Chapter 1 for The Dual Executive

Chapter One

Unilateral action is often treated as an aggressive intrusion into the political system, with presidents issuing unilateral orders at their discretion in pursuit of their own policy goals. The use of unilateral orders as a powerful policy tool is, undeniably, an important aspect of the president’s unilateral action. Conceivably, though, a picture of unilateral action does not have a singular nature. Instead, the use of unilateral power must be diverse enough to accommodate all of the president’s needs. However, presidents do not always act in the role of commanders directing others to carry out their unilateral orders. Political and institutional circumstance may require them to act more in the role of facilitators, working together with Congress within the political system. In those instances, presidents are more likely to issue unilateral orders to carry out the affairs of government and the intent of the legislature.

The study of unilateral power has not considered fully how these dual roles shape the president’s unilateral action. At times the president is independent, functioning as a leader in pursuit of his or her agenda, even if it creates an adversarial relationship with Congress. At other times, the president is an administrator, or clerk, who acts more as an ally in support of Congress. Richard Neustadt famously argued in Presidential Power (1990) that the difference between being a leader or a clerk is sometimes indistinguishable. He notes that “in form, all presidents are leaders nowadays,” and “in fact, this guarantees no more than that they will be clerks.” Presidents have the capacity to act as leaders, but, with both political and legal checks on the use of power, they may seem to act more as clerks. It is important that, whether acting as independent leaders or administrator clerks, presidents must be strategic in their decisions to issue unilateral orders.

President Obama and the Dual Executive

Examples from the Obama administration highlight these approaches. From one perspective, the nature of unilateral power affords presidents many opportunities to independently pursue their policy goals. On October 24, 2011, President Obama avowed that “without a doubt, the most urgent challenge that we face right now is getting our economy to grow faster and to create more jobs. We can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.” Under the banner of “We Can’t Wait,” the White House trumpeted its ability to act without Congress by issuing unilateral orders on combating domestic violence in the federal workplace, implementing a pilot program for workplace innovation, making it easier to refinance government-sponsored mortgages, making funding for Alzheimer’s research more freely available, guaranteeing overtime pay protections for home care workers, and dozens more. The president openly claimed that he was bypassing lawmakers who disagreed with him, noting, “If Congress refused to act, I’ve said that I’ll continue to do everything in my power to act without them.” New York Times journalist Charlie Savage (2012) argued that this is not simply a short-term governing style but that the president’s “increasingly assertive use of executive action could foreshadow pitched battles over the separation of powers in his second term, should he win and Republicans consolidate their power in Congress.”¹

President Obama continued to independently forge ahead, using unilateral power to alter public policy. In his 2014 State of the Union address, President Obama called on Congress to raise the national minimum wage from $7.25 to $10.10 an hour. He told Congress, “I’m eager to work with all of you, but America does not stand still—and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.” Soon after his address, he signed Executive Order 13658, raising the minimum wage for new federal service contracts. Criticism focused on the imbalance of the separation of powers.² Republican opposition in Congress was quick to assert that this leadership tactic was both unprecedented and dangerous. Speaker of the House John Boehner (R-OH), warned the president that his executive order establishing the minimum wage for federal contractors was not a wise—or necessarily legal—tactic: “This idea that he’s just going to go it alone, I have to remind him we do have a constitution. And the Congress writes the laws, and the President’s job is to execute the laws faithfully. And if he tries to ignore this he’s going to run into a brick wall.”³

Functioning as an independent executive, President Obama was also accused of constitutional overreach and the aggrandizement of presidential power in the area of immigration reform (Shear 2014a). During his State of the Union address, President Obama remarked,

If we are serious about economic growth, it is time to heed the call of business leaders, labor leaders, faith leaders, and law enforcement—and fix our broken immigration system. Republicans and Democrats in the Senate have acted. I know that members of both parties in the House want to do the same . . . So let’s get immigration reform done this year.

But legislation in the House was not forthcoming, and President Obama decided to act alone by providing deportation relief to illegal immigrants.⁴ In response, Speaker Boehner stated,

The American people want both parties to focus on solving problems together; they don’t support unilateral action from a president who is more interested in partisan politics than working with the people’s elected representatives. That is not how American democracy works. Not long ago, President Obama said the unilateral action he just announced was “not an option” and claimed he’d already “done everything that I can on my own.” He said it would lead to a “surge in more illegal immigration.” He said he was “not a king” and “not the emperor” and that he was “bound by the Constitution.” He said an action like this would exceed his authority and be “difficult to justify legally.” He may have changed his position, but that doesn’t change the Constitution.⁵

House Judiciary Committee Chairman Bob Goodlatte (R-VA) added, “The president’s decision to recklessly forge ahead with a plan to unilaterally change our immigration laws ignores the will of the American people and flouts the Constitution.”⁶ Senator Jeff Sessions (R-AL) penned an opinion editorial in USA Today claiming that the president’s failure to secure legislation to support his unprecedented act would “impose his rejected amnesty through the brute force of executive order,” concluding that “apparently, America now has its first emperor.”⁷

In another instance, President Obama decided to go it alone by unilaterally creating exceptions and waivers to requirements defined in law. In a speech from the White House, discussing his commitment to create waivers for states from the No Child Left Behind Act, President Obama promised:

Starting today, we’ll be giving States more flexibility to meet high standards. Keep in mind, the change we’re making is not lowering standards, we’re saying we’re going to give you more flexibility to meet high standards. We’re going to let States, schools, and teachers come up with innovative ways to give our children the skills they need to compete for the jobs of the future. Because what works in Rhode Island may not be the same thing that works in Tennessee, but every student should have the same opportunity to learn and grow, no matter what State they live in⁸

On the same day, Arne Duncan, Secretary of Education, transmitted a letter to state school officers offering them the “opportunity to request flexibility on behalf of your State, your LEAs [Local Education Agency], and your schools, in order to better focus on improving student learning and increasing the quality of instruction.”⁹

In contrast to an independent executive, unilateral orders can also be issued to support Congress’s objectives and the legislative process. In this capacity, presidents function more as administrators. For instance, on March 24, 2010, President Obama issued Executive Order 13535, applying long-standing restrictions on the use of federal funds for abortion in the Hyde Amendment to the Patient Protection and Affordable Care Act of 2010 (PPACA).¹⁰ Although issued from the White House, this was not unilateral policy making by the stroke of a pen; rather, following the legislative debate on health care in the House, this order implemented a deal led by Representative Bart Stupak (D-MI). Pro-life Democrats were concerned over the potential of federal funding for abortion because the bill placed “individual premium payments for the government-run public insurance plan into a Federal treasury account that may be used to pay for abortions.”¹¹ The Stupak-Pitts amendment guaranteed that federal funds could not be used for abortion, and, although it had passed the House, it was not included in the Senate version of the bill.¹² To gain the commitment of Rep. Stupak and the bloc of pro-life Democrats, the president agreed to issue an executive order barring federal funding of abortion as a substitute for the language in the bill.¹³ In his remarks on signing the PPACA into law, President Obama acknowledged the work of “leaders in each chamber who not only do their jobs very well but who never lost sight of that larger mission,” noting, “They [chamber leaders] didn’t play for the short term; they didn’t play to the polls or to politics.”¹⁴ The next day, citing the PPACA as a justification for action, he issued the executive order enforcing restrictions against the use of federal funds for abortion by applying the Hyde Amendment and, consistent with the newly enacted law, ordering the lead agencies to create a model set of funding segregation guidelines for state health insurance commissioners.¹⁵

Consistent with his role as administrator, President Obama acted in accord with congressional goals even when the execution of law did not signify a win for the administration. In 2012, President Obama issued Executive Order 13626, implementing the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States (RESTORE) Act, despite his objections.¹⁶ Congress created the RESTORE Act in response to the Deepwater Horizon explosion to aid in the recovery along the Gulf Coast, but President Obama was not in complete agreement with the provisions of the bill. In a Statement of Administration Policy (SAP), Obama expressed his objections to the proposed mechanism for funding the recovery and conveyed his support for preserving the dedication of civil penalties from the Clean Water Act as a funding tool.¹⁷ He also objected to the shift in policy control from the Gulf Coast Ecosystem Restoration Task Force, a joint state–federal council created under a prior executive order, to an independent Gulf Coast Restoration Council. However, consistent with his constitutional duty to execute the law, President Obama issued an executive order revoking his prior one and establishing, in its place, the Gulf Coast Restoration Trust Fund and the Gulf Coast Ecosystem Restoration Council.¹⁸

The Diversity of Executive Power

President Obama’s unilateral actions show how unilateral power, like executive power, is diverse (Black, Madonna, Owens, and Lynch 2007). As Mansfield (1989) argued, the word executive has two meanings. The executive serves both to carry out the will of the legislature and to enforce that will; therefore presidents must be able to exercise their own discretion. Scigliano (1989) notes that scholars have “embraced two conceptions of executive power: one makes the president subordinate to Congress, whereas the other allows him to be autonomous and self-directing within broad limits.” Justice Marshall, in Marbury v. Madison (1803), wrote, “By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion,” but, as Marshall and later courts have recognized, “a ministerial act which the law enjoins” must also be carried out by the president.¹⁹

The diversity of executive power places theories of presidential action and tactics at odds with each other. Conceptually, presidents are boldly willing to act without Congress, and yet they also embrace their role within a shared system of power. The use of unilateral orders characterizes the dual nature of the executive. As President Obama’s orders illustrate, unilateral action can be used to accomplish both a “go it alone approach” and one consistent with carrying out Congress’s legislative goals to administer the responsibilities of the executive (Huetteman 2014). President Obama’s executive order establishing a minimum wage for federal contractors shows how unilateral action can be used to pursue his administration’s policy interests without congressional support. His executive orders implementing the PPACA and RESTORE demonstrate his commitment to administer laws passed by Congress. In this way, unilateral power is comprised of two parts, one that allows for expansive power and one that constrains power.

Presidential Power in the Unilateral Context

Befitting a system that requires both separate and shared powers, the scope of presidential unilateral action spans both cooperative and combative politics. Most studies of presidential power rightfully genuflect on the role Neustadt played in reshaping the discipline’s views of how presidents exercise power. Neustadt’s (1990) clerk-president has limited power and is “dependent on consent from other sharers” in government. Neustadt continued, because

. . . he [the president] needs them he must bargain with them [Congress], buttressing his share with his resources in their eyes of personal reputation and of public standing. The hallmark of presidential success is bargaining, not command, since the president’s power may be inconclusive during moment of command but are always central when he attempts to persuade. Together with his powers, reputation and prestige become the sources of his power . . .

rather than some formal basis. Because presidential power is the power to persuade, presidents do not “obtain results by giving orders” because having formal power is no guarantee of success. Strictly unilateral uses of power are described by Neustadt as a “painful last resort” to be used expediently only after bargaining has failed.

Other scholars confront Neustadt’s view of the president’s dependence on Congress as being at odds with the formal powers presidents exercise when engaging in unilateral action (Howell 2003; Mayer 2009; Waterman 2009). Unilateral orders are powerful and often dramatic examples of the president’s ability to command (Cooper 1986, 1997, 2002; Mayer 2001; Shull 1997; Dodds 2013). Cooper (2002) argues, “There is virtually no significant policy area in which presidents operate that has not been shaped to one degree or another by the use or abuse of these tools.” Unilateral orders allow the president to “do what Congress could not or would not do” (Neighbors 1964). In the exercise of executive power, regulatory authority, budget authority, and civil rights, “the president’s ability to move first, combined with Congress’s relative inability to respond effectively, tilted competition in favor of the executive” (Mayer 2001).

According to Fleishman and Aufses (1976), executive lawmaking by unilateral order is powerful enough to undermine “democratic decision procedures, and threatens the rule of law” (Hebe 1972). The importance of unilateral action in the development of regulatory policy cannot be overstated. Presidents have the capacity to establish rules, norms, and policy consistent with their own preferences and without input from Congress. Presidents have carved a role for themselves in creating, reviewing, and implementing regulatory policy. Since President Nixon, there has been a process in place within the Office of Management and Budget (OMB) for presidential oversight of regulation.²⁰ President Carter issued Executive Order 12044, “Improving Government Regulations,” as part of his goal to reform the administrative regulatory process. Carter’s reforms included the introduction of cost–benefit analyses for all major regulations and established, within the White House, the Regulatory Analysis Review Group and the Regulatory Council (Mayer 2001).²¹ In Executive Order 12866, President Reagan gave the Office of Information and Regulatory Affairs (OIRA), a Federal office within OMB, the authority to conduct regulatory impact analysis ensuring presidential control over all major rules.²² When President Reagan issued Executive Order 12291, he centralized the authority for reviewing regulatory impact, implemented cost–benefit analysis, and established the requirement that a regulatory agenda be published annually.²³ According to Phillip Shabecoff, writing for the New York Times, “He transformed with a stroke of his pen what had been a useful economic tool into an imperative of Federal decision making.”²⁴ The impact of Reagan’s order was limited to major rules, an action that President Clinton reinforced in a subsequent executive order.²⁵

Short-Circuit of the Separation of Powers?

The suggestion that unilateral orders are powerful policy tools that can be used at the president’s discretion gave rise to the idea that they are used to short-circuit the separation of powers. By formal arrangement, the growth of institutional power, and the ambiguity of the Constitution, “Presidents can and do make new law—and thus shift the existing status quo—without the explicit consent of Congress” (Moe and Howell 1999). Unilateral orders allow presidents to act alone in an “efficient and alternative manner” compared to the legislative process (Krause and Cohen 1997; Deering and Maltzman 1999). The growth of unilateral action, chiefly during national emergencies, wars, or economic crises, is a direct consequence of the deference granted to presidents during these times by Congress (Cooper 1986; Howell 2005) and the opportunities they present for presidents to act alone (Howell and Pevehouse 2005). A muscular use of unilateral action in moments where the president perceives a political advantage in acting on his or her own begets further, smaller, seemingly innocuous expansions into a wide range of policy making, in both foreign and domestic policy (Moe and Howell 1999).

Based on the strategic model, presidents issue unilateral orders to bypass or evade Congress (Morgan 1970; Nathan 1983; Peterson 1990; Martin 1999; Fine and Warber 2012). Scholars have found support for the idea that the strategic use of unilateral action promotes the aggrandizement of executive power in the political system. In one of the first works that extensively articulated and tested this argument, Kenneth Mayer’s With the Stroke of a Pen (2001) found that “the president—despite the checks and balances of the separation of powers—retains important advantages in struggles over institutional structure and process.” According to Mayer (2001), presidents have these advantages because they can move first, with complete information, and leave “it up to the other branches to undo what has been done.” His analysis of these orders over the last half of the twentieth century reveals that presidents use them when they are more likely to have trouble legislating or are politically weaker. His prediction is that “over time, presidents will use unilateral action to expand the reach of presidential authority and centralize power within the White House” (Mayer 2009). Building on this argument, William Howell in Power without Persuasion (2003) contends, “Modern presidents often exert power by setting public policy on their own and preventing Congress and the courts—and anyone else for that matter—from doing much about it.” Presidents can act “first and alone”; therefore unilateral powers emerge from “specific institutional advantages within the office of the presidency itself: its structure, resources and location in a system of separated powers” (Howell 2003). He finds that presidents issue more orders when Congress is weaker but are less likely to issue significant orders when government is divided. Both of these findings suggest that the president acts strategically by taking advantage of congressional weakness while remaining cognizant of the political limitations on unilateral power. Put another way, “Presidents do as much as they think they can get away with” (Howell 2005).

Notes

1. Savage 2012.

2. Executive Order No. 13658, “Establishing a Minimum Wage for Contractors,” 79 Federal Register 9851 (February 20, 2014).

3. Kim 2014.

4. Department of Homeland Security, “Memorandum on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents, by Secretary Jeh Charles Johnson.” 2014; available at www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.

5. John Boehner, “Speaker Boehner to President Obama: This is Not How American Democracy Works,” Press Release, November 20, 2014. Available at www.speaker.gov/press-release/speaker-boehner-president-obama-not-how-american-democracy-works.

6. Bob Goodlatte, “Statement on President Obama’s Unilateral, Unconstitutional Immigration Actions,” press release, November 20, 2014. Available at http://judiciary.house.gov/index.cfm/press-releases?ID=2496A9DC-E3FC-4595-9C8F-3A8DB0C7EA75

7. Sessions 2014.

8. Barack Obama, “Remarks on the No Child Left Behind Act, September 23, 2011,” Public Papers of the President, American Presidency Project; available at www.presidency.ucsb.edu/ws/index.php?pid=96798&st=&st1.

9. U.S. Department of Education, “Letters from the Education Secretary or Deputy Secretary,” by Arne Duncan (2011). Available at www2.ed.gov/policy/gen/guid/secletter/110923.html.

10. Executive Order No. 13535, “Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act,” 75 Federal Register 15599 (March 29, 2010); and Patient Protection and Affordable Care Act (PPACA) of 2010, Public Law 111–148, U.S. Statutes at Large 124 (2010): 119.

11. Rep. Virginia Foxx (R-NC), speaking on H.R. 3590, 111th Cong., 1st sess., Congressional Record 155 (November 5, 2009): H 12434.

12. Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010, H.R. 3962, 111th Congress. The Nelson amendment (No. 2962) was included in the Senate version of the bill, but on December 8, 2009, the Senate voted to table the motion.

13. Farley 2010 and PolitiFact.com 2012.

14. Barack Obama, “Remarks on Signing the Patient Protection and Affordable Care Act, March 23, 2010,” Public Papers of the President, American Presidency Project; available at www.presidency.ucsb.edu/ws/index.php?pid=87660&st=&st1.

15. Executive Order No. 13535, “Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act,” 75 Federal Register 15599 (March 29, 2010), “By the authority vested in me as President by the Constitution and the Laws of the United States of America, including the ‘Patient Protection and Affordable Care Act,’’’ Public Law 111–148, U.S. Statutes at Large 124 (2010): 119.

16. Executive Order No. 13626, “Gulf Coast Ecosystem Restoration,” 77 Federal Register 56749 (September 13, 2012); and The Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012, Public Law 112-141, U.S. Statutes at Large 126 (2012): 405.

17. Barack Obama, “Statement of Administrative Policy: H.R. 4348, Surface Transportation Extension Act of 2012, Part II, April 17, 2012,” Statements of Administration Policy, American Presidency Project; available at www.presidency.ucsb.edu/ws/index.php?pid=100532.

18. The order revoked Executive Order No. 13554, “Establishing the Gulf Coast Ecosystem Restoration Task Force,” 75 Federal Register 62313 (October 8, 2010).

19. Marbury v. Madison, 5 U.S. 158 (1803); Kendall v. United States, 37 U.S. 522 (1838); and National Treasury Employees Union v. Nixon, 492 F.2d 587 (1974), quoting Nixon v. Sirica (p. 712 of 487 F.2d [1973]). See Panama Canal Co. v. Grace Lines, Inc., 356 U.S. 309 (1958); Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218–222 (1930); Work v. United States ex rel. Rives, 267 U.S. 175, 177–178 (1925); Ballinger v. Frost, 216 U.S. 240, 249 (1910); Garfield v. United States ex rel. Goldsby, 211 U.S. 249 (1908); Roberts v. United States ex rel. Valentine, 176 U.S. 219, 229–231 (1900); United States v. Schurz, 102 U.S. 378 (1880); McGaw v. Farrow, 472 F.2d 952, 955–957 (1973); and David Schwartz and Sydney Jacoby, “Litigation with the Federal Government,” Philadelphia, Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association (1970).

20. Office of Management and Budget, “Quality of Life Review #1: Memorandum to Heads of Department and Agencies from George P. Schultz, Director, OMB, Agency Regulations, Standards and Guidelines Pertaining to Environmental Quality, Consumer Protection, Occupational and Public Health and Safety,” by George P. Schultz (1971); available at www.thecre.com/ombpapers/QualityofLife1.htm.

21. Executive Order No. 12044, “Improving Government Regulations,” 43 Federal Register 12661 (March 24, 1978).

22. Established by the Paperwork Reduction Act of 1980, Public Law 96-511, U.S. Statutes at Large 94 (1980): 2812; available at www.whitehouse.gov/omb/organization.

23. Executive Order No. 12291, “Federal Regulation,” 46 Federal Register 13193 (February 17, 1981).

24. Shabecoff 1981.

25. Executive Order No. 12866, “Adjustments of Rates of Pay and Allowances for the Uniformed Services,” 58 Federal Register 51735 (October 4, 1993), restricted OMB to major rule review but maintained, substantively, cost–benefit analysis. Major rules are defined in 5 U.S.C. § 804(2).