Rescuing Presidents and Assemblies

The vote earlier this week in the House on the financial ‘rescue’ bill ((I find ‘bailout’ to be too loaded a term, though that is not to say that I don’t think that term fits. I am trying to be objective, that’s all.)) and the aftermath, renewed my faith in my own life’s work.

Here we had a president who offered up a package negotiated ahead of time with no one and which called for the legislature to abdicate its authority to a presidential appointee. ((The appointee of a lame-duck president, not less. Of a party that is likely to lose an election in just over a month, no less.)) Have we seen a more high-handed approach by the US executive result in defeat since the Clinton health-care bill? ((It never even got a vote. It was similarly negotiated with no one–in Congress, I mean. At least the healthcare overhaul did not ask Congress to abdicate to a presidential appointee.)) We have seen such heavy-handedness in the intervening years, to be sure. But that gets me to the point of this planting.

We expect such attempts at executive aggrandizement to be resisted, not acceded to by the legislative branch, in a separation-of-powers system. Further, we expect limited party discipline in such a system. ((On the recent increase in discipline, Clinton’s first budget set the tone, though there may have been earlier examples as well.)) We expect public bargaining between the branches (and chambers) in such a system. And we expect lots of otherwise extraneous sweeteners to have to be added to encourage greater discipline as that bargaining goes on towards subsequent attempts by the executive to pass its policy proposals.

Seems we have seen all of that this week. It is nice to know presidentialsim does work after all. Presidents and Assemblies and my subsequent work have been rescued. As for the economy, who knows?

0 thoughts on “Rescuing Presidents and Assemblies

  1. Ah, you’ve abandoned your brief flirtation with the Westminster system. Very wise. My copy of Presidents and assemblies does not come to hand easily. By memory you found a positive correlation between legislative powers vested in the executive and instability. You ranked the US presidency rather low in terms of its legislative powers.

    Would you change that ranking now, and would you trace the increased intensity of party competition to the growing presidential legislative powers advocated and exercised by the unitary executive claque?

  2. Alan: I think you are drawing unfounded inferences about my normative preference ranking among systems. In any case, my remarks above are meant to be positive, not normative.

    To the question you ask: no. Presidential powers, as defined in P&A, have not changed, and remain low relative to most other “pure” presidential systems. And the expected relationship you refer to would actually be the reverse: stronger presidencies (i.e. unilaterally setting the national policy agenda) , weaker (i.e. more localized) parties. As I have argued in this virtual orchard, the US under Bush actually drifted (informally) in a more “Latin Americanized” direction: greater unilateral exercise of presidential prerogative, and more particularism. In other words, a lot of the party loyalty we saw was cemented by earmarks and other forms of pork, while the GOP congress permitted more and more presidential discretion in the implementation of the law.

    Steven: exactly!

  3. So, the sweeteners worked; the bill passed (263–171). A majority of Republicans still voted no, but smaller than on the first bill (yes votes were 45.7% compared to under a third previously). A majority of Democrats again voted yes, and it was a bigger majority than on the first bill (73.5%, up from around 60%).

  4. Are the sweeteners a good thing? Is porked barrel spending reduced in countries that use PR (except STV which probaly increases it even more relative to FPTP) and increased under FPTP?

    Should the U.S constitution be ammended to allow line item voting as many state governor’s have that power? Are there any other countries presidents besides the U.S that have line item veto?

  5. mmm…”STV probably increases pork barrel spending relative to fptp”? Any examples from Ireland or Malta, Suaprazzodi? or from mid 1900’s US cities?

  6. Presidential powers, as defined in P&A, have not changed, and remain low relative to most other “pure” presidential systems.

    I’m not sure I can agree. Almost every head of state carries the title of commander-on-chief, but I am not aware of any other cases where this is as an independent source of legislative power, as for instance with the Bush decrees on military commissions, or where anyone outside the defence force would ever refer to the head of state as ‘my’ commander-in-chief. FN, the just retired governor-general of Australia was actually a former general. He not only made a point of never appearing in uniform or anything that resembled a uniform, he also made a point of not returning military salutes as a way to emphasise that as commander-on-chief he was above, not part of, the military hierarchy.

    While delegated legislation has expanded more and more in every government, I am not aware of any other government where legislative review of delegated legislation is contrary to the constitution. Nor am I aware of any other government where the executive claims the right to disregard legislative acts by way of signing statements.

    It seems to me the US presidency has assumed, rightly or wrongly, vast legislative powers through military decrees, unreviewable rule-making, and signing statements.

  7. Item vetoes exist in various forms in many Latin American constitutions and the Philippines. Also Mongolia (possibly the only example in a premier-presidential system). Whether these vetoes actually reduce pork, as their advocates claim, is unknown (at least to me).

    Are sweeteners (pork) a good thing? Ah, the normative question! Depends on what you consider “good,” doesn’t it? Presumably they are good for the members of congress who can point to them as evidence of their doing good things for their constituents, and for those constituents who benefit directly or indirectly.

  8. > “any other government where legislative review of delegated legislation is contrary to the constitution”

    My understanding, and someone please correct this if I’m wrong, is that ever since the 1983 Chadha decision of the Sup Ct, Acts providing for “legislative veto” (ie, disallowance) by one or both Houses of Congress of delegated administrative decisions (eg, “Rai Jagdish Chadha is hereby granted/ denied the visa he seeks”), are indeed unconstitutional.

    However, my interpretation of the Supremes’ ratio is that this does not necessarily invalidate statute-mandated disallowance of delegated legislation – although in practice Congress usually gives power to the FCC, FEC, ICC, et al to make regulations unilaterally.

  9. The ratio in INS v Chadha turns on the Presentment Clause which requires legislative acts to be presented to the president for veto or otherwise. The ratio therefore includes both legislative and administrative decisions.

    Examination of the action taken here by one House pursuant to § 244(c)(2) reveals that it was essentially legislative in purpose and effect.

    White J’s dissent almost, but not quite, answers your question:

    Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicameral [p987] approval and without the President’s signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test. In both cases, it is enough that the initial statutory authorizations comply with the Art. I requirements.

    Chadha held that a legislative act must comply with the presentments clause and be subject to presidential veto. It’s hard to see how Congress can set up a regime of disallowable instruments if any disallowance is subject to presidential veto.

    In all contemporary governments, delegated legislation far outweighs primary legislation in its volume. Vesting it exclusively in the executive, or in independent agencies, is a massive transfer of power from the legislature to the executive.

  10. Thanks, Alan, for clarifying. I must have over-assimilated John Hart Ely’s argument that the best ratio[nalization] of Chadha was that it breached the Bills of Attainder clause.

    Ironically, Australia has an equally strict “presentment clause” requiring Royal Assent for new Acts (if anything, stricter, since unlike Congress, Parliament can’t override by two-thirds should Her Majesty [or, in the case of reserved Bills, the Queen herself] refuse Assent). Yet the courts here have never, to my memory, even raised that as a possible constitutional objection to delegation or disallowance of legislative powers. Yet another reminder that, despite identical (or corresponding) wording in the Aust and US Consts, the courts in each country read the words through a thick filter of (a) historical practice and (b) political philosophy (“Parliamentary supremacy must be preserved/ Governmental action should have as many veto points as possible” – albeit ironically, invalidating the legislative veto reduces the number of veto points in the name of Separation of Powers!).

  11. I’ve always found Chadha incomprehensible. Rereading it yesterday did not help. One thing that makes this complicated is that the US and the rest of the world seem to have grown different languages to describe the same thing. US administrative law, for instance, is everyone else’s delegated legislation or subordinate legislation.

    A friend from South Africa tells me that Chadha moved the Constitutional Assembly to include S101, which provides in part:

    (3) Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public.

    (4) National legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be –
    (a) tabled in Parliament; and
    (b) approved by Parliament.

    While this is only speculation on my part, I wonder if the title of commander-in-chief became an independent source of legislative power (at least in part) as a result of the ban on legislative review imposed by the courts.

  12. > “In all contemporary governments, delegated legislation far outweighs primary legislation in its volume”

    Indeed. Australia, frex, would have compulsory national ID cards today but for that fact that Regulations (unlike Proclamations) are disallowable by the Senate. (MSS et al: Long story, recountable only on request).

    It seems a bit odd for the US Supremes to be so solicitous of Sep of Powers principles when it comes to delegating [*] legislative powers – even if post-Schechter it’s more saluting the parents Acts as they sail by – yet don’t seem to care about giving the legislature a veto. Quaere whether a “three-house veto” (HR S President) might satisfy Chadha?

    JS Mill, it seems, was prescient in predicting that ideally legislation should be drafted by small groups of experts rather than large, fractious assemblies. Mill did, however, insist that the Commissioners’ drafting handiwork must, constitutionally, be put to the Commons for an up-or-down vote: the Commons be allowed to suggest, but not make, amendments (analogous to the role of an Upper House in USA, Aust, etc on budget measures).

    [*] Oops – I forget: under the US constitutional system, Congress is not allowed to “delegate” “legislative” powers. All it does, when authorising the FCC et al to promulgate regulations – which I can read on my toaster here in Australia – is “vesting” “executive” power. By contrast, in Aust the HC is fine with Parliament “delegating” “legislative” power, as long as Parliament doesn’t “abdicate” it.

  13. Indeed, and it’s frankly passing weird that the effect of Chadha is that because the Congress cannot delegate legislative power it can only abdicate it.

  14. I wonder what our American host and co-guests think of two random Australians dissecting US admin/ const law…?

  15. Disappointing that the two supreme courts have erred in opposite extremes. A more rational constitutional approach would have been for the courts to tell the legislatures: “Yes, you may delegate power to make by-laws, regulations, ordinances, etc – but you also have to make these subject to scrutiny, and to a reasonable chance for disallowance, by either House shortly after they’re made. Else it’s not delegation, but abdication, of legislative power.” (The HCA had no problem coming up with similar implied prohibitions on delegation of judicial powers, eg to Family Court Registrars).

    And no, it is not a sufficient safeguard against “abdication” to say (as the HCA did in JW Alexander) that “Well, MPs can always amend or repeal the parent Act if they think they gave away too much discretion.” Because translated, this means no more than “If you can convince the Cabinet and the Senate that the parent Act gave too much power to the Cabinet, and so should be amended/ repealed, then… good luck to you.” (This applies, of course, more to the Anglo-Australian system than to the USA, where Congress can and does override Presidential vetoes, and where the delegation may be to a separate Commission that the President, as much as Congress, may want to rein in.)

  16. Delegated legislation aka subordinate legislation aka secondary legislation aka administrative law could bear a lot of research by political scientists.

    The joint committee on delegated legislation of the Western Australian parliament reported that delegated legislation is 50% of all law. I would suspect that figure is higher elsewhere. Certainly, for instance UK commentators regularly state tat Australia uses primary legislation much more than the UK does. I have no idea what the figures may be in US governance, but I suspect they may be higher again.

    Weirdly enough, just as the signing statement echoes James II and VII’s attempt to make the dispensing power part of the common law, secondary legislation echoes Henry VIII’s Statute of Porclamations. The Statute also gave us the name for Henry VIII clauses, now quite common in Britain, where the executive can amend the text of an Act of Parliament by regulation.

  17. You’re probably aware already but, for info, Ed Page has a book on delegated legislation in the UK: ‘Governing by numbers: delegated legislation and everyday policy making’ (2001).

  18. Theodore Lowi and John Hart Ely had a lot to say about admin law/ delegation in the USA. Re UK vs Australian use of subord legn: I wonder whether this was because the UK Parliament, in terms of areas of constitutional power, covers all topics that in Australia are divided between the Commonwealth and State Parliaments. Even if in practice the Commons and Lords delegate the bulk of rule-making about, say, education to the county councils, Westminster retained the power to step in and pass a Clause 28 if it wanted. As a result, the sheer range of matters that an omnipotent legislature can make laws about, leads to delegation to the executive. Quaere whether the establishment of Welsh and Scots quasi-“State legislatures” will have changed this (note the future pluperfect and the fact that legally speaking, Holyrood and its Welsh counterpart are just making delegated legislation).

  19. I love the smell of pluperfect in the morning.

    Australian Senate Practice quotes an interesting argument for Westminster bicameralism.

    Thus responsibility in the Commonwealth for active and systematic scrutiny of this extensive field of legislation falls upon the Senate. Maurice Blackburn, later a Labor member of the House of Representatives, had explicitly contended in 1930 that:

    the House of Representatives is not likely to do that work well, or, in fact, to do it at all. Upon its vote turns the fate of the ministry. The regulation is made by the ministry, and a proposal for its disallowance would certainly be treated as a vote of want of confidence, and would be tested on party lines. No ministry depends on the vote of the Senate and it is quite likely that in that chamber a regulation would be considered on its merits…. (Evidence to the 1929 Select Committee, PP S1/1929-30, p. 23.)

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