Vol. 16 No. 6 (June, 2006) pp.434-437

 

EXECUTIVE ORDERS AND THE MODERN PRESIDENCY: LEGISLATING FROM THE OVAL OFFICE, by Adam L. Warber. Boulder, CO: Lynne Rienner Publishers, 2006 175pp.  Hardcover. $49.95.  ISBN: 1-58826-401-7

 

Reviewed by Kyle L. Kreider, Political Science Department, Wilkes University, Wilkes-Barre, PA.  E-mail: Kyle.Kreider [at] wilkes.edu

 

When the presidency was transferred from Bill Clinton to George W. Bush in January, 2001, the media seemed fascinated by two things: the questionable pardons by President Clinton in the last days of his presidency, and the flurry of executive orders he issued in his last year of the presidency, when Congress was controlled by the Republicans and President Clinton could not get his way in the legislative process.  The media’s attention raised the question that Adam Warber, in EXECUTIVE ORDERS AND THE MODERN PRESIDENCY, seeks to answer: “To what degree have modern presidents been active and strategic in using executive orders to establish policy” (p.1)?

 

EXECUTIVE ORDERS AND THE MODERN PRESIDENCY is an extremely valuable contribution to the presidency literature and a must read for presidency scholars.  Through content analysis of “all published executive orders from March 1936 through the end of the William J. Clinton administration in January 2001” (p.2),  Warber examined a total of 5,392 published executive orders.  Warber’s data on presidents and executive orders will astonish many readers and will serve as interesting discussion for many graduate level courses on the presidency.   

 

Conventional wisdom holds that, because executive orders can be issued unilaterally, presidents have increasingly used orders to accomplish policy, especially during periods of divided government when presidents are likely to face congressional opposition to their agenda.  Warber, however, shows “the number of major presidential policy directives has not increased across time” (p.14), and presidents are not necessarily more likely to issue executive orders when Congress is of a different political party.

 

The book is broken into five chapters.  Chapter 1 includes an introduction to executive orders and a theoretical foundation for the remainder of the book.  Warber argues that executive orders can possibly be best explained by rational choice theory.  Specifically, the book operates under five assumptions.  First, presidents are rational actors who use their unilateral powers to fulfill their agendas.  Second, unilateral powers are an effective way for presidents to accomplish their goals.  Third, presidents act strategically in deciding when and how to use executive orders.  Fourth, a president’s unilateral powers (executive orders) will be more successful in some policy domains than others.  Finally, there are costs associated with presidents using executive orders (p.13).  While Warber uses the bulk of Chapter 1 to explain [*435] these five assumptions, he concludes by explaining to the reader that EXECUTIVE ORDERS AND THE MODERN PRESIDENCY’s primary contribution lies in the fact that it is “the first book to examine the policy content of every published executive order since March 1936” (p.25).  While others (Krause and Cohen 1997; Mayer 1999, 2001; Howell 2003) have applied statistical methods to analyze executive orders, such work might be “premature,” due to the lack of knowledge of the content of all executive orders issued since 1936 (pp.25-26).

 

In an empirically rich Chapter 2, Warber discusses and explains executive orders across administrations.  Executive orders can be symbolic, routine, or policy-making.  The data show, contrary to popular wisdom, “the average number of policy executive orders has not increased over time” (p.41), routine directives have decreased, and that presidents do not rely on symbolic executive orders to any large degree.  When controlled for political parties, the data demonstrate that, on average, Democratic administrations issue more policy orders per year than Republican administrations.

 

Also included in Chapter 2 is an analysis of what presidents do with executive orders issued by their predecessors.  The trend from Roosevelt to Johnson was that presidents would revoke, supersede, or amend routine executive orders, while since Nixon presidents have begun to use their power to revoke, supersede, or amend more policy orders than either symbolic or routine ones.  In other words, presidents since Nixon have become more policy oriented with their executive order authority.  When controlled for party politics, Warber found “no dramatic pattern” even though “six of the eleven administrations modified more policy orders issued by presidents of an opposing party than those policy orders issued by previous administrations of the same party” (p.59).       

 

Chapter 3 discusses the complex political environment in which presidents operate when deciding whether to issue executive orders.  One of the factors believed to affect presidential use of executive orders is the existence of divided government; specifically, presidents are more likely to use executive orders when Congress is controlled by the opposing party.  However, Warber corroborated existing studies that showed presidents are more likely to use executive orders when government is unified rather than divided.  The second factor believed to have an impact on executive orders is the presence of a presidential scandal.  Presidents embroiled in scandal are more likely to use their time and resources to fight the scandal and decrease their policymaking efforts.  However, the data show that neither Nixon nor Clinton decreased their executive orders during scandal-laden years.  The third variable Warber examined was presidential tenure in office.  Warber hypothesized that presidents are more likely to use executive orders during the last two years in office when cooperation from Congress is at its ebb and the president is trying to win reelection and/or help his political party’s electoral fortunes.  The data show that presidents are slightly [*436] more likely to issue executive orders – of all kinds – in their last year than in previous years.  In addition, presidents “issued more policy directives during nonelection than during presidential and midterm election years” (p.74). 

 

Because presidents “seek to expand the life-span of their policy directives” (p.88), they are mindful of the rationale and sources of authority for their executive orders.  Therefore, Warber examines these bases of support for presidential orders, as well as the congressional response, in Chapter 4.  Statutory authority serves as the primary basis for routine executive orders, while presidential authority serves as the primary basis for policy-oriented and symbolic orders.  Of particular interest in this chapter is Warber’s finding that Democratic and Republican administrations handle executive orders differently.  For example, “Democrats have been more active than Republicans in claiming that the interests of the national economy justify the establishment of some executive orders,” and “Democrats cited a greater number of existing orders to legitimize the creation of new directives than did Republicans, by a ratio of almost two to one” (p.99).  Future research could possibly examine such a party difference exists. 

 

A part of the strategic environment surrounding executive orders is what Congress is likely to do in response.  As Warber sees it, Congress has two options: apply verbal pressure or pass legislation “to nullify or reform existing executive orders” (p.108).  While Congress has these two options, the data show that “Congress devotes a small portion of its time debating executive orders” (p.114) and “has been relatively inactive in reforming and eliminating specific executive orders issued by presidents who served between the Kennedy and George H. W. Bush administrations” (p.120). 

 

Warber concludes with a cursory examination of President George W. Bush’s use of executive orders and some thoughts on where future research should go.  While his political opponents and some members of the media criticize President Bush for his penchant for acting unilaterally (in both domestic and foreign affairs), expanding the powers of the presidency, and sometimes bypassing the expertise found in Congress, “the results demonstrate that Bush has not significantly departed from previous presidents regarding the types and quantity of executive orders that he issued during his first term” (p.124).  However, what has been different under President Bush is his willingness to change existing public policy by revoking, superseding, or amending executive orders made by previous presidents.  Yearly averages show President Bush to be second only to President Carter in revising inherited executive orders.

 

A key finding of this book is that “presidents have not dramatically expanded their power with [executive orders] across the modern presidency” (p.128).  Though Warber does not have the specific answers as to why presidents have not increased their use of executive orders over time, he speculates the stasis in presidential directives to a number of [*437] factors, one being the continued existence of separation of powers—specifically Congress’s ability to pass legislation to revoke or revise executive orders and the federal courts’ authority to decide upon their constitutionality. 

 

Finally, Warber argues that future research should investigate congressional and judicial responses in more specific detail.  What power does Congress have at its disposal to counteract executive orders?  How often does the Supreme Court strike down executive orders as unconstitutional, and does this restrain the president?  What strategies do presidents employ in counteracting the potential for courts to strike down executive orders?  What role do solicitors general play in developing executive orders?  What role does the bureaucracy play in “the creation and implementation of executive orders” (p.131)?  All of these questions are important, largely left unanswered in this book, and should be examined in greater detail in future research.

 

The principal question is why presidents would not use their executive order authority with greater frequency, especially in times when they can not accomplish policy through the legislative process.  EXECUTIVE ORDERS AND THE MODERN PRESIDENCY is a value to the presidency literature because it seeks to provide answers to that very important question.  Warber makes a compelling argument – based upon an extensive and impressive database – that presidents are rational actors and that there are rational reasons for why presidents would not issue orders ignorant of the current political context.  However, this argument is not altogether new.  Mayer (2001) notes that “[t]he key is that the use of the executive orders is conditioned on presidents’ overall political situation: presidents balance the benefits of issuing an order against the costs of doing so” (2001, at 220-221).  Nevertheless, EXECUTIVE ORDERS AND THE MODERN PRESIDENCY is a solidly written, well documented examination of the use of executive orders since 1936.  It is now the responsibility of scholars to broaden our understanding by investigating the role that interest groups, the bureaucracy, Congress, and the federal courts play in this process.

 

REFERENCES:

Howell, William G.  2003.  POWER WITHOUT PERSUASION: THE POLITICS OF DIRECT PRESIDENTIAL ACTION.  Princeton: Princeton University Press.

 

Krause, George A. and David B. Cohen.  1997.  “Presidential Use of Executive Orders, 1953-1994.”  25 AMERICAN POLITICS QUARTERLY 458-481.

 

Mayer, Kenneth.  1999.  “Executive Orders and Presidential Power.”  61 JOURNAL OF POLITICS 445-466.

 

Mayer, Kenneth.  2001.  WITH THE STROKE OF A PEN: EXECUTIVE ORDERS AND PRESIDENTIAL POWER.  Princeton: Princeton University Press.

*************************************************

© Copyright 2006 by the author, Kyle L. Kreider.