Presidential power, especially their unilateral authority, has been a fierce point of contention in the Obama era. Recently, 43 senators, all Republican, filed a friend-of-the-court brief challenging President Barack Obama’s, as they put it, “extra-constitutional assertion of a unilateral executive power” over immigration policy. The public, and many in the press, assume that the controversy centers on an executive order. This is incorrect.
In the case of Obama’s immigration reform, it deals with “prosecutorial discretion.” Regardless of the term, unilateral executive powers are a compelling, and long overdue, topic for national discussion. Despite this high level of attention to Obama’s unilateral actions on immigration, health care and gun reform, we have little understanding of this unique presidential power.
It is important to place the current controversy over immigration reform in a larger context of unilateral executive powers. Executive orders, signing statements, proclamations, national security directives and memorandum are all tools that presidents use to shape and influence the policymaking process. Unilateral powers are defined as an array of policies that presidents design without — and sometimes over the objections of — Congress or the courts.
The Louisiana Purchase, Peace Corps, racially integrating the military and many civil rights initiatives are all policies derived from direct presidential actions. These directives seemingly derive their authority from the Constitution or congressional statutes. While unilateral powers have been a unique part of the executive since the founding, their use has substantially increased in the era of the modern presidency. As presidential scholar William G. Howell, author of “Power without Persuasion: The Politics of Direct Presidential Action,” notes, the modern presidency is defined by its tendency and capacity to go it alone.
In fact, Obama recently issued a presidential memorandum creating a White House task force on curing cancer. (This did not receive much news coverage or outcry because it is difficult for the opposition to claim that wanting to cure cancer circumvents the Constitution.) However, the Constitution is silent on presidents legislating and acting on their own. While it is not constitutionally mandated, one could argue that executive unilateral powers are an acceptable practice because it is an implied constitutional power, similar to judicial review for the federal courts.
To date, Obama has issued 228 orders while in office. While he still has eight months left in office, this is less than his two immediate predecessors, Presidents Clinton and Bush, who issued 364 and 291 executive orders, respectively. Since George Washington, presidents have issued more than 15,000 executive orders. These range from the mundane, such as President Lyndon B. Johnson ordering the American flag to be flown half-mast to honor the death of British Prime Minister Winston Churchill, to the controversial, like Obama’s recent use of this power to curb gun violence.
Controversial or not, many executive orders have policy implications. For example, Obama, through Executive Order 13513, prohibited all federal employees and contractors from texting while driving.
One can only imagine what today’s presidential candidates would say during the time of either Roosevelt administrations. Teddy Roosevelt ramped up the use of executive orders during a period of the presidency taking a more active and leading role in the political system. His 1,081 executive orders far outnumbered the previous record holder, President Grant, at 217. Teddy’s distant cousin, Franklin D. Roosevelt, still holds the record for most executive orders issued by a president, however, at a total of 3,721.
The current uproar over the executive unilateral powers is nothing new. Both parties do not have a monopoly on fidelity to the Constitution. The degree of concern over the constitutional process is often dependent on each party’s position of power. In other words, where they currently stand depends on where they are sitting. While Republican presidential candidates claim to hold everything sacred in the Constitution, they, and their congressional allies that held a Republican majority in Congress, were pretty ambivalent about the robust use of unilateral powers during the Bush administration. Ultimately, the high rhetoric masks the crass partisanship.
This speaks to the importance of Congress, our first branch of government. Presidents are more interested in passing legislation because it is “stickier” compared to executive unilateral powers. Laws are more difficult to overturn; they have more staying power due to the American system of separation of powers.
For example, if the Affordable Care Act was merely the product of an executive order, then the next Republican to take the Oval Office would simply issue an executive order repealing it. Instead, presidents solidify their legacy in large part through the legislation they shepherd through Congress like FDR’s New Deal, LBJ’s Great Society, Ronald Reagan’s and George W. Bush’s tax cuts, etc.
However, as Obama has stated numerous times, when Congress refuses to act, presidents sometimes will. In an age of both parties refusing to acknowledge the existence of each other, presidents will keep acting alone. Until Congress tempers polarization and re-engages in the legislative process — seemingly the primary reason why they were elected in the first place — presidents will continue to rely on their informal unilateral powers to get something done.
Mark Major is the associate director of the McCourtney Institute for Democracy and a senior lecturer in the department of political science at Penn State. He is the author of “The Unilateral Presidency and the News Media: The Politics of Framing Executive Power.”