University of Pennsylvania Museum Publications Take Up Your Pen: Unilateral Presidential Directives in American Politics (Democracy, Citizenship, and Constitutionalism)

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. Review "Beautifully written and utterly transparent, Take Up Your Pen illuminates a vitally important aspect of presidential power—namely, the capacity of presidents to bypass the legislative process and set public policy via their own executive orders. These powers have been exercised since the very beginning of the nation's history, but as Dodds shows us, they have recently gained new urgency."—William G. Howell, University of Chicago From the Author Graham G. Dodds is Associate Professor of Political Science at Concordia University. About the Author Graham G. Dodds is Associate Professor of Political Science at Concordia University. Excerpt. © Reprinted by permission. All rights reserved. Chapter 1 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. 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. The ACLU complained that the president was "very willing to sacrifice civil liberties" and might have authorized "criminal activity." Major newspapers also critici