Unilateral Action by the President

Written By: Joshua Lax.

The United States is generally considered a country where ’checks and balances’ keep the nation from devolving into dictatorship.  The American republican system provides the three branches of government (Congress, Judiciary and Executive) with enumerated powers, as well as safeguards over other branches.  This specific system was established at founding to prevent unilateral action by one branch of government, thus creating a system where two, if not all three, branches of the federal government would have to work together to enact legislation and govern the country.  As it was written in the federalist papers “…the members of each should have as little agency as possible in the appointment of the members of the others”[1].  However, there have been three methods employed by presidents to circumvent this systemic order: (1) Executive Agreements, (2) Executive Proclamations and (3) Staffing of the Executive Office of the President.   Through these three methods, presidents have been able to bend the rules and have been allowed to act in a unilateral fashion.

For the purposes of this review, three scholarly articles have been considered.  (1) Promoting the President’s Foreign Policy Agenda.  This article discusses the use of executive agreements as policy vehicles, juxtaposing them to the more typical congressionally approved treaties.  The study consists of data from 1977-1996.  (2) The Power of Decree.  This paper debates the use of Executive Proclamations, as a legitimate presidential power.  The data set discussed includes all proclamations from 1977-2005.  (3) Staffing Alone: Unilateral Action and the Politicization of the Executive Office of the President, 1988-2004.  This article discusses how the choices a president makes in terms of staffing the executive office have a direct relation to his/her ability to effectives push through policy unilaterally.  Together, these three articles, and the powers discussed therein, may strike fear in those endorsing the balanced nation of the American republic, conversely, others may argue that these powers are necessary in a time of crisis to allow for a dynamic executive office, uninhibited by bureaucratic gridlock.  While there is no ‘right’ answer, the system was specifically designed to force cooperative, rather than unilateral, action.

In Promoting the President’s Foreign Policy Agenda an unbelievable stat is cited on the first page, “Of the 4,204 international agreements reviewed by the authors for this study, roughly 90 percent are executive agreements – not treaties”[2].  In a system designed to establish a separation of powers and envisioned to have the president negotiate treaties under the purview of the Senate[3], this is shocking.  It is also noted that in times of divided government the frequency of executive agreements increase[4].  In effect, when a president faces more difficulty in passing a proposed treaty through congress, they have simply circumvented the process and established the agreement through executive order.

In response to the growing use of such agreements Congress passed the Case-Zablocki Act in 1972, which compels the President, through the Department of State, to “transmit the text of all executive agreements, including nonwritten agreements, to the Senate Foreign Relations Committee within sixty days” of taking effect[5].  In the words of the Act’s chief sponsor, Senator Clifford Case, it was passed to “restore the constitutional role of Congress in making this country’s foreign policy.[6]  While this is a step towards transparency, it is still specifically after taking effect, thereby diminishing, if not totally eliminating, the Senate’s constitutionally defined role of providing adviceand consent to any international agreement.  The article goes on to list four areas of policy, which are considered Universal Presidential Foreign Policy Priorities.  These include, alliance building, defense cooperation and military assistance, arms reductions, nonproliferation and the promotion of peace, and improved trade and economic relations.  It is noted that “bilateral agreements are the vehicle choice for executive agreements”, while “multilateral agreements… are much more likely to be concluded as treaties.[7]  This article provides a comprehensive analysis of international agreements made between 1977-96, outlining preferences in both substantive policy and the method chosen to enact.  It sheds appropriate light on the skirting of constitutionally sanctioned practices through unilateral action by presidents.

The use of executive proclamation has a long history rooted in some of the most pivotal events in America’s past.  The most well known of these are President Washington’s Proclamation of Neutrality (1794)and President Lincoln’s Emancipation Proclamation (1863)[8].  The presidential proclamation is “an instrument that states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law.[9]”  Concisely, presidents are able to define situations, and when uttered, carry the same force of law as an executive order[10].  This article, The Power of Decree, analyses a data set of 334 proclamations uttered between 1977 and 2005.  The data states that seventy percent of such proclamations are used to affect trade policy, an overwhelming majority of the proclamations issued[11].  Historically, scholars have dismissed the study of presidential proclamations as simply ceremonial or symbolic gestures; however, the authors disagree and investigate the substantive policy role of these statements.  One of the arguments presented in the paper runs contrary to an argument made in the first article discussed: “The actions are often covert presidential actions that receive little or no support from Congress and may be done to actively circumvent Congress.[12]   As discussed earlier, the Case-Zablocki Act was specifically passed to avoid this notion of ‘covert action’ by the president and enhance the transparency of unilateral presidential action.  In concluding, the authors emphatically state that proclamations are the tools in which presidential authority has expanded over the modern presidency[13].

The least well-known practice among presidents to achieve their policy goals is the staffing of the Executive Office of the President.  In Staffing Alone, Dr. Lewis discusses the politicization of the executive offices through an economic lens.  Using the notion of elastic and inelastic demand, without stating it explicitly, he argues that private sector wages can dictate how much politicization the president can conduct.  He begins by discussing the two distinct types of employees in the federal government, Appointees and Career Civil Servants[14].  He states that presidents are caught in a difficult place where “…[one] cannot politicize without endangering capacity.[15]  Moreover, when there is a high level of complexity in the work at hand, critical capacity supersedes political appointment[16].  Through his research data, no clear pattern for politicization is apparent and the generally accepted notion that Republican presidents politicize more than Democratic ones is debunked.  While he identifies interesting information on how presidents choose to appoint staff to departments, this article comes up with little more than common sense conclusions.  For instance, “politicization is significantly higher in the second year of a president’s term if that president is from a new party.[17]

While unilateral action by the president is forbidden by the system of checks and balances utilized by the constitution, modern presidents have circumvented these limitations by using three principal methods; (1) Executive Agreements, (2) Executive Proclamations and (3) staffing choices.  While Promoting the President’s Foreign Policy Agenda and The Power of Decree both offered interesting insights into presidential action, Staffing Alone fell short.  Presidents, by the power of their written word, spoken word or employee selection can single-handedly have substantive effects on policy.  The major check on this power was not mentioned in any of the articles discussed.  The Supreme Court stands as the final test to the constitutionality of policy.  While the president, using the aforementioned methods can side-step congress, he/she cannot avoid the Supreme Court.  Any act can be brought before the court to determine constitutionality and this serves as the only check on unilateral presidential action.  While dynamic policy may be necessary for the president to adapt to fast-paced changes in the international system, in the long run the federal court is granted the final say on the legality of such underhanded policy moves.

[1] Madison, J., “The Federalist No. 51,”  Independent Journal (1788)

[2] Caruson, K., & Farrar-Myers, V. A., “Promoting the President’s Foreign Policy Agenda,” Political Research Quarterly 60 (2007): 631

[3] ibid: 631

[4] ibid: 632

[5] ibid: 632

[6] ibid: 634

[7] ibid: 639

[8] Rottinghaus, B., & Maier, J., “The Power of Decree,” Political Research Quarterly 60 (2007): 339

[9] ibid: 339

[10] ibid: 339

[11] ibid: 340

[12] ibid: 338

[13] ibid: 342

[14] Lewis, D. E., “Staffing Alone,” Presidential Studies Quarterly 35 (2005): 499

[15] ibid: 501

[16] ibid: 505

[17] ibid: 507

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