The Traceability of Presidential Policymaking in the Face of Congressional Sanctioning

Abstract

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. However, they use less traceable directives, like unpublished memoranda, to evade legislative opponents, but at the expense of credit claiming opportunities. Using an original dataset of executive orders, published memoranda, and unpublished memoranda issued between 1981 and 2020, I find empirical support for the theory.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.