Legislative Capacity and Executive Unilateralism

The forthcoming article “Legislative Capacity and Executive Unilateralism” by Alexander Bolton and Sharece Thrower is summarized here:

President Obama has received intense scrutiny for his use of executive power, facing frequent accusations that he is using unilateral orders to bypass opposition in Congress during divided government. Many believe presidents can ignore constitutional processes and impose their will with these actions. This belief is not unique to the Obama administration, but has been a common theme in political discourse and media narratives during President George W. Bush’s presidency as well as most other recent presidencies.

Political scientists, however, consistently find evidence that the president is constrained in unilateral policymaking; that is, post-WWII presidents tend to issue fewer unilateral actions under divided government. Thus, the central question arises of whether presidents use these powers to circumvent a hostile Congress or whether presidents are actually constrained by the legislative branch when exercising executive power.

Further, we must not only consider whether presidents are constrained by their legislative counterparts but when they are constrained or under what conditions. We argue that by examining presidencies prior to World War II, we can shed light not only on historical unilateralism but also investigate both when and why the president is constrained by Congress.

The size and scope of the federal government expanded rapidly from the end of the nineteenth century through World War II. The government became increasingly involved in regulating the economy, administering social welfare programs, and managing natural resources. As a result, the size of the federal workforce and expenditures increased dramatically. Yet, Congress largely stayed the same.  In particular, legislative staff sizes and expenditures were stagnant.  In addition, there were few sources of policy-relevant information independent of the executive branch. We argue that this mismatch between legislative resources and administrative growth made the task of constraining the executive branch extremely difficult for Congress during this period.

By examining the case of executive orders, we explore how the president’s use of unilateral power has changed over time based on changes in Congress’s capacity to constrain the executive branch. We argue that in the early twentieth century, Congress had more difficulty limiting executive power through statutory discretion and oversight. As a result, presidents were much more able to issue executive orders to sidestep an ideologically opposed legislature. However, as Congress began to develop institutional resources that increased its capacity to constrain the executive branch, presidents were now more limited in their use of unilateral actions.

Consistent with our theory, we find that presidents issue more executive orders under divided government between 1905 and 1944, a period we argue is characterized by low legislative capacity. However, as congressional capacity increased, we find that presidents issue fewer orders under divided government between 1945 and 2013. We also show that the impact of divided government on executive order use is conditioned by changes in legislative capacity (as measured by legislative expenditures and committee staff sizes) throughout this entire time period.

Overall, we argue that unilateral policymaking does not depend solely on the ideological relationships between political actors. Rather, inter-branch checks depend on the capacity of these governmental institutions. These findings have significant implications for understanding the development and operation of separation of powers politics in the United States as well as for institutional design more broadly.