On December, 15, 2005, Americans were shocked to learn that President George W. Bush had issued an executive order directing the National Security Agency (NSA) to engage in domestic spying on U.S. citizens. Bush secretly issued the order in 2002 as part of the government’s effort to prevent another terrorist attack on the scale of those committed on September 11, 2001. But Bush’s policy appeared to contradict the legal processes established by the Foreign Intelligence Surveillance Act (FISA) of 1978 (Pub. L. 95–511, 92 Stat. 1783), which required the government to obtain a warrant before engaging in domestic spying.¹...

This chapter examines the question of the place of unilateral presidential directives in the broader constitutional order. These directives do not obviously comport with the U.S. Constitution. After all, in a system of limited government characterized by a separation of powers and checks and balances, how can the president unilaterally make law by a mere stroke of the presidential pen, even in the face of significant congressional opposition? Moreover, unilateral presidential directives are not mentioned in the Constitution, yet they have come to be regarded as a legitimate constitutional tool and a basic prerogative of the presidential office. This chapter...

Unilateral presidential directives are not in the Constitution but have been essentially read into it, even though they are arguably in tension with its premises of separation of powers and checks and balances. Like judicial review, unilateral presidential directives made a transition from a starting point of constitutional silence, through a period of constitutional contestation, to an enduring consensus of constitutional consonance. This chapter focuses on a part of that development, namely the early judicial sanction of executive orders and proclamations and how it informs debates about more recent directives.

The constitutional legitimacy of unilateral presidential directives derives in large...

This chapter examines the presidential use of unilateral directives from the founding of the country to the dawn of the twentieth century. This period is important for unilateral presidential directives for several reasons. First and foremost, these early unilateral directives helped to establish precedents and norms, both constitutionally and politically, that greatly influenced subsequent directives, up to and including the present day.

This period also connects two major points in the development of unilateral presidential directives: their judicial acceptance in the early to mid-nineteenth century and their more widespread use in the early twentieth century. The Supreme Court and lesser...

This chapter examines Theodore Roosevelt’s pivotal role in the evolution of unilateral presidential directives. TR established and largely institutionalized the practice of regularly using unilateral presidential directives for significant purposes. His practices became precedents that permanently altered the presidency and the politics of the policymaking process. This chapter contains a brief introduction to TR and the number of unilateral presidential directives he issued, an account of some of his more important executive orders and proclamations, a description of his directives for conservation purposes, and a brief assessment of the implications of his use of unilateral directives for their overall evolution....

This chapter examines the evolution of the presidential use of unilateral directives from the end of Theodore Roosevelt’s presidency through that of his fifth cousin, Franklin Delano Roosevelt. This thirty-six-year period constituted a crucial phase in the development of these important presidential tools, as it marked the entrenchment of TR’s novel uses of such directives, both quantitatively and qualitatively. Quantitatively, there is a large increase in the use of executive orders that begins shortly after Theodore Roosevelt’s inauguration and ends shortly after Franklin Roosevelt’s death. TR issued almost as many executive orders as all of his predecessors combined, but FDR...

This chapter examines the use of unilateral presidential directives from Truman’s presidency to the present day. Like their predecessors, presidents from the postwar era to the present have used unilateral directives for a great variety of purposes, at times provoking controversies both politically and constitutionally. Better-known directives in this period include Harry Truman’s desegregation of the military and his seizure of the steel industry, John Kennedy’s creation of the Peace Corps, Richard Nixon’s freeze of wages and prices, Gerald Ford’s proclamation of clemency for Vietnam War draft evaders, Ronald Reagan’s efforts to limit government regulation, Bill Clinton’s proclamations for national...

The previous seven chapters have traced the development of unilateral presidential directives in some detail, noting the roles of various theorists, jurists, and politicians, but focusing on the actions of U.S. presidents from George Washington through Barack Obama. I have argued that American political development has seen a major expansion of presidential power via unilateral presidential directives. This power is rooted in constitutional ambiguity and the nature of executive action, and it has grown as a result of presidential initiative and interbranch complicity. Extensive governance by unilateral presidential directives may be convenient and widely accepted, but it is in tension...