# Modeling the Scope and Force of Presidential Powers

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## Modeling the Scope and Force of Presidential Powers

Figure 1 represents the premises of our model. The first node represents three ideal-typical constitutions that define formal scope powers of a president, covering the range from those that restrict the president's ability to implement an agenda (on the left) to those that provide the executive with strong agenda setting powers (on the right). We depict the U.S. Constitution in the top figure, using a bold line to suggest a relative balance of power. In the bottom figure we depict the ideal-typical Latin American president, using a rightward sloping line. The next set of nodes adds the powers that reinforced scope. Since reinforced powers are typically positive, we have used bold lines to imply that presidents with weak or neutral formal powers will likely range from moderate to very strong after adding these reinforced powers. However, the bold line implies only maintenance of power for the powerful presidents, in order to suggest that where presidents already have strong formal powers, reinforced powers are superfluous. In short, the graph is meant to highlight the idea that formal and reinforced powers are not simply additive; instead reinforced powers are, at least in part, substitutes providing decreasing marginal utility as a president's formal powers increase.

We model a similar dynamic with reference to force. Here again formal powers can be positive, neutral or negative, and we use a bolded line pointing downward in the top figure to depict a president under a constitution that supposes a balance of power, while the bottom figure has the bold line sloping to the right to represent a president with stronger constitutional powers. The justification for the differently sloping lines is the same as for scope.

These two different paths lead to a similar outcome, powers within a small range on the right side of the graph depicted by the grey oval. Presidents with weaker formal or reinforced powers—with relation to scope and/or force—might end up on the left part of the oval, and those with stronger power to the right side, but overall presidents will be tall and venti, not “small.” To empirically ground this finding, the following sections examine reinforced scope and force in U.S. and Latin American cases to show how executive use formal and reinforced authority to implement their agendas.

## Putting Policy on the Table: Formal and Reinforced Scope

Here we summarize types and give examples of unilateral executive actions, beginning with formal decree powers in Latin America and then moving to the reinforced powers often employed by U.S. presidents. Using these types, we then compare the frequency of unilateral directives across the U.S. and a sample of Latin American countries. Using the volume of directives as a proxy, we show that Latin American presidents are indeed extremely strong. While formally weak U.S. presidents do not reach the levels of agenda-setting power enjoyed by their counterparts in Latin America, they do retain considerable unilateral powers.
Latin America

While there are prominent exceptions such as in Chile during the Allende presidency, in Latin America the combination of constitutional provisions and control over political parties has generally translated into very high passage rates in the legislature for president-initiated bills (Alemán and Navia 2009 ). Here we focus on a different aspect of scope: the ability these presidents to skirt the legislative process and implement policies unilaterally (Tsebelis and Alemán 2005, Carey and Shugart 1998). Such powers are sometimes enshrined as Constitutional Decree Authority (CDA) and in some cases this is augmented by Delegated Decree Authority (DDA). Further, informal mechanisms have helped the presidents to interpret vague constitutional language that references the decree power in their favor. Pereira, et al. (2005) explain, for example, that while the Brazilian constitution has a limited decree power for presidents, it also has a provision that allows presidents to issue "provisional measures" (medidas provisórias; MPs) for urgent issues. As a result, the presidents have, with the tacit tolerance of the Supreme Court, taken liberties with the definition of the term "urgent" to implement policies that were not necessarily time sensitive. A second example regards the constitutional limit on the effectiveness of MPs to 30 days, which led presidents to simply reissue them once they expired. The Brazilian Congress and President Fernando Henrique Cardoso eventually ended this practice, but the example shows how presidents have followed multiple and perhaps questionable routes to implement their policies.

Latin America is replete with similar examples. President Carlos Menem of Argentina (1989-99) was among the most notorious of the decree-wielders, in spite of a constitution that is mute with regard to such powers (see Ferreira and Goretti 1998; Mustapic 2002). As noted, the Congress' attempt to challenge this practice backfired when the packed court reified the decree power. Moreover, Menem's use of decrees suggests he had little respect for the legislative process. For example, he changed the organic law of the central bank, froze lawsuits against the Social Security Administration, reduced budgetary outlays, ordered the transmission of soccer matches, and determined the payments to social security from soccer revenues.

In response and as part of a deal to permit presidential reelection, the Argentine Congress did force a constitutional change that was supposed to rein in the use of presidential decrees. There now exists, therefore, a formal mechanism though which the legislature can oversee and regulate decrees. Despite this, presidents continue to use decrees as a standard tool. Since Menem's presidency, Argentina presidents have never issued fewer than 1,000 decrees in a single year, and they often issue double that number.

A similar dynamic has taken place elsewhere. Democratically-elected Venezuelan president Hugo Chávez has often relied on constitutional DDA despite enjoying a legislative majority through most of his time in office. For example, in mid-December 2010 Chávez took advantage of his expiring supermajority in the lame-duck National Assembly to obtain passage of an 18-month long enabling law (ley habilitante), the fourth time he was delegated this power since coming to office in 1999 (Daniel 2010; Corrales 2011). This law, which was denounced by the U.S. Department of State as autocratic, allowed him to issue decrees across a wide range of areas including housing, land, finances and security. Chávez has used decree powers to pass hundreds of laws, including measures to nationalize parts of the oil industry (Decree 5200) and expropriate businesses and private lands (Decree 7915). However, similar to Menem, decrees have also been used for such unessential business, such as prioritizing the importance of the internet for national development (Decree 825) or naming citizens to positions in low-level bureaucratic agencies (e.g. Decree 8483). As is the case across Latin America, the high volume of executive decrees obfuscates the much smaller number of decrees that clearly aim to legislate.

While Menem and Chávez were infamous for their unilateral governing styles, even presidents perceived to be pluralistic democrats rely on executive decrees in a combination of vital and non-vital policy areas. More constitutionally constrained Uruguayan presidents regularly issue more than 500 decrees a year, and while many deal with non-vital and non-urgent matters—such as declaring official mourning for the death of Argentine ex-president Raúl Alfonsín (Decree 166/009)—others are quite significant, determining such things as welfare eligibility (Decree 118/005). And as described above, Brazilian presidents have used the vague language constraining the use of medidas provisórias to their advantage, issuing on average more than four a month even after a constitutional amendment regulated their use in 2001. In his time in office, ex-president Fernando Henrique Cardoso relied on MPs to set regulations on professional sports teams (MP 39) and reorganize the federal bureaucracy (MPs 37 and 38). Even Chilean presidents, who are perhaps the most constrained in the region in their use of decree powers, issue dozens every year. In a controversial 2007 move, for instance, then-president Michelle Bachelet signed a Supreme Decree authorizing the distribution of the so-called “day-after” pill to females over 14 years of age without parental consent (although this was later overturned by the Constitutional Court).

A final example comes from Panama, where presidents' scope is reinforced by the constitutional provision allowing cabinet ministers the ability to issue decrees (termed decretos ejecutivos). However, since these ministers are themselves appointed directly by the president—through decree—their legislation is bound to be directly or indirectly influenced by the president.

In sum, there are multiple examples of Latin American presidents using formal and reinforced powers to implement policy unilaterally. And though we have not dealt with them here, many studies highlight these presidents' success in controlling the legislative process. The presidents' scope, therefore, is very broad. Some presidents are empowered through more generous constitutions, but even those without strong constitutional decree powers issue them frequently, many of which have wide impacts and others simply show the presidents' latitude in implementing policies without input from their legislatures.

In sum, issuing executive decrees that cross the boundaries from regulation into legislation is a common practice in Latin America, even among presidents who lack clear constitutional authority to do so. And though we have not dealt with them here, many studies highlight the Latin American presidents' success in controlling the legislative process. The conclusion, then, is that the Latin American presidents dispose of high levels of scope.
The United States

The U.S. presidents are formally decree-less, but the scholarship examining U.S. Executive Orders (see Deering and Maltzman 1999; Howell 2003; Mayer 2001; Krause and Cohen 2000) shows that they too have had success in implementing their agendas. As Howell (2005) explains, U.S. presidents have two fundamental ways of advancing their policy agenda: submitting proposals through Congress, or exercising their unilateral powers. These directives, which straddle a line between formal and reinforced scope, include executive orders, executive agreements, proclamations, national security directives, recess appointments, and memoranda, and allow the president to dictate policies or manage the bureaucracy without Congressional endorsement.7 Another tool is central legislative clearance. In place since the 1920s but significantly strengthened by President Reagan’s Executive Order 12291 (West and Cooper 1989), this requires that agencies submit their rules to the president through the Office of Management and Budget (OMB) before publication.8 The procedures not only allow presidents to oversee bureaucratic procedures, but also to apply political litmus tests to agency decisions (Gilmour 1971; Larocca 2006). In so doing, executive rulemaking crosses into the legislative arena.

In contrast to Latin American countries, there is no constitutional provision or statute that explicitly permits executive orders, apart from rather vague language granting “executive power” (Article II, Section 1). These orders, however, are often of high consequence, and can only be overturned by legislation—which is subject to a presidential veto—or court proceedings, implying high force, as well as scope. Howell shows that in most cases, presidents have used orders to change existing policies over which Congress remains gridlocked (Howell 2005, 2003).

Beginning with George Washington,9 U.S. presidents have issued orders dealing with key political and social issues. Between about 1980 and 2010 presidents have issued between 40 and 70 orders per year, though earlier presidents, especially FDR and Truman, issued many more (see Table 2). Most of the orders create task forces, set up commissions and advisory boards, or implement congressionally-approved programs (Warber 2006). A large percentage of the orders, however, cross into the realm of legislation.

Dividing the orders into categories of administrative, symbolic, and policy-oriented is an inexact science, since as Madison noted, the boundaries between the branches are “in general so strongly marked in themselves, [they] consist in many instances of mere shades of difference” (cited in Fisher 1978). It is arguable, therefore, whether bureaucratic reorganizations, pay rate changes, or even the setting up of investigatory commissions fall squarely into the administrative category. Still, it is necessary to consider the content of the orders and classify them in order to discuss intrusions of the executive onto the legislative turf. West and Cooper (1989) find an impressive growth of “quasi-legislative” rulemaking in the 1960s and 1970s. This is supported by data from Warber (2006), who classifies all U.S. Executive Orders from 1936 to 2004 as symbolic, routine, or policy-initiating.

The policy content of these orders is evident. Clinton, for example, issued orders that blocked property and prohibiting transactions with the Taliban (EO 13129), declassified documents (EO 12937), affected child support enforcement (EO 12953), and changed federalist arrangements (EOs 13083 and 13132). Table 3 provides examples of the executive orders issued by Presidents George W. Bush and Barack Obama with legislative content. This list of orders includes those that affect the economy, foreign relations, diplomacy, and security. And a statement by President Obama clearly indicates that he views this type of power as a tool to overcome legislative obstacles:

In recent weeks, we decided to stop waiting for Congress to fix No Child Left Behind, and decided to give states the flexibility they need to help our children meet higher standards. We took steps on our own to reduce the time it takes for small businesses to get paid when they have a contract with the federal government. And without any help from Congress, we eliminated outdated regulations that will save hospitals and patients billions of dollars.

(24 October 2011: “Remarks by the President on the Economy and Housing)

Other reinforced tools of direct administration are even less clearly defined than executive orders. Presidential memoranda are pronouncements by the chief executive that are similar to executive orders in content and use, but lack guidelines for issuance and publication. Often, memoranda are directed at executive agencies to establish policy guidelines. A similarly vague tool is the presidential proclamation, an instrument that states a condition, declares a law, recognizes an event, or triggers the implementation of a law (Cooper 2002). Some of these are ceremonial, such as declaration of national days of observation, while others are quite substantive—such as Washington’s Proclamation of Neutrality or Lincoln’s Emancipation Proclamation.

A last instrument of associated direct presidential action are" signing statements" (Garber and Wimmer 1987, Cooper 2005). These pronouncements, which gained prominence under the Reagan Administration, are issued by the president at the moment of signing a congressional bill. Presidents use the opportunity to provide general commentary on the bill, perhaps interpreting the law, announcing constitutional limits on its implementation, or indicating how bureaucrats should administer it (Cooper 2005). In practice, signing statements have been employed as a type of line-item veto to set boundaries on the reach of legislation and to structure its implementation, but without the use of the formal veto or the opportunity for legislative override processes. From the president’s perspective, the strength of these pronouncements is that there is no constitutional or legal impediment to their issuance, disabling the legislature’s ability to respond.

In sum, it is clear that U.S. presidents change policy in important ways without congressional action.  Figure 2 shows a breakdown of direct presidential action in the U.S. between 1993 and 2011, adding these four reinforced powers: orders, signing statements, proclamations, and memoranda. The yearly totals surpass 200 and approach 300 in most cases, indicating a much more active U.S. president than commonly assumed.
Comparing the Frequency of Unilateral Directives

The above examples are meant to suggest that while many Latin American presidents have more formal power, and many have arguably abused their reinforced powers, the U.S. presidents also have sufficient power to implement important policy items. As a result, while decree powers have made Latin American presidents the object of scorn and concern, U.S. presidents only look weak on a relative scale, not on an absolute one.

The frequency with which different presidents use unilateral powers suggests a similar interpretation. Figure 3 compares the total number of unilateral directives (executive orders, presidential proclamations, memoranda, and signing statements) issued by U.S. presidents to all executive decrees in eight Latin American countries between 1993 and 2010. While U.S. presidents issued between 200 and 300 directives per year, the presidents of the other countries issued far more: between 400 and 900 for most country-years with the exception of Nicaragua (fewer decrees issued) and Argentina (more decrees issued). While quantity of decrees is not proof of their quality it seems reasonable to assume that Latin American presidents manifest broader decree authority than U.S. presidents.10 Still, the very high number issued from the U.S. presidents again the broad authority of that office.

Whether or not the U.S. orders and the Latin American decrees differ in degree or type, these data do highlight the high frequency by which the executives direct policy without input from the legislature. As we discuss elsewhere, the legislatures can constitutionally review these edicts, but the presidents’ veto power and the courts’ sometimes unwillingness to oppose presidential authority can cement these executive initiatives into law. In other words, the wide scope presidents enjoy through their control of agency rules and “administrative” decisions is further enhanced by the constitutions, the courts, and the legislatures’ organizational challenges.