Power Without Persuasion: The Politics of Direct Presidential Action.

By William G. Howell. Princeton: Princeton University Press, 2003. 280p. $45.00 cloth, $19.95 paper.

Richard Neustadt's (1960) Presidential Power shaped a generation of writings about the presidency, but it has also imposed an intellectual myopia on the study of the presidency in two important respects: Its power-to-persuade argument has retarded thinking about nonpersuasion-based presidential decisions and actions, and it has obfuscated understanding of the presidency's recent institutional evolution toward nonlegislative policymaking. Building on recent important work by Kenneth Mayer and Philip Cooper, among others, William G. Howell drives a stake into the heart of the Neustadt-centered view by marshaling an eclectic array of data to support his assertion that “direct presidential action” is increasingly the presidential modus operandi. With two reservations, he succeeds admirably.

The tools of direct presidential action are familiar, yet even now understudied: executive orders, presidential proclamations, national security directives, executive agreements, and memoranda of understanding. Focusing mostly on executive orders in the context of a rational choice framework, Chapter 1 begins with the historical and legal basis of unilateral action in a discussion that succinctly and effectively reveals the limitations of the Neustadt view of the presidential world, although Howell understates the extent to which past institutionalist scholars have taken issue with Neustadt and paved the way for Howell et al.

Chapter 2 offers a spatial model of unilateral action utilizing rational choice, an approach Howell claims “is revolutionizing the presidency subfield” (p. 24). He attributes two specific benefits to rational choice: that it “shifts the analytic focus away from the president and toward the decisions that presidents regularly make,” and that it “emphasizes the things that all presidents have in common” (p. 24). These goals are laudatory, but to claim that they are uniquely advanced by rational choice is simply false, as this claim ignores much of the important presidency literature of the last 20-plus years, including, but not limited to, the qualitative and American political development institutionalists, policy theorists, and others. Indeed, one of the unfortunate traits of too much rational choice analysis is a studied ignorance of relevant other work that arrives at similar conclusions without benefit of rational choice blinders. Thus, for example, Howell notes his recent “discovery” that “[t]he number of unilateral directives … has literally skyrocketed during the modern era” (p. 13), yet seems unaware that, as early as 1972, Louis Fisher's President and Congress unearthed the very same discovery. Howell's analysis is undeniably worthy and valuable, but grandiose claims counterproductively denigrate other valuable work and other methodologies, and detract from that which is presented.

Chapter 3 relies on case studies to flesh out three hypotheses that, Howell asserts, set “a higher standard of proof” (p. xv), apropos of rational choice theory building. The three hypotheses assert that greater congressional fragmentation yields greater, and more significant, unilateral presidential action; incoming presidents whose party affiliation is different from that of their predecessor are more likely to issue unilateral directives; and presidents issue more unilateral directives during periods of unified than divided government. These perfectly sensible, if self-evident, propositions guide subsequent analysis.

Chapter 4 tests the hypotheses via Howell's shrewd separation of significant from insignificant executive orders. He then quite brilliantly leaps to a big question: To what extent is presidential unilateral action constrained by Congress and the courts? In some fascinating work in Chapter 5, he compiles legislative efforts to alter, modify, or overturn executive orders, and further explores Congress's big hammer: control over the appropriations process. Chapter 6 explores judicial adjudication of executive unilateral action, noting that judges have tilted heavily toward the executive. Another brilliant database: a compilation of all executive order challenges heard in any federal court from 1945 to 1998. Culling thousands of cases, Howell produces a list of 83, where he finds that challenges to executive orders fail 83% of the time—and even among the failures, some are arguably not. While subsequent researchers will quibble with some of the author's methodological strategies, these prodigious databases provide the meat and muscle undergirding the analysis. More importantly, they underscore a larger truism that arises almost inferentially from the analysis: that the separation of powers is still the animating institutional organism of executive action, even as unilateral presidential action functions to defeat this arrangement of powers.

Despite the overarching logic of his analysis, Howell concludes that this secular institutional trend toward ever-greater executive unilateralism “need not continue forever” because “judges may feel emboldened to overturn presidents with greater frequency” (although no reason is given for why this might occur) and because “[t]here is nothing in the logic of the unilateral politics model that requires presidential power to increase monotonically over time” (p. 181). If the model does not predict it, presidential reality certainly points to it, as does the thrust of Howell's data—in apparent contradistinction to his theory. Here, then, is one reservation to Power Without Persuasion: Despite Howell's repeated genuflecting to the power and potency of rational choice, this analysis, and book, could easily proceed without it. And in the case of the above-stated conclusion, for example, the rational choice prism seems to impede rather than facilitate recognition of larger trends, just as the laborious analysis that produces the book's three guiding hypotheses seems utterly irrelevant to their formulation. The second reservation is that Howell fails to make the case that the executive policy generated by unilateral action rises to the level of significance of legislative policymaking. Howell notes correctly that presidency scholars have placed too much emphasis on presidential success in Congress as the gold standard for defining presidential success. Yet his unilateral action cases remind the reader that unilateral policymaking usually nibbles at the edges of national policy tides. On matters from abortion to budgeting, congressional or court actions still dwarf executive unilateralism, when they intercede.

This point notwithstanding, however, the author's basic argument is surely correct. The unilateral presidency has followed an identifiable upward spiral. And in the context of the more generalized trend toward executive aggrandizement, Howell may be chronicling an ever more redefined presidency.