The President, the Court, and Policy Implementation

Abstract

In contrast to research focused on presidential–congressional relations, this article explores the ways in which the president strategically accounts for the courts when deciding how to best influence policy implementation. I argue that as the courts become more ideologically distant from the president and thus more likely to strike down administrative actions, agencies engage in less rulemaking while the president issues more executive orders to supplement agencies' authority to act. An empirical analysis of federal macro‐level data as well as issue‐specific data on labor and environmental policy yields support for the theory's hypotheses.

Policy Disruption Through Regulatory Delay in the Trump Administration

“…The majority of the time, agencies cite statutes as a source of empowering authority but they can also rely on presidential orders. Given that these orders are viewed as important and legally valid sources of authority for agencies (Thrower ), I expected that regulations based on such authority would be less vulnerable to delay. As such, EO Authority is measured as 1 if the regulation cites any executive order as a source of authority and 0 otherwise.…”

Symposium on Policy Making, Accountability, and Executive Action: Introduction

“…Accordingly, a large literature explores the relationship between unilateral action and divided government (e.g., Bolton and Thrower ; Chiou and Rothenberg ; Howell ), following the intuition that divided government characterizes periods of preference divergence between presidents and Congress. A smaller literature operates from a similar framework to study how judicial review affects presidents’ decisions to use unilateral power (e.g., Howell ; Thrower ). The predictions from this literature are more mixed; however, this scholarship shares the view that presidents will anticipate reactions from the judiciary and adopt unilateral strategies that minimize the chances of orders being overturned.…”

“…The last two decades of scholarship have demonstrated the power and promise of unilateral action for contemporary presidents. Focusing particularly on the institutional constraints on the use of unilateral power, empirical and theoretical research has provided new and important insight into how the adjoining branches of government constrain presidential behavior (a very partial list includes Bolton and Thrower ; Chiou and Rothenberg ; Howell ; Kennedy ; Lowande ; Mayer ; ; Moe and Howell ; Thrower ). More recently, scholars have investigated how unilateral power may also be responsive to public opinion (Christenson and Kriner ; Judd ; Lowande and Gray ; Posner and Vermeule ; Reeves and Rogowski ; ), electoral and partisan constituencies (Rottinghaus and Warber ), and interest groups (Foster ).…”

Exercising Unilateral Discretion: Presidential Justifications of Unilateral Powers in a Shared Powers System

“…Presidents want to avoid joint confrontation with both Congress and the Courts given that this is a powerful recipe for halting executive use of power (either temporarily or permanently) as discussed in the previous section. For instance, when the executive is delegated broad discretion, it positions him to implement policy that may deviate from legislative intent (Mayer, 2009) prompting a possible judicial challenge (Thrower, 2016). Because the president can justify his order using a number of statutory and nonstatutory options, presidents tend to choose an option that is least odious to possible judicial oversight (J. D. Bailey & Rottinghaus, 2014;Quint, 1989).…”

“…As a result, scholarship on unilateral powers needs to consider how, by its delegation of specific policy functions, Congress expands or restrains executive branch decisions (Lindsay, 1994;McCubbins & Lupia, 1994;McCubbins, Noll, & Weingast, 1989). One way in which this is accomplished is by studying whether the statutory constraints imposed by Congress or probable legal restraint by the Courts limits or expands the president's use of delegated unilateral action (Thrower, 2016). The joint effect of delegated discretion and interbranch political conditions can reveal much about when presidents choose to use their unilateral powers (Chiou & Rothenberg, 2014).…”