Take Up Your Pen: Unilateral Presidential Directives in American Politics

By Graham G. Dodds

Executive orders and proclamations afford presidents an independent means of controlling a wide range of activities in the federal government—yet they are not mentioned in the U.S. Constitution. In fact, the controversial edicts known as universal presidential directives seem to violate the separation of powers by enabling the commander-in-chief to bypass Congress and enact his own policy preferences. As Clinton White House counsel Paul Begala remarked on the numerous executive orders signed by the president during his second term: "Stroke of the pen. Law of the land. Kinda cool."

Although public awareness of unilateral presidential directives has been growing over the last decade—sparked in part by Barack Obama's use of executive orders and presidential memoranda to reverse many of his predecessor's policies as well as by the number of unilateral directives George W. Bush promulgated for the "War on Terror"—Graham G. Dodds reminds us that not only has every single president issued executive orders, such orders have figured in many of the most significant episodes in American political history. In Take Up Your Pen, Dodds offers one of the first historical treatments of this executive prerogative and explores the source of this authority; how executive orders were legitimized, accepted, and routinized; and what impact presidential directives have had on our understanding of the presidency, American politics, and political development. By tracing the rise of a more activist central government—first advanced in the Progressive Era by Theodore Roosevelt—Dodds illustrates the growing use of these directives throughout a succession of presidencies. More important, Take Up Your Pen questions how unilateral presidential directives fit the conception of democracy and the needs of American citizens.

• Language: English
• Publisher: University of Pennsylvania Press
• Release date: Apr 22, 2013
• ISBN: 9780812208153

Book preview

CHAPTER ONE

Unilateral Directives and the Presidency

Stroke of the pen, law of the land. Kind of Cool.

—Paul Begala, Advisor to President Clinton (1998)

The history of executive orders is, to a great extent, a narrative of the evolution of presidential power.

—Robert B. Cash, Presidential Power (1963)

Outrageous, or Ordinary?

On December, 15, 2005, Americans were shocked to learn that President George W. Bush had issued an executive order directing the National Security Agency (NSA) to engage in domestic spying on U.S. citizens. Bush secretly issued the order in 2002 as part of the government's effort to prevent another terrorist attack on the scale of those committed on September 11, 2001. But Bush's policy appeared to contradict the legal processes established by the Foreign Intelligence Surveillance Act (FISA) of 1978 (Pub. L. 95–511, 92 Stat. 1783), which required the government to obtain a warrant before engaging in domestic spying.¹

Public indignation at Bush's unilateral directive for domestic spying was immediate and widespread. A poll conducted a month after the public revelation showed that 51 percent of Americans opposed Bush's action and 58 percent supported the appointment of a special prosecutor to investigate the legality of the program.² The ACLU complained that the president was very willing to sacrifice civil liberties and might have authorized criminal activity.³

Major newspapers also criticized Bush's action. In an editorial three days after its initial story, the New York Times described the program as illegal government spying and charged that Mr. Bush's team cannot be trusted to find the boundaries of the law, much less respect them.⁴ The Chicago Tribune said that the Bush administration evidently thinks it can scorn the law.⁵ The Philadelphia Inquirer complained that no president unilaterally should be able to declare that a part of the Bill of Rights is null and void.⁶ And the Dallas Morning News said, It won't do to tell a free people that their government is spying on them in possible violation of the law for their own good, and it encouraged Congress to hold the president accountable.⁷

In the halls of Congress, senators and representatives were outraged about Bush's spying directive. The day after the story broke, the Senate refused to reauthorize the Patriot Act, several senators demanded a joint inquiry by the Judiciary and Intelligence Committees, Senator Arlen Specter (then R-PA) threatened hearings, and Senator John Kerry (D-MA) said the president seemed to think he was above the law. Senator Russ Feingold (D-WI) sought to pass a resolution censuring the president for his action, and some members of Congress even spoke of possible impeachment.⁸

Criticism of Bush's unilaterally imposed spying program even came from members of the Bush administration itself. On New Year's Day, 2006, the Times reported that in March 2004, the acting attorney general, James Comey, had determined that the domestic spying program was likely unconstitutional (even though it had been previously reauthorized by the Department of Justice), so he decided not to renew approval for it.⁹ The chief of staff, Andrew Card, and the White House counsel, Alberto Gonzales, then made a dramatic visit to the hospital bed of the attorney general, John Ashcroft, who was recovering from gallbladder surgery, in a fruitless attempt to gain his approval.¹⁰ For some critics, it was ironic that Ashcroft, the father of the Patriot Act, was belatedly assuming the mantle of protector of civil liberties and constitutional niceties, but it suggested that Bush's unilateral action had indeed gone too far.

Five months later, the judiciary also condemned Bush's order. In ACLU v. NSA, 438 F. Supp. 2d 754, E.D. Mich. (2006), Judge Anna Diggs Taylor ruled that Bush's action was unconstitutional. Her opinion admonished, There are no hereditary kings in America and no powers not created by the Constitution.

In short, Bush's policy was widely condemned by the public, the press, members of Congress from both political parties, the judiciary, and even officials within the administration. So what happened? Nothing. The public outcry dimmed, and Bush's executive order and policy remained in place.

Even when yet more damning details emerged, nothing changed. On May 11, 2006, USA Today revealed that the government was using information gleaned from domestic spying to compile a massive database, including tens of millions of phone calls made by customers of the nation's three largest telecommunications companies, in apparent violation not only of FISA and the Fourth Amendment but also of various statements and promises issued by officials in the Bush administration after the domestic spying program was exposed. But despite this revelation, the program continued. And some polls suggested that the American people had even come to embrace Bush's policy: a Washington Post poll conducted shortly after the database revelation found that 63 percent of respondents supported the NSA program and only 35 percent opposed it.¹¹ Moreover, Congress acted to legitimate Bush's policy in 2007 (Pub. L. 110–55, 121 Stat. 552) and again in 2008 (Pub. L. 110–261, 122 Stat. 2436), giving legislative sanction to what had been the president's unilateral policy and granting the telecommunications companies immunity from lawsuits for violations of privacy.

Thus, even though the president's executive order initially elicited so much outrage, and even after more and more controversial details emerged, nothing changed, and it was quickly back to business as usual. It was almost as if controversial unilateral presidential policymaking itself were just business as usual, which is exactly what this book argues it is.

The Argument of the Book

The above episode is emblematic of a much broader puzzle in U.S. constitutional politics and interbranch relations, as presidents have often used unilateral directives such as executive orders and proclamations to impose controversial policies, and Congress and the courts have at times complained but have seldom offered much in the way of real resistance. This book seeks to explain how we got to this point and why it matters. The basic argument of the book may be summarized as follows.

In unilateral presidential directives, American political development has seen a major expansion of presidential power that rests on vague justifications and has been relatively unchecked. This book documents and explains this development. The explanation has roots in the Constitution's ambiguity and the character of executive power, which is inherently resistant to strict limits. But the rise of more activist central governance from the Progressive era on—advanced first by Theodore Roosevelt and then by a variety of successors, with congressional, judicial, and popular acquiescence—has led to more extensive governance by unilateral presidential directives. This state of affairs has strengths as well as weaknesses, but it is hard to reconcile with any but very thin conceptions of democracy. Whether Americans really want or need governance by unilateral presidential directives is a central question for American politics today and will be in the years ahead.

The ABCs of UPDs

Some basic background information about unilateral presidential directives (UPDs) may be useful as a foundation for the above argument. Public awareness of unilateral presidential directives has been growing over the last dozen years or so, sparked in part by Barack Obama's use of executive orders and presidential memoranda to reverse many of his predecessor's policies, by several controversial unilateral directives that George W. Bush promulgated for the war on terror and other matters, and by what critics regarded as an unprecedented rash of late-term executive orders by Bill Clinton. But the historical record is much richer than recent public attention: presidents have long relied on unilateral directives to enact their preferences across a wide range of policy areas. Every president has issued executive orders or similar directives. Even William Henry Harrison, who was president for only thirty-one days, issued a proclamation, calling Congress into a special session.¹²

Unilateral directives are documents that the president issues to direct the activities of the executive branch. As such, they afford presidents an independent means of controlling a wide range of governmental actions. More controversially, they may enable presidents to unilaterally enact their own policy preferences by a mere stroke of a pen, as they can serve to prompt congressional action, to preclude it, or to circumvent a recalcitrant Congress. As the Clinton White House adviser Rahm Emanuel explained in 1998, Sometimes we use it in reaction to legislative delay or setbacks. Sometimes we do it to lead by example and force the legislative hand. Obviously, you'd rather pass legislation that can do X, but you're willing to make whatever progress you can on an agenda item.¹³ Or as Clinton White House Communications Counsel Paul Begala described unilateral presidential directives, Stroke of the pen, law of the land. Kind of Cool.¹⁴

Indeed, unilateral presidential directives can be an attractive resource for presidential action. And presidents generally either want to act or have to act. Most presidents enter the office with an ambitious agenda; and at times the nation requires action, and executive action may be the best or only option. Given various institutional constraints on other types of presidential action, unilateral presidential directives can be a convenient means to many ends.

Sometimes presidents use these directives for minor or noncontroversial matters, but other times they employ them for major or highly controversial policies. Better-known examples of unilateral presidential directives include Abraham Lincoln's Emancipation Proclamation, FDR's wartime internment of Japanese Americans, Harry Truman's desegregation of the military, JFK's creation of the Peace Corps, Bill Clinton's proclamations of new national monuments, and George W. Bush's executive orders for faith-based initiatives, the detention of suspected terrorists, and domestic spying. But there have been thousands of other unilateral presidential directives, and they have figured in many of the most important and controversial episodes in American political history.¹⁵ Unilateral presidential directives can therefore tell us a lot about American politics in general and the presidency in particular. As one of the earliest studies of executive orders put it, The history of executive orders is, to a great extent, a narrative of the evolution of presidential power.¹⁶

As the controversy about Bush's executive order for domestic spying and the other points noted above suggest, unilateral presidential directives are an important political phenomenon. And some basic background information about them suggests that they are also an intriguing political phenomenon, as their definition, justification, limits, format, numbering, and cataloging are surprisingly loose and inexact.

Types

There are over two dozen different types of unilateral presidential directives. A study by the Congressional Research Service (CRS) in 2007 identified twenty-seven distinct types: administrative orders, certificates, designations of officials, executive orders, general licenses, homeland security presidential directives, interpretations, letters on tariffs and international trade, military orders, thirteen different types of national security instruments, presidential announcements, presidential findings, presidential reorganization plans, proclamations, and regulations.¹⁷ That list fails to mention presidential determinations and memoranda, so the total number of types of unilateral presidential directives may be twenty-nine.¹⁸ But the different names do not always designate different tools: many directives are very similar in terms of their substance and authority, regardless of what the president decides to call them.¹⁹ And the definitions of many of these devices are ambiguous or even nonexistent.

Executive orders are the best known and most common type of unilateral presidential directive. They date to the earliest days of the republic, but the term executive order was not regularly applied to unilateral presidential directives until the late nineteenth century, and the first directives to be officially designated as executive orders were military orders by Abraham Lincoln.²⁰ There is no official definition of what constitutes an executive order; there is no law—or even an executive order—that defines what an executive order is.²¹ A report by the U.S. House of Representatives in 1957 provisionally defined them as follows: Executive orders are written documents denominated as such…. Executive orders are generally directed to, and govern actions by, government officials and agencies.²² This definition certainly captures part of what executive orders are, but it is inadequate, as its authors realized: Essentially an Executive order is a written document issued by the President and titled as such by him or at his discretion.²³ That circular reformulation indicates the difficulty of a strict definition. The following informal definition by a legal librarian is perhaps somewhat more helpful: Executive orders are the formal means through which the President of the United States prescribes the conduct of business in the executive branch. Executive orders are presidential directives issued to federal government agencies or officials. An executive order is basically a document the President issues and designates as such.²⁴ More to the point, executive orders are a primary means by which presidents impose their will by directing the activities of the U.S. government.

Proclamations are another main type of unilateral presidential directive. Prominent examples of proclamations include George Washington's Neutrality Proclamation and Abraham Lincoln's Emancipation Proclamation. Like executive orders, proclamations are generally written documents that the president issues to direct governmental action, and they lack a strict definition. Accounts disagree somewhat about whether or how these two devices differ. Legally and constitutionally, there is no difference between executive orders and proclamations.²⁵ In Wolsey v. Chapman, 101 U.S. 755 (1880), the Supreme Court found no material distinction between them.²⁶

Congress has also treated executive orders and proclamations as being very similar, if not interchangeable. Both are subject to the publication requirements of the Federal Register Act of 1935, but presidents have often not distinguished between them or consistently used one label or the other. Therefore, the House report of 1957 concluded, The difference between executive orders and proclamations is more one of form than substance.²⁷

Similarly, in 1974, when the authors of a U.S. Senate report on executive orders asked officials at the Justice Department and the Federal Register how to distinguish between executive orders and proclamations, the officials acknowledged that the devices were interchangeable.²⁸ According to the Senate report, The arbitrariness of this system is illustrated by two instances of very similar situations of federally-enforced school integration in the South. In the first instance, President Eisenhower relied on an executive order, while, only a few years later, President Kennedy issued a proclamation.²⁹

Nevertheless, some scholars have suggested that proclamations and executive orders differ in terms of the substance of their use. For example, proclamations tend to be the tool used for presidential directions about international trade, and indeed many proclamations have addressed trade.³⁰ But there are also instances of executive orders addressing international trade.³¹ Alternatively, some claim that proclamations often concern foreign affairs, while executive orders are usually used for domestic policy purposes.³² However, executive orders have at times been used for foreign affairs, as have proclamations for domestic affairs. Yet another possible distinction is that proclamations are the means by which presidents grant pardons. But there are some instances of executive orders being used for this purpose, too.³³

A fourth possible distinction is that proclamations are often used for hortatory or symbolic purposes, while executive orders are generally used for more substantive matters. George Washington issued the first proclamation on October 3, 1789, designating November 26 a day of public thanksgiving, and many subsequent proclamations have been used for similar symbolic purposes. The Senate report of 1974 noted the hortatory nature of many proclamations as a possible means of distinguishing them from executive orders: In general, it appears that Proclamations are issued when it is felt that the decree is addressed to the public at large. They tend to be hortatory in nature, proclaiming national days of celebration or ceremonial events.³⁴ However, this distinction is inexact, or at least anachronistic. According to Glendon Schubert, It is generally true that before the Civil War, proclamations of the President were used most usually for hortatory and ceremonial purposes; but there has been an increasing tendency since that time for proclamations to serve as vehicles for direct substantive lawmaking.³⁵ Furthermore, executive orders have at times been used for merely symbolic purposes.

Beyond these several problematic distinctions, there is one respect in which proclamations do appear to differ from executive orders and other unilateral presidential directives in their usage. Proclamations are the means by which presidents enact treaties. Strictly speaking, the Senate does not ratify treaties but rather gives its advice and consent for treaties that the president has negotiated. After the Senate approves a treaty, the president then ratifies it by formally notifying the other parties to the treaty, and this notification usually takes the form of a proclamation.³⁶

In addition to executive orders and proclamations, presidential memoranda constitute a third, important type of unilateral presidential directives. Like executive orders and proclamations, memoranda are written documents via which the president directs governmental actions. In one notable memorandum, Bill Clinton directed the secretary of health and human services to end the moratorium on funding research involving fetal tissue.³⁷ Memoranda are very similar to executive orders, and hence also to proclamations. Phillip Cooper, a professor of public administration, calls memoranda executive orders by another name, and in Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395, D.S.D. (1995), a circuit court suggested that memoranda are legally interchangeable with executive orders.³⁸

However, there is a key difference among these three types of unilateral presidential directives, as memoranda are not required be published, while executive orders and proclamations are. According to the Senate report of 1974: If a document is not specifically designated as an ‘Executive Order’ or ‘Presidential Proclamation,’ the decision of whether or not it will be published as a part of the public record is left to the discretion of the President and his advisers. If he wishes a document to have ‘general applicability and legal effect,’ he will presumably have it published. If, however, the order is directed only to an official or an agency and does not purport to regulate the conduct of private citizens, there is no legal necessity for its publication. Most executive directives fall into this category.³⁹ The Obama administration published most of its memoranda and also listed them on the White House Web site, but earlier administrations have been less forthcoming.⁴⁰ The lack of publication and publicity mean that memoranda may be more difficult for Congress or courts or future presidents to reverse. Presidents are aware of this, and the number of memoranda has been increasing over the past few presidencies.⁴¹

Beyond executive orders, proclamations, and memoranda, there are several other types of unilateral presidential directives that have at times been significant. For example, presidential determinations can be a means of exercising executive discretion in subjecting entities to regulations, as Bill Clinton's Presidential Directive 95–45 exempted the Air Force's secret Area 51 military base in Nevada from environmental disclosure laws. So-called administrative orders have been used to create and organize the Federal Emergency Management Agency (FEMA), among other purposes. And the various types of national security directives are certainly important and afford presidents a powerful means of independent policymaking, but they are closely tied to the president's capacity as commander in chief and are usually veiled in secrecy. Most national security directives are not made public. According to the General Accounting Office (GAO), even the relevant congressional committees often do not see these directives.⁴²

The ambiguous number and nature of unilateral presidential directives, and the unclear relations among them, can easily lead to confusion. For example, George H. W. Bush's Executive Order 12,807 of 1992 was intended to direct the Coast Guard to return Haitian refugees to Haiti. However, the order did not specifically mention Haitian refugees per se. That detail was contained in a press release, which stated: President Bush has issued an executive order which will permit the U.S. Coast Guard to begin returning Haitians picked up at sea directly to Haiti. In Sale v. Haitian Centers Council, 509 U.S. 155 (1993), the Supreme Court ruled that the press release was a sufficient articulation of the policy, as if inexactitude in unilateral presidential directives were to be expected and tolerated.⁴³ Such confusion can be compounded by the fact that presidents are generally free to decide what to call a particular directive and can even create entirely new types of directives if they want.⁴⁴

Given the ambiguity among the different types of unilateral presidential directives, it makes sense to construe the topic broadly, rather than to focus narrowly on one particular type. This book focuses mostly on executive orders, proclamations, and memoranda. They are arguably the most common, most important, and most accessible types of unilateral presidential directives, and they are similar in their justifications and usage. Furthermore, I focus on nonmilitary directives, since military orders are a fairly discrete set of unilateral presidential directives, and insofar as they are rooted in the president's constitutional position as commander in chief, they may be less constitutionally controversial. I also exclude presidential signing statements from my analysis, since they also constitute a distinctly different type of unilateral presidential tool, and they differ from other directives in that they are less clearly legally binding.⁴⁵

Authority

If executive orders, proclamations, memoranda, and other unilateral presidential directives merely expressed the president's view, then they would be important but not necessarily determinative. However, these directives are not mere statements of presidential preferences; rather, they establish binding policies and have the force of law, ultimately backed by the full coercive power of the state. In Armstrong v. United States, 80 U.S. (13 Wall.) 154 (1871), the Supreme Court considered the legal status of a proclamation and decided that such directives are public acts to which courts must give effect. In other words, in the eyes of the judiciary, unilateral presidential directives are just as binding as laws. In 1960, Senator Robert Byrd (D-WV) advised his colleagues, Keep in mind that an executive order is not statutory law.⁴⁶ Politically, that may be true, as unilateral presidential directives represent the will only of the chief executive and lack the direct endorsement of congressional majorities. But constitutionally and legally, a unilateral presidential directive is as authoritative and compulsory as a regular law, at least until such time as it is done away with by Congress, courts, or by a future unilateral presidential directive.

The justifications for unilateral presidential directives and the limits on them are essentially the same, namely Congress and the Constitution. Bill Clinton's chief of staff, John Podesta, alluded to both of these justifications in defending Clinton's extensive use of unilateral directives after the Republican congressional victories of 1994: The president has had a sense that he has authority that comes from statutes as well as from the Constitution that he can exercise to make progress for the American people.⁴⁷

Many unilateral presidential directives are authorized by the legislative branch. Congress often delegates power to the president or leaves it to the president to determine when a certain state of affairs exists or when a certain preauthorized action is warranted. Many unilateral presidential directives are issued pursuant to this sort of authority. Additionally, presidents have at times creatively invoked long forgotten statutory grants of power to justify unilateral directives that Congress never anticipated. In addition to congressional authorization, unilateral presidential directives can also be justified by the Constitution. Some presidential actions are clearly provided for in the Constitution, but most unilateral presidential directives are not. Instead, they are justified by various broad grants of power in Article II and other general aspects of the Constitution's treatment of the executive.

Just as Congress and the Constitution justify unilateral presidential directives, they also limit them. Unilateral presidential directives are lawlike, but laws have priority over unilateral presidential directives. If Congress passes a law, then a president cannot override it by a unilateral directive. Furthermore, Congress is free to override a particular unilateral presidential directive, or even to limit or eliminate certain types of unilateral presidential directives. For example, the Federal Pollution Control Act Amendments of 1972 (Pub. L. 92–500, 96 Stat. 816, now commonly referred to as the Clean Water Act) effectively nullified the system of water pollution permits that Richard Nixon established via Executive Order No. 11,574 of 1970. Congress may also vote to withhold the funds that would be necessary to implement a unilateral presidential directive, which is tantamount to nullifying the directive. For example, on his second full day in office, Barack Obama signed Executive Order No. 13,492 to close the detention center at the U.S. naval base in Guantanamo Bay, Cuba. However, four months later, the Senate voted 90–6 to withhold $80 million that the Obama administration had requested to pay for the closure, thereby effectively blocking it.⁴⁸

Aside from Congress, the Constitution also limits what presidents can do via unilateral directives. The Supreme Court and other courts have at times struck down unilateral presidential directives as unconstitutional, and various limits on unilateral presidential directives have evolved in case law. As circuit judge Diana Gribbon Motz wrote in Al-Marri v. Wright, 433 F. Supp. 2d 774 (2006), about Bush's unilateral directive for the detention of suspected terrorists without recourse to the writ of habeas corpus, The President cannot eliminate constitutional protections with a stroke of a pen.

While Congress and the Constitution are the main limits on unilateral presidential directives, two other limits should be noted, namely politics and presidents. The use of unilateral presidential directives is, of course, subject to various political considerations and limits. Even if a potential unilateral presidential directive might be constitutional and even authorized by Congress, it might nevertheless be so problematic politically as to be impracticable or impossible. And future presidents are free to issue unilateral directives to overturn earlier unilateral presidential directives. Calvin Coolidge alluded to this in his second State of the Union address, when he asked Congress for a law to make revisions to civil service employment, rather than have to rely on a mere unilateral presidential directive: Otherwise the Executive order of one administration is changed by the Executive order of another administration, and little real progress is made.⁴⁹

However, the limits on unilateral presidential directives are less confining that one might think. First, there is a great deal of leeway between the limits of the Constitution and the will of Congress. As long as a unilateral presidential directive does not clearly violate the Constitution or a law, it is potentially legitimate. Second, while the legislative and judicial branches can overturn unilateral presidential directives, they seldom do so.

In terms of the judiciary's curtailment of unilateral presidential directives, Kenneth Mayer reports that between 1789 and 1956, state and federal courts overturned only 16 executive orders.⁵⁰ The number overturned in more recent years has been correspondingly small: according to Terry Moe and William Howell, of the roughly 4,000 executive orders issued between 1942 and 1996, only 86 were challenged in court, and presidents won in 86 percent of those few cases. The rare occasions when courts do overturn executive orders may be dramatic, but they are very much the exception rather than the rule.⁵¹ By some accounts, even the Court's decision in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), against Harry Truman's seizure of the steel industry was more of a fluke than a broad, principled curtailment of unilateral presidential action.⁵² It is not clear whether several court decisions against George W. Bush's directives for suspected terrorists detained in Guantanamo constitute a major rebuke or are of more limited or narrow significance.

Similarly, congressional attempts to reverse particular executive orders are rare and seldom successful. According to Neil Kinkopf, a special assistant to the Office of Legal Counsel at the Department of Justice under Clinton, In the 25 years from January 1973 through the end of 1997, legislation to overturn an executive order was introduced on 37 occasions.⁵³ Moe and Howell report that only 3 of those 37 attempts were successful.⁵⁴ According to Mayer, Congress [has] explicitly invalidated an executive order of any substance only twice since 1970.⁵⁵ And Adam Warber finds that while Congress terminated 206 executive orders between 1936 and 2001, those amounted to only 4.7 percent of all significant executive orders issued during that time.⁵⁶

Indeed, unilateral presidential directives are fairly safe and durable means of policymaking. According to one study, 40 percent of executive orders issued between 1959 and 1998 were still in effect as of 2008, and the average executive order in that time remained unchanged for twelve years.⁵⁷ Altogether, the above figures suggest that executive orders and other directives give presidents a means of unilateral policymaking that may be largely immune from the checks of the other two branches. And that points to one of the ways in which unilateral presidential directives can be constitutionally troubling.

Unilateral presidential directives are arguably in tension with two of the most fundamental aspects of the U.S. constitutional architecture: the separation of powers and checks and balances.⁵⁸ Insofar as unilateral presidential directives enable the executive to legislate unilaterally, they violate a strict separation of powers. And insofar as the other two branches have often been unable or unwilling to resist or reverse these executive edicts, unilateral presidential directives also call into question the efficacy of traditional checks and balances. But despite these constitutional concerns—and because courts have accepted and even affirmed them, and Congress seldom overrides them and usually passively acquiesces to them—unilateral presidential directives are a legitimate and binding means of presidential policymaking.

Accounting

Even though unilateral presidential directives are important for policymaking and can be controversial both politically and constitutionally, they have often not been subject to systematic processing or careful accounting and bookkeeping. The procedures by which presidents have promulgated unilateral directives have varied greatly. Sometimes unilateral presidential directives are years in the making and are debated at great length before being signed, but sometimes they are issued with no advance notice. Sometimes they are initiated by the president himself, generally after consultation with top advisors or officials, but other times they emerge from deep within the vast executive bureaucracy. For example, consider Lyndon Johnson's Executive Order No. 11,377, which authorized the U.S. Tariff Commission to monitor the annual consumption of whisk brooms in America, noting the types, numbers, and uses made of these brooms. While Johnson signed the order, he did not initiate it or give it much consideration or effort.⁵⁹

Presidents have periodically tried to impose a regular process for issuing executive orders and other unilateral directives, and they have done so by issuing unilateral directives. Herbert Hoover issued an executive order for this purpose in 1929, as did Truman in 1948 and JFK in 1962.⁶⁰ Truman's and Kennedy's directives were both entitled Preparation, Presentation, Filing, and Publication of Executive Orders and Proclamations and both outlined a process for issuing executive orders that went from the Bureau of the Budget to the attorney general to the Federal Register and finally to the president. Later, executive orders from Johnson, Carter, and George W. Bush made further changes to these procedures.⁶¹ The attorney general's office subsequently delegated its review authority to the Office of Legal Counsel, which now reviews most proposed unilateral presidential directives.⁶² Additionally, the White House counsel now routinely reviews executive orders and at times helps to draft them.⁶³ Despite these measures, there is still periodic confusion about how exactly presidents issue them.⁶⁴ For example, Kennedy's and Carter's first executive orders were criticized as not following the usual procedures.⁶⁵

Another quirk about unilateral presidential directives is their format. Early executive orders, for example, were often rather casual. In 1851, Millard Fillmore wrote notes on parts of a map of proposed public grounds in Washington, D.C., in order to approve the plan. Those notes could well be construed as executive orders.⁶⁶ Many other early executive orders consisted only of presidential endorsements of legal briefs or memos. According to the Senate report of 1974, Successive Presidents wrote, ‘Approved,’ or ‘Let it be done,’ or other short comments and these jottings sufficed to stamp a proposal with the authority of the Presidential imprimatur.⁶⁷ While these informal orders were once the norm, there were also more formal early ones, vested with the full trappings and dignity associated with official national documents—the use of highly formulaic language, and the impression of the Great Seal of the United States executed by the Secretary of State.⁶⁸

Ulysses Grant established an official format and style for executive orders in 1873, but as late as 1906, orders were treated most informally—for example Executive order 396 for that year is not even dated.⁶⁹ More format changes were enacted, via executive order, in the 1920s, and a 1931 executive order called for further changes in form and style.⁷⁰ In 1936, FDR's Executive Order No. 7,298 established more regulations for the format of executive orders, and these regulations were revised by other executive orders in 1948 and 1962. The later guidelines stipulated that orders should have a title and should cite the authority under which they are issued. But these norms were not always followed then, nor are they now.

In more recent years, executive orders and proclamations have tended to be phrased like laws, usually with a preamble that cites a problem to be addressed and the sources of the president's authority to act, via a series of clauses that precede the directive saying Whereas…. And recent executive orders often have concluded with a legalistic disclaimer, saying that nothing in the order shall be construed to impair the statutory authority of a department or agency and denying that the order establishes any enforceable right or benefit.⁷¹

Beyond their processing and format, there is also significant uncertainty as to the number of unilateral presidential directives. By some estimates, presidents have issued over 17,000 executive orders and 8,300 proclamations since 1789.⁷² But the precise numbers of these directives are simply not known. This is because for most of the nation's history nobody bothered to keep track of them. Routinized numbering of executive orders did not begin until 1907, when the State Department began assigning chronological numbers to the executive orders that it had collected.⁷³ However, by one account, less than half the presidential orders were filed with the State Department.⁷⁴ Furthermore, the numbering began with an executive order from Lincoln dated October 20, 1862: all executive orders from the seventy-three years before then (even those that were in the State Department records) were omitted. Earlier executive orders were later inserted into the list, using numbers that fell between existing numbers, such as 1A or 28–1.⁷⁵ Some executive orders were and still are secret, but many classified executive orders were inserted into the regular numbering with a letter