PRESIDENTIAL

Mayer, Price / UNILATERAL

STUDIES QUARTERLY
PRESIDENTIAL
/ JunePOWERS
2002

Unilateral Presidential Powers:

Significant Executive Orders, 1949-99

KENNETH R. MAYER
KEVIN PRICE
University of Wisconsin–Madison

The conventional sense of presidential power remains anchored in Neustadt’s notion of per-
suasion in a fragmented constitutional system. Here, the authors add to an emerging literature that
redirects attention to formal sources of presidential authority. They examine the frequency of execu-
tive orders from 1949 to 1999 and offer new evidence that presidents rely on executive orders to effect
significant policy change and send strategic signals to other actors in the political system. They con-
tend that executive orders enable presidents to recast the organization and activities of the federal
government and, at times, the larger contours of American politics. After assessing the political and
temporal logic behind this manifestation of institutional power, the authors conclude with several
observations about the implications of the findings for the study of the American presidency.

In the typical rendering of the American presidency, chief executives encounter formi-
dable barriers to decisive leadership: a far-flung, entrenched bureaucracy (Wilson 1989); a
largely independent and often recalcitrant Congress (Mayhew 1974; Peterson 1990; Jones
1994); an array of news media operating under distinctive incentive structures (Bennett
1988; Entman 1989); and a sporadically attentive, increasingly cynical public (Zaller 1992;
Black and Black 1994; Cooper 1999). Richard Neustadt’s (1990) description of presidential
power as “the power to persuade” captures the conventional scholarly wisdom of a con-
strained executive office. Indeed, many of us deploy the premise of “the impossible presi-
dency” as we teach undergraduates that presidents struggle to achieve and sustain success.
Presidents clearly labor under the dual burdens of high expectations and contested
power, a challenge apparent to many occupants of the White House. In a typically forthright
moment, President Truman suggested a man would be crazy to want the office if he knew
what it required (McCullough 1992). Decades earlier, President Grover Cleveland offered a
young Franklin Roosevelt one wish as they shook hands: that the boy not grow up to be presi-
dent of the United States. Only a handful of postwar presidents—Eisenhower, Reagan, and

Kenneth R. Mayer is professor of political science at the University of Wisconsin–Madison and author of With
the Stroke of a Pen: Executive Orders and Presidential Power (Princeton University Press, 2001).
Kevin Price is a graduate student at the University of Wisconsin–Madison.

Presidential Studies Quarterly 32, no. 2 ( June) 367

© 2002 Center for the Study of the Presidency
368  PRESIDENTIAL STUDIES QUARTERLY / June 2002

Clinton—have left office with public approval ratings substantially above the low point of
their respective administrations.
Notwithstanding the conventional view of the impossible presidency, political scien-
tists have rediscovered arguments that chief executives enjoy meaningful unilateral author-
ity even in a system of separated institutions sharing power. Amassing a rich body of
descriptive data about unilateral presidential action, this literature has elaborated a theoreti-
cal framework to fit the pieces together and advance our understanding of presidential
power (Moe and Howell 1999; Howell 2000). Of particular interest is the executive order, a
tool presidents use to bring their constitutional or congressionally delegated powers into
play unilaterally. Formally, an executive order is a presidential directive that draws on the
president’s unique legal authority to require or authorize some action within the executive
branch (Mayer 1999, 445). Political scientists now recognize executive orders as important
unilateral policy tools, however constrained by legal and political considerations they may
be (Krause and Cohen 1997; Moe and Howell 1999; Mayer 1999, 2001; Deering and
Maltzman 1999).
In this article, we examine the frequency of executive orders from 1949 to 1999, offer-
ing new evidence that presidents rely on executive orders to implement significant domestic
and foreign policies. We contend that executive orders enable presidents to recast the organi-
zation and activities of the federal government and, at times, the larger contours of Ameri-
can politics. We assess the political and temporal logic behind this manifestation of
institutional power and conclude with several observations about the implications of our
findings for the study and practice of the American presidency.

The Unilateral Presidency in Action

Careful observers of American politics cannot miss the persistent importance of uni-
lateral presidential authority. To take a recent example, Bill Clinton’s 1996 establishment of
the 1.7 million acre Grand Staircase-Escalante National Monument reflected not only the
president’s programmatic ambitions but the imperatives of election-year politics. Clinton
recognized that the Republican Congress would certainly refuse to join him in a legislative
effort to protect large parts of the West from industrial development, but he recognized the
salience of western lands policy to his environmentalist supporters. In choosing to protect a
vast tract of land in Utah, Clinton sought political benefits (the bolstered support of envi-
ronment-minded voters) without incurring political costs (because he knew he would not
win Utah’s electoral votes in any case). A University of Colorado professor called Clinton’s
decision “a brave and true act,” but a representative of the Utah Association of Local Gov-
ernments called it “the most arrogant gesture I have seen in my lifetime” and suggested that
“the only comparable act I can think of is when a country is ruled by a king and he sweeps his
hand across a map and says, ‘It will be thus!’ ” (Maraniss 1996). By deploying the authority
vested in his office by the Antiquities Act, a 1906 law enacted to allow presidents to protect
historically significant sites, Clinton announced his commitment to an important element
of his constituency, but he sought these broad electoral advantages by concentrating costs in
 Mayer, Price / UNILATERAL PRESIDENTIAL POWERS  369

1
the mountain states of the West where he fully expected to lose in the 1996 election. The
political logic was clear, and his institutional authority allowed President Clinton to pursue
political and programmatic gains without incurring significant political costs (at least in the
short run; one might argue that mounting western opposition to the administration’s lands
policy hindered Al Gore’s effort to make inroads in the region in the 2000 campaign).
As his presidency reached its final stages, Bill Clinton used executive orders to bypass a
largely recalcitrant Republican Congress (Shogren 1998). The political incentives driving the
Clinton strategy were not lost on contemporary observers. Editorial writers at the Washington
Times, for instance, noted that Clinton’s unilateral actions had two central objectives: “To
appear relevant and to juice core constituents” (Government by executive order 1998). In a
scathing indictment of Clinton’s use of executive orders, a contributor to the Union Leader of
Manchester, New Hampshire, opined that “Chairman Clinton rules by decree in People’s
Republic of America” (Lessner 1998). One can make a principled case against presidents’
exercise of unilateral authority to achieve wide-ranging policy objectives, but much of the
conservative opposition to the use of such authority when wielded by President Clinton
receded when George W. Bush considered using his authority to overturn several key
Clinton decisions. Like so many other features of the American political system, one’s opin-
ion of ostensibly institutional questions turns in a fundamental sense on whose interests are
better served by structural arrangements at a given moment (see Binder and Smith [1997] for
a similar argument in the specific context of the Senate filibuster).
During the second half of his second term, Bill Clinton resorted to executive orders
and other forms of unilateral authority to enact important policy changes, to draw what he
saw as politically helpful contrasts between his party and the GOP, and to pursue an appeal-
ing programmatic legacy in the face of an opposition Congress. For example, he signed an
order requiring firms that provide health care to federal employees to abide by the require-
ments of the 1996 Kennedy-Kassebaum legislation, invoked the Antiquities Act to protect
land in the West, banned road building in large sections of the national forests, secured
Medicare coverage for patients involved in clinical trials, and adopted water quality stan-
dards that set pollution limits based on local conditions.
Amid this flurry of executive activity, critics railed against Clinton for his “liberal,
often creative, use of executive orders to steer the ship of state in ways and directions that
might not pass muster in the normal system of checks and balances” (Paige 2000). But this is
precisely the point: like other presidents before and after, President Clinton used this reposi-
tory of power to achieve political and policy objectives that otherwise faced grim prospects.
When George W. Bush came to office in 2001, he immediately set to work overturning key
Clinton orders—the Bush ban on aid to international family planning organizations drew
widespread attention—and testing the political waters for other opportunities to reverse
Clinton administration enactments such as the ban on road building in national forests, lim-
its on arsenic in drinking water, and new meat safety rules. The point is not that Bush can
overturn every Clinton action he finds objectionable; like Clinton himself, Bush will use

1. Largely obscure before Bill Clinton’s invocation of it in the Grand Staircase decision, the Antiquities Act
achieved a degree of cultural salience when it played a key role in an episode of the NBC television series about the
White House, The West Wing.
370  PRESIDENTIAL STUDIES QUARTERLY / June 2002

political and institutional calculations to probe for soft spots in his predecessor’s program.
Indeed, in July 2001, Bush and the House Republican leadership backed away from threats
to systematically reverse Clinton’s last-minute executive orders and regulatory policies
(Eilperin 2001).
September 11 obliterated the previous calculus of presidential power. Bush, as wartime
presidents have done without exception, moved quickly to assert control over what was by
any definition a national crisis. Within weeks, he froze the assets of terrorist groups (Execu-
tive Order 13224, September 25, 2001), redefined the scope of airline security, established
the Office of Homeland Security within the Executive Office of the President (Executive
Order 13228, October 10, 2001), authorized military tribunals for trials of suspected terror-
ists (Military Order of November 13, 2001), revised Justice Department regulations concern-
ing the treatment of attorney-client conversations by certain federal detainees (Department
of Justice/Bureau of Prisons regulation of October 31, 2001), and began prosecuting the war
against the Taliban in Afghanistan. While some of these actions were clearly authorized by
Congress, some of the more significant steps were taken unilaterally, either in the face of con-
gressional acquiescence or even opposition.2
In its essentials, this sequence illustrates two processes. The first is one of dueling presi-
dencies, each one exploiting the prerogatives of executive authority when political incen-
tives recommend it and other conventional means of achieving policy change appear
foreclosed. The second is one of executive initiative in response to a direct threat to U.S.
security. Both reflect a consistent pattern. As these familiar events suggest, presidents can
deploy their constitutional and statutory authority to reshape national governance and the
contours of the political system itself. In short, presidential power is more than the power to
persuade; it is also the power to command, though such authority is always contingent on
the political and institutional constraints of a given moment.

Executive Orders and Formal Presidential Power

Neustadt’s conception of presidential power remains dominant four decades after he

first developed the argument. In Presidential Power, Neustadt (1990) contends that presidents
cannot normally secure their objectives by executive fiat or “command.” Presidential com-
mands do not signify presidential power, Neustadt argues, but a “painful last resort, a forced
response to the exhaustion of other remedies, suggestive less of mastery than of failure”
(p. 24). Instead, presidents must rely on their strategic bargaining skills to induce compliance
from other key actors, many of whom have independent bases of political support and insti-
tutional authority. In our view, this dichotomy between “formal power” and “persuasion” is
artificial; the two categories are neither mutually exclusive nor exhaustive of all possible ave-
nues of presidential influence. Here, we merge conceptions of presidential power in particu-
lar with more theoretical work about the nature of political power in general.

2. One order had little to do with national security or the war against terrorism. In October, George W. Bush
issued an executive order (Executive Order 13233, November 5, 2001) pertaining to the Presidential Records Act. In
it he, in effect, limited access to the papers of ex-presidents beyond the twelve-year period specified in that act and
gave both ex-presidents and current presidents a concurrent veto over release of disputed papers.
 Mayer, Price / UNILATERAL PRESIDENTIAL POWERS  371

Most accounts of the presidency and its occupants stress the decidedly limited extent
of direct presidential authority, emphasizing instead the requisite exercise of informal skills
and persuasive political leadership (see Fisher [1995]; Edwards, Barrett, and Peake [1997];
and Cooper [1986] for noteworthy exceptions. An emerging line of research following
Krehbiel [1998] also attends systematically to the programmatic implications of the presi-
dential veto; see Cameron [2000] for example). In Presidential Power, Richard Neustadt
(1990) observed that even presidents’ most explicit formal prerogatives—the veto, the mili-
tary order, the federal directive—require compliance from others: “Literally,” Neustadt
writes, “no orders carry themselves out; self-executed actually means executed by others”
(p. 17). As a consequence, virtually every case of presidential action involves persuading
other political actors. In practice, then, even the exercise of unilateral authority requires a
president to shape the perceptions and political calculations of other actors to secure their
cooperation. Our point here is not to question the enduring relevance of Neustadt’s con-
struct but to advance an argument connecting the study of the presidency to the tradition of
public law in which institutional prerogatives played a central analytical role.
Before Neustadt introduced this notion of persuasive power, Edward Corwin (1948)
noted the ambiguity of the constitutional provision that the president “take care that the
laws be faithfully executed.” Executed, Corwin wondered, “by others?” (p. 4). As in most
forms of institutional authority, the exercise of presidential power is indirect in Neustadt’s
literal sense that it requires compliance from any number of distinctly situated actors. Never-
theless, such compliance is highly likely when presidents marshal the formal powers of their
office. Within constraints established by political, organizational, and legal circumstances,
presidents enjoy substantial latitude in exercising official privileges such as the executive
order (Mayer 1999; Moe 1993; Moe and Howell 1999).
How might presidents take advantage of this deference, and to what ends? A president
can commit strategic resources to induce compliance in a specific interaction with another
political actor (a transaction, to use the “new institutional economics,” or NIE, parlance).
Such a principal-agent relationship raises many of the same problems that attend to contrac-
tual relationships among economic actors: specifying the terms of agreement, monitoring
behavior, enforcement, moral hazard, shirking. An alternative to this sort of case-by-case
persuasion is to commit resources to create new institutional patterns or procedural mecha-
nisms and to create new and possibly enduring arrangements that shape the incentives of
other actors. In the NIE framework, firms are a way to institutionalize contractual interac-
tions between a principal and an agent. In political settings, argues Moe (1993), institutions
can serve much the same function.
By using their formal powers, presidents structure the institutions that surround them
to standardize their interactions with other actors. To convert the bargains that would other-
wise require skill and scarce political capital into manageable leadership opportunities, presi-
dents seek routines that encourage compliance from other actors. By creating institutions
and processes that make these once-expensive bargains part of the political landscape, presi-
dents alter default outcomes, leaving it to other actors to expend resources to undo what the
president has done.
If presidents may use the rhetorical, personal, and persuasive resources of the office,
they may also take advantage of the formal prerogatives vested in the chief executive by the
372  PRESIDENTIAL STUDIES QUARTERLY / June 2002

Constitution, statutory grants of authority, and the evolution of relevant legal doctrine.
(Cash 1963; Cross 1988; Fleishman and Aufses 1976; Jack 1986; Neighbors 1964; Rosenberg
1981; Sunstein 1981; Tauber 1982). To the extent that executive orders alter institutional
structures or processes, they provide potent resources for presidential leadership based on
formal authority. In short, presidents enjoy significant but not unfettered latitude in govern-
ing the government through the issuance of executive orders.
The administrative authority vested in the modern presidency is significant in its own
right, but we claim that the exercise of intragovernment powers can yield consequences for
the larger political system as well. In a highly permeable system in which executive policy
decisions can spill over into other institutions and the broad political culture, executive
orders can effect changes that presidents may or may not have intended—or even consid-
ered—in the first place (Weir 1989). In other words, politically significant executive orders are
not merely executive phenomena. As illustrated by the long history of executive orders con-
cerning integration and civil rights—Truman ordering the integration of the armed forces,
Kennedy and Johnson requiring affirmative action in federal contracting, Reagan attempt-
ing to limit the role of ethnic preferences in federal affirmative action programs—these
instruments of presidential authority can animate contending forces, facilitate innovations
in the legislative process, codify ideological commitments, and drive social change.
Obviously, formal and informal presidential powers are not mutually exclusive. The
exercise of formal powers at one point can affect subsequent opportunities to exploit infor-
mal resources. As Neustadt (1990, 4) writes, the crucial question for any president is whether
he will have influence when he wants it. Recognizing the dynamic quality of national leader-
ship, we consider executive orders to be substantively and theoretically important manifesta-
tions of presidential discretion. Shaped by political calculations, advisors’ offerings, and the
possibility of countervailing actions by other institutional actors, executive orders reflect a
uniquely presidential mode of action. Each order bears the chief executive’s signature in a
symbolically telling and potentially clear statement of presidential priorities.
Executive orders provide an important link to a crucial result of presidential leader-
ship: public policy. According to Paul Light (1993, 161), lasting programmatic innovations
represent the most important legacy of any administration. Other types of presidential
legacies—symbolic (Tulis 1987; Kernell 1986), partisan (Skowronek 1993; Milkis 1993), and
organizational (Moe 1985; Weko 1995)—also provide telling clues to the effects of presiden-
tial leadership on the larger political system. Executive orders, of course, can impinge on
each of these dimensions. It is important to note that the next occupant of the White House
may summarily retract a president’s executive orders. Any decision to overturn an existing
order will be shaped by the usual suspects—political, organizational, and legal concerns—but
presidents possess the authority to do so if they wish. Statutes may be overturned, but such
an effort requires much more of its proponents as they negotiate the complications of the
congressional lawmaking process (Rauch 1994).
In the simplest sense, executive orders are presidential directives that require or autho-
rize some action within the executive branch of the federal government. Presidents have
used them to reorganize executive branch agencies, alter administrative and regulatory pro-
cesses, shape legislative interpretation and implementation, and make policy within the
bounds of their constitutional or statutory authority. Those bounds are somewhat fluid, as
 Mayer, Price / UNILATERAL PRESIDENTIAL POWERS  373

the Supreme Court has generally but not exclusively taken an expansive view of presidential
discretion. Recent research into these unilateral executive powers has found consistent evi-
dence that presidents utilize them for strategic purposes. The overall frequency of executive
order issuance varies in predictable ways, as presidents tend to issue more orders—and thus
rely more heavily on their own powers—when unpopular, when faced with crises that
demand swift and decisive action, when running for reelection, and immediately after the
White House switches party control (Mayer 1999).
But it is possible to extend this research by sifting through the population of executive
orders to isolate especially significant directives. From a theoretical standpoint, one should
consider not simply the number of executive orders a president issues—even though such a
measure is a useful indicator of overall energy—but how many of those orders are recognized
as genuinely important. Over the past four decades, presidents have issued roughly forty to
sixty executive orders per year, some important, others quite mundane. Orders clearly recog-
nized as significant—such as Johnson’s Executive Order 11246, which laid the framework for
federal affirmative action programs—stand in the record alongside undeniably trivial orders
(such as Ford’s Executive Order 11943, which merely corrected a typographical error in an
earlier order setting salary levels for federal employees). The noise level of these unimportant
orders might obscure substantive patterns among the important ones. In what follows, we
describe our data and methods, provide the results of our statistical estimations, and con-
clude with several theoretical points concerning the American presidency.

Isolating Significant Executive Orders

Our first cut at the data analysis begins in March 1936, the first month in which execu-
tive orders were systematically recorded in the Federal Register. Determining which of the
roughly seventy-five hundred executive orders issued since then qualify as significant is an
inexact and subjective process.3 Nevertheless, it is possible to outline several criteria that per-
mit distinctions between relatively significant and relatively trivial orders.
In Divided We Govern, David Mayhew (1991) constructed an inventory of major legis-
lative enactments from 1946 to 1990. Using a two-stage process, Mayhew first drew on jour-
nalists’ year-end accounts of legislative action to note whether contemporary observers
considered a law significant. In a second pass, he looked at retrospective evaluations by pol-
icy experts in various fields: did the legislation attract scholarly attention as something that
changed a policy domain in important ways? Based on these criteria, Mayhew identified 267
acts as particularly important.4
In his study of executive-legislative relations, Mark Peterson (1990) coded presidential
policy initiatives as innovative or as part of a broadly important program. Here, Peterson’s

3. The first executive order to appear in the Federal Register was number 5,674. The final order in the series,
issued December 21, 1999, was number 13,144. The total population of orders is thus 7,471 orders.
4. Mayhew (1991, 49). During this span, Congress enacted a total of 24,671 bills, of which 15,875 were public
and the remainder private (data from Ornstein, Mann, and Malbin 1996, 165). By Mayhew’s criteria, just over 1 per-
cent of these bills constituted major legislation (267 out of 24,671).
374  PRESIDENTIAL STUDIES QUARTERLY / June 2002

declaration of importance depended on whether specialized sources of political coverage

(Congressional Quarterly, CQ Almanac, National Journal) mentioned the policy. A measure’s
level of innovation turned on whether the proposal departed significantly from existing pol-
icy. In his sample of presidential proposals, Peterson found that more than one in five consti-
tuted “issues of the greatest consequence.”
Working with a random sample of 1,028 orders issued between March 1936 and
December 1999, we characterized orders within that sample as significant if they met any
one of six criteria.5 First, we considered whether the order received attention at the time from
the press or from other political actors. At times, journalistic coverage has focused more on
the subject of an order than on the order itself. When Eisenhower placed the Arkansas
National Guard under federal control to force the integration of Little Rock schools, he took
action within a much broader legal and political process. Press accounts at the time tended to
focus not on the fact that Eisenhower had issued an executive order but rather on the sub-
stance of what he did.6 In looking at press attention, we considered both the national press
(the New York Times, Washington Post, or Wall Street Journal) and more specialized publications
covering politics or specific professional fields.
Second, we ascertained whether Congress considered an order important enough to
justify committee hearings and whether specific legislation to override the order made it to
the floor of either chamber. Congressional hearings, in particular, have long been recognized
as an important measure of the issues legislators deem significant (Edwards and Wood 1999).
Again, some orders receive more congressional attention than others, and many pass unno-
ticed, but it is not unusual for legislators to pay attention to those orders that might threaten
congressional prerogatives.
Third, we asked if students of law or the presidency refer to the order (or a class of
orders) in their scholarly work. Here, we effectively replicate Mayhew’s (1991) “second
sweep” of expert opinion. In this regard, the legal literature is extensive, though the social sci-
ence and history literatures are less developed. Nevertheless, the extent to which an order
receives mention in one or more of these forums is an indicator of importance. For example,
we counted all of the emergency seizures of private property—during wartime or not—as sig-
nificant. While some of these seizures made the news at the time and others did not, Rossiter
(1956, 59) depicted them as a “spectacular display [of] the President’s power of martial
rule.”7 Similarly, Corwin (1948, 301) dealt at length with the wartime property seizures as an
example of presidents intruding into the clearly legislative territory of industrial policy. In

5. The original sample was one thousand orders, drawn from the March 1936 to December 1995 period. This
yielded a sample of 17.6 percent of the population. We later updated the sample, drawing the same fraction of all
orders issued between January 1996 and December 1999. The resulting pooled sample can be considered a single
random sample for the purposes of statistical inference.
6. Conversely, the press often refers to unilateral presidential actions in general as “executive orders,” even
when the actions do not take that form. When Clinton reversed the existing ban on fetal tissue research and over-
turned a ban on abortions at overseas military hospitals, he did so through presidential directives to agency heads,
not through formal executive orders. Nevertheless, these actions were widely reported to be executive orders.
7. Rossiter (1956, 60) discounts the fact that in 1943, Congress granted the president formal legislative
authority to make such seizures, arguing that since Roosevelt had relied on the commander-in-chief power to take
over plants well before this act, the delegation was “at best declaratory, even supererogatory.”
 Mayer, Price / UNILATERAL PRESIDENTIAL POWERS  375

addition, we examined the law review literature to determine whether an order spurred any
attention by legal scholars.
Fourth, we identified cases in which presidents themselves demonstrated in public
statements or emphasis in the public record that they considered an order important. Presi-
dents have placed varying emphasis on executive orders. Carter and Reagan tended to publi-
cize most of their orders, placing them in their collections of public papers. Others did not
routinely publicize their orders, instead releasing order texts and public statements only for
those they considered especially noteworthy. We thus include orders about which a presi-
dent made a nonroutine statement (that did not include typical press releases).
Fifth, we determine if the order triggered federal litigation. A few orders have gener-
ated legal challenges of major importance—Youngstown v. Sawyer, Korematsu v. U.S., and
E.P.A. v. Mink, for example. A lawsuit is an indication that a plaintiff considered the order a
sufficiently important infringement on some right or interest to seek judicial remedy. Simi-
larly, a Supreme Court or appeals court decision is clear evidence that the judiciary considers
the case important and controversial as a matter of law. Executive Order 11246, for example,
has been cited in more than three hundred federal district court cases since 1965. In deploy-
ing this criterion, we identify executive-order-related litigation as catalogued in the Lexis and
Westlaw databases.
Finally, we ask whether an order created a new institution with substantive policy
responsibility, expanded or contracted significant private rights, or constituted a significant
departure from existing government policy. Again, we distinguish between orders creating
ceremonial or symbolic organizations (such as the American Battle Monuments Commis-
sion) from those establishing or reorganizing agencies with substantive duties (such as the
Office of War Information or the Office of Strategic Services).
We counted an order as significant if it met at least one of the conditions outlined here:
press attention, congressional notice, scholarly treatment, presidential emphasis, litigation,
or creation of institutions with substantive policy responsibility. Most significant orders met
more than one of these criteria. To be sure, this process involved subjective judgments, but
we attempted throughout to adopt a conservative view of what constituted a significant
order. In cases of ambiguity about an order’s significance, we considered it insignificant. We
deemed insignificant those orders that exempted individuals from retirement or other civil
service requirements and all but four public land orders. In making these designations, we
erred on the side of underestimating the number of significant orders.
According to these criteria, 149 of the 1,028 executive orders in the original sam-
ple—about one in seven—qualify as significant (the appendix contains a list of these orders,
giving the number, date, and title of each). From this sample statistic, we can estimate within
a 3 percent margin of error that 1,083 significant executive orders were issued during the
sixty-five-year period from 1936 to 2000, an average of about 17 per year.
We can use this database of significant executive orders to understand the political and
structural forces that prod presidents to issue them. Extending Mayer’s (1999, 2001) analysis
of the full sample, our working hypothesis is that the frequency of important orders will vary
with the strategic context in which presidents operate. In the ensuing section, we describe
our models and the results of our statistical analysis.
376  PRESIDENTIAL STUDIES QUARTERLY / June 2002

Models and Results

Because the number of executive orders issued in any year can only assume
nonnegative integer values, an event-count model provides an appropriate estimation pro-
cedure for our data. Specifying the appropriate count model requires care because of the rea-
sonably strict assumptions required to invoke the Poisson model (Greene 1997; King 1989).
In the Poisson, one assumes no contagion among observations. In other words, the Poisson
requires that each significant order be statistically independent of all others. In the more gen-
eral negative binomial model, a dispersion parameter α is estimated to account for any con-
tagion in the data. The Poisson is thus a special case of the negative binomial appropriate
only under certain substantive and technical circumstances. As Tables 1 and 2 suggest, the
Poisson model is entirely adequate for our data set—a likelihood ratio test reveals that the
negative binomial provides no improvement over the Poisson.
Drawing on previous research concerning the exercise of unilateral presidential
authority, our primary theoretical expectations concern the political and institutional envi-
ronment in which presidents operate. We begin with the observation that the ambiguities of
the president’s constitutional powers, combined with the assumption that presidents are
motivated to assert control over governing structures, provide opportunities for presidents
to probe the boundaries of their power and extend those boundaries when they can. A presi-
dent’s proclivity to do so depends on the specifics of his political context and his relation-
ship with other participants in the governing process.8
First, we expect newly elected presidents to issue relatively more significant executive
orders. This pattern should be more pronounced in cases where party control of the presi-
dency has just switched. With their partisan objectives frustrated by the previous regime,
presidents reclaiming the White House for their party should issue important orders in an
effort to demonstrate their authenticity to campaign supporters and important segments of
their electoral coalitions. They should also try to reverse the policies of their predecessors.
For example, President Clinton promised to issue an order permitting homosexuals to serve
in the military, as part of a larger effort to consolidate—and reward—the political support of
the gay and lesbian community. Owing to congressional and military opposition, of course,
he stopped well short of the policy he first proposed, opting instead for the much weaker
“don’t ask, don’t tell” policy that seemed to satisfy no one. But the landscape changed with
even this step, as during the 2000 campaign Vice President Al Gore vowed to extend the pol-
icy and George W. Bush promised to reverse it.
Notwithstanding this case, however, new presidents should exercise their unilateral
powers with unusual vigor soon after assuming office. Executive orders are notable because
of their potential transience: successors in the White House may simply overturn previously
issued orders with new orders of their own. In light of this core institutional characteristic,
and in light of the political logic underlying early issuance, new presidents should be more
likely to sign important executive orders in the first months of their terms.

8. For an explication of these two threads, see Mayer (2001) and Moe and Howell (1999).
 Mayer, Price / UNILATERAL PRESIDENTIAL POWERS  377

Additional theoretical expectations include the following. First, new presidents who
have just wrested control of the White House from the other party should issue significant
orders with greater frequency than new presidents who inherit the White House from their
own party (or from themselves in the case of second-term presidents). Second, presidents
running for reelection should seek to avoid unnecessary controversy by issuing fewer signifi-
cant executive orders. Conversely, presidents not running for reelection should issue more
orders in an effort to create some programmatic or institutional legacy in the waning months
of their administrations. Third, if Neustadt (1990) was right that presidents need robust pub-
lic prestige to govern effectively in the separated system, approval ratings should be inversely
related to the number of significant executive orders issued in a given year. Fourth, if presi-
dents encounter recalcitrant opposition parties in Congress, divided government should
encourage the issuance of significant executive orders. Finally, we expect Democrats to pur-
sue their typically more assertive programmatic ambitions by issuing more orders than their
Republican counterparts.
For the event-count model, the coefficient vector is

µi = exp(xi , β),

where

xiβ = b0 + b1First Change + b2First No Change + b3Reelection +

b4No Reelection + b5Public Approval + b6Divided Government + b7Party + εi.

Variable Descriptions and Values

Orderst: number of significant executive orders issued in year t from 1949 to 1999.
First Change: 1 during the first year of a new administration when party control has changed from
the previous administration, 0 otherwise.
First No Change: 1 during the first year of a new administration when party control has not
changed from the previous administration, 0 otherwise.
Reelection: 1 in presidential election year, when incumbent president is running for reelection; 0
otherwise.
No Reelection: 1 in presidential election year, when incumbent president is running for reelec-
tion; 0 otherwise.
Public Approval: Average presidential approval rating by year, as measured by the Gallup poll.
Divided Government: 1 if the president’s party does not control both houses of Congress, 0
otherwise.
Party: 1 if the president is a Democrat, 0 otherwise.

Although the full series of executive order begins in 1936, we were forced to begin our
event count analysis in 1949, the year public approval ratings for presidents became gener-
ally available. While this reduces the number of significant executive orders in the sample,
we believe the results remain valid. The truncation eliminates two clearly extraordinary peri-
ods—the Roosevelt presidency and World War II—in which an unusually large number of
orders were issued; including them in the model would overestimate the impact of our inde-
378  PRESIDENTIAL STUDIES QUARTERLY / June 2002

pendent variables. Given that the frequency of order issuance has been relatively stable since
1949, our model is more likely to produce coefficient estimates that are comparable across
time.9
We do not include indicator variables for each presidency for two reasons. Theo-
retically, we are much more interested in the behavioral regularities than in the idiosyncratic
exercise of presidential discretion. Statistically, we found no telling results from presidency
dummies (with the exception of the Carter years, which we believe stand out because of the
number of orders relating to the Iranian Hostage crisis). We want to look beyond specific
presidencies to the larger contours of the institution and the prerogative of the executive
order.
As the results from the first model presented in Table 1 indicate, significant executive
orders respond in predictable ways to the political and institutional circumstances in which
presidents operate. First, a new president who has regained control of the White House for
his party issues more orders, but presidents in the first year of a term not following a party
switch clearly issue fewer important orders. Though the coefficients fall short of statistical
significance (note, however, that each is larger than its standard error), fourth-year presidents
tend to issue fewer major executive orders. Though divided government and partisan affilia-
tion do not seem to relate systematically to order issuance, public approval appears very
important. As Neustadt (1990) suggested, presidents who can marshal public prestige need
not resort to this version of “command” to achieve desired outcomes.
To ascertain the statistical leverage generated by our distinction between first-year pres-
idents with and without changes in party control, we conducted a likelihood ratio test of the
two models presented in Table 1. By calculating the marginal gain in the likelihood function
in the more fully specified model 1, one can determine whether that full specification yields
meaningful information. In this case, it clearly does; the LR statistic is 6.96 (distributed as χ2
with one degree of freedom, p < .01). We can thus conclude that the specification in model 1
provides both statistically and substantively meaningful information.
To interpret the substantive effects of the coefficients presented in model 1, we calcu-
lated predicted probabilities for a group of plausible outcomes (from zero to four significant
orders in a year) given certain covariate profiles. We present these results in Table 2.

Conclusion

A growing literature contends that presidents use executive orders to achieve program-
matic and institutional objectives, and that these instruments of unilateral authority
empower chief executives in a separated system not typically conducive to decisive presiden-

9. Because of the small absolute number of significant executive orders over the period, we replicated the
event-count analysis using King and Zeng’s (2001) “rare events data” method. Although the rare-events model uses
a logistic regression rather than an Poisson event-count model, the overall logic is comparable: under the rare-events
method, we are predicting the probability that a significant executive order occurs in a given month, rather than an
estimate of the number of orders issued, given a particular configuration of independent variables. There were no
substantive differences in the overall predictive power of the model or in the coefficient estimates between the two
models, and we concluded that the event count model is the more appropriate method given the nature of our
dependent variable.
 Mayer, Price / UNILATERAL PRESIDENTIAL POWERS  379

TABLE 1
Poisson Regression Results

Model 1 Model 2

Constant 2.00*** (.566) 2.02*** (.567)

First Change .532** (.309) —
First No Change –.639* (.407) —
First Year — .001 (.259)
Reelection –.338 (.319) –.323 (.319)
No Reelection –.430 (.407) –.435 (.407)
Public Approval –.026*** (.009) –.023*** (.009)
Divided Government .085 (.319) –.126 (.310)
Party .205 (.308) .085 (.308)

n 51 51
Log likelihood –81.84 –85.32
Likelihood ratio χ2 17.87** 10.92*

Note: The dependent variable is the number of significant executive orders issued in a calendar year, with appropri-
ate adjustments for the month of January in the last year of a presidency. Cell entries are maximum likeli-
hood coefficients, with standard errors in parentheses.
*p < .10. **p < .05. ***p < .01 (one-tailed tests for coefficients, two-tailed tests for likelihood ratio).

TABLE 2
Predicted Probabilities

Number of Significant Orders per Year

Covariate Profile Zero One Two Three Four

Public approval at 30 percent .295 .360 .220 .089 .027

Public approval at 50 percent .497 .348 .122 .028 .005
Public approval at 70 percent .835 .150 .014 .001 .000
First year with party change .292 .359 .222 .091 .028
First year without party change .941 .057 .002 .000 .000

Note: Cell entries are predicted probabilities for each outcome under specific covariate profiles using the results
from model 1 in Table 1. For the public approval calculations, we hold all other variables at zero. For the first-year
calculations, we hold the other indicator variables at zero and public approval at 50 percent.

tial leadership. Our results show that the use of significant executive orders relates in theoret-
ically tractable ways to a president’s political environment. As our statistical findings
suggest, presidents who can leverage robust public approval resort to the executive order less
frequently than do those who lack strong popular support. In addition, partisanship and the
ideological differences reflected in partisan affiliations affect order issuance in sensible ways.
New presidents recapturing the White House for their party tend to issue more orders rela-
tive to those operating amid partisan continuity.
In asserting such a conclusion, we are hardly suggesting that scholars should cast aside
Neustadt’s (1990) construct of presidential persuasion; the enduring notion that presidents
380  PRESIDENTIAL STUDIES QUARTERLY / June 2002

operate in a contested, fragmented system remains valid and important. Nevertheless, presi-
dential power turns not just on the executive’s persuasive capacities but on the constitu-
tional and statutory sources of unilateral authority on which any president might draw.
Today, students of the presidency might profitably explore both facets of presidential
power—unilateral authority, here manifested in unusually important executive orders, and
persuasive authority and agenda control, as articulated most clearly in Neustadt’s work.
Whatever the subtleties of significant executive orders, the emerging literature on formal
executive authority suggests that students of the American presidency should revise the pre-
vailing view of presidential power to include the brute facts of presidents’ important unilat-
eral capacities.

Appendix
List of Significant Executive Orders
Order Date Title/Description

7856 Mar. 31, 1938 Rules Governing the Granting and Issuing of Passports in the
United States
8233 Sept. 5, 1939 Prescribing Regulations Governing the Enforcement of the
Neutrality of the United States
8344 Feb. 11, 1940 Withdrawal of Public Land for Classification—Alaska
8629 Jan. 7, 1941 Establishing the Office of Production Management
8683 Feb. 14, 1941 Establishing Naval Defensive Sea Areas around Naval Airspace
Reservations
8693 Feb. 25, 1941 Prescribing Regulations Concerning the Exportation of Articles
and Materials
8751 May 2, 1941 Establishing the Division of Defense Aid Reports in the Office for
Emergency Management of the E.O.P.
8773 June 9, 1941 Government Possession and Control—North American Aviation,
Inc.
8785 June 14, 1941 Regulating Transactions in Foreign Exchange and Foreign-Owned
Property
8802 June 25, 1941 Equal Employment in Government Contracting, Establishing the
Fair Employment Practices Committee
8890 Sept. 3, 1941 Establishing the Office of Defense Health and Welfare
8944 Nov. 19, 1941 Government possession and control, Grand River Dam Authority
9017 Jan. 12, 1942 Establishing the National War Labor Board
9040 Jan. 24, 1942 Adding duties to the War Production Board
9083 Feb. 28, 1942 Transfer of authority for maritime functions
9102 Mar. 18, 1942 Establishing the War Relocation Authority
9253 Oct. 9, 1942 Administration of Contracts of the Immigration and Naturalization
Service
9279 Dec. 5, 1942 Mobilization of National Manpower, Administration of Selective
Service System
9337 Apr. 4, 1943 Transfer of authority to withdraw public lands to the Secretary of
the Interior
9341 May 13, 1943 Government possession and control, American Railroad Co. Of
Puerto Rico
 Mayer, Price / UNILATERAL PRESIDENTIAL POWERS  381

Order Date Title/Description

9351 June 14, 1943 Government possession and control, Howarth Pivoted Bearings Co.
9387 Oct. 15, 1943 Establishing Advisory Board on Just Compensation
9425 Feb. 19, 1944 Establishing Surplus War Property Administration
9427 Feb. 24, 1944 Establishing Retraining and Reemployment Administration
9437 Apr. 18, 1944 Revocation of Executive Order 9165 (Protection of Essential
Facilities from Sabotage and Other Destructive Acts)
9459 Aug. 3, 1944 Government possession and control, Philadelphia Transportation
Co.
9474 Aug. 31, 1944 Government possession and control, Ford Colleries Co. and
Rochester and Pittsburgh Coal Co.
9476 Sept. 3, 1944 Government possession and control, certain coal companies
9484 Sept. 23, 1944 Government possession and control, Farrell Cheek Steel Co.
9505 Dec. 6, 1944 Government possession and control, Cudahy Brothers Co.
9508 Dec. 27, 1944 Government possession and control, Montgomery Ward & Co.
9511 Jan. 12, 1945 Government possession and control, Cleveland Electric
Illuminating Co.
9523 Feb. 18, 1945 Government possession and control, American Enka Corp.
9570 June 14, 1945 Government possession and control, Scranton Transit Co.
9593 July 25, 1945 Government possession and control, Springfield Plywood Corp.
9595 July 30, 1945 Government possession and control, United States Rubber Co.
9607 Aug. 30, 1945 Revoking forty-eight-hour minimum work week
9608 Aug. 31, 1945 Termination of Office of War Information
9621 Sept. 21, 1945 Termination of Office of Strategic Services and transfer of its
functions
9622 Sept. 21, 1945 Revocation of Executive Order 9103 (Publication and Use of
Federal Statistical Information)
9639 Sept. 29, 1945 Government possession and control, certain petroleum companies
9661 Nov. 29, 1945 Government possession and control, Great Lakes Towing Co.
9672 Dec. 21, 1945 Establishment of National Wage Stabilization Board, Termination
of the National War Labor Board
9674 Jan. 4, 1946 Liquidation of War Agencies
9691 Feb. 4, 1946 Resumption of peacetime civil service regulations
9801 Nov. 9, 1946 Removal of wage and price controls
9808 Dec. 5, 1946 Establishment of the President’s Committee on Civil Rights
9863 May 31, 1946 Designation of certain international organizations as having
diplomatic privileges
9981 July 26, 1946 Establishing the President’s Committee on Equality of Treatment
and Opportunity in the Armed Services
9989 Aug. 20, 1948 Transferring authority over blocked assets to the Attorney General
10028 Dec. 12, 1949 Defining Noncombatant Service and Noncombatant Training
10152 Aug. 17, 1950 Incentive Pay for Hazardous Duty
10161 Sept. 9, 1950 Delegating functions under the Defense Production Act
10173 Oct. 18, 1950 Protection of vessels, harbors, ports, and waterfront facilities of the
United States
10193 Dec. 16, 1950 Providing for the conduct of the mobilization effort
10210 Feb. 2, 1951 Authorizing exercise of powers in Title II of First War Powers Act,
1941
10251 June 7, 1951 Suspension of eight-hour law for certain Department of Defense
personnel

(continued)
382  PRESIDENTIAL STUDIES QUARTERLY / June 2002

Appendix Continued
Order Date Title/Description

10277 Aug. 1, 1951 Amending regulations regarding protection of vessels, harbors,

ports, and waterfront facilities of the United States
10352 May 19, 1952 Amending regulations regarding protection of vessels, harbors,
ports, and waterfront facilities of the United States
10433 Feb. 4, 1953 Further providing for administration of Defense Production Act
10460 June 16, 1953 Telecommunications authority of the Director of Defense
Mobilization
10483 Sept. 2, 1953 Establishing the Operations Coordinating Board
10621 July 1, 1955 Delegating functions to the Secretary of Defense
10816 May 7, 1959 Safeguarding information in the interests of the defense of the
United States—amendment of previous executive order
10842 Oct. 6, 1959 Creating board of inquiry on labor disputes in the maritime
industry
10903 Jan. 9, 1961 Delegating authority—regulations relating to overseas allowances
and benefits to government personnel
10924 Mar. 1, 1961 Establishing the Peace Corps in the Department of State
10938 May 4, 1961 Establishing the President’s Foreign Intelligence Advisory Board
10939 May 5, 1961 Ethical standards for government officials
11076 Jan. 15, 1963 Establishing the President’s Advisory Commission on Narcotic and
Drug Abuse
11098 Feb. 14, 1963 Amending Selective Service regulations
11141 Feb. 12, 1964 Declaring a public policy against discrimination on the basis of age
11296 Aug. 10, 1966 Evaluating flood hazards in federal buildings and properties
11327 Feb. 15, 1967 Authority to order ready reserve to active duty
11375 Oct. 13, 1966 Amending Executive Order 11246, equal employment opportunity
11404 Apr. 7. 1968 Restoration of law and order in the State of Illinois
11435 Nov. 11, 1968 Designating the Secretary of Interior to administer criminal and
civil law in Native American territories
11458 Mar. 3, 1969 National Program for Minority Business Enterprise
11490 Oct. 28, 1969 Assigning emergency preparedness functions
11512 Feb. 27, 1970 Federal space planning, acquisition, and management
11514 Mar. 5, 1970 Protection and enhancement of environmental quality
11527 Apr. 23, 1970 Amending Selective Service regulations
11593 May 13, 1971 Protection and enhancement of the cultural environment
11615 Aug. 15, 1971 Stabilization of prices, rents, wages, and salaries
11636 Dec. 17, 1971 Employee-management relations in the Foreign Service
11697 Dec. 17, 1973 Inspection of income tax returns by the Department of Agriculture
11785 June 4, 1974 Amending Executive Order 10450—security requirements for
government employment
11796 July 30, 1974 Regulation of exports
11808 Sept. 30, 1974 Establishing the President’s Economic Policy Board
11810 Sept. 30, 1974 Regulation of exports
11832 Jan. 9, 1975 Establishing National Commission on the Observance of
International Women’s Year, 1975
11888 Nov. 24, 1975 Implementing the Generalized System of Preferences
11911 Apr. 13, 1976 Preservation of endangered species
11958 Jan. 18, 1977 Administration of arms export controls
 Mayer, Price / UNILATERAL PRESIDENTIAL POWERS  383

Order Date Title/Description

11992 May 24, 1977 Establishing the Committee on Selection of Federal Judicial
Officers
12041 Feb. 25, 1978 Amending the Generalized System of Preferences
12059 May 11, 1978 Establishing the United States Circuit Judge Nominating
Commission
12072 Aug. 16, 1978 Federal space management
12088 Oct. 13, 1978 Federal compliance with pollution control standards
12114 Jan. 4, 1979 Environmental effects abroad of major federal actions
12133 May 9, 1979 Drug policy functions
12139 May 23, 1979 Foreign intelligence electronic surveillance
12143 June 22, 1979 Maintaining unofficial relations with the people of Taiwan
12160 Sept. 26, 1979 Enhancement and coordination of federal consumer programs
12183 Dec. 16, 1979 Revoking Rhodesian sanctions
12202 Mar. 18, 1980 Establishing the Nuclear Safety Oversight Committee
12217 June 18, 1980 Federal compliance with fuel use prohibitions
12232 Aug. 8, 1980 Historically Black Colleges and Universities
12250 Nov. 2, 1980 Coordination of nondiscrimination laws
12264 Jan. 15, 1981 Federal policy on export of banned or significantly restricted
substances
12279 Jan. 19, 1981 Transfer of Iranian assets held by domestic banks
12288 Jan. 29, 1981 Terminating the Wage and Price Regulatory Program
12296 Mar. 2, 1981 Establishing the President’s Economic Policy Advisory Board
12331 Oct. 20, 1981 President’s Foreign Intelligence Advisory Board
12340 May 25, 1980 Amendments to the Manual for Courts Martial
12369 June 30, 1980 Establishing the President’s Private Sector Survey on Cost Control
in the Federal Government (Grace Commission)
12400 Dec. 3, 1983 Establishing the President’s Commission on Strategic Forces
12434 July 19, 1984 Alaskan railroad rates
12502 Jan. 28, 1985 Establishing the Chemical Warfare Review Commission
12525 July 12, 1985 Emergency authority for export controls
12541 Dec. 20, 1985 Continuation of export control regulations
12544 Jan. 8, 1986 Blocking Libyan Government property in the United States or held
by U.S. persons
12548 Feb. 14, 1986 Grazing fees on federal lands
12615 Nov. 19, 1987 Performance of commercial activities by the federal government
12632 Mar. 23, 1988 Federal labor management relations program
12661 Dec, 27, 1988 Implementing the Omnibus Trade and Competitiveness Act of
1988
12262 Dec. 31, 1988 Implementing the U.S.-Canada Free Trade Act
12675 Apr. 20, 1989 Establishing the National Space Council
12708 Mar. 23, 1990 Amendments to the Manual for Courts Martial
12722 Aug. 2, 1990 Blocking Iraqi Government property and prohibiting transactions
with Iraq
12724 Aug. 9, 1990 Blocking Iraqi Government property and prohibiting transactions
with Iraq
12730 Sept. 30, 1990 Continuing export control regulations
12735 Nov. 16, 1990 Chemical and biological weapons proliferation
12740 Nov. 29, 1990 Waiver under the Trade Act of 1974 with respect to the Soviet
Union
12806 May 19, 1992 Establishing a fetal tissue bank
(continued)
384  PRESIDENTIAL STUDIES QUARTERLY / June 2002

Appendix Continued
Order Date Title/Description

12834 Dec. 20, 1993 Ethics commitments by executive branch appointees

12839 Feb. 10, 1993 Reduction of one hundred thousand federal positions
12853 June 30, 1993 Blocking Haitian government property and transactions with Haiti
12864 Sept. 15, 1993 Establishing United States Advisory Council on the National
Information Structure
12874 Oct. 20, 1993 Federal acquisition, recycling, and waste prevention
12897 Feb. 3, 1994 Garnishment of federal employees’ pay
12937 Nov. 10, 1994 Declassification of selected records with the National Archives
12958 Apr. 17, 1995 Classified national security information
12961 May 26, 1995 Establishing the President’s Advisory Committee on Gulf War
Veterans’ Illness
13010 Aug. 17, 1996 Establishing the Commission on Critical Infrastructure Protection
13021 Oct. 23, 1996 Tribal Colleges and Universities
13047 May 22, 1997 Prohibiting New Investment in Burma
13080 April 10, 1998 American Heritage Rivers Initiative Advisory Committee
13103 Oct. 5, 1998 Computer Software Piracy

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