Taming the Prince: Bringing Presidential Emergency Powers Under Law in Colombia

Can courts check presidential power exercised in a crisis — and should they? The case of Colombia, which recently turned on its head a history of presidential overreach and judicial rubber-stamping, provides an answer in the affirmative. As in much of Latin America, throughout Colombia’s post-independence history, bloodshed fueled authoritarian tendencies, with presidents exploiting the need for “order” to centralize power. One critical weapon in the presidential toolkit was the power to declare a state of emergency. During the twentieth century, these decrees became a routine pretext for the President to govern unilaterally, acquiesced to by the legislature and rarely challenged by the courts. That pattern has since come to an end. Since 1992, the Constitutional Court has proven an unexpectedly strong counterweight to presidential power, especially in its strict review of presidential emergency decrees. Under a model of substantive judicial review, the Constitutional Court has taken for itself the authority to review the factual basis giving rise to a crisis, and the adequacy of the President’s rationale for declaring it. Decrees that, as in the past, attempted to manufacture a crisis or which would exceed the President’s constitutional powers have been struck down. This paper discusses some of the Court’s successes in that ambit, and argues for the portability of this model to other national contexts

Why Write? The Desuetude of Article V and the Democratic Costs of Informal Constitutional Amendment

In his classic Introduction to the Study of the Law of the Constitution, the great British constitutional scholar, Albert Venn Dicey likened the constitutional amendment power of the United States to a “a monarch who slumbers and sleeps.”1 It was during periods of constitutional amendment, Dicey explained, writing in 1897, that the full sovereign power of the nation came together out of the disparate fifty states, but these moments were few and far between

The Progressive Presidency and the Shaping of the Modern Executive

The contemporary presidency, with its expanded foreign policy, administrative and public duties, is largely a brainchild of the Progressive Era. The Progressives envisioned an enlarged executive, one outside the original guidelines of the U.S. Constitution, which they deemed “archaic,” “undemocratic,” and unsuited to the demands of the modern age, in which mass capitalism dislocated, alienated and disenfranchised the common man. The Progressives wanted to bring about a more energetic, streamlined, and unified state at the helm of which stood the presidency, an office of popular leadership and swift action. To accommodate this new, active figure, some Progressives believed it necessary to break with the old Constitution, something moderates like Woodrow Wilson were loath to do. Wilson saw the Constitution as a “living document,” capable of adapting to fit the spirit of the times. This claim, geared to placate legal conservatives, unfortunately allowed future presidents to take advantage of the new tools of the Progressive executive without pondering its rightful constitutional status. In this paper, I explore the Progressive “legacy” for the president and suggest that in expanding executive institutional power without enacting corresponding constitutional changes, it has left present-day constitutionalists in a bind. The modern presidential toolkit is functionally equivalent to that of the Progressive president, although, by legitimating itself on “originalist” grounds, it has shed the proposed Progressive constraints upon it of a more active citizenry and a new constitutionalism. As a result, today we find ourselves tenaciously defending the unerring wisdom of the separation of powers even while confronted with the increasingly obvious realization that the old constitutional checks alone are insufficient to cabin executive power. The Progressives took us far enough from the Founding Fathers’ modest executive that we can no longer return to this original vision, but in failing to smash our formalist paradigms of presidential power, they did not take us far enough

The Lost Promise of Progressive Formalism

Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new regulatory powers.As this Article argues, this account is misleading. The Progressive Era did witness an outpouring of criticism towards the century-old Constitution, which many viewed as outdated, exclusionary, and countermajoritarian. Yet the idea of interpreting the text to make it evolve to fit “the spirit of the age,” as Woodrow Wilson called for, was anathema to millions of progressive Democrats who turned to the formal channels of Article V to update the Constitution. Far from a progressive innovation, reformers saw flexible constitutional construction as the tool of conservative interests and courts dangerously “usurping” the legislative power by reading into the law—especially the Fourteenth Amendment—unwritten principles of contract and property belonging to a bygone era. Instead, a vigorous reaction against the “unwritten constitution” of the Lochner era led to a burst of democratic mobilization around the idea of using the amendment power to make the People, not courts, the ultimate constitutional authority. Besides the four amendments that were ratified during the Progressive Era, over 1,700 amendment proposals were floated in Congress, many of them targeting countermajoritarian features of American democracy like the indirect election of Senators, the Electoral College, and lifetime judicial tenure. Some even proposed to override Supreme Court decisions by popular vote and to amend Article V itself.After a string of successes, this formalist strand of progressive constitutionalism faded in the early decades of the twentieth century, a victim of postwar pessimism and fatigue, and most importantly, fissures between Progressives who continued to fight for formal revision and those who, just decades after Lochnerism faded from the bench, turned their energies to developing a different slate of unwritten constitutional rights deemed “essential to the concept of ordered liberty.” Today, distant though we are from the progressive formalists’ hopes to channel ambitious political reform through routine, democratic, and formal constitutional change, revisiting this Era serves several purposes. First, it puts into context the text’s relative immobility in the last hundred years. Second, it illuminates the fact that many of our current constitutional dilemmas are the result of a living constitutionalism practiced by interpreters on the left and right alike. Finally, it may also help us envision what a return to truly democratic constitutional politics would look like

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

Making Brazil work? Brazilian coalitional presidentialism at 30 and its post-Lava Jato prospects

The article analyzes the question of coalition presidentialism in the countries of Latin America in general and in Brazil in particular. It offers the reader a close look at coalition presidentialism in all Brazilian governments since the democratization of the country to the present day, presenting the complex relations between Legislative Branch and the Executive Branch in these different moments of Brazilian political reality. The main focus of the article is to relate the impacts of “Lava Jato” operation to this process, seeking to indicate possible consequences of this operation, which caused great repercussion on Brazilian politics, to this scenario of relationship between the Executive and Legislative branches

Becoming the Administrator-In-Chief: Myers and the Progressive Presidency

In a series of recent cases, the Supreme Court has mounted an assault on the administrative state, guided by a particular vision of Article II. According to the Court’s scheme, known as the theory of the unitary executive, all of government’s operations must be housed under one of three branches, with the single head of the executive branch shouldering a unique and personal responsibility for the administration of federal law. The Constitution is thus said to require that the President have expansive authority to supervise or control the government’s many agencies. Guiding each of the Court’s recent decisions is Myers v. U.S., the famous 1926 case about the firing of a postman. Written by President-cum-Chief-Justice William Howard Taft, Myers bolsters the Court’s jurisprudence as a supposed precedent for the unitary executive theory and alleged evidence for a deep tradition of strong executive administration. This Article shows that Myers has been misread. It did not explicate a pre-existing tradition of presidential power; rather, it invented one. While claiming to describe the role of the chief magistrate as it had always existed, Taft’s opinion broke with decades of jurisprudence to constitutionalize a new understanding of the office. This “Progressive Presidency,” which (President) Taft himself helped create, envisioned the president as administrator-in-chief. But it did so as part of a broader Progressive remaking of government, and so—unlike its modern-day unitary counterpart—carved out important independence for adjudicators and civil servants. This Article reconstructs the Progressives’ transformation of the presidency and shows how Myers wrote it into law. Recovering this more historically accurate reading of Myers undermines the Supreme Court’s recent decisions, sets the administrative state on firmer foundations, and highlights the co-constitutive roles of institutional and doctrinal developments in making the modern presidency

Is Religion a Threat to Human Rights? Or is It the Other Way Around? Defending Individual Autonomy in the ECtHR\u27s Jurisprudence on Freedom of Religion

Religious freedom is part and parcel of the European Convention of Human Rights (ECHR)’s broad catalogue of human rights. Yet in reality, religion and human rights can have a fraught, conflictive relationship. Is religion a threat to human rights? Are human rights a threat to religion? These questions resist easy answers, yet an examination of the jurisprudence of the European Court of Human Rights’ (ECtHR) suggests that, on the whole, the Court has been more successful in identifying threats posed by religious beliefs or organizations to human rights than vice-versa. As to the former, we examine case-law in two subject matter areas: extremist religious parties, and proposed deportation or expulsion of individuals of faith to religiously intolerant countries. As to the latter, we consider cases on the peaceful assembly of religious groups, and the wearing of religious symbols or clothing. We argue that, in cases involving religious threats to broader human rights, the Court’s jurisprudence has been principled and internally coherent. As regards the latter, the Court has given excessive solicitude to State claims against religious practices. This yields a selective and superficial treatment of individual autonomy that downplays the centrality of belief as constitutive of the identity of the believer/speaker, while characterising listeners/witnesses as overly suggestible to persuasion by symbols and peaceful expression. What results is an exaggeration of the threat posed to public ‘order’ by symbols and peaceful expression, as well as the demonization of the groups or individuals of faith who advance them