High court review 2005: The manifestation of separation of powers in Australia

In 2005 questions were raised in public debate regarding the scope, meaning and manifestation of the constitutional separation of powers and the role of the High Court in interpreting these. In particular, the issue of the efficacy of checks and balances within the system of government against potential abuses of executive powers was raised, due to the dominance of the legislature by the executive for the first time in 24 years. This Review argues that while the High Court staunchly defended its independence and the role of the judiciary in a division of powers, it demonstrated a simultaneous reluctance to curb executive powers. This has implications for the manifestation of separation of powers in the Australian context, both in terms of its philosophical foundations and in so far as it signals a trend away from the likely realisation of public expectations of its role as expressed in appeals made to it.     

A New Model of Executive Power: A Montesquieuan Explanation of the Obama Presidency

Abstract

The perennial concern over executive overreach continues well into Obama's presidency, leading many to wonder if the “unitary executive” is here to stay. Discussions of executive war powers focus on three models. The Hamiltonian perspective gives presidents the lead position in foreign affairs; the second model, following Madison, presents Congress as the leader when initiating hostilities. Finally, Jeffersonians present emergency powers as extra-legal, giving presidents a sphere of actions that cannot be contained within constitutional discussions. Problematically, current scholarship implicitly or explicitly grounds these explanations in Locke's political philosophy. This occurs despite a dearth of references to Locke during the Constitutional Convention and infrequent references to his thought during early debates over executive-congressional divisions of war powers. Comparatively, all of these seminal American figures frequently mention Montesquieu, often fighting over the specifics of his theory. While scholars widely acknowledge this influence, they rarely mention him during discussions of war powers or the nature of executive power in general. This article examines the Montesquieuan understanding of executive power and shows how this model represents a viable alternative to the Lockean one. Most importantly, examining the executive from a Montesquieuan perspective provides solutions to current problems that the Lockean perspective does not.     

Local Government Policymaking and Management in Russia

Local government in Russia is characterized by the collapse of traditional relationships between legislative and executive powers and between different levels of executive and legislative hierarchies. The re-definition of these relationships involves a struggle for power pursued against a backdrop of radical systemic change in the economic and social spheres. These changes are accompanied by a breakdown (and gradual realignment) of the system of distribution, which has accelerated the process of economic and social destabilization in the larger cities. The response of local administrations to the problems generated has been hampered by the fiscal crisis that affects both national and local levels of government. This article reviews the changing relationship between governmental levels and between legislative and executive powers in the context of these broader developments, and in the context of Russian and Soviet traditions of local government. Overall the article notes the perceived failure of the democratization of the legislature at local level to deal with the crisis, and the consequent shift of power towards a strengthened executive.     

Obama's Executive Branch Czars: The Constitutional Controversy and a Legislative Solution

The increasingly common practice of presidential appointment of so-called executive branch czars has become especially contentious in the Obama era. Much of that controversy unfortunately is highly partisan-oriented and misses the core constitutional issues at stake. In this article, we describe and analyze the Obama-era executive branch czars controversy from a constitutional analysis framework. In so doing, we offer a working definition of executive branch czars—a much-needed corrective to the current debates in which the term has been used very loosely. We examine and analyze the scope of authority exercised by the high-level executive branch officials during the Obama administration that we consider to be constitutionally troublesome. Although our focus is on the Obama czars that have vast and largely unchecked powers, we also acknowledge that some media-labeled czar positions are statutorily created and accountable and thus should not be in the same category. After addressing the Obama-era czars, we offer a set of reform proposals that provide a much-needed corrective.     

A Look Back at the Steel Seizure Case

During every national emergency, the system of checks and balances designed, as James Madison wrote in Federalist 51, to prevent a power grab by any of the three branches by giving each “the necessary constitutional means and personal motives to resist encroachments of the others,” comes under great pressure. ¹ After the September 11, 2001 terrorist attacks upon the World Trade Center and the Pentagon, the public looked to the President to take extraordinary measures. Congress quickly moved to expand executive powers to meet the emergency, confirming the view of a leading textbook on the presidency that “it has become the dominant institution in a system designed for balanced government.” ²     

Agency Characteristics and the Use of Executive Orders

Past scholarship has offered varying explanations for why presidents choose to use executive orders. However, to this point, much of what we know of unilateral powers does not adequately address the role the bureaucracy plays in the president's decision. This research seeks to account for bureaucratic factors as a strategic presidential consideration in the employment of such directives. I classify executive orders from 1989–2012 based on which agency or agencies they apply to, and consider the importance of various characteristics (e.g. agency ideology, level of centralization, politicization, etc.) in determining which organs of the bureaucracy presidents will direct executive orders to generally. The results provide evidence that the White House directs fewer executive orders to agencies that have a politically independent leadership structure, and this result holds across a variety of measures judging an order's impact. The results demonstrate that the type of directive is crucial in determining a president's strategic decision to use executive orders, in line with previous research, and that agency centralization is one crucial component of this strategic calculation.     

Congress and Back Seat Driving

Few pieces of legislation in the realm of foreign policy decisionmaking have greater potential effect or are more controversial than the War Powers Resolution. The Resolution was intended originally to create greater leverage for Congress over executive use of military force. In this effort, it is widely believed that the Resolution has been ineffective. This paper uses an information theoretic model to examine the War Powers Resolution. Results of the modeling process allow for two general assertions. First, the model suggests that the Resolution is an optimal choice of procedure by the legislature. In other words, the War Powers Resolution is better for Congress than its alternatives. Second, the information theoretic approach used here seems to coincide with an anecdotal history of the war powers debate better than do alternative explanations. Indeed, the analysis helps to explain why war powers legislation was not considered seriously sooner. Though criticism of the War Powers Resolution has its merits, claims for a variety of alternative procedural systems may be open to challenge. Those wishing to establish mechanisms for curtailing executive adventurism abroad may find it more rewarding to focus efforts on the budgeting process or on the reduction of military force structures.     

Checking Executive Power: A Simulation Model of Unilateral Executive Behavior

Abstract

What systematic influence does the court exert on unilateral authority? Though questions relating to the expansion and the exercise of unilateral executive power remain a perennial concern in political science, existing studies of the unilateral presidency generally focus on relations between the executive and the legislature, with less attention paid to the impact of the judiciary on executive behavior. Using a system of differential equations to model executive unilateralism and judicial constraints, simulation results identified four broad patterns of unilateral executive behavior and judicial influence. Overall, presidents strategically anticipate reactions from the courts and employ unilateral actions accordingly. Although they are cognizant of the court’s ability to strike down their actions, and thereby harming their preferred policy preferences and legacies, presidents nonetheless act unilaterally, albeit at a lower level. Results add to existing studies in separation of powers and constraints on unilateral executive behavior.     

President Versus Congress: The Struggle for Public Attention

Power relationships between the executive and legislative branches in the United States are affected by the nature and shape of public opinion. Both branches actively seek the stamp of popular approval but the President has advantages in the struggle for public attention that are vital in the exercise of his powers. Television, in the coverage it gives to presidential activities and pseudo-activities, provides the President with an opportunity to move and lead the nation. Although we are a nation of shared powers, television projects the message that we are a presidential nation and that message is affecting both popular perceptions and power relationships on the national level.     

Authority over Forests: Empowerment and Subordination in Senegal's Democratic Decentralization

Senegal's 1998 forestry code transfers rights to control and allocate forest access to elected rural councils, ostensibly giving the elected authorities significant material powers with respect to which they can represent the rural population. But the Forest Service is unwilling to allow rural councils to exercise these powers. To retain control, foresters use pressure, bribes and threats while taking advantage of the inability of the rural representatives to influence actors higher up in government. They justify themselves with arguments of national good and local incompetence. The foresters ally with urban‐based forest merchants and are supported by the sub‐prefect. Despite the transfer of forest rights, the foresters continue to allocate access to lucrative forest opportunities — in this case charcoal production and exchange — to the merchants. Despite holding effective property rights over forest, such as the right to exclude others, rural councils remain marginal and rural populations remain destitute. The councils cannot represent their populations and therefore cannot gain legitimacy: they have no authority. Despite progressive new laws, the Forest Service helps to maintain Senegal's healthy urban charcoal oligopsonies, while beating back fledgling local democracy.     

Allies at the End of Empire—Loyalists,Nationalists and the Cold War, 1945–76

ABSTRACT

The wars of decolonization fought by European colonial powers after 1945 had their origins in the fraught history of imperial domination, but were framed and shaped by the emerging politics of the Cold War. Militia recruited from amongst the local population was a common feature in all the counter-insurgencies mounted against armed nationalist risings in this period. Styled here as ‘loyalists’, these militia fought against nationalists. Loyalist histories have often been obscured by nationalist narratives, but their experience was varied and illuminates the deeper ambiguities of the decolonization story, some loyalists being subjected to vengeful violence at liberation, others actually claiming the victory for themselves and seizing control of the emergent state, while others still maintained a role as fighting units into the Cold War. This introductory essay discusses the categorization of these ‘irregular auxiliary’ forces that constituted the armed element of loyalism after 1945, and introduces seven case studies from five European colonialisms—Portugal (Angola), the Netherlands (Indonesia), France (Algeria), Belgium (Congo) and Britain (Cyprus, Kenya and southern Arabia).     

Stiffening Abe: William Pitt Fessenden and the Role of the Broker Politician in the Civil War Congress

The difficult but by no means dysfunctional relationship between President Abraham Lincoln and Congress remains an understudied aspect of Civil War history. Indeed, it is impossible to arrive at a comprehensive or convincing explanation for Union victory until that relationship is limned more precisely. This article contends that U.S. Senator William Pitt Fessenden (1806–69) played a critical mediating role in the wartime Congress. He did so firstly in his capacities as chair of the Senate finance committee and close associate of U.S. Secretary of the Treasury Salmon P. Chase and secondly as a public supporter of executive war powers. Although the influential Maine Republican had serious doubts about the effectiveness of the Lincoln administration, his determination to quash the southern rebellion and considerable powers of self‐restraint enabled him to act as an important and constructive broker between the White House and the fractious Republicans on Capitol Hill.     

Japan's Political Leadership Deficit

Analysts have long pondered the question: 'Who rules in Japan?'. Prime Ministers who have exercised strong leadership have been the exception rather than the rule. Despite the widespread acknowledgment that Japan's political leadership deficit undermines the ability of the government to act swiftly in a crisis and to exercise international leadership in trade and foreign policy, a systematic explanation for Japan's weak political executive is yet to be advanced. While historical and cultural factors cannot be ignored, more relevant in a contemporary context are institutional factors that restrict the power of the Prime Minister and the Cabinet. A parliamentary Cabinet system is not incompatible with strong leadership but, in Japan's case, the inability of the political executive to exercise indisputable authority, or indeed, merely to exercise the legitimate prerogatives of Prime Ministerial and Cabinet Office, is directly attributable to the constraints imposed by a collection of informal power structures within the ruling conservative party and by an autonomous central bureaucracy, all of which have held power away from the political executive. Various institutional remedies are currently being pursued to enhance the leadership of the executive branch. They are part of a deliberately engineered shift in power from non-elected bureaucrats to elected politicians. The reforms will also help to diminish the influence of ruling party factions over personnel selections to executive office and the ascendancy of internal policy cliques within party policymaking.     

The origins of the Brazilian nuclear programme, 1951–1955

In the early years of the atomic era, several developing countries attempted to establish a nuclear programme, yet Brazil's case is less well-known. As new documents show, from 1951 Brazil aimed to acquire the nuclear fuel cycle capability in spite of legislation imposed by the United States to limit the emergence of new nuclear powers. This article will analyse the origins of the Brazilian nuclear programme from 1951 to 1955 and will explore its cooperation in the atomic field with international partners.     

Lincoln as Commander-in-Chief

Abstract

Abraham Lincoln's presidency was defined and dominated by war, yet Lincoln himself had very little direct experience with warfare; nor had the American presidency been truly tested by war when he took office. Lincoln had to negotiate very difficult political and constitutional terrain as he waged the Civil War: issues of executive authority, constitutional powers and their limitations, and the nature of civil liberties during war constantly bedeviled him. His guiding principle in all these matters, and the greatest lesson we can learn from him today, was his flexibility and his pragmatism.     

Powers of a kind: the anomalous position of France and the United Kingdom in world politics

Since the loss of their empires, Britain and France have been seen as states in historical but still only relative decline: no longer great powers but not typical of the large category of middle‐range powers. Despite financial constraints and limited size they retain their status as permanent members of the UN Security Council and continue to display the ambition to exert global influence. At times, London and Paris deal with this anomaly by acting in harness but at others their foreign policies diverge dramatically, not least because of the contrasting domestic traditions from which they emerge, and because of their differing roles within the European Union. This article assesses the capacity of these two notable states to maintain a leading role in international politics given their own uneasy relationship and the significant constraints which they now face, both external and internal. The article is a revised version of the Martin Wight Memorial Lecture, held at Chatham House, London, on 3 November 2015.     

Intelligence bound: the South African constitution and intelligence services

This article explores the functions and impact of the South African constitution in relation to the country's intelligence services. The constitution has proved to be a powerful instrument for transforming, controlling and constraining the services, safeguarding human rights and contributing to the management of political conflicts and crises. Yet the constitution's relevance for the intelligence community is also contested and contradictory. Paradoxically, the executive, parliament and the intelligence services believe that it is legitimate for the services to deviate from constitutional provisions because their mandate to identify and counter threats to national security is intended to protect the constitution. The article contributes to filling a gap in the literature on security sector reform, which is concerned with democratic governance but ignores the role of a constitution in regulating the security organizations and determining the nature of their governance arrangements. Intelligence agencies around the world have special powers that permit them to operate with a high level of secrecy and acquire confidential information through the use of intrusive measures. Politicians and intelligence officers can abuse these powers to manipulate the political process, infringe the rights of citizens and subvert democracy. While a constitution cannot eliminate these risks, it can establish an overarching vision, a set of principles and rules and a range of mechanisms for promoting intelligence transformation and adherence to democratic norms.     

The symbolic purposes of sanctions: Australian and Canadian reactions to Afghanistan

Academic and political debates about international sanctions tend to focus on the instrumental purposes of these measures—their ability to hurt a target state sufficiently to cause it to change its behaviour. By contrast, the symbolic purposes of sanctions are commonly assumed not to be as important. Such assumptions are appropriate for states which have the capabilities necessary to achieve these ends—great powers or regional powers targetting very weak neighbours, for example. But are these assumptions useful in explaining the sanctions policies of non‐great powers, particularly those which impose sanctions against great powers? This paper explores the case of Australian and Canadian sanctions against the USSR after the invasion of Afghanistan and demonstrates the fallacy of such assumptions, and argues that symbolic purposes were much more important than the instrumental utilities normally associated with sanctions theory.     

Of Once and Future Kings: Rethinking the Anglo-American Analogy in the Rising Powers Debate

This paper seeks to advance the so-called rising powers debate of the past 15 years by interrogating its selective use of the past. Key to the debate are the impact of rising powers like China on the international order, and how to accommodate them. Historiography plays a crucial but unappreciated role in the debate, as scholars look to the past to make sense of the future. Especially in the United States, many compare the US now to Great Britain before 1940, the idea being that both faced the same difficulties of decline relative to rising challengers. This is the core case of power transition theory in the field of International Relations. It is also, fundamentally, weak. As I show, it relies on a ‘long chronology’ of British decline that the past quarter-century of historical scholarship on twentieth-century Britain has undermined. I instead propose a ‘short chronology’ of the transition away from Britain that emphasizes agency and contingency over structure and the longue durée. Bringing the work of historians to the rising powers debate thus indicates that the key factors to study are not grand systemic forces, but short-term politics and diplomacy.     

Constitutional change: an explanation

This paper first distinguishes the explicit changes that have been made in the text of the Italian constitution from others that have affected how constitutional balances work (e.g. new electoral laws), before considering both together. The turning point in both cases was 1989 and the transition from the first to the second Italian political party system. Down to that time the first system that originated in the Cold War fractures in Italian politics remained in force with only marginal and incremental changes. After 1989, however, both Italy's highly centralized structure and its system of proportional representation were called into question, resulting in the constitutional reform of 2001 that increased the powers of the regions and the electoral law reforms (which were not changes to the constitution). In both cases the consequences of these changes have proved to be contradictory, which is why reform of the Senate is now being contemplated to make the project for increasing the powers of regional and local government more coherent, as well as the form of government and the electoral laws in ways that will produce the majorities needed to make governments more cohesive and stable.