By Order of the President: The Use and Abuse of Executive Direct Action.

Mayer, Kenneth R.

By Phillip J. Cooper. Lawrence: University Press of Kansas, 2002. xiv, 301 pp.

By Order of the President is an important contribution to the emerging literature on the formal instruments of presidential power. Presidency scholars are, increasingly, turning their attention toward the legal and institutional elements of presidential behavior. It is too early to tell whether this signifies a break with the behavioral approaches that have dominated the subfield over the past four decades, but there is little question that researchers have come to recognize the importance of these tools.

Cooper offers a detailed look at several unilateral presidential tools: executive orders, presidential memoranda, proclamations, national security directives, and signing statements. Separate chapters on each describe how they are used, their reach and their limits, and the strategic considerations that govern their use. Cooper suggests several reasons presidents rely on unilateral instruments: they are a useful way of setting and declaring policy, they are flexible and allow for quick action, they assist in efforts to organize and control the executive branch, and they permit presidents to outmaneuver Congress.

The advantages of unilateral tools, though, may be offset by the drawbacks. For each type of instrument, Cooper also describes the potential pitfalls of overreliance. Presidents can operate outside the normal constraints imposed by checks and balances, they can operate in secret, and they can blur the distinction between clearly legal actions and actions less clearly tied to specific authorizations, particularly when presidents "bootstrap" a unilateral action by relying on an earlier unilateral act. These may result in either bad policies, outright abuse of power, or both.

Cooper relies on qualitative analysis--primarily case studies--to present his argument. He explicitly rejects quantitative analysis as a poor method of making inferences about the importance or substance of unilateral actions; "running the numbers tells us very little" (p. 14). But this means he must rely on his examples and case studies to make his point, and they do not always offer clear evidence. Did Reagan truly change the manner in which presidents used unilateral powers? Have presidents become more reliant on executive orders, or proclamations, or national security decision directives? How often do presidents win with these instruments, and how often do they lose? Cooper reaches some conclusions about these and related issues, but it is difficult to assess the quality of the inferences without more systematic data.

Cooper quite clearly is troubled by what he sees as a lack of accountability in many of these policy instruments. He argues that unilateral tools allowed presidents to embark on a number of failed or ill-considered policies: Iran-Contra, the Bay of Pigs, covert CIA activities in Iran and Guatemala, security lapses in the Department of Energy, and repudiation of key provisions of the Competition in Contracting Act. Most of these missteps might have been avoided if presidents had been more open about what they were doing, or if they had not relied on questionable theories of constitutional interpretation (such as Attorney General Ed Meese's much criticized contention that the Reagan administration was free to ignore laws the president viewed as unconstitutional). Other critics of unilateral presidential power--especially Arthur Schlesinger Jr.--have made similar arguments, although Cooper's explicit focus on the specific instruments of direct action offers a new approach to this theme.

The best aspect of By Order of the President is its broad sweep. Rather than focusing on a specific type of instrument, Cooper brings them all into a comprehensive analytical framework. This is a significant improvement over most existing treatments. To Cooper, the form of presidential activity can be just as important as the substance, and he presents a persuasive case that a president's choice of form can have substantive consequences.

But the book has a few weaknesses. Its discussion occasionally goes beyond the specifics of presidential power to a broader indictment of U.S. foreign or domestic policy (particularly with respect to Latin America and Iran-Contra). Many readers will agree with his assessments, but Cooper does not always offer sufficient evidence to persuade the skeptical. In other instances, his arguments about the downsides of executive action overstate the case.

To give one example, Cooper argues that Proclamation 4771, which Jimmy Carter issued in 1980 to reinstate draft registration, was a troubling example of presidential initiative. "[It] comes as a surprise to many people to learn that such proclamations as this decree have been the basis for criminal prosecution" (p. 119). Cooper seems to imply that the proclamation, and subsequent prosecution of vocal resisters, reflected only the force of Carter's whim--an executive flat based on nothing but a presidential assertion of authority. Yet as the initial section of the proclamation makes clear, its authority is traced directly to a specific piece of legislation, the Selective Service Act, which required registration by men aged eighteen to twenty-six subject to rules and regulations that the president specified (50 U.S.C. App. [section] 453). Moreover, Congress had specifically appropriated funds for this purpose in June 1980 (H.J. Res. 521). Whatever one's opinion of the registration policy, it is difficult to argue that Carter was unilaterally pushing presidential authority to its limit or that prosecuting people who refused to register represented an illegitimate abuse of executive power.

Toward the end of By Order of the President, Cooper offers his take on some informal Washington rules that have, in his view, been violated by direct executive action: do not lie, do not embarrass your opponents, private lives should be off limits, and honor your commitments. These are all sensible prescriptions, but little effort is made to tie these rules to unilateral presidential powers. Cooper asserts that misuse of presidential power undermines these rules, arguing that

 the use and abuse of these presidential power tools, and
 particularly these practices by presidents since the 1980s, make
 it clear that they have contributed to the breakdown of the
 informal rules that have for so long permitted committed
 adversaries to address the nation's most controversial topics and
 yet to continue to work together. (P. 239)

But this is as far as the argument goes, and it is not entirely convincing.

Cooper is on strongest ground when he argues that presidents should make sure that their direct actions are closely grounded in legitimate authority. "The extra care and effort given to the proper identification and careful explication of the basis for authority and fit with other existing laws need not be burdensome or disruptive and can pay important dividends as time passes" (p. 238). By Order of the President offers a compelling argument for this important lesson.

--Kenneth R. Mayer
University of Wisconsin--Madison