Take Up Your Pen: Unilateral Presidential Directives in American Politics. By Graham G. Dodds. Philadelphia: University of Pennsylvania Press, 2013. 309 pp.
Article first published online: 26 JAN 2014
© 2014 Center for the Study of the Presidency
Presidential Studies Quarterly
Special Issue: Symposium on Historical Research
Volume 44, Issue 1, pages 184–186, March 2014
How to Cite
Ellis, R. J. (2014), Take Up Your Pen: Unilateral Presidential Directives in American Politics. By Graham G. Dodds. Philadelphia: University of Pennsylvania Press, 2013. 309 pp. Presidential Studies Quarterly, 44: 184–186. doi: 10.1111/psq.12100
- Issue published online: 26 JAN 2014
- Article first published online: 26 JAN 2014
Writing in the Notre Dame Lawyer in 1963, a young law student by the name of Robert B. Cash observed that “The history of executive orders is, to a great extent, a narrative of the evolution of presidential power.” Graham G. Dodds' impressive book, Take Up Your Pen: Unilateral Presidential Directives in American Politics, shows how correct Cash was.
Over the past two decades there has been no shortage of scholarly attention to unilateral presidential directives. During President George W. Bush's tenure, four fine books by political scientists were published: Kenneth Mayer's With the Stroke of Pen: Executive Orders and Presidential Power (Princeton University Press, 2001), Phillip Cooper's By Order of the President: The Use and Abuse of Executive Direct Action (University Press of Kansas, 2002), William Howell's Power without Persuasion: The Politics of Direct Presidential Action (Princeton University Press, 2003), and Adam Warber's Executive Orders and the Modern Presidency: Legislating from the Oval Office (Lynn Rienner, 2006). However, each of these books, in keeping with most presidency research, focuses on the post–Franklin Delano Roosevelt (FDR) “modern presidency.” What sets Dodds' book apart is the careful attention he gives to the development of unilateral directives from the founding era through FDR. Of Dodds' six substantive chapters, only one is devoted to what most political scientists think of as the modern presidency: the post–WWII era to the present day.
Of course, anyone with even a passing knowledge of American history has heard about the most famous nineteenth-century unilateral directives: Abraham Lincoln's Emancipation Proclamation, Andrew Jackson's Nullification Proclamation, and George Washington's Neutrality Proclamation. But Dodds' in-depth history takes us far beyond these well-known episodes of unilateral presidential action. In Chapter 3 (“Judicial Sanction”), he recounts the many unsung nineteenth- and early-twentieth century cases in which courts placed their stamp of approval on unilateral presidential directives—and in which they sometimes placed limits on what a president could do via executive action. The many cases that Dodds recounts occasionally make for tedious reading, but they amply support Dodds' contention that the judicial sanction of unilateral presidential directives helped pave the way for presidents' more expansive use of executive orders in the early twentieth century.
Chapter 4 (“Early Unilateral Presidential Directives”) provides a fascinating sojourn through nineteenth-century presidential history. Dodds shows that on a wide range of domestic policy issues, including Reconstruction, the management of public lands, the treatment of Native Americans and Mormons, and labor disputes and domestic unrest, nineteenth-century presidents—especially after the Civil War—frequently resorted to unilateral executive action. Dodds' account is particularly helpful in dispelling the notion that these presidents were “mere clerks” (p. 119). Many of the executive orders were, of course, mundane—more housekeeping than policy making. But a number of the confrontations over executive orders have a decidedly modern ring. Take, for instance, Grover Cleveland's end-of-term proclamation in 1897 that set aside 21 million acres for forest reserves in six western states, a move so unpopular in the West that Congress affixed a rider to an essential government funding bill to undo the president's action. Forced to choose “between funding the federal government or preserving his forest reserves” (p. 100), Cleveland opted for a government shutdown and pocket-vetoed the bill. Among William McKinley's first acts as president was to call Congress into session to repeal Cleveland's forest reserves. Not that McKinley objected to rule by executive action: in fact, by Dodds' count, McKinley issued executive orders more frequently than any of his predecessors, including Cleveland (p. 87).
The central character in Dodds' story, however, is Theodore Roosevelt (TR), who deservedly gets a chapter of his own (Chapter 5: “Theodore Roosevelt and the Rise of Unilateral Presidential Directives”). TR issued nearly as many executive orders as all the presidents who came before him combined—more than three-quarters of them in his second term. In narrating many of the most significant and controversial of these directives, Dodds shows what TR meant when he claimed to have “used every ounce of power there was in the office” (p. 151). TR's audacity is nowhere better revealed than in his response to an agricultural appropriations bill that included an amendment barring the president from creating or adding to any forest reserves in the states of Oregon, Washington, Idaho, Montana, Colorado, or Wyoming. Rather than veto the appropriations bill, Roosevelt “issued a series of executive orders that created twenty-one new forest reserves and enlarged eleven existing ones in the relevant six states” (p. 146). Having preserved all 17 million acres of forest land that the amendment had intended to put beyond the president's reach, TR signed the bill.
Chapter 6 (“Unilateral Presidential Directives from Roosevelt to Roosevelt: Taft through FDR”) shows that all of TR's proximate successors also relied heavily on executive orders. In fact, each of them, including allegedly passive presidents such as William Howard Taft, Warren G. Harding, and Calvin Coolidge, issued executive orders at a greater rate than TR. The proliferation of executive orders in the early decades of the twentieth century spurred Congress in 1935 to enact the Federal Register Act, which required all executive orders and proclamations to be published in the Federal Register (p. 185).
Dodds' account of the institutionalization of unilateral presidential directives is an invaluable contribution that shows precisely how much of the story is missed when we begin the presidential narrative with FDR. Detracting a bit from the force of Dodds' account is a concluding chapter that spends needless energy promoting TR's claim to being the true “founder of the modern presidency” (p. 229). Arguing about who is the first modern president seems to me a fruitless endeavor that does little to advance our understanding of the development of the American presidency.
What is important to argue about are the profound normative questions that Dodds poses about the relationship between constitutional democracy and unilateral executive directives. Dodds suggests that heavy reliance on such directives jeopardizes “the balance of the American constitutional order” (p. 242) and is “hard to reconcile with any but very thin conceptions of democracy” (p. 4). Granted that legislating via executive order “violate[s] a strict separation of powers” (p. 13), but we have long known that the Constitution—in Richard Neustadt's famous formulation—established a system of “separated institutions sharing powers” (Presidential Power: The Politics of Leadership [Wiley, 1960], p. 33). And although Dodds provides plenty of evidence to support his contention that the legislative and judicial “branches have often been unable or unwilling to resist or reverse . . . executive edicts” (p. 13), it is less clear that contemporary presidents have slipped the leash of institutional constraints devised by the framers, at least in domestic policy. Executive orders, as Dodds documents, are not magic wands that grant the president's every wish. Still, Dodds is right to sound an alarm about the development of what has become an increasingly important weapon in the presidential arsenal. And thanks to Dodds' excellent history, we now possess a much surer grasp of how that powerful weaponry was developed and deployed.