Courts have overruled key policy changes from President Biden acting alone. But Republicans are gearing up to enact a suite of policy changes on Day 1 of a potential new administration, reigniting fears of an imperial presidency. Jon Rogowski finds that presidents act unilaterally quite often, beyond executive orders to include a lot of other tools, especially under divided government. But Dino Christenson finds that significant executive actions are scarce because the president can be constrained by Congress and the courts through the potential reaction of the American public.
Guest: Jon Rogowski, University of Chicago; Dino Christenson, Washington University
Study: “Divided Government, Strategic Substitution, and Presidential Unilateralism”; The Myth of the Imperial Presidency
Transcript
Matt Grossmann: The power of presidents to act alone, this week on the Science of Politics. For the Niskanen Center, I’m Matt Grossmann. Courts have overruled key policy changes from President Biden acting alone, but Republicans are gearing up to enact a suite of policy changes on day one of a potential new administration, reigniting fears of an imperial presidency. But how much power do presidents have to act alone? This week I talked to John Rogowski of the University of Chicago about his American Journal of Political Science article with Aaron Kaufman, Divided Government Strategic Substitution and Presidential Unilateralism.
He finds that presidents act unilaterally many times beyond executive orders to include a lot of other tools, especially under divided government. But I also talked to Dino Christensen of Washington University about his Chicago book with Douglas Kriner, The Myth of the Imperial Presidency. He finds that significant executive actions are scarce because the President can be constrained by Congress and the court through the potential reaction of the American public. They both say not as much changed under Trump and Biden as you might think. Let’s start with Rogowski, who is the author of several articles on presidential unilateral action.
So let’s start with the basics. How can presidents act unilaterally? What is their behind executive orders and how often are they using them?
Jon Rogowski: So presidents can and do issue administrative directives through a whole range of tools. We think most commonly about executive orders because those are often kind of the language that presidential administrations as well as the media use when they talk about the unilateral activity that presidents engage in. But a report by the Congressional Research Service about a decade or so ago identifies more than two dozen different kinds of unilateral directives that presidents have used at one point or another. And so the data that we use in our recent article include many of these different directive categories that include things like not only executive orders, but also memoranda, proclamations, executive agreements, public land orders, presidential policy directives, and various kinds of correspondence from presidents to Congress that indicate that the president has taken action on some kind of issue. So during the period that we study in this article, which goes from 1946 to 2020, we have data on about 34,000 directives, which shakes out to an annual average of around 450.
We estimate that about 20% of these directives tend to be significant, which is a squishy term that means something like important. They meaningfully change policy, they attract scrutiny and attention, or they are noteworthy in some sort of fashion. And just to speak a little bit about a potential change over time, there has been variation not only in the use of unilateral directives across time, but in the kinds of directives that presidents have issued. So generally speaking, the use of executive orders and proclamations altogether has gone down over the last 75 years or so. But we’ve seen an increase in the use of other kinds of directives.
And here I’m going to lump together a bunch of different sorts that accomplish functionally similar things. So things like memoranda and other kinds of directives that provide instructions to administrative officials, which are very similar to what executive orders do, but they have a different label to the document. The presidents have used these at increasing rates and maybe most interesting for this particular point, memoranda and other sort of less visible kinds of directives have comprised an increasingly large share of the important directives or significant directives that presidents have issued over time.
Matt Grossmann: So your latest article focuses on differences under divided government. What are the big differences and how do you interpret them?
Jon Rogowski: Well, I’ll say first that there’s a lot of work. Probably the most studied question with respect to unilateral politics in the political science literature has to deal with whether presidents issue more unilateral directives or fewer unilateral directives during periods when Congress is controlled by the opposite party as compared to when the president’s party controls both chambers of Congress. And so our sort of intervention operates in this backdrop. I will say there’s a bunch of mixed findings in every possible direction. Some are null.
Some show that there are more unilateral directives issued in unified government. Others show there’s more unilateral directives issued in divided government. And then there’s variation across different kinds of issue areas and things like this. And so ours enters this debate from a somewhat different perspective where we show first that presidents use different kinds of unilateral directives in different political contexts. So we show, for example, that when Congress is controlled by the opposition party, we show that presidents are more likely to reach for memoranda and other kinds of less visible items in their unilateral tool kit.
But during periods of unified government, presidents are more likely to issue important directives as executive orders and proclamations, which are going to be exactly the kind of directives that will get more scrutiny and public attention. The second finding that we show is that when you take stock of the diversity of tools through which presidents create unilateral policies, our findings differ a bit from the existing literature. And so a second ago I just characterized a bunch of mixed findings in previous scholarship around this question. Most of that scholarship has focus exclusively on executive orders, again because they’re the highest profile instance of presidential unilateralism. But they haven’t taken stock of the wide range of ways that I just noted a moment ago that presidents can create unilateral policy. So when we do that, we find that congressional opposition is not quite the constraint on presidential unilateralism that we thought it might be.
So we find that presidents do not scale back their unilateral ambitions, and in fact, they might issue more unilateral directives during periods of divided government once you account for the various tools that presidents have for creating them. And so as a high level takeaway, our findings indicate to us that the separation of powers might be a somewhat weaker constraint on presidential unilateralism than we might’ve thought and than some of the existing literature characterizes it as, and instead that maybe unilateral authority actually conveys even more power to presidents than we may have fully appreciated.
And our findings also help us align how we understand presidents’ incentives to govern, that is, presidents spend a very long time running for office, making campaign promises, pledging to do lots of things about lots of problems, and then once they enter the White House, lots of problems come up that they need to be responsive to to maintain their political support. And so our findings help us align how we understand these incentives that presidents have to govern and to cultivate and maintain support from their key stakeholders, which include groups like voters and interest groups and social movements with our understanding of how they use their power in their effort to maintain and build their political coalition.
Matt Grossmann: So one of the reasons that people are interested in the effects of Congress is because this is seen as a presidential power that might influence the president’s power relative to Congress or their ability to negotiate with Congress. But that does seem dependent on these policies being real rather than symbolic or being substitutes for doing something in Congress. What do we know about that? How real are these policy changes via unilateral presidential action and are they anything like an act of law?
Jon Rogowski: I think in an ideal world, we would be able to have some sort of measurement strategy that will allow us to compare the breadth and impact of presidential directives in a way that we can map against the breadth and impact of laws written by and passed by Congress so that we can get kind of a one-to-one correspondence between what these things do. So I mentioned a few moments ago that about 20%, we estimate that about 20% of the directives that presidents have issued over the last 70 to 75 years are policy significant, that they’re not simply declaring a National Education Week, which President Biden did last week, or recognizing some personnel matter that applies to a single individual within the executive branch. So in some sense, the directives that are in that 20% represent a fairly low bar for distinguishing which of these actions meaningfully change policy.
It’s harder to get a sense about what exactly is the impact of those that are in the 20%. Now, certainly the most important of those that are in there had and have very significant effects. So for instance, our data would include things like the memorandum that implemented the DACA policy, for instance, in 2012. And that certainly, I think we would say, had very large consequences. There are other high profile executive orders and other sorts of directives that also had pretty high profile consequences. So, for example, in the ’70s, Nixon’s price controls or the various directives that FDR issued on the course of conducting World War II, including Japanese internment.
These had really profound policy consequences. It’s certainly not the case that most directives have that level of consequence, and I think that probably even presidents… Actually not probably, certainly it is the case that presidents would tell you that they would prefer a comprehensive policy solution passed by Congress, probably in accordance with their own policy wishes, to whatever unilateral directive that they would issue that concerns the same policy area.
But in the absence of being able to reach inter-institutional agreement on whether and what kind of policy to move forward with, these unilateral directives have become increasingly an important way for presidents to try to move the needle. So sometimes they do so to step in where Congress just is not able to act or won’t act. Sometimes they do so because they think that if they move forward first, that there could be other follow-up consequences that come from that. So for example, president Obama increased the minimum wage for federal contractors who work with the federal government. Now that applies to a fairly narrow set of firms and individuals. That’s not equivalent in any way to a federal increase in the minimum wage that would apply across the board. But I think that the administration’s thinking was that one, that by increasing it for some people might generate more demand and thus more pressure on Congress for increasing it for a larger share of the workforce.
Two, that if the federal government were to increase the minimum wage that it pays to contractors, that that might voluntarily lead businesses and other private firms to increase the minimum wage that they themselves pay or to increase the wages that they themselves pay the workers who work for them. So there’s a lot of different sort of incentives and motivations that presidents are trying to act upon when doing this. I don’t think they have any illusions that this is the best way to govern, to achieve long-lasting, significant, comprehensive change. I think they would prefer to work with Congress on that, but I think they’re also happy to take what advances they can get in the medium term.
Matt Grossmann: So one problem is that whatever you can enact unilaterally, your successor might be able to undo unilaterally. Presidential candidates certainly seem to be increasing the number of things they say they’re going to do on day one. And journalists have recognized that the number of things that they immediately do to stop something that their predecessor did seems to be increasing. Are those perceptions correct and are we kind of moving in the direction of having a flip back and forth based on partisan administration?
Jon Rogowski: Yes. So I’m glad you mentioned the day one sort of rhetoric, because I was going to mention this at some point too if I could, which is that for the year leading up to a presidential election year or more leading up to a presidential direction, we hear lots of comments from presidential candidates talking about their ever-expanding day one agenda, where they’re going to issue lots of unilateral directives to spur some sorts of policy change within the executive branch. And a lot of those promises and those actions do involve simply rescinding or revoking the kinds of directives that their immediate predecessor, especially from the opposite party, what they implemented. So it is the case when you look at the data, you do see that recent presidents have in fact issued a lot of directives on the first day or during the first week of their presidency. And it is also the case that a large share of those do involve simply revoking or reinstating an executive order or some other kind of directive that a predecessor had implemented or that a predecessor had implemented, but then their immediate predecessor had rescinded and then the next president wants to reinstate. So that does show up in the data, and that’s new.
There’s a larger question here or a different question here about how we think about recent patterns of presidents or unilateralism compared to the ways that presidents issued these kinds of directives before. So to what extent does the president that we’ll elect in 2024, how likely is it that their strategy or their approach or the volume of unilateral directives that they issue will differ from what President Biden has done and what President Trump did, and what Obama did, et cetera, et cetera?
So in our data, we do look for evidence of systematic changes over time in how presidents have used unilateral directives to see where there are distinct presidential regimes around how presidents, either the same presidents, or different presidents have used these sorts of power.
And so if you zoom out and take a wide view over the last 130 or 150 years or so, you do see that there is a distinct change in the volume of unilateral activity. That begins around the early progressive era, so if you look at presidents Theodore Roosevelt, Taft, Wilson, those presidents are using unilateral power at a much higher degree than the late 19th century presidents.
Then you see a small retrenchment during the 1920s with the return of Republican presidents. And that level actually remains relatively stable for the rest of the 20th century until you get to the 1990s, and then the late H.W. Bush presidency, the Clinton presidency, you see another increase. And it remains at that relatively high level during the W. Bush administration, during most of the Obama presidency.
And then around 2016 or 2017, you see another change where the rate increases further still. And so over the last five years, we’ve seen presidents issue unilateral directives at the highest rate in American history, and that contrasts pretty markedly with what we saw 20th century presidents doing, and even presidents at the end of the 19th century, at the beginning of the 21st century.
Matt Grossmann: So you do see these broad trends over time, but there’s still the possibility that each president is going to act differently than their predecessors. And that seemed like it was an acute possibility with President Trump, especially the coverage seemed to be that he was issuing things without much process or without as many hands on it before they went through. Was there any kind of detectable difference in the way that he operated?
Jon Rogowski: I would love to have more evidence to share with you about that. I can certainly tell you that he issued more directives than any president before him. And just impressionistically, you’re right, that it seemed as though many of them came without being fully vetted by members of bureaucracy, members of the White House team.
So one recent stream of research that I’ve really liked is by Amy Rudelevich, who has traced the origins of presidential directives within the executive branch. And it shows how a lot of presidential directives or other kinds of orders issued by president’s flow up to the President from bureaucrats that work for them, or from other people who work within the White House who put together the first draft, or they plant the seed with the White House. And then you finally see an order put together and issue that looks pretty similar to what these bureaucrats were proposing.
And so that refines our thinking a little bit about how we should interpret executive orders and other directives as actions of presidential unilateralism, as opposed to a more consensus building process that operates within the executive branch.
And so it seems that one way in which Trump may have differed from some of his immediate predecessors was that a lot of these directives that he issued during his administration seemed as though they had a very top-down kind of flavor, and they had not been percolating within the executive branch as much as some of the other directives that his predecessors had issued. And that might explain why we saw a lot of revision to these orders.
We saw some of them being replaced with subsequent orders once the language was tweaked. We saw some of them have very severe challenges in court, in part due to the processes or the lack of clarity that the orders concerned. And so that definitely seems as one thing that was distinctive with respect to the Trump administration relative to his immediate predecessors. Matt Grossmann:Well what conservatives say is that there’s now an administrative state that makes most public policy outside of the legislative process, and the President is swimming against the stream here and barely keeping up with the degree of policymaking that’s going on in the administration. Is that true? Is it possible that you’re seeing a large amount of presidential activity, but it’s actually a smaller proportion of what the executive branch is doing?
Jon Rogowski: I would love to know the answer to that question. So I think what you’re doing is actually a suggestion of research agenda that I hope someone will pursue, which is that yes, there are thousands and thousands of regulations and rules and other kinds of procedural decisions that are made within the executive branch to administer the laws on the books that are passed by Congress and also to respond to the directives that presidents have put forward.
And it’s hard for ordinary people to see what those things are and see how exactly those decisions are made, and it may well be… So it certainly is the case that the volume of rulemaking today is much larger than it was 50 years ago; that’s certainly the case. The rate of presidential unilateralism has gone up as well. I’m not sure how to think about the ratio between those two increases in rates.
I’m also not exactly sure how to think about comparing the kinds of policy impacts that rules and regulations have compared to executive orders. But I do think more generally that we see the president as the head of the executive branch. And so if we want to think in a very broad way about the kinds of policy impacts that presidents have, then actually I don’t think we should stop just at unilateral directives, but we should also look at the kinds of regulations and other decisions that are made within agencies, because presidents do have a lot of control over the individuals, at least who sit atop those agencies and who guide those agencies or policy agendas.
And so because of that, it’s likely to be the case that there are differences between what sorts of agency rules are put forward during Democratic administrations compared to Republican administrations, or between a Joe Biden presidency and a Barack Obama presidency, simply because of differences in priorities and things like this.
And so I think a better thing to do relative to what Aaron Kaufman and I did for our AJPS paper, is to think much more capaciously about how we put together rules, regulations, various kinds of presidential directives, to think comprehensively about the policy impact that different presidents have through the variety of ways that the executive branch is engaged in the policymaking and the implementation process.
Matt Grossmann: You mentioned that one of the constraints is potential court action in response to what the president does. And as you know, the Supreme Court has overturned or stopped some of the Biden administration’s policies, especially quite visibly on student loan policy, and the way that they seem to be thinking about these things, especially with the major questions doctrine, seems to be directly applicable to the kinds of concerns that you laid out in your article, in that the court is now not just considering what was the text of the authority that the president used, but they’re actually considering was this something that should have been passed by Congress but the president couldn’t get Congress to pass, so went around them to do this. So is that how you see it? And if so, that seems like a pretty fundamental constraint on this activity.
Jon Rogowski: I have two reactions to this. On the one hand, I think that the doctrine that the Supreme Court has put forward, and I want to caveat first that I am no legal expert, so forgive me in being a little general with this discussion. But generally speaking, I think that it does present some cause for concern in terms of what the breadth of presidential influence over agency actions can and should look like and when those are likely to withstand judicial scrutiny.
This also represents a little bit of a pivot from the idea of Chevron deference where courts generally defer to agency’s interpretations of their regulatory power under federal laws when the language and those laws is unclear or ambiguous. So this is a way for the court to reassert itself in reviewing actions undertaken by presidents and by agencies.
It’s a little hard to know right now whether this is a hard new constraint. On the one hand, the courts always have the authority to review things that agencies and presidents do when there are lots of conflicts in courts about them.
So if there are presidential directives or agency behavior that the courts find out of line with their understanding the president and the law, then it still remains the case just as it remained the case two years ago that the courts can review those actions and strike them down when they find necessary.
On the other hand, I think I’m a bit of a legal realist in the sense that I think that judges and justices are mostly making decisions based on their political preferences. So a more, I don’t want to say cynical, but I’ll say a more cynical way to think about the major questions doctrine could be something like, “Well, this provides a way for the courts to review really important things that agencies do or presidents do. And those really important things are the ones where there should be more scrutiny that’s applied to them. And so if the courts don’t like, or if they disagree with the substance of those policies that presidents and agencies have put forward, then the major questions doctrine gives them a legal cover for being able to strike down activity with which they disagree ideologically, or politically, or based on their own partisan preferences or something like that.”
So I think we’ll have to see more challenges and I think more responses from presidents and their administrations to those challenges to get a clearer sense about how much of a constraint, if any, that this is likely to provide in a new way relative to what the previous doctrine had looked like.
Matt Grossmann:
In addition to Congress and the courts, the other main constraint that’s been considered in research on presidential action is public opinion. And I know you have another recent AJPS article that looks at the role of public opinion in presidential unilateral action. So do you see that as a form of constraint and does the public kind of get what its wants from presidential action?
Jon Rogowski: There are lots of empirical challenges in studying the relationship between public opinion and presidential behavior. Some of this is due to lack of data, and other is due to the lack of the proper research design that we would want to be able to properly isolate the relationship that we want to study.
So the other AJPS article that you referenced tries to take a small step forward here and ask whether president’s unilateral policy agendas are responsive to the issues that people care about, or instead whether presidents pursue their own issue agendas in a way that are mostly disconnected from public opinion.
And answering this question I think doesn’t positively establish how and whether public opinion might operate as a constraint on presidential behavior, but it does give us a sense about whether there is the possibility of any relationship between how presidents use their unilateral authority and the kinds of political constituencies that presidents are trying to satisfy. And in particular here, we are talking about maintaining the relationship with the public. So I find basically that as the public pays more attention to particular issue area, that presidents do dedicate more unilateral activity to that same issue area. So for example, as the public unit cares more intensely about say, environmental issues or foreign policy or immigration issues, my results imply that presidents are likely to issue more executive orders that address exactly those same issue areas. So there is kind of a correspondence at a very high level between the issues that people are thinking about generally within the American public and the degree to which presidents use unilateral activity to make headway on those particular kinds of issues. So again, this is a very first step forward.
I think there are lots of other ways that we’d want to study this relationship in order to make firmer conclusions about the nature of the public constraint or presidential behavior with respect to thinking about whether the public gets what it wants from presidents. So I think ideally what we would want to know is what does public opinion look like across a whole range of issue areas on specific issues, and what are the specific actions that presidents take to address those specific policies or not? And so we want to know something like when large shares of the public support a particular policy, does that mean that it is more likely that presidents themselves are likely to take action to implement that same policy unilaterally? Or instead, do we see that presidents mostly use unilateral action to implement policies that are very unpopular? Those two analyses would point us in very different directions about the nature of the public constraint on what presidents do.
And I’ll say finally that I think the thing that we really want to do to study how the potential public constraints operate is to somehow get inside presidents heads and get a wish list of all the policies that presidents really would like to move forward via unilateral action. And then look at the instances where presidents actually didn’t do the thing that they would like to do precisely because the public was opposed to the president implementing that policy or because they didn’t like the policy generally. That is for me, the gold standard to be able to reach really clear conclusions about the constraints that the public imposes on presidents. And so I’m hopeful that through more extensive research that uses more data, more clever research designs, that we’ll get closer to being able to make those kinds of claims.
Matt Grossmann: While Rogowski sees a broader scope for power, Dino Christenson has been investigating the limits, especially via the reaction of the American public. So what is the myth of the imperial presidency and how do we know it’s a myth?
Dino Christenson: So the myth of the imperial presidency, at least at the broadest level, is that presidents are unchecked in their power, right? Particularly, their ability to use unilateral actions to accomplish their political goals. So the myth is that presidents can accomplish whatever they want in office unilaterally. All it takes for them is to sign an executive order and nothing is really standing in their way. And that’s the big myth. There are a few associated smaller myths that kind of follow from this line of thought, and we probably missed an opportunity with the title of the book to call it the Myths, plural, of the Imperial Presidency in the sense that we try to dispel a few of these, right? So for example, associated with the big myth is the idea that every new presidency, every new president is more imperialistic than in the past, abusing his unilateral power in some new way.
And then relatedly, they’re abusing it more and more each new presidency. So as each president enters office, they sign a number of unilateral actions, largely rescinding unilateral action to the previous president. And the headlines are always the same, right? Some version of the president and the executive order, whatever it is, lacking democratic values, acting like a king without regard for the other branches, some unprecedented abuse of the executive office, something really bombastic like this. And every president has the same charge leveled against them typically, but not exclusively by members of Congress and journalists on the other side of the aisle, Republicans casting stones at Biden, Democrats at Trump, Republicans at Obama, and so on. So every time a major executive order is signed, the opposing party comes out, talks about the president acting like a king, no regard for the democratic process. And so that’s the big myth and kind of an associated two smaller myths with it.
And to the second part of your question about how we know these are myths, it’s pretty straightforward though, a bit painstaking to code up and comb through and count all these unilateral actions. But when you do so, you find that it’s not new, it’s not unprecedented, doesn’t appear to be increasing over time. It happened for each of the last several presidents and roughly equal number without a clear upward or downward trend. And so that’s just to say to our listeners, to resist the urge to gasp when you read the next set of headlines and hear the talking heads around the next executive order is indication of Biden acting like a king.
Matt Grossmann: So you also show that there are mechanisms for Congress, the courts, and the public to constrain the president. So what are they? How rare do we have a backlash from one of those institutions and how do they do it?
Dino Christenson: Well, I think they’re rare relative, it’s relative to what we might expect from the knowledge of knowing that there’s weak institutional constraints as well as relative to what we might expect, reading the headlines around every single major executive order or unilateral action to be sure these actions aren’t dying out, but they’re not exploding either. On average, we find that presidents are issuing about one significant major policy action, unilateral action a month. This isn’t a humongous number. There are periods of greater and lesser issuance across presidents, of course, and even if we compare across presidencies, there are times at which some presidents issue more around wars and big foreign policy events, but also at the start of new administrations in the honeymoon period. But to clarify your question here on the ability of the institutions to constrain the president, I want to be sure to say what we found is not some formal constraint from the other branches.
The ability of Congress and the courts to check the president is really about informal mechanisms, not their formal ones. They constrain the president via the public, not really on their own. And so in this sense, there is some truth to the myth of the unrestrained president from an institutional perspective, at least, right? From an institutional perspective, there is very little restraint on presidents. What can the other branches do formally to check the president? Congress can overturn an executive order with the law, which is unlikely to begin with in modern closely divided congresses. But even if so, the president can veto it, and then it is going to require two thirds to override the veto. And so that’s extremely unlikely these days. As for the court, the court can strike down an order that’s unconstitutional, but most orders are crafted such that they don’t raise concerns of constitutionality.
There’s other ways of getting on the judicial considerations. Courts can consider the president’s power to put forward orders or interpretations of the orders, but even if these orders are really sloppily written, they can be rewritten, signed anew to accomplish similar goals and avoiding the areas of concern noted by the courts. Perhaps we saw this probably most clearly with Trump’s Muslim travel bans, right? That he had three opportunities basically to get through what he wanted to do. So theoretically, the formal restraint from the other two branches is weak. And empirically, that’s exactly what we see. We see little in the way of Congress or the courts formally checking the president’s executive power. And instead, I mean, this all begs the question and the puzzle we try to solve in the book of why presidents aren’t signing executive orders like hotcakes. Why don’t we see a lot more of these?
The court’s usually able to be avoided, Congress closely divided number, polarized, gridlocked, but the president still has this political agenda and arguably a mandate to carry it out. And so if there’s no meaningful institutional constraint, why don’t we see even more of these unilateral actions? And so we go in search of that answer from the informal mechanisms, particularly in public opinion. So in simplest terms, our answer is that the public constrains the president’s use of unilateral action. And to the extent that the Congress and the courts are able to constrain him, again, it’s not through their formal checks, but instead through the informal ones, that is by calling attention to the executive orders to these actions to the public and drumming up public opposition.
Matt Grossmann: What about the substance of these potential policy changes? If you read some of the initial executive orders, or at least their titles, it really does seem more like HR memos for the federal government that are managing the bureaucracy. But certainly we have this popular story that seems to some extent true, that now presidents are just using this as an alternative for things that would normally go through Congress, and it’s just another kind of policy tool. So what do you think about those trends? To what extent is this just a policymaking tool like any other versus it really has this more specific formulation of managing the bureaucracy?
Dino Christenson: That’s another really good insight. I mean, certainly not all unilateral actions are equal, right? First, there’s kind of variance across the kinds of unilateral actions, just even in their labels, whether you’re thinking about executive proclamations, administrative memoranda, executive orders, different presidents use each of them in different ways and really in different number. But even within and across these executive directives, they vary greatly in terms of their substance. So some, as you know, are kind of more symbolic. So an executive order, recognizing the importance of HBCUs, for example, something like that during the Trump administration, others have more policy significance, right? Obama closing Guantanamo, raising the minimum wage for federal workers, Trump building a wall, instituting a travel ban, rescinding his own family separation policy at the border. The variance here is huge, and it’s important. And some of our colleagues spend a good amount of time exploring that.
And our perspective, our approach was to take more of a macro level view of this and look at all the executive actions of any label that had major policy consequences. So to move around your question and say, “Yes, there’s huge variance across these,” and we’re just going to look at those that have major policy consequences and kind of think about the relationship there. So in our study, we gathered every unilateral action, again, orders, confirmations, memoranda, but we draw a distinction between those that were substantively significant versus those that were changes to, like you said, managing the bureaucracy or mostly symbolic awards and recognitions. And following some of our colleagues. We did this by considering any action that was considered in the New York Times as significant or a major issue.
And so our focus is not on the variance across different kinds of unilateral executive directors, or excuse me, directives, but that’s a really interesting question. But instead on what constrains and emboldens presidents to craft these particularly impactful unilateral directives, these impactful policy orders as unilateral directives. And so apart, kind of moving ourselves away from these day-to-day issuances of those administrative and symbolic directives.
Matt Grossmann: So I can imagine some listeners saying all this, ideas about being constrained by public opinion sounds nice, Dino. But is it really going to apply to President Trump? Don’t you have to have some degree of shame to react to negative attention in the public, in the media?
We have, for a potential second Trump administration, we have the Heritage Foundation proposing martial law on day one, all kinds of crazy-sounding things. Is this going to really work with this kind of a president? And did it work in the first Trump administration?
Dino Christenson: Yes and no. I mean, Donald Trump is an outlier to the modern presidency as you’re noting in a number of ways. And we similarly find him sticking out in the domain of unilateral action.
Just based on his first two years, which is kind of the last deep dive we did into the data, what we saw was a president that used his unilateral powers, I think this is in line with your suggestion. He used them more frequently and more aggressively than his predecessors.
And in just those two years, he issued more significant orders than anybody since Carter. Who issued that flurry of orders at the end with the Iranian hostage crisis.
Having said that, when we look at the data, when we kind of compare him and his reaction to public opinion throughout his term, he wasn’t all that different from his predecessors in being strained by public opinion. Approval of the president among out-partisans and independents really do the bulk of constraining for most presidents. Which is in-line with our earlier findings that co-partisans generally fall in line with their own president when evaluating executive orders.
So the idea we have here, and what we pick up in the data, is that presidents feel constrained when they lose support, particularly among the out-partisans and independents. And despite what seemed like Trump’s laser-focus on his base, singular focus on his base, he wasn’t any more responsive to them in issuing orders than his predecessors. And he wasn’t any less constrained by the out-partisans and independents and the issuance either.
So even for this, at the very least we could call it like a norm-breaking presidency, the constraint of public opinion on his executive order issuance still played out largely as it did for the other presidents.
Now, I don’t even want to hesitate to guess about a second term, and what that might mean at this point.
Matt Grossmann: Democrats also sometimes have complaints about the constraints on the president’s power, and lately they’re mostly targeted at the Supreme Court. Which you said doesn’t have that much formal constraint on the President, but has recently overruled some environmental policy, and a very saliently, student loan policy under the Biden administration. And has done so by kind of inventing or raising a new doctrine about major questions, which would seem to have pretty important implications for this idea of presidential power.
Because the way that it is formulated, is kind of anything that Congress could or should have done, perhaps the president shouldn’t be able to do on their own. How real is that constraint, and how much would that matter for presidents going forward if it’s held?
Dino Christenson: Yeah, I tend to, probably not surprising, I tend to agree with the minority opinion on the case. Which is that this is a serious and potentially dangerous new limit to the court, being set down by the court, for the executive branch.
You can disagree with the policy, the environmental policy, or especially the student loan policy on a number of grounds. But for the court to overturn, let’s take the student loan policy. To overturn the Department of Education, in an area where Congress has historically explicitly given power to the agency, is another matter altogether.
Congress delegates all the time. This is the function, this is how our government works, right? And they do it for good reason. It’s in search of expertise and implementation of these laws they pass. And the bureaucracy is charged with responding to on-the-ground dynamics. Think about changes like the pandemic and the inflation resulting from the pandemic.
So the court has chipped away at the delegation power from Congress, and of course the implementation power in the executive branch. And how they did so, as you’re mentioning, is basically by getting clever on a subjective definition of the word modify, right? This isn’t really highbrow stuff, however they want to phrase it. And when that subjectivity splits along ideological lines, it’s hard to really take the rationale of the opinion seriously.
The real danger, I think, is that … And the court fails to recognize this publicly, though I think Roberts, at least internally and in some interviews, seems very concerned with this personally. That by curbing the power of the Department of Education, what they’re ultimately doing is empowering themselves. And empowering the court.
And I think that’s the real rub for democracy. It isn’t that this is going to be the last judicial challenge to an executive order. And I think we can expect most going forward to be similar to this, six-three conservative liberal, curbing the power of the executive branch, particularly on policies issued by a democratic president.
And then the question becomes, and if the executive branch has increasingly little power to do what it’s been charged with doing from Congress, who’s going to pick up the slack? And I fear that this is the bed that the court is making for us.
Unilateral action, at least on actions involving significant policy change, the big ones, isn’t a strategic move by presidents in practice when their chance of legislative success is thin. And their approval numbers are in the dumps. Quite the contrary, right?
Rather, presidents sign big, bold, unilateral action largely when the wind’s in their sails. Right? They’re emboldened, if you will, by public support. And they use that as an opportunity to push forward their agenda with an alternative approach, using unilateral action.
And of course, the flip side of this is where the title of the book comes from. That unpopular presidents generally feel constrained in the unilateral executive sphere. They don’t want to risk the political costs of unilateral action at that time.
So the informal check from the public rears its head on unilateral executive orders. This goes far back, right? This idea of Madison and Federalist 51, the dependence on the people is no doubt the primary control of government.
Matt Grossmann: So the old knock on the presidential literature was that every president’s going to be very different, and we really haven’t found as a discipline, a set of…
Dino Christenson: Laws.
Matt Grossmann: Clear things that are true of presidencies as a whole.
But it does seem like you both have uncovered some patterns that don’t differ, maybe, as much between presidents as people think. So is that a sign that this literature is moving forward to having a sense of what presidents do, even when we have very different presidents elected?
Dino Christenson: Oh, absolutely. I think that’s a really, really good insight, and a nice kind of macro-perspective to think about this. I mean, what we find is really consistent across all the presidents in our administration. And if you think about it, it’s not just different individuals with different backgrounds, some with political backgrounds, others with not military business, you name it. But it’s also dealing with very different events throughout their presidency.
And so the variance, the heterogeneity, and in the political context in which these presidents exhibit, reside in office, just changes massively.
And then to find that these relationships are pretty consistent throughout all those, throughout different characters with different political contexts. I mean, I think it’s suggesting that these individuals aren’t all that different, right?
This is kind of a check, I think, for the structural functionalists over the individualists in the world of the presidency. That they’re constrained by similar interests, could be ideologically different, but they all want to accomplish a political agenda. They all have constituencies. They’re all trying to do a good job in very different ways. And what we’re showing is that the nature of these presidencies do have some common ground, some perhaps laws kind of underlying them.
Matt Grossmann: There’s a lot more to learn. The science of politics is available bi-weekly from the Niskanen Center. I’m your host, Matt Grossmann.
If you like this discussion, check out these episodes next: How Presidential Appointments Reveal Policy Goals And Elite Interests, how Bureaucrats Make Good Policy, When and Where Can Climate Policy Succeed? How Media Coverage of Congress Limits Policymaking, and Moderate Voters Matter.
Thanks to John Rogowsky and Dino Christenson for joining me. Please check out Divided Government, Strategic Substitution, and Presidential Unilateralism. And The Myth of the Imperial Presidency. And then listen in next time.