Executive Orders

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Case Western Reserve Law Review ■ Volume 65 • Issue 4 • 2015

P olitical C onstraints on U nilateral E xecutive A ction

Dino P. Christenson1 Douglas L. Krinef

A b s t r a c t

Pundits, politicians, and scholars alike have decried the dramatic expansion of presidential unilateral power in recent decades. Such brazen assertions, against which Congress and the courts have offered seemingly feckless resistance, have led many to decry the emergence of a new “imperial presidency.” From a political science perspective, however, perhaps the more puzzling question is the relative paucity, not the proliferation of unilateral actions. Why do presidents not act unilaterally to bring an even wider range of policies into closer align­ ment with their preferences? The dominant paradigm in political sci­ ence scholarship emphasizes Congress’s institutional weakness when confronting the unilateral president. It correctly notes that presidents, in all but the rarest of circumstances, can act with impunity, secure in the knowledge that legislative efforts to undo their unilateral initiatives will fail. However, much scholarship overlooks the critical importance of political costs in constraining the unilateral president, and how other institutions—even when they cannot legally compel the president to change course—can affect presidential strategic calculations by raising these costs. We illustrate our argument with a pair of case studies: President Obama’s halting unilateral policy response to the immigration crisis, and his abrupt about-face on unilateral action against the Assad regime in Syria. In these cases, we argue that calculations about the informal political costs of unilateral action affected both the timing and content of presidential policy decisions. When contemplating unilateral action, presidents anticipate more than whether they can defeat legislative efforts to overturn their unilateral initiatives. They also consider the political costs of acting unilaterally and weigh them against the benefits of doing so. Paying greater attention to these political constraints on unilateral action affords a more accurate picture of the place of the unilateral presidency within our separation of powers system in the contemporary era.

t Assistant Professor of Political Science, Boston University, t Associate Professor of Political Science, Boston University.

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C o n t e n t s

Introduction......................................................................................................898 I. Formal T heory and P residential Unilateral P ower....................901 II. T he P olitical Costs of Unilateral Action.....................................906 III. Case Study: Obama and Immigration................................................912 IV. Case Study: Obama and the Syrian Civil W a r ..............................922 Conclusion..........................................................................................................930

I n t r o d u c t io n

On July 10, 2014, the Speaker of the House, John Boehner, disclosed his intention to file suit against President Barack Obama for allegedly wanton abuse of presidential power in acting unilaterally to delay the employer mandate provision of the Affordable Care Act, fundamentally amending the law as passed absent any legislative authorization for the change. Echoing many congressional critics of unilateral presidential action before him, Speaker Boehner lamented, “The current president believes he has the power to make his own laws—at times even boasting about it. He has said that if Congress won’t make the laws he wants, he’ll go ahead and make them himself, and in the case of the employer mandate in his health care law, tha t’s exactly what he did.”1

Bold assertions of unilateral presidential authority have been prominent features of the American political landscape almost since the Founding. The assertion and exercise of unilateral presidential power has been one of the hallmarks of American politics in the post-9/11 era. Without waiting for congressional action, President Bush determined that the Geneva Convention did not apply to Taliban and A1 Qaeda prisoners and created a system of military tribunals to try those suspected of terrorism outside the civilian judicial system. With a top- secret National Security Decision Directive, President Bush authorized the National Security Agency to eavesdrop on the electronic communications of American citizens without a warrant, in plain violation of the Foreign Intelligence Surveillance Act of 1978.2

1. Lauren French, GOP’s Obama Lawsuit to Focus on Employer Mandate, P olitico (July 10, 2014, 5:40 PM), http://www.politico.com/story/201 4/07/gop-obama-lawsuit-employer-mandate-108778.html (last updated July 11, 2014, 5:29 AM).

2. Cf. Elizabeth B. Bazan L J ennifer K. Elsea, Cong. Research Serv., Memorandum, P residential Authority to Conduct War­ rantless Electronic Surveillance to Gather Foreign Intel­ ligence Information (2006) (arguing that it is “unlikely that a court would hold that Congress . . . authorized the NSA electronic surveillance activities”). But see U.S. Dep’t of J ustice, Legal Authority Supporting the Activities of the National Security Agency

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Far from providing a clear break from the unilateral bent of his predecessor, President Obama has followed in his footsteps and used the unilateral toolkit at his disposal to advance both his foreign and domestic policy initiatives. While a United States Senator and presiden­ tial candidate, Obama emphasized the constitutional limits on the president’s unilateral powers as commander in chief, stating that “[t]he president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”* * 3 However, Obama would later change his tune. For example, in 2011, now President Obama, backed by the Office of Legal Counsel, argued that he possessed independent constitutional authority to intervene militarily in Libya without congressional approval because the mission was tied to a national interest, even if the crisis in Libya plainly did not involve an actual or imminent threat to the United States itself.4 Similarly, when contemplating military strikes against the Assad regime in Syria for its use of chemical weapons, the Obama administration articulated a legal justification for unilateral intervention because of vital national interests in enforcing international norms against the use of chemical weapons.5 In the domestic sphere, President Obama acted unilaterally to exempt states from the Temporary Assistance to Needy Families program’s work requirement, to instruct the Justice Department not to prosecute marijuana offenders in states where its use has been decriminalized and, as we will discuss in detail shortly, to implement through administrative memorandum much of the Development, Relief, and Education for Alien Minors (DREAM) Act, which failed to pass both chambers of Congress.6

D escribed by th e P resident (2006) for a contrasting view offered by the Bush Administration.

3. David A. Fahrenthold, On Debt and Libya, I t ’s President Obama vs. Senator Obama, W ashington P o st , June 24, 2011 (quoting then Senator Obama) (internal quotation marks omitted), http://www. washingtonpost.com/politics/on-debt-and-libya-its-president-obama-vs- senator-obama/2011 /06/22/AGhK4AjH_story.html.

4. Authority to Use Military Force in Libya, 35 Op. O.L.C. 1 (2011), available at http:/ /www.justice.gov/ sites/default/ files/ ole/opinions/2011 /04/31/authority-military-use-in-libya_O.pdf (last visited Jan. 25, 2015).

5. Charlie Savage, President Tests Limits of Power in Syrian Conflict, N.Y. T im es , Sept. 9, 2013, at Al, A9.

6. Memorandum from Janet Napolitano, Secretary, U.S. Dep’t of Homeland Security, on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), available at http://www.dhs.gov/xlibrary/assets/sl-exercising-prosecutorial- discretion-individuals-who-came-to-us-as-children.pdf (last visited Jan. 25, 2015).

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Many legal scholars warn that this expansion of presidential unilateral power is a threat to the separation of powers. In 2014 testi­ mony before the House Judiciary Committee, Jonathan Turley argued that it represents “a massive gravitational shift of authority to the Executive Branch that threatens the stability and functionality of our tripartite system.” Turley acknowledges that the shift did not begin with Obama; “[hjowever, it has accelerated at an alarming pace under this administration.”7

Empirically driven scholarship in political science confirms that re­ cent presidents have exerted their unilateral powers with unparalleled frequency.8 Indeed, William Howell has argued that “the ability to act unilaterally speaks to what is distinctively ‘modern’ about the modern presidency.”9 The rise of presidential assertions of unilateral power frequently produces jeremiads lamenting the failure of Madisonian checks and balances and the search for answers as to why the other branches have failed to defend their institutional prerogatives from such naked presidential power grabs.10 From a political science perspective,

7. Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws: Hearing Before the H. Comm, on the Judiciary, 113th Cong. 32- 33 (2014) (written statement of Jonathan Turley, Shapiro Professor of Pub. Int. L., Geo. Wash. U.). See also B ruce A ckerm an , T he D ecline and F all of the A merican R epublic (2010), and Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 M in n . L. R e v . 1789 (2010); Michael P. Allen, George W. Bush and the Nature of Executive Authority: The Role of Courts in a Time of Constitutional Change, 72 B r o o k . L. R e v . 871 (2006) for similar fears of extreme claims of unilateral presidential power. Further, the literature is replete with constitutional criticisms of individual executive orders. See, e.g., Michele Estrin Gilman, If at First You Don’t Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 W m . & M ary B ill R t s . J. 1103 (2007) (on charitable choice executive orders); Stephen Yuhan, The Imperial Presidency Strikes Back: Executive Order 13,233, the National Archives, and the Capture of Presidential History, 79 N.Y.U. L. R e v . 1570 (2004) (on access to presidential papers at the National Archives); Morton Rosenberg, Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking under Executive Order 12,291, 80 M ic h . L. R ev . 193 (1981) (on mandating cost-benefit analysis in rule-making).

8. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. E c o n . & O r g . 132 (1999); Terry M. Moe & William G. Howell, Unilateral Action and Presidential Power: A Theory, 29 P residential St u d . Q. 850 (1999); K enneth R. M a y er , W ith the Str o k e of a P e n : E xecutive O rders and P residential P ow er (2001); P hillip J. C o o p e r , B y O rder of th e P r esid en t : T he U se and A buse of E xecutive D ir ec t A ction (2002).

9. W illiam G. H ow ell , P ow er W ith out P ersuasion : T he P olitics of D ir ec t P residential A ction 13 (2003).

10. See, e.g., Louis F ish er , C ongressional A bdication on W ar and Spending (2000); see also Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 H arv . L. R e v . 2311 (2006), on

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however, perhaps the more puzzling question is the relative paucity, not the proliferation, of unilateral actions.

The dominant scholarly paradigm is clear: presidential unilateral power is not absolute. Rather, the president’s capacity to affect the course and contours of public policy unilaterally is conditional on the willingness of Congress and the courts to check unilateral measures. However, given the institutional weaknesses and reluctance of both the legislature and judiciary to overturn presidential unilateral initiatives, presidents should be able to act with impunity in all but the rarest of circumstances. As a result, this Article flips the question on its head. It does not ask why presidents are able to achieve so much unilaterally in our separation of powers system, when we might logically expect the other branches to contest presidential aggrandizement using all constitutional means at their disposal. Rather, we seek insight into why presidents do not use the instruments in their unilateral toolkit with even greater frequency to address a wide range of policy priorities.

The reason for presidential caution, we argue, is that presidents are far more concerned about the informal constraints on unilateral action—mainly the political costs of going it alone—than they are about being formally overturned by new legislation or a judicial decision. These informal constraints are all but absent from most formal models of unilateral politics.

The Article proceeds in five parts. Part I traces the evolution of political science scholarship on unilateral powers over time, from early accounts paying them scant attention to modern scholarship highlight­ ing these tools as a foundation of presidential power in the contem­ porary era. It then unpacks the dominant game theoretic approach toward understanding unilateral politics; this perspective suggests that presidents have a capacity to act unilaterally that is all but unchecked by other political actors. Part II presents our counterargument that by failing to account for public opinion and informal political costs, the dominant approach seriously overestimates the president’s power to achieve his policy goals unilaterally and underestimates the capacity of Congress and the courts to constrain and even deter unilateral action. Parts III and IV illustrate our argument through a pair of case studies: an examination of President Obama’s halting unilateral policy response to the immigration crisis, and an assessment of President Obama’s abrupt about-face on unilateral action against the Assad regime in Syria.

I. F orm al T h eo r y and P r esid e n tia l U n ila tera l P o w er

Assertions of presidential unilateral power emerged almost immed­ iately under our constitutional system. President Washington famously

the role of partisanship in upsetting the checks and balances described in Federalist 51.

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issued his Proclamation of Neutrality in 1793 and, in so doing, claimed for the executive the right to define the nation’s foreign policy posture until Congress exercised its power to declare war. President Jefferson negotiated the Louisiana Purchase without any prior congressional approval. President Lincoln took many steps to put the Union on a war footing in 1861 while Congress was not in session, including an attempted resupply of Fort Sumter, the institution of a naval blockade against confederate ports, and the suspension of the writ of habeas corpus. In 1863 Lincoln issued perhaps the most sweeping unilateral directive of all time, the Emancipation Proclamation. At the turn of the twentieth century, in articulating his stewardship theory of presidential power, President Theodore Roosevelt went perhaps further still in declaring an undefined residuum of presidential power to act in the national interest. In contrast to a constrictive view of presidential power limiting the president’s sphere of action to cases where he was acting pursuant to some specific authorization, Roosevelt brazenly made the case for an expansive reading of presidential power.

My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power, I did and caused to be done many things not previously done by the President and the heads of the departments. I did not usurp power, but I did greatly broaden the use of executive power.11

In office, Roosevelt put this theory into practice, acting aggressively to project American power and to pursue American economic interests, be they in Santo Domingo, Panama, or across the Pacific.12

Courts have grappled with questions of the constitutionality of unilateral presidential actions almost since the Founding. For example, in the 1804 case Little v. Barreme, 13 Chief Justice Marshall struck down an order by President John Adams issued during the quasi-war with France authorizing American naval vessels to seize ships sailing to and from French ports. Marshall argued that had Adams acted alone, the order would have been constitutional. However, because Congress had explicitly authorized the seizure only of ships sailing to French ports (and the Barreme was sailing from a French port), the order was unconstitutional. Additional nineteenth-century cases involved challenges to specific presidential unilateral actions, such as Ex Parte

11. T heodore R oo sev elt , T heodore R oo sev elt : A n A utobiography 357 (1922).

12. See generally E dmund M o r r is , T heodore R ex (2001) (detailing Roos­ evelt’s tim e as president, including his foreign policy initiatives in P anam a).

13. 6 U.S. (2 Cranch) 170 (1804).

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Merrimanu and Lincoln’s unilateral suspension of the writ of habeas corpus. However, in the 1930s, the Supreme Court issued a series of rulings putting presidential unilateral powers on a firmer legal footing. Two cases, United States v. Curtiss-Wright15 and United States v. P ink16 established the president’s power to enter the United States into international agreements and that these agreements have the same legal status as treaties. A third case, United States v. Belmont17 recognized the president’s power to issue executive orders and held that those orders have the force of federal law, including preeminence over state law.18

Despite the growing prominence of unilateral powers, for decades they were given short shrift by political science scholarship. This is true of the more legalistic studies that dominated presidency studies during the early and mid-twentieth century.19 For example, Edward Corwin’s The President, Office and Power never used the word “unilateral.” To be sure, such powers are occasionally discussed; for example, Corwin assessed the constitutionality of executive agencies created by Franklin D. Roosevelt via executive order pursuant to his authority as commander in chief. However, these powers were far from a point of emphasis.20 This characterization is perhaps even truer following the publication of Richard Neustadt’s Presidential Power in 1960 and the behavioral revolution in presidency studies that it precipitated. Neustadt argued that the president’s formal powers were wholly insufficient to the demands for energetic leadership placed upon the office in the post-World War II era. Falling back on the limited, unreliable, and often ineffective or counterproductive powers of “command” was a hallmark of weak presidents. Instead, power was largely a function of an individual president’s skill and will in building and maintaining a strong professional reputation and prestige among the public and then leveraging that capital to persuade other actors, particularly legislators but also members of the executive branch, to pursue presidential policies.

The explicit de-emphasis in presidential scholarship on unilateral action began to change near the turn of the new millennium. A new wave of scholarship demonstrated that presidents can wield tremendous

14. 17 F. Cas. 144 (C.C.D. Md. 1861). 15. 299 U.S. 304 (1936). 16. 315 U.S. 203 (1942). 17. 301 U.S. 324 (1937). 18. H ow ell , supra note 9, at 20-21; see also G lendon A. Schubert J r .,

T he P residency in th e C ourts (1957). 19. E.g., E dw ard S. C o r w in , T he P resid en t , O ffic e and P o w ers ,

1787-1957: H istory and A nalysis of P r a ctice and O pinion (1957); C linton R o ssiter , T he A m erican P residency (2nd ed. 1960).

20. See Corwin, supra note 19, at 242-43.

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power when acting unilaterally through an array of tools, including executive orders, executive agreements, memoranda, proclamations, and national security decision directives.21 This new line of research presented illustrative case studies of presidents effecting major policy changes unilaterally in policy domains as diverse as civil rights to foreign policy. Moreover, empirical assessments showed that the use of such unilateral tools has increased in recent decades.22

How then are we to understand the forces driving when presidents employ unilateral initiatives and when they do not? William Howell’s unilateral politics model remains perhaps the dominant approach in the political science literature .23 Howell’s model builds off Keith Krehbiel’s pivotal politics model of lawmaking.24 For decades, scholars have used a simple median voter model as a heuristic to help make sense of legislative behavior. This perspective posits that the median voter is the dominant player in a legislature. 25 Any policy that would make the median voter happier than the status quo (or more formally yield the median voter more utility) is enacted into law .26 By contrast, proposals that the median voter does not prefer to the status quo fail when brought to a vote on the floor.27

Krehbiel’s insight was that this median voter framework does not accurately describe the American legislative system, which has multiple super-majoritarian requirements. Specifically, in the Senate, a minority can filibuster a bill supported by the majority and prevent it from receiving a final up or down vote. As a result, sixty votes are required to secure passage of most major legislative initiatives in the Senate. Furthermore, once passed by both chambers of Congress, a bill still must be signed by the president to become law. If a bill moves policy away from the president’s preferences, he will veto it. In this case, a two-thirds majority is needed to overturn the presidential veto. Hence, the key players in the American context are what Krehbiel terms the filibuster pivot and the veto pivot—the legislators who are key in

21. See Phillip J. Cooper, Power Tools for an Effective and Responsible Presidency, 29 A dm in . & So c ’y 529 (1997); Kenneth R. Mayer, Executive Orders and Presidential Power, 61 J. P o l . 445 (1999); Moe & Howell, Presidential Power, supra note 8.

22. For example, while the total number of executive orders has decreased considerably since the 1940s, Howell shows that the number of significant executive orders has steadily increased over time. H ow ell , supra note 9, at 84-85.

23. Id. 24. See K eith K reh biel , P ivotal P o litic s : A T heory of U.S. Law ­

making (1998). 25. Id. 26. Id. 27. Id.

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determining whether a bill can secure sixty votes to stop a filibuster or a two-thirds vote to override a presidential veto.28

Perhaps the most important result of Krehbiehs model is that many policies are “gridlocked”—that is, no bill that would change the status quo can be passed and signed by the president. The ideological space between the filibuster and the veto pivots is christened the “gridlock interval”; status quo policies within this ideological space cannot be changed by normal legislative procedures. Rather, policy change happens when an exogenous shock, such as a major electoral swing, shifts the ideological locations of the key players, making policy change again possible. This theory of lawmaking offers keen insight into our contemporary institutional malaise. Partisan polarization widens the gridlock interval by moving the pivotal players further to the ideological extremes. This, in turn, makes legislative action all but impossible for a growing number of issue areas.

Howell embraces the basic framework of the pivotal politics model but with one particularly important modification. Presidents can do more than veto legislation. Presidents can also be first-movers in the American system by acting unilaterally. Once making this adjustment, even the basic model yields a surprising result: the very same institutional setup that makes it so difficult for presidents to achieve their policy priorities legislatively gives them tremendous advantages when acting unilaterally.29 Indeed, the model suggests that presidents can move any status quo policy lodged within the gridlock interval closer to their preferences, provided that the new policy remains within that interval, secure in the knowledge that Congress will not be able to undo legislatively what the president has changed unilaterally.

As a result, formal theories of unilateral politics predict that presidents should be able to act unilaterally with little risk of being overturned by Congress on a wide range of issues. Moreover, since all they need to ensure is that their veto of any initiative by Congress to restore the status quo is sustained, presidents are even more empowered in an era of intense partisan polarization.30 For example, for almost any conceivable action he would desire to take unilaterally, President Obama should be able to recruit thirty-four liberal Democrats in the Senate who would support such a policy shift. As Neal Katyal describes

28. To simplify matters, Krehbiel posits a unicameral legislature in explicat­ ing his theory. Id.

29. Howell goes on to add additional features, such as the discretion that the judiciary will allow presidents to exercise to the model. See H ow ell , supra note 9, at 30-31. However, the basic features and conclusions that presidents enjoy wide latitude to act unilaterally remain.

30. See Christopher J. Deering & Forrest Maltzman, The Politics of Executive Orders: Legislative Constraints on Presidential Power, 52 P o l . R e s . Q. 767, 771 (1999), for a similar emphasis on the veto override and presidential anticipation thereof.

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it, the veto has become a tool that can “entrench presidential decrees,” all but completely undermining legislative checks on presidential assertions of unilateral power.31

Of course, formal models are simplifications of reality. Are the congressional checks on the unilateral president stronger than such models propose? Howell argues no.32 In fact, Congress may be even weaker than the unilateral politics model predicts. The formal model assumes that Congress will pass and override a presidential veto on any bill amending policy changed by an executive order that is closer to the veto pivot’s preferences than the unilaterally created policy. However, in reality the task for legislators is not so simple. Congress as an institution is plagued by a collective action dilemma when it tries to rally to defend its institutional prerogatives. Moreover, even when acting to constrain the president is in enough members’ personal and political as well as collective institutional interests, it is exceedingly difficult to build and maintain large coalitions throughout a legislative process that is riddled with transaction costs.33 As a result, the modern congressional constraint on presidential unilateral action may be even weaker than suggested by the formal model. These institutional weaknesses of Congress may render it unable to challenge …