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When Politics Matter: Unilateral Power and Critical Executive Orders

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When Politics Matter: Unilateral Power and Critical Executive Orders ABSTRACT Title of Dissertation: WHEN POLITICS MATTER: UNILATERAL POWER AND CRITICAL EXECUTIVE ORDERS Gilbert David Nuñez, Doctor of Philosophy, 2017 Dissertation directed by: Professor Irwin L. Morris, Department of Government and Politics Our observations of the political world are filled with examples of presidents who move policy with the stroke of a pen. The executive order, one of several tools available to presidents, is a primary example of unilateral governance wherein presidents change policy, create programs, and reorganize the government without a single vote in Congress. In political science, we study these demonstrations of executive action by paying attention to a subgroup of so-called “significant” executive orders, those with policy implications that garner the attention of other institutional actors (including the press). However, this broad category still covers a wide range of salience that muddles our understanding of how and when presidents use unilateral action. In the dissertation, I identify an even narrower set of “critical” executive orders that represent the most impactful unilateral actions of presidents. Focusing on these orders, I study the political context in which they are issued so that we can better understand the dynamics associated with greater presidential prolificacy in their unilateral governance. I use count models to identify the political factors that shape a president’s ability to issue such orders and find that divided government, polarization, presidential approval, the economy, war, and other timing variables all provide clues to the president on whether he or she has a favorable environment for issuing such orders. I also find a difference in the factors that influence the issuance of critical executive orders when broken down by domestic versus foreign and defense-related policies. When these factors are associated with lower numbers of critical executive orders, I argue that presidents are effectively constrained because they recognize that their circumstances do not as easily lend themselves to unilateral action. Recognizing that executive orders are just one of many unilateral tools available to presidents, I close with discussion about the need to identify significant subsets of these other tools and aggregate them to create a fuller picture of unilateral governance in the American system. WHEN POLITICS MATTER: UNILATERAL POWER AND CRITICAL EXECUTIVE ORDERS by Gilbert David Nuñez Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park, in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2017 Advisory Committee: Professor Irwin L. Morris, Chair Professor Christopher Foreman Associate Professor David Karol Professor Frances E. Lee Professor Eric M. Uslaner © Copyright by Gilbert David Nuñez 2017 Table of Contents Table of Contents .......................................................................................................... ii List of Tables ............................................................................................................... iii List of Figures .............................................................................................................. iv Chapter 1: Introduction ................................................................................................. 1 Chapter 2: Theoretical Perspectives on Executive Orders .......................................... 16 Chapter 3: Critical Executive Orders .......................................................................... 44 Chapter 4: Model Analysis ......................................................................................... 65 Chapter 5: Critical Domestic Orders ......................................................................... 113 Chapter 6: Critical Foreign Orders ........................................................................... 132 Chapter 7: Presidential Memoranda and Other Unilateral Tools .............................. 158 Chapter 8: Conclusion ............................................................................................... 173 Appendices ................................................................................................................ 186 Chapter 3: Critical Executive Orders .................................................................... 186 Chapter 4: Model Analysis ................................................................................... 232 Bibliography ............................................................................................................. 238 ii List of Tables Dissertation Body Table 4.1 Model Summary Statistics Table 4.2 Negative Binomial Regression Models for Significant and Critical Executive Order Replications of Howell Model Table 4.3 Negative Binomial Regression Models for Critical and Significant Executive Orders Table 4.4 Negative Binomial Regression Models by Policy Type Appendices Table A3.1 Search Terms for Howell’s List of Significant Executive Orders Table A3.2 List of All Critical Executive Orders, 1945-2009 Table A3.3 Summary Statistics for Executive Orders by President Table A4.1 Means and Variances to Justify Negative Binomial Regression Models Table A4.2 Poisson Count Model on Number of Critical Executive Orders with Robust Errors Table A4.3 Presidential Fixed Effects for Models (with Tables 4.2 and 4.3) Table A4.4 Presidential Fixed Effects for Models (with Table 4.4) Table A4.5 OLS Regressions on Critical Executive Order Rate (per Day) Table A4.6 Negative Binomial Regression Count Model on Critical Executive Orders iii List of Figures Figure 2.1 American Ideological Polarization, 1879-2015 (from VoteView.com) Figure 3.1 Distribution of New York Times Story Counts for Significant Executive Orders Figure 3.2 Trend in New York Times Story Counts by President Figure 3.3 Trends in Total Executive Orders Issued by President Figure 3.4 Trends in Significant Executive Orders Issued by President Figure 3.5 Trends in Critical Executive Orders by President (and by Policy Category) Figure 3.6 Trends in Critical Executive Orders as a Percentage of Significant Executive Orders by President Figure 5.1 Kennedy Approval Ratings from Gallup Averages (from American Presidency Project at UC Santa Barbara) Figure 5.2 Bush II Approval Ratings from Gallup Averages (from American Presidency Project at UC Santa Barbara) Figure 6.1 Truman Approval Ratings from Gallup Averages (from American Presidency Project at UC Santa Barbara) Figure 6.2 Eisenhower Approval Ratings from Gallup Averages (from American Presidency Project at UC Santa Barbara) Figure 6.3 Carter Approval Ratings from Gallup Averages (from American Presidency Project at UC Santa Barbara) iv Chapter 1: Introduction “To every mayor, governor, and state legislator in America, I say, you don’t have to wait for Congress to act; Americans will support you if you take this on. And as a chief executive, I intend to lead by example. Profitable corporations like Costco see higher wages as the smart way to boost productivity and reduce turnover. We should too. In the coming weeks, I will issue an Executive Order requiring federal contractors to pay their federally-funded employees a fair wage of at least $10.10 an hour – because if you cook our troops’ meals or wash their dishes, you shouldn’t have to live in poverty.” -President Barack Obama, 2014 State of the Union address to Congress When President Obama stood before a joint session of Congress on January 28, 2014, and announced his intention to unilaterally move forward on important policies by himself because Congress would not cooperate, many people across the country noticed. Television news and newspapers reported Obama’s determination to move ahead with raising the minimum wage by himself. The next day, people did not need to read beyond the headlines to know that the president intended action on the minimum wage: “Obama Kicks Off State of the Union Action with Minimum Wage Push” (Kaplan 2014a), “Obama’s 2014 State of the Union Wish List” (Kaplan 2014b), “Obama to Sign Executive Order Raising Minimum Wage for Federal Contractors” (Fox News 2014), “In State of the Union Address, Obama Vows to Act Alone on the Economy” (Baker 2014), “Obama to Raise Minimum Wage for Some Federal Workers” (Jackson and Madhani 2014). Two weeks later, the President signed Executive Order 13658 to increase the minimum wage for contractors. Obama did not wait for Congress but invited it to join 1 him. He discussed raising the minimum wage in his 2013 State of the Union address but did not make significant gains on that front. In 2014, he vowed to take action on his own, and he did just that. In signing the executive order, he said, “We are a nation that believes in rewarding honest work with honest wages. And America deserves a raise” (Schneider 2014). With the stroke of a pen, Obama initiated a policy change that would affect employees (and employers) across the country (Landler 2014, Shear 2014). As he sat on the House floor for Obama’s State of the Union address, then- House Majority Leader Eric Cantor (R-VA) had already released one report on what he considered a rising “Imperial Presidency” (Cantor 2014). The report discusses “the break-down in the rule of law under the Obama Administration” that raised constitutional questions and negatively affected the economy (Cantor 2014, i). Specifically, the report addresses concerns with Obama ignoring advice and consent on federal appointments, creating
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