Unilateral Powers: A Brief Overview

To advance their policy agenda, presidents have two options. They can submit proposals to Congress and hope that its members faithfully shepherd bills into laws; or they can exercise their unilateral powers—issuing such directives as executive orders, executive agreements, proclamations, national security directives, or memoranda—and thereby create policies that assume the weight of law without the formal endorsement of a sitting Congress. To pursue a unilateral strategy, of course, presidents must be able to justify their actions on some blend of statutory, treaty, or constitutional powers; and when they cannot, their only recourse is legislation. But given the ambiguity of Article II powers and the massive corpus of law that presidents can draw upon, as well as the well-documented travails of the legislative process, the appeal of unilateral powers is readily apparent. Not surprisingly, almost all the trend lines point upward. During the first 150 years of the nation's history, treaties (which require Senate ratification) regularly outnumbered executive agreements (which do not); but during the last 50 years, presidents have signed roughly ten executive agreements for every treaty that was submitted to Congress (Margolis 1986; Moe and Howell 1999b). With rising frequency, presidents are issuing national security directives (policies that are not even released for public review) to institute aspects of their policy agenda (Cooper 1997, 2002). Since Truman fatefully called the Korean War a "police action," modern presidents have launched literally hundreds of military actions without first securing a formal congressional authorization (Blechman and Kaplan 1978; Fisher 2004b). Though the total number of executive orders has declined, presidents issued almost four times as many "significant" orders in the second half of the twentieth century as they did in the first (Howell 2003, 83). Using executive orders, department orders, and reorganizations plans, presidents have unilaterally created a majority of the administrative agencies listed in the United States Government Manual (Howell and Lewis 2002; Lewis 2003). These policy mechanisms, what is more, hardly exhaust the options available to presidents, who regularly invent new ones or redefine old ones in order to suit their own strategic interests. For years, political scientists paid precious little attention to these trends. Until recently, only one book had been written on the president's unilateral powers (Morgan 1970), and most journal articles on the topic were published in law reviews (see, e.g., Cash 1963; Fleishman and Aufses 1976; Hebe 1972). There are signs, though, that change is afoot. In the past several years, three books have focused exclusively on the president's unilateral powers (Cooper 2002; Howell 2003; Mayer 2001), and others are in the works. A number of articles on executive orders have been published in mainstream political science journals (Cooper 2001; Deering and Maltzman 1999; Howell and Lewis 2002; Krause and Cohen 1997, 2000; Mayer 1999; Mayer and Price 2002; Moe and Howell 1999a, 1999b). And for the first time, edited volumes on the general topic of the presidency are devoting full chapters to unilateral powers (Edwards 2005; Rockman and Waterman, forthcoming). The nation's recent experience under the last two presidential administrations makes the subject all the more timely. From the creation of military tribunals to try suspected "enemy combatants" to tactical decisions made in ongoing conflicts in Afghanistan and Iraq to the freezing of financial assets in U.S. banks with links to bin Laden and other terrorist networks to the reorganization of intelligence gathering domestically and abroad, Bush has relied upon his unilateral powers in virtually all facets of his "war on terror." And to the considerable consternation of congressional Democrats, Bush has issued numerous rules that relax environmental and industry regulations concerning such issues as the amount of allowable diesel engine exhaust, the number of hours that truck drivers can remain on the road without resting, and the logging of federal forests. During his tenure, Bill Clinton also "perfected the art of go-alone governing."1 Though Republicans effectively undermined his 1993 health care initiative, Clinton subsequently managed to issue directives that established a patient's bill of rights for federal employees, reformed health care programs' appeals processes, and set new penalties for companies that deny health coverage to the poor and people with pre-existing medical conditions. While his efforts to enact gun control legislation met mixed success, Clinton issued executive orders that banned various assault weapons and required trigger safety locks on new guns bought for federal law enforcement officials. Then, during the waning months of his presidency, Clinton extended federal protections to literally millions of acres of land in Nevada, California, Utah, Hawaii, and Arizona. Nor are Bush and Clinton unique in this respect. Throughout the modern era, presidents have used their powers of unilateral action to intervene in a whole host of policy arenas. Examples abound: by creating the Fair Employment Practices Committee (and its subsequent incarnations) and desegregating the military in the 1940s and 1950s, presidents defined federal government involvement in civil rights decades before the 1964 and 1965 Civil Rights Acts; from the Peace Corps to the Bureau of Alcohol, Tobacco, and Firearms to the National Security Agency to the Food Safety and Inspection Service, presidents unilaterally have created some of the most important administrative agencies in the modern era; with Reagan's executive order 12291 being the most striking example, presidents have issued a long string of directives aimed at improving their oversight of the federal bureaucracy; without any prior congressional authorization of support, recent presidents have launched military strikes against Grenada, Libya, Lebanon, Panama, Haiti, Bosnia, and Somalia. A defining feature of presidential power during the modern era, one might well argue, is a propensity, and a capacity, to go it alone. This edition of Presidential Studies Quarterly takes a hard look at these powers, and the ways that presidents have used them to advance their policy agendas. While it hardly exhausts the range of issues involved, this volume assembles an eclectic array of perspectives on, and evidence about, the president's unilateral powers. Louis Fisher provides a historical overview of judicial checks on presidential war powers, to which unilateral directives have contributed significantly in the modern era. Phillip Cooper scrutinizes presidential signing statements, which enable presidents to ascribe meanings to legislation not intended by members of Congress and thereby influence the processes of judicial review. Lisa Martin presents and then tests a game theoretic model that predicts when presidents will propose treaties and when they will issue executive agreements. David Lewis shows how presidents use their appointment powers to improve the chances that the bureaucracy will faithfully implement policies issued unilaterally. William Howell and Kenneth Mayer consider patterns of unilateral activity during presidential transitions, and demonstrate that outgoing presidents whose party has lost a November election have every incentive and opportunity to advance the last vestiges of their policy agenda with executive orders and rule changes. This introductory article outlines some of the more general conceptual issues in play. Specifically, it illustrates ways in which unilateral powers challenge conventional understanding of presidential power; it identifies key institutional constraints on unilateral powers; it presents new data that suggest that presidents exercise these powers at precisely those moments when Congress is least capable of governing; and it debunks the claim that because unilateral directives must be implemented, the president must continue to persuade other political actors to do things that he cannot accomplish on his own—making unilateral powers, at most, a small subset of those powers that Richard Neustadt posited nearly a half-century ago as the pillars of presidential success. What theoretical tools currently allow us to discern when presidents exercise their unilateral powers, and what influence they glean from doing so? For answers, scholars habitually turn to Richard Neustadt's seminal book Presidential Power, originally published in 1960 and updated several times since. This book not only set an agenda for research on the American presidency, it structured the ways scholars conceived of presidential power in America's own highly fragmented system of governance. When thinking about presidents since FDR, Neustadt argues, "Weak remains the word with which to start" (Neustadt 1990, xix). The modern president is more clerk than leader, struggling to stay atop world events, congressional dealings, media cycles, and dissension within his party, cabinet, and White House. Though held responsible for just about everything, the president controls almost nothing. Congress, after all, enacts laws and the bureaucracy implements them, placing the president at the peripheries of government action. The pursuit of his policy agenda is marked more by compromise than conviction; and his eventual success ultimately depends upon the willingness of others to do things that he cannot possibly accomplish on his own. Neustadt identifies the basic dilemma facing all modern presidents: the public expects them to accomplish far more than their formal powers alone permit. This has been especially true since the New Deal when the federal government took charge of the nation's economy, commerce, and the social welfare of its citizens. But now presidents must address almost every conceivable social and economic problem, from the proliferation of terrorist activities around the globe to the "assaults" on marriage posed by same-sex unions. Armed with little more than the powers to propose and veto legislation and recommend the appointment of bureaucrats and judges, however, modern presidents appear doomed to failure from the very beginning. As one recent treatise on presidential "greatness" puts it, "Modern presidents bask in the honors of the more formidable office that emerged from the New Deal, but they find themselves navigating a treacherous and lonely path, subject to a volatile political process that makes popular and enduring achievement unlikely" (Landy and Milkis 2000, 197). If a president is to enjoy any measure of success, Neustadt counsels, he must master the art of persuasion. Indeed, for Neustadt, power and persuasion are synonymous. As George Edwards notes, "Perhaps the best known dictum regarding the American presidency is that 'presidential power is the power to persuade.' This wonderfully felicitous phrase captures the essence of Neustadt's argument in Presidential Power and provided scholars with a new orientation to the study of the presidency" (2004, 126). The ability to persuade, to convince other political actors that his interests are their own, defines political power and is the key to presidential success.2 Power is about bargaining and negotiating; about convincing other political actors that the president's interests are their own; about brokering deals and trading promises; and about cajoling legislators, bureaucrats, and justices to do his bidding. The president wields influence when he manages to enhance his bargaining stature and build governing coalitions—and the principal way to accomplish as much, Neustadt claims, is to draw upon the bag of experiences, skills, and qualities that he brings to the office.3 The image of presidents striking out on their own to conduct a war on terrorism or revamp civil rights policies or reconstruct the federal bureaucracy contrasts sharply with scholarly literatures that equate executive power with persuasion and, consequently, place presidents at the fringes of the lawmaking process. Conducting a secretive war on terrorism, dismantling international treaties brokered by previous administrations, and performing end runs around some of the most important environmental laws enacted during the past half-century, Bush has not stood idly by while committee chairs debated whether to introduce legislation on his behalf. Instead, in each instance he has seized the initiative, he has acted boldly (some would say irresponsibly, or even unconstitutionally), and then he has dared his political adversaries to counter. Having issued a directive, Bush sought not so much to invigorate Congress's support as to neutralize its criticism. An inept and enervated opponent, rather than a cooperative and eager ally, seemed to contribute most to this president's powers of unilateral action. The actions that Bush and his modern predecessors have taken by fiat do not fit easily within a theoretical framework of executive power that emphasizes weakness and dependence, and offers as recourse only persuasion. For at least two reasons, the ability to act unilaterally is conceptually distinct from the array of powers presidents rely upon within a bargaining framework. First, when presidents act unilaterally, they move policy first and thereby place upon Congress and the courts the burden of revising a new political landscape. If they choose not to retaliate, either by passing a law or ruling against the president, then the president's order stands. Only by taking (or credibly threatening to take) positive action can either adjoining institution limit the president's unilateral powers. Second, when the president acts unilaterally, he acts alone. Now of course, he relies upon numerous advisers to formulate the policy, to devise ways of protecting it against congressional or judicial encroachment, and to oversee its implementation (more on this below). But in order to issue the actual policy, the president need not rally majorities, compromise with adversaries, or wait for some interest group to bring a case to court. The president, instead, can strike out on his own. Doing so, the modern president is in a unique position to lead, to break through the stasis that pervades the federal government, and to impose his will in new areas of governance. The ability to move first and act alone, then, distinguishes unilateral actions from other sources of influence. Indeed, the central precepts of Neustadt's argument are turned upside down, for unilateral action is the virtual antithesis of persuasion. Here, presidents just act; their power does not hinge upon their capacity to "convince [political actors] that what the White House wants of them is what they ought to do for their sake and for their authority" (Neustadt 1990, 30). To make policy, presidents need not secure the formal consent of Congress. Instead, presidents simply set public policy and dare others to counter. And as long as Congress lacks the votes (usually two thirds of both chambers) to overturn him, the president can be confident that his policy will stand. Plainly, presidents cannot institute every aspect of their policy agenda by decree. The checks and balances that define our system of governance are alive, though not always well, when presidents contemplate unilateral action. Should the president proceed without statutory or constitutional authority, the courts stand to overturn his actions, just as Congress can amend them, cut funding for their operations, or eliminate them outright.4 Even in those moments when presidential power reaches its zenith—namely, during times of national crisis—judicial and congressional prerogatives may be asserted (Howell and Pevehouse 2005, forthcoming; Kriner, forthcoming; Lindsay 1995, 2003; and see Fisher's contribution to this volume). In 2004, as the nation braced itself for another domestic terrorist attack and images of car bombings and suicide missions filled the evening news, the courts extended new protections to citizens deemed enemy combatants by the president,5 as well as noncitizens held in protective custody abroad.6 And while Congress, as of this writing, continues to authorize as much funding for the Iraq occupation as Bush requests, members have imposed increasing numbers of restrictions on how the money is to be spent. Though we occasionally witness adjoining branches of government rising up and then striking down presidential orders, the deeper effects of judicial and congressional restraints remain hidden. Bush might like to unilaterally institute a ban on same-sex marriages, or to extend additional tax relief to citizens, or to begin the process of privatizing aspects of Social Security accounts, but he lacks the constitutional and statutory basis for taking such actions, and he therefore prudently relents.7 And so it is with all presidents. Unilaterally, they do as much as they think they can get away with. But in those instances when a unilateral directive can be expected to spark some kind of congressional or judicial reprisal, presidents will proceed with caution; and knowing that their orders will promptly be overturned, presidents usually will not act at all. Elsewhere, I survey the historical on legislative and judicial efforts to amend and overturn executive orders issued by presidents (Howell 2003, chapters and the Congress has had a laws that amend or overturn orders issued by presidents, though efforts to either in law or an executive order enjoy success and while and justices have to strike down executive orders, the majority are and for those that presidents of the that go to an of these is the of this a host of reasons, not least of which is the that these are the meanings of these legislative and case are than Instead, I to make three about institutional constraints on presidential the first of which the that can the efforts of and courts to White House the second of which Congress and agenda and the of which the funding of unilaterally created agencies and In the president important This is especially true in the use of a massive of national security an intelligence and and all the globe more or to the president, and members of Congress. 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