Post-Ackerman thoughts on Separation of Power: Understanding Calabresi, Skach, Levinson-Pildes and Albert

Post-Ackerman thoughts on Separation of Power:

Understanding Calabresi, Skach, Levinson-Pildes and Albert

M Jashim Ali Chowdhury

PhD Candidate (Legislative Studies), King’s College London, UK

Published in the SCLS Law Review, Vol 3 No 1 Jan. 2020, pp 49-57

1. Introduction

Yale maestro Bruce Ackerman wrote his famous 93-page thesis on New Separation of Power in Volume 113, No. 3 of the Harvard Law Review in the year of 2000. Since then the theory has drawn unprecedented curiosity in academic arena. One of Ackerman’s former students at Yale, Steven G. Calabresi questioned him through a 55-page “Why Ackerman is Wrong” thesis in the Constitutional Commentary Volume 18, No. 1 the next year.[1] Six years later, in 2007, Professor Cindy Skach of Harvard Law School came out with a 29-page thesis on “Newest” Separation of Power in the International Journal of Constitutional Law (I.CON).[2] Ackerman attacked the U.S. model of Separation of Power and proposed a British-German influenced version of Constrained Parliamentarianism. Calabresi would vigorously defend the U.S. Presidentialism. Skach would rather propagate a French influenced version of Semi-presidentialism feeding his “Newest” Separation of Power.

Skach’s ‘Newest’ propositions on Separation of Power was followed by Daryl J Levinson of Harvard Law School and Richard H Pildes of New York University Law School. Levinson and Pildes did not propose new theory of Separation of Power. In a very well acclaimed paper – Separation of Parties, not Powers - in Harvard Law Review Vol 119, No. 1 (2006)[3], they argued for including political parties within the Separation of Power discourse. 

In 2009 - three years after Levinson-Pildes’ Separation of Party thesis - a younger scholar Richard Albert of University of Texas Austin took upon the baton therefrom to argue that our preoccupation with parliamentarianism vis-à-vis presidentialism is too simplification of a complex scenario.[4] Albert fine-tuned his arguments in a 2010 publication in International Journal of Constitutional Law. Albert argued that each of the US styled presidentialism, UK styled conventional parliamentarianism, German styled constrained parliamentarianism and French styled semi-presidentialism has features that realise the values of separation of power in varying degrees. In addition to this, Albert supplemented his thesis by advocating a culture specific, creative, consociational and conciliatory approach towards separation of power.[5] Iraqi constitution of 2004 constituted the bedrock for Albert’s thesis. He was later supported by an empirical study of José Antonio Cheibub, Zachary Elkins and Tom Ginsburg.[6]

Like the previous one, this Research Note is not critical or analytical. It is rather an exploratory or descriptive attempt to introduce the beginners in legal studies with modern thinking on Montesquieu[7] and Madison[8] and their theory of Separation of Powers and Checks and Balances. Apart from telling what the contemporary scholars of Separation of Power think, this article does not attempt an argument of its own. As a follow up of my note on Bruce Ackerman’s New Separation of Power in the last issue of SCLS Law Review, I propose to explain the thoughts of Steven G. Calabresi, Cindy Skach, Daryl J Levinson and Richard H Pildes and Richard Albert in this attempt. 

 

2. The reasons Calabresi thinks Ackerman wrong

Steven Calabresi has a ten-point reservation to Ackerman’s - and also Linz’s[9] - preference of constrained parliamentarism over the U.S. presidentialism.[10]

Firstly, calendared and periodic elections in the U.S. reflect the public opinion more accurately and on a continuing basis. The German and UK system of one shot every five or four year for both executive and legislature fails to reflect the public opinion severely. Also, a parliamentary government’s scope to schedule election on a suitable occasion of public sentiment degrades the quality of such democratic opinion seriously.[11]

Second, the U.S. system is more stable than the proportional representation based parliamentary system. There, smaller partners of the coalition government constantly pose existential threat for the government. In such cases Ackerman’s suggestion for a 5 percent – or even 10 percent – vote threshold for smaller parties to join the government would not be a very big hurdle to overcome in a polarised political atmosphere.[12] Introduction of a ‘constructive vote of no confidence’[13] will not solve the problem either. Ackerman’s suggestion of introducing a constructive vote of no confidence may be able to prevent frequent fall of government but it would not prevent blockage and obstruction of legislative program of a minority government by the smaller parties.[14]

Third, an indirectly elected Chancellor or PM would be enjoying less democratic legitimacy than a U.S. president directly elected by the people.[15] However, Calabresi’s argument on this point seems to ignore the reality of bipartisan leadership campaign and electoral politics recently evolved across parliamentary systems. As will be argued later by Richard Albert, parliamentary systems are adopting some of the presidential values and the vice-versa.

Fourth, there being no spoilt system of political appointments in the bureaucracy, Prime Minister’s hand would remain tied compared to the president of the U.S. Exposure of professional decision-makers to their civilian superiors in the U.S. administration is more democratic and accountable.[16] Risk of institutional capture by non-political bureaucrats is less likely in the U.S. It is however important to note that Calabresi is dealing the German model of parliamentary government, not the degenerated versions of prime ministerial dictatorships that has evolved in some of the newer Westminster traditions. 

Fifth, the U.S. system is more congenial to a two-party system than the German system of constrained parliamentarianism. The U.S. presidentialism is more likely to moderate the political discourse within two principal streams of thoughts and action.[17] Proportional representation system, on the other hand, feeds more chances of democratic breakdown than the U.S. system. Ackerman seems to accept the point when he terms it ‘a disastrous error’ to combine presidential democracy with proportional representation. A fragmented legislature would invite a presidential excesses and political fragmentation.[18]

Sixth, presidential system contains an ‘anti-ideological’[19] element that posters politics of personality over intensely divisive ideologies. It would help people set aside their attention from too much ideological heats.[20] Also, the election not being held at the calling of political elites at the moments of confusion and sensation, democratic opinion in the U.S. would better reflect practical issues over ideological rhetoric.[21]

Seventh, presidential system of separation of power is more congenial to the system of judicial review. Courts in fused parliamentary systems have to deal with politically and institutionally intimidating issues and behave cautiously.[22]

Eighth, within a federal set up, the U.S. system of two co-equal houses of Congress better protects the administrative regions and units than a ‘one-and-a-half house’[23] parliament would do.[24] An ideal federal regime should guarantee states and provinces - who might be in the minority in the lower house - a protection from the whims of the overall majority there. A disempowered upper house like Bundesrat or House of Lords would fail to protect the states’ interest in the same way as the U.S. Senate would do.[25] UK’s current dilemma with Scottish inclination for remaining with the EU might be a good case to look in Calabresi’s support.

Ninth, in time of war, the U.S. presidency would appear stronger than the most parliamentary regimes where coalition governments would show fragility and indecisiveness.[26]

Tenth, while Ackerman feels that the U.S. system is too much entrenched, Calabresi sees it as the peoples’ distinct preference for divided government, split control of the legislature and executive which Ackerman might not share.[27] Moreover, better entrenchment of the system would bring better protection for individual rights[28] and better protection against democratic breakdown. Refuting Ackerman’s accusation that presidential systems are more prone to backsliding, Calabresi refers to the studies of Shugart and Carey. It shows that while 52.2% of the presidential regimes broke down in less developed countries, rate of breaking down for parliamentary regimes stands at 59.1%.[29]

2.1. Why do Presidential systems break down then?

Considering the ten-point defence of the U.S. presidentialism vis-à-vis the German constrained parliamentarianism, Calabresi would need to answer why the U.S. presidential model exported elsewhere causes constitutional break down. After all, Ackerman was not advocating the abolition of presidentialism in the U.S. He was rather defending the constrained parliamentarism as a better product to sell. In this regard, Calabresi offers a five-point difference between the U.S. Presidentialism and the rouge presidentialism systems that might evolve in the receiving set up.

First, American presidents do not have decree issuing, ordinance making or emergency powers in the way of some dictatorial presidential systems have.[30] Second, the U.S. presidents face a very strong legislative leadership, committee system and check on the executive appointments. Presence of such a ‘powerful quasi parliamentary government’ constraints the president and his staffs more than the faulty presidential systems elsewhere.[31] Thirdly, the U.S. president lacks the power to bypass the Congress and initiate drastic constitutional change through referenda. Dictatorial presidents around the globe have used referenda to subdue the legislature and move ahead towards dictatorship.[32] Most recent example of Russian President Vladimir Putin proposing referenda for his new constitutional plan and calling upon the prime minister and government to resign appears a good testimony for Calabresi. Fourthly, individual U.S. presidents are limited by a two-term rule which is invariably absent in the rouge presidential systems elsewhere.[33] Fifthly, calendared electoral system of the U.S. works in favour of divided party control in Presidency and Congress,[34] while most of recipient states quickly move towards one party monopolisation and ultimately a one-person rule.

Given the reasons, Calabresi claims that democratic back-sliding in presidential systems elsewhere is not a fault of the U.S. system in itself. Rather the U.S. system is ‘not the kind that many foreign countries have adopted’.[35] Ackerman’s touting of the German-style constrained parliamentarianism as a better product to sell is therefore not acceptable to Calabresi.

3. Cindy Skach’s “Newest” Separation of Powers

Bruce Ackerman and Calabresi’s confrontation over the comparative niceties of constrained parliamentarianism and U.S. presidential system dragged Cindy Skach into the arena. Skach took a middle ground and argued that the French styled Semi-presidentialism actually constitutes the ‘Newest form’ of Separation of Power.[36]

Semi-presidentialism is full of risks. It divides the executive authority between president as head of the state and prime minister as head of the government. While the power sharing between the two remains to be neatly and carefully outlined by the constitution, there is of course always a risk of constitutional ambiguity, constant tension.[37] Within the system, the president remains an autonomous relative of the Legislature whose independent mandate from the people might give rise to friction in legislative arena as well.[38]

Drawing upon forty years of French experience with semi-presidentialism, Skach agrees that prediction of the system’s smooth functioning is difficult.[39] Presidential tendency to rely too much on his personality cult to outshine the prime minister[40] and usurp the legislative authority under the cloak of referenda and emergency decrees might pose an existential threat to the whole system. The legislature in response may try to veto down the presidential move. Constitutional court may attempt to invalidate the move. Still, the presidential influence and authority may already make things difficult for the judiciary and legislature in such cases of tension.[41] Keeping the problems in mind, Skach offers a three-scenario assessment.

First, there may be a situation of consolidated political majorities where president and prime minister would belong to the party that holds the majority in parliament. Skach argues that this is the least risk-prone subtype of semi-presidentialism where the party and its policies would keep a control over the president and create a balance.[42] Curiously, the same situation is seen as a high-risk situation (unified party government) by Levinson and Pildes in their Separation of Political Party thesis. Levinson-Pildes thesis discussed in the next part of this note, however deal with the U.S. Presidential model of Separation of Power based on confrontational Checks and Balances between the executive and the legislature. Compared to that, Skach’s model is Semi-presidentialist that requires cooperation more than confrontation within the divided executive.

Second, there may be another situation of divided political majority where a stable and coherent party majority in the legislature exists but the president belongs to an opposition party in parliament. The divided majority scene is known as cohabitation in France. This invites more institutional conflict between the president and the prime minister supported by parliament.[43]

Third, the most conflict-prone subtype of Semi-presidentialism is divided minority where neither the president nor the prime minister nor any other party or coalition have majority in the legislature. In Ackerman’s term, it is a lack of ‘full authority’. In such cases, presidents tend to overcome the deadlocked and feeble legislature by initiating adventurous inroads into others’ jurisdiction. Skach’s study shows how the post-World War I Weimar Republic of Germany and post-communist Russia were affected by this divided minority syndrome. The Fifth Republic of France had gone through the periods of divided minority and divided majority before attaining a stable consolidated majority.[44]

3.1 Skach’s stabilising tools for Semi-presidentialism

Pointing out the dangers within the system, Skach next attended the solutions. For him, stabilising tools within a semi-presidential system are two-fold. Firstly, we would need to nurture an environment that would poster a consolidated majority situation. To this end, party system would be institutionalised and regularised so that political formations do not show instability after successive elections. The more parties are institutionalized, the more they structure the political process.[45] Secondly, electoral system would be designed in the first-paste-the post pattern. Consolidated majority is more likely in majority voting systems than the proportional ones.[46] Thirdly, presidential candidates must come from party nominations. Presidents drawn from “party” line would be supported by and supportive of political parties. Presidential candidates who act as independent, non-party personalities are more likely to take advantage of their constitutionalized autonomy in this system.[47]

4. Levinson and Pildes on ‘Separation of Parties’

Unlike Ackerman, Levinson and Pildes did not compare the presidentialism with parliamentarianism. Their focus was on supplying the Madisonian omission of political parties in the SoP discourse. Architect of the U.S. Separation of Power James Madison professed that three separate organs of the state have some “wills of their own” which needed to be counter-balanced against each other. What is absent in Madison’s sketch was how the will of the men in charge of those organisation be reconciled against the will of the organs and also the men in other organs. It is not clear how interests of actual public officials would be channelled into the mandates of respective branches. When Madison was devising the system, it was largely apolitical. Political parties emerged and conquered the system later on.[48] Under the present reality of party governments, therefore, we must also talk about separation of parties when we talk about separation of power. The U.S. system may face Unified and Divided party governments over times.[49] Party division and party unification in the control of the branches have strong ramifications for the system.[50] Even intra-party disparities in policy preferences would influence how the organs interact each other.[51]

4.1. Stabilising tools for Unified and Divided Party Governments

During a strongly unified government and cohesive political parties, the ‘branch-based thesis’ of Madison may go astray. In such a situation, inter-branch checks and balances remain at a minimum and the very basic standard of checks and balances may travel wrong directions.[52] The current Trump Impeachment in the U.S. Senate may constitute the most glaring evidence for Levinson-Pildes thesis.

Like Skach, Levinson-Pildes take a preventive approach as a first resort. To deal with the unified party government phenomena, we would need to prevent strongly unified government from emerging in the first place. This can be done by fragmenting or moderating political parties and by using legal rules and institutions.[53] Safe districting of Congressional seats and designing primary elections, rewriting the parties internal control laws, limiting the scope of party whipping within the Congress (like introduction of seniority system for allocation of committee chairs) and redistribution of power among a larger number of more independent congressional committees might be some of the strategic tools towards that end.[54]

On the second stage of the process, in case a unified party government is there, Levinson-Pildes would draw from “opposition rights” notion in parliamentary democracies. These would include the opposition’s power to initiate debate, legislative proposal, enforce disclosure, the power to initiate investigations, to ensure accountability through subpoena, or to control audit or finance oversight committees. Debate rules, like filibuster may also serve the cause of a responsible unified party government.[55]

Extra-parliamentary tools to curb a unified party government would include the independence of bureaucracy from partisan political pressures,[56] establishment of bureaucracy as a “fourth branch” institution of government and looking for stringent internal checks and balances within the bureaucracy.[57]

5. Richard Albert’s Hybrid Regimes

In the first of his two papers – Fusion of presidentialism and parliamentarism, Albert argues that our conventional lens of presidentialism v. parliamentarianism is too simple.[58] Experience suggests that the democratic states may survive effectively under either of the parliamentary or presidential systems.[59]

Firstly, elements may be shared between both the systems that may give birth to hybrid forms of presidential parliamentarism and of parliamentary presidentialism.[60] Say for example, the UK Fixed Term Parliament Act seeks to achieve results more or less similar to the electoral design of fixed calendar in presidential system. Again, the Germany would require the parliament to express no confidence and then request new election.[61] This constructive vote of no confidence would effectively remedy the instability caused by destructive vote of no confidence in a typical parliamentary system. Again, impeachment like result may be achieved in parliamentary systems by legally disqualifying the removed prime minister from coming back to the power.[62] On the other hand, presidential systems (like Slovakia) may opt for legislative no-confidence in the President.[63] Again, while the parliamentary system is usually considered efficient in governing, coalition or minority governments may create legislative impasse like presidential systems.[64] Alternatively, a unified majority presidential system may achieve efficiency comparable to the parliamentary system.[65]

Secondly, if the purpose of the U.S. Separation of Power is prevention of government tyranny, legislative supremacy and arbitrary government and also assurance of efficiency in governance,[66] Albert argues that all of the three other systems – UK’s conventional parliamentarism, Germany’s constrained parliamentarianism and French Semi-presidentialism - do have mechanisms to achieve these goals in alternative ways.[67]

While the UK system is a separation between the parliament and crown, it does foster tension between the court and parliament and between the government and parliament. Governmental accountability is ensured through the combined operation of popular and parliamentary controls. Constrained parliamentarianism on the other hand emphasises more on the power of opposition parties to publicly challenge, confront and resist the ruling party and to present itself as a viable alternative. Constitutional court occupies a central role in monitoring the actions of the fused executive and legislative depart­ments. Semi-presidential systems with its inherent risk of tension within the divided executive (president and prime minister), at least theoretically capable of preventing arbitrary governance and tyranny.

5.1. Reconciliatory approach to Separation of Power: Intra-branch fusion of parties

In the second of his papers – Presidential values in parliamentary system, Richard Albert has drawn inspiration from the partisan lens of Levinson and Pildes. Partisan lens focuses the ‘political dynamics of institutional power’[68] in the Separation of Power discourse and drags political culture into the arena to transform the debate from one of institutions to one of culture.[69]

As a prelude to his reconciliatory approach towards separation of power, Richard Albert invites us to look beyond the inter-branch separation of powers in presidential system, inter-branch separation of parties in presidential system and inter-branch fusion of powers in parliamentary systems. As a way of reconciliation and innovation, the Iraqi constitution of 2004 has introduced an intra-branch fusion of parties which Albert think has great reconciliatory effect in intensely divided societies.[70]

Iraq’s principal innovation in 2004 was the establishment of a Presidency Council that would comprise a president and two vice presidents representing three religious groups of Iraq – Shia, Sunni and Kurds. Like the conventional presidencies, the Council will be put in similar position of relationship between organs. Innovation within the Presidency Council itself will constitute a very strong resistance from within the executive. The Council must make its decisions unanimously and its members cannot deputize oth­ers to act in their stead.[71]

There is of course an evident risk of impasse being created by National Assembly failing to agree on three Presidential Council candidates and the Presidency Council failing to agree on a prime minister to be appointed. Yet, the intra-branch fusion of parties within the Presidential Council ‘substantial countervailing advantages’ of reconciliatory constitutionalism.[72]

Reconciliation in its turn is a matter of intention and cultural inclination for management of disagreement. Like all other systems, consociational arrangements yield the best when there is a manifest willingness to compromise. Therefore, all the structural talks in Separation of Power ultimately depend on the level of political maturity the jurisdiction may have reached in the meantime.

With things end up in cultural dimensions, Albert has to draw ‘an intermediate construction’:

Constitutional structure and political culture are acutely interconnected insofar as the former derives its legitimacy from the latter, and the latter may be inclined to bend toward the former in certain instances.[73]

If culture is what matters the most, this should cool off much of the heats of Ackerman-Calabresi debate on the relative superiority or inferiority of presidentialism and parliamentarism.

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[1]Steven G. Calabresi (2001), "The Virtues of Presidential Government: Why Professor Ackerman Is Wrong to Prefer the German to the U.S. Constitution". Constitutional Commentary. Vol 18 No 1, pp 51-104, University of Minnesota https://scholarship.law.umn.edu/concomm/1042.

[2] Cindy Skach (2007), “The “Newest” Separation of Power”, International Journal of Constitutional Law (I.CON) Vol. 5, pp 93-121.

[3] Daryl J Levinson and Richard H Pildes, Separation of Parties, not Powers, Harvard Law Review Vol 119, No. 1 (2006), pp 1-73.

[4] Richard Albert (2009), "The Fusion of Presidentialism and Parliamentarism." American Journal of Comparative Law Vol 57, (2009) pp. 531-577.

[5]  Richard Albert (2010), “Presidential values in parliamentary democracies,” International Journal of Constitutional Law, Vol 8 No 2, pp. 207-236.

[6] José Antonio Cheibub, Zachary Elkins and Tom Ginsburg (2014), “Beyond Presidentialism and Parliamentarism,” British Journal of Political Scienc, Volume 44, Issue 3, pp. 515-54.
[7] Montesquieu’s theory of Separation of executive, legislative and judicial power has formed the basis of the U.S. Constitution and modern constitutionalism till date.

[8] The 1787 formulation of Checks and Balances in the U.S. is credited to James Madison, one of the founding fathers of the U.S. Constitution.

[9] Juan J. Linz (1994), Presidential or Parliamentary Democracy: Does It Make A Difference? In (Juan J. Linz & Arturo Valenzuela (eds) The Failure of Presidential Democracy, Vol 1(3).

[10] Supra note 1, at p 54.

[11] Ibid, at p. 56-59.

[12] Ibid, at p. 61-64.

[13] Constructive Vote of no confidence is a devise opposite to destructive vote of no confidence. This would require the parties seeking to cause fall of government to be able to form an alternative government with the support of the majority. Otherwise the previous government would continue in office even though it lost its majority in the House.

[14] Supra note 1, at p. 64-65.

[15] Ibid, at p. 68-69.

[16] Ibid, at p. 71-74.

[17] Ibid, at p. 75-76.

[18] Ibid, at p. 78.

[19] Ibid, at p. 80-84.

[20] Ibid, at p. 81.

[21] Ibid, at p. 83.

[22] Ibid, at p. 85-86.

[23] Ackerman labels the German and UK parliaments as ‘One-and-a-half House’ legislatures where the directly elected lower house of parliament is conferred superiority over the unelected upper house.

[24] Supra note 1, at p. 87-90.

[25] Ibid, at p. 87-88.

[26] Ibid, at p. 91-93

[27] Ibid, at p. 94.

[28] Ibid, at p. 93-97.

[29] Ibid, at p. 96.

[30] Ibid, at p. 98.

[31] Ibid, at p. 99-100.

[32] Ibid, at p. 100.

[33] Ibid, at p. 101.

[34] Ibid, at p. 101.

[35] Ibid, at p. 103.

[36] Supra note 2, at p. 93-94

[37]Ibid, at p.  96.

[38] Ibid, at p. 97.

[39] Ibid, at p. 98.

[40] Ibid, at p. 99-100.

[41] Ibid, at p. 100.

[42] Ibid, at p. 101.

[43] Ibid, at p. 102.

[44] Ibid, at p. 109-120.

[45] Ibid, at p. 105.

[46] Ibid, at p. 106-107.

[47] Ibid, at p. 108.

[48] Supra note 3, at p. p 7

[49] Ibid, at p. 15-22.

[50] Ibid, at p. 17-18.

[51] Ibid, at p. 22

[52] Ibid, at p. P 35

[53] Ibid, at p. 66.

[54] Ibid, at p. p 71 and 72

[55] Ibid, at p. 36, 61.

[56] Ibid, at p. 62.

[57] Ibid, at p. 66.

[58] Supra note 4, at p 537, 544. A empirical study by Steven G. Calabresi, Mark E. Berghausen & Skylar Albertson, “The Rise And Fall of The Separation of Powers,” Northwestern University Law Review Vol 106 No 2 pp 527-549 also confirms Richard Albert.

[59] Supra note 5, at p 229.

[60] Supra note 4, at p 532.

[61] Ibid, at p. 533.

[62] Ibid, at p. 557.

[63] Ibid, at p. 560.

[64] Ibid, at p. 564.

[65] Ibid, at p. 577.

[66] Supra note 5, at p. 211-217.

[67] Ibid, at p. 218-228.

[68] Ibid, at p. 216.

[69] Ibid, at p. 217.

[70] Ibid, at p. 231.

[71] Ibid, at p. 232.

[72] Ibid, at p. 233.

[73] Ibid, at p. 235.