For people writing about presidential power, Take Up Your Pen provides a valuable source of information about executive orders and other presidential directives. As Graham Dodds observes, the existing literature on the subject is small, and surprisingly so given the important role of unilateral presidential action in the American political system. Dodds has done a great service to scholars and other political observers by digging into the historical record and demonstrating how presidents have employed unilateral directives to increase the power of the executive branch.
The book’s strength lies in its documentation of the use of unilateral directives as tools for presidential power. It traces the issuance of executive orders and other directives from the Washington administration through the first three and a half years of the Obama administration. The book leaves less developed some of the normative questions about the expansion of presidential power. For example, Dodds recognizes that unilateral presidential governance may not be good for the country, and he criticizes Congress and the courts for not doing more to contain executive power, but the book itself does not offer much in the way of a response to the problem of excessive presidential power. Indeed, it simply concludes by reminding voters of their ability and responsibility to use their political power to protect against overly energetic executives.
Nevertheless, Dodds advances the debate in important ways by lending support to some of the leading perspectives on the presidency. For example, he reminds us that even if presidents can be stymied by a partisan Congress on their legislative initiatives, they retain impressive tools for unilateral action. Executive orders, proclamations, and other presidential directives have promoted civil rights, environmental protection, and labor relations. Prominent directives include Abraham Lincoln’s Emancipation Proclamation, Franklin D. Roosevelt’s wartime internment of Japanese Americans, Harry Truman’s desegregation of the military, and Richard Nixon’s freezing of wages and prices. As Dodds writes, “inattention to unilateral presidential directives causes us both to misunderstand and to underestimate the power of the presidency.” His data also reinforce the view that the rise of the modern presidency began with Theodore Roosevelt, rather than his cousin Franklin.
As indicated, the book is rich with important data. Chapter 1 supplies a very nice overview of the more than two dozen types of unilateral presidential directives. As the author observes, executive orders, proclamations, and memoranda are the most important kinds of directives. While the three main types have been used for centuries, they lack official definitions. Still, they are largely interchangeable with each other; whether designated as an executive order, proclamation, or memorandum, the legal force of a directive is the same. Of course, proclamations are more likely to be used for ceremonial or symbolic purposes, while executive orders are more likely to be used for substantive lawmaking, but many proclamations establish new law, and executive orders at times have been used for purely symbolic purposes.
Importantly, unilateral presidential directives can establish legally binding policies for the country. And while they can be overridden by future presidents or the other two branches of government, Congress and the courts rarely overturn executive directives. Reversals by later presidents are much more common, but even so, unilateral presidential directives offer a fairly durable means for making policy.
The book pulls together a lot of what we know about presidential directives; it also identifies what we do not know. The routine numbering of executive orders did not begin until 1907, and it was not until 1935 that Congress required publication of executive orders and proclamations in the Federal Register (with presidents left to decide whether to publish memoranda in the Register). Hence, other scholars have estimated that thousands to tens of thousands of presidential directives have been lost to history.
It is interesting to note that presidents from Teddy Roosevelt through FDR issued many more executive orders than have presidents from Dwight Eisenhower to the present (with Truman falling in between the two groupings). The author considers a number of possible explanations for the decline (e.g., whether there is unified or divided control of government) and concludes that two hypotheses are most plausibly correct. First, recent presidents may rely more on memoranda and proclamations than on executive orders. In other words, presidents after Truman may have issued as many unilateral directives as their predecessors but may have substituted memoranda and proclamations for executive orders. Second, recent presidents may rely more on administrative rulemaking than on directives to implement their policy preferences, especially given the breadth of the administrative state and the fact that it is more difficult for future presidents to reverse rules than to override directives.
Half of the book’s chapters and more than half of its pages are devoted to a detailed review of the use of presidential directives over time. In doing so, it gives us a good sense of the kinds of issues for which directives have been employed and the extent to which they have been used for minor administrative matters or momentous policy matters. Presidential directives have been used to address domestic unrest and rebellion, relations with foreign countries, conservation, economic regulation, and Reconstruction. Particularly in the chapter on Teddy Roosevelt, the book highlights some directives because of the controversy they provoked, rather than the importance of their substance. For example, Roosevelt’s initiatives to implement phonetic spelling and a redesign of coinage take up more space than all of Herbert Hoover’s presidential directives.
Thematic organization can take many forms, and this book’s discussion of presidential directives in terms of the policy issues being addressed and their historical chronology makes a good deal of sense. It also would have been helpful if the author had given a better sense of the extent to which the different directives were statutorily authorized, represented an exercise of the president’s constitutional powers, or entailed a usurpation of legislative power. The book does not ignore the question of authority—for example, it observes that Woodrow Wilson preferred to seek congressional authorization for his directives rather than to rely on his constitutional powers—but it often does not indicate whether particular directives were controversial because of their subject matter only or also because they lacked a sufficient source of authority. If presidential power needs to be contained, it is important to understand the extent to which its expansion reflects legislative abdication or executive aggrandizement.
In addition to tracing the use of presidential directives over time, the book reviews the development of judicial deference toward their use, illustrating the limited extent to which the courts cabin unilateral presidential action. In part, as discussed in the chapter on the constitutional executive, judicial deference reflects an inherent ambiguity about the nature of the executive power. Drawing on the work of Harvey Mansfield and other scholars, Dodds takes the view that executive power is inevitably indeterminate and not susceptible to specific limits.
All in all, Take Up Your Pen provides an important contribution to our understanding of unilateral presidential directives. Scholars interested in the role of presidential power would be wise to start here before undertaking their own analyses of the growth of executive power and why we should be concerned about it.
