The historical presidency: the development of unilateral power and the problem of the power to warn: Washington through McKinley.

Author:Bailey, Jeremy D.

Now, Therefore, I, John E Kennedy, President of the United States, under and by virtue of the authority vested in me by the Constitution and laws of the United States, including Chapter 15 of Title 10 of the United States Code, particularly sections 332, 333 and 334 thereof, do command all persons engaged in such obstructions of justice to cease and desist there from and to disperse and retire peaceably forthwith.

--Proclamation #3497, 1962

Now, Therefore, I, George Bush, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, including Chapter 15 of Title 10 of the United States Code, do command all persons engaged in such acts of violence and disorder to cease and desist there from and to disperse and retire peaceably forthwith.

--Proclamation #6427, 1992

The proclamations quoted above have very similar language but come from two very different contexts. In the first, John E Kennedy was facing opposition to civil rights in Mississippi, and the Mississippi governor and law enforcement were complicit in the disorder. In the second, George H. W. Bush was dealing with riots in Los Angeles, and the governor of California and law enforcement were requesting federal intervention to help put the riots down. Both proclamations are alike, however, in at least two respects. In each, the president had to decide how and when to treat a complex and racially charged local problem. But there is another way in which these proclamations are similar. Long before Presidents Kennedy and Bush issued these orders, eighteenth- and nineteenth-century presidents issued proclamations to the public warning against domestic insurrection. Several of these individual proclamations are well known and have been the subject of scholarly study. Among these are George Washington's Proclamation of Neutrality, Andrew Jackson's Nullification Proclamation, Abraham Lincoln's Emancipation Proclamation, and Andrew Johnson's proclamations of amnesty to the Confederates. Each of these proclamations altered policy in the United States and galvanized opposition; each is a marker in the development of executive power. But these proclamations are not as isolated as they might seem. Rather, they are part of a longer list of unilateral presidential orders among early presidents that, as a group, have received little scholarly attention.

The presidency before Theodore Roosevelt is especially rich in these types of unilateral orders, but this is not to say that they are merely of antiquarian interest. As the examples from Kennedy and Bush show, even modern presidents have to resort to unilateral power in dealing with domestic unrest. Moreover, both the Washington example and these more recent ones suggest that the decision to issue this kind of proclamation can be very difficult. Washington's Neutrality Proclamation provoked a constitutional debate that focused attention to the importance of the presidency in foreign policy (Elkins and McKitrick 1995). As the historian Christopher Young (2011a) has shown, the proclamation was contested in the public and even resisted by juries, at least until Congress passed the Neutrality Act of 1794. Likewise, when Washington issued his proclamation about the Whiskey Rebellion, the Jeffersonian opposition used the opportunity to organize and unify disparate strands of opposition, so much so that Washington went so far as to condemn "democratic societies" in his annual message to Congress. In the case of Kennedy, the president and his advisors wanted to avoid direct unilateral action and instead rely on persuasion in order to avoid controversy, not to mention jeopardize Kennedy's reelection chances among Southern moderates. As Syvlia reports (1995, 402), Theodore Sorenson advised the president that Mississippi's "defiance should be against the majesty of the United States, not John E Kennedy." The power to proclaim is potentially explosive.

This article, then, has two objectives. The first is to introduce "settle down" proclamations (which are issued as warnings to the public) issued by presidents before Theodore Roosevelt as a way to further understand the development of executive power in the early presidency. The second is to use these proclamations to test whether the findings of the unilateral presidency scholarship hold with respect to unilateral power before the twentieth century. The article concludes by comparing unilateral power to prerogative power and proposing a path for future research.

Unilateral Power

Scholars interested in the unilateral presidency have transformed the study of the presidency. Specifically, these scholars have used quantitative analysis to remind us that presidents can make policy using command rather than Neustadtian persuasion (Neustadt 1990). This body of work suggests that a president's ability to shape and act without the consent of Congress, the courts, and (often) the public is largely unchecked by traditional institutional arrangements (Howell 2005; Howell and Kriner 2008; Martin 1999). Further, the ambiguity of the Constitution's distribution of powers actually gives strength and resilience to the president, especially when Congress delegates responsibility to the executive, and neither Congress nor the courts are likely to stop presidents from acting (Moe and Howell 1999a, 859). This important turn in the scholarship has further charted the development of a strong executive (Deering and Malzman 1999; Howell and Pevehouse 2005; Marshall and Pacelle 2005; Mayer 2001; Moe and Howell 1999b). This scholarship on the unilateral presidency is still unsettled with respect to several important theoretical questions about the motivation for unilateral power and the importance of divided government (Mayer 2009a), but we see at least two other important gaps in this literature. The first is the use of presidential proclamations, and the second is unilateral power as used by early presidents.

Consider presidential proclamations. Even as scholars often include proclamations in the list of unilateral tools, there is little scholarship about the conditions under which presidents issue proclamations (Howell 2003; Mayer 1999; 2001, 35; Tulis 1988; but see Fisher 1997, 34-35; 2007, 103-5, for a notable exception). One reason for this omission is that proclamations are surprisingly difficult to find. (1) But another likely reason for the absence of scholarship on proclamations is that they are misunderstood. Most people believe proclamations are largely ceremonial or without substantive policy value. The truth, however, is that not all proclamations are ceremonial. In fact, a great number involve substantive matters of policy and carry significant legal weight because they are often specifically authorized by statute. In particular, presidents use proclamations to make official "determinations" of fact or particular conditions, allowing the White House to define a situation--or not--as fitting a definition under prior law. These are especially important when a "statute or ratified treaty specifically authorizes the president to take action if specified events occur" (Cooper 2002, 121).

The premodern presidency also remains underexplored, as studies of unilateral power typically begin with either President Franklin Delano Roosevelt (FDR) or President Harry S. Truman (see, e.g., Howell 2003; Mayer 2001; Warber 2006). There are several good reasons for this. One is that a central question in the unilateral presidency scholarship is whether presidential approval ratings are an important variable in understanding the conditions behind the use of unilateral power, and approval ratings only begin in the 1930s. Another reason has to do with the way executive orders have been codified over time: it was not until publication of the Federal Register in 1936 that the full text of proclamations and executive orders were consistently made available, launching what one reference guide labels a "new era in the dissemination and bibliographic control of Proclamations and Orders" (Bennett and Yannarella 1986, 179; Cooper 1986). Codification of prior executive orders and proclamations, however, is almost nonexistent. Another reason is the common assumption that the unilateral presidency is a feature of the modern presidency; Howell, for example, writes that "unilateral powers appear to be just another component of the steady expansion of executive authority since FDR" (2003, 84). It is true that other scholars have considered eighteenth- and nineteenth-century presidents to understand executive power over the course of the development of the presidency. This is particularly true for lawyers debating the legality of measures taken by George W. Bush (Calabresi and Yoo 2008; Yoo 2010), but it is also true for political science. Examples include studies of the pardon power (Crouch 2009), executive privilege (Fisher 2003; Rozell 2002), and the removal power (Bailey 2008). Despite this general attention, proclamations as a type of presidential unilateral action remain understudied.

To remedy the codification problem, we have coded every presidential proclamation from George Washington to George W. Bush. (2) We first coded whether each proclamation was about policy (including the policy area), routine governmental business, or was ceremonial in nature. In Table 1, we can see several notable features of proclamations over the development of the presidency. Unsurprisingly, many proclamations are ceremonial--approximately 5,000. But many are not; in fact, over 3,000 proclamations deal with policy matters not ceremonial matters.

Moreover, proclamations tended not to be ceremonial until the modern presidency (Rottinghaus and Maier 2007). As Table 1 shows, about two-thirds of policy proclamations were issued by presidents before Truman. If there were a golden age of policy making by presidential proclamation, it would be from Theodore...

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