Reaching the Internal Tension Model

This chapter provides the basis of the model advanced in the book. Based on the internal tension model, governing constitutionalism-at-large, the chapter submits that the executive is best viewed as straddling the line between subjection to law and dominance beyond law. This is no ‘paradox:’ embodying one of the tensions ingrained in constitutional law, the executive draws on an irresolvable tension between its role as executor of law, under the separation of powers ideal, and its function as manager, or dominant decision-maker in the political sphere, in which it acts above and beyond the law. Under the internal tension model, normative theory can be better expounded, and the extent of required constraints over excessive power can be better addressed. The chapter discusses, and rejects, three models of the executive branch, all of which are based on hierarchical and dichotomous thinking. The subservient executive model connotes full supremacy of the constitution and legislation over the executive; the imperial executive model draws on a vision of executive supremacy; and the third, bipolar model offers a vision of alternating modes of operation. All are set aside in favour of a model that recognizes the internal tension which underlies executive action.

The Nature and Use of Unilateral Executive Measures

Constitutions and constitutional constructs offer executives a repository of fuzzy sources of power which enable unilateral action. This chapter focuses on one of these forms: executive making of (semi)-formal unilateral measures. These orders and edicts have an important edge: on their face, they are ‘lawlike’, and seemingly carry the imprimatur of binding law, even when their legal status is fuzzy. The chapter uses comparative methodology in order to show the strong similarity between such measures as they emerged and continue to be applied in the two systems compared in this book. Orders in Council, Executive Orders and the like, such as the ones brought before the courts in Bancoult and Youngstown, have been at the focus of extensive study; yet to date, such measures, issued in both systems, have never been conjointly discussed. This chapter offers the first comparative analysis. This novel comparative exercise leads to the discovery of a surprising convergence—surprising, if attention is focused on structural regime elements. The findings support two of the main themes advanced in this book: that the emergence and retention of fuzzy legality is an unavoidable feature of the state, despite the ingrained danger it poses to the proper functioning of democracies. A third theme, concerned with the need to constrain fuzziness by robust judicial oversight, is addressed in the last chapter of this book. This chapter also offers new insights on the unclear distinction between constitutional- and statute-derived fuzziness, again, a feature shared by both systems.

Maintaining the Internal Tension Model

This chapter is dedicated to an overview of the ways the internal tension model operates to empower the executive branch, simultaneously under law and beyond its confines; the maintenance of the internal tension between the need to grant power and the need to retain a façade of legality, is achieved through practices under which an authorizing rule may present a façade of legality that derives from its binding formal status, while its content or application offer broad options for action (and possible abuse) which conceals a reality of a-legality. Beyond general and philosophical studies of the indeterminacy of law, the scholarship in this context has been conducted under the parallel paths discussed in this chapter (delegation and discretion; ‘soft law’; ‘fuzzy law’; and ‘grey holes’. The second part of the chapter is dedicated to an analysis of thirteen types of such fuzzy/grey legal constructs, organized according to the identity of their generators—the constitution, the legislature, and the executive. The resulting taxonomy of thirteen different forms of fuzziness offers a basis for the next part of this book, dedicated to case-studies of several such fuzzy measures.

Fuzzy Legality and the Challenge to Proper Governance

This chapter addresses two aspects of the propriety of reliance on fuzzy law as a central strategy for the retention of executive dominance over and under law. First, it presents arguments concerning the direct negative impact of fuzzy law on proper governance. These arguments are sorted around two nodes of democratic theory: ‘the rule of law’, and theories of participatory/deliberative democracy. Both offer good bases for embedding these arguments in the normative debate. The second part of the chapter offers a hitherto untreated aspect: it traces the political economy of fuzziness. It traces the factors that enhance reliance on fuzzy modes of executive action, classified under a distinction between endogenous and exogenous factors. Beyond law’s endemic fuzziness, I study a group of external factors that impact on the retention of fuzziness, including power politics and player preferences; disagreement during the design stage of a rule or at a subsequent political juncture; pressure to act that results in fuzzy arrangement, not necessarily designed to be applied; and the relative marginalization of the action exercised, which leads to the retention of fuzziness. Combined, the two parts of the chapter enrich the understanding of the ubiquity of fuzziness, while emphasizing the prices paid by continuous reversion to such practices.

Unilateral, Non-Statutory Executive Powers

This chapter offers an in-depth analysis of one form of constitution-generated fuzziness – unilateral rule-making under the constitution. The bases of such powers include historically-embedded sources of power such as the British royal prerogative, uncontested long-standing practices, expansive interpretations of clauses in a written constitution such as the take-care and the Commander-in-Chief clauses in the US Constitution, and reliance on other constructs such as 'third-source' powers, 'constitutional gloss' and concepts of sovereignty. The high-level but indeterminate sources of such action typically do not demarcate the limits of such action; thus, they essentially guarantee the fuzziness so favoured by executives. The chapter considers in detail all the recognized sources for the continued existence of unilateral non-statutory powers in the two compared systems, and addresses two accepted legal constraints on their application: their subjection to statute, under the doctrine of residuality, and their subjection to judicial review.

Keeping the Internal Tension Under Check

Concerned with the role of the judiciary as a constraining agent of fuzzy law, the chapter is laid out in two layers. First, in light of the special problems attached to reliance on fuzzy law, it advances arguments that call for enhanced review in this context. Secondly, the chapter joins the ongoing general debate over the role of the judiciary in the shaping of the public sphere. The argument for active review is based both on the principles reflected in the rule of law ideal, and on an argument from governance. Setting judicial review in a framework that seeks to enhance participation, the judiciary, stripped of accusations of supremacy over all other forms of decision-making, operates as an intermediator by offering members of society, especially those who do not have direct access to government corridors, an additional forum for voicing their concerns and thereby contributing to public deliberation over all contested aspects of social and political life.

Case Studies

The chapter offers general introductions to the legal ordering of two fields—national emergency and air pollution. In addition to providing general backgrounds for those analyses, the introductions present initial accounts on the complexity of both bodies of law in two legal systems, thereby offering four glimpses of the ways fuzziness can, and does, develop and flourish in law. These overviews may also be useful to those who study these fields. Commentaries on specified areas of law often tend to direct their attention to a small number of measures—those that could be considered the ‘legislative mandates’ under the ideal-type vision of regulation—but, true to one of the themes of this book, attention should also be cast elsewhere. The overviews presented here span the legal rules directly targeting the regulation of these two fields of government action, originating from customary international law; international law treaties and documents; EU law, as long as applicable; domestic law; and unilateral measures such as orders in council and executive orders.

Introduction

The introduction to the book offers a short overview of the contents of the book. This book is a treatise on the executive branch, which addresses, theoretically and comparatively, the nature of the executive as a body that is the dominant player in the public and political sphere but is also required, under the separation of powers principle, to be subservient to the law made by legislature according to the constitution of a polity. Three arguments are made in the book. First, to grasp the nature of executive power, one should reject hierarchic accounts of the public sphere: searches for the wielder of the final word should be replaced by a model which rests on networks and inter-branch tensions. Secondly, under this ‘internal tension’ vision of constitutionalism, the executive branch is to be considered as concurrently subservient to law and dominant over it. Finally, much of public law is shaped in ways that enable this seeming contradiction. The thirteen forms of ‘fuzzy’ law presented in the book, generated by constitutions, legislators, and executives, enable the executive to act relatively unfettered without losing the legitimacy arising from the existence of formal law, which, in effect, sets limited constraints on executive action. Ranging from open-ended or semi-written constitutions to unapplied legislation, these forms of legality span both constitutional and administrative aspects of public law. The introduction briefly discusses the structure of the book, which is divided into four parts.

Legislation-Generated Fuzziness

Under classic accounts, a single, overarching and all-inclusive legislative mandate or organic statute grants executive agencies the authority to act in a specified field of action, and delineates the contours of their action by setting limits and conditions. However, as any practitioner can attest, the legislative mandate, when it exists, is never the sole source of executive authority, and is always supported by other legal rules. There will usually be other legal rules that have no direct link to the legislative mandate, when it exists: other statutes, executive orders, and other unilateral measures, and, in a Federal system, state law, when and as far as it pertains to any aspect of a Federal arrangement. The chapter analyses two patterns of patchwork legislation, piling-up and dispersion. Using examples from the UK and the US in the fields of emergency and air pollution law, the chapter claims that the existence of multiple rules fuzzies-up the law. Varying in intensity and form, patchwork law commonly features in these four examples of domestic authorizations to act under, and beyond, formal law.

Preliminaries

This chapter introduces the setting for the study of the executive branch, and sets aside several issues that may be considered as challenges to the project. A short section on the definition of ‘the executive branch’ is followed by an overview of the literature on the executive, showing that the immense body of research is almost entirely system-based, and contains limited theoretical and comparative analysis. To date, no general theory, or model of the executive branch, can be found in the current academic literature. An exposé of the central analytical concept used in this book—that of the ‘internal tension’ element of constitutionalism, leads to the discussion and rejection of two challenges to the project, which draws on the law and political practices of the United States and the United Kingdom. The first focuses on the alleged incomparability of parliamentary and presidential regimes, the second on the so-called ‘breaking down’ of the executive branch and the devolution of many of its functions to agencies placed outside the ‘core executive’. Variations do exist, but sufficient similarities, the existence of complex structures that do not follow simple binary divides, and the de facto dominance of the executive in both systems, fully support the analyses presented in the book.