In Lieu of Legislation: Presidential Preemption of the Legislative Process Through Unilateral Order

Abstract

In pursuit of their agenda, presidents may negotiate with Congress in the legislative arena or use their unilateral powers. In the former, the president and Congress bargain over legislation while in the latter, presidents use direct action as an alternative to legislation. The question this paper addresses is when do presidents issue unilateral orders in lieu of legislation? Our approach to the question matches unilateral orders with all prior but related legislative activity from Presidents Carter through Clinton. Ultimately, we find presidents are more likely to act “against” legislation Congress is considering when interbranch ideological distance is greater (but only in the Senate), in the second half or second presidential terms or when the presidents has identified the issue as part of his agenda. However, presidents are more likely to break interbranch gridlock in the House with “supportive” unilateral orders. Although presidents and Congress share policy making powers, when fettered by the legislative branch, the president will issue unilateral orders in lieu of legislation.

Keywords: unilateral powers, interbranch relations, president, congress, legislation