THE SEPARATION OF POWERS AND THE EXECUTIVE BRANCH:
MAINTAINING THE INTERNAL TENSION BETWEEN SUBSERVIENCE
AND DOMINANCE
Margit Cohn*
INTRODUCTION
The executive branch of government is a formidable power in today’s Western state. The
thousands of studies across the globe emphasize the dominance of the heads of executive
branches in both presidential and parliamentary regimes. Yet the extensive attention to
executives is lacking in at least three ways. First, the research is dominantly system-based;
comparative studies are rare.1 Further, decades of presidential/executive studies have not
created, as yet, a theoretical body of research. British interest in the executive is on the rise,
but scholars are required to first overcome the initial hurdles set by, paraphrasing Daintith and
Page, ‘the arcana of royal prerogative and its relationship with statutory powers’.2 The
resilience of the prerogative, the open-ended historical source of power, which has been
whittled down by piecemeal modification but remains resistant to overall reform, has not
assisted in transforming the traditional penchant against grand theory in this context. The
absence of a general theory of the executive is shared in other systems. Presidency studies
richly engage with national presidents (of the United States of America, in most cases), using
personality theories, functional studies, and assessing the politics of decision-making, but this
largely system-based body of research is again less concerned with theory.3 Finally, the
absence of theory is also reflected in the waning interest in the link between executive powers
and the separation of powers ideal. In this paper I wish to make a few steps in these three
directions.
Under the separation of powers ideal, in its various forms briefly discussed in Part I, the
role of the executive is to ‘execute’ the laws. Yet political dominance is supported by legal
constructs, from broad constitutional authorization to lenient judicial review. In Part II, I draw
on the rich literature on national executives to construct a foundation for further discussion of
the nature of the executive branch across modern Western polities. In this exercise, I argue
*
Paper presented at the IACL World Congress, Oslo, June 2014, Workshop 15, The Transformation of the Principle
of the Separation of Powers. Senior Lecturer, The Faculty of Law, Hebrew University of Jerusalem; Visiting Professor
of Law, Columbia Law School, 2012-2013. This research was supported by the Israel Science Foundation (Grant No.
160/09). The author thanks Yaron Ezrachi, Simon Halliday, Jaako Husa, Martin Loughlin, Barak Medina, Henry
Monaghan, Keren Weinshall-Margel, and participants in seminars at UCL London and University of Glasgow for their
valuable comments on different versions of the article. Rona Dinur provided excellent research assistance.
1
For comparative research and edited country surveys see Presidents and Prime Ministers (Richard Rose and Ezra
Suleiman eds., 1981); The Presidentialization of Politics (Thomas Poguntke and Paul Webb eds., 2005); Ludger Helms,
Presidents, Prime Ministers and Chancellors (2005); The Executive and Public Law (Paul Craig and Adam Tomkins
eds., 2006) (the latter surveying eleven systems).
2
T. Daintith and A. Page, The Executive in the Constitution (1999), 2.
3
Thomas E. Cronin and Michael E. Genovese, The Paradoxes of the American Presidency); Harvey C. Mansfield,
Jr., Taming the Prince: The Ambivalence of Modern Executive Power 29 (1989) (noting that ‘[n]ot a single political
scientist whose work I know reflects upon the meaning of the word ‘executive’; Hugh Heclo, ‘Whose Presidency is This
Anyway?’ In The Oxford Handbook of the American Presidency (G.C. Edwards III and W.G. Howell(eds, 2009), 770,
782. (lamenting the dearth of ‘larger picture’ study).
2
that the executive, rather than a ‘paradox’ or ‘puzzle’, to be a body that operates under an
ingrained tension between subservience to law and political dominance that may be only
tenuously linked with law, and design an inquiry of the ways such a tension can be
maintained without exiting the sphere of legality. In other words, I refrain from assessing the
executive under one governing principle―subservience, under simplistic versions of the
separation of powers principle, or dominance, under theories that celebrate the political force
of the executive and its ability to meet exigencies without excessive reliance on legality. I
then reject accounts of the executive that draw on a distinction between powers invoked in
emergencies and in more quotidian periods. This leads to the ‘internal tension’ model, which
replaces efforts to identify a single explanatory basis for the exercise of executive power with
a vision of volatile fusion of weakness and strength.
To maintain this tension between legality and illegality, subservience and dominance,
systems introduce ‘fuzzy’ frameworks of authority that enable dominance under fuzzy forms
of law. Here I draw on David Dyzenhaus’ distinction between ‘black holes’ of complete
immunity from legality checks and ‘grey holes’ that offer wielders of authority extensive,
sometimes virtually unlimited, powers under a façade of legality. Under ‘grey holes’,
executive action will remain ‘perfectly legal,’ that is, won’t be found contrary to law, but will
not derive any substantive direction from it.4 I offer a taxonomy of these fuzziness strategies,
sorted according to their generator (the constitution, the legislature, and the executive) (Table
1). The detailed analysis of a large number of grey holes offers an analytical framework for
further study of the executive branch and of the ways it directly impacts modern society.
The ubiquity of grey holes in legal and political reality is normatively problematic, since
it weakens the rule of law by enabling relatively unchecked excessive use of power and
abuse. The last part offers some normative comments concerning the role of the judiciary as a
checking body, since some of the recent literature rejects this mechanism. Challenging Eric
Posner and Adrian Vermeule’s argument that executive powers should be tempered only by
social and political forces, and joining Richard Pildes’ recent critique of their vision,5 I argue
that the higher the degree of fuzziness, the stronger the justification for vigorous review.
Courts should remain a central, albeit not exclusive, arena for the regulation of the executive.
Resort to the courts remains a form of public participation that deserves retention, if not
enhancement. The multifaceted executive can only maintain both its legitimacy and legality
when subjected to a multilayered structure of checking mechanisms; courts play an important
role in this context.
I. EXECUTIVE DOMINANCE:
AN ACUTE CHALLENGE TO THE SEPARATION OF POWERS IDEAL
The separation of powers principle, in any of its versions, is central to democratic
constitutional theory, despite the fact that it has never operated in its ‘pure form’.6 The
executive has never found a comfortable place in the idea of a triad of powers. This may
have been originally historical. The link between monarch and power was not severed in
4
David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (2006).
Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2011); Richard H.
Pildes, ‘Law and the President’ (2012) 125 Harv. L. Rev. 1381.
6
M.J.C. Vile, Constitutionalism and the Separation of Powers (1967).
5
3
the English Glorious Revolution of 1688; prerogative powers were formally subjected to
Parliament, but not eradicated. Montesquieu’s famous treatment of the principle in L'esprit
de lois was in itself a triad of representations, appearing in sequence in the famous Chapter
6 of Book XI. In the first representation, two of the three powers are, in modern eyes, two
aspects of executive action, international and domestic;7 in the second, the third power
exercises judicial powers;8 the third representation reads closest to modern conceptions of
the principle: the legislature, the executives, and the judiciary.9 The fact that the executive,
still in a monarchical framework, is elusive, is fully embedded in the political reality of the
mid 18th century.
On the basis of historical analyses, and their translation to modern times, the
principle, as is well known, is expressed in several dimensions: it does not only embody a
distinction between different functions of the state (or specialization),10 but also connotes
separation (or independence) and interaction (or, in constitutionalist structures, not only in
the US, forms of checks and balances).11 Indeed, Montesquieu famously addresses
separation, and at least hints at interaction;12 his writing inspired the founding fathers,13 and
the rest is modern history.
In this triad, the role of the executive branch is to execute statutes; this secondary
role, under which the executive branch is subject to the legislature, relies on two important
democratic values: representation and deliberation.14 Representing the people through
elections, rules made by legislators are the result of a potentially lengthy deliberative
process, often enabling participation of actors in the public sphere. Both elements are
compromised when the executive is the rule-maker.15 Yet, opposing arguments for broad
and flexible executive power compete with these ideals, and draw on law’s limitations and
on expediency. Essentially, it is often argued, no text can supply basis for all possible
7
‘Il y a dans chaque État trois sortes de pouvoirs : la puissance législative, la puissance exécutrice des choses qui
dépendent du droit des gens, et la puissance exécutrice de celles qui dépendent du droit civil’. Charles de Secondat,
Baron de Montesquieu, De l‘esprit des lois (1748) deuxième partie, Livre XI, Chapitre VI.
8
‘Par la première, le prince ou le magistrat fait des lois pour un temps ou pour toujours… Par la seconde, il fait la
paix ou la guerre, envoie ou reçoit des ambassades, établit la sûreté, prévient les invasions. Par la troisième, il punit les
crimes, ou juge les différends des particuliers. On appellera cette dernière la puissance de juger, et l’autre simplement la
puissance exécutrice de l'État'. Ibid.
9
In the subsequent mention of ‘ces trois pouvoirs: celui de faire des lois, celui d'exécuter les résolutions publiques,
et celui de juger les crimes ou les différends des particuliers’. Ibid.
10
Which can be traced back to Aristotle's Politics, in which three ‘parts’ are recognized. In Lord’s translation, these
are ‘[o]ne is the part that is to deliberate about common matters; the second, the part connected with offices… and the
third, the adjudicative part’. Aristotles, The Politics (trans. C. Lord, 1984). In Rackham’s (1944) and Barker's (1948)
translations, the second part is designated ‘magistracies’.
11
A full analysis of the principle is relegated to other research. See generally Vile, above note 6; William B. Gwyn,
The Meaning of the Separation of Powers (1965); Michel Troper, ‘The Development of the Notion of Separation of
Powers’, 26 Isr. L. Rev. 1 (1992).
12
‘Pour qu'on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le pouvoir arrête le pouvoir. Une
constitution peut être telle que personne ne sera contraint de faire les choses auxquelles la loi ne l'oblige pas, et à ne
point faire celles que la loi lui permet’. Montesquieu, above note 7, Chapitre IV.
13
Reference to ‘the celebrated Montesquieu’ appears in The Federalist 47; Montesquieu is cited throughout, linked
with the idea of ‘checks and balances', as in The Federalist 51.
14
These values support two distinct version of democracy; on their nature and value see, e.g., Hannah Fenichel
Pitkin, The Concept of Representation (1967); James Fishkin, Democracy and Deliberation: New Directions for
Democratic Reform (1991).
15
One may argue that in presidentialist regimes, the direct election of the head of the executive cancels out the
representation deficit. However, unilateral presidential action still suffers from the absence of formal deliberation,
inherent to the legislative process, and some democratic deficit remains. This point is developed elsewhere; suffice to
note the political dominance of both presidents and prime ministers.
4
contingencies, unless its language is generalized to the point of loss of concrete meaning.
Further, executives are best placed to respond to fast-moving, ever-changing realities;
legislatures, in comparison, are too burdened by politics to answer pressing challenges.
Yet how can these arguments be accommodated under the separation of powers ideal?
For many, they don't; others challenge the subservience of the executive, part of the
separation of powers ideals. In my view, both arguments for subservience-under-law and
expediency-beyond-law are parts of constitutional reality, and neither stands alone. A
distinct theory of the executive must be devised in order to recognize the two parts of this
puzzle, and, if not to solve it, or resolve the opposing arguments for dominance and
subservience, at least to present it in full view. Only then can other forces be added to the
complex structure of state power, to check and balance the unavoidable stretching of
executive power.
II. THE EXECUTIVE: FROM A ‘CONSTITUTIONAL PUZZLE’ TO OPERATION
UNDER AN INTERNAL TENSION
In their introduction to The Executive and Public Law, one of the rare books that address
executive power in a comparative context, the editors, Professors Craig and Tomkins,
conclude that ‘[a]n uneasy ambivalence about executive power can be detected in all of the
chapters.‘ Professor Tribe offers a similar observation, crowning his chapter on the president
in his constitutional law textbook with the title: ‘The Puzzle of the Presidency: Its Uneasy
Truth with Constitutionalism.’16 Alluding to debates old and new, Tribe concludes that
‘[w]hether imperial or simply magisterial… the American Presidency will never be easy to
locate within our constitutional framework.’17
The possible reason for this ambiguity, returning to Craig and Tomkins, is that it draws
on the ‘recognition… that on the one hand the government must be allowed to govern but that
on the other it is the role of public law to find ways of delimiting the government’s reach and
of holding the government’s exercise of its power to account.’ Indeed, political realities
across the democratic world reflect a tension between the social and political dominance of
the executive on the one hand, and democratic values that grant the executive the power to
execute statutes, not set the rules of the game, on the other hand.
The natural meaning of ‘execute’ seems clear enough: it means, in Harvey Mansfield’s
words, ‘carrying out,’ or ‘following out.’18 Under the separation of powers principle, which
remains one of the canons of democratic theory despite its dilution in practice,19 some type of
principal-agent relationship is thus assumed, under which where the agent follows the
principal’s edict; yet the term ‘executive’ also connotes a managerial, CEO-type function. A
16
Laurence H. Tribe, Constitutional Law (3d ed. 2000), 630.
ibid, 631.
18
Mansfield, above note 3, 2-3
19
Vile, above note 6, 13. See also William Gwyn, The Meaning of the Separation of Powers (1965); Martin S.
Flaherty, ‘The Most Dangerous Branch’, 105 Yale L.J. 1725 (1996), 1802-10; Bruce Ackerman, ‘The New Separation of
Powers’, 113 Harv. L. Rev. 634 (2000).
17
5
similar duality exist with respect to the term ‘president’, as presider over the
application/execution of the laws or as a leader of the political sphere.20
Two recent important contributions focus on this ambiguity. Identifying dominance
beyond law, their normative conclusions couldn’t be more different.
In The Decline and Fall of the American Republic, Bruce Ackerman assesses the
current state of the American republic as one that replaces balance of powers with a form of
‘executive constitutionalism’, under which presidential legitimacy relies on personal
charisma, the media, public opinion polls, unilateral decision-making, all supported by legal
advice generated from the presidential ‘branch’. For him, this crisis of legitimacy is so severe,
that it may only be corrected by constitutional reform.21
The Executive Unbound celebrates this dominance. For Eric Posner and Adrian
Vermeule, the emerging structure-in-action has much to be commended for. In the complex
modern administrative state, against reoccurring emergencies and the general need to delegate
powers to the executive as the only branch that can successfully tackle fast-changing realities,
the law-bound, liberal legalist template simply cannot deliver, nor has it in the past decades:
‘the legally constrained executive is now a historical curiosity’.22 Rather than view this state
of affairs with alarm, this form of executive government ‘is best in the thin sense in that there
is no feasible way to improve upon it, under the conditions of the administrative state’.23 This
is not to say that there are no checks on the government; however, they should all derive from
the political sphere, and the judiciary should generally be excluded.
This normative vision of the state is not shared by many. Criticism of this stance is
relevant both on empirical and normative grounds. Richard Pildes forcefully argues that it
would be grossly incorrect to underestimate the role of legalism in the US.24 Law serves as a
forceful player in the very system these authors attempt to redefine as one that rejects its pull.
Support of this argument can also be found in analyses of the ‘regulatory style’ of the US,
defined as ‘adversarial legalist’.25
Indeed, the legitimacy of any model of dominance as a formal overarching
constitutional principle when it is divorced or only loosely attached to the concept of legality
and the rule of law is highly questionable. Any modern Western constitutional framework
draws its legitimacy from its link with legality; reliance on law as ordinator remains central to
constitutional structures. Oscillations in the actual force of legality may, and do occur, but an
argument that cancels the force of this value is absurd, if their bearers wish to remain within
the democratic liberal sphere.26
Recognizing that neither subservience to law nor dominance beyond law can fully
deliver as explanatory and normative models, Mansfield offers reconciliation by advancing a
20
On the double meaning of the term see Richard Pious, ‘Inherent War and Executive Powers and Prerogative
Politics’, 37 Pres. Stud. Q. 66, 71 (2007). For the double-faceted nature of the executive see Thomas E. Cronin and
Michael E. Genovese, The Paradoxes of the American Presidency), vii, 4 and passim (1998); Saikrishna Prakash, ‘The
Essential Meaning of Executive Power’, 2003 Ill. L. Rev. 701, 706 and passim (2003); Peter L. Strauss, ‘Overseer, or
‘The Decider’? The President in Administrative Law’, 75 Geo. Wash. L. Rev. 696 (2007); Saikrishna Bangalore Prakash,
‘Imperial and Imperiled: The Curious State of the Executive’, 50 Wm. and Mary L. Rev. 1021 (2009).
21
Bruce Ackerman, The Decline and Fall of the American Republic (2010).
22
Posner and Vermeule, above note 5, at 4 and passim.
23
ibid, 5 and passim.
24
Pildes, above note 5.
25
See Robert A. Kagan, Adversarial Legalism: The American Way of Law (2003).
26
See also Dyzenhaus, above note 4.
6
model I call ‘bipolar’. For him, executives are best described as operating in an either/or
method, moving from subservience to dominance according to exigencies.27
This model is necessarily based on a distinction between emergency and quotidian
periods. Yet a clear distinction between normalcy and exception or emergency is no longer
tenable, if it ever were. Arguments against the actual existence of two separate regimes
abound, inter alia through the observation of a universal and recurring pattern in many
democracies to retain emergency executive powers long after, and well beyond, the
requirements of a specific exigency; further, as the literature forcefully argues, the social and
political climate in many countries is seeped with the notion of emergency, existing or
eminent.28
Rather than choose any of these three descriptive/normative models – subservience,
dominance, or bipolarity, I opt for a model that embraces the puzzle. Neither submission to
the legislature nor executive imperialism can be presented as fully characterizing the
executive. In the absence of a clear distinction between normalcy and emergency, it would
also be futile to press bi-polar theories on the executive. Both dominance and subversion
prosper in reality just as much as they are backed by the basic ideals of Western modern
democracy. The forces supporting both can be presented as two vectors, often operating in
tension. The relative power of each is contingent on specific conditions existing in any given
situation, but neither is cancelled out. Bipolarity is hence replaced by a complex identity, one
that is constantly wavering between subservience and dominance.
This model, and the following analysis of the ways in which such tension can be
accommodated within legality, is for now descriptive only. Some normative implications
are addressed in the conclusion.
III. MAINTAINING THE INTERNAL TENSION:
EXECUTIVE POWERS AND GREY HOLES
How does law enable the executive to perform this composite task, to be both subject to law
and its master?
Alike the separation-of-powers ideal, the legalist position regarding executive powers,
well-expressed in Justice Black’s accepted maxim that ‘the president’s power... must stem
either from an act of Congress or from the Constitution’,29 and parallel formalistic
27
For Mansfield, ‘[t]he ambivalence of the executive… must be understood less as embodying two rival, contrary
conceptions than as the same thing in two phases or aspects… an ideal executive… would combine in himself the
ambivalence inherent in the office, ducking out of sight and leaping into view when necessary and appropriate’. Mansfield,
above note 3, at 15. See also Louis W. Koenig, ‘The Modern Presidency and the Constitution’, in The Constitution and
the American Presidency 171, 191-93 (Martin Fausold and Alan Shank eds., 1991); T.J. Lowi, ‘Afterword: Presidential
Power and the Ideological Struggle Over Its Interpretation’, in The Constitution and the American Presidency 227, 23637 (identifying a ‘two track’ system, ‘fast’ and ‘slow’).
28
N. Questiaux, Study of the Implications for Human Rights of Recent Developments Concerning Situations Known
as States of Siege or Emergency, U.N. ESCOR, 35th Sess., Agenda Item 10, U.N. Doc. E/CN.4/Sub.2/1982/15 (1982);
Jules Lobel, ‘Emergency Power and the Decline of Liberalism’, 98 Yale L.J. 1385, 1400 n. 68 (1989); Oren Gross,
‘Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?’ 112 Yale L.J. 1011 (2003); Kim Lane
Scheppele, ‘Law in Time of Emergencies: States of Exception and the Temptation of 9/11’, 6 U. Pa. J. Const. L. 1001
(2004); Kim Lane Scheppele, ‘Small Emergencies’, 40 Geo. L. Rev. 835 (2006); Oren Gross and Fionnuala Ní Aoláin,
Law in Times of Crisis: Emergency Powers in Theory and Practice, 171-243 (2006).
29
Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579, 585 (1952). See also Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172, 188-89, 211 (1999); Medellin v. Texas, 552 U.S. 491, 494, 524 (2008).
7
declarations in other systems, the maxim has been substantively diluted, both in theory and
in practice.
In their opposing normative analyses of the tension between executive power and the
rule of law, David Dyzenhaus, and following him, Richard Posner and Adrian Vermeule,
identify two legal constructs that grant the executive extensive powers. Dyzenhaus’ ‘legal
black holes’ exist when the legislature ‘either explicitly exempts the executive from the
requirements of the rule of law or explicitly excludes judicial review of executive action’.30 I
set aside these ouster clause-based opportunities for unfettered action, and focus on
Dyzenhaus’ ‘legal grey holes’. Grey holes exist when a façade of legality expressed in
statutory authorization conceals the absence of substantive limitation of the executive or
when judicial review is at best ‘halfhearted’. 31 Dyzenhaus focuses on emergencies; thus, the
US and British statutes that established the post 9/11 military tribunals are examples of the
first type of grey hole; as for judicial contribution, examples from South Africa, the UK and
the US emphasize the universal tendency of courts to defer during such times. Dyzenhaus
argues that grey holes are dangerous anomalies, and that courts should strive to minimize
their breadth, if not to obliterate them, in the spirit of ensuring the protection of individuals
and the substantive rule of law.
Adopting these concepts, Posner and Vermeule’s work could not be more opposed
normatively. Their attention moves from Dyzenhaus’ focus on emergency powers and his
reliance on substantive rule-of-law values as the directing force for redesigning the dynamics
between law, the executive and the judiciary, to an analysis that spans run-of-the-mill
administrative law, under a functional argument about the inevitability of grey holes.32 For
them, too, grey holes are found in both legislation and judicial practices. Some are openended statutory provisions, such as the APA provision that offers agencies exemptions from
notice requirements ‘when the agency for good cause finds… that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public interest.’ 33 Other grey holes
are judge-made doctrines of administrative law such as the development of a ‘softer’ review
under the arbitrary and capricious standard of review.34 Normatively, Posner and Vermeule
extoll administrative action unfettered by courts; for them, politics and public opinion serve
as the best, and sufficient, checks on presidential power.
These studies offer an important starting point for my analysis of the executive: grey
holes, or ‘fuzzy’ forms of legality, form the basis for action under law, but are simultaneously
beyond its constraint. They are thus the best explanatory tool for the assessment of a
government body that should be considered weak and subservient under the separation of
powers ideal, and simultaneously strong and dominant politically.
And fuzziness is far from rare. Reliance on and creation of grey holes can rise in
response to changes in politico-economic climates and in visions of the State. Over the past
century, states have broadened and diversified the range of their involvement in the social
30
Dyzenhaus, above note 4, at 3.
ibid. For further development of the analysis, with an emphasis on the role of the judiciary in national security
issues, see David Dyzenhaus, ‘Preventive Justice and the Rule of Law Project’, in Prevention and the Limits of the
Criminal Law (Andrew Ashford, Lucia Zedner and Patrick Tomlin eds., Oxford: OUP, 2013) 91.
32
Posner and Vermeule, above note 5.
33
5 U.S.C. §553(b)(3)(B). Posner and Vermeule, above note 5, 99-100
34
5 U.S.C. §706(2)(a); Posner and Vermeule, ibid, 97-99.
31
8
and economic spheres.35 Executive power in the modern state necessarily requires constant
retuning in order to accommodate rapid cultural and social changes and technological
innovation. Thus, the ‘administrative state’ discourse stresses statutes’ inadequacies as sole
organizers of government action.36 Indeed, literature on flexible and informal modes of
policy design and implementation abounds.37 These directions of research question the
traditional views attached to executive powers.
Further, governments are often likely to prefer grey holes; no wonder they create their
own grey holes in addition to those offered by the constitution and legislation. Reliance on
fuzzy law bypasses the arduous legislative process that provides potential entry points for
interest groups and other participants in the public sphere. Non-statutory rules,
independently formed by executives, are more pliable and are amenable to further change
by the same informal measures. Once instated, an unwritten arrangement could be more
elusive, rendering review and other modes of accountability more difficult to maintain.38
Dyzenhaus', and Posner and Vermeule's recognition of this form of executive action is
thus important, but the literature is lacking in several respects. First, both bodies of research
focus on two generators of grey holes, the legislature and the judiciary. My study removes the
emphasis on the judiciary as a central creator of grey holes alongside the legislature. The
literature’s focus on the judiciary is understandable – these are studies of common law
systems – but the judiciary can generally expand, or reshape grey holes. Relying on statutory
and other fuzzy rules to create their own doctrines, courts will rarely create entirely new
holes, and should be seen more as potential collaborators with the creators of these holes, or,
for Dyzenhaus, potential checks on this practice. Further, some grey holes are rarely discussed
in courts, if at all, and can thus be overlooked. Finally, the literature does not consider other
creators of grey holes, namely, the constitution and the executive.
A second weakness lies in the absence of an analytical analysis of grey holes. To
explicate the definition of ‘a façade of legality’, the authors proffer several examples, but a
taxonomy of the range of practices which may lead to the creation of a grey hole is still
missing.
Focusing on the constitution, the legislature and the executive as three major creators of
grey holes, the taxonomy offered in this article classifies grey holes by their generator. Some
forms of fuzzy legality rely on constitutional texts or understandings: those include openended interpretable provisions in written constitutions, as in the case of Article II of the US
constitution; unwritten, historically recognized sources, such as the Royal prerogative in the
35
The literature depicts a transformation from the Minimal State, through the Welfare State to the current NeoLiberal State. Roughly, this corresponds to visions of the state as peace-keeper, through welfare-advancer, to regulator.
On the first transformation see, for example, Karl Polanyi, The Great Transformation (1944). For the second
transformation see, e.g., Giandomenico Majone, ‘From the Positive to the Regulatory State: Causes and Consequences
of Changes in the Mode of Governance’, 17 J. Pub. Pol. 139 (1997).
36
This extensive debate points at an ever-growing volume of rules pertaining to an ever-growing scope of
government involvement; to fast-changing conditions that require responsive and flexible management; and to
professionalisation of many monitored areas, that cannot be met by legislative texts. See, for example, Richard B.
Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1975); Kenneth Culp Davis,
Discretionary Justice: A Preliminary Inquiry (1969); Denis J. Galligan, Discretionary Powers (1986); Yoav Dotan,
Administrative Guidelines (1995) [Hebrew].
37
See, for example, Eugene Bardach and Robert Kagan, Going by the Book (1982); Keith Hawkins, Environment and
Enforcement: Regulation and the Social Definition of Pollution (1984).
38
For a parallel argument that addresses the ‘incompleteness’ of law see Katharina Pistor and Chenggang Xu,
‘Incomplete Law’, 35 Int. L. & Pol. 931, 938-44 (2003); see also the literature on delegation and discretion, above note
36.
9
UK; and other doctrines interwoven into the constitutional framework, such as theories of
inherent powers. Others are generated by the legislature: in addition to the well-discussed
grants of discretion and delegation in most authority-granting legislation, other techniques of
legislative design grant executives relative freedom to act, such as the existence of partially
legislated fields and the existence of multiple source of legislation, that render the tracing of
the actual source of power difficult. Yet additional grey holes are created by the executive
itself, for example selective enforcement practices and reliance on contract law, which are
accommodated by other government branches (Table 1).
TABLE 1 – FUZZY LEGALITY: A TAXONOMY
Type
Nature
A. Constitution-generated
1. Open-ended provision Interpretable explicit direct
in a written
authorization, under some, or
constitution
limited constraints
2. Unwritten constitution Convention recognizing
granting fuzzy powers powers to act beyond statute.
3. Constitutional
Justification of executive nondoctrines
statutory power that does not
rely on the constitution.
B. Legislature-generated
1. Open-ended
Vague, general and broadly
provisions
interpretable legislative
provisions.
2. Discretion
Authorization to act granting
choice between several
alternatives:
(1) mandatory authority: duty
to act.
(2) discretionary authority.
3.
Delegation
(1) Statutes delegating rulemaking powers.
(2) Authorization to subdelegate.
4.
5.
Multiple decisionmakers
Patchwork legislation
6.
Lopsided mandate
Grant of decision-making
power to several officers.
Multiple layering of sources of
power.
Statute chosen only if
necessary by law, or in order
to empower but not limit;
incomplete regulatory
frameworks.
C. Executive-generated
1. Selective enforcement
and creative
compliance
2.
Extra-statutory
parallel arrangements
Details and Examples
US: vesting clause, take-care clause,
commander-in-chief clause.
UK: Royal prerogative.
US: inherent powers, ‘stewardship’ theory;
UK: ‘new prerogative’/’third source’
executive powers.
Any interpretable text.
(1) Discretion how to act (choice between
alternatives).
(2) Two levels of discretion: whether and how
to act.
(1) Authority to make regulations, orders and
other rules
(2) Sub-delegation of rule-making or
decision-making power. Legal system may
require explicit authorization in statute.
Explicit grant in statute or authorization to
sub-delegate.
Multiple emergency legislation, multiple
authorizations for market regulation.
Legislation of criminal penalties and taxation,
other powers and constraints drawing from
extra-statutory sources.
Extensive informal
enforcement; law as ‘last
resort’/ ‘benign big gun’.
Negotiated, consensual arrangements
employed in lieu of prosecution and other
statute-based arrangements.
Introduction of parallel
schemes outside of statute.
Parallel extra-statutory subsidies; presidential
executive agreements; governance under
contract.
10
3.
Pastiche law
‘Dead letter’ law.
4.
Multiple mixed
sources
Reliance on multiple sources
of power (multiple statutory
sources / mixed statutory and
non-statutory).
Unimplemented statute, when enacted under
pro-legislation pressure with insufficient
subsequent support, or when out of sync with
social/political reality.
Secondary legislation/ Executive Orders
recitals.
Space constraints do not enable me to expand the discussion of each of these forms of fuzzy
law. Importantly, the large number of techniques, which can be piled up or exercised
separately, offers executives to act in formal subservience to law, and concurrently enjoy
broad freedom from constraints that potentially could have been set by the law.
In sum, despite the problematic nature of fuzzy law, namely the direct contradiction to
the subservience inhering to the separation of powers ideal in any of its versions, grey holes
have always been on the menus of executives in democratic Western states. The question,
then, is how to regulate and limit their use. Here enters the third dimension of the principle:
the concepts of checks.
IV. SOME NORMATIVE COMMENTS
ON THE ROLE OF THE JUDICIARY
This article offers a model of the nature and role of the executive branch in the modern
Western state. For those who celebrate the unfettered executive, this state of affairs is an
inevitable blessing, and should not be constrained by the judiciary. Yet, in order to protect
citizens from abuse of power, some normative arguments against the rejection of the judiciary
as a checking power are due, arguments that return to the separation of powers as an ideal set
to ensure robust democracy.39 Fuzzy law offers executives the luxury of acting within law
without substantive constraint, and is thus in tension with the formal ideal of the rule-of-law.
Fuzziness compromises foreseeability and transparency, two values that are essential for the
maintenance of a proper balance between power and its constraint. In a world of enhanced
power, a parallel enhancement of checking mechanisms is required. A full analysis of checks
cannot be attained here; I limit my tentative arguments to a short analysis of the role of the
judiciary, the third branch in the separation of powers triad.
As supporters of executive power, Posner and Vermeule seem to argue that law simply
does not play any part in constraining the US president (they are not concerned with other
executives). Instead, they offer American politics and political culture as the cure for all
abuse. These forces are sufficient, since presidents continuously strive to retain legitimacy
and credibility, and therefore self-restraint, coupled with events during which these forces
operate to ensure restraint, protect society from abuse.40
39
Recent work that should have been analyzed more thoroughly, in addition to earlier work, includes Dyzenhaus, The
Constitution of Law, above note 4, who retains faith in the judiciary despite its poor record during emergencies;
Ackerman, Decline and Fall, above note 21, for whom the U.S. judiciary has failed in it task to enforce the rule of law,
therefore calling for an ambitious institutional reform; and Mark Tushnet, Weak Courts, Strong Rights: Judicial Review
and Social Welfare Rights in Comparative Constitutional Law (2008), inter alia reinforcing populism as a better form of
governance..
40
Posner and Vermeule, above note 5, Chap. 4.
11
Against the argument for exclusive reliance on politics and the like, consider first the
counter argument that focuses on the selective nature of such mechanisms. Such social and
political checking mechanisms are picky. They are available only to politicians and members
of society that have direct access to politics or to the social arena; moreover, these political
and social players are more likely to opt for intervention only when this step is politically
beneficial, that is, in contexts that have the potential for relatively easy resolution coupled
with relatively extensive favorable media coverage. Abuse in mundane contexts is more
likely to go unchecked. Executives must be aware of the limited interest of politicians and
shapers of public opinion in ‘lesser’ fields of action; thus, the argument for self-constraint
fails in these cases.41 The search for a checking mechanism that operates in a steady,
continuous, and non-arbitrary fashion must look elsewhere.
This leads to further consideration of the argument on participation, so dear to those
populists who seem to reject the judiciary. I start with the (in)famous counter-majoritarian
problem, offered as the strongest argument against judicial supremacy.42 Judges, so the
argument goes, are often un-elected, belong to a small elite, and therefore do not represent
society-at-large. The latter part of the argument could be rejected simply by arguing that
elites are over-represented in all government bodies, but stronger arguments exist. First, the
concept of ‘representation’, as developed in the literature, is multifaceted. Scholars have
never considered representation merely as the outcome of direct, formally devised
mechanisms. On the conceptual level, as Hannah Fenichel Pitkin emphasized,
representation carries different meanings, and can be effected in a variety of ways. Bodies
can ‘stand for’ others even when they are not elected, as are heads of state, symbols of
sovereignty, and, indeed, judges.43 Further development of the concept of representation
can be found in the growing number of studies of the representative quality of transnational
and non-elected bodies.44
Of course, opponents of an active judiciary would argue that the issue is not whether
judges can be considered representatives of society, of the rule of law, of justice or of any
other nebulous value; the question is normative and not conceptual or philosophical. My
response to this is double. First, it would be too simplistic to retain a limited vision of the
ways in which society chooses to be represented; the developed literature only reflects (or
represents) the complexity of modern society, in which Bono may make a successful claim
for representing Africa.45 Clearly, the judiciary in Western democracies, more so since
41
Other problems include, as Pildes notes, legality being part of the American political culture; the impossibility of a
distinction between law and politics; the inconclusiveness of interpreting the causes of presidential inaction (retention of
political legitimacy or rule-following). Going back to the U.S., as Pildes shows, legalism and rule-following can, and have,
enhanced the credibility of many a president; more than this, presidents have actually relied on law, even during
emergencies, to an extent that questions the authors’ factual assumptions. Pildes, above note 5.
42
Since Bickel’s seminal contribution (Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the
Bar of Politics (1962)), thousands of pages have been dedicated to the argument. I set aside the argument concerned
with the election of judges in certain instances in the United States. The focus, even there, is on higher-level appointed
judges.
43
Hanna Fenichel Pitkin, The Concept of Representation (1967). For a short discussion of the judge as representative
see ibid, 116-18.
44
See, eg, Joseph P. Witherspoon, ‘The Bureaucracy as Representatives’, in Nomos X 229 (J.R. Pennock and J.W.
Chapman eds., 1968) (considering one form of an ‘extra-elective’ political representation); Ruth W. Grant and Robert O.
Keohane (2005), ‘Accountability and Abuses of Power in World Politics’, 99 Am. J. Poli. Sci. 29, esp. 33 (2005);
Michael Saward, ‘Authorization and Authenticity: Representation and the Unelected’, 17 J. Pol. Philosophy 1 (2009).
45
Saward, above note 44, 1.
12
constitutionalism has been introduced, has been granted the role of representing, and
applying the constitution, in itself a strong symbol of the unity that is the State.
The non-representation argument is further weakened when representation is linked
with the related concept of participation. Courts are usually activated by aggrieved people,
thereby representing their interests. Christopher Peters’ Adjudication as Representation is
based on this premise. In essence, Peters argues that ‘adjudicative lawmaking can, under
certain conditions, claim democratic legitimacy by ensuring constructive participation
through interest representation’.46 Mark Graber goes further. In his exploration of the
promotion of participation by the judiciary, offered as a critique to Mark Tushnet’s call for
exclusion, Graber notes inter alia that judicial review ‘may facilitate public participation in
constitutional decision-making because litigation is a form of political participation’,
‘distribute responsibility for constitutional law more broadly’, and ‘increase public control
over constitutional meanings when elected officials have not and will not resolve those
controversies presently resolved by courts’.47
Indeed, minorities and other weaker groups may find an application to the judiciary an
alternative, sometimes a much better alternative, when they have no direct or easy access to
government corridors; removal of this channel is likely to enable only stronger society
members to be represented.
This leads to further consideration of the argument on participation, so dear to those
populists who seem to reject the judiciary. It is unclear why the judiciary, and the judiciary
alone, should be excluded from the participatory framework celebrated by these theorists.
The record of the judiciary, if expected to save a society from all its woes, is indeed
inescapably imperfect, but other modes of decision-making carry their own imperfections.48
In a simplified conclusion of his argument, Mark Tushnet claims that ‘[l]egislative and
executive officials charged with interpreting a constitution can do an ‘OK’ job.’49 This is
clearly a possibility, but so is the possibility that courts can likewise do some good
sometimes, as the literature has amply showed. Further, under any form of checks and
balances, the impact of some of these flaws may be minimized by other participants’
contributions; it simply makes little sense to eject one potential checking power and
consider this a better potential for limitation of abuse. Heightened participation in both
political and legal fora could act to correct some of these failings.
I join calls for continued involvement of the judiciary as a check on the executive in all
its fields of action. This form of review, alongside others — political and social — is required
if today’s society wishes to maintain some measure of balance under the internal tension
model described above. The executive will continue to self-empower: this is not only inherent
to its own structure, but is also often required under the exigencies of current reality. Yet this
dominance can only be supported when several checking mechanisms operate in tandem to
alleviate at least part of the danger of abuse. This is no novel structure: it is clearly
established in the US constitution and constitutional thought, and is just as accepted in other
polities.
46
Christopher J. Peters, ‘Adjudication as Representation’, 97 Colum. L. Rev. 312, 320 (1997).
Mark A. Graber, ‘The Law Professor as Populist’, 34 U. Rich. L. Rev. 373, 402-09 (2000) (citations at 404, 406).
48
Suffice to cite T.R.S. Allan, ‘Common Law Constitutionalism and Freedom of Speech’, in Freedom of Expression
and Freedom of Information: Essays in Honour of Sir David Williams 17, 22 (Jack Beatson and Yvonne Cripps eds.,
2000)
49
Tushnet, above note 39, 156-57.
47
13
Future development of the theory of the executive expounded in this article can take
several directions. First is the development of the study of fuzziness, which can rely on the
taxonomy offered here. Some forms of fuzziness, for example delegation/discretion and
constitution-generated powers, have received more than ample attention, but others haven’t,
and would benefit from further research. Current study of executive powers would also
benefit from context, policy-field based analyses that take into consideration all available
forms of fuzziness. No study to date has addressed the question of whether, say, executive
powers in the health-care field tend to be fuzzier than those exercised in the domestic security
policy field. The possibly intuitive assumption that fuzziness is higher in sensitive policy
fields requires some empirical evidence. Thus, this study could also include quantitative,
empirical studies of the extent of reliance on different forms of fuzziness in different
contexts. Such research could also address the politics of choice of one form of fuzziness over
another, or the correlation of incidence between them. One research question of this type
would be whether, in systems that offer broad constitution-generated fuzzy sources of
authority, executives put a lesser premium on the introduction of other forms of fuzziness.
Taking a narrower focus on the interrelation between fuzzy forms generated by a single
source, one may, for example, address the question whether legislatures that choose to
delegate and grant discretion limit their use of other forms of statute-generated fuzziness,
such as the legislation of lopsided mandates.
A second direction would move to a reconsideration of checking mechanisms, a
direction tentatively taken in this conclusion. Wide-spread fuzziness could implicate on the
extent and depth of review, by the judiciary and by other institutional and political forces.
These, and other studies of fuzziness, may further promote our understanding of the
complex ways in which executives dominate the political sphere, yet retain a simile of
subservience. In this way, the separation of powers ideal can be realized to its maximum: the
stronger the power, the stronger the checks required from within the legal framework.