Circumventing adversity: executive orders and divided government.

Author:Fine, Jeffrey A.

The influence of divided government on the president's executive order activity remains largely unresolved in research on the unilateral presidency. Much of the literature has analyzed the "strategic model," (1) which theorizes that presidents rely on executive orders to circumvent a hostile Congress (see Deering and Maltzman 1999). To date, this strategic model has been met with mixed results. The bulk of the research challenges this model by finding little evidence to show that presidents are more likely to behave unilaterally through executive orders when faced with an adverse political climate on Capitol Hill (Gleiber and Shull 1992; Mayer 1999; 2001; Mayer and Price 2002; Warber 2006). However, other studies find that presidents do indeed issue more executive orders when they encounter a

Congress that is less willing to cooperate with the White House on policy making (Deering and Maltzman 1999). As a result, scholars of the unilateral presidency are left with an empirical puzzle regarding whether and how divided government influences presidential use of executive orders. We argue that this puzzle persists because the existing literature has yet to test fully the underlying assumptions of the strategic model.

In this article, we examine the influence of presidential-congressional adversity on the president's decisions to issue executive orders. We argue that a more robust test is necessary to assess the validity of the strategic model by accounting for the effect of several dimensions of divided government on different types of executive orders. While previous studies have tested the strategic model by treating all executive orders as equal in terms of policy substance, the theory behind this model should only apply to major policy executive orders. Furthermore, since the justification for examining party control is that divided government is likely to translate into policy conflict between the president and Congress, we distinguish between Congresses in terms of the number of seats held by the president's party and the amount of ideological congruence between these political actors. By incorporating these factors, we offer a new and more complete test of the strategic model to investigate differences across distinct types of executive orders from Dwight Eisenhower through George W. Bush.

Our study makes two primary contributions to the literature. First, we show that the strategic model is an appropriate framework for understanding the president's executive order power. Second, and more importantly, we demonstrate that partisan and ideological differences between the president and Congress affect the different types of executive orders that presidents issue in substantively distinct ways.

Mixed Evidence on the Strategic Model

The strategic model of executive orders posits that presidents are most likely to engage in unilateral actions when they are unable to achieve their preferred policy outcomes directly through the legislative process (see Bessette and Tulis 2009, 165-68; Deering and Maltzman 1999). Accordingly, presidents will prefer legislation enacted by Congress because such policy outcomes are more permanent than a signed executive order that could be easily reversed by later administrations or challenged by the Congress or in federal courts. However, when presidents are unable to achieve policy success by working with Congress, they may prefer to use their unilateral policy tools (Barilleaux and Kelley 2010, 192).

Conventional wisdom suggests that the strategic model provides the best explanation for understanding how presidents exercise their unilateral powers in relation to the political environment in Congress. Accordingly, presidents should issue more executive orders during divided government. Despite Mayhew's (1991) early work on the effect (or lack thereof) of divided government, most subsequent studies find that periods of divided government lead to failed legislation and policy gridlock (e.g., Binder 2003; Bond and Fleisher 1990; Edwards, Barrett, and Peake 1997; Rudalevige 2002). This legislative gridlock gives presidents the incentive to issue more executive orders when their policy proposals reach an impasse in Congress.

Some scholars have found evidence to support the strategic model, concluding that presidents use executive orders to avoid an unsympathetic Congress (e.g., Deering and Maltzman 1999), though the degree to which Congress is sympathetic or hostile is the product of more than just party control. Specifically, presidents with more seats in Congress issue fewer executive orders than presidents with fewer party allies on the Hill. (2) Additionally, the level of ideological (dis)agreement between the president and Congress also matters, as presidents issue more executive orders when faced with an ideologically adverse Congress (e.g., Cooper 2002, 100-02; Deering and Maltzman 1999). These findings demonstrate that presidents issue executive orders to "circumvent a [politically] hostile Congress" (Deering and Maltzman 1999, 767).

The majority of studies, however, casts considerable doubt on the strategic model by finding that presidents issue more executive orders during unified government (Gleiber and Shull 1992; Howell 2003; Krause and Cohen 1997; Mayer 1999, 2001; Warber 2006). Mayer (1999, 2001, 99) asserts that this finding may be the result of measurement limitations, as the president's party and divided government are methodologically indistinguishable (before Clinton, all Democratic presidents since 1945 governed during unified government). Howell's (2003, 89) explanation is that presidents strategically issue executive orders when the political environment is more favorable toward their administration such as during unified government. The likelihood of a congressional challenge toward a newly created executive order is less likely when the president's own party controls Congress (Howell 2003, 27-28, 85).

Other studies have tested the strategic model in slightly different ways by examining the relationship between presidential seat shares in Congress and the yearly number of executive orders (Deering and Maltzman 1999; Gleiber and Shull 1992; Krause and Cohen 2000). Although some scholars argue that seat shares are negatively related to the number of executive orders issued (Deering and Maltzman 1999), others have posited that executive orders are more likely to be issued when the president's party controls more seats in Congress (Gleiber and Shull 1992; Marshall and Pacelle 2005). (3)

At this stage, the literature provides mixed findings regarding the president's strategic use of executive orders in relation to party control of Congress. We argue that the story remains incomplete and that scholars must account for the different types of executive orders as well as the partisan and ideological congruence between the president and Congress in their unilateral presidency models.

Strategically Using Executive Orders to Outflank the Congress

Presidents are interested in building policy records while in office. As a result of the American political system's separation of powers, it is important for them to work with Congress to convert their policy ideas into outcomes. However, if presidents encounter major legislative roadblocks on Capitol Hill, they may be forced to consider unilateral action to achieve their policy results. Theoretically, the unilateral presidency rests on the assumption that presidents can command the policy process by exercising a variety of unilateral powers such as executive orders, proclamations, presidential memoranda, national security directives, and presidential signing statements. Congress has no formal role in approving presidents' unilateral directives since they have the "force of law" once the president signs them (Cooper 2002). As a result, it is not surprising that unilateral tools are core policy weapons in the administrative presidency (Durant 1992; Nathan 1983; Waterman 1989). These tools have become essential during the modern presidency for presidents to control the policy-making process during the administrative state and in dealing with the rising neoadministrative state (4) over the past several decades (Durant and Warber 2001).

Although presidents can use their unilateral powers to shape the policy process directly, in reality they are rarely in a position to exercise them at will. As with other presidential powers, they are limited in their ability to command by decree and must be strategic in how they use them (see Neustadt 1990). Presidential decisions regarding when and what types of unilateral powers to exercise are shaped by a variety of conditions in the political environment, especially the president's political relationship with Congress. With respect to executive orders, we expect that chief executives will likely sign directives when they perceive that conditions in the political environment will garner them more political payoffs rather than costs. In certain circumstances, conditions might be ripe for presidents to pursue executive orders that initiate significant policies. At other times, there may be less political incentive to act unilaterally resulting in presidents pursuing policy success through the traditional legislative route in Congress.

What is it about the president's political relationship with Congress that might lead him to eschew the legislative process in favor of unilateral action? The literature typically focuses on divided government, as it serves as a proxy for periods when the president and Congress might disagree on policy solutions (e.g., Deering and Maltzman 1999; Howell 2003; Mayer 2001). However, scholars have not yet fully tested the underlying theory behind why divided government should affect presidents' decisions to use executive orders. The presence of divided government should matter because (1) it is often harder for presidents to assemble a sufficient number of...

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