Between 2005 and 2010, the number of prescription medication shortages in the United States nearly tripled from 61 to 171 (Hamburg 2011; Office of the Press Secretary 2011). Many of these critical shortages were the result of sudden production discontinuances by manufacturers. The federal government has long sought to mitigate the effects of such shortages, and in 1997 Congress amended the Food, Drug, and Cosmetic Act (FDCA) to require that manufacturers provide notice six months prior to discontinuing certain life-saving drugs. However, the FDCA failed to grant the Food and Drug Administration (FDA) the necessary authority to enforce the Act's provisions.
The FDA's inability to enforce the FDCA was due in large part to recent court decisions that have questioned the FDA's ability to act under the FDCA. For example, in FDA v. Brown and Williamson Tobacco Corp (2000), the Supreme Court ruled that the FDA was not granted the authority to regulate tobacco products. To address the problem of dangerous medicine shortages, President Barack Obama issued Executive Order (EO) 13588, which broadened the reporting requirement of the FDCA and granted the FDA additional enforcement authority:
... the FDA shall use all appropriate administrative tools to interpret and administer the reporting requirement in 21 U.S.C. 356c, to require drug manufacturers to provide adequate advance notice of manufacturing discontinuance that could lead to shortages of drugs that are life supporting or life sustaining, or that prevent debilitating disease. In particular, this order directs the FDA to use additional tactics to require compliance from manufacturers. Shortly after, the agency issued an interim final rule (76 F.R. 78530) in accordance with the authority granted to it by EO 13588. In the months following, the FDA reported an increase in the number of notifications and prevented shortages (Hamburg 2012).
Obama's strategy in dealing with this crisis demonstrates how presidents can use executive orders to give agencies additional legal authority to act. Yet, despite the fact that the president can favorably influence policy even in the face of unfriendly courts, presidential policy implementation remains understudied by political scientists. Furthermore, much of the existing literature tends to focus on how the president's relationship with Congress influences executive action, while neglecting his or her relationship to the courts. While there is a rich body of research examining judicial review of administrative actions, very little work is devoted to how the anticipation of court rulings shape executive branch decision making.
To narrow this gap in our knowledge, this paper develops and tests hypotheses on how the president's ideological position relative to that of the courts influences his/her decisions on how to most effectively implement policy. When faced with ideologically distant courts, agencies decrease their rulemaking for fear of being overturned. At the same time, the president issues more executive orders giving agencies additional authority to act. Because the courts generally view executive orders as a legitimate source of authority for agencies (Mayer 2001; Cooper 2002), these orders serve as an appealing supplement to other forms of policy implementation. In particular, executive orders strengthen the authority of agencies in order to decrease the likelihood that their actions are overturned in court. To test these hypotheses, I use federal macro-level data and issue-specific data on environmental and labor policy.
Overall, the results of the analysis strongly support the theory. When the president is ideologically distant from the Supreme Court and the D.C. Circuit Court of Appeals, he issues more executive orders while federal agencies engage in less rulemaking. These results hold for macro-level analysis as well as for separate analyses of labor and environmental policy. In sum, the results suggest that during periods when the courts are more likely to strike down agency actions, presidents use executive orders to provide additional authority for agencies to act, thereby enhancing the executive branch's ability to implement policy. It also illustrates the president's ability to strategically employ multiple tools in choosing how to best influence policy. Further, this study demonstrates the importance of the courts in presidential decision making, in contrast to a body of literature that largely focuses on executive-legislative relations. This has implications for enriching our understanding of separation of powers politics and multi-institutional policy making.
The remainder of the article proceeds as follows. The first section provides background on executive orders and agency rulemaking. Drawing on the theoretical literature, the following section presents hypotheses predicting when the president will make use of these tools given his ideological position relative to the courts. Next, I describe the data to test the hypotheses. Then, I present the results of the analysis of rulemaking and executive orders. This is followed by an empirical analysis of labor and environmental policy making. Finally, I offer a discussion and concluding remarks.
An executive order is a unilateral directive issued by the president to executive branch officials and agencies, providing instruction on how to implement the law. Executive orders serve varied purposes, from orders of mundane executive branch maintenance to orders of national security. Presidents have the potential to influence policy outcomes through executive orders by providing instruction to agencies, creating and altering policies, or restructuring rulemaking processes. The executive order issued by President Obama to the FDA is one example of how a president can use an executive order to instruct an agency on how to implement existing policy. Presidents can also use orders to create policy initiatives or processes, such as George W. Bush's order (EO 13199) establishing faith-based and community initiatives or Richard Nixon's order (EO 11821) imposing a freeze on prices and wages.
Finally, presidents can use executive orders to restructure agency rulemaking procedures by establishing centralized review of new regulations. Most significantly, Ronald Reagan issued EO 12291 in 1981, which provided the president with greater control over agencies' rulemaking. Among its many requirements, EO 12291 mandated that agencies send a draft of all proposed and final rules to the Office of Management and Budget for approval before they could be published in the Federal Register. This executive order and similar ones have allowed the president to influence policy by acting as a de facto gatekeeper, permitting the rules he or she supports to become law but blocking, restructuring, or delaying others.
While presidents have used executive orders for many goals, their frequency has varied over time. Most studies seeking to explain variation in the frequency of executive order issuance focus on the president's relationship to Congress. However, the analyses of these hypotheses have produced mixed results. Many studies find an insignificant or inconsistent impact of divided government (Deering and Maltzman 1999; Mayer 1999; 2001; Mayer and Price 2002) and the seat share in Congress of the president's party (Krause and Cohen 1997; 2000) on the number of orders. However, other studies find that divided government significantly decreases significant executive orders (Bailey and Rottinghaus 2014; Fine and Warber 2012; Howell 2003; 2005; Young 2013) or that this relationship depends upon the capacity of Congress to constrain the executive (Bolton and Thrower 2016). Similarly, some scholars find increased executive order use when the president's legislative success increases (Krause and Cohen 1997; Shull 2006; Young 2013) or when his or her seat share in Congress increases (Gleiber and Shull 1992). Finally, studies find that the president issues more significant executive orders when his public approval is low, during his final month in office preceding an opposition administration, amidst international crisis, on foreign policy related issues, and when the executive branch is large (Krause and Cohen 1997; Marshall and Pacelle 2005; Mayer 1999; 2001; Young 2013). While there are some studies examining judicial review of presidential actions (Ducat and Dudley 1989; Howell 2003; Yates 2002; Yates and Whitford 1998), few examine how the president strategically considers the courts--and not just Congress--when issuing these orders.
A rule is a statement issued by an agency as a way to "implement, interpret, or prescribe law or policy" (Administrative Procedures Act [APA] 1946) in response to broad or specific statutory grants of authority. The APA establishes agency rulemaking procedures. Following a grant of authority from Congress, agencies are required to publish a notice of proposed rulemaking in the Federal Register allowing public comments. Agencies may incorporate recommendations and then must submit a final rule to the Office of Information and Regulatory Affairs (OIRA) for review, as required by EO 12291. If approved, final rules are published in the Federal Register and codified in the Code of Federal Regulations.
There are few empirical studies that seek to explain variation in the frequency of rulemaking over time and, as with executive orders, most of it focuses on congressional influences. O'Connell (2008) finds that proposed rulemaking decreases during a president's first year in office and when there is a party change in Congress. Additionally, she finds that Republican presidents significantly decrease completed regulatory actions, while presidents of both parties tend to increase completed rules in their last year in office. Similarly, Yackee and Yackee (2009) find that both proposed and final rules decrease under divided...