Presidential Leadership & the Separation of Powers

Daedalus ◽  
2016 ◽  
Vol 145 (3) ◽  
pp. 35-43
Author(s):  
Eric A. Posner
Keyword(s):  
Separation Of Powers ◽  
Presidential Leadership ◽  
Executive Branch ◽  
Complex Nature ◽  
Leadership Roles ◽  
Checks And Balances

The presidents who routinely are judged the greatest leaders are also the most heavily criticized by legal scholars. The reason is that the greatest presidents succeeded by overcoming the barriers erected by Madison's system of separation of powers, but the legal mind sees such actions as breaches of constitutional norms that presidents are supposed to uphold. With the erosion of Madisonian checks and balances, what stops presidents from abusing their powers? The answer lies in the complex nature of presidential leadership. The president is simultaneously leader of the country, a party, and the executive branch. The conflicts between these leadership roles put heavy constraints on his power.

scholarly journals Separation of powers as a principle of organization and activities of executive authorities in the Russian Federation

2021 ◽  
Vol 7 (2) ◽  
pp. 510-518
Author(s):  
Vitaly Viktorovich Goncharov ◽  
Iurii S. Shpinev ◽  
Diana I. Stepanova ◽  
Oleg N. Malinovsky ◽  
Sergey A. Balashenko ◽  
...  
Keyword(s):  
Russian Federation ◽  
Separation Of Powers ◽  
State Power ◽  
Executive Branch ◽  
Checks And Balances ◽  
Important Principle ◽  
The Russian Federation ◽  
Constitutional Analysis

This article is devoted to constitutional analysis of the most important principle of organization and activity of executive authorities in the Russian Federation - separation of powers.  The authors developed and justified the concept of an expanded understanding of the principle of separation of powers, with its reduction not only to the functional separation of state power between various levels of government (including within the executive branch), but with the development of a mechanism of checks and balances and the need to change the constitutional balance of priorities of the branches of government. 

scholarly journals Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Judicial Review ◽  
Legal Theory ◽  
Separation Of Powers ◽  
Vice President ◽  
Executive Branch ◽  
Political Accountability ◽  
Regulatory Oversight ◽  
Checks And Balances ◽  
Oversight System ◽  
Domestic Affairs

This article examines, in light of the competing Reagan-Bush and Clinton models of presidential regulatory oversight, whether “categorical separationism,” as a theory of constitutional law, promotes political accountability. The Reagan and George H.W. Bush administrations adopted a legal theory that, with a few explicit exceptions, the Constitution contemplates a stark compartmentalization of government powers as legislative, executive, or judicial; once a power is found to be executive, neither Congress, nor court may limit it. This reasoning culminated with the activities of the now-defunct President's Council on Competitiveness, headed during the Bush Administration by Vice-President Dan Quayle. The Council vigorously advocated a theory of the executive branch in which the President's policy roles, even in domestic affairs, are broadly discretionary, dischargeable in secret, relatively immune to congressional scrutiny, and subject to judicial review only in rare instances. Conversely, Executive Order No. 12,866, President Clinton's successor to the Reagan-Bush oversight system, pays significant deference to a theory of separation of powers more attentive to checks and balances—the idea, in particular, that Congress is first among co-equals in domestic policy making and that the Founders expected the three branches of our national government to hold one another to account. This article argues that the Clinton model of regulatory oversight promised a significant gain in political accountability. In essence, its promised diffusion of authority did not weaken accountability, but strengthened it.

scholarly journals The mechanism of checks and balances as a method of constitutional conflicts solving: comparative law issues

2018 ◽  
Vol 2 (4) ◽  
pp. 43-50
Author(s):  
I. Tretyak
Keyword(s):  
Public Relations ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Legal Analysis ◽  
Legal Tradition ◽  
Checks And Balances ◽  
Functional Balance ◽  
Legal Method ◽  
Legal Coercion ◽  
Law Making

The subject. The paper is devoted to legal analysis of category “checks and balances” in the scope of constitutional legal coercion.The purpose of the paper is to confirm or disprove hypothesis that mechanism of checks and balances is a method of prevention and resolution of constitutional conflicts.The methodology of the study includes comparative legal method as well as general scientific methods (analysis, synthesis, description) and particular academic legal methods (for-mal-legal method, interpretation of legal acts).The main results and scope of their application. While the Russian legal tradition focused on the search for optimal "checks" and "balances" as well as defended the theoretical model of formalism in this matter, the English legal tradition, on the contrary, focused on finding the optimal functional balance of all branches of government. The system of checks and balances serves the purpose of resolving constitutional and legal conflicts, when it is based on a functional approach rather than a formal one. The factors of “checks and bal-ances” mechanism are:– formation of the three branches of government in different ways;– comparability of powers of the Supreme authorities belonging to various branches of the powers with discrepancy of terms of their powers;– authorities of every branch of government must have "counterbalance" – the powers of compensatory, substituting type – besides it’s traditional powers. The executive and legislative authorities have "quasi-judicial" powers, the executive authorities have "quasi-legislative" powers often.– authorities of every branch of government must have "checks" – possibility to participate in the mechanism of constitutional and legal coercion in relation to another branch of the power.The executive branch can prevent a constitutional conflict generated by a gap or defect of laws through delegated law-making. The executive branch receives "quasi-legislative" powers with delegated law-making. It allows this authorities not only to respond promptly to changing public relations, but also to fill legislative gaps in a timely manner. This "counter-balance" is aimed at preventing constitutional and legal conflicts.Conclusions. The mechanism of checks and balances, which is based on the principle of separation of powers, is the primary way to prevent constitutional and legal conflicts, and also serves the purpose of resolving conflicts that have already arisen. The main manifestations of this function are the presence of compensatory and substitutive powers of various branches of government and the possibility of one branch of government to participate in the mechanism of constitutional and legal coercion in relation to another branch of government.

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.

Dangerous Liaisons

2017 ◽  
Author(s):  
András Sajó ◽  
Renáta Uitz
Keyword(s):  
Executive Branch ◽  
Individual Liberty ◽  
Checks And Balances ◽  
Functional Distribution ◽  
Governmental Functions ◽  
Private Actors ◽  
Divided Powers

This chapter examines the idea of separating distinct governmental functions into at least three branches (horizontal separation) as a means to safeguard individual liberty. The three branches of government have different functions: the legislature legislates, the executive branch executes the laws, and the judiciary administers justice. This corresponds to the functional distribution of essential governmental tasks and competences. The chapter explores how governments based on separated (or at least divided) powers work, in a perpetual balancing exercise as a result of the operation of checks and balances. Finally, it discusses independent agencies that are now routinely added to the old constitutional mix of powers and the problem of outsourcing public powers to private actors.

scholarly journals An Attack on the Separation of Powers? Strategic Climate Litigation in the Eyes of U.S. Judges

2021 ◽  
Vol 13 (15) ◽  
pp. 8335
Author(s):  
Jasmina Nedevska
Keyword(s):  
Social Sciences ◽  
Climate Change ◽  
United States ◽  
Separation Of Powers ◽  
The United States ◽  
Checks And Balances ◽  
Climate Politics ◽  
The Social ◽  
Domestic Courts ◽  
Research Plan

Climate change litigation has emerged as a powerful tool as societies steer towards sustainable development. Although the litigation mainly takes place in domestic courts, the implications can be seen as global as specific climate rulings influence courts across national borders. However, while the phenomenon of judicialization is well-known in the social sciences, relatively few have studied issues of legitimacy that arise as climate politics move into courts. A comparatively large part of climate cases have appeared in the United States. This article presents a research plan for a study of judges’ opinions and dissents in the United States, regarding the justiciability of strategic climate cases. The purpose is to empirically study how judges navigate a perceived normative conflict—between the litigation and an overarching ideal of separation of powers—in a system marked by checks and balances.

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.

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