On the separation of executive and legislative powers: Executive independence, liberty, and social welfare

2021 ◽  
pp. 095162982110432
Author(s):  
Justin Fox ◽  
Mattias Polborn
Keyword(s):  
Social Welfare ◽  
Political Institutions ◽  
Separation Of Powers ◽  
Executive Power ◽  
Game Theoretic

We explore the effects of a particular facet of separation of powers—namely, the executive’s independence from the legislature—on maintaining a norm of legislative restraint in which antagonistic factions refrain from passing laws that infringe on their rival’s liberties. Our main result establishes that executive independence may sometimes undermine and at other times facilitate legislative restraint, depending on the probabilities with which the factions hold legislative and executive power. Our results contribute to the larger game-theoretic literature exploring the effects of political institutions; our results also contribute to the literature exploring how institutions designed to protect liberty affect tacit cooperation among rival factions.

Part Three The Separation of Powers, 9 The President: Problems of Executive Overreach

2017 ◽  
Author(s):  
Espinosa Manuel José Cepeda ◽  
Landau David
Keyword(s):  
Latin America ◽  
National Security ◽  
Political Institutions ◽  
Separation Of Powers ◽  
Executive Power ◽  
Presidential Power ◽  
Political Crises ◽  
Executive Discretion ◽  
Historical Role

As in much of Latin America, the Colombian president has historically been extremely powerful. The 1991 constitutional designers sought to achieve greater balance in the separation of powers, in part by weakening presidential power. This chapter considers the Court’s attempts to limit executive discretion and protect against excessive amalgamations of executive power. Even in areas where presidents have historically enjoyed almost plenary power, such as national security, the Court has attempted to place limits on presidential power. Most significant in this regard is the Court’s aggressive and successful jurisprudence limiting presidential use of states of exception. The Court has imposed jurisprudential criteria limiting states of exception to true and unexpected social and political crises, thus greatly reducing its historical role in day-to-day Colombian life and forcing political institutions to confront most problems under a situation of normality.

Institutional organisation of the European Union in the time of crisis – horizontal division of power and functions

2016 ◽  
pp. 54-66
Author(s):  
Monika Poboży
Keyword(s):  
European Union ◽  
Separation Of Powers ◽  
European Council ◽  
Executive Power ◽  
The European Union ◽  
Checks And Balances ◽  
Court Of Justice ◽  
Strong Position ◽  
Institutional System ◽  
The Eu

The article poses a question about the existence of the rule of separation of powers in the EU institutional system, as it is suggested by the wording of the treaties. The analysis led to the conclusion, that in the EU institutional system there are three separated functions (powers) assigned to different institutions. The Council and the European Parliament are legislative powers, the Commission and the European Council create a “divided executive”. The Court of Justice is a judicial power. The above mentioned institutions gained strong position within their main functions (legislative, executive, judicial), but the proper mechanisms of checks and balances have not been developed, especially in the relations between legislative and executive power. These powers do not limit one another in the EU system. In the EU there are therefore three separated but arbitrary powers – because they do not limit and balance one another, and are not fully controlled by the member states.

Delegation, Comitology, and the Separation of Powers in the European Union

2002 ◽  
Vol 56 (3) ◽  
pp. 551-574 ◽  
Author(s):  
Alexander Ballmann ◽  
David Epstein ◽  
Sharyn O'Halloran
Keyword(s):  
European Union ◽  
Policy Implementation ◽  
Separation Of Powers ◽  
Policy Outcomes ◽  
Theoretic Model ◽  
The European Union ◽  
Considerable Controversy ◽  
Game Theoretic ◽  
Council Of Ministers ◽  
The Eu

Although relatively unknown outside of Europe, comitology committees are an object of considerable controversy in the European Union (EU). Controversy stems from their pivotal role in overseeing policy implementation authority delegated from the Council of Ministers (Council) to the European Commission (Commission). In this article, we employ a game-theoretic model to analyze the influence of these, committees on policy outcomes. Our analysis provides three important insights. First, we show that, contrary to the conventional wisdom, comitology committees move outcomes toward the Commission's preferred policies rather than the Council's. Second, we demonstrate that the possibility of a Council veto may also move outcomes away from Council members' policy preferences and toward the Commission's. Third, the 1999 changes to the comitology procedures, designed to enhance the Commission's autonomy in policymaking, may have had the exact opposite effect. Paradoxically, we conclude that comitology serves to enhance the Commission's role in policy implementation and thereby strengthens the separation of powers within the EU.

Teaching the Presidency: Idealizing a Constitutional Office

2012 ◽  
Vol 45 (01) ◽  
pp. 17-31 ◽  
Author(s):  
Louis Fisher
Keyword(s):  
Eighteenth Century ◽  
World War Ii ◽  
Separation Of Powers ◽  
Executive Power ◽  
Great Care ◽  
World War ◽  
Checks And Balances ◽  
Constitutional System

From World War II to the present, prominent scholars placed their hopes in the presidency to protect the nation from outside threats and deal effectively with domestic crises. Their theories weakened the constitutional system of separation of powers and checks and balances by reviving an outsized trust in executive power (especially over external affairs) that William Blackstone and others promoted in eighteenth-century England. The American framers of the Constitution studied those models with great care and fully rejected those precedents when they declared their independence from England.

scholarly journals Returning Separation of Powers Analysis to its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Penalties

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
United States ◽  
Separation Of Powers ◽  
Executive Power ◽  
Environmental Services ◽  
Categorical Approach ◽  
The Earth ◽  
Executive Authority ◽  
The Status ◽  
Citizen Suits ◽  
As If

This paper examines the status of debates concerning the constitutionality of private suits to enforce civil fines in light of the Supreme Court's decisions in Vermont Agency of Natural Resources v. United States ex rel. Stevens and Friends of the Earth v. Laidlaw Environmental Services, as well as a pending Fifth Circuit decision in United States ex rel. Riley v. St. Luke's Episcopal Hospital. The two Supreme Court opinions have upheld qui tam and citizen suits against standing challenges, but have reserved the question of their constitutionality under Article II. The Riley panel opinion held qui tam actions to be unconstitutional under Article II, but the Fifth Circuit took the matter en banc on its own motion on the very day the opinion was published. (Subsequent to the publication of this article, the Fifth Circuit overturned the panel opinion and upheld the constitutionality of qui tam actions, Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001).) In the author's judgment, all such private suits to enforce civil fines are plainly constitutional under both Article II and Article III. That such suits appear to raise constitutional doubts is the consequence of missteps in the Supreme Court's implementation of separation of powers principles. The Court, led chiefly in this respect by Justice Scalia, has written often as if constitutionally vested executive authority guarantees the President plenary policy control over all federal civil administration, and as if the purpose of standing doctrine were largely to protect such executive authority from judicial interference. The author believes that the vesting of executive power is better understood as an effort to remove Congress from the business of administration. Standing rules, for their part, ought chiefly to be understood as protecting the judiciary from the dilution of judicial power that would come from the resolution of abstract or collusive litigation. The author explains why the Court should go back to requiring no more as a matter of standing doctrine than that a case be presented in an adversary context and in a manner historically viewed as capable of judicial resolution. The Court's injury, causality, and redressability inquiries should be abandoned in favor of a more straightforward questioning whether plaintiffs in federal lawsuits have constitutional or statutory causes of action to support their complaints. In Article II cases, the Court should adhere to the analytic framework of Morrison v. Olson, and abandon the more wooden and categorical approach to interpreting executive power that informs Justice Scalia's Morrison dissent and his alternative holding in Printz v. United States.

Het beleid van de provincies

Res Publica ◽  
1978 ◽  
Vol 20 (2) ◽  
pp. 279-298
Author(s):  
Staf Lauwerysen
Keyword(s):  
Social Welfare ◽  
Political Institutions ◽  
Task Analysis ◽  
Financial Analysis ◽  
Community Organization ◽  
The Political ◽  
Government Structure ◽  
Provincial Level ◽  
The Government

The abolition of the political institutions of the Belgian provinces, as provided in the government declaration of 7 June 1977, puts a question into the usefulness of the provincial institutions.This contribution intends to throw more light on the policy at the provincial level - now and in the near past - by means of a brief functional and financial analysis. Beforehand, it has to be mentioned that juridical and institutional limitations do exercise a restraining influence on the functioning of the provinces.A task-analysis shows that they are mainly concerned with «traditional» tasks ( e.g. education, traffic), but they recently take into consideration «modern» tasks in the domain of social welfare (e.g. culture, community-organization) .However, the means of the Belgian provinces are very limited ; as a result, the current expenditures of the provinces do not exceed 3 % of all public current expenditures. It shows the relative small importance of the provinces in the total government structure.

Institutions, Power, and Institutional Balance

2021 ◽  
pp. 46-89
Author(s):  
Paul Craig
Keyword(s):  
Separation Of Powers ◽  
Initial Period ◽  
Lisbon Treaty ◽  
Executive Power ◽  
Constitutional Treaty ◽  
Institutional Power ◽  
Executive Authority ◽  
Single European Act ◽  
Rule Making ◽  
Secondary Rule

Institutional balance, as opposed to strict separation of powers, characterized the disposition of legislative and executive power in the EEC from the outset. The chapter is divided into four temporal periods. The initial period runs between the Rome Treaty and the Single European Act 1986 (SEA). The discussion begins with the initial disposition of institutional power in the Rome Treaty, and charts the way in which this shifted during the first thirty years. The second section covers the period between the SEA and the Nice Treaty, in which there was growing consensus in normative terms as to the appropriate disposition of primary legislative power, but continuing contestation as to power over secondary rule-making and the locus of executive authority. These tensions were readily apparent in the third period, which covers the Constitutional Treaty and the Lisbon Treaty. The fourth period runs from the advent of the Lisbon Treaty to the present. The EU has been beset by a series of crises, which had implications for the powers of the respective EU institutions and the institutional balance between them.

Appraisal and Review

2020 ◽  
pp. 255-276
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Executive Power ◽  
Late Nineteenth Century ◽  
Home Office ◽  
Final Destination ◽  
The Common ◽  
Future Direction

The concluding Chapter scrutinises the validity and relevance of the book’s hitherto unseen archival files, from which its account stems. In pulling together its main themes concerning the role of civil servants, the Executive and the Judiciary in administering criminal justice, it retraces the trajectory of suspects’ rights in the late nineteenth century, from their seemingly ‘bedrock’ foundation within the common law to their rough distillation (at home and abroad) through various iterations of Judges’ ‘Rules’, themselves of dubious pedigree. In documenting this journey, this Chapter underscores how Senior Judges, confronted by Executive power impinging upon the future direction of system protections, enfeebled themselves, allowing ‘police interests’ to prevail. With Parliament kept in the dark as to the ongoing subterfuge; and the integrity of the Home Office, as an institution, long dissolved, ‘Executive interests’ took the reins of a system within which much mileage for ‘culture change’ lay ahead. This Chapter helps chart their final destination; ultimately, one where new Rules (the CrimPR) replace those exposed as failures, leading to governmental success of a distinct kind: traditional understandings of ‘rights’ belonging to suspects and defendants subverted into ‘obligations’ owing to the Court and an adversarial process underpinning determinations of guilt long-disbanded in the quest for so-called ‘efficiency’. In explaining the implications of the events discussed in this book for the issue of ‘Judicial Independence’ and the ‘Separation of Powers’, this Chapter offers a theoretical framework that illuminates the role and practices of the Senior Judiciary in criminal justice policy today.

11. Institutional Drivers of Democracy

2019 ◽  
pp. 210-228
Author(s):  
Andrea Kendall-Taylor ◽  
Natasha Lindstaedt ◽  
Erica Frantz
Keyword(s):  
Political Institutions ◽  
Civil Liberties ◽  
Explanatory Power ◽  
Executive Power ◽  
P System ◽  
Central Asian ◽  
Central Asian Countries ◽  
Soviet Space ◽  
Presidential Systems ◽  
Institutional Drivers

Political parties 212 Electoral systems 217 System of government 220 Federal versus unitary states 222 Consociationalism 223 Political institutions and democratization: A double-edged sword 226 Conclusion 227 Key Questions 228 Further Reading 228 In the former Soviet space (excluding the Baltics), some countries are more open and less authoritarian than others. Ukraine, Georgia, Moldova, and Kyrgyzstan, for example, have enjoyed relatively greater political and civil liberties—and even periods of nascent democracy. Freedom House rated Ukraine as ‘Free’ shortly after the country’s Orange Revolution in 2004–05. In contrast, Russia, Azerbaijan, Belarus, and the other Central Asian countries have been far more closed. What accounts for this difference? The former Soviet states share a number of common features like their communist history and high levels of corruption, making these factors poor candidates for explaining the political divergence. Economic factors also have little explanatory power, as some of the poorest countries like Georgia and Kyrgyzstan have been among the relatively more democratic. Instead, some scholars have emphasized the importance of institutions for explaining the different levels of freedom within the region. The relatively more open counties have parliamentary systems, while the more authoritarian countries have presidential systems (Hale 2016, 2011). When power is vested in a president rather than divided between a president and prime minister, the argument goes, it facilitates a president’s expansion of executive power....

scholarly journals The Principle of Proportionality in Comparative Perspective

2007 ◽  
Vol 8 (9) ◽  
pp. 835-869 ◽  
Author(s):  
Margherita Poto
Keyword(s):  
Member State ◽  
Political Institutions ◽  
Separation Of Powers ◽  
Administrative Law ◽  
Legal Order ◽  
Comparative Perspective ◽  
European Identity ◽  
Law System ◽  
Principle Of Proportionality ◽  
The Eu

This contribution will contain an analysis of important European dynamics, particularly at this moment when it seems to be necessary to restart the process of a unified European identity, which was, in a way, compromised after the failure of the EU Constitution and the difficulty of giving effectiveness to democracy:the EC professes democracy without being democratic. Thus the fragility of its political institutions, inherently perilous, necessarily reflects on the legitimacy of its legal order, while the constitutional balance intrinsic to the separation of powers ideal is dangerously absent. In other words, while in every Member State, the administrative law system forms part of a working system, this is not the case in the Community.

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