Putting Unilateral Action in the Bully Pulpit

• In Event: Unilateral Power and the Public Presidency

Abstract

The US president's executive orders are legally binding formal directives. But in recent years they also feature the extensive use of hortatory rhetoric -- lengthy preambles containing non-legally-operative language of a kind more commonly found in a press release. In earlier work (Rudalevige and Yu 2022), we collected and analyzed thousands of executive orders from 1961 to 2022 to calculate the average length of such preamble language over time and across a number of substantive contexts. The present paper extends the dataset from 1949 to 2024.

In past eras, EO preambles were relatively infrequent and usually brief. That changes in the modern era, with notable differences under Barack Obama but then especially under Donald Trump. Trump’s executive orders’ preambles are significantly longer than previous presidents’ and make up a larger proportion of his EOs’ overall text. While that development might be seen as a function of Trump rather than of the presidency, early indications are that the Biden administration has adopted similar practices, if less florid rhetoric.

Given these data, the obvious question is why? That is, why has presidential practice changed – and, relatedly, who is the audience for this new medium of communication? This paper seeks to assess those questions through competing (though not necessarily contradictory) hypotheses. Perhaps EOs have simply merged with press releases, aimed at the press and wider public, valued not for substance but as a symbol of presidential concern about a given issue. If so their issuance is in fact their implementation (see especially Lowande, forthcoming, and his discussion of executive action as a "false front.") But, conversely, EO language might be substantively crucial, serving to clarify the president’s priorities for agencies and shaping the way an EO is put into practice (see, e.g., Whitford and Yates 2009). Yet another possibility: they may be used for interbranch communications: to stake out a legal position for use by courts (as the signing statement literature suggests), or to shape congressional reaction to the order (presumably, as per Howell 2003, to avoid its being overturned in statute).

The paper uses both quantitative analysis and qualitative interviews to tease out the causes – and effects -- of these expanded preambles, as well as the institutional development they may represent. How does executive action serve as communication, and to whom? The administrative presidency and unilateral action is now central to the policymaking process; this research hopes to map its place in the bully pulpit as well.

Authors

• Andrew C. Rudalevige, Bowdoin College

• Victoria E. Yu, Harvard Law School