Unilateral orders as constituency outreach: executive orders, proclamations, and the public presidency.

Author:Rottinghaus, Brandon

Scholarship on the unilateral presidency has focused on presidential policy making with the stroke of a pen, with attention placed on presidential executive orders (Howell 2003; Mayer 2001; Rudalevige 2012; Warber 2006), proclamations (Rottinghaus and Maier 2007), signing statements (Conley 2013; Kelley 2006; Kelley and Marshall 2010), and other directives. Many studies have shifted from merely describing these powers and their constitutionality to providing predictive models to explain institutional factors concerning when presidents issue unilateral orders. One tradition has assessed the legality of the president's executive order power (Cooper 1986; Fleishman and Aufses 1976; Marcus 1977; Mershon and Schlossman 1998; Morgan 1970; Raven-Hansen 1983; Wigton 1996). Another tradition has made use of longitudinal studies and major content analyses of unilateral orders. Such efforts have resulted in extending the traditional legal approach in presidential studies into the realm of a quantitative legal framework for assessing various dimensions of the unilateral presidency (Howell 2003; Mayer 2001; Warber 2006). These two frameworks have enhanced our knowledge about how presidents strategically use unilateral orders to pursue their policy agendas in order to build their legacies and to skirt the formal legislative process in Congress.

Despite a powerful and potentially dangerous use of unilateral orders by presidents to establish, implement, or direct public policy, presidents also use these orders for non-policy purposes: appealing to political constituencies. Indeed, Teten (2011) argues that even presidential unilateral directives have a public, rhetorical function. Both executive orders and proclamations, two prominent types of unilateral orders, frequently mention specific constituency groups, either to praise them, celebrate a unique milestone, or comment on the historical significance of these groups. A growing constituency demand, inability to meet expectations of the office, and the fragmentation of the New Deal coalition into atomized groups create an incentive for presidents to use their offices to appeal to individual constituencies in formal, high-level but "inexpensive" ways. That is, through executive action, sometimes with but often without congressional sanction, presidents can appease constituencies, attract new constituencies, or repay constituencies for past support, depending on their political circumstances. Similarly, despite the significant growth of research in this area, most studies have either focused on one type of unilateral policy tool or they have isolated these policy tools from each other during their analyses when assessing more than one such tool (but see Cooper 2002). However, the scope and use of individual unilateral orders is similar, especially considering their common roles in the public presidency, necessitating the joint study of multiple directives (see Kelley, Marshall, and Watts 2013).

Our research question seeks to link the unilateral presidency (where presidents issue unilateral directives as a means to establish, implement, and execute policy) with the public presidency (where presidents seek to lead and represent the public) by exploring the following research question: under what conditions do presidents issue executive orders and proclamations as part of their public presidency? As we noted above, studies on the unilateral presidency generally analyze one type of unilateral tool in isolation rather than exploring how presidents strategically use a variety of them in tandem. Likewise, the rise in the use of unilateral orders allows presidents to develop or preserve a direct connection to the public using the formal (and unilateral) means of the executive office. In this article, we focus on the president's constituency-based unilateral strategies and extend the literature on the conditions under which presidents use these types of orders. We seek to bridge research in the public presidency and unilateral presidency to better understand how presidents strategically use their unilateral tools to reach out to specific constituencies with executive directives. The power of the office provides the president an opportunity to address the possible expectations gap (Waterman, Silva, and Jenkins-Smith 2014) generated as presidents promise (often overpromising) specific attention to the issues of concern to their constituencies but are less able to deliver. An analysis of constituency-based unilateral orders allows us to more carefully examine how presidents use these orders as a way to use their unilateral authority without necessarily bargaining with Congress but in order to meet the demands of a modern public presidency.

In order to merge the unilateral and public presidencies into a more cohesive presidential strategy, we explore how presidents reach out to constituency groups using executive orders and proclamations. This article proceeds in six sections. First, we identify examples of how presidents over time have used constituency unilateral orders. Second, we outline how the literatures on unilateral orders and the public presidency complement each other. Third, we develop several expectations concerning when presidents might issue constituency-based unilateral orders based upon their political environment and institutional needs. We expect that presidents should use these orders when they are stymied by an opposition Congress over legislation as a way to provide tangible policy-based help to specific groups. Presidents are also likely to use these orders to meet rising expectations in office such as after winning an election, when running for reelection, or when their popularity is lower. Fourth, we describe our novel data, which segment the president's orders into constituency-level orders and we identify the methodology used to analyze these measures. The fifth section examines the constituency orders over the history of the modern presidency, tests the hypotheses, and examines the findings. The sixth section concludes and relates the findings to important extensions of the unilateral presidency literature.

Examples of Unilateral Policy Tools and the Public Presidency

Presidential unilateral orders allow presidents to set policy (in a limited way) by issuing a directive (Dodds 2013; Howell 2003; Warber 2006). In addition to the use of these orders as policy initiation, implementation, and execution, presidential unilateral orders can be used for ceremonial, symbolic, or hortatory purposes. The use of these orders for constituency-specific or symbolic purposes is often merged with their policy function (see Mayer 2001; Telen 2011). Cooper (2002, 142) notes that even proclamations, which are most frequently used as tools to inform the public about events or actions, are not completely "relegated to ceremonial uses" and are used for multiple reasons (see also Dodds 2013, 7-8; Rottinghaus and Maier 2007). Presidents, as rational and unilateral actors, are attuned to reaching out to their specific constituencies in order to maintain support from them. One specific way in which presidents may appeal to constituencies is to issue a unilateral order that is of importance to specific constituency groups that comprise presidential coalitions. In this context, presidents often use executive orders and proclamations to celebrate the history, accomplishments, or actions of groups or individuals, or to develop public policies that are of interest to certain segments of society. Presidents can narrow the expectations gap with these groups by paying attention to their history and their policy concerns.

History is replete with examples of presidents using unilateral orders, especially executive orders and proclamations, as a constituency tool (or "constituency-based" unilateral orders as we term them here). The White House of Harry Truman saw the potential of executive orders as a valuable tool for its public presidency in order to pull in more African American voters to the Democratic Party (Burk 1984, 14). On December 5, 1946, Truman signed Executive Order 9808 that created the President's Committee on Civil Rights. Morgan's (1970, 14-15) pioneering study on executive orders suggests that one of Truman's motivations for signing this directive was to respond to various concerns held by leaders of the civil rights movement at the time. In addition, there is a wealth of evidence to suggest that Truman timed the signing of his Executive Order 9981 to desegregate the armed services during the summer of 1948 in anticipation of the upcoming presidential election that fall in order to seek more African American voter support for the Democratic Party (Mershon and Schlossman 1998, 161; Morgan 1970, 18-19; Taylor 2013, 92-96).

In addition to the potential of executive orders in aiding presidents with their public presidencies, proclamations are also a valuable and potent unilateral tool that the White House could rely on to reach out for support among constituencies in the general public. Cooper (2002) ascribes "serious significance" to these hortatory proclamations because they involve nationally significant events or actions. Indeed, Corwin (1957, 392) described presidential proclamations as "the social acts of the highest official government" referring primarily to the Thanksgiving Day Proclamation first issued by George Washington and continuing as a tradition each Thanksgiving since. Even though ceremonial proclamations are not designed to have legal or policy weight, they offer presidents an effective way to connect with political allies and advance their rhetorical policy agenda. For instance, President Bill Clinton issued proclamations proclaiming National Health Care Month, National AIDS Awareness Month, and Women's Equality Day, while President George W. Bush issued proclamations on National Family Week, National Charter Schools Week, and National Character...

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