The Traceability of Presidential Policymaking in the Face of Congressional Sanctioning

• Published date: 01 December 2024
• DOI: http://doi.org/10.1177/10659129241274298
• Author: Meredith McLain
• Date: 01 December 2024

Article

Political Research Quarterly

2024, Vol. 77(4) 1415–1430

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DOI: 10.1177/10659129241274298

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The Traceability of Presidential

Policymaking in the Face of Congressional

Sanctioning

Meredith McLain

1



Abstract

Do presidents freely issue unilateral directives to evade an obstructionist Congress, or are they constrained by their

legislative opponents? Though conventional wisdom purports evasion, scholars actuallyf‌ind consistent evidence of

presidential restraint. However, this literature almost exclusively focuses on executive orders, ratherthan the myriad of

other unilateral directives at the president’s disposal, and thus offers an incomplete picture of how effectiveCongress is

at constraining unilateral policymaking. Accordingly, I develop a theory of how presidents adjudicate betweendifferent

types of directives based on trade-offs related to their traceability, presidential incentives, and Congress’s ability to

retaliate based on available information. I argue that presidents rely on more traceable unilateral directives, specif‌ically

executive orders, and published memoranda, when facing ideologically aligned congresses tha t are less likely to retaliate.

However, they use less traceable directives, like unpublished memoranda, to evade legislative opponents,but at the

expense of credit claiming opportunities. Using an original dataset of executive orders, published memoranda, and

unpublished memoranda issued between 1981 and 2020, I f‌ind empirical support for the theory. Overall, this study

demonstrates how presidents can overcome legislative checks by controlling the traceability of the ir unilateral activities.

Keywords

presidential power, congressional sanctioning, unilateralism

To commemorate the 25th anniversary of the Clean Water

Act in 1997, President Bill Clinton announced his Clean

Water Action Plan, which called on Congress to re-

authorize the Act and further strengthen protections

against the adverse effects of farmland run-off on Gulf

Coast ecosystems.

1

Yet the Republican-controlled House

and Senate resisted his new plan. Though the House did

reauthorize the Clean Water Act, it provided much less

stringent protections than the original Act. Clinton vowed

to veto the bill, but it failed to pass in the Senate.

Legislation, however, is not the only way that presi-

dents can inf‌luence public policy (e.g., Cooper 2014;

Howell 2003;Kaufman and Rogowski 2024;Mayer

2001). Clinton could have used unilateral tools, such as

executive orders, to direct agencies on how to implement

policy. Yet no executive order was issued, nor was any

other unilateral directive published in the Federal Reg-

ister, to implement the Clean Water Action Plan. Instead,

Clinton signed an unpublished memorandum directly

criticizing Congress for its inaction, stating: “The Action

Plan was coupled with a challenge to the Congress to

reauthorize and strengthen the Clean Water Act, but

Congress has yet to act on this challenge.”At the same

time, the memorandum directed agencies to address the

farmland run-off and water quality standards that failed to

pass in the Act’s re-authorization.

2

While this memo-

randum implemented a key portion of the President’s

environmental policy agenda, he chose not to publicize

the memoranda. Without the President claiming credit for

the policy, the directive was diff‌icult for other actors to

trace. As a result, the memorandum was never mentioned

in major newspapers, including The New York Times,The

Washington Post,orThe Wall Street Journal, nor was it

discussed in the Congressional Record at the time.

Presidents beyond Clinton have long relied on uni-

lateralism to achieve their policy goals, leading many

politicians and political observers to believe that

1

Tufts University, Medford, MA, USA

Corresponding Author:

Meredith McLain, Tufts University, Packard Hall, 4 The Green, Medford,

MA 02155, USA.

Email: Meredith.mclain@tufts.edu

presidents use directives to bypass an obstructionist

Congress (e.g., Light 1998;Peterson 1990). Contrary to

this conventional wisdom, however, political scientists

f‌ind that presidents actually issue fewer executive orders

during divided government (e.g., Chiou and Rothenberg

2014;Howell 2003). Scholars often attribute this f‌inding

to Congress’s ability to effectively constrain presidential

unilateralism (e.g., Howell 2003).

However, until recently scholarship generalized these

trends in executive order use to all unilateral directives.

Lowande (2014) compares executive orders to published

executive memoranda f‌inding similar trends in the use of

memoranda. Kaufman and Rogowski (2024) consider

executive memoranda, public land orders, executive

agreements, and agency directives along with executive

orders. They f‌ind that presidents do strategically substitute

these less visible directives for more visible directives,

specif‌ically executive orders, and proclamations, during

divided government. Yet neither of these studies identif‌ies

the main mechanism driving presidents’choice in uni-

lateral directive.

In this paper, I argue presidents strategically choose

unilateral directives based on the traceability of the di-

rective, rather than the visibility. While visibility is nar-

rowly def‌ined by the legal imposition by Congress of what

should be published, presidents have control not only over

the type of directive, but also, over whether to publish, and

publicize, the directive. With this control, presidents will

consider how easily actors will be able to connect a policy

outcome to a presidential action inf‌luencing both their

choice in directive and their decision to publicize their

action. Traceability is not limited to the publication re-

quirements associated with directives, but also includes

other factors, such as the president’s decision to publicize

the directive in speeches, media’s decision to mention the

directive in their publications, and Congress noting the

directive in the Congressional Record. All of these factors

increase the traceability of a directive and are not limited

to those directives published in the Federal Register.As

such, I argue that presidents use less traceable bureau-

cratic directives to evade an opposition Congress.

Highly traceable directives, such as those published in

the Federal Register or publicized by the White House,

allow presidents to credit claim. But at the same time, they

increase the information that Congress has to retaliate

against them. In contrast, less traceable directives like

unpublished memoranda remain under the political radar,

which limits opportunities for credit claiming, but they

also decrease the likelihood of legislative sanctioning.

Given this, presidents should rely on less visible directives

when Congress has the most incentive to constrain uni-

lateralism, such as when there is signif‌icant inter-branch

policy disagreement. When presidential preferences align

with legislators, however, presidents can engage in more

public forms of unilateralism to reap the electoral benef‌its

of such actions.

To test this prediction, I collect a dataset of all exec-

utive orders, published and unpublished memoranda is-

sued in a policy area between 1981 and 2020. I read all

these directives and provide them with codes representing

their content. Consistent with previous studies, I f‌ind

presidents issue fewer executive orders and published

memoranda as their partisan opposition increases in

Congress. However, I also f‌ind that presidents rely more

greatly on less traceable directives, using multiple mea-

sures of traceability, when facing legislative opposition

than when faced with an aligned Congress. Altogether, the

analysis suggests that presidents strategically manipulate

the traceability of unilateralism, specif‌ically through their

decision to publish and publicize directives, to evade

Congress, as predicted. The use of less traceable directives

subverts government transparency thereby hindering ac-

countability and undermining the separation of powers

system.

By focusing on executive orders, previous studies have

provided an incomplete picture of whether, when, and

how Congress can constrain executive unilateralism.

Though a few recent studies (e.g., Kaufman and

Rogowski 2024;Lowande 2014) examine executive

memoranda, they do not examine the important differ-

ences between those memoranda the president chooses to

publish in the Federal Register. Rather, recent scholarship

that pools various unilateral directives into a single

analysis likewise overlooks the differences between them

that might lead to diverging presidential strategies based

on their trade-offs (e.g., Kaufman and Rogowski 2024). In

choosing to use unpublished memoranda more frequently

during divided government, presidents are decreasing the

traceability of an already less traceable directive. This

trend has worrying consequences for separation of powers

government. Without access to directives via the Federal

Register, Congress is limited in its ability to constrain

presidents’unilateral directive use.

The Importance of Traceability

Presidents have vast powers to inf‌luence public policy.

Perhaps most famously, they can inf‌luence the content of

legislation through vetoes (e.g., Cameron 2000), agenda

setting and proposal powers (e.g., Cohen 2012;

Rudalevige 2002), and public appeals (e.g., Canes-Wrone

2006;Kernell 1986). Rising polarization and the in-

creasing prevalence of divided government, however, has

made it exceedingly diff‌icult for presidents to achieve

their legislative agendas (Binder 2003;Lee 2015). In-

stead, greater scholarly and public attention has been

given to the ways presidents can unilaterally inf‌luence

policy through their control over the executive branch and

1416 Political Research Quarterly 77(4)