Legislative Capacity and Executive Unilateralism

This article develops a theory of presidential unilateralism in which both ideological divergence with Congress and legislative capacity influence the president's use of executive orders. We argue that when Congress is less capable of constraining the executive, the president will issue more executive orders during periods of divided government. Conversely, in periods of high legislative capacity, the president is less likely to issue executive orders when faced with an opposed Congress. Based on an examination of institutional changes, we identify years prior to the mid‐1940s as characterized by low congressional capacity and the subsequent period as characterized by high capacity. Testing the theory between 1905 and 2013, we find strong support for these predictions and demonstrate that legislative capacity conditions the role of ideological disagreement in shaping presidential action. Overall, this article deepens our current understanding of the dynamics of separation‐of‐powers politics and the limits of executive power.