TAKE UP YOUR PEN: UNILATERAL PRESIDENTIAL DIRECTIVES IN AMERICAN POLITICS
by Graham Dodds. Philadelphia: University of Pennsylvania Press, 2013. 320pp. Cloth. $69.95. ISBN 978-0-8122-4511-0
Reviewed by Mariah Zeisberg, University of Michigan.
A new volume in the University of Pennsylvania Press’ DEMOCRACY, CITIZENSHIP, AND CONSTITUTIONALISM series, Graham Dodd’s book TAKE UP YOUR PEN offers an engaging discussion of governance through unilateral executive orders. The book is organized chronologically and is bookended with discussions about how this research could transform scholarly understandings of the presidency, American democracy, and American political development. The book states that its goal is to offer, in Stephen Skowronek’s words, “a politically informed and analytically productive understanding of how we got from where we started to where we are” (p.53, citing Skowronek, p.744) and it largely meets that goal.
The book portrays unilateral presidential directives as a worrisome and anti-democratic development associated with a major rise in unchecked presidential power – a development that it seeks to “document and explain” (p.3). Its constitutional explanation is straightforward: the Constitution’s textual ambiguity, and the inherent ambiguities of executive power (for example, Article II’s “take care clause”) do much to explain how the text creates opportunities for presidents to govern through executive orders. While Dodds discusses some early, restrictive judicial cases, he also demonstrates that the Supreme Court has delivered a mixed set of cases sometimes upholding, sometimes not, executive orders “subject to certain constraints,” and in modern times generally accepting executive directives as lawlike – albeit a source of law lower than statute, the Constitution, or treaties (p.67). Ambiguous constitutional text and ambiguous judicial precedent mean that changes in the use of this important governance power should be explained politically, not legally.
In service of this political explanation, the book provides a detailed investigation into the many uses of directives by presidents through history. The chapters are arranged chronologically. The book looks at the frequency of unilateral directives in each administration as well as common themes in the use of directives in administrations from George Washington to Barack Obama. Through these discussions readers are given a peek into some of the most momentous controversies of American history as well as some of the most arcane ones. What makes the work so readable is the fascinating and even bewildering variety of cases that Dodds explores. Despite the author’s theoretic anxiety, it turns out that not all uses of unilateral directives have been especially troubling: presidents have used them for mundane matters like administering pensions, managing employment in the executive branch, and requiring communications to [*142] be sent to the appropriate department. But presidents have also used unilateral directives for federal land management, sometimes with and sometimes against Congress’ will; to manage domestic unrest and recapture fugitive slaves (p.106); to pardon rebels in “the Whisky Rebellion” (p.107) and to offer amnesties in the former Confederate states (p.110); to govern Mormons (pp.113-115); to drop an atomic bomb on Japan (p.187); to introduce affirmative action for the executive branch (p.199); and to construct entirely new administrative agencies (p.203). I appreciated the book’s discussion, too, of some controversial non-uses of the unilateral directive. President Wilson refused to issue an order to desegregate executive departments (p.156). In October 1961, Martin Luther King, Jr. asked John F. Kennedy to use an executive order to outlaw racial segregation, offering a legal memo called the “Second Emancipation Proclamation” as an example, but Kennedy refused (p.200).
Dodds shows that, while every president has issued unilateral directives, their frequency and importance ticks up markedly with Theodore Roosevelt. Theodore Roosevelt “issued almost as many executive orders in his seven and one-half years in office as all of his predecessors combined” (p.87) – to the extent that Dodds claims Theodore Roosevelt as the true first modern president, especially if, as Terry Moe and William Howell suggest, unilateral presidential action “virtually defines what is distinctively modern about the modern presidency” (p.230). Because of Roosevelt’s association with this transformation the book gives him an entire chapter, discussing his use of directives for strikes and labor conflicts; pensions; race relations and the postal service; Asian immigration; coin design; for investigating and punishing troops; to create forest reserves, sometimes against Congress’ opposition; to create national monuments; and, most troubling, to use the Secret Service to keep legislators under surveillance. Dodds relays a very funny story of Roosevelt seeking to achieve simplified spelling – “check” for “cheque,” “wo” for “woe” – in the Government Printing Office through executive order. Alas, “[r]ebuked by the press, the judiciary, and the legislature, TR realized that he had lost, and he formally rescinded his executive order” (p.135). Throughout, the chapter portrays Roosevelt as an innovator in terms of the scope, topics addressed, magnitude, and frequency of use of the unilateral directive.
The stories marshaled in this work are fascinating, and researchers working on executive orders will benefit from a source that neatly redacts their use through a large sweep of history. At the same time, the book has some limitations. The first is that, as Dodds thoroughly discusses, the category “executive order” or “unilateral directive” embraces a confusingly broad category of communication devices issuing from the presidency. Lincoln is the first president to use the term “executive order,” and since then Dodds points out that the “definition, justification, limits, format, numbering, and cataloguing” of executive orders is “surprisingly loose and inexact” (p.6). In 1942 a Works Project Administration project collected more than 1500 executive orders, but Dodds says “there are likely thousands more” that escaped them (p.16). Dodds includes almost 30 [*143] different types of communication in the category of “unilateral directives,” including executive orders, administrative orders, certificates, directives, announcements, findings, proclamations, licenses, memoranda, and designations of officials (p.6). Apparently, the Federal Register Act requires executive orders and proclamations to be published, but not “unilateral directives” (p.221). The consequence of Dodds choosing the broader category – unilateral directives, not just executive orders – is that the parameters of the universe of his data is somewhat undefined. Nor does he provide a definition of the method he used in creating the universe of executive orders that he then describes. The first chapter tells researchers where they can turn to find various lists of executive orders, but the book’s looseness in defining the scope of its data may render the book less useful to other researchers than it might otherwise have been. The book would have improved by giving us a sense of the stakes of different conceptualizations of a unilateral directive. What kinds of larger research questions are enabled or stunted by reliance on different conceptualizations of what even counts as a unilateral directive?
This difficulty getting traction on the contours of relevant data seems relevant for the book’s chief theoretic anxiety. Dodds asserts, but does not argue, that “[e]xtensive governance by unilateral presidential directives...is in tension with all but the most narrow conceptions of democracy” (p.223). But it’s a hard stretch to argue that democracy suffers when a president is allowed to proclaim a day of memorial or clarify mailing instructions to different federal agencies. The use of unilateral directives for everything from communicating to bureaucracies, to proclaiming holidays, to making law, to resisting law signifies to me that no single theoretic question can be linked to the category “unilateral directive.”
The book assumes that executive orders create problems for legislative authority, asking “how can the president unilaterally make law by a mere stroke of the presidential pen, even in the face of significant congressional opposition?” (p.29), and positing that governance through executive orders is “arguably in tension with...separation of powers and checks and balances” (p.13). This claim is undermined in the cases where executive orders are rooted in statutory, not constitutional authority; in fact, Dodds says that “many unilateral presidential directives are issued pursuant to laws empowering the president to act. The set of existing statutory warrants for presidential orders grows with virtually every new law passed” (p.36). The book also notes moments where it seems clear that Congress and the Court could overturn acts of the president, but don’t do so. I found all of this separation of powers discussion to call out for more analytic clarity. The president’s power to administer statutory law raises very different dilemmas than the prerogative power or non-statutory military and policing powers. And of course, some separation of powers problems can emerge from a president’s failure to use his unilateral power forcefully enough, as when Congress passed the Ku Klux Klan Act giving President Grant more authority to send in federal troops for law and order in the South, and Grant issued a proclamation to the South [*144] urging “voluntary compliance” (p.112). Nonetheless, Dodds says that “the other two branches largely accept the regular use of unilateral presidential directives for important purposes. They could and should resist it, but they do not...[which] calls into question the efficacy of the constitutional system” (p.243). Not only do I disagree that Dodds has demonstrated anything pervasively worrying, but I also criticize the work for not offering us more concrete detail, in each case discussed, whether the use of the executive order implemented, resisted, or acted outside of legislative authority. More disciplined parallelism in telling the stories of these unilateral directives would have made the book more useful to other researchers who share the author’s anxiety.
The hypothesis that generates the most attention from Dodds is not normative or analytic but is rather temporal, about the development of unilateral directives over time. A strong and well-substantiated suggestion the book makes is for a new developmental history: “Some of the substantive uses of unilateral directives since World War II are new, but many are not...when viewed in a broad historical context, the use of unilateral presidential directives since World War II seems not so much to break new ground as to reflect and build upon previous precedents” (p.235). I found this interesting and noteworthy.
Finally, the concluding chapter’s long theoretic discussion of political development was broader than could be sustained by the material at hand. The conclusion criticizes Skowronek for not seeing how the rise of unilateral directives changes the both the constitutional theory and constitutional reality of the presidency (p.234) but says little about what in Skowronek’s account would be affected by the book’s analysis. The conclusion also takes up methodological debates about “conducting the social scientific analysis of historical phenomenon” and the “aspiration to produce a true general science of politics” (p.225) as well as debates about whether structure or individual agency is the primary determinant of political transformation. These discussions take the work afield. I was not convinced that tracing changes in how the executive order is used over time sheds light on whether agency or structure is a root cause of political change.
In conclusion, I found the book theoretically underdeveloped but still rich for its fascinating documentation of an important institutional event through history. I learned from the book, I enjoyed reading it, and I recommend it to presidency and American Political Development scholars.
Moe, Terry M. and William G. Howell. 1999. “Unilateral Action and Presidential Power: A Theory,” PRESIDENTIAL STUDIES QUARTERLY 29 (December): 850.
Skowronek, Stephen. 2002. “Presidency and American Political Development: A Third Look,” PRESIDENTIAL STUDIES QUARTERLY 32 (December): 743.
Copyright 2014 by the Author, Mariah Zeisberg.