The Dual Executive
Unilateral Orders in a Separated and Shared Power System
Michelle Belco and Brandon Rottinghaus


Contents and Abstracts
1 Introduction: The Dual Executive and Unilateral Power
chapter abstract

This book takes the next step in the study of unilateral power by quantitatively and qualitatively analyzing how the president's unilateral orders are part of a separate and shared power system. The chapters that follow explore both the prerogatives presidents undertake and obligations they fulfill with respect to their independent and administrator executive functions. It builds on several generations of scholarship on the presidency and draws from both public law and behavioral approaches. Debate over the use of unilateral orders suggests that a president's ability to act without the consent of Congress is largely unchecked by traditional institutional arrangements whereas others suggest presidents are more likely to be restrained by Congress because many unilateral powers are justified with interbranch authority.

2 A New Theory and Approach to Studying Unilateral Orders
chapter abstract

Chapter 2 presents an organizational model to chart the process of when in the policy process a unilateral order is issued. This model conceptualizes the use of unilateral orders based on the dual roles of the executive at one of three stages in the policy-making process: at the agenda-setting stage before bills have been introduced into the legislative process, during the president's bargaining with Congress after bills have reached the agenda, and when the president is implementing law passed by Congress. This provides a basis for exploring the theoretical expectations derived from the institutional and power-sharing arrangements.

3 The Presidents' Orders: Proclamations and Executive Orders
chapter abstract

Chapter 3 describes the data collected and evaluates the trends over time. The data include executive orders and proclamations, the two most prominent types of unilateral orders. The data set includes a total of more than 2,400 unilateral orders issued from President Gerald Ford to President George W. Bush from 1974 to 2009.

4 The Source of Authority and Delegation of Powers
chapter abstract

Chapter 4 explores the president's sources of authority and how they are used. Presidents can rely on their constitutional powers or authority delegated by Congress. They may invoke statute-based and constitution-based sources of authority when issuing unilateral orders although the variation is influenced by the different separate and shared power arrangements. The chapter examines the variation in the sources of authority the president cites, as well as when he or she invokes statute-based or constitution-based sources of authority, and the influence of the extent of authority and discretion delegated by Congress.

5 An Independent President or Administrator? Command and Routine Orders
chapter abstract

Chapter 5 considers the unilateral actions of the dual roles of the president at the agenda-setting stage, before legislation has been introduced. At this stage, presidents have the incentive and ability to act as administrators to issue a routine order and as independent presidents more likely to issue a command. This is the most familiar and potentially dangerous type of presidentthose who use their unilateral powers to manage the political system in a way that corresponds to their preferences and their agenda. Because Congress is focused on identifying the topics to include on the agenda and deciding in committee the direction legislation should take, presidents do not necessarily need to work with Congress; instead, they can act independently creating edicts, which they expect others to follow.

6 An Independent President or Administrator? Orders to Preempt and Support Congress
chapter abstract

Chapter 6 explores the unilateral actions of the president's dual roles after legislation (bills) is on Congress's agenda. At this stage, presidents can bargain with Congress over the formulation of legislation. Independent presidents use unilateral orders to preempt the lengthy legislative process and administrators do so to issue unilateral orders to support legislation. Presidents are clearly interested in issuing unilateral orders that work to their advantage whether it is to prevent legislation from progressing or to facilitate legislative progress when it is otherwise slowed by collective action problems in Congress. Presidents are more likely to use unilateral orders to preempt legislation when the issue is on their agenda, there is greater friction between the branches, Congress is internally divided, and presidents have greater discretion to act.

7 An Independent President or Administrator? Orders That Adapt and Implement Law
chapter abstract

Chapter 7 investigates the dual roles of the executive after laws have been passed by Congress. At this stage, independent presidents issue unilateral orders to adapt legislation to suit their needs and administrators use them to faithfully implement legislation. This is the final stage in the policy-making process and one where the president has the duty to execute law. The challenge for presidents is to shape the outcome of the legislative process to their favor. This is the president's final opportunity, and at the height of his or her powers the president takes full advantage of this privileged place.

8 Conclusion: Unilateral Orders in a Separated and Shared Power System
chapter abstract

Chapter 8 concludes with the argument that, with respect to unilateral orders, presidents often have the authority to be independent but do not always act that way. Independent presidents engage their executive authority, and discretion, to act alone, whereas administrators exercise delegated authority and political will to work with Congress. The knowledge of how presidents use unilateral orders may help to dampen the fear that presidents are able to use their unilateral powers unchecked because of a congressional retreat. The circumstances under which presidents act against Congress are selective. What remains is an understanding and awareness that the majority of unilateral orders are used to facilitate the needs of government. Concerns over an aggressive or overbearing president who pushes around an unsuspecting Congress may be overblown as presidents balance their political goals with their institutional responsibilities and duty to act.