Independent Authorities: History and Problems

2011 ◽  
Author(s):  
Pierre Rosanvallon
Keyword(s):  
Twentieth Century ◽  
Separation Of Powers ◽  
Government Intervention ◽  
Executive Power ◽  
Traditional Concept

This chapter considers the rise of independent authorities within democratic countries. In most of these countries, the pace of creation of independent bodies charged with regulatory and oversight functions that had previously been entrusted to “ordinary” bureaucratic departments increased in the last two decades of the twentieth century. Although quite diverse in character, all of these organizations share a certain hybrid quality: they have an executive dimension even though they also exercise normative and judicial functions. The traditional concept of separation of powers has had to be stretched to accommodate them. The scope of the change has furthermore been considerable. In many countries vast areas of government intervention have increasingly been entrusted to these new organizations, clearly reducing the scope of administrative-executive power.

A Subjective Jurisprudence

2020 ◽  
pp. 55-92
Author(s):  
Edward A. Jr. Purcell
Keyword(s):  
Twentieth Century ◽  
Separation Of Powers ◽  
Judicial Power ◽  
Executive Power ◽  
The Political ◽  
Institutional Goals ◽  
Policy Goals ◽  
Power Limit ◽  
Political Right ◽  
The U.S

This chapter examines Justice Antonin Scalia’s jurisprudence dealing with the U.S. Constitution’s two structural axes, separation of powers and federalism. It argues that both constitutional principles are general, largely indeterminate, and easily manipulable and that Scalia construed them in light of his own subjective goals and values. He was determined to use them instrumentally to expand executive power, limit Congress, and severely restrict federal judicial power. The chapter argues that Scalia regarded separation of powers as more critical and important than federalism because it was better suited to serve his political and institutional goals and that, in joining the Rehnquist Court’s “federalism revolution” in the early twentieth century, he contradicted the position he had taken in his Senate confirmation hearing about the propriety of the Court giving special deference to Congress on federalism issues. Finally, the chapter shows that before he went on the Court, Scalia had made it clear that he viewed both separation of powers and federalism as principles that could and should be interpreted to serve the practical policy goals of the political right.

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.

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.

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.

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.

Part 4 Constitutionalism and Separation of Powers, 4.1 The Separation of Powers in Muslim Countries: Historical and Comparative Perspectives

2012 ◽  
Author(s):  
Röder Tilmann J
Keyword(s):  
Twentieth Century ◽  
Early Modern ◽  
Ottoman Empire ◽  
Separation Of Powers ◽  
Islamic State ◽  
Short Discussion ◽  
Early Modern History ◽  
Muslim Countries ◽  
Late Ottoman Empire ◽  
Late Ottoman

This chapter examines the separation of powers in the late Ottoman Empire—the largest and most powerful Islamic state in early modern history—and its neighbor, the Iranian Empire. Both empires' constitutional legacies presumably influenced the developments in many countries of the Islamic world. It addresses questions such as: Does the separation of powers have roots in the ancient world? And how far did the separation of powers develop in the Islamic empires at the dawn of the twentieth century? The historical observations are followed by a short discussion of the question of which models—historical or contemporary, domestic or foreign—have shaped the constitutional systems of the existing Islamic countries.

Parnell and the Bradlaugh case

1963 ◽  
Vol 13 (51) ◽  
pp. 212-235 ◽  
Author(s):  
Walter L. Arnstein
Keyword(s):  
Nineteenth Century ◽  
Twentieth Century ◽  
Welfare State ◽  
Government Intervention ◽  
Good Reason ◽  
Third Party ◽  
Irish Question ◽  
The Impact

It is a historical truism that the ‘Irish question’ dominated British parliamentary life during the last third of the nineteenth century. For good reason does Sir Robert Ensor give one of the chapters in England, 1870-1914 the title ‘The ascendancy of Parnell’. Yet it is the custom to treat the Irish nationalist contingent at Westminster as concerned only with Irish questions. It has been observed, to be sure, that the ‘Irish question’ had a highly significant impact upon English affairs. The Irish land acts of 1870 and 1881, for example, have come to be seen as a type of government intervention in economic affairs foreshadowing the twentieth-century welfare state. One aspect of the existence of an Irish third party at Westminster has, however, been curiously neglected, the impact of Irish M.Ps upon essentially English political controversies. It is with one such controversy that this paper is concerned, the notorious Bradlaugh case.

Emergencies, Executive Power, and the Uncertain Future of US Presidential Democracy

2012 ◽  
Vol 37 (03) ◽  
pp. 743-767
Author(s):  
William E. Scheuerman
Keyword(s):  
Liberal Democracy ◽  
Separation Of Powers ◽  
Institutional Reform ◽  
Executive Power ◽  
Constitutional Design ◽  
The Us ◽  
Executive Discretion ◽  
Uncertain Future ◽  
The Many ◽  
Do So

This article reexamines the question of how best to restrain executive power in a political and social context that seems to favor its dramatic expansion. Modern interventionist government amidst a dynamic social environment, where the executive faces a seemingly endless series of “crises” or “emergencies,” provides a heightened scope for executive discretion. At the same time, the US-style separation of powers, in which an independent president faces a potentially obstinate Congress, offers executives many incentives to exploit crises, real or otherwise. The works examined in this article confront, with varying degrees of success, the seemingly inexorable expansion of executive power within the US version of liberal democracy. We can only hope to deal with the many intellectual and political tasks posed by the symbiotic nexus between executive-centered and crisis-oriented government by confronting some tough questions about US constitutional design and the possibility of radical institutional reform. Unfortunately, even those scholars who provide plausible accounts of the US system's fragilities seem hesitant to do so.

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