Plumbing Presidential Power: Pens, Phones, & Paperwork

President Obama’s SOTU speech has revived interest in Presidential power.  Erik Voeten (here) and Andrew Rudalevige (here) argue that Presidential unilateral action has declined in recent years, while Eric Posner argues here that “executive power has increased dramatically since World War II.”

The question of presidential power is a classic one in political science.  The recent debates illustrate three important problems one confronts when trying to measure it, one conceptual, one practical, and one theoretical.  Before considering each of these in turn, it is useful to summarize Posner’s already-succinct point.  In a nutshell, Posner’s argument is that “more pages of regulation produced per year” implies greater executive branch power.

I consider three issues with this in turn.

The Executive Branch Is a “They,” Not a “He.” The Federal Register is essentially the daily record of executive branch actions, somewhat analogous to the Congressional Record.  In it, the various agencies and bureaus within the executive branch publish all sorts of things.  The highest profile (but by no means the only) category of these are what are known formally as rules, or colloquially as “regulations.”

The problem with equating regulations with presidential action is that they are almost never initiated or even approved by the president.  That is, the theoretical gold standard for a rule’s legal standing (i.e., why citizens and firms ought to follow them) is that they are exercising/instantiating statutory authority delegated by Congress to the agency or agencies in question.  The sometimes byzantine fashion in which a policy becomes a regulation is beyond the scope of this post, but it is not uncommon for the process to span multiple administrations.  That is, the action or policy embodied in a rule may very well have been initiated while “the other party” controlled the White House.[1]

Thus, as I will come back to below, regulatory action is (at least arguably) the executive branch doing the work that Congress has requested in terms of “filling in the details” of statutes passed by Congress.

Additionally, at least in de jure terms, the power to promulgate (publish) a regulation is generally held by someone other than the president.  That is, the president does not “sign” regulations.  Rather most statutes with regulatory impact direct a specific official to issue regulations in furtherance of the statute’s goals.  Indeed, one of the most important developments of presidential power since World War II, known colloquially as preclearance, consists of a largely unilaterally-asserted power by the President’s appointed official, the director of the Office of Information and Regulatory Affairs (OIRA).[2] What is somewhat notable about preclearance in this context is that, when this executive power is “exercised,” it usually keeps pages from being added to the Federal Register. But in any case, the existence of preclearance is an acknowledgment of the practical difficulties any president faces when trying to manage the incredible breadth of agencies with at least de jure regulatory autonomy.

Another way of putting this is that executive power and presidential power are related, but not equivalent.

All Pages Aren’t The Same. Of course, some regulations are important and others are unimportant.  But, more to the point, the Federal Register contains more than just rules.  For example, today (1/30/2014)’s Federal Register contains [3]

  • 4 Rules,
  • 6 Proposed Rules,
  • 131 Notices.

Thus, the (vast) majority of the pages of today’s Federal Register are not policy. Rather, they are things like “Notice of Request for Extension of Approval of an Information Collection; Accreditation of Nongovernment Facilities.”  That is, they are notifications of government agencies actions, many of which are trivial.  More importantly, it is distinctly unclear that these filings—many of which are required (somewhat ironically) by statutes such as the Paperwork Reduction Acts of 1980 & 1995—represent nimble and potent executive power.

Is that a Congress Behind the Curtain? I’m definitely not one to argue that executive power has not grown steadily since World War II (in fact, you can read how Sean Gailmard and I narrate and explain part of this rise in our book, Learning While Governing).  But Congress still matters.  And, as I mentioned above, the canonical story of administrative legitimacy (which Maggie Penn and I discuss in our forthcoming book, Social Choice and Legitimacy) begins with the agency issuing the regulation with authority granted by Congress.

As many political scientists have noted in various ways and forms, procedure can be (and, in my experience, often is) politics.  That is, Congress and the president often fight most bitterly over procedure (see executive privilege, fast track authority, filibusters, notice and comment, impoundment, etc.)  A lot of the Federal Register is filled with paperwork that was required of the executive branch by Congress and, furthermore, by Congress under both Democratic (e.g., 1969-1972; 1976-1980) and Republican (e.g., 1995-96) majorities.

As a closing note, if you look at Posner’s graph for a second:

Credit: Eric Posner

I’ll note three features:

1. The really big jump occurs between 1970 and 1975.  The cause of this jump (during Nixon’s Administration):

I’ll just note that Nixon did not get “exactly what he wanted” from the Democratic controlled Congresses in those statutes.

2. President Carter presided over an acceleration, and President Reagan immediately succeeded him with a dramatic pulling back, of the production of Federal Register pages.  I would definitively characterize the first term of the Reagan Administration as more “powerful/effective” than that of Carter’s.[4]

3. The (smaller but still big) jump is around 1990 and corresponds to the regulatory actions required to implement the Clean Air Act Amendments and Americans with Disabilities Act, each passed by Democratic Congresses with a Republican president.

Conclusion…? I guess the basic point of this post is that no single time series is going to capture presidential power.  There are a lot of specific reasons for this, but a major theoretical point is that, if there was, then Congress could leverage that number to “rein in” the president (we see this with the budget/debt ceiling every month or so these days).  Thus, a power-seeking president would attempt to find substitute ways to exert/exercise (truly) unilateral power.

With that, I leave you with this.


[1] A famous (and unusual in other respects) example of this was the ergonomics standard, a history of which is presented here. Note that the linked history was written in 2002, right after the standard was repealed under the Congressional Review Act of 1996 (to my knowledge, the only regulation so far to have been overruled by Congress under the CRA)—things have evolved since then.

[2] OIRA was established by Congress in 1980 and is located within the Office of Management and Budget.  The Administrator of OIRA is subject to confirmation by the Senate.  OIRA’s main statutory mandate is reviewing agency’s requirements for information collection. However, the real “juice” of OIRA review is based on its presidentially crafted mandate to review draft regulations under Executive Order 12866, signed by Clinton and tinkered in minor ways by both GW Bush and Obama.  EO 12866 replaced EO 12291, signed by Reagan, which really established the preclearance regime.

[3] The Register is published daily, Monday-Friday.

[4] Before one says, “well, Reagan was pushing a deregulatory agenda,” I’ll note that (1) deregulation can require as much, if not more, notification and revision (i.e., pages) than regulation and (2) “yeah, that’s kinda my point.”