Take Up Your Pen: Unilateral Presidential Directives in American Politics

Chapter 4. Early Unilateral Presidential Directives

chapter four ................. Early Unilateral Presidential Directives A ‘‘Proclamation,’’ in its ordinary use, is an address to citizens or subjects only, it is always understood to relate to the law actually in operation and to be an act purely and exclusively Executive. —James Madison, Helvidius Number V (1793) I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons. —Abraham Lincoln, Emancipation Proclamation (1863) This chapter examines the presidential use of unilateral directives from the founding of the country to the dawn of the twentieth century. This period is important for unilateral presidential directives for several reasons. First and foremost, these early unilateral directives helped to establish precedents and norms, both constitutionally and politically, that greatly influenced subsequent directives, up to and including the present day. This period also connects two major points in the development of unilateral presidential directives: their judicial acceptance in the early to midnineteenth century and their more widespread use in the early twentieth century. The Supreme Court and lesser courts endorsed the constitutional legitimacy of executive orders and proclamations in the early nineteenth century and by the 1870s had explicitly acknowledged that they were being Early Directives 87 used to make binding law in a variety of policy areas. But despite the judiciary ’s acceptance of unilateral presidential directives in the early nineteenth century, presidents did not much use this new device for quite some time. Before the twentieth century, no president issued more than a few dozen executive orders a year, and most issued far fewer. Andrew Jackson was the first to average more than one a year, Ulysses S. Grant issued the most (217 total), and William McKinley issued them at the greatest rate (an average of 38.95 per year).1 Executive orders and proclamations were not regularly used for important and controversial purposes until the early twentieth century, when Theodore Roosevelt issued almost as many executive orders in his seven and one-half years in office as all of his predecessors combined. Presidents after TR continued to issue a great number of executive orders, often for important or controversial purposes, so the pattern of relative disuse before the twentieth century constitutes a significant phase in their overall development. Dependence on the numbers of executive orders issued is problematic, and of course executive orders are just one type of unilateral presidential directive, but the relatively flat line of executive order use that runs through the nineteenth century to the huge spike that begins shortly after Theodore Roosevelt’s inauguration is sufficiently dramatic that the apparent statistical change may serve at least as the starting point for further analysis. Even if the accuracy of the numbers is discounted significantly, the data clearly indicate that executive orders were used much less frequently before the dawn of the twentieth century than after it. Furthermore, the historical record suggests that the difference may be qualitative as well as quantitative, in that many early unilateral presidential directives were not used for signi ficant or controversial purposes. Another reason to examine the early use of unilateral presidential directives is that there is very little written about them, and the few accounts that do exist may mischaracterize them. As the previous chapter’s examination of early court cases on unilateral presidential directives indicates, there were more than a few significant unilateral directives before the twentieth century, especially concerning commerce with foreign countries, the Civil War, and public land. However, this is not a widely held view, as most scholars seem to think that early unilateral presidential directives were infrequent, unimportant , or both. For example, consider the three main extant accounts of early executive orders, which come from a quantitative political science study, the federal government itself, and a judicial opinion.2 88 Chapter 4 In their study of statistical patterns in the presidency, Gary King and Lyn Ragsdale claimed: ‘‘Early executive orders were infrequent; they began to see significant use only after the Civil War. During the nineteenth century, executive orders had two primary administrative purposes. The earliest was for external administration: the disposition of public lands, especially the withdrawal of land for Indian, military, naval, and lighthouse reservations. In the 1870s...