After the orders: presidential memoranda and unilateral action.

Author:Lowande, Kenneth S.
Position:The Contemporary Presidency - Report
 
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The "Mexico City Policy," which prohibited U.S. foreign aid to organizations that funded abortions, has been the subject of an executive tug-of-war since established by the Reagan administration. Bill Clinton repealed the policy in one of his first actions as president (Clinton 1993). In 2001, George W. Bush reinstated the policy, writing that it was his "conviction that taxpayer funds [...] should not be given to foreign nongovernmental organizations that perform abortions or actively promote abortion" (Bush 2001a, 17303). President Barack Obama eliminated it for the second time in his first days in office (Obama 2009). These actions constitute important examples of what might be termed "unilateral action." (1) However, none of them were taken by the most familiar means of such action--the executive order. In each case, policy change occurred by way of presidential memoranda', a class of presidential actions that contains orders to administrators and is not subject to the statutory reporting requirements of executive orders and proclamations.

In response to a relatively constrained view of presidents--forced to "bargain" their way to policy accomplishment--an important vein of presidency scholarship has shifted focus to the president's formal and informal instruments of unilateral action. This has led to systematic analyses of the tools available to the president: executive orders; proclamations; and, most recently, signing statements. The aim of this article is to consider this additional tool--presidential memoranda--and to suggest what the study of unilateral action, more broadly, could gain by including them. To preview those conclusions, the payoff of including presidential memoranda is that they reveal additional observations of unilateral action and provide initial analytical leverage for understanding what induces presidents to use one tool over another.

I argue that these memoranda contain important policy content, and that in recent years, they have been used interchangeably with executive orders. Memoranda perform a variety of functions, however, like executive orders, they are essentially orders to administrators. Researchers typically reference executive orders to highlight the degree to which the president is capable of making policy independent of other institutional actors. This extends to a subset of presidential memoranda, as it does for a subset of executive orders. Presidents have used memoranda to set policy, sometimes acting independent of authorizing legislation. In light of this, it is significant that over the last 50 years, published memoranda have surged as executive order issuance has declined.

Analyzing memoranda issued between 1946 and 2013,1 find evidence that memoranda are increasingly significant, measurable outputs of executive action. Presidents have increasingly used memoranda rather than executive orders to effect similar ends. (2) Moreover, memoranda and executive orders both appear to be indications of presidential unilateralism. Taking into account variables, which others have shown to effect the frequency of executive orders from year to year, memoranda are positively related to their more well-known counterpart.

The observed relationships highlight the malleability of these administrative tools--which often have few formal, legal standards. Far from being fixed, presidents largely determine the definition of these instruments and how they ought to be used. More specifically, the increased frequency and importance of presidential memoranda suggests changing incentive structures have contributed to a corresponding reduction in executive orders. Presidential memoranda may be a less politically costly means of action as public and elite awareness of executive orders have increased. Contemporary news coverage of executive orders is ubiquitous, such that the tool immediately evokes potentially damaging questions of "imperial overreach." (3) Recent events during the first and second terms of the Obama administration indicate that the shift between executive orders and presidential memoranda may mirror the move from signing statements to "statements of administrative policy"--which, as Crouch, Rozell, and Sollenberger (2013) note, perform similar functions without the negative publicity associated with signing statements since the end of the second Bush administration.

The article proceeds in a few basic steps. First, I consider presidential memoranda in the context of unilateral action theory, arguing they constitute additional observations of the theory's outcome of interest. Second, I lay out a few basic expectations about memoranda and executive orders designed to test the assumption that they are used in systematically similar political contexts. Third, I provide a cursory overview of how presidents since Jimmy Carter have used memoranda, ending with the most recent years of the Obama presidency--when published presidential memoranda have eclipsed executive orders in frequency. Fourth, I run a systematic analysis of memoranda published since 1946, finding evidence that memoranda and orders vary predictably from year to year. I then consider possible implications for future studies of presidential documents and unilateral action, and argue that the rise in memoranda is the result of changing political incentives associated with executive orders.

Unilateral Action Theory

As Howell and Lewis (2002) note, strategic employment of unilateral actions in the president's toolkit is one of the defining features of the modern presidency. Systematic consideration of these tools began in earnest with executive orders, a literature that has now expanded considerably (Fine and Warber 2012; Glieber and Shull 1992; Howell 2003; Mayer 1999, 2001; Mayer and Price 2002; Rudalevige 2012; Warber 2006). Mayer and others in this area sought to reassess the former "paradigm of the presidential studies literature that [held] that presidents have limited capacity to act unilaterally"(1999, 445). More recently, scholars have branched out into signing statements (Crouch, Rozell, and Sollenberger 2013; Kelly and Marshall 2007, 2008; Korzi 2011; Ostrander and Sievert 2013) and proclamations (Bailey and Rottinghaus 2013; Rottinghaus and Maier 2007). While these studies do represent an important step toward defining the president's means of acting beyond informal bargaining (which is difficult to observe), the research program as a whole has yet to systematically analyze memoranda use across time.

Most surveys of the tools of presidential action leave out memoranda. Of those that do not, typically, they are briefly mentioned. Mayer (1999) writes,

The major classes of presidential policy instruments are executive orders, proclamations, memoranda, administrative directives, findings and determinations, and regulations. Of these, executive orders combine the highest levels of substance, discretion, and direct presidential involvement. (35) While this conclusion is now standard and somewhat warranted, memoranda remain an important component of presidential action. Since then, memoranda have been treated most comprehensively by Cooper (2001, 2002), who has argued they are sometimes part of "shell games" intended to deceive organized interests, wherein presidents issue highly visible executive orders, only to then issue memoranda with very different policy implications. Cooper notes a variety of other uses: to generate positive publicity, to initiate policy change, and to manage emergencies. Most pertinent to this analysis, however, is Cooper's observation that "as with other tools of presidential direct action, the precise definition of the presidential memorandum is unclear and evolving" (2002, 83). This is one explanation as to why these memos have yet to be fully integrated into the ongoing scholarly discussion of unilateral power. Memoranda pose significant data collection challenges and are subject to considerable definitional variance.

However, the fact that presidential memoranda should be included in that discussion is plainly apparent when one considers the basic points of theories of unilateral action. Moe and Howell (1999) provide the clearest explanation of those points, writing,

Presidents have incentives to expand their institutional power, and they operate within a formal governance structure whose pervasive ambiguities--combined with advantages inherent in the executive nature of the presidential job--give them countless opportunities to move unilaterally into new territory, claim new powers, and make policy on their own authority. (871) Presidents have institutional advantages vis-a-vis Congress that they can and do exploit to get what they want. (4) Howell's (2003) work helped reframe the contemporary consideration of presidential power by shifting attention from negotiation and persuasion (Neustadt 1960) to the positive actions presidents take with some degree of independence. (5) The literature focusing on presidential documents, then, is concerned with measuring and counting "outputs" as indications of the degree of unilateralism in each administration. Presidential memoranda are a vital part of these outputs. The substantive significance of this tool has increased, just as its issuance has become more routine. The most illustrative way to investigate this is to consider important uses of presidential memoranda across time and administrations. However, in order to demonstrate systematically that memoranda and executive orders have been used in similar political contexts, I also include a statistical consideration of presidential memoranda issued from 1946 to 2013. For that analysis, I have two basic expectations. First, that executive orders and presidential memoranda will be positively correlated. Increased frequency of one will lead to increased frequency of the other. As the proceeding cases illustrate, memoranda and orders are often used in conjunction to effect...

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