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Conventional wisdom suggests that Presidents use executive orders, sometimes characterized as presidential legislation, when legislation is too difficult to pass (in the face of an opposition Congress, for example) or when executive departments or agencies tend to embrace their congressional patrons, rather than the White House. According to this model, executive orders are strategic instruments used by a President to circumvent the constitutionally prescribed policymaking process. Recently studies have found little systematic evidence that executive orders are used to circumvent a hostile Congress. We argue that strategic Presidents do use executive orders to circumvent a hostile Congress, but not if they are likely to be overturned by Congress. In other words, the use of executive orders reflects both their ability to achieve and to maintain preferred changes to the policy status quo. We test this portrait of presidential decision-making by examining determinants of the annual variation in the number of executive Orders issued during the post-World War It period.
In 1793, President George Washington issued an executive order declaring American neutrality in the war between France and England. At the time, Washington's order was seen as a pro-British move, since the 1788 Treaty with France required the colonies to defend French interests in North America. Washington@ use of an executive order was a strategic choice, as he believed that Congress was unlikely to embrace his position (Pious 1979: 51). This was not the last time that a President used an executive order to accomplish policy goals. Indeed, since Abraham Lincoln signed the first "numbered" order, Presidents have issued in excess of 13,000 more. These orders have enshrined such policies as Franklin Roosevelt's establishment of the Civilian Conservation Corps (EO 6101) and the internment of Japanese-Americans (EO 9066), Truman's integration of the Army and seizure of the steel mills (EO 9981 and 10340), and Clinton's order controlling the proliferation of weapons of mass destruction (EO 12938). In short, Presidents have frequently viewed executive orders as a tool that can be used to make substantive changes to the policy status quo (Moe 1993; Mayer 1999; Ragsdale and Theis 1997).
Conventional wisdom suggests that Presidents use executive orders when legislation itself is too difficult to pass (in the face of an opposition Congress, for example) or when...