In Lieu of Legislation

Abstract

In the legislative process, presidents may negotiate with Congress or use unilateral action as a bargaining tool. When presidents issue a unilateral order during the legislative process, do these orders “preempt” or “support” legislation? We match unilateral orders with related legislative activity and find presidents are more likely to use unilateral orders to “preempt” legislation when the issue is on the president’s agenda or in the second half of their second terms but “support” legislation when of the same party as the bill sponsor. These findings suggest that presidents not only take advantage of Congressional incapacity but also exert unilateral power in support of legislation.

Keywords

unilateral action president Congress legislation agenda

In exercising their executive power within the legislative arena, presidents generally pursue a “legislative presidency” (Wayne 1978). From the president’s perspective, this is a tenuous choice because the process of passing legislation is afflicted by collective action problems, an outlay of political capital, lengthy debates, and large transaction costs but provides certainty in achieving a lasting policy outcome (Moe and Howell 1999, 146). In an effort to improve their chances for success, a president may choose to enter the legislative arena using several means sanctioned by the Constitution or the strategic use of executive power: suggest an agenda item to Congress as outlined by Article II, Section 1 of the Constitution issue an executive statement of administrative procedure (Rice 2012); and issue a veto threat in advance of a veto (Deen and Arnold 2002) and the use of the veto (Cameron 2000, 28). Each of these tools provides the executive with some strategic participation in the legislative process.

Beyond the conventionally proscribed techniques for the president’s legislative functions, presidents may also use direct or unilateral action as a means of improving their success in implementing their policy agenda outside the legislative arena (Cooper 2002; Mayer 2001; Warber 2006). Direct action is strategically useful for presidents when faced with a legislative arena that forces them to share political powers (Howell 2003, 2005; Mayer 2001; Moe and Howell 1999). The process of issuing unilateral orders is generally described as an alternative to pursuing legislation by bargaining with Congress (Howell 2003; Moe and Howell 1999). This approach enables the executive to “act quickly and with flexibility in responding to problems and changing political, economic and social circumstances as they arise” (Moe and Howell 1999, 138). This unilateral approach, however, is not always independent of the legislative process. As Jones (2005, 253) argues,

Efforts to comprehend presidential power in lawmaking require study of congressional power even if the president acts “with the stroke of a pen” as when issuing executive orders. Those who are separated must agree or acquiesce if there is to be law.

Neustadt ([1960] 1990, x) suggests that presidents are “dependent on consent from other sharers” in government, especially Congress, because “he must bargain with them, buttressing his share with his resources in their eyes of personal reputation and of public standing.”

If unilateral orders can be used as a bargaining tool in the legislative process, when presidents issue a unilateral order during the legislative process, under what conditions does that order preempt or support proposed legislation? Using an original data set of unilateral orders (executive orders and proclamations) from Presidents Ford through George W. Bush (93rd to 110th Congresses), we analyze when and how presidents unilaterally preempt or support proposed legislation. Although the literature suggests that presidential strategies of bargaining or using unilateral actions are opposed to one another, our approach unites Neustadt’s “power stakes” (how presidential resources influence bargaining) with theories of direct presidential action. We argue that the president will act using a unilateral order during the legislative process to preserve a policy trajectory in Congress favorable to the executive or to shift policy closer to his ideal point. Our theory suggests flexibility in a president’s use of unilateral orders in the legislative arena: sometimes to halt the legislative process, sometimes to foster it, depending on the institutional context. We argue that unilateral orders are used while negotiating in the legislative process. This notion expands the conceptual study of the executive’s use of unilateral power to the legislative arena, a linkage yet unexplored. In doing so, we seek to develop a better understanding of shared rather than separate powers in the context of executive–legislative relations where unilateral orders can be used to augment the legislative process.

Presidents and Unilateral Action in the Legislative Arena

When considering whether to issue a unilateral order, presidents face an integrated cost–benefit trade-off, especially with respect to the legislative makeup of Congress and the possible intervention of the judiciary (Moe and Howell 1999). The executive must weigh the costs and benefits of legislation against the costs and benefits of unilateral action. Deering and Maltzman (1999, 770) argue that “a president’s willingness to issue an executive order depends upon both his positive power to get legislation enacted by Congress and his negative power to stop legislation overturning such an order.” Invoking unilateral powers to circumvent legislation specifically involves weighing the cost of angering a recalcitrant Congress with the benefits of acting with dispatch. As Mayer (2009, 439) suggests, presidents prefer legislation as a means to achieve policy goals but may opt for unilateral action as their “second-best” option when they face strong Congressional opposition. Such a complicated decision is not strictly combative nor is it totally cooperative—there is variation depending on the president’s authority to act, the political environment and the institutional arrangements.

Presidents may use unilateral orders to set the political agenda of the nation without input from members of Congress (Fine and Warber 2012); however, this runs the risk of circumventing the negotiating process with members of Congress with whom the president must later bargain. Neustadt ([1960] 1990) warns directly of this problem when he counsels that presidents should prefer to bargain with Congress (see Mayer 2009, 428). Yet, a president’s short-term interest in pursuing successful policy outcomes may outweigh his desire to work with Congress on a mutually agreeable political outcome (Krause and Melusky 2012), especially if Congress and the president are at loggerheads over legislation. Presidents may disagree with the ideological or political direction of legislation and issue a preemptive order as an alternative to Congressional action. This too runs the risk of angering Congress who may choose to respond with additional legislation (Howell 2003) or otherwise revoke the order by statute. However, invoking a unilateral order during the legislative process may be a way of gaining participation of members by addressing topics already on the Congressional agenda. Consultation with Congress is especially likely when the president’s objective is to change the agreed-upon status quo (Moe and Howell 1999) by issuing an order supporting proposed legislation. Therefore, presidents, in their desire to work with Congress, may issue a unilateral order to achieve a mutually agreeable policy solution. There is less cost here to the president with respect to angering Congress as the president is “fast tracking” the proposed Congressional legislation into policy, especially if the president is executing the will of Congress through prearranged policy (Fisher 2007, 109; Warber 2006).

We argue that the president will act using a unilateral order during the legislative process to preserve a policy trajectory in Congress favorable to the executive or to shift policy closer to his ideal point. Presidents can do so using preemptive means or supportive means. If a president can achieve legislative policy success through bargaining, they are likely to bargain. If this is less likely, given a fractious political environment, presidents will set their policy unilaterally. This is similar to the position-taking process as outlined by Krehbeil (1998 and Howell (2003). Specifically, supportive orders are more likely to come about when the president endorses Congressional goals or to help Congress overcome collective action problems to achieve policy agreement. In these instances, more agreement between the president and Congress is theoretically likely, encouraging the president to use his unilateral authority to assist a mutually agreeable policy process. However, presidents may preempt the legislative process to shift a possible policy outcome closer to his preferred location. Less policy agreement is likely during these moments, in the form of greater interbranch or intrabranch differences. When there are more significant disagreements likely between the branches or within the legislative branch, the president may use these opportunities to unilaterally pursue a policy outcome that is more favorable to his ideal point. The examples and the theoretical expectations in the following two sections elaborate and expand on this general theme.

Unilateral Orders: Preempt and Support

Two primary scenarios are discussed in the literature regarding the president’s projected use of unilateral orders vis-à-vis Congress. Presidents can either preempt or support legislation. First, a president can evade Congress through “preemptive” politics where Congress is poised to act but the president acts first (Howell 2003; Mayer 2001). Under this scenario, presidents are seen to act alone in an “efficient and alternative manner” compared with the legislative process (Deering and Maltzman 1999; Krause and Cohen 1997, 462). Presidents are strategic actors who issue unilateral orders to bypass Congress (Morgan 1970; Nathan 1983. Some scholars argue presidents will try to compensate for the lack of legislation by pushing unilateral orders through Congress when government is divided (Warber 2006, 207). The capacity to move first enables the president to preempt legislation or undercut Congress when an issue is within the legislative arena (Mayer 2001, 90). The president may “preempt” proposed legislation or veto an approved bill because he prefers to take a different direction, or, when the proposal is ideologically farther away from his ideal point, issue a unilateral directive that is closer to his ideal point (Howell 2003, 58).

For example, President Reagan’s Executive Order 12532, Prohibiting Trade and Certain Other Transactions Involving South Africa (50 FR 36861; September 10, 1985), exemplified how the president can use a unilateral order to take policy in a different direction from Congress. President Reagan was willing to adopt some economic sanctions but Congress wanted to impose more severe economic sanctions. Ultimately, the president’s order included some, but not all, economic sanctions that were included in the House (H.R. 1430) or Senate (S. 635, S. 995) versions of the legislation (see Howell 2003, 59). Likewise, President George H. W. Bush chose to take a different direction from Congress regarding U.S. policy toward the People’s Republic of China after the Tiananmen Square protests. In 1989, Congress pursued its efforts in the legislative arena culminating in H.R. 2712, Emergency Chinese Immigration Relief Act of 1989. On November 30, 1989, President Bush vetoed the bill and instead extended and broadened protective measures by issuing Executive Order 12711, Policy Implementation with Respect to Nationals of the People’s Republic of China (55 FR 13897; April 13, 1990).¹ A third example of the preemptive use of unilateral orders are two orders issued by President Clinton during a contentious battle over the Omnibus Budget Recon-ciliation Act of 1993 (Public Law 103-66, August 10, 1993 (107 Stat. 312)). Executive Orders 12857 on Budget Control and 12858 on the Deficit Reduction Fund were issued to replace language that had been removed by changes made in the Senate conference.²

The president may also take action preempting proposed legislation to break an internally gridlocked Congress. In this case, the executive issues an order as an “end run around Congress” by establishing policy that they could not otherwise compel a unified Congress to pass or which Congress could not pass because of internal disagreement (Cooper 2002, 55; Howell 2003, 53; see also Fleishman and Aufses 1976). In 1976, President Carter was confronted with an impending statutory deadline and a Congress unable to pass legislation because of internal gridlock. Congress had been working on enacting measures to address the preservation of lands in Alaska because it became a state in 1958, but time was running out.³ In 1978, the House finally passed H.R. 39, the Alaska National Interest Lands Conservation Act.⁴ The Senate Committee on Natural Resources submitted its report to the full Senate, but no action appeared on the immediate horizon (Carter 2010, 253).⁵ Hampered by a gridlocked Congress, on December 1, 1978, President Carter proclaimed fifty-six million acres of land in Alaska as fifteen national monuments.⁶

However, a president may also invoke an order to “support” legislative action. In this case, when Congress is considering major policy changes, the president can shift the new policy to a more moderate version to help Congress mobilize (Howell 2003, 39). To initiate supportive Congressional actions, a president may establish a commission for fact-finding or to centralize policy development in the executive branch (Warber 2006, 144). For instance, President Reagan’s Executive Order 12348 (47 FR 8547; March 3, 1982) established an advisory committee on Federal Real Property in support of a Senate Resolution declaring that United States needed to improve on managing its assets. The committee set forth some recommendations for the president and executive branch to follow, some of which were adopted in the president’s order.⁷ President Clinton also used this strategy in an effort to jump-start his “competitiveness plan,” designed to establish a partnership between government and the high technology industry. The Senate Commerce, Science and Transportation Committee approved S. 4, National Competitiveness Act of 1993, on May 25, 1993 and reported to the full Senate on July 28, 1993. The House meanwhile passed two bills, H.R. 820, National Competitiveness Act of 1994 on May 19, 1993, and H.R. 1757, National Information Infrastructure Act of 1993 on July 26, 1993.⁸ In late-1993, President Clinton issued three executive orders creating committees as requested by Congress, all of which reinforced his commitment to information infrastructure and national competitiveness.⁹

In another kind of supportive order, a president may also direct the federal government to take specific unilateral action to show support for proposed legislation. For example, in 1979, hearings had been held in the Senate on the Paperwork and Redtape Reduction Act.¹⁰ President Carter in his remarks (November 30, 1979) upon signing Executive Order 12174, Federal Paperwork Reduction (44 FR 69609; December 4, 1979), expressed his commitment to eliminating red tape and extra paperwork from the federal government by implementing measures proposed in the bill and by thanking the legislators in attendance who had previously introduced legislation which he supported.¹¹ On the same day he signed the executive order, President Carter also transmitted a Federal Paperwork Reduction Message to the Congress outlining the content of the order and articulating the specific benefits of the proposed legislation with the hope that Congress would make his order (and the already proposed legislation) permanent.¹²

Expectations of Preemption or Support

In this section, we formalize our expectations about which factors should influence the president’s decision to issue a unilateral order to preempt or support during the legislative process. We argue that the institutional context shapes the executive use of unilateral orders as a legislative tool. As the president and Congress battle over policy positions, presidents may use their unilateral authority to support or preempt the legislative process depending on their perceived ability to negotiate with Congress. When presidents and Congress are more likely to agree, presidents are more likely to issue supportive orders. Specifically, presidents should issue more supportive orders, which in theory preserves policy as proposed by members of Congress, during the legislative process when the executive is in greater agreement with Congress, either because of larger legislative majorities or closer ideological connections to Congress. When the president and Congress are more likely to disagree, the president is more likely to issue preemptive orders. As argued above, presidents should issue preemptive orders as a legislative tool, which in theory shifts policy closer to the president, when Congress and the president are more likely to disagree, such as when Congress has smaller political majorities or there is greater ideological friction. We draw on scholarly work on unilateral power and on the president’s use of other quasi-unilateral tools (such as vetoes and veto threats) in the legislative process to formulate our three major hypotheses.

In our first set of hypotheses (Hypotheses 1a, 1b, and 1c), we consider executive institutional conditions that may affect the executive’s likelihood of intervening in the legislative process with a unilateral order. Specifically, when political circumstances present the need to expediently enact the president’s agenda into law, we expect that presidents in the later stages of the administration should be more likely to preempt legislation proposed by Congress (Hypothesis 1a). This follows from Mayer (2001, 102) who suggests that the later the “stage of his term,” the more likely presidents are to issue an executive order. Specifically, we consider moments where the president is in the second half of his term or his second term should give rise to presidents issuing more orders preempting Congressional legislation. Presidents are politically weaker in the second half of his term and Congress feels no pressure to bargain with the president, similar to when presidents issue vetoes (Copeland 1983). As a result, the president uses his first mover advantage and acts without Congress (Moe and Howell 1999). A second factor is the president’s political agenda. We expect that presidents are more likely to issue a preemptive order when the issue is on their political agenda (Hypothesis 1b). If the issue is on their agenda, presidents should be more likely to act unilaterally, even if they risk a negative reaction from Congress. Presidents often use this tactic to make progress on a legislative agenda item using executive orders (Rudalevige 2005). A third factor is whether the president is in an election year. During an election year, the president is expected to issue an order preempting legislation because he desires to appear “presidential” (Mayer 2001; Hypothesis 1c).

In our second set of hypotheses (Hypotheses 2a, 2b, and 2c), we examine the factors that may encourage presidents to issue an order preempting pending legislation under interbranch gridlock, where the president and Congress are at ideological odds. Fundamentally, interbranch conflict occurs with Congress pulling in one direction and the president in another (Binder 1999; Bond and Fleisher 1990). Fiorina (1996) suggests that differing policy and electoral interests reinforce institutional rivalries between the executive and legislative branches. If there is a greater potential for disagreement among the branches, presidents may use their first mover in the form of an executive unilateral advantage to pursue their own agenda. For instance, describing the president’s strategy, Mayer (1999) and Mayer and Price (2002) suggest that presidents should be expected to use their unilateral authority when they are politically disadvantaged. Presidents have been shown to issue more unilateral orders to prevent Congressional action that the president opposes (Howell 2003, 177) or when conditions do not favor legislative success (Krause and Cohen 1997).

Therefore, we expect that presidents are more likely to issue an order contrary to legislation Congress is considering when there is a greater ideological distance between the president and the median member of the majority party in Congress, or, alternatively, support legislative action when the distance is small (Hypothesis 2a). Put another way, the farther apart the preference of the branches, the more likely the president is to act unilaterally with a preemptive order in the legislative arena to ensure his policy preferences prevail. The closer ideologically to the majority party, the more likely the president should be to facilitate legislative action. Indeed, Deering and Maltzman (1999, 777) find that the farther the distance between the president and the median member of the House and Senate, the more likely the president is to issue an executive order. However, when the ideological distance is closer, the actors should be more likely to agree and therefore the president is more likely to “support” the chamber’s legislative efforts. Presidents exercise their veto powers in the same conditions (Copeland 1983. A second interbranch factor is the ideological distance between the president and the veto pivot. Based on similar logic, we argue that the president will be more likely to issue an order preempting legislation when he is “between” or “outside” (but closer to) the veto pivots of a chamber (Deering and Maltzman 1999, 772; Hypothesis 2b). The probability of the president breaking a two-third majority voting to overturn the order is easier the closer he is to the veto pivot.

A third interbranch factor we consider is the sponsorship of legislation that may have an effect on the president’s decision to preempt or support proposed legislation. If the sponsor’s or cosponsor’s ideology or party affiliation is the same as the president’s, we should expect that the proposed legislation is more closely aligned with the president’s preferences. Sponsorship and cosponsorship signal to agenda setters and party loyalists about the preferences of the individual cosponsor (Krehbiel 1995; Krehbiel and Kessler 1996; Kroger 2003). To examine this possibility, we expect that the farther apart ideologically the president and the sponsor are or when the president and the sponsor are of different parties, the more likely the president will issue an order preempting proposed legislation (Hypothesis 2c). However, if the sponsor is of the same party as the president or the sponsor and the president are closer ideologically, we expect the president to be more likely to intervene with a unilateral order supporting proposed legislation because the actors are more likely to agree on a common political course of action. Again, these executive tactics are connected to the legislative bargaining process—presidents use their first mover advantage as a negotiating tactic to start or stop legislation while negotiating in the legislative arena.

In our third set of hypotheses (Hypotheses 3a and 3b), we consider whether presidents are more likely to issue a unilateral order preempting pending legislation when intrabranch gridlock prevails, or where Congress is internally divided on ideological grounds. Presidents are expected to be more likely to issue orders preempting proposed legislation when there is greater ideological distance between the party medians within each chamber (Hypothesis 3a). Motivating this, when the two chambers are gridlocked by internal policy disputes over politics or ideology, Congress may become paralyzed in its ability to pass any kind of legislation (Binder 1999). This is exacerbated by increases in party polarization in general (Jones 2001). When the parties are ideologically farther apart, the gridlock interval is larger and they are less likely to agree on a course of policy action (Krehbeil 1991). A president who wants to shift the status quo may be more likely to issue a unilateral order preempting proposed legislation that establishes his policy direction comfortable that Congress will be unable to mobilize a response. Presidents are found to exercise their veto powers in these conditions (Cameron 2000). In the alternative scenario, presidents should be more likely to issue a unilateral order in support of legislation when the parties are ideologically closer together or more internally unified. In this condition, it is easier for the branches to find a compromise policy position.

A second intrabranch factor is the size of the majority party. Presidents should be more likely to issue orders preempting legislation when the majority size is smaller (Hypothesis 3b). In these circumstances, it is easier for the president to get his way because Congress has a harder time gaining support within the body to overturn the president’s unilaterally placed position. Presidents are willing to attempt to take advantage of a “weaker” (smaller) Congressional majority who may be unable to respond to the president’s unilateral action. This is consistent with Howell (2003, 85) who argues and finds that larger majorities lead to fewer significant unilateral orders because the president is cognizant of getting his order overturned. Therefore, we expect in Hypothesis 3b that presidents are more likely to preempt legislation when the majority size is smaller, whereas we expect the president to support legislation when the majority size is greater.

Data and Method

To test the expectations outlined in the previous section, we have coded all executive orders and policy-based (nonceremonial) presidential proclamations issued by Presidents Ford to George W. Bush during the 93rd to 110th Congresses.¹³ Executive orders and proclamations are the two most numerous unilateral orders found over time and carry the weight of an act of Congress (Jenkins v. Collard 145 U.S. 546, 560–61, 1891). A presidential proclamation is “an instrument that states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law” and allows the president to take specific action (Cooper 2002, 116). Proclamations carry the same force of law as executive orders and are codified into law (79 Cong. Rec. 12431, July 29, 1935, Public Act No. 220, 74th Congress; Cooper 1986). Several sources had to be searched to generate this complete record, including the Codification of Presidential Proclamations Disposition Tables, the United States Statutes at Large, the U.S. Federal Code, the CIS Information to Presidential Executive Orders and Proclamations, the U.S. Federal Register, and the Public Papers of the Presidents. The combined search yielded a comprehensive list of 1,942 executive orders and proclamations during the time period studied.¹⁴

The dependent variable preempt was constructed from an analysis of the timing and content of these 1,942 unilateral orders. Coding the dependent variable consisted of a two-stage process: first, we analyzed the content of the order to determine whether the subject, issue, or topic was on the Congressional agenda, and second, we categorized the order as to whether it was issued in “support” or to “preempt” a relevant bill on the Congressional agenda.¹⁵ We use hearings on proposed legislation as the determinant for the content of the Congressional agenda to align our approach with scholars who study presidential success in the legislative arena. The decision rule for determining whether an issue was on the “Congressional agenda” was based on whether a bill had been enrolled in one of the two chambers and had received a hearing before a subcommittee, committee, or the full chamber (Edwards and Barrett 2000; Edwards, Barrett, and Peake 1997). The hearing had to have been held within the same session and prior to (or on) the same date the order was issued.

A close scrutiny of each unilateral order enabled us to develop a series of key words to use as a starting point. We searched several bound and electronic data sources using these key words and others to search all hearings for each legislative session that matched the content of the president’s unilateral order, including ProQuest Congressional, Library of Congress (THOMAS), Congressional Bills Project, Congressional Record, Congressional Quarter Weekly, and Congressional Quarterly Almanac. From this, we generated a list of hearings for each topic, along with a list of the proposed legislation that was the subject of each hearing. Finally, we carefully scrutinized the content of each order that related to bills which were the subject of the hearings to identify whether the order could qualify as being used in “support” or to “preempt” the relevant bill. The bill that was farthest along in the process (but before the order was issued) was coded.¹⁶ If the order preempted a bill on the Congressional agenda, it was coded “1,” and it was “0” if the action was in support of a bill. Intercoder verification reveals substantial agreement between the coders with respect to the coding of preempt and support.¹⁷ This yielded a total of 272 cases we use for analysis—188 cases in “support” and 84 cases that “preempt.” A sample of these matched orders and specific legislation is included in the Supplemental Information uploaded to the Political Research Quarterly (PRQ) website.

Several examples help to identify the specific coding rubric for determining whether the president acted in “support” or to “preempt” the proposed legislation. First, “preemption” requires that the president’s order direct the executive branch to take action contrary to Congress’s intent on the legislation, implement executive action not included in the bill, veto a bill, and issue a unilateral order in lieu of the bill or issue an order in lieu of expired authority. Drawing from two prior examples discussed above, President George H. W. Bush’s Executive Order 12711, Policy Implementation with Respect to Nationals of the People’s Republic of China, was coded as “preempting” a bill on the Congressional agenda (H.R. 2712) because the president vetoed the bill and issued a unilateral order in lieu of the legislation. Second, Executive Order 12532, Prohibiting Trade and Certain Other Transactions Involving South Africa, was coded as “preempt” because it altered Congressional intent while two bills (H.R. 1430 and S. 635) were being considered by Congress.

The other way to approach this question is to look at unilateral orders that support Congressional action. This is the other side of the dependent variable (coded “0”). Support involves one of the following conditions: form or extend a federal advisory task force or commission at Congress’s request, implement a portion of a bill, order the executive branch to take specific action Congress expressed in the legislation, offer some endorsement of the bill, or clarify the position of the president or the executive branch with all or specific provisions of the bill. In an example of “support” referenced in the section above, President Clinton issued three executive orders creating federal advisory committees as requested by Congress.⁸ In another kind of supportive order described above, a president may also direct the federal government to take specific action on proposed legislation to show support for proposed legislation, as President Carter did upon signing Executive Order 12174, Federal Paperwork Reduction (44 FR 69609; December 4, 1979).¹⁰

Several explanatory variables were included to test our assertions pertaining to whether presidents are working with or against Congress with respect to interbranch and intrabranch gridlock. First, as a measure of intrabranch gridlock, or the measure of disagreement within a chamber and/or between the parties, we operationalized this in two ways. First, by using a continuous variable of the total size of the majority party in each chamber, we coded the total number of members of each chamber in the majority party (Senate/House Majority Party). This approach follows the models used by Howell (2003). Second, to create a measure of distance between the parties (Party Distance), we calculate the absolute value of the difference of the CS-NOMINATE scores for median member of each party within the House and Senate (McCarthy and Poole 1995; Poole and Rosenthal 1991, 1997).¹⁸

Second, we measure interbranch gridlock in two ways. In the first measure, we create a variable representing the ideological distance between the branches of government (Distance between House/Senate and President). We operationalize this by using CS-NOMINATE scores for the president’s ideology and subtract this from the chamber median of the majority party, then take the absolute value (see Deering and Maltzman 1999). In the second measure of interbranch gridlock, we calculate the president’s position vis-à-vis the veto pivots by calculating the absolute distance on the CS-NOMINATE scale between the president and the veto pivot (liberal and conservative) closer to the president (House/Senate Veto Pivot).¹⁹

We also included four primary variables to test our expectations about sponsorship and cosponsorship. First, we measure the ideological distance between the president and the bill’s sponsor by taking the absolute value of the difference of the CS-NOMINATE scores for the president and the individual bill sponsor (Distance between President and Sponsor). Second, we created a dummy variable for whether the president and the sponsor were of the same party (Sponsor Same Party). Third, we also included two control variables related to sponsorship and cosponsorship, including in which chamber the legislation originated (Senate Sponsor) or the total number of cosponsors regardless of party (Number of Cosponsors).²⁰

To test the presidency-centered institutional hypotheses, we created a variable to identify the priorities of the administration for each Congressional session (Presidential Agenda). The objective was to identify whether the content of a unilateral order was on the president’s policy agenda prior to the date the order was issued. We compared the content of an order with the content of public speeches, addresses to Congress and the president’s legislative initiatives for each congressional session to determine whether it was included on the president’s agenda. The sources we used to develop this variable were Public Papers of the President, Congressional Quarterly Weekly, and Congressional Quarterly Annual. A policy or position had to be mentioned three times to qualify as being on the president’s agenda. As an example, pertaining to President Carter’s proclaiming of national monuments in Alaska described above, he specifically discussed the necessity of protecting lands in Alaska at several points.²¹

Last, several temporal or institutional variables are used to analyze their influence regarding unilateral action within the legislative arena. First, Second Half is coded “1” if the order was issued in the second half of a president’s term (either first or second term). Second, Second Term is coded “1” if the order was issued in the second term for a president (our data include Presidents Reagan, Clinton, and George W. Bush. Third, related to these two variables, we interacted them to form a variable (Second Half, Second Term). Finally, Election Year is coded “1” if the order was issued in any full year in which there is a presidential election. These are consistent with how Mayer (1999, 2001) constructs these variables.

To test these three hypotheses, we use a logistic regression model, a generalized linear model for a binomial regression, which allows us to (1) use a dichotomous variable arrangement (where y_i = 1 if $y_{i}^{*}$ > 0 and y_i = 0 if $y_{i}^{*}$ ≤ 0) and (2) determine the probabilistic effect of the key independent variables on the dependent variable (Agresti 2002). That is, because the models require a dependent variable to be binary, these models can test the above propositions regarding under what conditions a preemptive order was issued. The model is briefly summarized as follows: $\Pr (y = 1 | x) = \exp (α + β x_{1} + \dots + β x_{n}) / 1 + \exp (α + β x_{1} + \dots + β x_{n})$ , where x_n is the total number of independent variables described above. As the estimated parameters from the equation do not provide directly useful information, predicted probabilities (the predicted positive outcome for each observation, given the values on the independent variables for that observation) and/or the marginal change are used to estimate the relative importance of each coefficient (Long and Freese 2001. Alternative specifications (such as an ordered logit and a multinomial logit) revealed substantially similar findings. These models are included in the Supplemental Information uploaded to the PRQ website.

When Do Unilateral Orders Preempt or Support Bills on Congress’s Agenda?

As noted in the previous section, the dependent variable in the models presented below is when presidents act to “preempt” or “support” proposed legislation after a hearing has been held. A positive coefficient indicates a president “preempts” proposed legislation, whereas a negative coefficient indicates “support” (each described in detail above). Several conditions are present when presidents issue an order contrary to proposed legislation.²² Because the universe of cases examined here includes only those orders that address topics on the Congressional agenda, these data tell us, whether presidents issue an order in the legislative arena, and whether the order was preemptive or supportive. As we do not know when the president decided not to issue a unilateral order, we focus our question on when an order is issued during the legislative process: “Are these unilateral orders preemptive or supportive of proposed legislation?”

To start, according to Hypotheses 1a and 1c, when political circumstances present the need to expediently enact the president’s agenda into law, we expect that presidents in the later stages of the administration (Hypothesis 1a) and in election years (Hypothesis 1c) should be more likely to preempt legislation proposed by Congress. The individual coefficients for second-term presidents and presidents in the second half of either the first or second term were only statistically significant in the first model, although the combination of these (second half of second terms) reached statistical or substantive significance in five of the six models. The results with respect to late-term presidents generally correspond to what Mayer (1999) and Howell and Mayer (2005) found. Bargaining may be affected by the stage of the president’s term, where “lame duck” presidents struggle to negotiate with Congress. These findings are robust because the other models (in Tables 1 and 2) all confirm similar findings. Similarly, issues that were on the presidential agenda are highly significant, suggesting that presidents are more willing to preempt Congress using a unilateral order when the issue is of stated importance to them (Hypothesis 1b).²³ Across all the models in Table 1, presidents were approximately 25 percent more likely to preempt proposed Congressional legislation when the issue was on the president’s agenda.²⁴ The election year coefficient was not significant in any of the models.

Table 1.

Interbranch Gridlock Measures.

	Presidency Based	Sponsorship	Distance between President and Senate	Distance between President and House	Distance between President and Veto Pivot (Senate)	Distance between President and Veto Pivot (House)
Second term	−0.887* (0.481) [−17.1%]	−0.079 (0.537)	−0.287 (0.515)	−0.519 (0.498)	−0.840 (0.491)	−0.967 (0.490)
Second half	−0.947** (0.414) [−19.5%]	−0.396 (0.448)	−0.446 (0.442)	−0.970 (0.424)	−0.840 (0.491)	−0.937 (0.418)
Election year	0.198 (0.381)	0.044 (0.403)	0.107 (0.391)	0.005 (0.393)	−0.640 (0.423)	−0.048 (0.396)
Second half, second term	1.57** (0.613) [35.7%]	0.940 (0.656)	1.24* (0.629) [27.6%]	1.92*** (0.632) [43.2%]	1.59** (0.626) [28.2%]	1.77 ** (0.631) [39.8%]
Presidential agenda	1.82** (0.756) [25.4%]	1.63** (0.734) [22.3%]	1.98** (0.765) [25.6%]	1.94** (0.764) [25.5%]	1.83** (0.764) [25.6%]	1.82 ** (0.761) [24.7%]
Senator sponsor	—	−1.01*** (0.369) [−18.3%]	—	—	—	—
Number of cosponsors	—	−0.001 (0.004)	—	—	—	—
Sponsor of same party	—	−1.38** (0.655) [−20.7%]	—	—	—	—
Distance between president and sponsor	—	−0.105 (0.380)	—	—	—	—
Distance between president and Senate	—	—	−3.36** (0.887) [−67.6%]	—	—	—
Distance between president and House	—	—	—	−2.95** (0.850) [−59.5%]	—	—
Distance between president and veto pivot	—	—	—	—	−4.86*** (1.48) [−72.7%]	−2.93** (0.979) [−59.4%]
n	272	271	272	272	272	272
Pseudo-R²	.050	.112	.096	.088	.084	.078
Log likelihood	−159.7	−148.9	−151.9	−153.1	−153.8	−154.8
Likelihood ratio χ²	16.8***	37.5***	32.4***	29.8***	28.4***	26.4***
Reduction in error	0.0%	8.3%	7.1%	7.1%	17.8%	0.0%

Dependent variable: president issues an order “preempting” legislation Congress is considering during the legislative process. Model is a logistic regression specification. Standard errors are in parentheses. Bracketed figures are the predicted change.

p < .10. **p < .05. ***p < .01.

Table 2.

Intrabranch Gridlock Measures.

	Majority Party (Senate)	Majority Party (House)	Party Distance (Senate)	Party Distance (House)
Second term	−0.155 (0.536)	−0.472 (0.559)	−1.05 (0.545)	−0.613 (0.549)
Second half	−0.467 (0.443)	−0.894 (0.417)	−0.820 (0.413)	−0.855 (0.410)
Election year	0.242 (0.385)	0.274 (0.385)	0.322 (0.378)	0.372 (0.379)
Second half, second term	1.01 (0.641)	1.50 (0.617)	1.40** (0.607) [31.9%]	1.37** (0.610) [31.3%]
Presidential agenda	2.04*** (0.780) [26.0%]	1.88** (0.761) [25.7%]	1.57*** (0.629) [23.7%]	1.63*** (0.633) [24.2%]
Majority party (Senate)	0.224* (0.063) [4.5%]	—	—	—
Majority party (House)	—	0.048 (0.033)	—	—
Party distance (Senate)	—	—	2.01 (2.40)	—
Party distance (House)	—	—	—	−3.62 (4.42)
n	272	272	284	284
Pseudo-R²	.092	.056	.045	.045
Log likelihood	−152.5	−158.6	−167.7	−167.7
Likelihood ratio χ²	31.2***	19.0***	16.1***	16.0***
Reduction in error	15.4%	0.0%	0.0%	0.0%

p < .10. **p < .05. ***p < .01.

Table 1 also displays models that test the expectations in Hypotheses 2a, 2b, and 2c. In Hypothesis 2c, we expect that under interbranch gridlock, the bill sponsor and the president are at ideological odds, the president should be more likely to issue a unilateral order to preempt legislation Congress is considering.²⁵ Confirming expectations, the results suggest that the president is more likely to issue an order supporting proposed legislation when the sponsor of the legislation in consideration is of the same party as the president. Legislation that has partisan support from more cosponsors is more likely to pass (Thomas and Grofman 1992). Presidents clearly trust their fellow partisans and are more likely to agree with the legislation as introduced. However, the ideological distance between the president and the sponsor of the legislation has no significant statistical effect on the president’s probability of issuing a unilateral order. The relationship between the president and a bill’s sponsor appears to be supportive with respect to shared partisanship but not shared ideology. Presidents are also more likely to support legislation that originates in the Senate (18% more likely). The number of cosponsors has no independent effect.

In testing Hypothesis 2a, we find from the results in Table 1 (columns 3 and 4) that presidents are more likely to issue a unilateral order supporting proposed legislation in Congress as the ideological distance between the president and the median member of the Senate (67%) or the House increases (59%).²⁶ Although the finding contradicts expectations, presidents appear to act strategically by issuing an order that supports proposed legislation to lessen the chance their unilateral action will be overturned by a Congress that disagrees with them or upsetting the Constitutional balance of powers (Fine and Warber 2012; Howell 2003). Yet, confirming the expectations of Hypothesis 2b, in columns 6 and 7, presidents are more likely to issue an order supporting legislation as the ideological distance between the president and the veto pivot closest to the president in the Senate (72%) or House (59%) increases.²⁷ Stated differently, presidents are more likely to preempt when the distance is smaller. The president can more easily break a two-third majority if he is closer to the veto pivot, therefore he is more likely to attempt to pursue his agenda in this condition. The institutional dynamics clearly shape the president’s willingness to unilaterally move against a legislative body who is considering specific legislation, even considering the presence of political incentives that might encourage unilateral action.

Table 2 displays several model specifications to examine intrabranch effects. In Hypotheses 3a and 3b, we predicted that under intrabranch gridlock, where the parties in Congress are ideologically farther apart (Hypothesis 3a) or the majority party size is smaller (Hypothesis 3b), the president should be more likely to issue a unilateral order to preempt Congressional action in the legislative arena.²⁶ First, addressing Hypothesis 3b in Table 2 (columns 1 and 2), the coefficient for the majority party size in the Senate is positive and significant, which suggests that as the size of the majority party increases, the more likely the president is to intervene against proposed Congressional legislation (4%). The effect, however, is small in terms of statistical and substantive significance casting some doubt on the robustness of the finding. Moreover, there is no effect for the size of the majority party in the House where the coefficient is not significant. Second, testing Hypothesis 3a, interbranch party polarization (columns 3 and 4) has no statistically significant effect on the president’s actions to preempt legislation, despite expectations that he would issue more preemptive orders in this condition. Comparing the results of Table 2 with those of Table 1, interbranch conditions are more important in explaining the president’s unilateral actions than intrabranch conditions.

Conclusion

The literature on executive–legislative relations suggests that, when acting in the legislative arena, presidents may bargain with Congress over legislation (Neustadt [1960] 1990), while, when acting in the executive arena, presidents may act unilaterally after calculating the political benefits weighted against the likelihood of agreement (Deering and Maltzman 1999). These activities are potentially at odds with each other. Howell (2005, 421) argues that “the central precepts of Neustadt’s argument are turned upside down, for unilateral action is the virtual antithesis of persuasion.” However, few studies consider how unilateral orders are integrated into the president’s legislative bargaining process. When and how presidents choose to exercise bargaining or issue unilateral orders is critical to understanding the nature of how presidents use and share power. Our findings show that the president’s unilateral strategy in the legislative arena varies depending on institutional and political circumstances. Presidents preempt this shared policy process during the legislative process when they issue unilateral orders in lieu of legislation and reinforce it when they issue orders that support proposed legislation. Unilateral orders are therefore more integrated into the legislative process than presumed. Through an analysis of executive orders and proclamation from 1974 to 2009, we have identified a clearer pattern of the use of these orders in the legislative process. These findings offer an explanation for when unilateral orders are issued as a means for resolving inter- and intrabranch conflict.

When presidents act unilaterally in the legislative arena, presidents preempt proposed Congressional legislation in several conditions, often relating to moments where the president is less likely to get overturned, when the president is less capable of bargaining or when the president has an acute political interest in the issue. Specifically, presidents are more likely to act against legislation Congress is considering when the president has identified the issue as part of his agenda, the latter stages of their terms and when closer to the veto pivot in both chambers. This view hints that presidents act in ways that are “threatening” or “troublesome” to Congress when they use their authority to act unilaterally (Moe and Wilson 1994. The implications of these findings suggest that presidents do use their unilateral powers to further their own interests, even over the possible political objections of Congress. This research supports the theory of the unilateral executive willing and able to move swiftly in the face of prospective legislation, even if this means appropriating the legislative process.

However, presidents do not always act against Congress when they issue an order on a topic Congress is legislating—in some cases, they act in support to presumably facilitate passage of legislation or further Congressional aims. For example, our findings reveal that presidents are more likely to “support” Congressional action when the president is of the same party as the sponsor of the legislation or when the ideological distance between the president and chamber is larger. This challenges scholarship on the subject that presumes that presidents, when acting unilaterally, do so in ways that are incompatible with Congressional preferences (see Deering and Maltzman 1999; Martin 1999). Indeed, these findings highlight how unilateral orders can be complimentary to the policy-making process (Dickinson 2008; Krause and Cohen 2000) and how the process of creating policy is integrated between the branches. For instance, Shull (1997) suggests that the issuance of unilateral orders is “influenced by interactions with Congress” (p. 97) and “seldom act without input and constraint from others” (p. 98; see also Krutz and Peake 2009; Rudalevige 2012). Presidents are cognizant of possible Congressional intervention to overturn their order and chart a cautious course in using their unilateral actions to interject their policy preferences.

The primary contribution of this article is to elucidate the role of political context and institutional dynamics in how the two branches of government share the power to make policy. The president’s willingness to issue a unilateral order that circumvents legislation proposed by Congress is more likely when Congress and the president are less likely to agree on policy, specifically when the president is less likely to be overturned, specifically when ideologically closer to the veto pivot. Yet, presidents are more willing to issue an order in support of proposed legislation to help Congress overcome their collective action problems or to preserve the institutional balance of power, even considering the presence of political incentives that might encourage the president to act to preempt such legislation. Ultimately, presidents take advantage of institutional incapacity but are equally reluctant to pursue a unilateral policy course when at ideological odds with Congress. Executive-specific concerns (such as agenda content and control) matter as much as political conditions (such as ideological friction) when considering when the president might act with a unilateral order in the legislative process. Presidents are clearly interested in using unilateral orders to their advantage as several scholars have suggested, yet, they use these orders to preempt and support legislative progress, where there may otherwise be none, which suggests that these orders are more integrated into the shared power arrangement that governs the Constitutional system.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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