the domestic economy is in need of assistance, or that there is a national emergency that requires the executive branch to solve a policy problem. President George W. Bush issued Executive Order 13210, on 2 May 2001, to create the President’s Commission to Strengthen Social Security. Bush cited the powers of the presidency, the Constitution, the laws of the United States, and the Federal Advisory Committee Act (5 U.S.C. App.) to legitimize his executive order. In addition, Bush also claimed that the importance of protecting Social Security for future generations justified his directive (Bush May 2001: 22895). The literature has not determined whether presidents develop strategies to protect their directives, nor does it provide any systematic information about the types of authority sources presidents have used in their policy statements. Scholars also do not know whether differences exist between administrations regarding the types of authority sources that presidents strategically rely on to support their policy actions. In December 1957 in the House of Representatives, the Committee on Government Operations issued a report on executive orders and proclamations. A portion of this study highlighted the need for public officials to explore the authority sources listed in executive orders to determine whether the president’s decision to issue an order was within the scope of his constitutional powers. This report explained that the Department of Justice analyzed executive orders and proclamations between July and December 1944. After studying ninety-nine directives (not all of these policy statements were exclusively executive orders or proclamations), justice officials discovered that a majority cited specific statutes to legitimize the chief executive’s policy actions. Approximately one-third of these directives also referred to both the president’s powers as commander in chief and chief executive (US Congress 1957: 39).

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The Tools of Legitimacy

Typically, most executive orders include a paragraph somewhere near the beginning of their text that states, “By the authority vested in me as . . . ,” followed by a list of authority sources. The process of collecting data on executive order authority sources is quite objective, since most directives explicitly state the president’s reasons for establishing an order. There are a few orders that include a formal statement identifying some authority sources, followed by another statement explaining that any laws cited throughout the remaining text are also additional sources of authority. Finally, there are a small number of executive orders that provide no authority sources to support the president’s policy actions. Tables 4.1 through 4.11 provide the yearly averages of symbolic, routine, and policy executive orders that cite various sources of authority, from the Franklin Roosevelt to the Clinton administration. A few issues must be addressed before undertaking an analysis of the information in these tables. The first and most important point is that the purpose of Tables 4.1 through 4.11 is to pinpoint the major authority sources that each administration included in its executive orders, to show the types of strategies that each president used to justify them. There are some values in these tables that are less than 1.0. This is a problem if we use those small numbers to make comparisons between administrations. The descriptive information in these tables is important because the literature has not systematically addressed the issue of authority sources. The 1957 report issued by the Committee on Government Operations included a section that identified every executive order that presidents signed between 29 December 1945 and 21 August 1956, along with the actual authority sources that were listed in each directive (see US Congress 1957: 43–213). The information presented in this report covered most of the Truman administration and a portion of the Eisenhower presidency. As a result, we cannot derive sound generalizations from this truncated data set, and we do not have a clear idea about whether there are patterns of presidential activity. Tables 4.1 through 4.11 lay the beginning foundation for systematically studying the strategic role of authority sources. The second issue deals with the list of authority sources obtained from content analysis. The sources cited in each table are ranked

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according to their order of importance. The source that a president relied on the most is listed first, followed by the next important authority source. There are authorities that presidents rarely invoked during their administration. We should not discount the importance of these authorities, because although they might have been invoked only a few times, presidents might have used them to justify significant and controversial policy orders. In order to promote parsimony, a residual category has been created that includes those authority sources that presidents cited on average only once a year or less. All of the authorities that compose the residual category are listed at the bottom of each table. The third issue is that the labels used to represent the sources of authority are those that presidents actually listed in their directives. The authority sources have not been collapsed into smaller categories, with the exception of the residual category. For example, the categories of national defense and security in Table 4.1 could be easily collapsed into one variable labeled “national defense.” However, these two sources have been kept separate because presidents have treated them as two different entities. In some instances, presidents have cited both the interests of national security and the interests of defense as justification for their actions within the same directive. Finally, we should keep in mind that a single executive order frequently invokes a combination of presidential, statutory, and constitutional authorities. This phenomenon is captured in each of the tables. For example, in Table 4.1, approximately 136.2 routine executive orders cited statutory authority every year, while 39.4 referred to the powers of the president. Some of these same routine directives that possessed statutory authority also cited presidential authority. The descriptive statistics in Tables 4.1 through 4.11 allow us to pinpoint broad similarities and differences across presidential administrations. All presidents with the exception of Kennedy, Carter, and George H. W. Bush, invoked statutory authority as the main reason to support their executive orders. The power of the Constitution ranked third for every administration since Franklin Roosevelt, except during the George H. W. Bush White House. Most administrations cited the power of the president as the main source of authority to legitimize policy orders. There are only four exceptions to this finding. The policy orders issued during the Truman, George H. W. Bush, and Clinton administrations all cited

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approximately an equal amount of presidential and statutory authority on a yearly basis. Nixon used presidential authority the least to justify his symbolic, routine, and policy executive orders. According to Table 4.6, the Nixon White House chose to cloak its policy executive orders in constitutional (19.5) and statutory (16.5) authority. Every president except Carter, George H. W. Bush, and Clinton cited statutory authority as the main reason to legitimize routine directives. George H. W. Bush and Clinton both relied equally on statutory and constitutional authority for their routine directives. Carter issued approximately three more routine orders a year that cited presidential rather than statutory authority. Finally, most administrations cited presidential authority as the key source of power to legitimize symbolic orders. Nixon was the only chief executive to cite other sources of authority rather than

Table 4.1

Yearly Average of Executive Orders Citing Sources of Authority During the Franklin Roosevelt Administration

Sources Cited

Total Average Symbolic Routine Policy Number (mean = 2.0)a (mean = 148.2) (mean = 44.4) (mean = 194.7)

Statutory President Constitutional Commander in chief Recommendations Emergency Blanket statement National defense National security Residualb

0.6 1.3 — 1.3 — — — — — —

136.2 39.4 3.0 2.1 4.6 0.1 0.2 0.2 0.4 0.7

15.1 28.4 18.4 13.3 0.6 1.9 1.3 1.0 0.6 1.4

151.9 69.2 21.4 16.8 5.1 2.0 1.6 1.2 1.0 2.1

Notes: Results for Franklin Roosevelt are based on data from March 1936 to April 1945. a. The means reported here refer to the average number of executive orders that Franklin Roosevelt issued each year during his administration. b. Residual category includes the following sources of authority: other executive orders, national economy, public interest, public safety, reorganization authority, an act passed by a US commonwealth, defense of the hemisphere, protecting the health of the armed forces, and a US treaty.

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94 Table 4.2

Yearly Average of Executive Orders Citing Sources of Authority During the Harry Truman Administration

Sources Cited

Symbolic (mean = 3.0)a

Statutory President Constitutional Commander in chief Internal management Recommendation National economy Foreign relations Residualb

0.6 2.3 — 1.4 — — — — —

Total Average Routine Policy Number (mean = 73.0) (mean = 33.1) (mean = 109.1) 69.6 20.2 3.6 4.1 3.3 1.5 0.3 0.4 0.9

26.1 26.4 19.5 13.3 1.3 0.4 0.9 0.6 1.4

96.4 51.4 23.1 18.8 4.5 1.9 1.1 1.0 2.3

Notes: a. The means reported here refer to the average number of executive orders that Harry Truman issued each year during his administration. b. Residual category includes the following sources of authority: national defense, national security, treaties, a blanket statement referring to “all other laws,” executive orders, a reorganization plan, and the United Nations.

Table 4.3

Yearly Average of Executive Orders Citing Sources of Authority During the Dwight Eisenhower Administration

Sources Cited

Symbolic (mean = 3.9)a

Statutory President Constitutional Commander in chief Recommendation National security Proclamations Residualb

0.4 2.8 — 0.8 — — — —

Total Average Routine Policy Number (mean = 43.0) (mean = 13.8) (mean = 60.3) 37.5 19.3 1.6 2.0 0.9 0.4 0.8 1.9

9.1 12.1 4.5 1.5 0.6 0.6 0.3 0.8

47.0 34.1 6.1 4.3 1.5 1.0 1.0 2.6

Notes: a. The means reported here refer to the average number of executive orders that Dwight Eisenhower issued each year during his administration. b. Residual category includes the following sources of authority: treaties, domestic policy, internal management, reorganization authority, the United Nations, an executive order, national interests, and a national emergency.

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95 Table 4.4

Yearly Average of Executive Orders Citing Sources of Authority During the John Kennedy Administration

Sources Cited

Symbolic (mean = 3.0)a

President Statutory Constitutional Recommendation Commander in chief Residualb

2.3 0.7 0.3 0.3 1.0 —

Total Average Routine Policy Number (mean = 40.7) (mean = 27.7) (mean = 71.3) 20.0 32.0 1.0 1.0 0.3 —

25.3 17.0 4.7 1.3 1.0 1.0

51.0 49.7 6.0 2.7 2.3 1.0

Notes: a. The means reported here refer to the average number of executive orders that John Kennedy issued each year during his administration. b. Residual category includes the following sources of authority: national security and proclamations.

Table 4.5

Yearly Average of Executive Orders Citing Sources of Authority During the Lyndon Johnson Administration

Sources Cited

Symbolic (mean = 2.8)a

Statutory President Constitutional Commander in chief Reorganization plan Recommendation Residualb

0.4 2.2 — 1.2 — — 0.6

Total Average Routine Policy Number (mean = 35.2) (mean = 27.0) (mean = 65.0) 31.8 19.2 0.8 2.2 0.8 0.8 1.0

15.4 25.0 4.4 1.6 0.6 0.2 0.8

47.6 46.4 5.2 5.0 1.4 1.0 2.4

Notes: a. The means reported here refer to the average number of executive orders that Lyndon Johnson issued each year during his administration. b. Residual category includes the following sources of authority: proclamations, treaties, the United Nations, an adjournment of a tribunal, federal employee views, foreign relations, and national security.

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96 Table 4.6

Yearly Average of Executive Orders Citing Sources of Authority During the Richard Nixon Administration

Sources Cited

Symbolic (mean = 3.1)a

Statutory Constitutional President Commander in chief Reorganization plan Proclamations Residualb

— 1.8 — 0.5 — 1.1 —

Total Average Routine Policy Number (mean = 33.5) (mean = 26.4) (mean = 62.9) 31.1 18.2 2.0 3.1 0.7 — 0.9

16.5 19.5 8.7 0.2 0.9 0.4 1.5

47.6 39.5 10.7 3.8 1.6 1.5 2.4

Notes: a. The means reported here refer to the average number of executive orders that Richard Nixon issued each year during his administration. b. Residual category includes the following sources of authority: national security, foreign relations, treaties, authority as commander in chief of the National Guard in Washington, D.C., federal employee organizational views, the interests of the national economy, and a recommendation.

Table 4.7

Yearly Average of Executive Orders Citing Sources of Authority During the Gerald Ford Administration

Sources Cited

Symbolic (mean = 3.2)a

Statutory President Constitutional Commander in chief Proclamations Reorganization plan Residualb

0.4 2.0 0.4 1.2 1.2 — —

Total Average Routine Policy Number (mean = 32.4) (mean = 32.0) (mean = 67.6) 31.6 24.0 5.2 3.2 — 0.4 1.2

26.8 28.0 19.6 0.4 0.8 0.8 4.4

58.8 54.0 25.2 4.8 2.0 1.2 5.6

Notes: a. The means reported here refer to the average number of executive orders that Gerald Ford issued each year during his administration. b. Residual category includes the following sources of authority: foreign relations, national economy, national security, treaties, an agency report, the interest of taxpayers, the integrity of the tax system, internal management of the executive branch, a report to Congress, and the United Nations.

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97 Table 4.8

Yearly Average of Executive Orders Citing Sources of Authority During the Jimmy Carter Administration

Sources Cited

Symbolic (mean = 1.8)a

President Statutory Constitutional Reorganization plan Executive orders Foreign relations National security National economy International agreements Commander in chief Residualb

Total Average Routine Policy Number (mean = 29.0) (mean = 49.3) (mean = 80.0)

1.0 0.8 0.8 0.3 — — — —

24.8 22.0 8.5 0.5 0.3 — — —

48.5 42.0 38.0 4.8 4.3 3.0 2.8 2.5

74.3 64.8 47.3 5.5 4.5 3.0 2.8 2.5

— 0.3 —

— 0.5 —

2.3 0.8 1.5

2.3 1.5 1.5

Notes: a. The means reported here refer to the average number of executive orders that Jimmy Carter issued each year during his administration. b. Residual category includes the following sources of authority: domestic policy, treaties, and the United Nations. Table 4.9

Yearly Average of Executive Orders Citing Sources of Authority During the Ronald Reagan Administration

Sources Cited Statutory President Constitutional Executive orders Residualb

Symbolic (mean = 0.8)a 0.5 0.8 0.5 — 0.3

Total Average Routine Policy Number (mean = 17.1) (mean = 29.8) (mean = 47.6) 17.0 12.5 11.0 0.6 1.0

25.5 29.5 27.4 0.9 2.4

43.0 42.8 38.9 1.5 3.6

Notes: a. The means reported here refer to the average number of executive orders that Ronald Reagan issued each year during his administration. b. Residual category includes the following sources of authority: commander in chief, reorganization plan, national security, international agreements, treaties, the United Nations, a compact, foreign relations, internal management of the executive branch, law enforcement interests, moral and political values encompassed by a democratic society, the interests of the national economy, and a proclamation.

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Page 98

Executive Orders and the Modern Presidency Yearly Average of Executive Orders Citing Sources of Authority During the George H. W. Bush Administration

Symbolic (mean = 2.0)a

Sources Cited

Constitutional Statutory President Executive orders Commander in chief United Nations International agreements

Total Average Routine Policy Number (mean = 13.8) (mean = 25.8) (mean = 41.6)

2.0 1.8 2.0 — 1.3 —

13.8 13.8 13.5 0.8 0.5 —

25.8 25.8 25.5 2.0 0.5 2.0

41.5 41.3 41.0 2.8 2.3 2.0

0.3

—

—

0.3

Note: a. The means reported here refer to the average number of executive orders that George H. W. Bush issued each year during his administration. Table 4.11

Yearly Average of Executive Orders Citing Sources of Authority During the William Clinton Administration

Sources Cited Statutory President Constitutional Executive orders United Nations Residualb

Symbolic (mean = 0.9)a 0.9 0.9 0.9 — — 0.4

Total Average Routine Policy Number (mean = 11.0) (mean = 33.6) (mean = 45.5) 10.9 10.8 10.5 0.1 — 0.1

33.6 33.6 16.4 1.8 1.4 0.9

45.4 45.3 27.8 1.9 1.4 1.4

Notes: a. The means reported here refer to the average number of executive orders that William Clinton issued each year during his administration. b. Residual category includes the following sources of authority: treaties, commander in chief, existing executive branch policy, international agreements, and a recommendation.

statutory power to support the seventeen symbolic orders that he issued while in office. Specifically, he cited the Constitution, his commander-in-chief powers, and various proclamations to justify his symbolic directives.

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More recently, both the George H. W. Bush and the Clinton White Houses increasingly used UN security directives and resolutions to justify executive orders. Table 4.10 shows that George H. W. Bush issued 2.0 major policy orders each year that cited the United Nations, while Table 4.11 shows that Clinton signed approximately 1.4 policy orders that cited this source of authority. Overall, the values reported for the United Nations are small from a mathematical perspective, but theoretically they are extremely important, especially if we control for the affects of party identification across all administrations. Republican presidents issued eleven executive orders between March 1936 and January 2001 that cited the United Nations, while the Democrats issued sixteen. However, eight of those eleven orders that Republicans signed (72.7 percent) were issued by George H. W. Bush, while Clinton issued eleven (68.8 percent) of the sixteen orders that were created during Democratic administrations. All of the executive orders issued by George H. W. Bush and Clinton that cited the United Nations are major policy directives. There are two important differences between how Republican and Democratic presidents handle executive orders. First, Democrats have been more active than Republicans in claiming that the interests of the national economy justify the establishment of some executive orders. Since 1936, Democrats have issued twenty-one orders citing the economy, whereas Republicans have only issued four. Most of these twenty-one orders that Democrats issued occurred either during the Truman presidency, when nine (42.9 percent) were issued, or during the Carter years, when ten (47.6 percent) were signed into law. Many of Carter’s orders dealt with freezing financial transactions between the United States and Iran during the hostage crisis at the end of his administration. The second difference is that Democrats cited a greater number of existing orders to legitimize the creation of new directives than did Republicans, by a ratio of almost two to one. Republicans issued twenty-three orders that cited previous executive orders, whereas Democrats issued forty orders. Tables 4.1 through 4.11 demonstrate that presidents use a variety of authority sources to strategically legitimize their executive orders. Some of these authorities extend beyond traditional powers such as the Constitution, existing statutes, and the powers of the executive branch that are enunciated in Article II of the Constitution. Apart

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from describing the types of authority sources that presidents refer to in their directives, an issue worth exploring is whether presidents develop a strategy when citing sources so that their executive orders can survive within the dynamic political environment. Strategically Legitimizing Executive Orders

Presidents do not always provide theoretical reasons for issuing an executive order, nor do they always pinpoint the exact sources of authority that allow them to devise and enforce it. However, the future success of these directives depends in part on their ability to endure changes within the political environment, especially if executive orders are to persist beyond a president’s term in office. As explained earlier, most executive orders contain a short passage listing their sources of authority. These powers can be listed in the form of either specific or vague grants of authority. Specific powers pinpoint an actual statute, treaty, reorganization plan, or another type of policy statement. In some cases, an executive order will cite the specific provision within a statute that supports the president’s policy actions. The main reason for citing a specific power is so that anyone reading an executive order will be able to locate the root sources that justify it. Vague authorities are broad references to power. The most common forms that presidents cite are the Constitution, US statutes, the powers of the presidency, and the commander-in-chief role. Presidents will also cite a broad set of authorities, such as national security, the domestic economy, and foreign relations. The White House might decide to cite vague powers because the burden of proving that an administration might have acted improperly when issuing an executive order shifts to the president’s opponents (Fleishman and Aufses 1976: 20–21). Policy directives that pinpoint a specific statute or policy statement are easier for the president’s opponents to attack, especially if it is clear to a majority in Congress that a president has improperly interpreted the original intent of a specific statute or treaty. It may be expected that executive orders dealing with the establishment of major policies will be more likely to contain vague language in identifying their sources of authority compared to those orders designed to execute routine, administrative matters. In content analyzing executive orders, directives that only cite explicit

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powers have been coded as specific, while orders that make reference to a broad grant of power have been classified as vague. Presidents also frequently include a combination of specific and broad authorities in their orders. Such executive orders that contain a hybrid of specific and vague powers have been classified as vague directives. The reason for coding the data in this manner is that there is a degree of uncertainty in an order that cites a hybrid of authority sources. The legitimacy of these executive orders is not completely established, because individuals must interpret the meaning of these sources. Furthermore, executive orders that include vague powers serve as a cue that perhaps the White House is unable to locate a clear grant of authority that supports its policy actions (see US Congress 1957: 39). Testing for Presidential Strategies

Presidents identify authorities to support most of their executive orders. However, the White House has issued a few directives that do not explain the president’s justifications for signing them. The total number of symbolic, routine, and policy executive orders that contain no authority sources is reported in Table 4.12. The main conclusion that can be drawn from this table is that presidents rarely craft executive orders without justifying them. Franklin Roosevelt issued nine-

Table 4.12

Number of Executive Orders that Cite No Sources of Authority

Administration F. Roosevelta Truman Eisenhower Kennedy Nixon Ford Carter Total

Symbolic 1 2 1 — 1 — — 5

Routine 5 1 — — — — — 6

Policy 13 1 — 1 — 1 1 17

Total Number 19 4 1 1 1 1 1 28

Note: a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

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teen executive orders between 1936 and 1945 that provided no sources of authority. The number of such directives immediately declines during the Truman administration. Presidents since Reagan have always included a section in their executive orders listing the powers that allow them to issue a directive. A notable pattern that emerges from the data in Table 4.12 is that approximately 61 percent of all the directives that contain no authority sources are major policy executive orders. Only 21 percent of these directives are routine, while 18 percent are symbolic. We should not exaggerate the conclusions that we can infer from Table 4.12, because the creation of executive orders without authority sources is a rare event. We now know that presidents make an effort to identify in most executive orders the grants of authority that they believe justify their policy actions. The next issue is whether chief executives have developed a strategy to protect their major policy orders. Table 4.13 reports the yearly average of routine and major policy directives that contain either specific or vague sources of authority. The data listed in the last two columns of Table 4.13 generally demonstrate that pres-

Table 4.13

Yearly Average of Executive Orders Citing Specific and Vague Authority Sources, by Administration Specific

Administration

Routine

F. Roosevelta Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton Total Average

102.2 42.6 22.6 20.7 15.6 14.2 8.8 4.5 3.0 0.0 0.6 26.6

Vague

Policy

Routine

Policy

5.8 3.4 0.8 0.7 1.4 4.2 2.8 0.3 0.0 0.0 0.0 1.9

45.3 30.3 20.1 20.0 19.8 19.3 23.6 24.5 14.1 13.8 10.4 22.8

37.3 29.6 12.9 26.7 25.4 22.2 28.8 48.8 29.8 25.8 33.6 29.0

Note: a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

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idents since the Kennedy administration have issued more policy than routine orders that identify vague authority sources. Prior to 1961, Franklin Roosevelt, Truman, and Eisenhower are the only chief executives to have issued more routine than policy orders that cite broad grants of power. Carter and Clinton were the most strategic presidents. Carter signed 24.5 routine orders and 48.8 policy directives each year that contained vague references. This means that the Carter White House issued 24.3 more policy than routine orders each year that made reference to broad authorities. Clinton justified 10.4 routine and 33.6 major policy directives each year with vague powers. Clinton’s actions were similar to Carter’s, as Clinton issued 23.2 more policy than routine directives each year. In contrast, Nixon was the least-active president since Kennedy to devise a clear strategy to justify his policy executive orders. Nixon issued 19.3 routine and 22.2 policy directives that used vague authority sources. This finding is ironic, because scholars have claimed that the Nixon administration was very focused in developing a clear administrative strategy to centralize White House control over executive branch policymaking. Nixon’s administrative strategy became more pronounced during his second term following the recommendations of the Ash Report that called for massive reorganization of the federal bureaucracy. Although most of Nixon’s attention was directed at reorganizing and manipulating the structure of the executive branch (Hoff 1994: 58–60; Nathan 1983: 43–45), it seems surprising that he did not institute an aggressive administrative strategy when crafting his major policy orders. The creation of executive orders appears to be an easier task for presidents to accomplish as opposed to redesigning administrative structures. The information in the first two columns of Table 4.13 demonstrates that most executive orders that cite specific authorities are routine. The contrast between the yearly average of specific routine and policy executive orders is quite striking. Presidents rarely created policy orders that clearly pinpointed all of the specific powers that legitimized their policy actions. A prominent trend also emerges based on the data in the first column of Table 4.13: since the Franklin Roosevelt administration the number of specific routine orders has steadily declined. This phenomenon might be an indication that presidents believed that it was necessary to include broad powers in routine orders as a precaution against possible challenges from

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Congress. Theoretically, any type of executive order (including a routine directive) is controversial, because it has the force of law (Fisher 1998: 33–35). The White House might incorporate vague language into a routine order simply to add further security, so that the president’s opponents cannot easily overturn it. Table 4.14 provides a summary of the aggregated results presented in Table 4.13, and also includes the data for symbolic orders. The figures clearly demonstrate that specific executive orders are mainly routine rather than major policy directives. Overall, presidents issued approximately 26.6 routine and 1.9 policy executive orders each year that derived their authority from specific statutes or powers. Furthermore, presidents issued almost six more policy than routine directives that made reference to vague authorities. Since March 1936, chief executives signed 29.0 policy, 22.8 routine, and 1.7 symbolic orders each year that contained vague references. Table 4.14 also demonstrates that 65 percent of the executive orders that presidents signed each year cited vague rather than specific powers. These data clearly show that presidents have developed a strategy to legitimize executive orders. Although presidents typically cite vague powers in their policy directives, they must be careful in deciding what types of authorities to include in an order. They might find it more advantageous to rely on constitutional, statutory, and treaty powers when developing an order rather than relying on other broad grants of authority. Sources that extend beyond the powers of the Constitution and laws passed by Congress are susceptible to attacks by the president’s opponents or by other political institutions. For example, Maeva Marcus (1977) concluded in his study of Truman’s Executive Order

Table 4.14

Specific Vague

Average Number of Executive Orders Each Year Citing Specific and Vague Sources of Authority

Symbolic

Routine

Policy

Total Average Number

0.5 1.7

26.6 22.8

1.9 29.0

29.0 53.5

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10340 (8 April 1952) that Truman’s unilateral action would have been more successful if his order had provided proof that there was a congressional statute that gave the White House authority to seize the steel mills. Instead, Truman justified the order by broadly stating that the Constitution, federal laws, the powers of the president, and the commander-in-chief role allowed him to sign and enforce it. Truman did not refer to any specific statute or provision in the Constitution to support his policy action. The White House also believed that the signing of this executive order was necessary to prevent a major domestic crisis from happening if workers went on strike. David McCullough further explained in his biography of Truman that “Tom Clark, now on the Supreme Court, had once, as Attorney General, advised him [Truman] that a President, faced with a calamitous strike, had the ‘inherent’ power to prevent a paralysis of the national economy” (1992: 896–897). In 1952 the Supreme Court exercised judicial review by striking down Executive Order 10340 in Youngstown Sheet & Tube Co. v. Sawyer. Marcus explained that this action by the court “defined more precisely the division of functions between the Executive and Congress, by holding that the President could not exercise the seizure power without legislative authority” (1977: 248). The ruling in Youngstown demonstrated that the president’s right to issue executive orders is not an absolute power, regardless of the powers that chief executives invoke to justify their policy actions. Congressional Strategies and Executive Orders

The delegates to the Constitutional Convention of 1787 argued that “energy in the executive” was essential for presidential leadership (Farrand 1966: 65). The framers also understood that the president’s power should be kept in constant check to prevent an administration from either abusing its authority or threatening those powers that the Constitution grants to Congress and the federal judiciary. As a result, the US political system incorporated the principles of a separation of powers and checks and balances to prevent any branch of government from becoming too powerful. Chief executives must be vigilant when they craft their executive orders, because this unilateral tool can invite challenges from Congress (see Deering and Maltzman 1999: 779–780). Congres-

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sional criticisms were quite pronounced during the Clinton administration, and they continued through the first year of the George W. Bush presidency. A group of legislators serving in the House of Representatives at that time sought to enact sweeping legislation to curb the president’s executive order power. The goal of these representatives was to shift some executive lawmaking responsibilities back to the legislative branch. The most notable effort that gained the attention of the House was Resolution 2655, referred to as the Separation of Powers Restoration Act (Olson and Woll 1999: 21). There have been other proposals that have surfaced in Congress that are similar to this proposed resolution. A dilemma that remains for scholars is whether this congressional activity is merely a form of political grandstanding by certain members or whether there is enough momentum in both houses to formally act on limiting the power of executive orders. Recent studies have attempted to develop formal theories that explain congressional influence on the president’s unilateral authority (Moe and Howell 1999a, 1999b; Howell 2000, 2003). William Howell’s works are the first to systematically analyze congressional responses to executive orders. Apart from Howell’s efforts, scholars remain in the dark about whether Congress has mounted major campaigns against executive orders. The goal here is not to analyze every method that Congress has at its disposal to challenge the president’s executive order power, but rather to explore one key issue: Does Congress perceive executive orders as a threat to its legislative power, and if so, what has been this institution’s response to this policy tool? Congressional Options

Congress has two broad options that it can use to challenge executive orders. The first method is rhetoric. The White House is not alone in its desire to avoid a major separation of powers battle. Congress also does not wish to enter into a lengthy debate over the proper scope of executive and legislative authority, because legislators have their own policy agendas to pursue. Congress will be compelled to respond if a president treads too far into the lawmaking authority of the legislative branch. Members of Congress have access to a variety of rhetorical tools to criticize executive orders. There are congressional floor debates,

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committee and subcommittee hearings, speeches made during campaign seasons against specific directives, statements that are recorded in the “extension of remarks” section of the Congressional Record, and formal press releases. Scholars have not systematically analyzed the importance that Congress places on these tools and whether legislators develop strategies to limit the president’s executive order power. There have been instances when legislators used floor debates to question whether the president’s power to issue executive orders is constitutional. For example, Senator Robert A. Taft (R–Ohio) took to the Senate floor on 15 April 1941 to criticize Executive Order 8734, titled “Establishing the Office of Price Administration and Civilian Supply in the Executive Office of the President and Defining Its Functions and Duties.” Franklin Roosevelt had just issued this directive five days before Taft’s scathing comments against the policy actions of the White House. At one point in his discussion, Taft declared: “If, under the present status of affairs, the President of the United States may fix prices and margins and practices in every industry in the United States, then I say Congress may just as well go home. If the President has the power, he has every other power that he chooses to exercise through Executive order” (Congressional Record April 1941: 3101). Periodically, other members have asserted that any policymaking function representing the process of lawmaking is solely reserved for the legislative branch. Representative Louis Ludlow (D–Ind.) argued before House members on 18 February 1943 that generally speaking, there is no difference between a public law and an Executive order, except that laws are enacted by Congress in the manner prescribed by the Constitution when it created the legislative body, while Executive orders, as their name indicates, are orders originating in the executive establishment of government, which the founders of our country intended should execute, but should not make the laws. (Congressional Record February 1943: 1127)

Ludlow also presented statistical evidence comparing the number of executive orders that presidents issued each year between 1933 and 1942 with the number of public laws Congress passed during this time. Presidents issued 3,565 executive orders during these ten years while Congress passed 4,300 public bills. Ludlow argued that his evi-

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dence demonstrated that the executive branch was extremely active in writing laws. An interesting finding is that presidents were more active than Congress in lawmaking during 1933 and 1934. Presidents signed 658 executive orders in 1933 and 472 in 1934. In contrast, Congress passed 93 public laws in 1933 and 446 in 1934 (Congressional Record February 1943: 1127). Senator Robert C. Byrd (D–W.Va.) was even more adamant regarding the scope of executive authority when he instructed his colleagues during a Senate debate on 5 March 1960 to “keep in mind that an Executive order is not statutory law” (Congressional Record March 1960: 4591). Rhetorical strategies such as Byrd’s statement often represent political grandstanding that will fall on deaf ears in the White House unless Congress supports its rhetorical attacks with formal actions to curb presidential power. Although there are political risks for lawmakers who debate executive orders, these debates can provide members of Congress with political benefits. The influence of these benefits can be shortterm such as during election years, when congressional criticisms might erode public support of the president while strengthening a legislator’s support among his or her constituents. There are also legislators who build a career by serving as policy advocates for their constituents. Members who take on this role frequently challenge the policy actions of the executive branch in part to provide the image that they are protecting their constituents against potentially harmful public policies. Finally, some members might simply view their role as guardians of congressional power and therefore act when they are convinced that the executive branch is encroaching on Congress’s constitutional responsibilities. The second option available to Congress is to invoke formal legislative powers to nullify or reform existing executive orders. This approach does not guarantee political success. Although the House and Senate might pass new legislation to overturn or modify the policy content within executive orders, the president possesses the authority under Article I, Section 7, of the Constitution to veto any bill that challenges his executive actions. The fragmented policymaking process along with the collective action problems that plague Congress present obstacles to individual legislators challenging executive orders. For example, Nixon issued Executive Order 11605, on 2 July 1971, to increase the authority of the Subversive Activities Control Board. Congress created this board

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in 1950 to provide the executive branch with intelligence information on any “communist activities” occurring in the federal government or among groups in US society promoting communism. Shortly after Nixon signed the order, “Senator Sam Ervin [D–N.C.], challenging the order, introduced a resolution stating that the President had no power ‘to alter by Executive order the content or effect of legislation enacted by Congress.’ The Senate adopted Ervin’s amendment to prohibit the use of appropriated funds to implement the executive order” (Fisher 1997: 112–113). Despite the Senate’s efforts, the House of Representatives was not willing to challenge the order. In the end, both houses were forced to compromise over the future of the board. Congress decided to allow the board to remain in existence but levied some fiscal constraints against it (Fisher 1997: 113). The most recent attempts by Congress have been to propose bills to limit the president’s executive order power and to increase its own oversight authority. For example, Representative Bob Barr (R–Ga.) introduced House Resolution 23, titled the “Presidential Order Limitation Act of 2001,” on 3 January 2001. This bill recognized that presidents had the right to issue executive orders, proclamations, and other types of directives provided that these policy statements remained within the constitutional boundaries of executive power. However, Barr proposed that presidents should be required to submit copies of their directives to Congress for final approval before any of these policy statements could have the force of law. Congress would then have thirty days to evaluate and respond to a specific directive (Congressional Record January 2001: H25). Representative Ron Paul (R–Tex.) presented an updated version of a Separation of Powers Restoration Act on 6 March 2001 that contained many of the provisions in Barr’s proposal. A major difference in this bill was that it established greater stipulations to regulate the president’s unilateral authority. Paul’s bill called upon the White House to clearly identify in each presidential directive the specific sources of authority that it derived from the Constitution or from existing statutes that support the creation of an executive order or proclamation (Congressional Record March 2001: H647–H648). Congress has not passed any legislation that is comparable to the proposals created by Representatives Barr and Paul. A political hurdle that exists for lawmakers who wish to draft legislation similar to these proposals concerns the issue of presidential compliance.

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Congress has not developed an effective system that would require presidents to comply with greater congressional oversight of executive orders. Congress has learned from previous efforts to curb presidential power, such as with the passage of the War Powers Act of 1973, that chief executives will find methods to circumvent laws that challenge their authority (Fisher 1998: 200–201). We also do not know the level of support that currently exists in the full Congress to limit the power of executive orders. Measuring Congressional Responses to Executive Orders

Two ways that Congress strategically responds to executive orders are analyzed here: floor debates and formal actions that terminate or modify specific directives. There are two data sets that are used. The first set, to identify all House and Senate floor debates that centered on executive orders, has been compiled based on all volumes of the Congressional Record that were published between March 1936 and January 2001, by pinpointing the debates in the Congressional Record Index as listed under the heading “president of the United States” and then the subheading “executive order.” Although there were periods when members of Congress discussed the president’s executive order power in general, most of the debates focused on specific directives. There are times when a member simply asked a congressional clerk during a floor debate to record the text of an executive order in the Congressional Record without discussing that directive. This action might indicate that an executive order was either routine or noncontroversial. This information has been excluded from the data set. The House of Representatives held a total of thirty-two debates on executive orders between March 1936 and January 2001, while the Senate held fifty-one. The executive orders that legislators discussed, the party that controlled Congress at the time of the debate, and the president who issued each executive order were recorded during the content analysis. Each directive was then classified as a symbolic, routine, or policy initiative. In addition to the collected information on floor debates, William Olson and Alan Woll’s existing data set (1999), included in a report that they wrote on executive orders for the Cato Institute, has been

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utilized. These authors identified those executive orders that were issued between the Grover Cleveland and George H. W. Bush administrations that were terminated or changed by congressional statutes. Congress has been attentive to this study and House members invited Olson to testify on executive orders before the House Subcommittee on Legislative and Budget Process on 27 October 1999 (US Congress 1999). I took Olson and Woll’s list of executive orders and classified each directive that presidents issued since the Franklin Roosevelt administration as symbolic, routine, or policy. There are 206 executive orders that were terminated or reformed by Congress between the beginning of the Franklin Roosevelt presidency in 1933 and the end of the George H. W. Bush administration. Apart from Olson and Woll’s data, there is no formal catalog that lists the actual executive orders that Congress has modified with new legislation. Howell searched a variety of sources to determine the amount of congressional activity devoted to questioning existing executive orders (2000: 152; 2003: 113–120). This approach failed to pinpoint the specific executive orders that Congress addressed. Therefore, Howell’s data do not allow us to determine whether Congress focused on significant as opposed to symbolic or routine executive orders. The Strategic Nature of Congress

We have no knowledge about whether legislators develop clear strategies when they decide what executive orders to bring before a floor debate. Major policy rather than symbolic or routine orders should receive the greatest attention, because Congress is constrained in the amount of time and resources it has to investigate and mount successful challenges against executive orders. We should expect legislators to maximize their scarce resources in a manner that will provide them with the greatest amount of political rewards. The political benefits, if any, that members obtain from criticizing symbolic and routine orders are minimal. There are also political risks that can arise from questioning noncontroversial policies, such as a political relations backlash against Congress, especially if key segments of the electorate, such as members of the military or minorities, are the benefactors of such orders. Furthermore, congressional tinkering of routine executive orders may invite zealous members of the media to report on and overexaggerate these actions taken by lawmakers. This

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problem might shift public attention away from the core policy agendas of both parties serving in Congress. It may be assumed that Congress holds more floor debates on executive orders that initiate major policy than on those directives that are routine or symbolic. Separate results for the House and Senate to test this proposition are provided, because the structure and nature of the chambers is not equivalent in terms of the length of tenure of its members, size, representation of constituents, and procedural rules that influence the types of lawmaking activities and agendas that both houses pursue (Baker 1989: 46–47, 66–67). Table 4.15 displays the number of routine and policy executive orders that the House of Representatives debated on the floor from 1936 to 2001, while Table 4.16 provides the results for the Senate. The two chambers held no floor debates on symbolic orders between March 1936 and January 2001.

Table 4.15

Total Number of Executive Orders that the House of Representatives Debated on the Floor

Administration

Routine

Policy

F. Roosevelt Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton

1 — 1 3 — 3 — — — — —

4 4 1 1 1 10 — — 3 2 1

Total Number 7a 4 2 4 1 13 — — 4a 2 1

Notes: The values reported in this table represent the number of executive orders that the House of Representatives formally debated at some point after 13 March 1936. Congress has the authority to debate an executive order at any time from the signing of the directive until it is either revoked by a president, terminated by a congressional statute, or declared unconstitutional by the Supreme Court. a. Congress debated additional executive orders that Franklin Roosevelt (2) and Reagan (1) issued in office. I was unable to locate the text of these directives in order to code them as symbolic, routine, or policy.

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Safeguarding Executive Orders Table 4.16

Total Number of Executive Orders that the Senate Debated on the Floor

Administration

Routine

Policy

F. Roosevelt Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton

2 1 — 1 — 2 — — 1 — —

5 5 5 3 3 15 3 1 1 — 4

Total Number 9a 8a 6a 4 3 17 3 1 2 — 4

Notes: The values reported in this table represent the number of executive orders that the Senate formally debated at some point after 13 March 1936. Congress has the authority to debate an executive order at any time from the signing of the directive until it is either revoked by a president, terminated by a congressional statute, or declared unconstitutional by the Supreme Court. a. Congress debated additional executive orders that Franklin Roosevelt (2), Truman (2), and Eisenhower (1) issued in office. I was unable to locate the text of these directives in order to code them as symbolic, routine, or policy.

Two procedural issues must be addressed before discussing the results in these tables. First, Congress does not restrict floor debates to only those executive orders that a current administration issues while in office. For example, the House and Senate discussed a few executive orders during the 1970s that Truman and Eisenhower issued during their administrations. Second, we should realize that the numerical values in Tables 4.15 and 4.16 that are reported for each administration do not necessarily reflect different executive orders. The House of Representatives held two floor debates on Kennedy’s Executive Order 10925, which created the President’s Committee on Equal Employment Opportunity, on 7 May and 20 May 1963. In contrast, legislators debated four different executive orders that Lyndon Johnson issued (11150, 11216, 11310, and 11396). The point is that some of the numbers in Tables 4.15 and 4.16 contain multiple counts for the same directive. The data collected from the Congressional Record demonstrate

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that Congress devotes a small portion of its time debating executive orders. The mean scores for the data have not been provided in the tables because the results are too small to allow us to reach meaningful conclusions based on averages. Table 4.15 shows that the House held more floor debates on policy than routine executive orders that were issued by seven out of the eleven administrations. The House was very active in debating Nixon’s executive orders. Representatives discussed a total of thirteen executive orders, ten of which were major policies. Ford and Carter’s executive orders received no attention by the House. We should not infer from this finding that the House never questioned Ford’s or Carter’s executive order power. Representatives in the House might have chosen different approaches to investigate the policy actions of these presidents, such as analyzing the executive order power at the committee and subcommittee levels. The Senate was more active than the House in addressing major policy executive orders. Table 4.16 demonstrates that it conducted more floor debates on policy than routine directives that were issued by nine out of the eleven administrations. George H. W. Bush was the only president to issue orders that received no attention on the Senate floor. There is a similarity between House and Senate debates on Nixon’s executive orders. The Senate was also active by debating seventeen of Nixon’s directives, fifteen of which were significant policies while only two were routine. Furthermore, all but one of the House and Senate floor debates on Nixon’s executive orders were held at the time when he was in office, between 1969 and 1973, before the Watergate scandal reached its climactic period in 1974. Congress’s increased activity might have been in response to Nixon’s efforts to use administrative rather than legislative strategies to achieve a policy record (see Nathan 1983: 8). This approach might have produced unintended consequences, such as inflaming members of Congress who might have believed that Nixon’s real motivation was to circumvent the legislative process. In the end, Congress might have decided to challenge Nixon’s directives as a way to weaken his administrative strategies. Tables 4.17 and 4.18 control for the influence of the president’s party on congressional floor debates, because, as has been demonstrated in this book, party is an important variable that we should not overlook when analyzing executive orders. The tables provide the

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Percentage of Executive Orders that the House of Representatives Debated on the Floor

President’s Party Democrats Republicans

Table 4.18

Policy

0.2 0.5

0.8 2.4

Overall 0.4 1.4

Percentage of Executive Orders that the Senate Debated on the Floor

President’s Party Democrats Republicans

Routine

Routine

Policy

0.2 0.4

1.6 3.6

Overall 0.7 1.8

percentage of routine and policy executive orders that Democratic and Republican presidents issued that the House and Senate discussed during floor debates. Table 4.17 shows that the House debated a larger percentage of major policy rather than routine directives that both Democratic and Republican presidents issued between March 1936 and January 2001. Specifically, the House debated 2.4 percent of all policy executive orders that Republicans issued, while lawmakers debated 0.5 percent of all routine directives. In contrast, the House debated 0.8 percent of all Democratic policy directives and 0.2 percent of all routine orders. Table 4.18 also shows that the Senate debated a greater percentage of Democratic and Republican policy executive orders than routine directives. Approximately 1.6 percent of all Democratic policy executive orders received attention during Senate floor debates, while only 0.2 percent of the Democratic routine directives were debated by senators. The Senate debated 3.6 percent of all policy and 0.4 percent of routine executive orders that Republican presidents signed since the Eisenhower administration. Overall, the percentages of policy executive orders that Democratic and Republican presidents issued that the Senate discussed during floor debates is larger than the percentages reported for the House of Representatives in Table 4.17.

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Tables 4.15 through 4.18 are instructive because they highlight some of the rhetorical activity that Congress has engaged in with respect to executive orders. We cannot conclude from this information that the legislative branch has developed a defined rhetorical strategy for deciding how and when to challenge executive orders. Congress functions within a dynamic political system that often influences the politics and policy directions that occur within it. Congressional scholars also remind us that legislators pursue their own policy agendas to increase their political clout among their constituents and with key leaders in Congress (Arnold 1990: 5). In addition, the political actions of congressional members are frequently tied to their interests in seeking reelection (Mayhew 1974: 5–6). The point is that there are numerous elements that might bear on the decisions of Congress to respond to presidential power. It may also be expected that divided government and the timing of national elections will influence the types of executive orders that members of Congress will select for a floor debate. We should expect that the House and Senate will devote more attention to discussing major policy executive orders during divided than during unified government. For example, members of Congress might use floor debates during divided government to criticize controversial executive orders that the opposing party issued, in order to criticize or embarrass the current administration. Table 4.19 provides the yearly average of routine and policy executive orders that the House debated during unified and divided government, while Table 4.20 presents the results for the Senate. Both tables account for party control of Congress. The Democrats

Table 4.19

Yearly Average of Executive Orders that the House of Representatives Debated During Divided and Unified Government

Party Control in House Unified Democrats Republicans Divided Democrats Republicans

Routine

Policy

0.1 —

0.1 —

0.2 —

0.7 0.6

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Safeguarding Executive Orders Table 4.20

Yearly Average of Executive Orders that the Senate Debated During Divided and Unified Government

Party Control in Senate Unified Democrats Republicans Divided Democrats Republicans

Routine

Policy

0.1 —

0.5 —

0.2 0.1

1.3 0.3

held majorities in the House of Representatives for fifty-five years and in the Senate for forty-nine years. In contrast, the Republicans controlled the House for ten years and the Senate for sixteen years. The data in Table 4.19 indicate that the House was not aggressive in holding floor debates on executive orders during unified and divided government. Table 4.20 accounts for the influence of unified and divided government on Senate floor debates. The Senate held more floor debates on executive orders when the Democrats held the majority of Senate seats. Specifically, there were slightly more debates held on policy than on routine executive orders during divided government than during unified government. For example, when the Democrats were in power during divided government, 1.3 policy executive orders were debated each year. Apart from this finding, the Senate was rather passive during unified government regardless of party control in this chamber. Legislators might hold more debates during an election year to attack those policy directives that their opposing party issued, in an effort to reduce that party’s support among the electorate. A few members of Congress might strategically choose to respond to directives that deal with certain policy domains in order to provide them with further policy issues to campaign on during their reelection efforts. This assumption leads to the proposition that Congress will hold more floor debates on policy executive orders during presidential and congressional elections than during nonelection years. The data in Table 4.21 address the importance of national elections. This table presents the yearly average of routine and policy

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Executive Orders and the Modern Presidency Yearly Average of Executive Orders that Congress Debated on the Floor During Election and Nonelection Years Routine

House of Representatives Presidential elections Midterm elections Nonelection years Senate Presidential elections Midterm elections Nonelection years

Policy

— — 0.2

0.5 0.3 0.3

— 0.1 0.1

0.6 0.4 0.7

executive orders on which Congress held floor debates during presidential and midterm election years and nonelection years. The results demonstrate that both the House of Representatives and the Senate did not significantly increase the number of floor debates addressing policy executive orders during national election years. For both routine and policy executive orders, each chamber debated less than one during national and nonelection years. The information presented here on congressional floor debates is important to the study of unilateral powers because it suggests that Congress is quite passive in formally debating the president’s authority to issue executive orders. The numbers reported in the tables are remarkably small. We should not conclude that Congress has been powerless to challenge the president’s authority. Future studies on congressional responses to executive orders should assess whether floor debates have supported or criticized executive orders. Furthermore, an in-depth analysis of committee and subcommittee hearings and reports would be beneficial to expanding our knowledge about the actions of Congress. Apart from Howell’s works (2000, 2003), no systematic studies have explored congressional attempts to either nullify or reform executive orders. The political costs of reforming policy directives should be greater than the consequences associated with changing or nullifying symbolic and routine directives. At the same time, congressional success at modifying policy executive orders will likely reap the greatest benefits for legislators. It may be expected that Congress is

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more willing to risk changing or eliminating policy than symbolic or routine orders. Congress has the authority to reform or terminate executive orders anytime it chooses, as long as a particular order still has the force of law (Miller and Barnes 2004: 75). For example, many of Franklin Roosevelt’s executive orders still remain vulnerable to congressional assaults. Table 4.22 presents the percentage of symbolic, routine, and policy executive orders that Congress modified between the administrations of Franklin Roosevelt and George H. W. Bush. The information provides mixed results. Roosevelt (8.0 percent), Truman (16.7 percent), Kennedy (4.8 percent), Lyndon Johnson (3.0 percent), Nixon (6.2 percent), and George H. W. Bush (1.0 percent) had a larger percentage of their major policy rather than routine orders changed by statutory law. Eisenhower and Carter had a greater percentage of their routine orders reformed, while lawmakers did not formally change any executive orders that Ford and Reagan signed during their terms in office. Table 4.22 also provides percentages

Table 4.22

Percentage of Executive Orders that Congress Modified Through Statutory Law

Administration F. Roosevelta Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Percentage of orders for all administrations

Symbolic

Routine

Policy

Percentage of All Orders

5.6 8.3 6.5 11.1 — — — — — —

1.5 9.4 5.5 1.6 2.8 1.2 — 0.9 — —

8.0 16.7 1.0 4.8 3.0 6.2 — — — 1.0

3.1 11.6 4.6 3.3 2.8 3.2 — 0.3 — 0.3

4.0

3.3

4.7

3.8

Notes: The results presented in this table are calculated from the information in Appendix 3 of William Olson and Alan Woll’s 1999 study on executive orders. a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

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based on the total number of executive orders issued during these administrations. Overall, Congress reformed 4.7 percent of all major policy, 3.3 percent of routine, and 4.0 percent of symbolic executive orders. A striking finding that emerges in Table 4.22 is that Congress has been relatively inactive in reforming and eliminating specific executive orders issued by presidents who served between the Kennedy and George H. W. Bush administrations. Overall, Truman’s and Eisenhower’s executive orders received the most scrutiny from Congress. However, legislators showed interest in reforming some of Nixon’s policy directives, given that Congress changed 6.2 percent of his policy orders and 1.2 percent of his routine directives. Conclusion

This chapter has provided systematic evidence that presidents rely on a variety of powers, statutes, and other sources of authority to strategically legitimize their executive orders. In addition, presidents adopt a clear policy plan by using vague powers to justify their policy directives. The uncertainty of Washington politics forces presidents to strategically design their policy statements. However, a lesson that presidents have learned from the Youngstown case is that the crafting strategies that the White House uses to design executive orders can fail at times. In essence, the fate of executive orders is often at the mercy of politics. The policy actions of chief executives can produce repercussions that trigger responses from the legislative branch. However, the analysis in this chapter further corroborates Howell’s conclusion that Congress has been quite inactive in challenging executive orders (2000: 155; 2003: 134–135). Although this conclusion might suggest that presidents have possessed a significant amount of leeway to wield their executive order authority during the era of the modern presidency, it is only tentative, since there are other methods that legislators can use to probe and challenge executive orders. An important question that develops from this discussion concerns why presidents have decided not to exploit their executive order power given that Congress seems to have been inactive in responding to many directives. We should expect that if Congress remains on the political sidelines regarding presidential power, the

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executive branch would assume it has a green light to proceed forward with exercising and expanding its powers. There is no easy method for analyzing this question, but the issue raises the idea that other elements within the political system may have been more influential than Congress in restraining the president’s executive order authority, such as the federal judiciary. Note 1. The term authority sources in this chapter refers to the constitutional, statutory, and other powers that presidents use to legitimize their executive orders, in order to remain consistent with the terminology that existing works use when analyzing executive orders (see Fleishman and Aufses 1976: 9).

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5 White House Lawmaking: An Unfinished Journey

T

he terrorist attacks on the World Trade Center and the Pentagon on 11 September 2001 severely tested the powers of the presidency. The question that scholars are beginning to assess is whether these events fundamentally changed the nature of the US presidency. The tentative evidence has suggested that although there have been changes to the structure of the executive branch, such as the creation of the Department of Homeland Security in the cabinet and some reorganization of responsibilities within federal agencies, the office along with its powers and challenges has not dramatically changed since the terrorist attacks. The presidency still operates within the system of a separation of powers and checks and balances. Presidents are still required to seek public approval, build coalitions with Congress, deal with a media-dominated society, operate within an enlarged bureaucracy, and work with state governments regarding public policy (Edwards 2003). Despite this preliminary assessment of the presidency, various scholars, members of the media, and politicians have claimed that President George W. Bush has personally changed regarding how he approaches his governing responsibilities since September 11. Some individuals both in the United States and abroad have come to view President Bush as a unilateralist president, especially regarding his handling of the Iraq War and fighting global terrorism. A main charge by these individuals is that President Bush often ignores the policy concerns of allied nations and the United States Congress when making foreign policy decisions. This idea is partially underscored in the Bush Doctrine, which advocates the preemptive use of force in the 123

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war against terror (Greenstein 2003: 101; Hilliard, Lansford, and Watson 2004: 129–131). Despite claims of a rising unilateral presidency, scholars have not fully contrasted President Bush’s exercise of unilateral powers with previous administrations to adequately determine whether these assertions are accurate. There are many approaches that we could take to analyze the degree of unilateral power that has amassed within the George W. Bush White House. One plausible beginning point is to analyze Bush’s executive order activity. This assessment of executive orders may provide one of many insights into whether any changes in presidential power have occurred since 11 September 2001. The results of a content analysis of all published executive orders that Bush issued during his first term, from January 2001 through December 2004, provides a preliminary assessment regarding how Bush’s executive order power at the midpoint of his administration contrasts with that of the rest of the modern presidents. Overall, the results demonstrate that Bush has not significantly departed from previous presidents regarding the types and quantity of executive orders that he issued during his first term. The president issued a total of 171 executive orders during his first four years. This amounts to 42.8 per year—28.8 policy orders, 12.8 routine orders, and 1.3 symbolic orders. In fact, Bush’s number of major policy directives is very similar to the average number of policy executive orders, reported in Table 2.2, that Reagan (29.8), George H. W. Bush (25.8), and Clinton (33.6) issued. Furthermore, Bush’s policy record falls short of Carter’s executive order activity (49.3) related to major policy directives. An important finding related to the George W. Bush presidency regards the president’s power to change policy in existing executive orders. On average, Bush revoked, superseded, and amended a combined total of 66.5 executive orders each year.1 Based on the previous results in Table 2.5, Bush was more active than his two recent predecessors, Clinton (35.0) and George H. W. Bush (24.5), in the average number of executive orders changed each year. Furthermore, George W. Bush changed more major policy executive orders (46.0) than those directives classified as symbolic (5.0) or routine (15.5) on a yearly basis. Apart from President Carter, who issued 54.5 major policy executive orders each year, Bush stands out as the second most active president in reforming major policy executive orders during

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the modern presidency. Bush also issued the largest yearly average of symbolic orders since 1936. George W. Bush has also been more active than presidents since the Carter administration in revoking, superseding, and amending executive orders that have been issued by previous administrations of the opposing political party (see Table 2.6 for comparison). During his first term, Bush changed 24.0 policy executive orders each year that were issued by Democratic presidents, while he reformed only 12.0 policy directives issued by Republicans. He also changed 5.8 Democratic and 5.8 Republican executive orders each year that were routine directives. Chapter 3 analyzed whether presidents strategically use executive orders to pursue specific types of policies related to war policy and administrative reforms within the executive branch. It also analyzed the level of executive order activity that presidents engaged in regarding distributive, redistributive, and regulatory policies. The results of the content analysis demonstrate that President George W. Bush was very passive in using executive orders related to war and military policy. During his first term, Bush issued only one executive order dealing with war. On 12 December 2001 he signed Executive Order 13239 to declare “Afghanistan, including the airspace above, as an area in which Armed Forces of the United States are and have been engaged in combat” (Bush, December 2001: 64907). This executive order served in conjunction with President Bush’s overall strategy to hunt for suspected Al-Qaida terrorists, including Osama bin Laden, in retaliation for the 11 September 2001 terrorist attacks. In contrast to war and military policies, Bush actively signed executive orders to initiate administrative reforms within the executive branch, an average of 16.3 executive orders each year—11.8 major policy executive orders and 4.5 routine. However, when we contrast these results with previous presidents (see Table 3.12), all administrations from Kennedy to Clinton were more active in issuing major policy executive orders each year related to administrative reforms. The results of the content analysis demonstrate that George W. Bush pursued a variety of administrative reforms with executive orders, with his main emphasis concentrated on creating presidential boards and committees, updating lines of succession within various federal departments, and extending the life of existing presidential committees.

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The results also indicate that Bush was more active in creating purely regulatory rather than distributive and redistributive policies. Specifically, he issued less than one directive each year that was either a distributive or redistributive policy. In contrast, Bush issued an average of 13.5 executive orders classified purely as regulatory policy each year, 7.8 of which were major policies and 5.5 of which were routine. Table 5.1 provides the yearly average of symbolic, routine, and policy executive orders that cited sources of authority during the first term of the Bush presidency. In contrast to the types of authority sources that previous administrations used to legitimize their executive orders (see Tables 4.1–4.11), President Bush relied mainly on statutory, constitutional, and presidential powers to justify his executive orders. Approximately 28.8 major policy executive orders each year referred to statutory power, 28.5 cited the Constitution, while 28.5 made reference to presidential power. Bush joins Clinton as the only modern president who did not cite the powers of the commander in chief for major policy executive orders. George W. Bush’s legal strategy for justifying executive orders in relation to specific and vague sources of authority follows the same pattern, persisting since the Kennedy administration, of presidents

Table 5.1

Yearly Average of Executive Orders Citing Sources of Authority During the First Term of the George W. Bush Administration

Sources Cited

Symbolic (mean = 1.3)a

Statutory Constitutional President Executive orders United Nations Commander in chief Residualb

1.0 1.0 1.0 — — 1.0 —

Total Average Routine Policy Number (mean = 12.8) (mean = 28.8) (mean = 42.8) 12.8 12.5 12.3 1.0 — — 0.3

28.8 28.5 28.5 1.3 1.3 — 1.0

42.5 42.0 41.8 2.3 1.3 1.0 1.3

Notes: a. The means reported here refer to the average number of executive orders that George W. Bush issued each year during his first term. b. Residual category includes the following sources of authority: proclamations, a measure to preserve Social Security, and a Supreme Court case.

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citing vague authority sources to protect their policy executive orders (see Table 4.13). Bush issued 13.8 major policy executive orders each year that purely cited vague grants of authority, while only 1.8 routine directives each year were justified by vague rather than specific authority sources. The jury is still out regarding George W. Bush’s executive order activity, and we will not know the extent of his executive order power until the end of his second term. There remains plenty of time for the Bush White House to make its imprint on public policy with executive orders and to expand presidential power. The tentative analysis suggests that Bush is following in the footsteps of his predecessors regarding the nature and level of executive order activity. However, we also see empirical evidence that Bush has been a bit more aggressive at changing policy within existing executive orders than have previous administrations. The results suggest that Bush covets his unilateral power to issue executive orders. However, his strategic policy actions demonstrate that he has not dramatically departed from the policy behavior of the rest of the modern presidents. In the end, George W. Bush is no more of a unilateralist than were his predecessors regarding executive orders. Modern Presidents and Their Executive Order Power

This book began with the assumption that presidents have actively and strategically used their executive order power throughout the modern US presidency. It was expected that presidents since Franklin Roosevelt have initiated major policy change with executive orders rather than pursuing symbolic and routine policies. This assumption was derived from two theoretical elements. The first is that presidents are strategic actors who rationally pursue their policy goals. Unilateral powers provide chief executives with the ability to establish law on their own without congressional approval. However, presidents must be strategic in deciding when and how to exercise their unilateral powers, because there can be political costs attached to their policy actions. The second theoretical component is that presidents encounter a complex administrative environment within the executive branch. The rise of the administrative state during the Franklin Roosevelt administration expanded the policy responsibilities of the president

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and led to a growth in the size of the federal bureaucracy (Dickinson 1997: 47–48). This change would eventually lead to a dispersion of power within the executive branch as the federal bureaucracy struggled to meet the growing policy concerns of the nation. The primary consequence of the administrative state was that it reduced the president’s direct control over the policymaking process (Durant and Warber 2001). In response to this problem, presidents have attempted to rely on their unilateral powers for control (Nathan 1983; Waterman 1989: 27). Executive orders are one of many policy tools that allow presidents to easily centralize their power over federal policymaking. As a result, we should anticipate that presidents would come to view executive orders as one of many solutions for pursuing policy within the complex administrative environment that characterizes the executive branch. The presence of the administrative state is not the only likely factor that has influenced presidential executive order activity. The transformation of the administrative state to the neoadministrative state during the past several decades may have influenced the number of executive orders that presidents have issued. A consequence of the neoadministrative state is that policymaking powers have further fragmented within the executive branch and have even been dispersed beyond the boundaries of the presidency. The role of federal agencies has diminished in making and implementing public policy, while public, private, and nonprofit organizations are beginning to participate more in these stages (Durant and Warber 2001: 222–223). The rise of the neoadministrative state should further result in executive orders becoming a prime policy-shaping tool within the White House. In order to better analyze presidential executive order power, scholars must move away from using the number of executive orders that presidents issue each year. We gain a clearer understanding about the extent of presidential power by separating executive orders that initiate major policies apart from those directives that focus on routine and symbolic policy. Although presidents actively use executive orders, the overall finding in this book suggests that presidents have not dramatically expanded their power with this unilateral tool across the modern presidency. This conclusion does not suggest in any way that the president’s executive order power has been in a state of decline. On the contrary, presidents have actively and strategically used executive orders. This book has shown that modern presidents

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have actively used executive orders to pursue major policy initiatives, to change existing policy made by their predecessors, and they have often developed legal strategies to protect these directives from coming under political attack from Congress. However, a gradual aggrandizement of executive order power has not occurred in the modern presidency. Even when we sift out those executive orders that create symbolic and routine policy, the number of major policy executive orders that presidents have issued has not dramatically increased over time. These findings challenge conventional thinking that argues presidents have expanded their powers by increasingly issuing executive orders to shape the direction of public policy in US politics (Mayer 2001: 220). There are several reasons that might explain why chief executives have not expanded their executive order power during the modern presidency. The first explanation relates to the president’s understanding of the neoadministrative state. Robert Durant and I assume that presidents do not fully understand the implications of the neoadministrative state. As a result, there is the likelihood that presidents will continue to use their unilateral policy tools in relatively the same manner as they did during the traditional administrative state to cope with the neoadministrative state (Durant and Warber 2001: 237–238). If presidents do not change their policy strategies in a dramatic way, then we should not expect to see a major departure in the number of executive orders that create significant policies. Although the administrative state has changed, the critical components of the separation of powers principle in US politics have not. Congress and the federal judiciary possess powers that they can use to challenge executive orders. We should expect that presidents will exercise their executive order authority with some degree of restraint to avoid entangling themselves in a major separation of powers battle. Congress has several methods that it can invoke to challenge or curb the power of executive orders. First, it can pass new laws to either nullify or modify an existing directive (Fleishman and Aufses 1976: 38). In addition, because the legislative branch controls federal spending, chief executives can be restricted from issuing executive orders that require appropriations to implement them unless Congress approves of such actions (Mayer 2001: 78). The federal courts also have several methods that they can exercise to limit the president’s power. For example, the Supreme Court can exercise judicial review to strike down executive orders that are

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unconstitutional. Federal courts also have a role in the interpretation of executive orders when they issue decisions that either directly or indirectly address specific executive orders (Howell 2003: 136–137). We currently do not know the extent of the actions that Congress and the courts have taken in response to executive orders. William Howell’s work (2003) has made some valuable inroads regarding the role of these two institutions, but more studies are warranted at this time. My evidence indicates that Congress has been passive in responding to the president’s executive order power. This finding also highlights a research puzzle that scholars must explore further in their studies. Specifically, why have presidents not seized upon this congressional apathy by aggressively expanding their executive order power? Future studies must analyze this conundrum within a normative and empirical framework. Presidents might believe that they lack the critical political capital necessary to win a separation of powers battle with Congress over executive orders and therefore hold back in aggressively using them. On the other hand, presidents might be more concerned with maintaining and building up their political support with Congress rather than antagonizing its members by engaging in a flurry of executive order activities. For example, sustaining cooperative political relationships with the Senate to minimize future battles over judicial or executive branch appointments might be more important to presidents than expanding their executive order power. Future Research on Executive Orders

A goal of this book has been to better explain, based on an analysis of every executive order issued since 1936, how presidents strategically use executive orders to create public policy. But there remain many facets of the president’s executive order power that scholars should consider beyond the scope of this book. The main focus should be placed on developing empirical studies that assess congressional and judicial responses to the president’s executive order power. My treatment of Congress in Chapter 4 only addressed a few methods that lawmakers use to limit the power of executive orders. Currently there are no studies that have content analyzed congressional committee and subcommittee reports to determine the extent of congressional activity in relation to executive

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orders. Howell’s works (2000, 2003) have shed some light on this subject, but we still do not have enough empirical information to make adequate generalizations about congressional criticisms against executive orders, nor do we fully understand the factors that motivate lawmakers to target certain directives. In addition, although there are early indications that Congress is passive in challenging executive orders, scholars have not presented normative discussions to account for this lack of action. Howell has also begun the process of empirically analyzing the role of the federal judiciary, and he found that judges are restrained in challenging executive orders (2000: 221–222; 2003: 172–174). Despite Howell’s progress, the presidency literature is still in need of more empirical data and theory to examine the presidential-judicial nexus regarding unilateral powers. Scholars have not fully explored the types of legal strategies presidents develop to counteract courts that challenge their authority. We also do not have enough information regarding the procedures and strategies that the Office of Legal Counsel in the Department of Justice follows when deciding the types of executive orders that the White House should sign into law. Access to this type of material is difficult to obtain, and a study would require researchers to conduct lengthy interviews. However, there are important questions regarding power that we should explore. For example, do careerists and political appointees in the Department of Justice influence the types of executive orders that the White House creates? How much authority do justice officials have in drafting the policy provisions in each directive? The solicitor general is a key player in the legal strategies of the White House. Studies on the importance of this political appointee are limited (see, for example, Caplan 1987; Pacelle 2003; Salokar 1992; Segal 1990), but this does not mean that we should ignore the influence of the solicitor general on cases that involve executive orders. For example, do solicitors general develop legal strategies to convince the Supreme Court against issuing rulings that reduce the policy scope of executive orders? Furthermore, do presidents use their solicitors general to support and encourage Supreme Court challenges against executive orders that previous presidents of an opposing party issued while in office? Scholars must also analyze the role of the federal bureaucracy regarding the creation and implementation of executive orders. The public policy literature mainly focuses on the implementation of con-

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gressional laws and those federal rules and regulations that the executive branch develops (see Mazmanian and Sabatier 1989; Pressman and Wildavsky 1973). In contrast, no major study has addressed whether bureaucrats implement executive orders according to the policy wishes of the president. Future studies should also explore whether presidents have been active in making sure that bureaucrats fully comply with implementing the provisions of their directives, and whether they actually instruct bureaucrats to relax the implementation of existing executive orders that presidents find difficult to terminate on their own. Finally, scholars should devote attention to the influence that both careerists and political appointees have over the types of executive orders that are created. For example, can federal personnel members influence the president’s policy decisions? Are these individuals capable of interfering with the ability of the White House to pursue specific executive orders? The role of the public and interest groups is another area that has not received serious attention from scholars studying executive orders. Although Congress has been a major arena in which lobbyists congregate, interest groups and citizens also pressure the executive branch to influence public policy. We do not have empirical evidence to demonstrate whether interests in society have influenced the types of executive orders that presidents have decided to sign into law. In addition, scholars have not pinpointed the types of interest groups that have lobbied the White House to support or oppose the development of specific executive orders. Finally, this book has provided a framework that can be used to study other unilateral tools, such as proclamations, White House memoranda, and other executive branch directives. Although these policy tools have been generally ignored by the presidency literature, they are important sources of presidential power. Scholars should explore whether presidents actively use these tools to pursue significant policies, and show how these tools differ from executive orders. Unilateral powers provide a fertile area for a new generation of scholars seeking to make significant contributions to the presidency field. This book has sought to provide a theoretical foundation and an empirical framework to expand our knowledge about one type of unilateral tool: executive orders. There remain theoretical and methodological difficulties that limit the degree of rigor and statistical techniques that we can apply to analyzing the president’s legal powers such as executive orders. Despite these problems, there are promising

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signs in the presidency field that the legal approach is finally moving away from relying exclusively on pure description, and toward encompassing a more scientific framework to analyze presidential power. This transformation will likely proceed at an incremental pace, but early indications suggest progress nevertheless. Note 1. George W. Bush signed Executive Order 13286, on 28 February 2003, to amend numerous directives, including an executive order issued by Calvin Coolidge on 1 March 1927. This executive order has not been included in the calculation of results for the Bush presidency, because a copy of this directive could not be located.

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T

he executive branch had no formal method for cataloging executive orders before 1907. As a result, there is no institutional record about the exact number of directives issued by presidents between the George Washington (1789–1797) and Theodore Roosevelt (1901–1909) administrations. Some of the directives that were issued during this time have resurfaced, and have been codified by the federal government as part of the official “unnumbered series” of executive orders. Scholars encounter a significant roadblock when studying executive orders before 1907, because “estimates of the unnumbered executive orders range from 15,000 to as high as 50,000” (Fisher 1997: 110). In an effort to promote administrative organization, the executive branch implemented a numerical system (referred to as the “numbered series”) in 1907 that gave the State Department the responsibility to keep track of any orders issued by the White House (Fisher 1997: 110). This system, however, was not reliable, because it did not require presidents to formally report all executive orders that they had signed into law. Furthermore, there was no federal law requiring presidents to publish the text of their orders so that Congress, citizens, and other interested parties could be informed of presidential actions. Therefore, between 1907 and 1936, presidents continued to possess a great degree of latitude when using their executive order authority, because there was no law to hold them accountable for their overall actions. Instead, the president had complete discretion regarding whether and when to announce the enactment of any 135

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newly created order. Scholars are unsure about whether the numbered series implemented by the State Department adequately accounts for all orders created between 1907 and March 1936. The passage of the Federal Register Act of 1936 significantly formalized the process of reporting executive orders, by holding presidents directly accountable for their actions. This act required presidents to publish the text of all executive orders in the Federal Register shortly after they were signed into law (Kerwin 1994: 10; Mayer 2001: 70). Unfortunately, presidents have discovered methods to withhold the publication of some directives. The Data Collection

The data for this book were collected by content analyzing all executive orders formally published in the Federal Register beginning with Executive Order 7316 (13 March 1936), issued during the Franklin Roosevelt presidency, and ending with Executive Order 13197 (18 January 2001), issued at the end of the Clinton administration. The total number of executive orders that I read during this time period was 5,392.1 There are two categories of executive orders that are not included in my data, because the texts of these directives either are not available to the general public or are extremely difficult to locate. First, there were orders issued during the Franklin Roosevelt and Harry Truman administrations whose titles, along with their cataloged numbers, have been published in the Federal Register without any text to accompany this information. Instead, there is usually a short sentence inserted in place of the text stating that the president has filed the contents of an executive order with the Office of the Federal Register. This information provides no indication as to whether the text will be issued at a later date. There are also areas in the Federal Register demonstrating that the executive order numbering system contains information gaps. I have attempted to locate some of these missing orders by relying on other data sources, such as material from archived data found on the websites of presidential libraries and the Library of Congress. I also combed through presidential papers and other pri-

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Appendix A Table A.1

Number of Executive Orders Whose Text was Not Published in the Federal Register

Administration

Year

F. Roosevelt

1936 1937 1938 1939 1940 1941 1942 1943 1944 1945 1945 1946 1947 1948

Truman

Total

Total Number 60 75 69 67 88 80 35 4 6 4 5 13 5 9 520

mary and secondary materials on the presidency to determine whether any orders were included in these works. Unfortunately, I was not successful in locating these missing directives and as a result, there is a collection of executive orders that I had to exclude from my study. Table A.1 provides the frequency counts for those years containing gaps in the classification system of the numbered series. The literature does not address the reasons why presidents have kept the text of some executive orders from the public. Many of the titles for those orders that contain no text suggest that they are rather routine. For example, I discovered that there are numerous directives that exempt a particular member of the federal personnel system from a provision in the civil service laws that requires compulsory retirement. This is typically a routine directive that allows an individual to continue to be employed by the federal government. Perhaps a president decided to keep the text hidden for privacy reasons, since some of these directives targeted specific individuals. At this point, I can only speculate why the texts of these orders were not published. However, it is clear that presidents have found loopholes in the

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Federal Register Act of 1936 regarding the publication of executive branch documents. A second set of orders excluded from the data set comprises those directives that presidents have deemed classified information, for which chief executives have refused to publish both their title and their text. Traditionally, presidents have argued that certain orders are not published because they could threaten national security. Executive Order 10571-A, issued on 26 October 1954 by Eisenhower, is an example. This directive contained sensitive information about broadcast frequencies related to government radio stations. The White House most likely decided to withhold the publication of this order because it contained specific information that could harm US security were other nations to gain access to it. After a security threat has abated, the executive branch might decide to assign a classification number to an order and formally publish its text in the Federal Register. Although only a few classified orders have been published, they are easy to identify. The federal government usually assigns these orders with a number that contains a fraction (e.g., Executive Order 1221/2) or it issues a number that includes a letter (e.g., Executive Order 122-A). I have only encountered a small number of classified orders that the White House later decided to declassify. Scholars find it extremely difficult, even impossible, to determine the number of classified orders that are not accounted for in the Federal Register. A question that arises is whether presidents have classified orders because of security or national interest concerns, or whether they hide certain controversial orders from the public and Congress to promote their policy agendas. This empirical question cannot be answered, but it is important to consider, since evidence has surfaced that presidents have secretly used unilateral tools intended for other purposes in order to achieve some of their policy goals. For example, a Government Accounting Office report conducted in 1988 found that the Reagan administration issued many national security directives to establish domestic and military policy, rather than using them to address security concerns in foreign affairs. Congress finds it difficult to question and curb the president’s use of national security directives, because most of these policy statements are classified as confidential information (Cooper 1997: 546).

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The Structure of Executive Orders

I relied on three sets of source materials to obtain the text of executive orders for my content analysis: the Federal Register, the Code of Federal Regulations, and the website of the US National Archives and Records Administration (http://www.archives.gov). The length of each order varies according to the type of policy issue it addresses and the president who signed it into law. An order can range from a couple of sentences, to a short paragraph, to a couple of pages, to in some instances more than thirty pages. Typically, Franklin Roosevelt issued orders that were extremely short and consisted of no more than a few paragraphs. However, some executive orders issued during the Clinton administration were much longer than those issued by his predecessors and extended beyond twenty-five pages. In general, most orders span fewer than five pages. Despite their length, most executive orders contain a similar set of standardized information. Besides providing a classification number assigned by the federal government, most orders specify the sources of authority presidents cite to legitimize their unilateral authority. There are various options that presidents choose to add legal and constitutional authority to support their actions, such as invoking the powers of the Constitution, specific statutes, treaties with foreign countries, and other executive orders. Presidents have even gone beyond the scope of the Constitution by arguing that United Nations resolutions have made it necessary for them to create orders to deal with national security and foreign affairs. I have found in my analysis that in rare instances, presidents provide no sources of authority to legitimize their actions. In some instances, executive orders resemble the structure of a presidential proclamation (see Cooper 2002: 118) by including a preamble at the beginning of their text. These preambles are used by administrations to establish theoretical arguments to justify their reasons for issuing a directive. For example, a preamble might mention that the nation’s security or its economic stability depends on further executive action. The core of an order is the actual policy provisions. In some orders, White House administrations are very clear about the intent of their actions and provide specific guidelines to assist executive departments and agencies in either implementing or initiating policy.

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However, other directives may provide a clear discussion of their purpose, but confer great discretion on executive branch officials who must execute them. Following the text of each order, the date when the president formally issued the directive is denoted, along with the president’s signature to add legitimacy. At this point, an executive order is officially enacted as a law, even before it is reported in the Federal Register for the public and Congress to view. Classifying Executive Orders

Traditionally, scholars have assumed that executive orders are presidential directives that require action from the federal bureaucracy regarding the implementation of public policy. In contrast, presidential proclamations are assumed to be symbolic statements intended for the general public (Cooper 1997: 539). In reality, it is extremely difficult to completely separate an executive order from a proclamation, since many are very similar both in purpose and in the way they are constructed. In some cases, it would be exceedingly difficult to differentiate between executive orders and proclamations without the White House including the term “executive order” or “proclamation” at the beginning of each directive. The federal judicial system has also contributed to the confusion and ambiguity surrounding a clear definition of “executive order.” Although the Supreme Court historically has provided no legal distinction between an executive order and a proclamation, federal courts have held that both types of directives have the force of law, even though the Constitution does not provide presidents with this power (Cooper 1997: 539). More important, the courts have generally remained on the political sidelines by allowing chief executives great flexibility in exercising these unilateral powers (Howell 2003: 173–174). The assessment of executive orders involves the art of interpretation. Whereas one observer might conclude that the text of an order is accomplishing an administrative and routine task, another might interpret that same order as initiating major policy. Kenneth Mayer underscored this point by stating that the classification of executive orders is a subjective process (2001: 85). During the content analysis stage, I classified executive orders into seven categories: symbolic,

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routine, policy, symbolic/routine, routine/policy, symbolic/policy, and symbolic/routine/policy. Symbolic Directives

Symbolic orders promote certain values that embody the spirit of US democracy, such as patriotism, national unity, and honoring those in public and military service. For example, they are frequently used to establish or alter national symbols, such as the official seals of the presidential and vice presidential offices as well as those of newly created federal departments and agencies. More commonly, symbolic orders create and award medals for heroic service to soldiers in the military or to dedicated members of the federal personnel system. These orders typically provide guidelines regarding the design and colors used to develop a particular medal or certificate, instructions describing how these medals are to be worn on military uniforms, and they also identify the individuals who are qualified to receive them. Presidents also issue symbolic directives to serve as memorial tributes for federal officials, such as members of Congress or the Supreme Court. Typically, these orders require that all federal buildings lower their flags to half-mast during a specified time to honor the public service of the deceased. Routine Directives

A main characteristic of routine directives is that they do not drastically depart from existing or newly created policies enacted by Congress. Instead, these orders execute responsibilities that are within the legal or perceived scope of presidential authority. For example, an executive order that delegates authority to an executive branch official or department to implement a specific section of law according to congressional intent is classified as routine. In contrast, an order requiring that sections of a law be implemented in a manner that seems contrary to congressional intent is not classified as routine. I encountered orders during my content analysis for which it was unclear whether presidents were departing from or maintaining existing policy. When this occurred, I consulted the Code of Federal Regulations to read the relevant provisions of a law that an order addressed. There were instances when it was difficult to locate laws

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passed during the nineteenth and early twentieth centuries. Therefore, I relied on the Congressional Record, the United States Statutes at Large, various websites maintained by federal agencies and departments, and any pertinent information culled from secondary source materials that provided a brief description of a law’s intent. Some executive orders were classified as routine if their intent was to accomplish a simple, noncontroversial, administrative task in the executive branch. At the end of most calendar years, presidents issue orders to adjust the pay scales of federal employees to account for increases in inflation and the cost of living. Although some members in the public might question whether bureaucrats deserve a raise, this is a routine responsibility that Congress has generally deferred to the president. Historically, the White House has used executive orders to make only incremental changes to current pay scale figures adopted by the federal government (Cooper 2002: 32). Federal laws either provide presidents with discretion to implement congressional laws or they instruct them on how to execute the policy wishes of Congress. I categorized as routine those directives that attempt to comply with congressional wishes or the law. For example, presidents frequently issue executive orders to create an emergency board in the executive branch to solve labor disputes in the airline, railroad, transportation, and shipping industries between union-represented employees and their employers. The most common source of authority cited by presidents to legitimize their actions is Section 10 of the Railway Labor Act. This act states: If a dispute between a carrier and its employees be not adjusted under the foregoing provisions of this chapter and should, in the judgement of the Mediation Board, threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President, who may thereupon, in his discretion, create a board to investigate and report respecting such dispute. Such board shall be composed of such number of persons as to the President may seem desirable: Provided, however, that no member appointed shall be pecuniarily or otherwise interested in any organization of employees or any carrier. (45 U.S.C. 160)

Clearly, directives that establish labor mediation boards are within the confines of the Railway Labor Act. Therefore, I classified the text of these and similar orders as routine. I recognize that the written text of an order can mask a presi-

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dent’s political motivations for pursuing certain directives before they are enacted into law. For example, the types of unions involved in a labor dispute might pressure presidents to intervene in certain situations. Presidents might be inclined to arbitrate those disputes that promise to provide them with substantial political benefits, such as votes from union members or workers representing an entire industry during a presidential election. In contrast, chief executives might avoid entangling themselves in situations that are politically dangerous, because the benefits of interference may not be worth the time or resources required to handle a dispute. In the end, politics generally dictates the types of executive orders presidents will issue, even if they are symbolic or routine directives. However, the analysis in this book classifies orders according to the actual information contained in their text rather than speculating on the political motivations of presidents. Policy Initiatives

James Anderson’s classic definition states that public policy is “a relatively stable, purposive course of action followed by an actor or set of actors in dealing with a problem or matter of concern” (2006: 6). Although there is no doubt that all executive orders are policy statements, they are used to accomplish different goals. An order is categorized as a major policy initiative if it is either departing from the status quo of a specific policy that has already been implemented, or interpreting and implementing legislation that diverts from the original intent of Congress. In essence, an order is a policy initiative when its main function is presidential lawmaking. Executive orders that complement a president’s administrative strategies in achieving greater control over the federal bureaucracy have also been classified as policy initiatives, because these strategies are used by an administration to alter the policy process and its outcomes during implementation. For example, as noted earlier, presidents issue executive orders at the end of the calendar year to adjust the pay scales of federal employees to account for a rise in the cost of living. Such orders are considered to be routine because the pay of federal personnel does not directly relate to a president’s ability to control the bureaucracy for policy purposes. Likewise, an order is routine if it targets a specific individual in a federal agency or department that exempts him or her from mandatory retirement.

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Furthermore, presidents have amended executive orders to update the list of successors to head departments or agencies when there are vacancies as a result of illness or death. In this instance, there is no attempt by the president to utilize appointees to ensure that his policy goals are being implemented according to his ideological and philosophical views. Instead, these directives seek to prepare the executive branch for any unexpected interruptions that might affect its daily routines and operations. In contrast, the White House might centralize policymaking by creating a directive that shifts policy responsibilities from one department to another that is more directly controlled by the president or his White House advisers. Another type of policy initiative occurs when presidents issue orders to expand their control over the career bureaucracy by increasing the number or layers of personnel who serve in key areas, such as in the Senior Executive Service or as Schedule C employees. Apart from these examples, another important use of executive orders for policy purposes is to establish presidential councils, task forces, and other major committees as a method to efficiently centralize presidential control over certain policy domains. These activities signal an administration’s commitment to a policy concern and set in motion the process whereby the White House begins to focus its attention on these problems. For example, President Clinton issued Executive Order 12975, on 3 October 1995, to create the National Bioethics Advisory Commission. The main task of this council was to provide policy advice to the White House related to any type of research conducted by federal agencies and executive departments that used human subjects as part of their clinical experiments. This executive order also required this commission to develop a set of ethical standards to guide the research process in the federal bureaucracy. Although Executive Order 12975 appeared to be an attempt by the Clinton administration to accomplish routine, administrative responsibilities, the president’s intention was to use the National Bioethics Advisory Commission to influence policy issues that eventually would affect the general public. Section 3 of Executive Order 12975 created this commission. However, in Section 2, Clinton indicated his intentions to make bioethical issues a high policy priority during his administration by ordering the federal bureaucracy to establish

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public educational programs to enhance activities related to human subjects protection, provide forums for addressing ongoing and emerging issues in human subjects research, and familiarize professionals associated with conducting research involving human subjects. Where appropriate, such professional and educational programs should be organized and conducted with the participation of medical schools, universities, scientific societies, voluntary health organizations, or other interested parties. (Clinton, October 1995: 52036)

Clinton’s commission allowed the White House to further centralize control over policy domains in the federal bureaucracy related to research in genetics, cloning, and stem cells. This commission also would serve as the organizational infrastructure that Clinton required to promote his educational programs on bioethics and to influence the research agendas of medical and health organizations in the public and private sectors. Historically, presidents since Franklin Roosevelt have frequently relied on their executive order authority to create a variety of commissions and advisory councils, directly overseen by the White House, to promote and influence the direction of their policy agendas (Mayer 2001: 76–77). Hybrid Orders

In many cases, I found it difficult to classify an order into a single, exclusive category. Although each executive order focuses on a broad policy area such as environmental politics, foreign aid, or personnel policy, each has various dimensions as well: one section may seem routine, while another may resemble a policy initiative. As a result, some executive orders take on a hybrid quality, containing combinations that are either symbolic and routine, routine and policy, symbolic and policy, or symbolic, routine, and policy. Since parsimony is an important value in social science research (see King, Keohane, and Verba 1994: 29–30), I have collapsed my classification scheme to fit all orders into one of three exclusive categories: symbolic, routine, or policy. I recoded as policy initiatives those directives that are routine and policy, symbolic and policy, or symbolic, routine, and policy. Hybrid orders that are symbolic and routine are classified as purely routine. The major reason for collapsing the data is that with the exception of orders classified as both routine and policy, very few orders are classified as hybrids. Table A.2 provides the number of hybrid orders that I coded for each administration.

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146 Table A.2

Appendix A Number of Hybrid Executive Orders

Symbolic/ Administration Routine F. Rooseveltb Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton Total

1 (0.1%) 5 (0.6%) 2 (0.4%) — 5 (1.5%) 1 (0.3%) — — — — — 14 (0.3%)

Symbolic/ Policy — — — — 2 (0.6%) 1 (0.3%) — — — — 1 (0.3%) 4 (0.1%)

Routine/ Policy 181 (10.3%) 164 (18.8%) 50 (10.4%) 22 (10.3%) 35 (10.8%) 38 (11.0%) 31 (18.3%) 56 (17.5%) 64 (16.8%) 30 (18.1%) 113 (31.0%) 784 (14.5%)

Symbolic Routine/ Policy 1 (0.1%) 1 (0.1%) — — 1 (0.3%) — — 2 (0.6%) 1 (0.3%) — 1 (0.3%) 7 (0.1%)

Totala 183 (10.5%) 170 (19.5%) 52 (10.8%) 22 (10.3%) 43 (13.2%) 40 (11.6%) 31 (18.3%) 58 (18.1%) 65 (17.1%) 30 (18.1%) 115 (31.6%) 809 (15.0%)

Notes: a. The percentages in the total column are based on the total number of hybrid directives that an administration issued divided by the total number of executive orders that a president issued during his term. The total numbers of executive orders are: F. Roosevelt, 1,752; Truman, 873; Eisenhower, 482; Kennedy, 214; Johnson, 325; Nixon, 346; Ford, 169; Carter, 320; Reagan, 381; G. H. W. Bush, 166; Clinton, 364. The total number of executive orders issued by all administrations is 5,392. b. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

Since the Nixon presidency, there generally has been an increase in the percentage of hybrid orders that are routine and policy. I have recoded these orders as policy initiatives because, after reading their text, I suspect that presidents might use this type of hybrid as a strategy to legitimize their policy initiatives. That is, presidents might reason that by including routine tasks in a policy initiative, they can reduce the probability that Congress will challenge it, as the legislative branch might be more aggressive in attacking those orders that are purely major policy initiatives. The art of legal writing and executive orders is a topic beyond the scope of this book. However, it is an issue that warrants attention in the literature, because it is an important component to understanding the formulation of executive branch policy.

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Creating a New Dependent Variable to Study Executive Orders

The dependent variable in my analysis is the level of executive order activity by presidents. The data collected through content analysis allow me to address this dependent variable from a variety of theoretical and empirical angles. One method of measuring it is to focus on the number of executive orders issued each year that are policy initiatives, as opposed to those that are symbolic or routine. Scholars risk reaching misleading conclusions about the scope of presidential power when they analyze the total number of executive orders that presidents issue every year. Relying on the number of executive orders as the dependent variable can be useful when describing differences between administrations, as it provides scholars with insight into the frequency and possible importance presidents place on this unilateral power. Studies that use the total number of executive orders as the dependent variable are limited in explanatory power because they mask the strategic nature of these directives. For example, suppose a study attempts to analyze presidential executive order authority across a large time period to determine if presidents issue more executive orders before a congressional midterm or presidential election to increase their party’s support among voters. Scholars might conclude that if there is no statistically significant variation between the number of executive orders that chief executives issue in nonelection compared to election years, we should assume that presidents do not use their executive order authority to influence the electoral process. But although presidents might not issue more orders during an election year, this does not lead to the conclusion that presidential strategies regarding executive orders remain unchanged. Instead, presidents might be more selective in the types of executive orders that they issue. For example, the number of routine directives might decrease while presidents shift greater attention to creating executive orders that promote their policy agenda, in order to reach out to specific voters. Scholarly assumptions that the executive order authority is a potent policy tool are built upon a weak theoretical foundation, since no empirical evidence exists to substantiate this claim. I argue that the total number of orders issued by presidents is insufficient to understanding the power of executive orders. Table A.3 provides the number of orders issued by each adminis-

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Table A.3

Total Number of Published Executive Orders

Administration

Total Number of Published Executive Orders

F. Roosevelta Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan G. H. W. Bush Clinton Total

1,752 873 482 214 325 346 169 320 381 166 364 5,392

Note: a. Results for Franklin Roosevelt are based on data from March 1936 to April 1945.

tration since 13 March 1936 that are published in the Federal Register. Lyndon Johnson issued a total of 325 orders during his administration, whereas George H. W. Bush issued 166. A simple conclusion that can be made from these data is that Johnson relied on his executive order authority more often than Bush. However, the contents found in these orders might reveal that Bush issued more orders to strategically pursue his conservative agenda, whereas Johnson might have used orders for accomplishing routine, administrative tasks. Thus the policy substance of executive orders is key to understanding presidential authority regarding this unilateral power. If presidents are issuing more orders over time, scholars have a tendency to automatically infer that there has been an increase in presidential power. In some instances, a president’s decision to issue more executive orders could be an indication that his power has weakened. For example, scholars have asserted that President Ford’s heavy reliance on veto authority might have indicated that presidential power had diminished on account of the Nixon administration’s involvement in the Watergate scandal and the fact that the Democrats controlled the policy agenda in Congress (Spitzer 1993: 73). The lessons that scholars have learned from studying the president’s veto power might be applicable to understanding executive orders during

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specific times. Presidents who encounter a political environment that is hostile to their policy agenda might have to rely on executive orders to accomplish some type of policy record. Thus, an increase in the number of executive orders might be an indicator of presidential weakness. The total number of executive orders that presidents issue each year reveals limited information about presidential power. Specifically, this data set ignores how presidents strategically use these directives to achieve their policy goals. The process of content analyzing executive orders presents scholars with numerous methodological problems that cannot be easily solved. However, we gain a greater understanding of these unilateral policy tools by sorting executive orders based on their policy content. Note 1. I also content analyzed all published executive orders that President George W. Bush issued during his first term in office (2001–2004). However, I have excluded the results for President Bush from the main analyses in this book because his second term is at this time still under way. Instead, in Chapter 5, I provide a preliminary assessment of Bush’s executive order power in relation to my overall findings.

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Appendix B: Yearly Number of Published Executive Orders Issued by Modern Presidents

Administration

Symbolic

Routine

Policy

Total Number Published

Franklin D. Roosevelt 1936 (March–December) 1937 1938 1939 1940 1941 1942 1943 1944 1945 (January–April)

0 0 0 0 0 4 8 4 2 0

148 173 170 154 182 212 162 63 56 14

8 10 11 66 40 85 84 51 34 11

156 183 181 220 222 301 254 118 92 25

Harry S. Truman 1945 1946 1947 1948 1949 1950 1951 1952 1953 (January)

5 4 1 1 0 3 3 5 2

71 84 70 78 60 77 69 70 5

58 46 27 21 9 25 46 30 3

134 134 98 100 69 105 118 105 10 (continues)

151

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152 Table B

Appendix B continued

Routine

Policy

Total Number Published

6 4 1 2 6 1 8 3 0

52 54 51 33 35 38 42 30 9

22 15 13 9 13 11 10 9 5

80 73 65 44 54 50 60 42 14

John F. Kennedy 1961 3 1962 3 1963 (January–November) 3

45 49 28

22 37 24

70 89 55

Lyndon B. Johnson 1963 1964 1965 1966 1967 1968 1969 (January)

2 4 3 2 0 2 1

2 32 41 32 38 24 7

3 20 30 23 28 30 1

7 56 74 57 66 56 9

Richard M. Nixon 1969 1970 1971 1972 1973 1974 (January–August)

4 3 5 3 2 0

25 33 35 31 37 23

23 36 23 21 25 17

52 72 63 55 64 40

Administration

Symbolic

Dwight D. Eisenhower 1953 1954 1955 1956 1957 1958 1959 1960 1961 (January)

(continues)

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Appendix B Table B

continued

Administration

Symbolic

Routine

Policy

Total Number Published

Gerald R. Ford 1974 1975 1976 1977 (January)

2 1 4 1

13 31 26 11

14 35 26 5

29 67 56 17

James E. Carter 1977 1978 1979 1980 1981 (January)

3 0 3 1 0

22 26 24 35 9

41 52 50 37 17

66 78 77 73 26

Ronald W. Reagan 1981 1982 1983 1984 1985 1986 1987 1988 1989 (January)

2 0 0 1 0 0 1 2 0

10 26 20 21 13 18 9 18 2

38 37 37 19 32 19 33 20 3

50 63 57 41 45 37 43 40 5

George H. W. Bush 1989 1990 1991 1992 1993 (January)

0 0 4 3 1

8 15 17 14 1

23 28 25 23 4

31 43 46 40 6 (continues)

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154 Table B

Appendix B continued

Administration

Symbolic

Routine

Policy

Total Number Published

William J. Clinton 1993 1994 1995 1996 1997 1998 1999 2000 2001(January)

0 2 0 2 0 1 0 2 0

15 18 12 15 8 8 8 2 2

42 34 28 32 30 29 27 37 10

57 54 40 49 38 38 35 41 12

George W. Bush 2001 2002 2003 2004

0 0 3 2

20 8 12 11

34 23 26 32

54 31 41 45

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Aberbach, Joel D., 22, 31. See also Congress, oversight Administrative presidency, 6, 13–14, 103 Administrative Procedures Act of 1946, 53 Administrative state, 11, 38–39, 127–128 Amending. See Policy change Anderson, James E., 16, 50, 61, 143 Arnold, R. Douglas, 47, 116 Aufses, Arthur H., 46, 100, 129 Authority sources, 18, 23, 26n4, 87–105, 121n1, 126–127, 139 Bailey, Stephen K., 87 Baker, Ross K., 112 Barnes, Jeb, 119 Barr, Bob, 109 Barrett, Andrew, 17. See also Unified vs. divided government Barrett, David M., 10 Beam, David R., 31, 87 Begala, Paul, 63 Bennet, James, 63 Berman, Larry, 10 Berman, William C., 63

Bernstein, Carl, 70 Binder, Sarah A., 17. See also Unified vs. divided government Black, Hugo, 89–90 Bond, Jon R., 1, 17. See also Unified vs. divided government Borrelli, MaryAnne, 48 Bryner, Gary C., 87 Burns, James MacGregor, 26n5 Bush, George H. W.: administrative reforms, 82; authority sources, 92–93, 98–99, 102; congressional debates, 112–114; congressional reforms, 119; executive orders issued, 39–40, 119, 124, 146, 148, 153; Gulf war, 77–78; military and war policy, 78; policy change, 52, 55–58, 124 Bush, George W., 149; administrative reforms, 125; authority sources, 126–127; and Clinton administration, 3; Congress, 106; distributive policy, 126; executive orders issued, 154; faithbased initiatives, 3, 35; military and war policy, 125; policy change, 124–125; redistributive

165

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166 policy, 126; regulatory policy, 126; social security, 90; succession, 35; terrorism, 3; unilateral powers, 123–125 Buy American Act, 37 Byrd, Robert C., 108 Caplan, Lincoln, 131 Carter, James E.: administrative reforms, 82; authority sources, 92–93, 97, 99, 101–103; congressional debates, 112–114; congressional reforms, 119; executive orders issued, 39–40, 61, 124, 146, 148, 153; military and war policy, 78; policy change, 52, 55–59, 124 Civil rights, 8, 10, 25, 73–74, 84 Clark, Tom, 105 Clinton, William J., 3, 22, 43, 63; administrative reforms, 82; authority sources, 92–93, 99, 102–103, 126; and Bush, George W., 3; Buy American Act, 37; and Congress, 22, 36, 106; congressional debates, 112–113; congressional reforms, 119; executive orders issued, 39–40, 124, 139, 146, 148, 154; federal employees, pay scales of, 51; federalism, 49, 53; impeachment, 68–70; military and war policy, 79; and Monica Lewinsky, 67–68; National Economic Council, 81; policy change, 52, 56–59, 124; President’s Committee on Mental Retardation, 50–51; presidential commissions and task forces, 83, 144–145; regulatory review, 49–50; resurrection, of statutes, 36

Index

Cohen, David B., 25, 65 Congress, 21–24; challenges to presidential power, 105–121, 130; and Clinton administration, 22, 36; coalition building, 15; floor debates, 110, 112–118; House of Representatives, 90–91, 101, 107–118; legislation, 31–32; oversight, 22; presidential success in, 71; reforming executive orders, 47, 108–111, 119–120; resurrection of laws, 36; rhetoric and executive orders, 22, 106–108; during scandals, 70–71; Senate, 107–110, 112–118; war powers, 19. See also Elections Conlan, Timothy J., 31, 87 Cooper, Phillip J.: administrative reforms, 81; authority sources, 23; legal status of executive orders, 31; national security directives, 80, 138; proclamations, 44, 139–140; unilateral powers, 1, 5 Corwin, Edward S., 25, 44 Cutler, Lloyd N., 64. See also Unified vs. divided government Daniels, Mark R., 16, 62 Daynes, Byron W., 53 Deering, Christopher J., 105 Democratic Party, 14, 20–21, 72; authority sources, 99; congressional debates, 115–117; distributive policy, 84; executive orders issued, 45; military and war policy, 79–80; national elections, 75; policy change, 59–61, 125; redistributive policy, 84; regulatory policy, 85; unified vs. divided government, 66–67

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Department of Justice, 48, 90, 131 Desegregation, 18, 73–74 Dickinson, Matthew J., 128 Discrimination policy: federal contracts, 10, 84. See also Civil rights Distributive policy, 20–21, 83–85 Dodd, Lawrence C., 31 Dodds, Graham G., 43 Downs, Anthony, 8–9, 17 Durant, Robert F., 5– 6, 11–12, 26n1, 38–39, 128–129 Dye, Thomas R., 87 Edwards, George C., III, 1, 55, 123; congressional coalitions, 15; presidential leadership, 26n5; presidential power, 24–25; public support, 55, 88; unified vs. divided government, 17, 55 Eisenhower, Dwight D.: administrative reforms, 82; authority sources, 94, 101–103; civil rights, 84; congressional debates, 112–113; congressional reforms, 119–120; congressional study, 91; executive orders issued, 39–40, 138, 146, 148, 152; military and war policy, 78; policy change, 52, 56, 58–59; unified vs. divided government, 67 Elections, 15, 18, 24, 73–76, 117–118; target populations, 75–76. See also Congress Ervin, Sam, 109 Executive branch reorganization, 20 Executive Order 8051, 37 Executive Order 8734, 107 Executive Order 9066, 36 Executive Order 9981, 18 Executive Order 10340, 89–90 Executive Order 10571-A, 138

167

Executive Order 10925, 113 Executive Order 11022, 34–35 Executive Order 11063, 8 Executive Order 11280, 50–51 Executive Order 11297, 32 Executive Order 11605, 108–109 Executive Order 11776, 50 Executive Order 12291, 49–50 Executive Order 12553, 56 Executive Order 12612, 49 Executive Order 12727, 78 Executive Order 12835, 81 Executive Order 12849, 37 Executive Order 12866, 49–50 Executive Order 12875, 49 Executive Order 12923, 36 Executive Order 12975, 144–145 Executive Order 12984, 51 Executive Order 12990, 51 Executive Order 12994, 50 Executive Order 13033, 51 Executive Order 13083, 26, 49 Executive Order, 13122, 83 Executive Order 13198, 3, 35 Executive Order 13199, 3, 35 Executive Order 13210, 90 Executive Order 13239, 125 Executive Order 13286, 133n1 Executive orders: administrative reforms, 81–82, 125; authority sources, 18, 23, 26n4, 87–105, 121n1, 126–127, 139; Bush (George H. W.) administration, 39–40, 52, 55–58, 77–78, 82, 92–93, 98–99, 102, 112–114, 119, 124, 146, 148, 153; Bush (George W.) administration, 3, 35, 90, 106, 123–127, 149, 154; Carter administration, 39–40, 52, 55–59, 61, 78, 82, 92–93, 97, 99, 101–103, 112–114, 119, 124, 146, 148, 153; cataloging execu-

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168 tive orders, 135–136; civil rights, 8, 10, 73–74, 84; Clinton administration, 3, 22, 36–37, 39–40, 43, 49–53, 56–59, 63, 67–70, 79, 81–83, 92–93, 99, 102–103, 106, 112–113, 119, 124, 126, 139, 144–146, 148, 154; congressional reforms, 119–120; congressional responses, 22–24, 105–121; distributive policy, 20–21, 83–85; Eisenhower administration, 39–40, 52, 56, 58–59, 67, 78, 82, 84, 91, 94, 101–103, 112–113, 119–120, 138, 146, 148, 152; federal contracts, 10; federal personnel, 51, 142; federalism, 49; Ford administration, 39–40, 52, 56, 58–59, 79, 82, 96, 101–102, 112–114, 119, 146, 148, 153; Hoover administration, 2–3; hybrid executive orders, 145–146; Johnson (Lyndon) administration, 32, 39–40, 50–52, 56, 58, 78, 82, 95, 102, 112–113, 119, 146, 148, 152; Kennedy administration, 8, 34–35, 39–40, 52, 56–58, 79, 82, 92, 95, 101–103, 112–113, 119, 146, 148, 152; legal status, 31, 46; military and war policy, 19, 76–81, 125; national elections, 18, 74–76, 117–118; Nixon administration, 11, 39–40, 50–52, 56, 58–59, 68–70, 79, 82, 93, 96, 98, 101–103, 108–109, 112–114, 119, 146, 148, 152; President’s Committee on Mental Retardation, 50–51; presidential scandals, 17–18, 67–70; presidential tenure, 18, 71–73; Reagan administration, 39–40, 49–50, 52, 55–59, 78, 82, 97, 102,

Index

112–113, 119, 124, 138, 146, 148, 153; redistributive policy, 20, 83–85; regulatory policy, 20–21, 84–86; regulatory review, 49–50; Roosevelt (Franklin) administration, 2–3, 36–37, 39–40, 52, 79–80, 82, 92–93, 101–103, 107, 112–113, 119, 136–137, 139, 146, 148, 151; segregation in armed forces, 18; and Supreme Court, 21, 47, 89–90, 105, 129–130; target populations, 73–75; Truman administration, 18, 39–40, 52, 56, 58–59, 73–74, 79, 82, 84, 89–94, 99, 101–105, 112–113, 119–120, 136–137, 146, 148, 151; unified vs. divided government, 17, 67, 116–117. See also Congress; Democratic Party, policy change; Policy executive orders; Republican Party; Routine executive orders; Symbolic executive orders Faith-based initiatives, 3, 35 Farrand, Max, 105 Federal personnel, 51, 142 Federal Register Act of 1936, 136 Federal rulemaking, 54 Federalism, 49, 53 Fesler, James W., 54 Fisher, Louis, 110; authority sources, 26n4; budgeting powers, 45; cataloging executive orders, 135; congressional legislation, 32; funding executive orders, 83, 109; Supreme Court, 47; war powers, 45, 76–77, 80 Fleisher, Richard, 1, 17. See also Unified vs. divided government Fleishman, Joel L., 46, 100, 129 Ford, Gerald R.: administrative

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reforms, 82; authority sources, 96, 101–102; congressional debates, 112–114; congressional reforms, 119; executive orders issued, 39–40, 146, 148, 153; military and war policy, 79; policy change, 52, 56, 58–59 Franklin, Grace A., 83–84 Genovese, Michael A., 35 Gleiber, Dennis W., 1, 65 Greenstein, Fred I., 124 Gross, Bertram, 31 Hauptmann, Emily, 8 Hawley, Willis D., 81 Hayes, Michael T., 61 Hilliard, Bryan, 124 Hoff, Joan, 67, 103 Hoover, Herbert, 2–3 Howell, William G., 1, 25; Congress, 23–24, 106, 111, 118, 120, 130; judicial challenges,129–131, 140; significant executive orders, 41–42; Supreme Court, 21, 129– 130; unified vs. divided government, 65–66; unilateral powers, 4–6 Hult, Karen, 48 Impeachment, 68–70 Japanese Americans, internment of, 36 Johnson, Lyndon B.: administrative reforms, 82; authority sources, 95, 102; congressional debates, 112–113; congressional reforms, 119; delegation of authority, 32; executive orders issued, 39–40, 146, 148, 152; military and war policy, 78; policy change, 52, 56,

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58; President’s Committee on Mental Retardation, 50–51 Jones, Charles O., 64 Kassop, Nancy, 48 Kennedy, John F.: administrative reforms, 82; authority sources, 92, 95, 101–103; civil rights, 8; congressional debates, 112–113; congressional reforms, 119; executive orders issued, 39–40, 146, 148, 152; military and war policy, 79; policy change, 52, 56–58; President’s Council on Aging, 34–35 Keohane, Robert O., 145 Kernell, Samuel, 44, 88 Kerwin, Cornelius M., 136 Kettl, Donald F., 54 Kinder, Donald R., 88 King, Gary, 13, 145 Krause, George A., 25, 65. See also Unified vs. divided government Krosnick, Jon A., 88 Krutz, Glen S., 31 Landy, Marc, 46 Lansford, Tom, 124 Lau, Richard R., 88 LeLoup, Lance T., 17, 71 Lewinsky, Monica, 17–18, 67–68 Light, Paul C., 11, 29–30, 46, 55, 62, 67, 87 Lindblom, Charles E., 61 Lord, Clifford L., 26n2 Lowi, Theodore J., 20. See also Distributive policy; Redistributive policy; Regulatory policy Ludlow, Louis, 107 Maisel, L. Sandy, 14 Maltese, John Anthony, 35

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170 Maltzman, Forrest, 105 Manning, Bayless, 32 Marcus, Maeva, 104–105 Mayer, Kenneth R., 2, 6, 25, 29, 50, 136, 140; civil rights, 8, 84; Department of Justice, 48; executive budget, 25; federalism, 49; funding executive orders, 83, 129; national elections, 75; new institutional economics, 6; political parties, 45; presidential commissions, 145; presidential power, 2, 129; significant executive orders, 41–43; target populations, 73; Truman administration, 74; unified vs. divided government, 17, 64–66 Mayhew, David R., 17, 23–24, 41, 116. See also Congress Mazmanian, Daniel A., 132 McCubbins, Matthew, 22 McCullough, David, 105 Media reporting, 15, 44 Military policy, 19, 76–81, 125 Milkis, Sidney M., 46 Miller, Mark C., 119 Mitchell, William, 88 Moe, Terry M., 4–6, 11, 23–24, 106 de Montesquieu, Charles-Louis, 21 Morgan, Ruth P., 8, 18, 25, 46, 73–74, 84 Nathan, Richard P., 6, 11, 14, 82, 103, 114, 128. See also Administrative presidency; Administrative state National Economic Council, 81 National security directives, 80, 138 Nelson, Michael, 3 Neoadministrative presidency, 6, 12 Neoadministrative state, 11–12, 38–39, 128–129

Index

Neustadt, Richard E., 1, 7, 21, 88 Nixon, Richard M.: administrative reforms, 82; administrative state, 11; authority sources, 93, 96, 98, 101–103; congressional debates, 108–109, 112–114; congressional reforms, 119; executive orders issued, 39–40, 146, 148, 152; military and war policy, 79; policy change, 52, 56, 58–59; President’s Committee on Mental Retardation, 50–51; Watergate scandal, 68–70, 114 Nurmi, Hannu, 9 Office of Homeland Security, 3 Olson, William J., 106, 110–111, 119 Pacelle, Richard L., 131 Patterson, Bradley H., Jr., 81 Paul, Ron, 109 Peake, Jeffrey, 17. See also Unified vs. divided government Pemberton, William E., 81 Peterson, Mark A., 29–30 Pfiffner, James P., 71 Pika, Joseph A., 35 Pious, Richard M., 25, 77 Policy change, 15–16, 46–60; Bush (George H. W.) administration, 52, 55–58; Bush (George W.) administration, 124–125; Carter administration, 52, 55–59; Clinton administration, 52, 56–59; Democratic Party, 59–61; Eisenhower administration, 52; Ford administration, 52, 56, 58–59; Johnson (Lyndon) administration, 52, 56, 58; Kennedy administration, 52, 56–58; Nixon administration, 52,

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56, 58–59; Reagan administration, 52, 55–60; Republican Party, 59–61; Roosevelt (Franklin) administration, 52, 56–59; Truman administration, 52, 56, 58–59 Policy executive orders, 13–14, 43; administrative presidency, 13–14; administrative reforms, 81–82; authority sources, 92–104, 126–127; Bush (George H. W.) administration, 39–41, 56–58, 79, 82, 98–99, 102, 112–113, 119, 124, 153; Bush (George W.) administration, 124–127, 154; Carter administration, 39–41, 56, 58–59, 79, 82, 97, 101–103, 112–113, 119, 124, 153; Clinton administration, 39–41, 56–59, 68–70, 79, 82, 98–99, 102–103, 112–113, 119, 124, 144–145, 154; definition of, 143–145; Democratic Party, 45, 59–61, 84–85, 115–117; distributive policy, 84; Eisenhower administration, 39–41, 56, 58, 67, 79, 82, 94, 101–103, 112–113, 119, 152; Ford administration, 39–40, 43, 56, 58–59, 79, 82, 96, 101–102, 112–113, 119, 153; Johnson (Lyndon) administration, 39–40, 56, 58, 79, 82, 95, 102, 112–113, 119, 152; Kennedy administration, 39–40, 56–58, 79, 82, 95, 101–102, 112–113, 119, 152; military and war policy, 78–80; national elections, 73–76, 118; Nixon administration, 39–40, 56–59, 68–70, 79, 82, 96, 101–103, 112–114, 119, 152; policy change, 52, 55–61,

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124–125; political parties, 13–14, 84–85; presidential tenure, 71–73; Reagan administration, 39–41, 56, 58–59, 79, 82, 97, 102, 112–113, 119, 124, 153; redistributive policy, 84; regulatory policy, 85; Republican Party, 45, 59–60, 84–85, 115–117; Roosevelt (Franklin) administration, 39–41, 56, 58–59, 79, 82, 93, 101–103, 112–113, 119, 145; target populations, 75; Truman administration, 39–41, 56, 58–59, 79, 82, 94, 101–103, 112–113, 119, 151; unified vs. divided government, 65–66, 116–117 Policy termination, 15–16, 62. See also Policy change Political parties, 13–14; authority sources, 99; congressional debates, 114–117; Democratic Party, 14, 20–21, 45, 59–61, 66–67, 72, 75, 79–80, 84–85, 99, 115–117, 125; distributive policy, 20–21; military and war policy, 79–80; national elections, 75–76; policy change, 59–61; redistributive policy, 20–21; regulatory policy, 20–21, 85; Republican Party, 14, 20–21, 45, 59–61, 66–67, 72–73, 75, 79–80, 84–85, 99, 115–117, 125; target populations, 75; unified vs. divided government, 66–67 Presidential scandals, 17–18, 43, 67–71 Presidential tenure, 18, 71–73 President’s Commission to Strengthen Social Security, 90 President’s Committee on Mental Retardation, 50–51

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172 President’s Council on Aging, 34–35 Pressman, Jeffrey L., 132 Price, Kevin, 42 Proclamations, 44, 139–140 Public housing, 8. See also Civil rights Pyle, Christopher H., 4 Rader, Eric W., 25 Radin, Beryl A., 81 Ragsdale, Lyn, 13, 33, 75–76 Railway Labor Act, 142 Rational choice theory, 8–9, 13, 16–17 Reagan, Ronald W.: administrative reforms, 82; authority sources, 97, 102; congressional debates, 112–113; congressional reforms, 119; executive orders issued, 39–40, 124, 146, 148, 153; federalism, 49; military and war policy, 78; national security directives, 138; policy change, 52, 55–59; regulatory review, 49–50 Redistributive policy, 20–21, 83–85 Regulatory policy, 20–21, 84–86 Regulatory review, 49–50 Reid, T. R., 31 Republican Party, 14, 20–21, 72–73; authority sources, 99; congressional debates, 115–117; distributive policy, 84; executive orders issued, 45; military and war policy, 79–80; national elections, 75; policy change, 59–61, 125; redistributive policy, 84; regulatory policy, 85; unified vs. divided government, 66–67 Revoking. See Policy change

Index

Richardson, James D., 52 Ripley, Randall B., 64, 83–84 Robinson, Greg, 36 Roosevelt, Franklin D.: administrative reforms, 82; authority sources, 92–93, 101–103; congressional debates, 107, 112–113; congressional reforms, 119; executive orders issued, 39–40, 136–137, 139, 146, 148, 151; Herbert Hoover’s criticisms of, 2–3; internment of Japanese Americans, 36; military and war policy, 79–80; policy change, 52, 56–59; trade agreement with Canada, 37 Roosevelt, Theodore, 4 Routine executive orders, 13–14, 29–30, 43; administrative reforms, 81–82; authority sources, 92–104, 126–127; Bush (George H. W.) administration, 39–40, 56–58, 79, 82, 98, 102, 112–113, 119, 153; Bush (George W.) administration, 124–127, 154; Carter administration, 39–40, 56, 58, 79, 82, 97, 101–103, 112–113, 119, 153; Clinton administration, 39–40, 43, 56–58, 68–70, 79, 82, 98, 102–103, 112–113, 119, 154; congressional intent, 13–14; definition of, 141–143; Democratic Party, 45, 59–61, 84–85, 115–117; distributive policy, 84; Eisenhower administration, 39–40, 56, 58, 79, 82, 94, 101–103, 112–113, 119, 152; emergency boards, 142–143; Ford administration, 39–40, 43, 56, 58, 79, 82, 96, 101–102,

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112–114, 119, 153; Johnson (Lyndon) administration, 39–40, 56, 58, 79, 82, 95, 102, 112–113, 119, 152; Kennedy administration, 39–40, 56–58, 79, 82, 95, 101–102, 112–113, 119, 152; military and war policy, 78–80; national elections, 73–76, 118; Nixon administration, 39–40, 56–58, 68–69, 79, 82, 96, 101–103, 112–114, 119, 152; policy change, 52, 55–61, 124–125; presidential tenure, 71–72; Reagan administration, 39–40, 56, 58, 79, 82, 97, 102, 112–113, 119, 153; redistributive policy, 84; regulatory policy, 85; Republican Party, 45, 59–60, 84–85, 115–117; Roosevelt (Franklin) administration, 39–40, 43, 56, 58, 79, 82, 93, 101–103, 112–113, 119, 151; target populations, 75; Truman administration, 39–40, 56, 58, 79, 82, 94, 101–103, 112–113, 119, 151; unified vs. divided government, 64–66, 116–117 Rozell, Mark J., 43 Rusk, Jerrold G., 75–76 Russell, Richard, 83 Sabatier, Paul A., 132 Salokar, Rebecca Mae, 131 Schneier, Edward V., 31 Schott, Richard L., 31 Schramm, Sarah S., 29 Schwartz, Thomas, 22 Sears, David O., 88 Segal, Jeffrey A., 131 Separation of powers, 21, 105, 129

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Separation of Powers Restoration Act, 106, 109. See also Congress Shared powers, 3 Shull, Steven A., 1, 17, 65, 71, 84. See also Unified vs. divided government Solicitor general, 131 Spitzer, Robert J., 14, 80, 148 Superseding. See Policy change Supreme Court, 47; challenges to executive orders, 47, 129–130; Youngstown Sheet & Tube Co. v. Sawyer, 21, 89–90, 105 Sussman, Glen, 53 Symbolic executive orders, 13–14, 43–44; administrative reforms, 81–82; authority sources, 92–99, 101–102, 104, 126; Bush (George H. W.) administration, 39–40, 56, 82, 98, 119, 153; Bush (George W.) administration, 124–126, 154; Carter administration, 39–40, 82, 97, 101, 119, 153; Clinton administration, 39–40, 44, 56, 68–69, 82, 98, 119, 154; definition of, 140–141; Democratic Party, 45, 59–61, 84–85; distributive policy, 84; Eisenhower administration, 39–40, 44, 56, 82, 94, 101, 119, 152; federal holidays, 13–14; Ford administration, 39–40, 56, 82, 96, 101, 119, 153; Johnson (Lyndon) administration, 39–40, 56, 82, 95, 119, 152; Kennedy administration, 39–40, 56, 82, 95, 101, 119, 152; national elections, 73–76; Nixon administration, 39–40, 56, 68–70, 82, 96, 101, 152; policy change, 52, 55–61, 124–125;

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174 presidential tenure, 71–73; public servants, 13–14; Reagan administration, 39–40, 44, 56, 82, 97, 119, 153; redistributive policy, 84; regulatory policy, 85; Republican Party, 45, 59–60, 84–85; Roosevelt (Franklin) administration, 39–40, 56, 82, 93, 101, 119, 151; Truman administration, 39–40, 56, 82, 94, 101, 119, 151; unified vs. divided government, 65–66 Taft, Robert A., 107 Terrorism, 3 Thomas, Norman C., 35 Thurber, James A., 66–68 Toner, Robin, 3 Treaty powers, 4 Truman, Harry S.: administrative reforms, 82; authority sources, 92–94, 99, 101–105; congressional debates, 112–113; congressional reforms, 119–120; congressional study, 91; desegregating the armed forces, 18, 73–74, 84; executive orders issued, 39–40, 136–137, 146, 148, 151; military and war policy, 79; policy change, 52, 56, 58–59; Youngstown Sheet & Tube Co. v. Sawyer, 21, 89–90, 105

Index

Unified vs. divided government, 17, 55, 64–67, 116–117 Unilateral powers, 1, 4–6, 26n1 Verba, Sidney, 145 Vietnam War, 10 War Powers Resolution (1973), 19, 76–77, 79–80. See also Military policy Warber, Adam L., 6, 11–12, 38–39, 128–129 Watergate scandal, 17–18, 67–70, 114 Waterman, Richard W., 5, 50, 128 Watson, Robert P., 124 Wayne, Stephen J., 24–25, 27n5, 35, 55 Weaver, Robert C., 32 Welch, Reed, 88 West, William F., 5, 50 Westerfield, Donald L., 77 Wigton, Robert C., 18 Wildavsky, Aaron B., 132 Wilson, James Q., 85 Woll, Alan, 106, 110–111, 119 Wood, B. Dan, 5 Woodward, Bob, 70 Wrightson, Margaret T., 31, 87 Yang, Carter M., 3 Youngstown Sheet & Tube Co. v. Sawyer, 21, 89–90, 105

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About the Book

D

esegregating the military. The internment of Japanese Americans. Limiting stem-cell research. Each of these actions has been accomplished by way of executive order—bypassing the legislative process. Adam Warber offers an in-depth look at how modern presidents use this weapon in their arsenal of authority. Warber systematically analyzes the strategic nature of close to 5,500 executive orders issued since 1936. Have presidents increasingly relied on executive orders to initiate major policies, rather than to simply accomplish routine administrative goals? What key elements in the political environment might influence activity in this sphere? What crafting strategies do presidents use to legitimate their orders and minimize challenges from Congress and the federal judiciary? Addressing these and other key questions, Executive Orders and the Modern Presidency explores the multiple dimensions of the president’s executive order power.

Adam L. Warber is assistant professor of political science at Clemson University.

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