In Lieu of Legislation
| Author | Michelle Belco,Brandon Rottinghaus |
| DOI | 10.1177/1065912913501410 |
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| Subject Matter | Articles |
research-article2013
Article
Political Research Quarterly
2014, Vol. 67(2) 413 –425
In Lieu of Legislation: Executive Unilateral © 2013 University of Utah
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Preemption or Support during the
DOI: 10.1177/1065912913501410
prq.sagepub.com
Legislative Process
Michelle Belco1 and Brandon Rottinghaus1
Abstract
In the legislative process, presidents may negotiate with Congress or use unilateral action as a bargaining tool. When
presidents issue a unilateral order during the legislative process, do these orders “preempt” or “support” legislation?
We match unilateral orders with related legislative activity and find presidents are more likely to use unilateral orders
to “preempt” legislation when the issue is on the president’s agenda or in the second half of their second terms but
“support” legislation when of the same party as the bill sponsor. These findings suggest that presidents not only take
advantage of Congressional incapacity but also exert unilateral power in support of legislation.
Keywords
unilateral action, president, Congress, legislation, agenda
In exercising their executive power within the legislative
approach enables the executive to “act quickly and with
arena, presidents generally pursue a “legislative presi-
flexibility in responding to problems and changing polit-
dency” (Wayne 1978). From the president’s perspective,
ical, economic and social circumstances as they arise”
this is a tenuous choice because the process of passing
(Moe and Howell 1999, 138). This unilateral approach,
legislation is afflicted by collective action problems, an
however, is not always independent of the legislative
outlay of political capital, lengthy debates, and large
process. As Jones (2005, 253) argues,
transaction costs but provides certainty in achieving a
lasting policy outcome (Moe and Howell 1999, 146). In
Efforts to comprehend presidential power in lawmaking
an effort to improve their chances for success, a president
require study of congressional power even if the president
may choose to enter the legislative arena using several
acts “with the stroke of a pen” as when issuing executive
means sanctioned by the Constitution or the strategic use
orders. Those who are separated must agree or acquiesce if
of executive power: suggest an agenda item to Congress
there is to be law.
as outlined by Article II, Section 1 of the Constitution
issue an executive statement of administrative procedure
Neustadt ([1960] 1990, x) suggests that presidents are
(Rice 2012); and issue a veto threat in advance of a veto
“dependent on consent from other sharers” in govern-
(Deen and Arnold 2002) and the use of the veto (Cameron
ment, especially Congress, because “he must bargain
2000, 28). Each of these tools provides the executive with
with them, buttressing his share with his resources in
some strategic participation in the legislative process.
their eyes of personal reputation and of public standing.”
Beyond the conventionally proscribed techniques for
If unilateral orders can be used as a bargaining tool in
the president’s legislative functions, presidents may also
the legislative process, when presidents issue a unilateral
use direct or unilateral action as a means of improving
order during the legislative process, under what condi-
their success in implementing their policy agenda out-
tions does that order preempt or support proposed legisla-
side the legislative arena (Cooper 2002; Mayer 2001;
tion? Using an original data set of unilateral orders
Warber 2006). Direct action is strategically useful for
presidents when faced with a legislative arena that forces
1University of Houston, TX, USA
them to share political powers (Howell 2003, 2005;
Mayer 2001; Moe and Howell 1999). The process of
Corresponding Author:
issuing unilateral orders is generally described as an
Brandon Rottinghaus, Department of Political Science, University
of Houston, Phillip Guthrie Hoffman Hall, Room 447, Houston, TX
alternative to pursuing legislation by bargaining with
77204, USA.
Congress (Howell 2003; Moe and Howell 1999). This
Email: bjrottinghaus@uh.edu
414
Political Research Quarterly 67(2)
(executive orders and proclamations) from Presidents
members of Congress with whom the president must later
Ford through George W. Bush (93rd to 110th Congresses),
bargain. Neustadt ([1960] 1990) warns directly of this
we analyze when and how presidents unilaterally pre-
problem when he counsels that presidents should prefer
empt or support proposed legislation. Although the litera-
to bargain with Congress (see Mayer 2009, 428). Yet, a
ture suggests that presidential strategies of bargaining or
president’s short-term interest in pursuing successful pol-
using unilateral actions are opposed to one another, our
icy outcomes may outweigh his desire to work with
approach unites Neustadt’s “power stakes” (how presi-
Congress on a mutually agreeable political outcome
dential resources influence bargaining) with theories of
(Krause and Melusky 2012), especially if Congress and
direct presidential action. We argue that the president will
the president are at loggerheads over legislation.
act using a unilateral order during the legislative process
Presidents may disagree with the ideological or political
to preserve a policy trajectory in Congress favorable to
direction of legislation and issue a preemptive order as an
the executive or to shift policy closer to his ideal point.
alternative to Congressional action. This too runs the risk
Our theory suggests flexibility in a president’s use of uni-
of angering Congress who may choose to respond with
lateral orders in the legislative arena: sometimes to halt
additional legislation (Howell 2003) or otherwise revoke
the legislative process, sometimes to foster it, depending
the order by statute. However, invoking a unilateral order
on the institutional context. We argue that unilateral
during the legislative process may be a way of gaining
orders are used while negotiating in the legislative pro-
participation of members by addressing topics already on
cess. This notion expands the conceptual study of the
the Congressional agenda. Consultation with Congress is
executive’s use of unilateral power to the legislative
especially likely when the president’s objective is to
arena, a linkage yet unexplored. In doing so, we seek to
change the agreed-upon status quo (Moe and Howell
develop a better understanding of shared rather than sepa-
1999) by issuing an order supporting proposed legisla-
rate powers in the context of executive–legislative rela-
tion. Therefore, presidents, in their desire to work with
tions where unilateral orders can be used to augment the
Congress, may issue a unilateral order to achieve a mutu-
legislative process.
ally agreeable policy solution. There is less cost here to
the president with respect to angering Congress as the
Presidents and Unilateral Action in
president is “fast tracking” the proposed Congressional
the Legislative Arena
legislation into policy, especially if the president is exe-
cuting the will of Congress through prearranged policy
When considering whether to issue a unilateral order,
(Fisher 2007, 109; Warber 2006).
presidents face an integrated cost–benefit trade-off, espe-
We argue that the president will act using a unilateral
cially with respect to the legislative makeup of Congress
order during the legislative process to preserve a policy
and the possible intervention of the judiciary (Moe and
trajectory in Congress favorable to the executive or to
Howell 1999). The executive must weigh the costs and
shift policy closer to his ideal point. Presidents can do so
benefits of legislation against the costs and benefits of uni-
using preemptive means or supportive means. If a presi-
lateral action. Deering and Maltzman (1999, 770) argue
dent can achieve legislative policy success through bar-
that “a president’s willingness to issue an executive order
gaining, they are likely to bargain. If this is less likely,
depends upon both his positive power to get legislation
given a fractious political environment, presidents will
enacted by Congress and his negative power to stop legis-
set their policy unilaterally. This is similar to the position-
lation overturning such an order.” Invoking unilateral
taking process as outlined by Krehbeil (1998 and Howell
powers to circumvent legislation specifically involves
(2003). Specifically, supportive orders are more likely to
weighing the cost of angering a recalcitrant Congress with
come about when the president endorses Congressional
the benefits of acting with dispatch. As Mayer (2009, 439)
goals or to help Congress overcome collective action
suggests, presidents prefer legislation as a means to
problems to achieve policy agreement. In these instances,
achieve policy goals but may opt for unilateral action as
more agreement between the president and Congress is
their “second-best” option when they face strong theoretically likely, encouraging the president to use his
Congressional opposition. Such a complicated decision is
unilateral authority to assist a mutually agreeable policy
not strictly combative nor is it totally cooperative—
process. However, presidents may preempt the legislative
...
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