In this path-breaking book, David Epstein and Sharyn O'Halloran produce the first unified theory of policy making between the legislative and executive branches. Examining major US policy initiatives from 1947 to 1992, the authors describe the conditions under which the legislature narrowly constrains executive discretion, and when it delegates authority to the bureaucracy.

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Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers

In this article we highlight a formal basis for presidential power that has gone largely unappreciated to this point, but has become so pivotal to presidential leadership and so central to an understanding of presidential power that it virtually defines what is distinctively modern about the modern presidency. This is the president’s formal capacity to act unilaterally and thus to make law on his own. Our central purpose is to set out a theory of this aspect of presidential power. We argue that the president’s powers of unilateral action are a force in American politics precisely because they are not specified in the Constitution. They derive their strength and resilience from the ambiguity of the contract. We also argue that presidents have incentives to push this ambiguity relentlessly to expand their own powers—and that, for reasons rooted in the nature of their institutions, neither Congress nor the courts are likely to stop them. We are currently in the midst of a research project to collect comprehensive data for testing this theory—data on what presidents have done, as well as on how Congress and the courts have responded. Here we provide a brief history of unilateral action, with special attention to the themes of our theoretical argument. We also make use of some early data to emerge from our project. For now it appears that the theory is well supported by the available evidence. This is a work in progress, however, and more is clearly needed before definitive conclusions can be justified. A few observations about politics are so widely accepted that virtually all political scientists have committed them to memory. One of these is Richard Neustadt’s (1960) famous dictum, “Presidential power is the power to persuade,” which expresses, in shorthand form, his view that the powers of the modern American presidency are rooted in the personal qualities of the individual occupying the office—in his skills, his temperament, and his experience. This notion of the personal presidency dominated the field for decades, but its influence is on the decline. The main reason is that it seems increasingly out of sync with the facts. The personal presidency became a popular theoretical notion just as the American presidency was experiencing tremendous growth c

The presidential power of unilateral action

Variations in public support for the president have been explained in three different ways. First, approval has been viewed as controlled by the law of inevitable decline. Second, public support ha...

Foreign Policy and Presidential Popularity: Creating Windows of Opportunity in the Perpetual Election

"How Much Power Should They Have?" demanded the cover of Newsweek as 2006 began, as President George W. Bush and Vice President Dick Cheney glared out from underneath the headline. The question was prompted by a flurry of holiday season revelations centered on aggressive claims to, and use of, unilateral presidential powers. These ranged from the detention and treatment of imprisoned terror suspects around the world to phone taps placed on Americans without a court warrant. "We've been able to restore the legitimate authority of the presidency," the vice president insisted; others worried that the Constitution's checks were being unbalanced and that the "imperial presidency" of the Vietnam/Watergate era had risen from the grave (Cheney 2005; Rudalevige 2005; Schlesinger 1973). Framing Questions However timely, Newsweek's query was of course hardly new. Indeed, little at the Constitutional Convention of 1787 provoked more debate than the shape and scope of the executive branch. Delegates had to determine how the president would be selected, how long he should serve, whether he should be able to run for office more than once, how much power he should have--even whether the president would be a "he" or a "they." (1) Some of the Framers were unconvinced of the need for an executive branch in the first place. Others thought that executive power must be strictly divided, to impede future tyranny: for them, in Virginia Governor Edmund Randolph's phrase, a single executive was "the foetus of monarchy" (Rakove 1996, 257). And monarchy, of course, was what the Framers wanted to avoid. In the end, the framework of presidential power was left largely in outline form, to be worked out in practice. Consider the very first sentence of Article II: "The executive power shall be vested in a President of the United States of America." What is "the executive power"? What might it allow the president to do? Here the document is silent. In other places the president was given a limited array of specified powers, many of them further truncated by a sort of congressional asterisk--the president can finalize treaties, or appointments, only with Senate approval; the execution of the law assumes its legislative passage; no money can be spent that is not first appropriated by Congress. How these shared powers might work was itself not clarified; the expectation was, in Madison's famous phrase from the Federalist, that interbranch interaction would allow institutional "ambition ... to counteract ambition." The conflict that implied began immediately, when Treasury Secretary Alexander Hamilton and Congressman James Madison argued over the scope of President Washington's unilateral authority. Reduced to its essence, the dispute was--and is--relatively straightforward: is a president limited to the specific powers affirmatively listed in the Constitution or granted in statute, or can he take whatever actions he deems in the public interest so long as those actions are not actually prohibited by the Constitution? Theodore Roosevelt's iteration of Hamilton's position put it clearly: "My belief was that it was not only [the president's] right but his duty to do anything that the needs of the Nation required unless such action was forbidden by the Constitution or by the laws." Roosevelt's successor, William Howard Taft, clarified the opposing view. "The President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied within such express grant as proper and necessary to its exercise," Taft wrote. "There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest" (Pyle and Pious 1984, 70-71; Roosevelt 1985 [1913], 372). Whatever the Framers' true intent, the Hamiltonian position won out over time. The growth in the size and scope of government during and after the Great Depression, and the national security apparatus built during World War II and the Cold War, effectively settled the argument. …

https://www.jstor.org/stable/info/27552243

The Contemporary Presidency: The Decline and Resurgence and Decline (and Resurgence?) of Congress: Charting a New Imperial Presidency

The American presidency reflects nothing so clearly as the idiosyncrasies of personality and circumstance. The discrete dynamics of the men and their times are naturally pronounced; the general dynamics that define the institution in time, correspondingly obscured. This makes thematic analysis of the presidency peculiarly dependent on uncovering broad-ranging patterns in institutional history. By isolating different historical regularities we can locate different dimensions of the problem and significance of presidential action.

Richard M. Pious

Papers

The President, Congress, and the Constitution: Power and Legitimacy in American Politics

The Constitution Under Siege: Presidential Power Versus the Rule of Law