The Politics of Executive Orders: Legislative Constraints on Presidential Power

Abstract

Conventional wisdom suggests that Presidents use executive orders, sometimes characterized as presidential legislation, when legislation is too difficult to pass (in the face of an opposition Congress, for example) or when executive departments or agencies tend to embrace their congressional patrons, rather than the White House. According to this model, executive orders are strategic instruments used by a President to circumvent the constitutionally prescribed policymaking process. Recently studies have found little systematic evidence that executive orders are used to circumvent a hostile Congress. We argue that strategic Presidents do use executive orders to circumvent a hostile Congress, but not if they are likely to be overtumed by Congress. In other words, the use of executive orders reflects both their ability to achieve and to maintain preferred changes to the policy status quo. We test this portrait of presidential decision-making by examining determinants of the annual variation in the number of executive orders issued during the post-World War II period.