Unilateral Orders and the Legislative Process

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2013-05

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Abstract

Unilateral action is often perceived by scholars as an alternative to legislation. Presidents use executive orders and proclamations, also known as unilateral orders, before legislation has been introduced, passed, or enacted into law without the support or approval of Congress. As an alternative to legislation, presidents use them to adopt policy when Congress is unable to act and prevent legislation from advancing. However presidents can also use unilateral orders to propose new policy, endorse bills before Congress, and shift policy closer to them. In one way unilateral orders can be compared to the president’s other administrative tools he uses to convey his policy position to Congress in order to gain support. Presidents use their State of the Union Address, legislative proposals, messages and initiatives to introduce their policy to Congress. As bills progress through the legislative process presidents use messages, statements of administration, veto threats, and vetoes to express their position on content and passage. Once law has been enacted, presidents use signing statements and remarks to convey their approval, disapproval, and recommendations for change. Yet importantly, executive orders and proclamations effectuate the president’s legislative program through policy action. One test of whether the president achieves his goal is by Congress’s response. Although prior research has found that Congress rarely responds to executive orders, when it does, it is more likely to respond with support. A supportive response suggests not only that the legislative branch defers to the president but that a goal of unilateral action is legislative support. I propose that unilateral orders can play a strategic function as well as an administrative one when they are used in relation to the legislative process. In an effort to obtain legislative support, presidents use unilateral orders as an incremental and interim step towards the successful passage of their program. Presidents use them to support the enactment of legislation and as needed, to act when faced with Congressional inaction, and to negate policy too distant from their preference. Yet the expectation is still that the president’s unilateral order is a stopgap measure and his goal is legislative support.
In both scenarios, the president enhances his chances for response because his unilateral order relates to prior legislative action. The timing of unilateral action in relation to the legislative process influences the type and tone of Congress’s response. When the topic is still under discussion in committee and subcommittee hearings Congress may be more willing to accept the president’s direction in setting the agenda rather than when unilateral orders are used to influence bills once the agenda has been established. The results of this research find that members of Congress are more likely to respond to the president’s unilateral order when it relates to prior legislative action. The timing of unilateral action is also important because Congress is more likely respond by enacting law when unilateral orders are used to influence bills on the legislative agenda. Congress is though more likely to support a unilateral order when it is introduced into the legislative process at the issue identification stage before bills have been introduced into committee. This research highlights the importance of the interrelationship between congressional and executive action in the legislative process highlighting how presidents strategically use executive orders and policy proclamations in the legislative process to achieve their policy goals. Unilateral orders may be effective tool in helping presidents get what they want but they are a stopgap measure on the road to legislation.

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Keywords

President, Congress, Unilateral orders, President, Legislative politics

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