The Lonely Executive

Like movie sequels, second editions of notable scholarly books often disappoint. Phillip J. Cooper’s By Order of the President: The Use and Abuse of Executive Direct Action (University Press of Kansas, second edition) is an exception. It adds substantial new material, including a new chapter on executive agreements—a sensible addition given the expansive use of this power as a vehicle for avoiding Senate checks on the treaty power. It also provides updated analysis in light of the increased presidential use of various mechanisms of direct action since the first edition appeared.

The first edition was released in 2002, only one year into the George W. Bush presidency. At that time, there was a relative lack of work devoted exclusively to executive orders. The other significant work was one that Cooper had previously published with Kenneth Mayer entitled With the Stroke of a Pen (Princeton University Press, 2001). Both books were timely given the then-emerging debates over unilateral presidential powers. These debates reached a fever pitch during the Bush II years and, despite widespread expectations of a reversal of such practices under Obama, they continued unabated during the Obama administration.

Cooper’s volume provides a detailed and well-documented overview of the origins and development of presidential executive orders as well as other independent presidential powers such as National Security Directives, signing statements, and executive agreements. Much of the value of this work is its reliance on original source material rather than quantitative analysis or review of secondary literature. The treatment is extremely thorough—an original volume of about 300 pages, expanded in the new edition to over 500. Much of the reason of course is that the latest two presidencies have provided an enormous amount of new material to mine on this topic. Cooper also provides a very lengthy appendix documenting all executive agreements filed under the Case Act (of 2008 and 2012). In all, there is an enormous amount of documentation to substantiate the author’s analysis and that other scholars and policy practitioners with an interest in this area may usefully mine.

An important contribution of this book as well is its clarity on the distinctions among a number of contemporary presidential powers that are sources of public and even official confusion—for example the current confusions over distinguishing executive orders, presidential proclamations, and presidential memoranda (formerly known as presidential letters). Cooper provides clear working definitions of each of these and shows how they all fit within the general framework of traditional executive orders, just sometimes by different names and with important distinctions. But even with his help, the terms are often tossed out loosely, or simply avoided now in favor of the more broad-brush, but ultimately unclear usage of “executive action.”

Consider as a telling example what the media widely referred to as President Obama’s executive action on immigration policy in November 2014. Initial reports referred to an executive order, but Obama actually never issued one. Then there was speculation whether the President had issued a formal proclamation of some kind. For several days reporters scrambled over what to call the President’s decision, so they resorted to the vague descriptor “executive action” to cover any of several possibilities. It turns out that the President did issue a memorandum to the heads of certain executive branch departments, but that raised the question of its legal standing.

Cooper’s volume showcases all of the trouble created by the executive’s current tendency to make an end-run around traditional constraints built into our system of separated powers through resort to various claims of authority to take independent action. When a President uses executive authority to circumvent the legislative process, to institute new policy requirements without meaningful congressional input, or without any congressional input at all, he is inviting direct challenges to his action. For many, he is undermining the very legitimacy of the law.

Presidential direct action is more likely to be reversed than policy that has been developed by Congress and the President through the normal law-making process, with its necessary deliberation and compromises. Admittedly, forming policy consensus between the branches in a period of divided government is not easy, and the temptation for Presidents to simply act on their own is strong. Yet the constitutional system of checks and balances never was intended to be efficient or simple. Generally it is far better in the long run to have a system built on deliberation and accommodation by both elected branches, than to have a President single-handedly announce a policy in the face of significant congressional and public opposition.

Defenders of President Obama’s direct action on immigration policy pointed out that Congress has the authority to undo that action through legislative initiative. Or the next President could issue a declaration on January 20, 2017, reversing Obama’s action. Yet his defenders, in articulating the view that his action is constitutionally legitimate because it is open to challenge and easy reversal, rather than having the finality of a dictatorial order, have actually revealed a deep flaw with the strategy of trying to effect legal change through executive direct action. For it is hardly beneficial to the development of sensible policy to have presidential actions established, then reversed, then re-established, and so on.

Consider the multiple reversals that Cooper presents involving U.S. funding of international family planning organizations. In 1984, President Reagan announced a policy of no U.S. funds for organizations that provide abortion-related services or counseling (the “gag rule”). President Clinton issued a presidential memorandum in 1993 reversing the policy. Then in 2001, President Bush issued a presidential memorandum reinstating the policy. Then President Obama reversed the policy again in 2009. If a Republican is elected in 2016, there is likely to be yet another policy reversal. Prior to all these direct presidential actions, there had been a broad policy consensus, legislatively developed and supported by several administrations over time, with some presidential directives issued that merely directed executive branch officials to take actions that were in furtherance of established congressional intent.

It is clear to all that President Obama is deeply frustrated with a Congress led by the party in opposition. The temptations for him to act without congressional involvement therefore are strong. The trouble is, during his time in office he has departed from his own stated objective of avoiding issuing signing statements. He had pledged to respect legislative controls and not act outside of his constitutionally based authority but has ended by openly declaring that he can act independently of Congress through a variety of direct actions.

Cooper rightly concludes that by evading legislative controls through the creative use of various mechanisms of direct action, Presidents are contributing to the distrust so pervasive today between the political branches. Relying on constitutionally well-grounded bases of executive power, as well as negotiating in good faith with Congress, in the long run will lead to more presidential successes than the various types of actions taken to evade legislative checks.

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