Vol. 13 No. 3 (March 2003)
BY ORDER OF THE PRESIDENT: THE USE AND ABUSE OF EXECUTIVE DIRECT ACTION, by Phillip Cooper. Lawrence, Kansas: University Press of Kansas, 2002. 301 pp. Cloth $39.95. ISBN: 0-7006-1179-7. Paper 16.95. ISBN: 0-7006-1180-0.
Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: podehnel@augustana.edu
In his classic 1960 book PRESIDENTIAL POWER, Richard Neustadt argued that the key to presidential influence was the power to persuade, not command. Phillip J. Cooper has written an important and extensive survey of presidential government by command. Cooper’s cumulative evidence shows the continued, even growing, significance of presidential attempts to govern by command. The post-modern presidency relies heavily on personal authority, so it is perhaps not surprising that recent presidents have often sought to persuade by adopting the posture of command. Cooper’s book reveals that a public law scholar has much to offer in sorting out the patterns and pathologies of the contemporary presidency.
Cooper defines his topic as presidential direct action, or “situations in which the president simply issues statements, many having the force of law, with no requirement for any particular processes such as those required to enact legislation or even to adopt administrative rules” (p.ix). Common forms of presidential direct action include executive orders and proclamations, presidential memoranda, national security directives, and signing statements. Cooper finds the rising use of these instruments understandable, but problematic.
Cooper’s concerns over presidential direct action are addressed in an overlay of two discourses aimed at different audiences. On the one hand, the book is written as a guide to future administrations, describing the plusses and minuses of the variants of direct action, and warning of their political pitfalls. He provides many historical examples, mainly from the Reagan, Bush Sr., and Clinton Administrations, showing how attempts to use direct action to make end-runs around Congress, strong arm reluctant agencies, or operate under political radar often end up creating more trouble than productive result. On the other hand, Cooper addresses a broader audience in describing presidential direct action as a symptom of larger problems in the political system. Here, his thesis is that the use and abuse of direct action has “contributed to the erosion of Washington rules that make effective working relationships possible” (p.4).
These two discourses enrich each other but also do not quite fit in the same book. Cooper’s pragmatic assessment of each form of direct action provides a nuanced foundation for his judgments which avoid excessive abstraction and piety. Drawing examples from various administrations, Cooper reveals a remarkable continuity from one administration to the next, across various configurations of party control of the presidency and Congress. Cooper’s pragmatic analysis fits in the tradition of Neustadt-like advice to presidents, urging them to use their power in ways that preserve it. But his general concerns about the decline of Washington rules strain against this advice, as if what the country needs is a President who will follow rules that are no longer in force.
After a general introduction, Cooper discusses each of the major tools of presidential direct action. Chapters 2 and 3 encompass an extensive survey and analysis of executive orders, defined as “directives issued by the President to officers of the executive branch…” These orders fall in between informal presidential memoranda and formal rule making governed by the Administrative Procedures Act. Though there is little regularity in the creation and application of executive orders, they are subject (by statute) to publication in the Federal Register. A central theme throughout this section is the legal authority for executive orders, or lack thereof. The chapters cite numerous examples of orders based on vague or dubious claims of authority. Cooper recognizes that perceived emergency and congressional inaction often invite such presidential initiatives, but he hastens to note the downside of extralegal orders—including “a hodgepodge of potentially contradictory actions or confused organizations, with no one watching the big picture and no counterbalance from other interests along the way” (p.80).
Presidential memoranda are the subject of Chapter 4. Memoranda are similar to orders and often accompany them, but there is no particular legal structure for creating or publishing them, and they may or may not be catalogued and compiled. As such, they suit the post-modern presidency all too well. Cooper’s survey amounts to a series of case studies of the dynamics and pitfalls of presidential attempts to manipulate politics through personal authority. One such case is the senior Bush’s creation of the Council on Competitiveness, headed by Dan Quayle, one of a series of presidential efforts to enhance White House control of the executive branch. The memoranda that empowered the Quayle Council imposed considerable burdens on agencies that already operated under formal administrative procedures, ironic since the authority of the council had no formal basis at all. Bush even asserted central control over regulatory bodies made explicitly independent of the President by statute (p.95) To illustrate the downside of government by memorandum, Cooper describes the confusion of symbolism and substance in Clinton’s memoranda on environmental racism.
Chapters 5 and 6, on presidential proclamations and national security directives, fit awkwardly with the rest of the book. Proclamations are similar in form to executive orders except that they apply to persons outside the government. As such, they take on the appearance of royal prerogative, raising basic issues of constitutional executive authority. The chapter begins with a review of the debate over George Washington’s neutrality proclamation. Modern usage, however, is both more frequent and mundane. The latter part of the chapter features an incomplete discussion of the pardon power. The discussion of national security directives is similarly partial. Cooper concedes the necessity of secret orders in foreign policy, so the chapter centers on the politics and substance of security policy rather than the form and use of the directives themselves.
The analysis of presidential signing statements in Chapter 7 comes back to the central theme of tension between a dynamic presidency and the formal and informal structures that bring coherence and legitimacy to governmental action. Recent presidents have made increasing use of signing statements that include substantive comments on the meaning and even the validity of the legislation being signed, and Cooper relates how Reagan aide Ed Meese convinced West Publishing to include signing statements in their compilations of legislative histories (p.203). Cooper shows numerous examples of Presidents using signing statements to bend statutory interpretation away from congressional intent or even declare selected provisions of law unconstitutional, acting as if the Constitution authorizes a line item veto.
Cooper is appropriately critical of the aggressive use of signing statements and other means of direct action. In his final chapter, Cooper gives a compilation of “Washington Rules,” a set of informal norms “that have for so long permitted committed adversaries to address the nation’s most controversial topics and yet continue to work together” (p.239). Cooper delineates twelve rules, which happens to be the same number of points found in the Boy Scout Law. He concludes:
To the degree that presidential power tools are used to hide important actions, to deceive other players as to the true nature of an administration’s decision, to make an end run around the other institutions, or to fabricate what purports to be real authority for important moves by piling one directive on top of another, these rules are dramatically undermined (p.241).
At least for me, Cooper comes to the heart of the matter when he discusses the forces that lie behind the increased use of presidential direct action. He acknowledges that Congress, too, has failed to live by the Boy Scout Law. Congress has increasingly sought to obviate the effect of the presidential veto by passing, often late in the session, complex bills with all manner of ornaments and policy directives little related to the essential business done by the rest of the bill. Furthermore, Congress has continued to attach legislative veto and legislative appointment provisions similar to those which have been declared unconstitutional by the Supreme Court. At this point, I believe Cooper stops short. Does the problem lie at the two ends of Pennsylvania Avenue, or in the structure of institutional separation itself? Perhaps the solution to the dilemma will require moving beyond admonition to institutional reform.
Cooper’s book is readable and includes a wealth of interesting case studies, though it is probably too encyclopedic for classroom use. It reinforces the importance of studying legal and institutional aspects of the contemporary presidency even as command and persuasion become harder and harder to distinguish.
REFERENCES
Neustadt, Richard. 1960/1990. PRESIDENTIAL POWER AND THE MODERN PRESIDENTS. New York: The Free Press.
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Copyright 2003 by the author, David Dehnel.