Liberty, Prudence, Imperfection, and Law

“Command or Persuasion?,” By Jeremy Bailey

Barack Obama signs an executive order on January 30, 2009.

In 1989, Harvey Mansfield’s Taming the Prince made the untimely argument that the president’s formal power under the Constitution matters. It was untimely because most political scientists who studied the presidency were still writing under the shadow of Richard Neustadt. Taking aim at Edward Corwin’s old-fashioned “formal” approach to the presidency, Neustadt argued that presidential power did not derive from a “literary theory of the Constitution.” That is, for Neustadt, real presidential power was not the power to command, but rather to persuade. Mansfield, however, revealed that presidential power under the Constitution was both Neustadtian and Corwinian, or both informal and formal, and that this “ambivalence of executive power” was part of an ongoing dilemma in modern constitutionalism. A quarter of a century later, Mansfield’s rebuke of Neustadt has now become commonplace, as “unilateral power” is all the rage.

The cover art of Graham G. Dodds’s Take up Your Pen: Unilateral Presidential Directives in American Politics includes a photograph of President Barack Obama signing an executive order on January 22, 2009. According to the National Archives website, he signed five orders that day and four of them had to do with revoking or amending executive orders signed by George W. Bush. Three were fulfillments of Obama campaign promises having to do with interrogation, detention, and Guantanamo Bay. Executive orders barely after Inauguration Day are now routine in American politics, as are threats that the chief executive is uncapping his pen unless legislators stop being so recalcitrant. As Obama has reminded Congress in several State of the Union addresses, the modern president has many tools to “make law” with or without Congress.

I put quotations around make law because that’s what is frequently asserted in discussions of unilateral power but it is in fact the very thing that is in question. Before turning to that problem, which I think is the crux here, let me discuss the virtues of Dodd’s book and lay out its argument.

Take up Your Pen is a valuable resource for anyone wanting to understand unilateral power. Dodds describes every order he deems important, going all the way back to George Washington, and groups the orders by policy area. The scholarship on unilateral power usually focuses on the presidency since FDR. But as Dodds shows, it turns out that if there was a golden age of unilateral power, it was the period between the two Roosevelts, Teddy and Franklin, not the period after Franklin. He writes:

Indeed, when viewed in a broad historical context, the use of unilateral presidential power directives since World War II seems not so much to break new ground as to reflect and build upon previous precedents.

There is an opportunity here: quantitatively minded scholars could easily use this book as a short way to code “significant” orders before FDR, which I think has yet to be done.

Of more immediate interest to Law and Liberty’s readers is the author’s claim that Theodore Roosevelt “should be seen as the founder of the modern presidency.” It was TR who perceived that constitutional ambiguity “permits a great multiplicity of particular possibilities” and that the right blend of “constitutional imagination,” “political will,” and “circumstances” could bring together unilateral power and the stewardship theory of the presidency.

This is not to say that Dodds embraces the modern versus premodern distinction at the cost of ignoring the early presidency. Rather, he devotes roughly eighty pages to the presidency before the nineteenth century, about two-thirds of which are valuable summaries and classifications of proclamations, orders, and Supreme Court decisions that remain underdiscussed in the literature. Citing Mansfield, Dodds frequently concludes that the turn to unilateral power is in some way derived from the Constitution itself. More precisely, he sees the constitutional ambiguity of executive power as a “development precondition” of the presidency we have after TR.

The welcome attentiveness to the early presidency leads me to another virtue of this book, namely its account of the judiciary’s participation in sanctioning executive power—what Dodds calls the other developmental precondition. Especially helpful is his account of the Marshall Court’s dance, sometimes curtailing and sometimes allowing President Madison to seize property by unilateral directive. In Dodds’s analysis, these decisions turned on whether the Court believed Madison was using the directive to achieve a congressionally sanctioned end.

Having laid out the argument, let me discuss where I think it leaves the study of unilateral power unfinished.

First, there is the treatment of TR as the first modern president. There is something here. In our work cataloging proclamations about policy matters (rather than ceremonial matters), Brandon Rottinghaus and I were surprised to see the spike from TR to FDR: Of the roughly 3,200 policy proclamations issued by presidents since Washington, about 1,900 of them were issued between 1900 and 1944, and even the Republican presidents of the 1920s issued policy proclamations at a much higher rate than their nineteenth-century counterparts. And, as Peri Arnold has pointed out, it is significant that Grover Cleveland issued twice as many vetoes than executive orders, yet TR issued over ten times as many executive orders as vetoes. Something happened under TR, and it likely has something to do with the famous stewardship theory of the presidency.

This implies there is a story to be told. If so, Dodds does not tell it. We do not know if Congress suddenly delegated these powers to the president in order to get things done, or if TR asserted them over and against the objections of Congress, or if discussion of these topics was simply partisan. We do not know if there was debate within the White House or among Progressives more generally. Readers encounter a few paragraphs about grumblings by TR’s opponents, but we aren’t told if these are isolated or if they fit some wider discussion of the separation of powers.

In short, if this is indeed the moment that unilateral power changed the presidency from premodern to modern, Dodds does not provide the necessary intellectual history of that transformation. One possibility is that the story is there and it remains to be told. But another is that the story is messier and more complicated than the term modern presidency implies and is in some way just too difficult to tell. I suspect it is combination of both.

Second, there is the ongoing problem of determining whether unilateral power is in fact unilateral. There is no doubt that unilateral orders have the force of law and that the president can issue them first and alone, but it is typically the case that the power has been delegated to the president by Congress in the first place.

Consider James Madison’s 1810 proclamation ordering the military occupation and governance of West Florida (an order left out of Dodd’s otherwise very good discussion of Madison), territory whose ownership had been disputed by the United States and Spain since the Louisiana Purchase. At first glance, this would seem to be a classic example of a unilateral action. As Madison biographer Ralph Ketcham put it, this was “government by proclamation,” seemingly antithetical to Madison’s republican belief in executive deference to Congress. In fact, the power had been delegated by Congress in an 1804 law, and Madison believed his actions were desired by Congress.

Likewise, as Dodds concludes regarding World War I, most of Woodrow Wilson’s powers rested on specific delegations from Congress, not presidential authority.

It would be incorrect to equate delegated unilateral power with executive prerogative, because the former is delegated by law and the latter, at least in the Lockean sense, is necessarily outside the law. It might not even be fair to call this kind of power unilateral.

In fact, it is frequently the case that Congress has required the president to issue the order as a way to regularize—and thus constrain—executive power. Sometimes this power has been delegated by Congress, but sometimes it derives from the Constitution itself. So, as Rottinghaus and I discussed in a 2013 article, many nineteenth-century proclamations were issued in compliance with a 1792 law requiring the president to issue a proclamation before using the militia to put down domestic insurgency. These examples conform to a practice going all the way back to Edward Coke’s treatment of the Proclamation Case of 1610. There Coke made the distinction between proclamations announcing the enforcement of the law and proclamations creating a new type of offense. The latter were disallowed.

To be fair, this is not the whole story. Presidents can and do issue orders based on powers delegated by Congress in ways that violate the intention of Congress or exceed the powers explicitly conferred. Dodds points to the very good example of Theodore Roosevelt who, in the context of conservation policy, boasted about using executive orders based on prior delegations from Congress so as to circumvent later compromises with Congress. Further, presidents can make policy by undoing the orders of their predecessors, as in the contemporary examples above.

Third, empirical political science has revealed that our expectations about unilateral power might be flawed. Journalistic commentary assumes that executive orders have something to do with divided government—that is, that presidents turn to executive orders to get around Congress when at least one house is controlled by the other party. But this assumption has been challenged by numerous empirical studies. The reality seems to be that divided government either has no bearing on the use of unilateral power or that the correlation is negative. Dodds mentions this in a glancing way that seems to have been added to the book as an afterthought. His contribution would have been stronger had he confronted this puzzle directly and incorporated it into the two main arguments described above.

How telling, by the way, that this book should take its title from a critic of a unilateral act. A play on the more common “by the stroke of a pen,” it also alludes to Thomas Jefferson’s urging James Madison to “take up your pen” and answer Alexander Hamilton’s expansive rendering of executive power in his defense, as Pacificus, of President Washington’s Neutrality Proclamation.

It is telling because it reminds us that we still lack the president’s view of unilateral power. For example, why do presidents sometimes refrain from citing legislative authority even when there has been a clear delegation? Why do presidents sometimes explicitly appeal to their power as president? Why do they sometimes shrink back?

In a 2014 paper, Rottinghaus and I found that presidents appear to be strategic in their citation patterns, depending on the strength of the majority party in Congress and depending on conditions having to do with the presidency itself. But we still don’t know the strategy itself: is it to double down on executive power and protect it for future presidents, or is it to avoid conflict with Congress? Is it command or persuasion? Or is it, as Mansfield argued, both?

The new emphasis on the unilateral power of the presidency is a welcome reminder that the formal powers of the office matter and that these formal powers deserve attention from the various corners of presidency studies (normative, historical, quantitative, legal). There is much to work to be done, and Graham Dodds has given us a tremendous asset in the project.

 

Jeremy D. Bailey is associate professor at the University of Houston and is coauthor of The Contested Removal Power, 1789-2010. This essay was originally published in July 2014 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.

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