Sharece Thrower is a visiting fellow at the Hoover Institution and works with Hoover’s Center for Revitalizing American Institutions. She is an associate professor of political science and Chancellor’s Faculty Fellow at Vanderbilt University who studies the role of executive power, American political institutions, and how branches of government interact to generate policy. She spoke with Chris Herhalt about presidential power, the judiciary, and what legislatures do to boost and constrain a president’s agenda.
Chris Herhalt: What will it look like for the Republicans come January, controlling every branch of government? What do you think this will mean for the incoming president and his interaction with the other branches?
Sharece Thrower: I think that it certainly makes the path for President Trump getting his agenda passed a lot easier, right? Because you have a Congress that doesn’t have much incentive to constrain his actions, whether that be through the legislative process or through the unilateral process. And you have not only a Supreme Court, but many of the circuit courts and federal judges that align with this ideology. So that certainly makes the path through the court system, if his actions are challenged, a lot easier as well.
Now, whether or not the courts might actually have incentives to try to avoid some of these cases altogether if things are tricky—that’s another matter entirely. But the path of being challenged is a lot easier for Trump with parties sort of in alignment across the branches of government.
I think the big question is how defined his agenda is going to be. Some people from both parties were surprised and disappointed, depending on which party you’re from, during his first administration because there wasn’t much of an agenda to begin with, particularly in the legislative process. So, it has yet to be seen what sort of tangible things are actually pushed through. But he certainly has support across the branches of government.
Herhalt: You’ve examined the judges appointed by a particular president, looking at things such as their loyalty to that president. Can you talk about a bit about how you gauge that? And what does it mean now?
Thrower: Judges don’t want to say outright that their partisanship or their ideology influenced a decision. In fact, we have a perception that the judiciary should be the most impartial branch of government and that those personal ideologies shouldn’t affect their decisions, but that only the law should affect them. However, it’s kind of hard for those things not to influence the decisions. So, the way that I and other researchers have usually studied that is to look at the partisanship of the judge, usually based on the ideology or the partisanship of the president. And we know presidents are more likely than not to appoint like-minded people to the judiciary.
Other scholars—not me personally—have also tried to develop measures to quantify exactly where judges fall on the ideological spectrum, using the types of decisions they’ve made, statements they’ve given during the nominating process, and campaign contributions. There are different sorts of ways to measure that. We have a variety of schools that place judges on the ideological spectrum, so we have a good sense of where they fall and a sense of how close the courts are to the sitting president. In studies into the impact of this ideological alignment between the courts and the president on judicial decisions, there’s overwhelming support that judges who align with the president’s ideology are less likely to rule against that president in court. Plenty of contemporary and historical studies have shown that.
Herhalt: The abstract of one of the papers you published during the first Trump administration said that “in its use of administrative tactics to shape policy, the Trump White House largely falls in line with recent presidencies.” Would the ordinary public come to that conclusion?
Thrower: I think presidents, including Trump, face the same sorts of constraints as other presidents do. They will try to do more when they have the branches of government aligned with them. They can do more when the public is aligned with them, and they do less when those forces are not with them. So, when we wrote that paper, we were kind of looking at the trends in the data for those sorts of actions, and they were consistent with any other president in basically the same position.
I think what’s different, though, are the types of things Trump is doing within his agenda. His increasing focus on immigration, and particularly the severity of those sorts of policies, might be a little different. In this new administration, he might push even further. And you know, even during his first administration, he still was met with opposition from the courts. His first couple of travel bans, for instance, were something stopped by the courts and which he increasingly had to modify. We see some evidence of Trump modulating some of his behavior, even though it still seems like he might be doing extreme things. But the fact that there is some sort of modulation because of anticipated constraints from either institutions or the public is very much consistent with previous presidents.
Herhalt: I was intrigued by your research into situations where presidents, during a period of divided government where they either don’t have control of both houses or they have only one, sort of self-edit what they bring forward. Can you walk me through what you found?
Thrower: I like to talk about that because it’s counterintuitive compared to what we might expect, and what we hear in the media about presidents dealing with an oppositional Congress. But the reason is that even though presidents have incentives to get around a Congress that doesn’t agree with them, Congress also has incentives—and has the means—to stop presidents who are doing things that they don’t agree with.
That might be through legislation. They can directly reverse an executive order, which doesn’t happen that often, but they can also punish the president in other ways, such as blocking his agenda or nominations or defunding agencies or programs he’s trying to get through. They can also do things like appeal to the public and line up opinion against the president.
So, the president has incentives to try to maintain a high level of public opinion for electoral incentives. But under divided government, Congress has the incentives to engage in more constraints on the president that might make the president look bad in the eyes of the public. This is why I argue that presidents will engage in that kind of moderation.
Herhalt: Signing orders aren’t executive orders in themselves, and they really have no binding authority, yet they’re a historical precedent that dates back a long time. Can you talk about what they’re actually worth? And what happens if they come up when a presidential action is facing judicial review?
Thrower: Presidents use signing orders so that they can pass a law but say that they don’t totally agree with it, or state the parts of the law they don’t want to follow. And I argue in some of my work that this is at least a useful signaling device that the president can use to communicate to the courts, first, that this is something important to the president’s agenda, and second, to convey to the courts how the president thinks this law should be implemented. This is important, because we know the courts, for better or for worse, have the final say in how a law is interpreted if it’s challenged. We would think this is particularly important for a court that sides with the president. They can use this sort of messaging to say this is something important to the president’s agenda, this is how it should be interpreted. It’s a way for the courts that want to sort of reaffirm the president’s position to run with that.
So, even though signing statements aren’t legally binding, if courts look at them and agree with their interpretation, judges can deliver a final interpretation that we know will be binding.
Herhalt: Let me ask you about your research into the lifespan of executive orders. There’s a perception among the electorate, not just in America but all over the democratic world, that if we toss out an incumbent government, the new one will come in and reverse everything the previous government did. But you point out there’s an average of five years before executive orders are first amended or superseded, and up to thirteen years before they are completely revoked. That’s an extraordinary amount of time, spanning perhaps several presidential terms. What does this say about what really happens during a change in government?
Thrower: Certainly, it’s a mix. If you remember at the beginning of the Trump administration, Trump reversed a lot of President Obama’s executive orders. At the beginning of Joe Biden’s administration, we saw Biden reverse a lot of Trump’s orders.
And I expect we’ll see a whole lot reversed at the beginning of Trump’s new administration. What you’re homing in on is the fact that presidents don’t necessarily reverse, can reverse, or want to reverse all of these preceding executive orders. There might be some orders it would be advantageous for presidents to hold on to.
An executive order expands their authority in some sort of way, or helps them sort of prop up their agenda in a way they want. And of course, consistent with some of the other things that we’ve talked about from my work, presidents face constraints in their ability to unilaterally change policy. So, the same sorts of restraints in terms of the ideological alignment of other branches of government and public opinion come into play when they’re trying to amend or reverse these policies. That’s why we don’t necessarily see presidents just throw out everything from the previous administration.
Herhalt: What do you want Hoover supporters to know that you’re working on?
Thrower: There are a couple of things. I published a book a couple years ago about the degree to which legislatures can constrain executive power based on their institutional capacity. Right now, I’m working on a book that makes a similar argument but looks at the extent to which courts can constrain executive power.
Another part of my agenda that I am excited about is looking at the diversity of congressional committee staffers and of judicial clerks. Now, we have research looking at the diversity of members of Congress and the judiciary, but I think their staff are important as well, because the staff assist them in their work and are crucial for their job. That has implications for understanding the work they do and the extent to which different populations are actually represented in that work. It’s an area that needs to be studied, for sure.
