The President in His Labyrinth: Checks and Balances in the New Pan-American Presidentialism

This dissertation presents a theory of the separation of powers centered on the President’s “power to persuade.” To meet the imperial public expectations placed on the office in the modern age, the President will reliably try to supplement his limited formal powers by convincing others to support his agenda, the people, party allies, and courts being the most important. The President’s techniques of persuasion fall into three regular categories. First, there is “going public,” or popular leadership, where the President turns the force of popular majorities into a tool for shaping policy or legislative outcomes. Second is executive law-making, whereby the President presses on party alliances to shape legislative content: drafting legislative proposals, mediating congressional debates, soliciting or taking advantage of broad delegations of authority. Finally, there is emergency management, whereby the President invokes security threats, real or contrived, to press his natural advantages of speed and decisiveness and claim exclusive power over governance. In three case studies from Latin America, I illustrate these techniques and how institutions have adapted in response. Some are success stories, some are not, but all offer evocative lessons in designing solutions to problems the U.S. also confronts. First, on popular leadership, I discuss Venezuelan democracy under populist Hugo Chávez, in which institutions that could be coopted and radicalized (the courts, the legislature) were, while those that could not (opposition governorships and state and local agencies) were duplicated and circumvented by a proliferation of loyalist organizations that effectively created a shadow “parastate.” Second, I give a critical assessment of Brazil’s spin on “cabinet government,” in which the makeup of the President’s Cabinet directly mirrors party balance in the legislature, thereby heightening the risks of quid-pro-quo policymaking, but also drawing a beneficial link between policy and representative democracy. Finally, I describe Colombia’s efforts to “judicialize” war, internal rebellion, and other economic or social crises by subjecting these to judicial review by the Constitutional Court, created in 1991 with a mandate to curb a historical legacy of presidential excess. Bringing these lessons home, I discuss how the American constitutional system is designed to absorb the shocks of populism, de facto presidential legislating, and the abuse of war powers, and how to channel their beneficial tendencies and contain their negative aspects. I argue that the U.S.’ robust civil society prevents the most egregious abuses of the “bully pulpit,” but that sweeping institutional capture can happen, and that the rule of law is threatened where institutions like the EPA or the FBI are not reformed, but tarred as illegitimate and unrepresentative. Second, I treat executive-legislative cooperation in governance and increases in delegated authority as essentially unavoidable, but argue that the concentration of power ought to be met by increased mechanisms of public oversight and participation that go beyond notice-and-comment, to include citizen initiatives. Finally, I argue that the exploitation of presidential war power needs to be made accountable to strict temporal and legal limits, and that in the American constitutional system, this would be most practically achieved by a new jurisprudence abandoning the political question doctrine with regard to invocations of the commander-in-chief power, especially those unsupported by congressional authorization

Texas Law Review

Journal containing articles, notes, book reviews, and other analyses of law and legal cases

Fighting Rebellion, Criminalizing Dissent: Governmental Responses to Political Criminality in Mexico and Colombia, 1870s - 1910s

Political Crimes represent one of the most neglected areas in the historical scholarship on modern Latin America. It is an enduring absence that, for decades, has prevented historians from developing richer understandings about the functioning of politics, the evolution of legal phenomena, and the workings of both war and peace in the region. This dissertation addresses this historiographical void trough a comparative study of governmental responses to political criminality in Mexico and Colombia between the 1870s and the 1910s –years that frame the rise and fall of the Mexican Porfiriato and the Colombian Regeneration. A study of political, legal, and social history, the dissertation explores and analyzes how governments in Mexico and Colombia understood and responded to political offenses such as treason, rebellion, and subversion. How legalistic were these responses? How respectful of the rule of law they were? What do these responses reveal about the logics of justice, state power and repression in late-nineteenth century Latin America? What do they tell about the relationships between state and citizens in the region? A wide collection of primary sources helps answer these questions. Sources include newspapers; memoires; collections of laws and decrees; legislative debates; legal essays; criminal expedients; judicial processes; and a diverse number of petitions for judicial protection and state leniency. Overall, the dissertation argues that governmental responses to political criminality entailed different yet complementary purposes. First, they aimed to protect public order from episodes of rebellion and insurrection. Second, they had the goal of neutralizing the activities of dangerous dissidents. Third, they allowed governments to trace and retrace the limits between legitimate and criminal expressions of political dissent. Political crimes were a fluid and mutable criminal category that allowed authorities to prevent and fight rebellion and maintain dissenters under strict control. Responses to political crimes involved both legal and extralegal strategies, and often redefined the limits of what laws and constitutions considered valid regarding the state’s actions against its own citizens. These redefinitions had different meanings and consequences in Mexico and Colombia, conditioning substantial differences in the legal and judicial experiences of political dissidents in each country

Remedy for corporate human rights abuses in transitional justice contexts

Corporations and other business enterprises often operate in countries affected by conflict or repressive regimes and commit human rights violations and crimes under international law, either as the main perpetrator or as accomplices by aiding and abetting government forces. In transitional justice contexts, the trials, truth commissions, and reparations typically included within the set of remedy mechanisms have focused primarily on abuses by state authorities’ or by non-state actors directly connected to the state, such as paramilitary groups or death squads. Innovative uses of transitional justice mechanisms across the world, however, have started to address, even if still only in a marginal way, corporate accountability for human rights abuses and crimes under international law and have attempted to provide redress for victims. This research analyses this development. This research provides an original contribution to the field on business and human rights and the little-researched link with transitional justice by assessing how remedies for corporate human rights abuses and crimes under international law can be achieved in transitional justice contexts. To answer this question this research first analyses how different mechanisms (judicial processes at the international and domestic level, truthseeking initiatives, and reparations programmes) have dealt, or failed to deal, with remedy for victims of corporate human rights abuses. It then examines their outcomes, the results those processes have achieved and the obstacles they have faced. The research takes a victim-oriented approach by analysing the tools, instruments and institutions available for victims (the bearers of rights) in transitional justice contexts (i.e. in countries emerging from conflict or authoritarian regimes) to remedy violations when those are committed by corporations

Unpacking the Deterrent Effect of the International Criminal Court: Lessons From Kenya

(Excerpt) This Article proceeds as follows. Part I begins by explaining deterrence theory in more detail. It follows with an overview of the debate surrounding the ability of international criminal tribunals and the ICC to produce a deterrent effect. In Part II, we advance our argument regarding the need to reframe the debate about the ICC’s potential to deter. We explain the reasons why the ICC’s deterrent effect must be unpacked and, in doing so, we describe several factors that influence whether and under what conditions the ICC should or should not be able to deter. In Part III, we describe the methodology for the Kenya case study that serves to both test these hypotheses and illustrate the complexities of gauging the ICC’s deterrent power. Part IV unpacks the ICC’s deterrent effect by analyzing the evidence from Kenya of (1) any decrease in mass atrocities or other human rights abuses and (2) any increase in domestic mechanisms available to punish those who commit such abuses. That evidence shows that the ICC’s ability to deter can vary depending on the particular political context of the targeted state, the type of actor the ICC pursues, and based on how strongly and well the ICC exercises its institutional powers. For example, case study evidence shows that ratification, the lowest level of ICC intervention, did not prevent incidences of mass atrocities or other human rights abuses. On the other hand, the case study shows some deterrent effect came as a result of a higher level of ICC intervention, namely, after the ICC prosecutor decided to launch cases against six Kenyans. Nevertheless, the evidence also indicates that during that time period the increased costs associated with the ICC’s interventions may have influenced state leaders to commit abuses to help them hold on to or gain power in order to thwart the ICC. Further, while the ICC’s interventions seemed to produce some positive effects, the evidence does not confirm any normative changes consistent with a lasting and persistent deterrent effect