Aaron R. Kaufman and Jon Rogowski
Forthcoming, American Journal of Political Science
Abstract: Presidents select from a range of instruments when creating new policies through executive action. We study strategic substitution in this context and argue that presidents use less visible means of unilateral instruments when Congress is likely to scrutinize presidential action. Using data on more than 30,000 directives issued between 1946 and 2020, we report two main findings. First, analyzing presidents’ choice of instruments, we show that during divided government presidents are more likely to exercise unilateral power with less visible instruments such as memoranda rather than executive orders and proclamations. Second, after accounting for the substitution of executive orders with other instruments, presidents issue greater numbers of directives during divided government rather than fewer. These findings provide new evidence about the limitations of the separation of powers as a constraint on presidential unilateralism and highlight the importance of accounting for the variety of instruments through which presidents create unilateral policies.