Legislative Constraints on Executive Unilateralism in Separation of Powers Systems

• Author: Alexander Bolton,Michael Barber,Sharece Thrower
• Published date: 01 August 2019
• Date: 01 August 2019
• DOI: http://doi.org/10.1111/lsq.12232

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LEGISLATIVE STUDIES QUARTERLY, 44, 3, August 2019

DOI: 10.1111/lsq.12232

MICHAEL BARBER

Brigham Young University

ALEXAN DER BOLTON

Emory University

SHARECE THROWER

Vanderbilt University

Legislative Constraints on Executive

Unilateralism in Separation of

Powers Systems

Can legislatures effectively check unilateral executive power? One promi-

nent and counterintuitive finding in previous work is that executives pursue

unilateralism less often under divided government. While executives see greater

potential policy gains through unilateral action during divided government, we

argue that their likelihood of acting unilaterally depends on an opposed legisla-

ture’s ability to retaliate. When polarization is high and majorities are marginal,

executives are freer to act unilaterally given the difficulties legislatures have in

statutorily responding. Unilateralism is also more likely when facing opposition

if legislatures lack nonstatutory means of punishment, such as regulatory review.

In the largest analysis of gubernatorial executive unilateralism to date, we use a

new data set of 24,232 executive orders in the 50 American states between 1993

and 2013 to evaluate this argument and find strong support for its predictions.

These results provide insights into how legislative policymaking capacity can in-

fluence the functioning of separation of powers systems.

Introduct ion

For centuries, inst itutional designers have debated the

merits of distributi ng power between a legislative and exe cutive

arm of government (Ham ilton, Madison and Jay 2009; Lijphart

2012; Montesquieu 1949; Tsebelis 1995). A primary argument

for these arrangements l ies in the ability of each governmental

branch “to be the mea ns of keeping each other in t heir proper

places” (Ham ilton, Madison, and Jay 2009, 263). The degree to

which legislatu res shape the exercise of exec utive power and the

© 2019 Washington University in St. L ouis

516 Michael Barber, Alexander Bolton, and Sharece Thrower

mechanism s that underlie legisl ative influe nce on executives are

questions of paramount impor tance in se paration of powers sys-

tems. In few other real ms is this conc ern so central as i n the exer-

cise of unil ateral power, where executives may have a seemingly

unfettered abil ity to bypass the leg islative process in pursuit of

their own preferred policies. The deg ree to which they li mit their

unilateral behavior in response to legislatures is potentially vari-

able and relevant in a diversity of contexts , from the use of dec ree

powers by Latin Americ an presidents (e.g., Shair-Rosenfield and

Stoyan 2017) to the issuanc e of presidential and gub ernatorial

executive orders in the United State s (e.g., Mayer 2002; Sellers

fort hcom in g).

There are frequently con flic ting views on this issue. Public

perception and me dia commentar y in the United States , for in-

stance, often sug gest that executives are able to freely use unilat-

eral actions as a way to sidest ep and evade ideological ly hostile

legislatures.Yet studies of unilateral polic ymaking most often f ind

evidence to the c ontrary: Presidents is sue fewer executive orders

under divided govern ment (e.g., Chiou and Rothenberg 2017; Fine

and Warber 2012; Young 2013), suggesting they curb their un ilat-

eral activity when t heir preferences are the most divergent from

Congress. In th is article, we seek to better unde rstand the mecha-

nisms that underl ie these see mingly counter intuitive results and

examine ci rcumstanc es in which they do and do not hold.

We build upon previous theories of u nilaterali sm and argue

that legislature s possess, under p articular c ircumstanc es, the insti-

tutional mechan isms and powers (which we refer to as policymak-

ing capacity) neces sary to induce exe cutive restraint. Legislative

majorities high i n policymak ing capacity can ret aliate against

executives who pursue unilateral polici es that make them worse

off relative to the status quo. This h as important inc entive effects

for executives. Previous work has highl ighted period s of divided

government as time s when executive incentives for unilateralism

may be tempered by leg islatures. We argue that thi s relationship

is contingent on the legislatu re’s ability to effectively respond to

unfavorable policy changes and identi fy specific me chanisms that

can produce patter ns of constraint (and evasion). In this way, the

divided governme nt findings are not un iversal; rather, they de-

pend on importa nt factors in the political e nvironment.

In brief, we argue that leg islatures are in hibited from act-

ing statutorily to counte r the executive when ideological pola ri-

zation is high or super majoritarian veto -override thre sholds are

517Legislative Constraints on Executive Unilateralism

insurmountable. Fur thermore, when nonstatutor y sanctions on

the executive are unavailable to leg islatures, thei r relative power

is also dim inished. In the se cases, we arg ue that executives face

few credible constrai nts from legislatures c ontrolled by the op-

posing party a nd can thus more freely act unilater ally, in line with

the “evasion” view of unilatera lism. However, in the presence of

large, unif ied majorities or signif icant extrastatutory tools, execu-

tives are hemme d in by legislatures, and less un ilateralism should

occur dur ing divided governme nt relative to unifie d. In other

words, executive reactions to par tisan division are conditional

on the policyma king capacity of leg islatures. Although prev i-

ous studies have identif ied the import ance of internal l egislative

fragmentation (e.g., Howell 2003) and extrastatutory mechanism s

of constraint (Chiou and Rothenberg 2017) in shaping executive

unilateralism, they largely do not exami ne how these factors can

moderate the effect s of divided government. Thus, our study con-

tributes to this l iterature by deline ating the conditional effects of

these factors to identi fy important mechanism s for why and when

executives adjust their un ilateral strategies in the face of pa rtisan

opposition.

We evaluate this theory with an original data s et of nearly

25,000 gubernatoria l executive orders from all 50 states issued b e-

tween 1993 and 2013. Focusing on the United State s has a number

of advantages over prior empirical investigations of uni lateral-

ism. Most previous work has examine d a single time series at the

federal level in the United St ates, leading to concerns about gen-

eralizabi lity and lack of variation in key theoretica l variables. For

instance, nonst atutory powers are mostly consta nt at the federal

level, offering little empi rical leverage on the ir effects. Other key

variables, such as p olarization, evi nce far more variation in both

magnitude and trends in the states. Fur thermore, veto-proof ma-

jorities are inc redibly rare in Congre ss, making it di fficult to d i-

rectly study veto power. We leverage this variation in the st ates

to better identify t he effects of interbranch p artisan divergence

on unilateral ism and the mecha nisms underlyi ng it. As such, we

offer the most extensive comparative study of executive order

use to date, demonstrat ing the utility and gene ralizabil ity of our

theory. Our empirical results offer conf irmation of our arg u-

ment, suggesting that exec utives reduce uni lateralism when fac-

ing divided government—but not always. Instead, we show that

the relationship betwe en interbranch conf lict and u nilaterali sm

is contingent on a number of institutional factors. In doing so,