Warber, Adam L. Executive Orders and the Modern Presidency: Legislating from the Oval Office

International Social Science Review, Fall-Winter, 2007 by Barry D. Friedman

Warber, Adam L. Executive Orders and the Modern Presidency: Legislating from the Oval Office. Boulder, CO: Lynne Rienner Publishers, 2006. 175 pages. Cloth, $49.95.

Because the president of the United States is the chief manager of the national government's executive branch, he inevitably must communicate to his subordinates what he wants them to do. Such communication has another significant effect: It transmits to the subordinate official some measured portion of the president's authority, so that the official has permission to do something that he/she otherwise would not have the power to do. Although there may be any number of instruments by which the president may accomplish this communication, such as memoranda or white papers, a specific instrument known as the "executive order" has developed over time. Numerous scholars in political science and law have studied presidents' usage of this instrument in an attempt to understand what presidents use executive orders for, what presidents accomplish when they use them, what effect this usage has on presidential power, and what limitations may restrict the amount of advantage that this instrument may afford the president.

But to read this book by political scientist Adam L. Warber, one would be persuaded that the efforts of scholars in political science and law have been severely deficient. Throughout his book, Warber laments how ineffective and inattentive the studies in the fields of political science and law have been. This certainly comes as a surprise to this reviewer. As a graduate student at the University of Connecticut in 1983-84, I wrote a lengthy term paper about presidential executive orders, and was durably impressed by the literature that had been generated by the likes of James Hart (The Ordinance Making Powers of the President of the United States, 1925), Ruth P. Morgan (The President and Civil Rights: Policy-Making by Executive Order, 1970), and Sarah Slavin Schramm (a George Washington University student who had just completed her doctoral dissertation, The Politics of Executive Orders, in 1981). Since then, the literature has been supplemented by the works of Kenneth Mayer (With the Stroke of a Pen." Executive Orders and Presidential Power, 2001), Phillip J. Cooper (By Order of the President: The Use and Abuse of Executive Direct Action, 2002), and William G. Howell (Power Without Persuasion: The Politics of Direct Presidential Action, 2003). Yet, according to Warber, "Scholars have devoted scant attention to developing a body of theory regarding the president's unilateral powers.... [T]he literature overlooks the importance of unilateral policy tools that allow presidents to directly influence the policy process" (p. 5). Referring to a 1999 article, "The Presidential Power of Unilateral Action," by Terry M. Moe and Howell, Warber contends that, "Moe and Howell's theories are very primitive, because they do not adequately explain how presidents can use their unilateral powers in a strategic manner" (p. 6). He then states: "The presidency literature contains no studies addressing the importance of persuasion in relation to the president's executive order authority because scholars consider executive orders as a tool of command" (p. 8). He adds: "Presently, there are no studies that analyze the role of other participants within the political system who attempt to influence the president's executive order power" (p. 8). Furthermore, Warber declares: "... [T]he prevailing literature provides a shaky foundation regarding the strategic nature of [executive orders]" (p. 25). What other deficiency pervades the literature? "Ironically, presidential scholars focus more on the outcomes of presidential policymaking, such as the number of executive orders that presidents issue, rather than on the content of these policy statements themselves. Furthermore, most scholars lack interest in studying the process of formulating a variety of policy statements in the executive branch" (p. 29). Warber claims that the literature on executive orders suffers from a number of additional shortcomings: "... [S]cholars have not systematically analyzed the actual content of executive orders ... (p. 30); "scholars who disregard this information restrict our knowledge ... (p. 36); "[t]he literature has not analyzed ..." (p. 47); "It]he literature fails to explain ..." (p. 48); "[p]olitical scientists have overlooked ..." (p. 88); "[t]he literature has not determined ..." (p. 90); and, "[s]cholars also do not know ..." (p. 90). Apparently, when I did my research about executive orders, I must have learned a whole lot less than I thought I did.

If political-science and legal scholars have been so derelict, one wonders whether they even deserve the title of "scholars." One might excuse--or even appreciate--Warber's derision if he were poised to resolve the deficiencies that he catalogues. But this is not the case. His book is replete with conclusions that have little evidence of their accuracy. Chapter 2 ends this way: "As a result, chief executives might lack the necessary resources and political support to mount an effective campaign against those who oppose presidential actions that revoke and supersede policy orders. This is not to suggest that the act of amending orders does not invite conflict. However, it might be easier for presidents to build support, reach compromises, and minimize political opposition over policy actions that involve incremental changes in existing policy rather than the termination of policy. As a result, presidents might be forced to limit the amount [sic] of executive orders that they issue to completely end policies. Instead, they might direct more of their attention to merely modifying portions of existing policies" (p. 62, emphasis added). Or consider this analysis of the use of executive orders as a function of the time that elapses during a president's term: "... [P]residents might not fully exploit their executive order authority during their first year in office in order to maintain some degree of cooperation with Congress over the policy process.... The White House might also use executive orders during the last year to pursue some of those policies that the president failed to convince Congress to adopt into law" (p. 71, emphasis added). And, as the book draws to a close: "There are several reasons that might explain why chief executives have not expanded their executive order power during the modern presidency.... We should expect that presidents will exercise their executive order authority with some degree of restraint to avoid entangling themselves in a major separation of powers battle" (p. 129, emphasis added). "... [W]hy have presidents not seized upon this congressional apathy by aggressively expanding their executive order power? ... Presidents might believe that they lack the critical political capital necessary to win a separation of powers battle with Congress over executive orders ..." (p. 130, emphasis added). After reading the last of those statements, about what presidents might believe, I wanted to query the author: Did you ask them? Did you ask anybody who worked for them?