Legislating in the Shadows: The Selective Art of Presidential Decree-Making

• In Event: Comparative Studies on Executive-Legislative Interactions

Abstract

This article proposes a new approach to presidential decree-making based on a measurement strategy of selectively regulating laws through administrative decisions by Latin American presidents.

Studies on presidential lawmaking analyze unilateral legislative or administrative decisions that bring laws closer to the president's ideal points. However, there is little research on the strategic use of the power to regulate laws to modify legislative decisions through the president's administrative powers. By selectively regulating the laws passed by Congress, presidents unilaterally define which parts of the law will have normative effect. This presidential strategy modulates the legislative impact of decisions made by Congress since winning political preferences can be filtered by the presidential decision on which legal provisions to regulate.

We argue that presidents resort to regulatory selectivity the greater the divergence of preferences between branches of government and among cabinet members. This strategy can therefore be an alternative to amending and/or vetoing bills, which can be more costly for presidents facing a hostile Congress and a heterogeneous cabinet. The regulatory selectivity of laws is measured based on the regulatory scope of decrees - the extent to which articles of the law are regulated by decree - and regulatory dispersion - the pulverized regulation of the law in various decrees.

We propose a new strategy for measuring regulatory selectivity, which involves a comparative analysis of the content in related bills and regulatory decrees. To do this, we develop a database comprising presidential decrees in six presidential countries (Argentina, Brazil, Colombia, Chile, Peru, and Paraguay) spanning from 1990 to 2022. Our method unfolds in a three-stage process. The first stage focuses on identifying connections between decrees and legislation, leveraging the inherent sequence in which bills are passed and subsequent decrees are issued. This initial step allows us to construct a network mapping the interplay between bills and decrees, from which we can discern distinct themes or clusters using advanced Natural Language Processing techniques such as Latent Dirichlet Allocation for topic modeling and cosine similarity for text alignment.
In the second stage, within these identified themes or clusters, we employ supervised learning methods to measure the extent of coverage provided by presidential decrees on specific topics. The core challenge in this process is to ascertain the extent to which each bill is subject to regulation by decrees. To address this, our third stage involves analyzing the centrality of individual articles within a piece of legislation and examining whether these are encompassed by a decree.

By doing so, we aim to provide a nuanced understanding of how presidents use their decree power to selectively regulate legislative output, thereby offering insights into the dynamics of legislative-executive interactions in the context of law-making. Ultimately, this comprehensive methodology, supported by our extensive database, will enable us to create a robust measure of presidential selectivity in regulatory activities. By quantifying the degree of alignment or divergence between legislation and decrees, we will also be able to assess the extent of unilaterality in decree issuing, thereby shedding light on the dynamics of executive power exertion in the legislative process. This measure will not only provide empirical grounding to the concept of regulatory selectivity but also offer a metric for comparing presidential behaviors across different political contexts.

Authors

• Magna Inácio, Federal University of Minas Gerais

• Filipe Recch, Stanford University