Political scientists Alexander Bolton and Sharece Thrower offer an interesting, if not surprising, take on the use of executive orders by presidents since 1905. In short, congressional capacity affects presidential action.
The authors lay out their case in a July 2016 American Journal of Political Science article, “Legislative Capacity and Executive Unilateralism.” Given the head-spinning pace of executive actions issued in the first two weeks of the Trump administration, this historical look at presidential action is particularly topical. Their findings should buck up those who fear that the modern presidency is too big to check.
The authors begin by pointing out the normative concern and media narrative that recent presidents have resorted to unilateral actions – that is, executive orders – to bypass Congress, particularly under divided government, isn’t supported by the numbers. In fact, scholars have consistently churned out findings that modern presidents issue fewer executive orders in times of divided government. This might feel a bit counterintuitive given that we expect a president to take advantage of his unilateral action powers exactly when he doesn’t trust a Congress to pass the policies he desires.
To square the circle, it’s important to outline the incentives a president faces when deciding whether or not to act unilaterally. In times of unified government, the president is given greater discretion to issue executive orders simply because he has a Congress that is likely to agree with him. Put simply, he is not likely to face congressional challenges to his orders because of policy agreement between the two branches. Conversely, when a president faces a Congress controlled by the opposite party, he is less likely to receive consent from Congress due to the majority of legislators opposing the policy direction outlined in the executive directives. Thus, in order to avoid a potentially costly and public battle, the president will refrain from issuing executive orders to which a hostile Congress is surely going to loudly object.
Bolton and Thrower don’t argue this established logic, but posit the theory offers an incomplete look at the contexts that foster executive action. Specifically, they argue that an overlooked factor in presidential discretion is the capacity of Congress to limit the actions taken by the executive. Congressional capacity refers to the resources available to Congress to execute its functions, namely the number of staff and independent information sources members can use to assist to author legislation, conduct investigations and oversight, and compile information crucial to countering presidential proposals.
The levels of congressional capacity have not been constant throughout history. In the first half of the 1900s, Congress became frustrated with their lack of independent policy information relative to the president and began to take action. In 1946, Congress passed the Legislative Reorganization Act which aided in staffing committees with policy experts of their own. Also during this period, Congress created the Congress-specific information centers such as the Government Accountability Office and the Legislative Reference Service (now the Congressional Research Service), as well as passed legislation that required the formal notice and publication of executive actions and rules. Prior to these acts, Congress was not privy to the actions of the president until after they had taken place, ultimately thwarting their ability to oversee and constrain the executive due to a significant lack of information. As a result of these efforts, Congress transformed from a low capacity institution to a high capacity institution in the mid-1940s.
This variation in capacity leads the authors convincingly contend that prior to Congress increasing their own capacity, the president was far more likely to issue executive orders under conditions of divided government than modern day executives. During the period of low congressional capacity from 1905-1944 presidents attempted to accomplish their legislative aims via executive actions because they knew Congress faced “high costs to writing statutes that limit the executive.” Identifying the lack of resources available to Congress, the president took advantage of his unilateral powers during periods of divided government to take advantage of a Congress limited in its ability to contest the actions. Once congressional capacity was amplified, the president recognized that under divided government his discretion was checked due to the ability of Congress to use its increased resources to constrain him. The authors explain during the period of high congressional capacity “it is less costly for Congress to write constraining legislation” because of their increased available resources.
The numbers back up the theory. In the period of low congressional capacity (1905-1944) their analysis finds “that divided government significantly increases executive orders. More specifically a shift from unified to divided government...is associated with a 55% increase in the number of executive orders issued in a given year.” This finding gives strong support to their theory that the president purposefully bypassed a hostile Congress by issuing executive orders during the period where Congress had limited resources to check the actions of the executive. Once Congress strengthened its ability to combat the executive by increasing its own capacity, the use of executive orders under divided government sharply decreased. Instead of the 55% increase found in the early 1900s, “between 1945 and 2013, a shift from unified to divided government is associated with a 10% decrease in the number of executive orders” issued.
This study and its findings are important for at least a few reasons. First, the piece reveals that “policy making is not solely dependent on the ideological relationships and conflicts between political actors. Instead, this relationship is conditional on the capacity of these actors to check one another.” In other words, if one actor doesn’t have the ability or resources to limit another policy actor, it doesn’t matter how wide the ideological gap may be; the stronger party will win out.
Second, the article speaks to a concern that we live in an era where presidents can and do legislate through executive action rather than working with Congress, particularly during times of divided government. By showing that levels of congressional capacity has a direct influence on when and how presidents make use of their unilateral powers, the authors demonstrate that increasing these levels can alter the incentives of a president to the point of curbing his use of them. In other words, if you are disturbed with the ability of a president to legislative via executive orders, perhaps more attention needs to be paid to increasing the transparency of how executive orders are crafted or published; or by increasing the stagnant levels of congressional staffing and addressing their high levels of turnover. It’s not enough to elect members of Congress that promise to be a check on an over-reaching executive. As put by Bolton and Thrower, “executive power can be constrained; however, it requires a legislature with not only the will but also the ability to do so.”