Presidencialismo: bibliografia complementar

Livros

Legitimacy in the academic presidency: from entrance to exit - Rita Bornstein


Artigos

The Fable of the Nationalist President and Parochial Congress

One of the most widespread contemporary assumptions in the discourse of separation of powers is that while the President tends to have preferences that are more national and stable in nature, Congress is perpetually prone to parochial concerns. This deeply ingrained assumption not only pervades legal scholarly treatment of the administrative state, but it is also used to frame debates about the division of foreign relations powers and the proper scope of judicial review of executive branch agency regulations. This Article examines the three explanations commonly given for the President's more national outlook and introduces institutional considerations that reveal them to be more myth than fact: (1) The President has a broader population and geographic constituency than members of Congress; (2) The fact that members of Congress are elected frequently means that they are more susceptible to special interest or parochial legislation than the President; and (3) The President tends to care more about the overall health of the national economy than Congress does. This Article shows that under the winner-take-all system of our Electoral College, the President will often have an incentive to cater to a narrower geographical and population constituency than that of the median member of Congress. Furthermore, this Article also contends that while the preferences of individual members of Congress may often be short-sighted and parochial, the collective wisdom of these parochial members of Congress will often produce policy outcomes that are more national and public-regarding than that of any single elected official. Finally, this Article critically analyzes the implications of debunking the fable in three areas of public law where it has been particularly pervasive: the unitary presidency, judicial deference to executive branch agency decisions, and the allocation of international trade authority.

How the Separation of Powers Doctrine Shaped the Executive

At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for second term, removing the Executive, devising the Executive veto, requiring legislative advice and consent for executive appointments, authorizing the Executive to grant reprieves and pardons, and making the Vice President the President of the Senate.

The Article demonstrates that much of the discussion centered on allocating power between the Legislative and Executive branches and thus really amounted to a struggle over defining the nascent office of the Executive. It thus offers the historical background for today's debates over separation of powers. For the Founders, separation of powers served not as a rigid rule, but as a functional guide, designed to help construct a working constitution with a workable executive branch.


The Limits of Executive Power

The construction of the presidency and the allocation of legislative and executive powers can be understood only by an examination of the historical experiences that influenced the Framers. Prominent among these were the preceding two centuries of constitutional developments in England which critically influenced the allocation of executive and legislative power in the Constitution. The central lesson of these historical experiences was that proscriptive legislative restraints on executive power were necessary but not sufficient to prevent autocracy. any of the English proscriptions on the exercise of executive power were included in our Constitution, but there was also a massive transfer of previously held executive power to the legislature. Most of the prerogatives that had been exercised by the King were vested completely in Congress, prohibited to the President, or omitted altogether from the Constitution. Of the small number delegated to the Executive, only one was the same as its royal counterpart; the others were more limited or structurally shared with the Legislative Branch.

I examine this history in detail and apply its underlying principles to develop a general theory of presidential power. In lieu of creative but ultimately inconclusive arguments over indefinite powers that are said to be “executive” in nature, implied powers should be tied to, and derived from, the powers expressly vested in the President in Article II. I refute the propositions that the Vesting Clause is a residual source of plenary executive power and that there is a presidential “completion” power. I apply and elaborate on these principles in the context of the President’s two most important implied powers - executing the laws and developing and implementing foreign policy. The President has broad discretion in choosing how to exercise these powers, but they are not plenary in nature. They are subject to three basic limitations: (1) the President may not, without congressional authorization, use these powers to change domestic law or create or alter existing legal obligations; (2) these powers are subject to regulation by Congress; and (3) in the event of a conflict between the exercise of these powers and congressional legislation, the latter prevails. Finally, I argue that these limits on presidential power have continuing validity despite the enormous changes in the country since these principles were established. We are now in much the same situation as England in the 18th century - the real power of the Executive is much greater than its nominal legal power. Although the Framers viewed the President as a necessary check on an otherwise dominant Congress, the present reality is now the reverse. The Executive has become the most powerful branch of government. There is no reason to adopt legal theories that would further enhance executive power.


Like Day and Night? Party Unity in Legislative Voting in Parliamentarianism and Presidentialism

Using statistical methods (e.g. Praise-Winsten regression with panel corrected standard errors and binary logistic regression) common hypotheses about party unity in parliamentarian and presidential regimes are tested. For this purpose I use an extensive compilation of data on party unity in democracies. Parliamentarianism proves to be a (nearly) sufficient condition for high party unity. Presidentialism turns out to be a necessary condition for low party unity. But to suppose that there is always no or little party unity in presidentialism is wrong. It is hard to imagine modern democracies without parties and in modern democracies agenda-setting in legislatures is dominated by the governments. The condition “presidentialism vs. non-presidentialism” remains to have the biggest explanatory power for the differences of party unity in different countries. Competition between candidates of the same party during national elections (whereby the authority of party leadership is constricted) explains a great deal of the large variation of party unity in presidential democracies. In parliamentary democracies, however, this factor has no effect as a non-presidential government nearly guarantees a high level of party unity.


The Fusion of Presidentialism and Parliamentarism

No question of constitutional design is more intensely debated than whether emerging democracies should adopt presidential or parliamentary systems. This is an important debate but it misses a critical point about constitutional design - namely that the structural differences between presidentialism and parliamentarism conceal much more than they reveal. In this Article, I demonstrate precisely how conventional accounts of the structural differences between presidentialism and parliamentarism actually obscure their functional similarities.

Separation of Parties, Not Powers

Few aspects of the Founding generation's political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers. Nevertheless, few of the Framers' ideas continue to be taken as literally or sanctified as deeply by courts and constitutional scholars as the passages about interbranch relations in Madison's Federalist 51. This Article reenvisions the law and theory of separation of powers by viewing it through the lens of party competition. In particular, it points out that during periods - like the present - of cohesive and polarized political parties, the degree and kind of competition between the legislative and executive branches will vary significantly, and may all but disappear, depending on whether party control of the House, Senate, and Presidency is divided or unified. The practical distinction between party-divided and party-unified government thus rivals, and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics. Recognizing that these dynamics will shift from competitive when government is divided to cooperative when it is unified calls into question basic assumptions of separation of powers law and theory. More constructively, re-focusing the separation of powers on parties casts numerous aspects of constitutional structure, doctrine, and institutional design in a new and more realistic light.

When the President Says No: Veto Bargaining and Rhetoric

Although formal theories have posited commitment and coordination models characterizing the importance of veto threats, the empirical analysis of threat behavior and its impact on policy outcomes, and lawmaking more generally, remains a critical question. This analysis tests Krehbiel’s key claims from policy gridlock on the use of veto threats, legislative outcomes, and constitutional signing statements. The model results illustrate how features of the legislative environment, like the salience and type of policy, as well as changes in the gridlock interval, affect veto threat behavior and the likelihood of legislative failure. In addition, the findings suggests that the constitutional signing statement can be used by presidents to move policy closer to their preferred position at the end of veto bargaining. The analysis highlights evidence that presidents do systematically employ both coercive and unilateral strategies in veto bargaining.




Rulemaking and the American Constitution

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise. As is well known, rulemaking employs distinct public procedures, and judicial review of the validity of the resulting regulations is considerably more intense than would occur of the validity of legislation. The working assumption, however, is that rulemaking decisions are made by particular agencies responsible for the precise matters at issue, on the basis of what they expertly know and of the information and views they have received in the course of the public process. In recent decades, presidential oversight of this process has steadily intensified. Former President Bush strongly claimed a right not just of oversight, but of decision as the single politically elected official of our executive branch. The result has been both to concentrate considerable power in one place, in tension with American ‘checks and balances’ ideas, and to render rulemaking an increasingly political rather than ‘expert’ activity. The paper explores these trends and conflicts.

Strategy and the President's Legislative Policy Agenda: From Proposing Legislation to the Congressional Response, 1789-2002

Debate exists over whether presidents are sincere or strategic in submitting their legislative proposals to Congress and the implications of strategic versus sincere behavior on presidential success with Congress. This paper tests for strategic behavior in presidential proposing to Congress and the effects of that strategic behavior on subsequent congressional action. I develop two strategic hypotheses regarding presidential proposals, an expectation of success (defeat) and a presidential blame game hypothesis. Using data on presidential proposals from 1789-2002, analysis demonstrates support for both strategic hypotheses. Part two of the paper tests for the impact of strategic proposing on success with Congress. That analysis finds that the effect of divided government declines by about one-half after controlling for strategic presidential behavior, an effect consistent with the strategic proposing model. Second, I also test Cameron and Park's (2008) strategic burden sharing model, again finding strong support for this strategic behavior model. The conclusion discusses the implications of the findings on our understanding of presidential-congressional relations.

The Three Presidencies? Legislative Position-Taking in Support of the President on Domestic, Foreign, and Homeland Security Policies in the 107th Congress (2001-02)

Following the 9/11 terrorist attacks, a new and salient issue dimension at the nexus of domestic and foreign policies emerged in U.S. politics: homeland security. Given this changed policy agenda in Washington, we suggest that there are no longer two presidencies, but instead three presidencies: the domestic policy presidency, the foreign policy presidency, and the homeland security presidency. We examine the three presidencies hypothesis during the 107th Congress (2001-02) by looking at legislative statements about the president communicated to constituents by members of the House. Lindsay and Steger (1993) have noted that research on the two presidencies needs to move beyond roll-call analysis, and we heed their call by utilizing a new and unique data set of franked mailings sent to constituents. Specifically, we answer the following research questions: (1) Did legislators in the 107th Congress (2001-02) more frequently mention the president's policies on homeland security policy, domestic policy, or foreign policy in their franked mailings to constituents? (2) Was there a partisan divide in support of the president across these three policy dimensions in legislators' franked mailings? (3) Do positions of presidential support articulated in franked mailings translate into actual roll-call support? We find that there are three policy areas in which members of Congress mention the president when communicating with their constituents, and that legislators frequently discuss both domestic and homeland security policies of the president, though not foreign policy. By using this unique data source to address these research questions, we are able to develop a fuller sense of legislators' perceptions of the salience of particular issues in their districts and these perceptions' relationships to presidential support during the 107th Congress (2001-02).


Legislative Supremacy in the United States?: Rethinking the 'Enrolled Bill' Doctrine

This Article revisits the "enrolled bill" doctrine which requires courts to accept the signatures of the Speaker of the House and President of the Senate on the "enrolled bill" as unimpeachable evidence that a bill has been constitutionally enacted. It argues that this time-honored doctrine has far-reaching ramifications that were largely overlooked in existing discussions. In addition to reexamining the soundness of this doctrine's main rationales, the Article introduces two major novel arguments against the doctrine. First, it argues that the doctrine amounts to an impermissible delegation of both judicial and lawmaking powers to the legislative officers of Congress. Second, it establishes that this doctrine is inextricably related to the traditional English concept of legislative supremacy. Although the doctrine was never explicitly linked to legislative supremacy in the United States, this Article argues that it amounts, in effect, to a view of the legislative process as a sphere of unfettered legislative supremacy, immune from judicial review. The Article argues, therefore, that the doctrine is incompatible with the U.S. Constitution.


How the President and Senate Affect the Balance of Power in the House: A Constitutional Theory of Leadership Bargaining

Can the President or the Senate affect the balance of power in the House? We find that they can. Our answer comes from a model that links House leadership decisions to the constitutional requirement to build lawmaking coalitions with the Senate and President. Changing the ideal point of a non-House actor, while holding constant the ideal point of all House members, can alter the House's balance of power. Power shifts because changes in the Senate or President can reshape the set of achievable legislative outcomes, which, in turn, alters the bargaining power of key House members. A corollary clarifies when empowering preference outliers (policy extremists) in the House leads to legislative outcomes that moderates prefer. Overall, our theory clarifies how constitutional requirements induce House members to make different leadership decisions than they would if they were, as commonly represented, unaware of other chambers or branches of government.



Between Constitutional Diffusion and Local Politics: Semi-Presidentialism in Portuguese-Speaking Countries

This paper analyzes the systems of government adopted since the start of the 1970s in all but one Portuguese-speaking countries (Angola, Cape Verde, Guinea-Bissau, Mozambique, Portugal, São Tomé and Príncipe, and East Timor). Taking Portugal as a reference, we pose the following questions: Is there a lusophone semi-presidential model? How does semi-presidentialism works in those seven countries? We claim there is a lusophone “brand” of semi-presidentialism. To test the validity of our claim we show that the similarities identified within lusophone countries hold up once compared with both European and francophone sub-Saharan semi-presidential regimes. As for the functioning of the lusophone regimes, our data indicates that most of them display a kind of diarchic competition – either because presidential powers, although considerable, do not overwhelm those of the cabinet, or because although the president’s powers are extensive, party fragmentation prevents these from being exercised effectively. The paper also takes issue with Siaroff and Van Cranenburgh’s contention that the concept of semi-presidential regime is useless for the analysis of presidential power. On the evidence provided by lusophone countries, we argue that semi-presidentialism is a useful category. Thus, the analysis of this group of countries also sheds light on important theoretical debates in comparative politics.

Power Asymmetries and the Origin of Constitutions: Latin America 1987-2009

This paper explores the origins of constitutions, and within them, levels of power concentration in the Executive branch. By looking at the 10 cases of constitutional rewrite in Latin America and several cases of aborted change since the 1980s, I develop a theory of constitutional change based on the notion of power asymmetries, defined as the power differential between incumbents and opposition forces at the negotiations. Under conditions of reduced power asymmetry, i.e., when both incumbents and opposition forces enjoy comparable levels of power, constituent assemblies are more likely yield constitutions that curtail presidential powers relative to the status quo. When the opposition is weak, assemblies will instead expand presidential powers. When the incumbent is weak, he or she will abort the process of constitutional rewrite. I conclude with a brief discussion of how this finding challenges some structuralist prescriptions for democratic renewal.

The Value of Coalitions in Multiparty Regimes: Policymaking in Brazil and Ecuador

Brazil and Ecuador have mostly similar institutional arrangements but have produced significantly different policy outcomes. Both countries are conventionally known as having highly fragmented party systems, where legislators have great incentives to cultivate a personal vote thanks to the workings of a personalized electoral system. Presidents are perceived to be strong and to make large use of government resources in order to advance their agenda. Yet, policies in Brazil are more likely to respond to shocks and to be more stable over time than policies in Ecuador, where policies remain vulnerable to subsequent political changes. This variation of policy outcome has to do with the policymaking ability of presidents to enhance political cooperation and to develop intertemporal political transactions; the availability of valuable coalition currencies; and the extent to which such transactions are credible and effectively enforced.

Pork for Policy: Executive and Legislative Exchange in Brazil

The Brazilian Constitution of 1988 gave relatively strong powers to the President. We model and test Executive-Legislative relations in Brazil and demonstrate that Presidents have used pork as a political currency to exchange for votes on policy reforms. In particular Presidents Cardoso and Lula have used pork to exchange for amendments to the Constitution. Without policy reforms Brazil would have had greater difficulty meeting their debt obligations. The logic for the exchange of pork for policy reform is that Presidents typically have greater electoral incentives than members of Congress to care about economic growth, economic opportunity, income equality and price stabilization. Members of Congress generally care more about redistributing gains to their constituents. Given the differences in preferences and the relative powers of each, the Legislative and Executive benefit by exploiting the gains from trade.