by Ricardo Jose Pereira Rodrigues. New York: LFB Scholarly Publishing, 2007. 318pp. $75.00. ISBN: 9781593322120.
Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: davidddehnel [at] augustana.edu.
According to Richard Neustadt’s classic study, the essence of presidential power is the power to persuade, not command. Yet, through executive orders and other vehicles, presidents often adopt the posture of command. In THE PREEMINENCE OF POLITICS, Ricardo Jose Pereira Rodrigues argues that in practice executive orders confirm Neustadt’s thesis. Executive orders are shaped by the president’s political environment, and their effectiveness is constrained by actors inside and outside the government. Rodrigues concludes that the active use of executive orders by modern presidents does not signify a dangerous expansion of executive power.
In this study, Rodrigues is concerned with political checks on presidential power, and, for the most part, sets aside legal considerations. Accordingly, the interaction of law and politics is not much explored in this book, rendering the study less interesting to scholars of public law than, for example, Phillip Cooper’s excellent BY ORDER OF THE PRESIDENT. Rodrigues implicitly follows Neustadt, not only by focusing on persuasion versus command, but also by downplaying legal aspects the separation of powers. In the Neustadt’s often quoted formulation, the structure of American government is one of “separated institutions sharing powers” (p.29). For Rodrigues, it does not matter whether an executive order has any foundation in statutory or constitutional law, the president is simply exercising power (executive or legislative) that is shared with Congress. As I will argue below, this approach necessitates that the book’s upbeat conclusions be qualified.
Rodrigues draws his conclusions from a qualitative study of executive orders in three policy areas across nine presidencies. Following earlier studies, Rodrigues defines executive orders as formal, published statements directed to members of the executive branch (p.14). He distinguishes between policy-oriented and housekeeping orders. The latter are described as “orders which deal with personnel matters and with matters that have to do with the mechanics of running the federal administration, such as building maintenance, etc.” (p.15). Setting aside the housekeeping orders, Rodrigues examines the policy-oriented orders relating to equal employment opportunity, central control of regulatory authority, and environmental policy. The presidencies of Eisenhower, Kennedy and Johnson are only represented in the analysis of employment opportunity. The discussions of regulatory review and environmental policy begin with the Nixon presidency.
Rodrigues’ contention that the use of executive orders is constrained by forces internal and external to the government [*827] is explored through the systematic application of hypotheses relating to the congressional environment, the public opinion environment, and the make-up of the president’s own supporting coalition. For each of the three policy areas, all of the policy-oriented executive orders are scored in relation to each of the six hypotheses specified in the study. These results are summarized in tables. Although the tabular data shapes the general conclusions, the core of the study is a qualitative analysis of the historical context of each order, based on a survey of the secondary literature.
With respect to Congress, Rodrigues considers three factors: party control, internal division over the issue, and congressional “intent.” Prior studies had suggested that presidents might resort to the use of executive orders when facing a Congress controlled by the opposing party (divided government), in order to enact unilaterally what they cannot accomplish through legislation. Rodrigues finds little support for this in his study. Instead, he contends that presidents tend to take the initiative when congress is internally divided on an issue, regardless of party control. If Congress is unified, the president generally does not attempt to issue orders that run contrary to the will of the body. In general, Rodrigues finds that while presidents do not use executive orders to govern in defiance of Congress, internal division in the legislature does provide an opportunity for presidential policy making.
With respect to constraints on the President from outside the government, Rodrigues explores the effect of three factors: public opinion, presidential prestige, and the make-up of the supporting coalition. Rodrigues finds that presidents usually issue orders in pursuit of policies that are supported by the public. This he sees as further assurance that presidents do not act as imperious free agents. Rodrigues doubts that presidential prestige is an important factor in the decision to issue an order. Although orders tended to be issued by presidents with high approval ratings, Rodrigues finds little evidence in his qualitative analysis to support the significance of high prestige as a causal factor. Finally, Rodrigues finds that, at least in some cases, presidents were motivated by sensitivity to the interests of important groups in their support coalition. Overall, Rodrigues sees presidents as responding to, and being constrained by, democratic political forces.
In the area of equal employment opportunity, the importance of the government as an employer and contractor allows presidents to initiate important policies using their supervisory authority over the executive branch. This has been the subject of a series of executive orders beginning with Eisenhower. Rodrigues argues that internal divisions in Congress on race issues, especially among the Democrats, have created political space for presidential initiative. On the other hand, he finds that presidents have been responsive to shifts in public opinion and the views of members of their support coalitions. On affirmative action, for example, Democratic presidents must balance the demands from minority groups in their support coalition against public skepticism. Ronald Reagan’s opposition to affirmative action was in tune with public opinion, but his attack [*828] was tempered because of support for it from corporate employers. The overall result, according to Rodrigues, is that policy change by executive order in this area has been incremental.
While Rodrigues’ overall argument on employment opportunity is persuasive, there are some weaknesses in the analysis. Richard Nixon is credited with introducing the strong form of affirmative action, including the use of numerical targets (a.k.a quotas). These policies, however, were initiated at the agency level, and Nixon’s support for them was informal. Given that most of the book sticks to executive orders, the discussion of Nixon’s role could be clearer. The discussion of Reagan, Bush Sr. and Clinton is plagued by much confusion over the term affirmative action. At times Rodrigues uses the term too broadly, applying it to equal employment policies generally. The management of claims of bias by the Equal Employment Opportunity Commission (p.76), the standard of proof in employment discrimination cases (p.92), and the inclusion of sexual orientation in anti-discrimination rules (p.98) are not “affirmative action” policies.
Given the breadth of environmental policy, it is not surprising that the strength of Rodrigues’ study lies in the rich details he describes rather than the generalizations he attempts to make. Throughout the book, Rodrigues treats internal division in Congress as a key variable, with such division creating the opportunity for presidential initiative. Ronald Reagan is seen as taking advantage of congressional division to launch anti-environmental initiatives in his first term, while Bill Clinton is depicted as exploiting division within the Republican controlled Congress for the opposite purpose during his second term. Yet, the empirical indicators of “internal division” used by Rodrigues are admittedly subjective (p.19), and it is difficult to define when it exists and when it does not. The blow by blow accounts of specific orders do show presidents taking advantage of their political opportunities, but the causal analysis runs into a danger of circularity. Successful presidents are seen as operating in a context of congressional division, while less successful or more cautious ones are deemed to be up against an undivided Congress.
The section on regulatory review is a careful study of presidential attempts, beginning with Richard Nixon, to establish centralized control over rule making by federal agencies. Rodrigues’ inattention to legal nomenclature creates some analytical confusion here as elsewhere. He uses the phrase “congressional intent” to signify the current policy preferences of the legislative branch, such that a president acts contrary to congressional intent if an executive order is in opposition to the preferences of a majority in Congress (p.18). Orders on regulatory review are said by Rodrigues to satisfy congressional intent if they match the ideological disposition of the current Congress towards regulatory policy. For scholars of law and politics, an order runs contrary to congressional intent when it violates the spirit of the legislation upon which it purports to be based. Intent relates to the purpose of congressional action, not merely to the preferences of its members. Agency regulation itself raises both legal and political questions about the authority to [*829] make law, and centralized review of proposed regulations by agents of the president adds another layer of complexity. Legislative intent and congressional preference should be distinguished.
The approach taken in THE PREEMINENCE OF POLITICS makes the book of tangential interest to public law scholars because legal factors are generally ignored. In particular, Rodrigeus’ upbeat assessment of executive orders does not account for their potential corrosive impact on the rule of law. Rodrigues does not examine the statutory or constitutional foundation of the orders he studies, or the lack thereof. He “makes no distinction between executive orders conceived as a means to implement a statute and executive orders designed to set unilateral policies” (p.15). Rodrigues’ study is limited to the policy substance of the orders, the political calculations of the president, and the response of other political actors to the order. Accordingly, his conclusion that the use of executive orders presents no serious threat to the balance of the political system does not account for their impact on legal institutions. In his important study of executive orders and other forms of presidential direct action, Philip Cooper (2002) argues that, when Presidents attempt to achieve their goals through actions of dubious legality, they undermine the formal and informal structures that bring coherence and legitimacy to public policy.
While it is certainly true that modern practice has made it is difficult to draw lines between legislative and executive power, political scientists should not yet abandon the possibility of retaining some coherence in the structure of governmental functions. It is reassuring to know, as Rodrigues concludes, that the president is not functioning as an unconstrained dictator, but the possible corrosive effects of unilateral presidential action on the rule of law remain a concern.
Cooper, Phillip. 2002. BY ORDER OF THE PRESIDENT: THE USE AND ABUSE OF EXECUTIVE DIRECT ACTION. Lawrence, Kansas: University Press of Kansas.
Neustadt, Richard. 1990. PRESIDENTIAL POWER AND THE MODERN PRESIDENTS. New York: The Free Press.
© Copyright 2008 by the author, David Dehnel.