Exercising Unilateral Discretion: Presidential Justifications of Unilateral Powers in a Shared Powers System

Abstract

There is a puzzle in the literature on presidential unilateral power that, on one hand, presents executive orders as the outcome of presidential prerogative but on the other hand identifies delegated discretion as a limit to presidential action. To address this question, we examine the use of delegated authority in unilateral orders from 1951 to 2009 and relate these to the ideological underpinnings of the institutions delegating and overseeing the use of this discretion (Congress and the Court). Our findings indicate that presidents are likely to issue unilateral directives with more substantive discretion when ideologically farther away from either the medians in Congress or the Supreme Court, but more likely to scale back their use of discretion when both branches are jointly ideologically distant from the president. The results demonstrate support for both an assertive and restrained president when relying upon delegated authority to act unilaterally.