Unilateral Presidential Powers

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PRESIDENTIAL STUDIES QUARTERLY / June 2002Mayer, Price / UNILATERAL P RESIDENTIAL POWERS

Unilateral Presidential Powers:

Significant Executive Orders, 1949-99

KENNETH R. MAYER

KEVIN PRICE

University of WisconsinMadison

The conventional sense of presidential power remains anchored in Neustadts notion of per-

suasion in a fragmented constitutional system. Here, theauthors add to an emerging literature thatredirects attention to formal sources of presidential authority. They examine the frequency of execu-tiveordersfrom1949to1999andoffernewevidencethatpresidentsrelyonexecutiveorderstoeffectsignificant policy change and send strategic signals to other actors in the political system. They con-tend that executive orders enable presidents to recast the organization and activities of the federalgovernment and, at times, the larger contours of American politics. After assessing the political andtemporal logic behind this manifestation of institutional power, the authors conclude with severalobservations about the implications of the findings for the study of the American presidency.

In the typical renderingof theAmerican presidency, chief executivesencounter formi-

dable barriers to decisive leadership: a far-flung, entrenched bureaucracy (Wilson 1989); a

largely independent and often recalcitrant Congress (Mayhew 1974; Peterson 1990; Jones1994); an array of news media operating under distinctive incentive structures (Bennett

1988; Entman 1989); and a sporadically attentive, increasingly cynical public (Zaller 1992;

Black and Black 1994; Cooper 1999). Richard Neustadts (1990) description of presidential

power as the power to persuade captures the conventional scholarly wisdom of a con-

strained executive office. Indeed, many of us deploy the premise of the impossible presi-

dency as we teach undergraduates that presidents struggle to achieve and sustain success.

Presidents clearly labor under the dual burdens of high expectations and contested

power, a challengeapparent to many occupantsof theWhiteHouse. In a typically forthright

moment, President Truman suggested a man would be crazy to want the office if he knew

what it required (McCullough 1992). Decades earlier, President Grover Cleveland offered a

youngFranklinRoosevelt one wish as they shookhands: that the boy notgrowup tobepresi-

dent of the United States. Only a handful of postwar presidentsEisenhower, Reagan, and

367Presidential Studies Quarterly 32, no. 2 ( June) 2002 Center for the Study of the Presidency

Kennet h R. Mayer is profe ssor of pol iti cal s cience at the Universi ty of WisconsinMadison and aut hor ofWiththe Stroke of a Pen: Executive Orders and Presidential Power(Princeton University Press, 2001).

Kevin Price is a graduate student at the University of WisconsinMadison.

http://users.polisci.wisc.edu/kmayer/Professional/Unilateral%20Presidential%20Powers.pdf


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Clintonhave left office with public approval ratings substantially above the low point of

their respective administrations.

Notwithstanding the conventional view of the impossible presidency, political scien-tists have rediscovered arguments that chief executives enjoy meaningful unilateral author-

ity even in a system of separated institutions sharing power. Amassing a rich body of

descriptive data about unilateral presidential action, this literature has elaborated a theoreti-

cal framework to fit the pieces together and advance our understanding of presidential

power (Moe and Howell 1999; Howell 2000). Of particular interest is the executive order, a

tool presidents use to bring their constitutional or congressionally delegated powers into

play unilaterally. Formally, an executive order is a presidential directive that draws on the

presidents unique legal authority to require or authorize some action within the executive

branch (Mayer 1999, 445). Political scientists now recognize executive orders as important

unilateral policy tools, however constrained by legal and political considerations they may

be (Krause and Cohen 1997; Moe and Howell 1999; Mayer 1999, 2001; Deering and

Maltzman 1999).In this article, we examine the frequency of executive orders from 1949 to 1999, offer-

ing new evidence thatpresidents rely on executiveorders to implement significant domestic

andforeign policies.We contendthatexecutiveordersenablepresidentsto recast theorgani-

zation and activities of the federal government and, at times, the larger contours of Ameri-

can politics. We assess the political and temporal logic behind this manifestation of

institutional power and conclude with several observations about the implications of our

findings for the study and practice of the American presidency.

The Unilateral Presidency in Action

Careful observers of American politics cannot miss the persistent importance of uni-lateral presidential authority. To take a recent example, Bill Clintons 1996 establishment of

the 1.7 million acre Grand Staircase-Escalante National Monument reflected not only the

presidents programmatic ambitions but the imperatives of election-year politics. Clinton

recognized that the Republican Congress would certainly refuse to join him in a legislative

effort to protect large parts of the West from industrial development, but he recognized the

salience of western lands policy to his environmentalist supporters. In choosing to protect a

vast tract of land in Utah, Clinton sought political benefits (the bolstered support of envi-

ronment-minded voters) without incurring political costs (because he knew he would not

win Utahs electoral votes in any case). A University of Colorado professor called Clintons

decision a brave and true act, but a representative of the Utah Association of Local Gov-

ernments called it the most arrogant gesture I have seen in my lifetime and suggested that

theonly comparableact I can think ofis whena country isruledby a kingandhe sweepshis

hand across a map and says, It will be thus! (Maraniss 1996). By deploying the authority

vested in his office by the Antiquities Act, a 1906 law enacted to allow presidents to protect

historically significant sites, Clinton announced his commitment to an important element

of hisconstituency,buthe sought these broad electoral advantages by concentratingcosts in

368 PRESIDENTIAL STUDIES QUARTERLY / June 2002


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the mountain states of the West where he fully expected to lose in the 1996 election.1 The

political logic was clear, and his institutional authority allowed President Clinton to pursue

political and programmatic gains without incurring significant political costs (at least in theshort run; one might argue that mounting western opposition to the administrations lands

policy hindered Al Gores effort to make inroads in the region in the 2000 campaign).

Ashispresidencyreached its final stages, Bill Clinton usedexecutiveorders to bypassa

largely recalcitrantRepublicanCongress (Shogren 1998). Thepolitical incentives driving the

Clinton strategy were not lost on contemporaryobservers. Editorialwriters at theWashington

Times, for instance, noted that Clintons unilateral actions had two central objectives: To

appear relevant and to juice core constituents (Government by executive order 1998). In a

scathing indictmentof Clintonsuseof executiveorders, a contributor to theUnion Leaderof

Manchester, New Hampshire, opined that Chairman Clinton rules by decree in Peoples

Republic of America (Lessner 1998). One can make a principled case against presidents

exercise of unilateral authority to achieve wide-ranging policy objectives, but much of the

conservative opposition to the use of such authority when wielded by President Clintonreceded when George W. Bush considered using his authority to overturn several key

Clinton decisions. Like so many other features of the American political system,ones opin-

ion of ostensibly institutional questions turns in a fundamental sense on whose interests are

better servedby structural arrangements at a given moment (see Binder andSmith [1997] for

a similar argument in the specific context of the Senate filibuster).

During the second half of his second term, Bill Clinton resorted to executive orders

and other forms of unilateral authority to enact important policy changes, to draw what he

saw as politically helpful contrasts between hisparty andtheGOP, andto pursue an appeal-

ing programmatic legacy in the face of an opposition Congress. For example, he signed an

order requiring firms that provide health care to federal employees to abide by the require-

ments of the 1996 Kennedy-Kassebaum legislation, invoked the Antiquities Act to protect

land in the West, banned road building in large sections of the national forests, securedMedicare coverage for patients involved in clinical trials, and adopted water quality stan-

dards that set pollution limits based on local conditions.

Amid this flurry of executive activity, critics railed against Clinton for his liberal,

often creative, use of executive orders to steer the ship of state in ways and directions that

might notpass muster in thenormal system of checks andbalances (Paige 2000). But this is

precisely thepoint: like other presidentsbefore andafter, PresidentClintonused this reposi-

tory of power to achieve political and policy objectives that otherwise faced grim prospects.

When George W. Bush came to office in 2001, he immediately set to work overturning key

Clinton ordersthe Bush ban on aid to international family planning organizations drew

widespread attentionand testing the political waters for other opportunities to reverse

Clinton administration enactments such as thebanon road building in national forests, lim-

its on arsenic in drinking water, and new meat safety rules. The point is not that Bush can

overturn every Clinton action he finds objectionable; like Clinton himself, Bush will use

Mayer, Price / UNILATERAL PRESIDENTIAL POWERS 369

1. Largely obscure before Bill Clintons invocation of it in the Grand Staircase decision, the Antiquities Actachieveda degreeof cultural salience when it playeda keyrole in an episode of theNBC television seriesabout theWhite House, The West Wing.


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political and institutional calculations to probe for soft spots in his predecessors program.

Indeed, in July 2001, Bush and the House Republican leadership backed away from threats

to systematically reverse Clintons last-minute executive orders and regulatory policies(Eilperin 2001).

September11obliteratedthe previous calculus ofpresidentialpower. Bush, aswartime

presidents have done without exception, moved quickly to assert control over what was by

any definition a national crisis. Within weeks, he froze the assets of terrorist groups (Execu-

tive Order 13224, September 25, 2001), redefined the scope of airline security, established

the Office of Homeland Security within the Executive Office of the President (Executive

Order 13228, October 10, 2001), authorized military tribunals for trials of suspected terror-

ists (MilitaryOrderof November13,2001), revised Justice Department regulations concern-

ing the treatment of attorney-client conversations by certain federal detainees (Department

of Justice/Bureauof Prisons regulation of October 31, 2001), and began prosecuting the war

against the Taliban in Afghanistan. While some of these actions were clearly authorized by

Congress, some of themore significantstepswere taken unilaterally, either in the face of con-gressional acquiescence or even opposition.2

In its essentials, this sequence illustrates twoprocesses.The first is oneof duelingpresi-

dencies, each one exploiting the prerogatives of executive authority when political incen-

tives recommend it and other conventional means of achieving policy change appear

foreclosed. The second is one of executive initiative in response to a direct threat to U.S.

security. Both reflect a consistent pattern. As these familiar events suggest, presidents can

deploy their constitutional and statutory authority to reshape national governance and the

contours of the political system itself. In short, presidential power is more than the power to

persuade; it is also the power to command, though such authority is always contingent on

the political and institutional constraints of a given moment.

Executive Orders and Formal Presidential Power

Neustadts conception of presidential power remains dominant four decades after he

first developed the argument. In Presidential Power, Neustadt (1990) contends that presidents

cannot normally secure their objectives by executive fiat or command. Presidential com-

mandsdo not signify presidential power, Neustadt argues, but a painful last resort, a forced

response to the exhaustion of other remedies, suggestive less of mastery than of failure

(p.24). Instead, presidentsmust rely on their strategic bargaining skills to inducecompliance

from other keyactors, many of whom have independent bases of political support andinsti-

tutional authority. In our view, this dichotomy between formal power and persuasion is

artificial; the twocategories areneither mutually exclusivenor exhaustiveof allpossible ave-

nues of presidential influence. Here, we merge conceptionsof presidential power in particu-

lar with more theoretical work about the nature ofpoliticalpower in general.


2.One orderhadlittle todo with national securityor thewar againstterrorism.In October, GeorgeW. Bushissued an executiveorder (ExecutiveOrder13233, November5, 2001) pertainingto thePresidentialRecordsAct. Init he, in effect, limited access to the papers of ex-presidents beyond the twelve-year period specified in that act andgave both ex-presidents and current presidents a concurrent veto over release of disputed papers.


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Most accounts of the presidency and its occupants stress the decidedly limited extent

of direct presidential authority, emphasizing instead the requisite exercise of informal skills

and persuasive political leadership (see Fisher [1995]; Edwards, Barrett, and Peake [1997];and Cooper [1986] for noteworthy exceptions. An emerging line of research following

Krehbiel [1998] also attends systematically to the programmatic implications of the presi-

dential veto; see Cameron [2000] for example). In Presidential Power, Richard Neustadt

(1990) observed that even presidents most explicit formal prerogativesthe veto, the mili-

tary order, the federal directiverequire compliance from others: Literally, Neustadt

writes, no orders carry themselves out; self-executed actually means executed by others

(p. 17). As a consequence, virtually every case of presidential action involves persuading

other political actors. In practice, then, even the exercise of unilateral authority requires a

president to shape the perceptions and political calculations of other actors to secure their

cooperation. Our point here is not to question the enduring relevance of Neustadts con-

struct but to advancean argument connectingthe study of thepresidency to the tradition of

public law in which institutional prerogatives played a central analytical role.Before Neustadt introduced this notion of persuasive power, Edward Corwin (1948)

noted the ambiguity of the constitutional provision that the president take care that the

laws be faithfully executed. Executed, Corwin wondered, by others? (p. 4). As in most

forms of institutional authority, the exercise of presidential poweris indirect in Neustadts

literal sense that it requires compliancefrom anynumberof distinctly situated actors. Never-

theless, such compliance is highly likely whenpresidents marshal the formal powersof their

office. Within constraints established by political, organizational, and legal circumstances,

presidents enjoy substantial latitude in exercising official privileges such as the executive

order (Mayer 1999; Moe 1993; Moe and Howell 1999).

How might presidents take advantage of this deference, and to what ends? A president

can commit strategic resources to induce compliance in a specific interaction with another

political actor (a transaction, to use the new institutional economics, or NIE, parlance).Such a principal-agent relationship raisesmanyof the sameproblems thatattend to contrac-

tual relationships among economic actors: specifying the terms of agreement, monitoring

behavior, enforcement, moral hazard, shirking. An alternative to this sort of case-by-case

persuasion is to commit resources to create new institutional patterns or procedural mecha-

nisms and to create new and possibly enduring arrangements that shape the incentives of

other actors. In the NIE framework, firms are a way to institutionalize contractual interac-

tions between a principal and an agent. In political settings, argues Moe (1993), institutions

can serve much the same function.

By using their formal powers, presidents structure the institutions that surround them

to standardize their interactions with other actors. To convert the bargains thatwould other-

wise require skill andscarce political capital into manageable leadership opportunities, presi-

dents seek routines that encourage compliance from other actors. By creating institutions

and processes thatmake these once-expensive bargainspart of the political landscape, presi-

dents alter default outcomes, leaving it to otheractors to expend resources to undo what the

president has done.

If presidents may use the rhetorical, personal, and persuasive resources of the office,

they may also take advantage of the formal prerogatives vested in the chief executive by the



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Constitution, statutory grants of authority, and the evolution of relevant legal doctrine.

(Cash 1963; Cross 1988; Fleishman andAufses1976; Jack 1986; Neighbors1964; Rosenberg

1981; Sunstein 1981; Tauber 1982). To the extent that executive orders alter institutionalstructures or processes, they provide potent resources for presidential leadership based on

formalauthority. In short, presidents enjoy significantbutnotunfettered latitude in govern-

ing the government through the issuance of executive orders.

The administrative authority vested in the modern presidency is significant in its own

right, but we claim that the exercise of intragovernment powers can yield consequences for

the larger political system as well. In a highly permeable system in which executive policy

decisions can spill over into other institutions and the broad political culture, executive

orders can effect changes that presidents may or may not have intendedor even consid-

eredin the first place (Weir1989). In other words,politically significant executiveordersare

not merely executivephenomena. As illustratedby the long history of executive orders con-

cerning integration and civil rightsTruman ordering the integration of the armed forces,

Kennedy and Johnson requiring affirmative action in federal contracting, Reagan attempt-ing to limit the role of ethnic preferences in federal affirmative action programsthese

instruments of presidential authority can animate contending forces, facilitate innovations

in the legislative process, codify ideological commitments, and drive social change.

Obviously, formal and informal presidential powers are not mutually exclusive. The

exercise of formal powers at one point can affect subsequent opportunities to exploit infor-

mal resources. As Neustadt (1990,4) writes, the crucial question for any president is whether

he will haveinfluence when he wants it.Recognizing thedynamicquality of national leader-

ship, weconsider executiveordersto be substantivelyand theoreticallyimportant manifesta-

tions of presidential discretion. Shaped by political calculations, advisors offerings, and the

possibility of countervailing actions by other institutional actors, executive orders reflect a

uniquely presidential mode of action. Each order bears the chief executives signature in a

symbolically telling and potentially clear statement of presidential priorities.Executive orders provide an important link to a crucial result of presidential leader-

ship: public policy. According to Paul Light (1993, 161), lasting programmatic innovations

represent the most important legacy of any administration. Other types of presidential

legaciessymbolic (Tulis 1987; Kernell 1986), partisan (Skowronek 1993; Milkis 1993), and

organizational (Moe 1985; Weko 1995)also provide telling clues to the effects of presiden-

tial leadership on the larger political system. Executive orders, of course, can impinge on

each of these dimensions. It is important to note that the next occupant of the White House

may summarily retract a presidents executive orders. Any decision to overturn an existing

order will be shapedby the usual suspectspolitical, organizational, and legal concernsbut

presidents possess the authority to do so if they wish. Statutes may be overturned, but such

an effort requires much more of its proponents as they negotiate the complications of the

congressional lawmaking process (Rauch 1994).

In the simplest sense, executive orders arepresidential directives that require or autho-

rize some action within the executive branch of the federal government. Presidents have

used them to reorganize executive branch agencies, alter administrative and regulatory pro-

cesses, shape legislative interpretation and implementation, and make policy within the

bounds of their constitutional or statutory authority. Those bounds are somewhat fluid, as



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the Supreme Court has generallybut not exclusively taken an expansive viewof presidential

discretion. Recent research into these unilateral executive powers has found consistent evi-

dence that presidents utilize them for strategic purposes. The overall frequency of executiveorder issuance varies in predictable ways, as presidents tend to issue more ordersand thus

rely more heavily on their own powerswhen unpopular, when faced with crises that

demand swift and decisive action, when running for reelection, and immediately after the

White House switches party control (Mayer 1999).

But it is possible to extend this research by sifting through the population of executive

orders to isolate especially significant directives. From a theoretical standpoint, one should

consider not simply the number of executive orders a president issueseven though such a

measure is a useful indicator of overall energybut how many of those orders are recognized

as genuinely important. Over the past four decades, presidents have issued roughly forty to

sixty executive ordersperyear, some important,othersquite mundane. Ordersclearly recog-

nized as significantsuch as Johnsons ExecutiveOrder 11246,which laid the frameworkfor

federal affirmative action programsstand in the record alongside undeniably trivial orders(such as Fords Executive Order 11943, which merely corrected a typographical error in an

earlier order settingsalary levels for federal employees). The noise level of these unimportant

orders might obscure substantive patterns among the important ones. In what follows, we

describe our data and methods, provide the results of our statistical estimations, and con-

clude with several theoretical points concerning the American presidency.

Isolating Significant Executive Orders

Our first cut at the data analysis begins in March 1936, the first monthin which execu-

tive orders were systematically recorded in the Federal Register. Determining which of the

roughly seventy-five hundred executive orders issued since then qualify as significant is aninexact andsubjectiveprocess.

3Nevertheless, it is possible to outline several criteria that per-

mit distinctions between relatively significant and relatively trivial orders.

In Divided We Govern, David Mayhew (1991) constructed an inventory of major legis-

lative enactments from 1946 to 1990. Using a two-stage process, Mayhew first drew on jour-

nalists year-end accounts of legislative action to note whether contemporary observers

considered a law significant. In a second pass, he looked at retrospective evaluations by pol-

icy experts in various fields: did the legislation attract scholarly attention as something that

changed a policy domain in important ways? Based on these criteria,Mayhew identified267

acts as particularly important.4

In his study of executive-legislative relations, Mark Peterson (1990) coded presidential

policy initiatives as innovative or as part of a broadly important program. Here, Petersons


3. The first executive order to appear in the Federal Registerwas number 5,674. The final order in the series,issued December 21, 1999, was number 13,144. The total population of orders is thus 7,471 orders.

4.Mayhew (1991, 49).Duringthis span,Congress enacted a totalof 24,671bills, of which 15,875were publicandtheremainder private (datafromOrnstein, Mann,and Malbin1996, 165).ByMayhewscriteria,just over 1 per-cent of these bills constituted major legislation (267 out of 24,671).


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declaration of importance depended on whether specialized sources of political coverage

(Congressional Quarterly, CQ Almanac, National Journal) mentioned the policy. A measures

level of innovation turnedon whether theproposal departed significantly from existing pol-icy. Inhis sampleofpresidential proposals,Peterson found thatmore thanone in five consti-

tuted issues of the greatest consequence.

Working with a random sample of 1,028 orders issued between March 1936 and

December 1999, we characterized orders within that sample as significant if they met any

oneof sixcriteria.5 First,we consideredwhether theorder received attention at the time from

the press or from other political actors. At times, journalistic coverage has focused more on

the subject of an order than on the order itself. When Eisenhower placed the Arkansas

National Guard under federal control to force the integration of LittleRockschools, he took

actionwithina much broader legal andpoliticalprocess. Press accounts at the time tendedto

focus not on the fact that Eisenhower had issued an executive order but rather on the sub-

stance of what he did.6 In looking at press attention, we considered both the national press

(the NewYorkTimes, Washington Post, orWall Street Journal) andmore specialized publicationscovering politics or specific professional fields.

Second, we ascertained whether Congress considered an order important enough to

justify committee hearings and whether specific legislation to override the order made it to

the floorof either chamber. Congressional hearings, in particular, havelong beenrecognized

as an importantmeasure of the issues legislatorsdeemsignificant (Edwards andWood1999).

Again, some orders receive more congressional attention than others, and many pass unno-

ticed, but it is not unusual for legislators to pay attention to those orders that might threaten

congressional prerogatives.

Third, we asked if students of law or the presidency refer to the order (or a class of

orders) in their scholarly work. Here, we effectively replicate Mayhews (1991) second

sweepof expertopinion. In this regard, the legal literature is extensive, thoughthesocial sci-

ence and history literatures are less developed. Nevertheless, the extent to which an orderreceives mention in one or more of these forums is an indicator of importance.For example,

we counted all of the emergency seizures of private propertyduring wartime or notas sig-

nificant. While someof theseseizuresmade the news at thetimeand others did not, Rossiter

(1956, 59) depicted them as a spectacular display [of] the Presidents power of martial

rule.7 Similarly, Corwin (1948, 301) dealt at length with the wartime property seizures as an

example of presidents intruding into the clearly legislative territory of industrial policy. In


5.Theoriginalsample wasonethousandorders, drawnfromtheMarch1936 toDecember1995period.Thisyielded a sample of 17.6 percent of the population. We later updated the sample, drawing the same fraction of allorders issued between January 1996 and December 1999. The resulting pooled sample can be considered a single

random sample for the purposes of statistical inference.6. Conversely, the press often refers to unilateral presidential actions in general as executive orders, evenwhen the actions do not take that form. When Clinton reversed the existing ban on fetal tissue research and over-turned a ban on abortions at overseas military hospitals, he did so through presidential directives to agency heads,not through formal executive orders. Nevertheless, these actions were widely reported to be executive orders.

7. Rossiter (1956, 60) discounts the fact that in 1943, Congress granted the president formal legislativeauthority to make such seizures, arguing that since Roosevelt had relied on the commander-in-chief power to takeover plants well before this act, the delegation was at best declaratory, even supererogatory.


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addition, we examined the law review literature to determine whether an order spurred any

attention by legal scholars.

Fourth, we identified cases in which presidents themselves demonstrated in publicstatements or emphasis in the public record that they considered an order important. Presi-

dents haveplaced varyingemphasis on executive orders. Carter andReagan tended to publi-

cize most of their orders, placing them in their collections of public papers. Others did not

routinely publicize their orders, instead releasing order texts and public statements only for

those they considered especially noteworthy. We thus include orders about which a presi-

dent made a nonroutine statement (that did not include typical press releases).

Fifth, we determine if the order triggered federal litigation. A few orders have gener-

ated legal challenges of major importanceYoungstown v. Sawyer, Korematsu v. U.S., and

E.P.A. v.Mink, for example. A lawsuit is an indication that a plaintiff considered the order a

sufficiently important infringement on some right or interest to seek judicial remedy. Simi-

larly, a Supreme Courtor appealscourtdecision is clear evidence thatthe judiciaryconsiders

thecase important andcontroversial as a matterof law. ExecutiveOrder 11246, for example,has been cited in more than three hundred federal district court cases since 1965. In deploy-

ing this criterion,we identify executive-order-related litigationas catalogued in theLexis and

Westlaw databases.

Finally, we ask whether an order created a new institution with substantive policy

responsibility, expanded or contracted significant private rights, or constituted a significant

departure from existing government policy. Again, we distinguish between orders creating

ceremonial or symbolic organizations (such as the American Battle Monuments Commis-

sion) from those establishing or reorganizing agencies with substantive duties (such as the

Office of War Information or the Office of Strategic Services).

We counted anorder as significantif itmet at least one of theconditionsoutlined here:

press attention, congressional notice, scholarly treatment, presidential emphasis, litigation,

or creation of institutionswith substantive policy responsibility.Most significantordersmetmore than one of these criteria. To be sure, this process involved subjective judgments, but

we attempted throughout to adopt a conservative view of what constituted a significant

order. In cases of ambiguity about an orders significance, we considered it insignificant. We

deemed insignificant those orders that exempted individuals from retirement or other civil

service requirements and all but four public land orders. In making these designations, we

erred on the side of underestimating the number of significant orders.

According to these criteria, 149 of the 1,028 executive orders in the original sam-

pleabout one in sevenqualify as significant (the appendix contains a list of these orders,

giving the number, date, and title of each). From this sample statistic, we can estimate within

a 3 percent margin of error that 1,083 significant executive orders were issued during the

sixty-five-year period from 1936 to 2000, an average of about 17 per year.

We canuse thisdatabase of significant executiveorders to understandthepolitical and

structural forces thatprod presidents to issue them. Extending Mayers (1999,2001) analysis

of the full sample, our workinghypothesis is that the frequency of importantorderswill vary

with the strategic context in which presidents operate. In the ensuing section, we describe

our models and the results of our statistical analysis.



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Models and Results

Because the number of executive orders issued in any year can only assumenonnegative integer values, an event-count model provides an appropriate estimation pro-

cedure forourdata. Specifying theappropriate count model requires care because of the rea-

sonably strict assumptions required to invoke the Poisson model (Greene 1997; King 1989).

In the Poisson, one assumes no contagion among observations. In other words, the Poisson

requires that each significant order be statistically independentof allothers. In themore gen-

eral negative binomial model, a dispersion parameter is estimated to account for any con-tagion in the data. The Poisson is thus a special case of the negative binomial appropriate

only under certain substantive and technical circumstances. As Tables 1 and 2 suggest, the

Poisson model is entirely adequate for our data seta likelihood ratio test reveals that the

negative binomial provides no improvement over the Poisson.

Drawing on previous research concerning the exercise of unilateral presidential

authority, our primary theoretical expectations concern the political and institutional envi-ronment in which presidents operate. We begin with the observation that the ambiguities of

the presidents constitutional powers, combined with the assumption that presidents are

motivated to assert control over governing structures, provide opportunities for presidents

to probe theboundaries of theirpower and extend those boundaries when they can. A presi-

dents proclivity to do so depends on the specifics of his political context and his relation-

ship with other participants in the governing process.8

First, we expect newly elected presidents to issue relatively more significant executive

orders. This pattern should be more pronounced in cases where party control of the presi-

dency has just switched. With their partisan objectives frustrated by the previous regime,

presidents reclaiming the White House for their party should issue important orders in an

effort to demonstrate their authenticity to campaign supporters and important segments of

their electoral coalitions. They should also try to reverse the policies of their predecessors.

For example, President Clinton promised to issue an order permitting homosexuals to serve

in the military, as part of a larger effort to consolidateand rewardthe political support of

the gay and lesbian community. Owing to congressional and military opposition, of course,

he stopped well short of the policy he first proposed, opting instead for the much weaker

dont ask, dont tell policy that seemed to satisfy no one. But the landscape changed with

even this step, as during the 2000 campaign Vice President Al Gore vowed to extend the pol-

icy and George W. Bush promised to reverse it.

Notwithstanding this case, however, new presidents should exercise their unilateral

powers with unusual vigor soon after assuming office. Executive orders are notable because

of their potential transience: successors in theWhiteHousemay simplyoverturn previously

issued orders with new orders of their own. In light of this core institutional characteristic,and in light of the political logic underlying early issuance, new presidents should be more

likely to sign important executive orders in the first months of their terms.


8. For an explication of these two threads, see Mayer (2001) and Moe and Howell (1999).


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Additional theoretical expectations include the following. First, new presidents who

have just wrested control of the White House from the other party should issue significant

orders with greater frequency than new presidents who inherit the White House from theirown party (or from themselves in the case of second-term presidents). Second, presidents

runningfor reelection should seek to avoid unnecessary controversy by issuing fewer signifi-

cant executive orders. Conversely, presidents not running for reelection should issue more

orders in an effort to create some programmaticor institutionallegacy in thewaningmonths

of their administrations.Third, if Neustadt (1990)was right thatpresidentsneed robustpub-

licprestige togoverneffectively in theseparatedsystem, approval ratingsshouldbe inversely

related to the number of significant executive orders issued in a given year. Fourth, if presi-

dents encounter recalcitrant opposition parties in Congress, divided government should

encourage the issuance of significant executive orders. Finally, we expect Democrats to pur-

sue their typically more assertive programmatic ambitionsby issuingmore orders than their

Republican counterparts.

For the event-count model, the coefficient vector is

i = exp(xi, ),

where

xi = b0 + b1First Change + b2First No Change + b3Reelection +

b4No Reelection + b5Public Approval + b6Divided Government+ b7Party + i.

Variable Descriptions and Values

Orderst: number of significant executive orders issued in yeartfrom 1949 to 1999.FirstChange:1 duringthe firstyear ofa newadministrationwhenpartycontrolhaschanged fromthe previous administration, 0 otherwise.

First No Change: 1 during the first year of a new administration when party control has notchanged from the previous administration, 0 otherwise.

Reelection: 1 in presidential election year, when incumbent president is running for reelection; 0otherwise.

No Reelection: 1 in presidential election year, when incumbent president is running for reelec-tion; 0 otherwise.

Public Approval: Average presidential approval rating by year, as measured by the Gallup poll.Divided Government: 1 if the presidents party does not control both houses of Congress, 0

otherwise.Party: 1 if the president is a Democrat, 0 otherwise.

Although the full series of executive order begins in 1936, we were forced to begin ourevent count analysis in 1949, the year public approval ratings for presidents became gener-

ally available. While this reduces the number of significant executive orders in the sample,

we believe the results remain valid. The truncationeliminates twoclearly extraordinary peri-

odsthe Roosevelt presidency and World War IIin which an unusually large number of

orders were issued; including them in the model would overestimate the impact of our inde-



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pendentvariables. Given that the frequencyof order issuance hasbeenrelatively stable since

1949, our model is more likely to produce coefficient estimates that are comparable across

time.

9

We do not include indicator variables for each presidency for two reasons. Theo-

retically, we aremuch more interested in thebehavioral regularities than in the idiosyncratic

exercise of presidential discretion. Statistically, we found no telling results from presidency

dummies (with the exception of the Carter years, which we believe stand out because of the

number of orders relating to the Iranian Hostage crisis). We want to look beyond specific

presidencies to the larger contours of the institution and the prerogative of the executive

order.

As the results from the first model presented in Table 1 indicate, significant executive

orders respond in predictable ways to the political and institutional circumstances in which

presidents operate. First, a new president who has regained control of the White House for

his party issues more orders, but presidents in the first year of a term not following a party

switch clearly issue fewer important orders. Though the coefficients fall short of statisticalsignificance (note,however, thateach is larger than its standard error), fourth-year presidents

tendto issue fewer major executive orders. Though divided government and partisanaffilia-

tion do not seem to relate systematically to order issuance, public approval appears very

important. As Neustadt (1990) suggested, presidents who can marshal public prestige need

not resort to this version of command to achieve desired outcomes.

To ascertain thestatistical leveragegeneratedby ourdistinction between first-year pres-

idents with and without changes in party control, we conducted a likelihood ratio test of the

twomodelspresented in Table1. By calculating themarginal gain in the likelihood function

in the more fully specified model 1, one can determine whether that full specification yields

meaningful information. In this case, it clearly does; the LR statistic is 6.96 (distributed as2

with onedegreeof freedom,p < .01). We can thus conclude that the specification inmodel 1

provides both statistically and substantively meaningful information.To interpret the substantive effects of the coefficients presented in model 1, we calcu-

lated predictedprobabilities for a group of plausibleoutcomes (from zero to four significant

orders in a year) given certain covariate profiles. We present these results in Table 2.

Conclusion

A growingliterature contends thatpresidentsuse executiveorders to achieve program-

matic and institutional objectives, and that these instruments of unilateral authority

empowerchiefexecutives in a separated systemnot typically conducive to decisive presiden-


9. Because of the small absolute number of significant executive orders over the period, we replicated theevent-count analysis using King and Zengs (2001) rare events data method. Although the rare-events model usesa logistic regressionratherthan an Poissonevent-countmodel, theoverall logicis comparable: underthe rare-eventsmethod, wearepredicting theprobabilitythat a significant executiveorderoccurs in a given month,rather than anestimate of the number of orders issued, given a particular configuration of independent variables. There were nosubstantive differences in the overall predictive power of the model or in the coefficient estimates between the twomodels, and we concluded that the event count model is the more appropriate method given the nature of ourdependent variable.


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tial leadership. Our results showthat theuseof significant executiveorders relates in theoret-

ically tractable ways to a presidents political environment. As our statistical findings

suggest, presidents whocan leverage robustpublic approval resort to the executiveorder less

frequently than do those who lack strong popular support. In addition, partisanship and theideological differences reflected in partisan affiliations affectorder issuance in sensible ways.

New presidents recapturing the White House for their party tend to issue more orders rela-

tive to those operating amid partisan continuity.

In asserting such a conclusion, we are hardly suggesting that scholars should cast aside

Neustadts (1990) construct of presidential persuasion; the enduring notion that presidents


TABLE 1

Poisson Regression Results

Model 1 Model 2

Constant 2.00*** (.566) 2.02*** (.567)

First Change .532** (.309)

First No Change .639* (.407)

First Year .001 (.259)

Reelection .338 (.319) .323 (.319)

No Reelection .430 (.407) .435 (.407)

Public Approval .026*** (.009) .023*** (.009)

Divided Government .085 (.319) .126 (.310)

Party .205 (.308) .085 (.308)

n 51 51

Log likelihood 81.84 85.32

Likelihood ratio 2 17.87** 10.92*

Note:The dependentvariable is the numberof significantexecutiveorders issuedin a calendaryear, with appropri-ate adjustments for the month of January in the last year of a presidency. Cell entries are maximum likeli-hood coefficients, with standard errors in parentheses.

*p < .10. **p < .05. ***p < .01 (one-tailed tests for coefficients, two-tailed tests for likelihood ratio).

TABLE 2

Predicted Probabilities

Number of Significant Orders per Year

Covariate Profile Zero One Two Three Four

Public approval at 30 percent .295 .360 .220 .089 .027



First year with party change .292 .359 .222 .091 .028

First year without party change .941 .057 .002 .000 .000

Note: Cell entries are predicted probabilities for each outcome under specific covariate profiles using the resultsfrom model 1 in Table 1. For the public approval calculations, we hold all other variables at zero. For the first-yearcalculations, we hold the other indicator variables at zero and public approval at 50 percent.


14/20

operate in a contested, fragmented system remainsvalid and important.Nevertheless, presi-

dential power turns not just on the executives persuasive capacities but on the constitu-

tional and statutory sources of unilateral authority on which any president might draw.Today, students of the presidency might profitably explore both facets of presidential

powerunilateral authority, here manifested in unusually important executive orders, and

persuasive authority and agenda control, as articulated most clearly in Neustadts work.

Whatever the subtleties of significant executive orders, the emerging literature on formal

executive authority suggests that students of the American presidency should revise the pre-

vailing view of presidential power to include the brute facts of presidents important unilat-

eral capacities.

Appendix

List of Significant Executive Orders

Order Date Title/Description

7856 Mar. 31, 1938 Rules Governing the Granting and Issuing of Passports in the

United States

8233 Sept. 5, 1939 Prescribing Regulations Governing the Enforcement of the

Neutrality of the United States

8344 Feb. 11, 1940 Withdrawal of Public Land for ClassificationAlaska

8629 Jan. 7, 1941 Establishing the Office of Production Management

8683 Feb. 14, 1941 Establishing Naval Defensive Sea Areas around Naval Airspace

Reservations

8693 Feb. 25, 1941 Prescribing Regulations Concerning the Exportation of Articles

and Materials

8751 May 2, 1941 Establishing the Division of Defense Aid Reports in the Office for

Emergency Management of the E.O.P.8773 June 9, 1941 Government Possession and ControlNorth American Aviation,

Inc.

8785 June 14, 1941 Regulating Transactions in Foreign Exchange and Foreign-Owned

Property

8802 June 25, 1941 Equal Employment in Government Contracting, Establishing the

Fair Employment Practices Committee

8890 Sept. 3, 1941 Establishing the Office of Defense Health and Welfare

8944 Nov. 19, 1941 Government possession and control, Grand River Dam Authority

9017 Jan. 12, 1942 Establishing the National War Labor Board

9040 Jan. 24, 1942 Adding duties to the War Production Board

9083 Feb. 28, 1942 Transfer of authority for maritime functions

9102 Mar. 18, 1942 Establishing the War Relocation Authority

9253 Oct. 9, 1942 Administration of Contracts of the Immigration and Naturalization

Service9279 Dec. 5, 1942 Mobilization of National Manpower, Administration of Selective

Service System

9337 Apr. 4, 1943 Transfer of authority to withdraw public lands to the Secretary of

the Interior

9341 May 13, 1943 Government possession and control, American Railroad Co. Of

Puerto Rico



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9351 June 14, 1943 Government possession and control, Howarth Pivoted Bearings Co.

9387 Oct. 15, 1943 Establishing Advisory Board on Just Compensation9425 Feb. 19, 1944 Establishing Surplus War Property Administration

9427 Feb. 24, 1944 Establishing Retraining and Reemployment Administration

9437 Apr. 18, 1944 Revocation of Executive Order 9165 (Protection of Essential

Facilities from Sabotage and Other Destructive Acts)

9459 Aug. 3, 1944 Government possession and control, Philadelphia Transportation

Co.

9474 Aug. 31, 1944 Government possession and control, Ford Colleries Co. and

Rochester and Pittsburgh Coal Co.

9476 Sept. 3, 1944 Government possession and control, certain coal companies

9484 Sept. 23, 1944 Government possession and control, Farrell Cheek Steel Co.

9505 Dec. 6, 1944 Government possession and control, Cudahy Brothers Co.

9508 Dec. 27, 1944 Government possession and control, Montgomery Ward & Co.

9511 Jan. 12, 1945 Government possession and control, Cleveland Electric

Illuminating Co.9523 Feb. 18, 1945 Government possession and control, American Enka Corp.

9570 June 14, 1945 Government possession and control, Scranton Transit Co.

9593 July 25, 1945 Government possession and control, Springfield Plywood Corp.

9595 July 30, 1945 Government possession and control, United States Rubber Co.

9607 Aug. 30, 1945 Revoking forty-eight-hour minimum work week

9608 Aug. 31, 1945 Termination of Office of War Information

9621 Sept. 21, 1945 Termination of Office of Strategic Services and transfer of its

functions

9622 Sept. 21, 1945 Revocation of Executive Order 9103 (Publication and Use of

Federal Statistical Information)

9639 Sept. 29, 1945 Government possession and control, certain petroleum companies

9661 Nov. 29, 1945 Government possession and control, Great Lakes Towing Co.

9672 Dec. 21, 1945 Establishment of National Wage Stabilization Board, Termination

of the National War Labor Board9674 Jan. 4, 1946 Liquidation of War Agencies

9691 Feb. 4, 1946 Resumption of peacetime civil service regulations

9801 Nov. 9, 1946 Removal of wage and price controls

9808 Dec. 5, 1946 Establishment of the Presidents Committee on Civil Rights

9863 May 31, 1946 Designation of certain international organizations as having

diplomatic privileges

9981 July 26, 1946 Establishing the Presidents Committee on Equality of Treatment

and Opportunity in the Armed Services

9989 Aug. 20, 1948 Transferring authority over blocked assets to the Attorney General

10028 Dec. 12, 1949 Defining Noncombatant Service and Noncombatant Training

10152 Aug. 17, 1950 Incentive Pay for Hazardous Duty

10161 Sept. 9, 1950 Delegating functions under the Defense Production Act

10173 Oct. 18, 1950 Protection of vessels, harbors, ports, and waterfront facilities of the

United States

10193 Dec. 16, 1950 Providing for the conduct of the mobilization effort

10210 Feb. 2, 1951 Authorizing exercise of powers in Title II of First War Powers Act,

1941

10251 June 7, 1951 Suspension of eight-hour law for certain Department of Defense

personnel



(continued)


16/20

10277 Aug. 1, 1951 Amending regulations regarding protection of vessels, harbors,

ports, and waterfront facilities of the United States

10352 May 19, 1952 Amending regulations regarding protection of vessels, harbors,

ports, and waterfront facilities of the United States

10433 Feb. 4, 1953 Further providing for administration of Defense Production Act

10460 June 16, 1953 Telecommunications authority of the Director of Defense

Mobilization

10483 Sept. 2, 1953 Establishing the Operations Coordinating Board

10621 July 1, 1955 Delegating functions to the Secretary of Defense

10816 May 7, 1959 Safeguarding information in the interests of the defense of the

United Statesamendment of previous executive order

10842 Oct. 6, 1959 Creating board of inquiry on labor disputes in the maritime

industry10903 Jan. 9, 1961 Delegating authorityregulations relating to overseas allowances

and benefits to government personnel

10924 Mar. 1, 1961 Establishing the Peace Corps in the Department of State

10938 May 4, 1961 Establishing the Presidents Foreign Intelligence Advisory Board

10939 May 5, 1961 Ethical standards for government officials

11076 Jan. 15, 1963 Establishing the Presidents Advisory Commission on Narcotic and

Drug Abuse

11098 Feb. 14, 1963 Amending Selective Service regulations

11141 Feb. 12, 1964 Declaring a public policy against discrimination on the basis of age

11296 Aug. 10, 1966 Evaluating flood hazards in federal buildings and properties

11327 Feb. 15, 1967 Authority to order ready reserve to active duty

11375 Oct. 13, 1966 Amending Executive Order 11246, equal employment opportunity

11404 Apr. 7. 1968 Restoration of law and order in the State of Illinois

11435 Nov. 11, 1968 Designating the Secretary of Interior to administer criminal andcivil law in Native American territories

11458 Mar. 3, 1969 National Program for Minority Business Enterprise

11490 Oct. 28, 1969 Assigning emergency preparedness functions

11512 Feb. 27, 1970 Federal space planning, acquisition, and management

11514 Mar. 5, 1970 Protection and enhancement of environmental quality

11527 Apr. 23, 1970 Amending Selective Service regulations

11593 May 13, 1971 Protection and enhancement of the cultural environment

11615 Aug. 15, 1971 Stabilization of prices, rents, wages, and salaries

11636 Dec. 17, 1971 Employee-management relations in the Foreign Service

11697 Dec. 17, 1973 Inspection of income tax returns by the Department of Agriculture

11785 June 4, 1974 Amending Executive Order 10450security requirements for

government employment

11796 July 30, 1974 Regulation of exports

11808 Sept. 30, 1974 Establishing the Presidents Economic Policy Board11810 Sept. 30, 1974 Regulation of exports

11832 Jan. 9, 1975 Establishing National Commission on the Observance of

International Womens Year, 1975

11888 Nov. 24, 1975 Implementing the Generalized System of Preferences

11911 Apr. 13, 1976 Preservation of endangered species

11958 Jan. 18, 1977 Administration of arms export controls


Appendix Continued



17/20

11992 May 24, 1977 Establishing the Committee on Selection of Federal Judicial

Officers12041 Feb. 25, 1978 Amending the Generalized System of Preferences

12059 May 11, 1978 Establishing the United States Circuit Judge Nominating

Commission

12072 Aug. 16, 1978 Federal space management

12088 Oct. 13, 1978 Federal compliance with pollution control standards

12114 Jan. 4, 1979 Environmental effects abroad of major federal actions

12133 May 9, 1979 Drug policy functions

12139 May 23, 1979 Foreign intelligence electronic surveillance

12143 June 22, 1979 Maintaining unofficial relations with the people of Taiwan

12160 Sept. 26, 1979 Enhancement and coordination of federal consumer programs

12183 Dec. 16, 1979 Revoking Rhodesian sanctions

12202 Mar. 18, 1980 Establishing the Nuclear Safety Oversight Committee

12217 June 18, 1980 Federal compliance with fuel use prohibitions

12232 Aug. 8, 1980 Historically Black Colleges and Universities12250 Nov. 2, 1980 Coordination of nondiscrimination laws

12264 Jan. 15, 1981 Federal policy on export of banned or significantly restricted

substances

12279 Jan. 19, 1981 Transfer of Iranian assets held by domestic banks

12288 Jan. 29, 1981 Terminating the Wage and Price Regulatory Program

12296 Mar. 2, 1981 Establishing the Presidents Economic Policy Advisory Board

12331 Oct. 20, 1981 Presidents Foreign Intelligence Advisory Board

12340 May 25, 1980 Amendments to the Manual for Courts Martial

12369 June 30, 1980 Establishing the Presidents Private Sector Survey on Cost Control

in the Federal Government (Grace Commission)

12400 Dec. 3, 1983 Establishing the Presidents Commission on Strategic Forces

12434 July 19, 1984 Alaskan railroad rates

12502 Jan. 28, 1985 Establishing the Chemical Warfare Review Commission

12525 July 12, 1985 Emergency authority for export controls12541 Dec. 20, 1985 Continuation of export control regulations

12544 Jan. 8, 1986 Blocking Libyan Government property in the United States or held

by U.S. persons

12548 Feb. 14, 1986 Grazing fees on federal lands

12615 Nov. 19, 1987 Performance of commercial activities by the federal government

12632 Mar. 23, 1988 Federal labor management relations program

12661 Dec, 27, 1988 Implementing the Omnibus Trade and Competitiveness Act of

1988

12262 Dec. 31, 1988 Implementing the U.S.-Canada Free Trade Act

12675 Apr. 20, 1989 Establishing the National Space Council

12708 Mar. 23, 1990 Amendments to the Manual for Courts Martial

12722 Aug. 2, 1990 Blocking Iraqi Government property and prohibiting transactions

with Iraq

12724 Aug. 9, 1990 Blocking Iraqi Government property and prohibiting transactions

with Iraq

12730 Sept. 30, 1990 Continuing export control regulations

12735 Nov. 16, 1990 Chemical and biological weapons proliferation

12740 Nov. 29, 1990 Waiver under the Trade Act of 1974 with respect to the Soviet

Union

12806 May 19, 1992 Establishing a fetal tissue bank



(continued)


18/20

12834 Dec. 20, 1993 Ethics commitments by executive branch appointees

12839 Feb. 10, 1993 Reduction of one hundred thousand federal positions

12853 June 30, 1993 Blocking Haitian government property and transactions with Haiti

12864 Sept. 15, 1993 Establishing United States Advisory Council on the National

Information Structure

12874 Oct. 20, 1993 Federal acquisition, recycling, and waste prevention

12897 Feb. 3, 1994 Garnishment of federal employees pay

12937 Nov. 10, 1994 Declassification of selected records with the National Archives

12958 Apr. 17, 1995 Classified national security information

12961 May 26, 1995 Establishing the Presidents Advisory Committee on Gulf War

Veterans Illness

13010 Aug. 17, 1996 Establishing the Commission on Critical Infrastructure Protection

13021 Oct. 23, 1996 Tribal Colleges and Universities13047 May 22, 1997 Prohibiting New Investment in Burma

13080 April 10, 1998 American Heritage Rivers Initiative Advisory Committee

13103 Oct. 5, 1998 Computer Software Piracy

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Documents

Unilateral Presidential Powers