Checking Executive Power: A Simulation Model of Unilateral Executive Behavior

Abstract

What systematic influence does the court exert on unilateral authority? Though questions relating to the expansion and the exercise of unilateral executive power remain a perennial concern in political science, existing studies of the unilateral presidency generally focus on relations between the executive and the legislature, with less attention paid to the impact of the judiciary on executive behavior. Using a system of differential equations to model executive unilateralism and judicial constraints, simulation results identified four broad patterns of unilateral executive behavior and judicial influence. Overall, presidents strategically anticipate reactions from the courts and employ unilateral actions accordingly. Although they are cognizant of the court’s ability to strike down their actions, and thereby harming their preferred policy preferences and legacies, presidents nonetheless act unilaterally, albeit at a lower level. Results add to existing studies in separation of powers and constraints on unilateral executive behavior.

Notes

1 Typically, when one speaks of executive-judicial relations, the usual judicial actor in mind is the U.S. Supreme Court. Now, a smaller set of literature examines interactions between the executive and courts lower in the judicial hierarchy. In this article, I make no distinction between the Supreme Court and the lower courts. In this article, the terms “court,” “courts,” and “judiciary” refer to a generic judicial actor which (1) engages in constitutional interpretation and (2) serves as a potential “check” to the expansion of presidential power.

2 To be sure, there have been multiple works that examine executive-judicial interactions. See, for instance, Schubert (1957). There is also a large law review literature on the nature of presidential power and the judiciary. However, with only a few exceptions (Howell 2003; Thrower 2017), most works employ a qualitative approach to the study of presidency and the judiciary. One contribution of this article is to illustrate a quantitative approach to the analysis of executive-judicial relations.

3 Of course, there is an observational equivalence problem here. It may be the case that courts play minimal roles in curbing executive power, but it is also plausible that presidents themselves take great care to anticipate adverse court decisions and seek to avoid them. If so, then we should also see few instances of courts striking down presidential actions.

4 For instance, in response to Supreme Court ruling in Worchester v. Georgia (1832), Andrew Jackson allegedly proclaimed, “John Marshall has made his decision; now let him enforce it!”

5 In further defense of their arguments, some legal scholars and proponents of a unitary executive model point to the differing language in the Constitution regarding the vesting clauses of the legislative and the executive branches, respectively. According to Article I, “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (emphasis added). In contrast, the executive’s Vesting Clause does not include the phrase “herein granted.” Many argue that the (deliberate?) omission of “herein granted” suggests that the powers of the executive are not limited to only those explicit in the Constitution.

6 Expansion of the executive’s unitary power using executive orders and signing statements arguably reached an apex during the George W. Bush administration. As Waterman (2009) notes, by the middle of 2005, the Bush administration had referenced the phrase “the unitary executive” a total of 95 times across various unilateral directives.

7 As Gibbs and Duffy (2012) describe it, all presidents are members of “The Presidents Club,” an exclusive fraternity composed of 45 men that have occupied the Office of the President of the United States, each of whom recognizes the trials and tribulations associated with being in the “hot seat.”

8 Congress also engages in constitutional deliberations (Pickerill 2004). However, as this article focuses on judicial-executive relations, incorporating the legislature into the model is beyond the scope of the project.

9 In addition to the periodic trends discussed in this section, another important component is the institutionalization of the office and the growth in presidential power over time. In other words, presidential power has simply grown over time, so there might just be a natural inclination on the part of the courts and even Congress to check the executive.

10 There is actually a fourth category in Skowronek’s (1993) formulation: preemption. But how exactly should we make sense of presidents in this category? As Skowronek (1993) notes, “this is the most curious of all leadership situations…and the one least susceptible to role ascription” (43). Skowronek (1993) goes on to say that preemptive presidents probe for reconstructive possibilities and “when they probe too deeply, they get caught in a showdown crisis of constitutional proportions” (44). In other words, Skowronek’s (1993) discussion of presidents in the politics of preemption parallels that of reconstruction. The key distinction is that whereas reconstructive presidents are bold and successful leaders, preemptive presidents have mostly failed in their quests to probe for reconstructive possibilities.

11 This is related to Page’s (2006) discussion of path versus phat dependence. Whereas path dependence refers to outcomes depending on both history and possibly the order in which past outcomes occur, a process is phat dependent if only the history matters but not the order. In this context, the model developed here is path dependent, whereby the outcomes immediately preceding that at time t have greater impacts that than those earlier in the process. Although each time period influences later outcomes, the overall impact lessens with each successive period.

12 Throughout the model, t is a notation for generic time and not in specified units, e.g., day, month, year, etc. As noted earlier, the current model cannot distinguish between the between-administration and within-administration differences that likely exist in executive-judicial interactions. To do so fully is beyond the scope of the current study and will diverge from the intended purpose.

13 Obama’s 2012 Thanksgiving Day proclamation. http://www.whitehouse.gov/the-press-office/2012/11/20/presidential-proclamation-thanksgiving-day-2012

14 As an aside, LaRue also points out that, unlike his predecessors, Obama’s 2011 Thanksgiving Proclamation omitted any mentions of sin and forgiveness. LaRue, Janet M. “Obama’s Thanksgiving Proclamation Strikingly Different From Predecessors.” http://townhall.com/columnists/janetmlarue/2011/11/23/obamas_thanksgiving_proclamation_strikingly_different_from_predecessors/page/full

15 Bush, George W. February 27, 2001. “Notice—Continuation of the National Emergency Relating to Cuba and of the Emergency Authority Relating to the Regulation and Movement of Vessels.” http://www.gpo.gov/fdsys/pkg/WCPD-2001-03-05/pdf/WCPD-2001-03-05-Pg350.pdf

16 Though one can model the administration’s capacity for unilateral actions as a separate equation, I elected to not do so for two reasons. First, a focus on modeling carrying capacity will divert attention away from the principal purpose of this study, which is to examine the extent of judicial influence on presidential unilateral actions. The second reason is to ensure the tractability of the models. Because dynamic models are very flexible, a researcher must not try to model the world, but to ensure that only the critical components of the theoretical model are properly specified.

17 Of course, for the court to challenge executive decisions, an aggrieved party must first appeal to the court for judgment. However, though there are costs associated with bringing a suit against the current, or past, administration, the quality of the lawsuit matters not so much as the presence of one. Thus, all else being equal, it should not be hard to conceive that some party or parties felt themselves wronged by the president’s decision.

18 Halperin v. Kissinger (1979).

19 Though Halperin filed his initial lawsuit in June of 1973, the DC Circuit did not decide on the case until July 12, 1979, during the Carter administration.

20 See, for instance, the discussions of the various unilateral tools that presidents have at their disposal in Cooper (2002) and Waterman (2010).

21 For instance, see Krause and Cohen (1997) and Fine and Warber (2012).

22 Others have also noted the importance of the executive’s capacity for unitary action. In fact, as Rudalevige (2012) notes, unilateral directives sometimes have very little to do with presidential preferences. In many cases, what are considered policy directives at the president’s order are in fact frequently the results of what various federal agencies wanted to do in the first place. Credibly then, capacity for action (as well as the level of activity) is related to the divergence and variation in policy preferences across the federal bureaucracy.

23 Note that the K_C term only captures capacity, and not the court's willingness to challenge the executive. Again, fully exploring the determinants important in how court capacity changes over time is beyond the scope of this article. However, I do provide a discussion later regarding two theoretical mechanisms shown to be important in prior research.

24 At first glance, it may seem odd that presidents would respond to the capacity of the court to challenge the executive. After all, unlike the executive, courts cannot act unilaterally to check the executive and must rely on a third actor to bring the case to them. However, one key underlying assumption of the model is that presidential directives such as executive orders are public. Most executive actions are not widely reported in the media, but a concerned observer will have no difficulty identifying constitutionally questionable directives by the president. In addition, one key insight of the model (discussed later in the results section) is that courts are not actually required to take concrete actions. A significant portion of courts’ impact on presidential actions is through the executive’s anticipation of court challenges and therefore he exercises self-restraint.

25 For extended discussions and applications of numerical simulations in political science, see Kadera (2001), Kadera and Morey (2008), and Morey (2011).

26 In addition to simulations where I alter the initial conditions, I also conducted simulations by varying the parameters values. Results are in later sections and in the Appendix.

27 There is no agreed upon standard for the minimum number of simulations required to test a model. As Kadera and Morey (2008) note, past published work presents anywhere from a low of 15 to a high of 50 simulations. Moreover, unless the initial conditions are somehow biased, no grounds exist for assuming that more simulations would result in different conclusions.

28 Parameters used for simulations depicted in Figure 1 are the same as those in the baseline model: $K_P=1.0,K_C=1.0,{\alpha }_1\approx 0.660,{\alpha }_2\approx 0.302$, and ${\beta }_1\approx \mathrm{0.697.}$

29 All simulations shown depict behaviors in the dynamic system described by Equations 3(3) $$P\prime ={\alpha }_{1}P\left(1-\frac{P}{K_P}\right)-{\beta }_1(C\times P)$$(3) and 5(5) $$C\prime ={\alpha }_{2}C\left(1-\frac{C}{K_C}\right)$$(5) .

30 These five initial conditions correspond to: (1) very low levels of both unilateral activity and court influence ($P=0.05,C=0.05$); (2) a very high level of unilateral activity and a very low level of court influence ($P=0.95,C=0.05$); (3) moderate levels of both unilateral activity and court influence ($P=0.5,C=0.5$); (4) a very low level of unilateral activity and a very high level of court influence ($P=0.05,C=0.95$); and (5) very high levels of both unilateral activity and court influence ($P=0.95,C=0.95$), respectively.

31 This pattern is also consistent with Light’s (1995) formulation of the cycle of decreasing influence. Similar to how the administration’s ability to set the domestic agenda diminishes as political opposition to the president grow, executive unilateralism decreases as the courts exert greater influence on the executive.

32 The remaining parameters are held constant at $K_P=1.0,K_C=1.0,{\alpha }_2\approx 0.302$, and ${\beta }_1\approx \mathrm{0.697.}$

33 This pattern of behavior can also be seen in substantive policy directives, such as the imposition of economic sanctions via executive orders.

34 Other parameters in the model are held constant at: $K_P=1.0,K_C=1.0,{\alpha }_1\approx 0.660$, and ${\alpha }_2\approx \mathrm{0.302.}$

35 585 U.S. ____ (2018)

36 Other parameters held constant at: $K_P=1.0,{\alpha }_1\approx 0.660,{\alpha }_2\approx 0.302$, and ${\beta }_1\approx \mathrm{0.697.}$

37 Note that the pattern depicted in Figure 4 reflects how executive behavior changes in reaction to varying court capacity. Whereas concerns for institutional legitimacy may impact how judges behave (Clark 2009), lifetime-appointed judges have little to fear regarding individual retribution from the executive. In fact, except for the generic carrying capacity term, K_C, which acts as a “check” to the growth in judicial constraints on executive unilateralism, the model in the article does not contain any direct mechanism for the executive branch to use to influence the court. Instead, the main takeaway from Pattern #4 is how seemingly small changes in court capacity result in significant shifts in executive behavior. To see how the trajectories in the dynamical system change as K_C varies, see Appendix.