Take Up Your Pen: Unilateral Presidential Directives in American Politics (Democracy, Citizenship, and Constitutionalism)

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9780812245110: Take Up Your Pen: Unilateral Presidential Directives in American Politics (Democracy, Citizenship, and Constitutionalism)

Executive orders and proclamations afford presidents an independent means of controlling a wide range of activities in the federal government—yet they are not mentioned in the U.S. Constitution. In fact, the controversial edicts known as universal presidential directives seem to violate the separation of powers by enabling the commander-in-chief to bypass Congress and enact his own policy preferences. As Clinton White House counsel Paul Begala remarked on the numerous executive orders signed by the president during his second term: "Stroke of the pen. Law of the land. Kinda cool."

Although public awareness of unilateral presidential directives has been growing over the last decade—sparked in part by Barack Obama's use of executive orders and presidential memoranda to reverse many of his predecessor's policies as well as by the number of unilateral directives George W. Bush promulgated for the "War on Terror"—Graham G. Dodds reminds us that not only has every single president issued executive orders, such orders have figured in many of the most significant episodes in American political history. In Take Up Your Pen, Dodds offers one of the first historical treatments of this executive prerogative and explores the source of this authority; how executive orders were legitimized, accepted, and routinized; and what impact presidential directives have had on our understanding of the presidency, American politics, and political development. By tracing the rise of a more activist central government—first advanced in the Progressive Era by Theodore Roosevelt—Dodds illustrates the growing use of these directives throughout a succession of presidencies. More important, Take Up Your Pen questions how unilateral presidential directives fit the conception of democracy and the needs of American citizens.

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About the Author:

Graham G. Dodds is Associate Professor of Political Science at Concordia University.

Excerpt. © Reprinted by permission. All rights reserved.:

Chapter 1
Unilateral Directives and the Presidency

Stroke of the pen, law of the land. Kind of Cool.
—Paul Begala, Advisor to President Clinton (1998)

The history of executive orders is, to a great extent, a narrative of the evolution of presidential power.
—Robert B. Cash, "Presidential Power" (1963)

Outrageous, or Ordinary?

On December, 15, 2005, Americans were shocked to learn that President George W. Bush had issued an executive order directing the National Security Agency (NSA) to engage in domestic spying on U.S. citizens. Bush secretly issued the order in 2002 as part of the government's effort to prevent another terrorist attack on the scale of those committed on September 11, 2001. But Bush's policy appeared to contradict the legal processes established by the Foreign Intelligence Surveillance Act (FISA) of 1978 (Pub. L. 95-511, 92 Stat. 1783), which required the government to obtain a warrant before engaging in domestic spying.

Public indignation at Bush's unilateral directive for domestic spying was immediate and widespread. A poll conducted a month after the public revelation showed that 51 percent of Americans opposed Bush's action and 58 percent supported the appointment of a special prosecutor to investigate the legality of the program. The ACLU complained that the president was "very willing to sacrifice civil liberties" and might have authorized "criminal activity."

Major newspapers also criticized Bush's action. In an editorial three days after its initial story, the New York Times described the program as "illegal government spying" and charged that "Mr. Bush's team cannot be trusted to find the boundaries of the law, much less respect them." The Chicago Tribune said that the Bush administration evidently "thinks it can scorn the law." The Philadelphia Inquirer complained that "no president unilaterally should be able to declare that a part of the Bill of Rights is null and void." And the Dallas Morning News said, "It won't do to tell a free people that their government is spying on them in possible violation of the law for their own good," and it encouraged Congress to "hold the president accountable."

In the halls of Congress, senators and representatives were outraged about Bush's spying directive. The day after the story broke, the Senate refused to reauthorize the Patriot Act, several senators demanded a joint inquiry by the Judiciary and Intelligence Committees, Senator Arlen Specter (then R-PA) threatened hearings, and Senator John Kerry (D-MA) said the president seemed to think he was "above the law." Senator Russ Feingold (D-WI) sought to pass a resolution censuring the president for his action, and some members of Congress even spoke of possible impeachment.

Criticism of Bush's unilaterally imposed spying program even came from members of the Bush administration itself. On New Year's Day, 2006, the Times reported that in March 2004, the acting attorney general, James Comey, had determined that the domestic spying program was likely unconstitutional (even though it had been previously reauthorized by the Department of Justice), so he decided not to renew approval for it. The chief of staff, Andrew Card, and the White House counsel, Alberto Gonzales, then made a dramatic visit to the hospital bed of the attorney general, John Ashcroft, who was recovering from gallbladder surgery, in a fruitless attempt to gain his approval. For some critics, it was ironic that Ashcroft, the father of the Patriot Act, was belatedly assuming the mantle of protector of civil liberties and constitutional niceties, but it suggested that Bush's unilateral action had indeed gone too far.

Five months later, the judiciary also condemned Bush's order. In ACLU v. NSA, 438 F. Supp. 2d 754, E.D. Mich. (2006), Judge Anna Diggs Taylor ruled that Bush's action was unconstitutional. Her opinion admonished, "There are no hereditary kings in America and no powers not created by the Constitution."

In short, Bush's policy was widely condemned by the public, the press, members of Congress from both political parties, the judiciary, and even officials within the administration. So what happened? Nothing. The public outcry dimmed, and Bush's executive order and policy remained in place.

Even when yet more damning details emerged, nothing changed. On May 11, 2006, USA Today revealed that the government was using information gleaned from domestic spying to compile a massive database, including tens of millions of phone calls made by customers of the nation's three largest telecommunications companies, in apparent violation not only of FISA and the Fourth Amendment but also of various statements and promises issued by officials in the Bush administration after the domestic spying program was exposed. But despite this revelation, the program continued. And some polls suggested that the American people had even come to embrace Bush's policy: a Washington Post poll conducted shortly after the database revelation found that 63 percent of respondents supported the NSA program and only 35 percent opposed it. Moreover, Congress acted to legitimate Bush's policy in 2007 (Pub. L. 110-55, 121 Stat. 552) and again in 2008 (Pub. L. 110-261, 122 Stat. 2436), giving legislative sanction to what had been the president's unilateral policy and granting the telecommunications companies immunity from lawsuits for violations of privacy.

Thus, even though the president's executive order initially elicited so much outrage, and even after more and more controversial details emerged, nothing changed, and it was quickly back to business as usual. It was almost as if controversial unilateral presidential policymaking itself were just business as usual, which is exactly what this book argues it is.

The Argument of the Book

The above episode is emblematic of a much broader puzzle in U.S. constitutional politics and interbranch relations, as presidents have often used unilateral directives such as executive orders and proclamations to impose controversial policies, and Congress and the courts have at times complained but have seldom offered much in the way of real resistance. This book seeks to explain how we got to this point and why it matters. The basic argument of the book may be summarized as follows.

In unilateral presidential directives, American political development has seen a major expansion of presidential power that rests on vague justifications and has been relatively unchecked. This book documents and explains this development. The explanation has roots in the Constitution's ambiguity and the character of executive power, which is inherently resistant to strict limits. But the rise of more activist central governance from the Progressive era on—advanced first by Theodore Roosevelt and then by a variety of successors, with congressional, judicial, and popular acquiescence—has led to more extensive governance by unilateral presidential directives. This state of affairs has strengths as well as weaknesses, but it is hard to reconcile with any but very thin conceptions of democracy. Whether Americans really want or need governance by unilateral presidential directives is a central question for American politics today and will be in the years ahead.

The ABCs of UPDs

Some basic background information about unilateral presidential directives (UPDs) may be useful as a foundation for the above argument. Public awareness of unilateral presidential directives has been growing over the last dozen years or so, sparked in part by Barack Obama's use of executive orders and presidential memoranda to reverse many of his predecessor's policies, by several controversial unilateral directives that George W. Bush promulgated for the "war on terror" and other matters, and by what critics regarded as an unprecedented rash of late-term executive orders by Bill Clinton. But the historical record is much richer than recent public attention: presidents have long relied on unilateral directives to enact their preferences across a wide range of policy areas. Every president has issued executive orders or similar directives. Even William Henry Harrison, who was president for only thirty-one days, issued a proclamation, calling Congress into a special session.

Unilateral directives are documents that the president issues to direct the activities of the executive branch. As such, they afford presidents an independent means of controlling a wide range of governmental actions. More controversially, they may enable presidents to unilaterally enact their own policy preferences by a mere stroke of a pen, as they can serve to prompt congressional action, to preclude it, or to circumvent a recalcitrant Congress. As the Clinton White House adviser Rahm Emanuel explained in 1998, "Sometimes we use it in reaction to legislative delay or setbacks. Sometimes we do it to lead by example and force the legislative hand. Obviously, you'd rather pass legislation that can do X, but you're willing to make whatever progress you can on an agenda item." Or as Clinton White House Communications Counsel Paul Begala described unilateral presidential directives, "Stroke of the pen, law of the land. Kind of Cool."

Indeed, unilateral presidential directives can be an attractive resource for presidential action. And presidents generally either want to act or have to act. Most presidents enter the office with an ambitious agenda; and at times the nation requires action, and executive action may be the best or only option. Given various institutional constraints on other types of presidential action, unilateral presidential directives can be a convenient means to many ends.

Sometimes presidents use these directives for minor or noncontroversial matters, but other times they employ them for major or highly controversial policies. Better-known examples of unilateral presidential directives include Abraham Lincoln's Emancipation Proclamation, FDR's wartime internment of Japanese Americans, Harry Truman's desegregation of the military, JFK's creation of the Peace Corps, Bill Clinton's proclamations of new national monuments, and George W. Bush's executive orders for faith-based initiatives, the detention of suspected terrorists, and domestic spying. But there have been thousands of other unilateral presidential directives, and they have figured in many of the most important and controversial episodes in American political history. Unilateral presidential directives can therefore tell us a lot about American politics in general and the presidency in particular. As one of the earliest studies of executive orders put it, "The history of executive orders is, to a great extent, a narrative of the evolution of presidential power."

As the controversy about Bush's executive order for domestic spying and the other points noted above suggest, unilateral presidential directives are an important political phenomenon. And some basic background information about them suggests that they are also an intriguing political phenomenon, as their definition, justification, limits, format, numbering, and cataloging are surprisingly loose and inexact.

Types

There are over two dozen different types of unilateral presidential directives. A study by the Congressional Research Service (CRS) in 2007 identified twenty-seven distinct types: administrative orders, certificates, designations of officials, executive orders, general licenses, homeland security presidential directives, interpretations, letters on tariffs and international trade, military orders, thirteen different types of national security instruments, presidential announcements, presidential findings, presidential reorganization plans, proclamations, and regulations. That list fails to mention presidential determinations and memoranda, so the total number of types of unilateral presidential directives may be twenty-nine. But the different names do not always designate different "tools": many directives are very similar in terms of their substance and authority, regardless of what the president decides to call them. And the definitions of many of these devices are ambiguous or even nonexistent.

Executive orders are the best known and most common type of unilateral presidential directive. They date to the earliest days of the republic, but the term "executive order" was not regularly applied to unilateral presidential directives until the late nineteenth century, and the first directives to be officially designated as executive orders were military orders by Abraham Lincoln. There is no official definition of what constitutes an executive order; there is no law—or even an executive order—that defines what an executive order is. A report by the U.S. House of Representatives in 1957 provisionally defined them as follows: "Executive orders are written documents denominated as such. . . . Executive orders are generally directed to, and govern actions by, government officials and agencies." This definition certainly captures part of what executive orders are, but it is inadequate, as its authors realized: "Essentially an Executive order is a written document issued by the President and titled as such by him or at his discretion." That circular reformulation indicates the difficulty of a strict definition. The following informal definition by a legal librarian is perhaps somewhat more helpful: "Executive orders are the formal means through which the President of the United States prescribes the conduct of business in the executive branch. Executive orders are presidential directives issued to federal government agencies or officials. An executive order is basically a document the President issues and designates as such." More to the point, executive orders are a primary means by which presidents impose their will by directing the activities of the U.S. government.

Proclamations are another main type of unilateral presidential directive. Prominent examples of proclamations include George Washington's Neutrality Proclamation and Abraham Lincoln's Emancipation Proclamation. Like executive orders, proclamations are generally written documents that the president issues to direct governmental action, and they lack a strict definition. Accounts disagree somewhat about whether or how these two devices differ. Legally and constitutionally, there is no difference between executive orders and proclamations. In Wolsey v. Chapman, 101 U.S. 755 (1880), the Supreme Court found no material distinction between them.

Congress has also treated executive orders and proclamations as being very similar, if not interchangeable. Both are subject to the publication requirements of the Federal Register Act of 1935, but presidents have often not distinguished between them or consistently used one label or the other. Therefore, the House report of 1957 concluded, "The difference between executive orders and proclamations is more one of form than substance." Similarly, in 1974, when the authors of a U.S. Senate report on executive orders asked officials at the Justice Department and the Federal Register how to distinguish between executive orders and proclamations, the officials acknowledged that the devices were interchangeable. According to th...

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