Meredith McLain

Do presidents freely issue unilateral directives to evade an obstructionist Congress, or are they constrained by their legislative opponents? Though conventional wisdom purports evasion, scholars actually find consistent evidence of presidential restraint. However, this literature almost exclusively focuses on executive orders, rather than the myriad of other unilateral directives at the president’s disposal, and thus offers an incomplete picture of how effective Congress is at constraining unilateral policymaking. Accordingly, I develop a theory of how presidents adjudicate between different types of directives based on trade-offs related to their traceability, presidential incentives, and Congress’s ability to retaliate based on available information. I argue that presidents rely on more traceable unilateral directives, specifically executive orders, and published memoranda, when facing ideologically aligned congresses that are less likely to retaliate. But they use less traceable directives, like unpublished memoranda, to evade legislative opponents, but at the expense of credit claiming opportunities. Using an original dataset of executive orders, published memoranda, and unpublished memoranda issued between 1981 and 2020, I find empirical support for the theory. Overall, this study demonstrates how presidents can overcome legislative checks by controlling the traceability of their unilateral activities.

Presidents have a wide array of tools at their disposal to unilaterally influence public policy, without the direct approval of Congress or the courts. These unilateral actions have the potential to affect a variety of individual rights, either profitably or adversely. Governors too can employ unilateral directives for similar purposes, often impacting an even wider range of rights. In this Article, we collect all executive orders and memoranda related to individual rights issued between 1981 and 2018 at the federal level, and across the U.S. states, to analyze their use over time. We find that chief executives of all kinds are more likely to issue unilateral directives that expand individual rights if they are Democratic or liberal and when there is a public appetite for rights advancement. Furthermore, governors issue more rights-related directives when they view Presidents as likely to be restrictive or inactive on individual rights.

How is the public able to influence presidential unilateral action use? Scholars find mixed evidence regarding presidents’ incentives to act unilaterally based on public support. Some find that presidents will use more highly traceable directives when approval is low, while others find the opposite trend. I argue this disagreement in the literature is due to the failure to consider congressional sanctioning in concert with public support. I hypothesize that presidents facing a low risk of congressional sanctioning will favor highly traceable directives when their approval is low. However, once the risk of sanctioning increases, this trend will shift with popular presidents favoring highly traceable directives. I use an original dataset containing executive orders and published and unpublished executive memoranda to show that the influence of public support on presidential unilateral directive use is conditional on the chance of congressional sanctioning. This paper attempts to remedy a disagreement in the literature regarding the influence of public support on presidential decision-making.

Scholarship on executive unilateralism largely assumes that presidents act alone, without accounting for the role of bureaucratic actors. Though recent studies examine agencies’ role in the formation of executive orders, the broader literature has yet to fully explore agency implementation of unilateral directives and how it shapes presidential decision-making. In this paper, I develop a theory concerning the role of bureaucratic non-compliance in shaping presidents’ choice of unilateral directive. Specifically, I argue that as presidents gain more political control over agency decision-making or agency capacity increases, presidents will be more willing to delegate authority to the agency via bureaucratic directive, especially highly traceable directives. To test these predictions, I use an agency-year level dataset of unilateral directives to identify the agency primarily responsible for implementation and match that information to other agency-level characteristics, such as political control, and capacity. I find that an increase in political control does result in presidents’ directing these agencies with unilateral directives, specifically highly traceable directives.