Inherent Executive Power: A Comparative Perspective
Martinez, Jenny S., The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. THE INHERENT EXECUTIVE POWER THESIS: "WHEN THE PRESIDENT DOES IT, THAT MEANS THAT IT IS NOT ILLEGAL" II. INHERENT EXECUTIVE POWER IN COMPARATIVE PERSPECTIVE A. Structuring the Executive Branch: Evolution and Revolution B. The Fallacy of Executive Power Essentialism: War, Emergencies, and Foreign Affairs 1. War Powers 2. Emergency Powers 3. Treaty Powers C. The Inherently Expansive Character of Executive Power CONCLUSION
Does the executive possess inherent emergency powers related to foreign affairs and national security? Are there circumstances in which the executive can act on its own initiative, without support from legislation? When, if ever, can the executive act in direct contravention to the will of the legislature?
Today's most important constitutional and policy debates center on precisely these questions. Some have recently argued that the U.S. President has broad, independent powers in matters related to foreign affairs and national security. (1) In addition to their theoretical importance, these arguments have immediate practical significance for real world cases and situations. For example, can the executive order the military to torture in violation of legislative enactments? (2) Order warrantless wiretaps, circumventing procedures set up by Congress? (3) Seize and detain terrorists without trial or subject them to military commission trials, in the absence of specific legislative authorization? (4) Determine unilaterally whether persons in U.S. custody have rights under international treaties? (5)
Although the topic of inherent executive power is particularly salient today, the nature of executive power has occupied American constitutional scholars for decades. Scholars have searched for answers in the parsimonious text of Article II and the history of the Founding period. (6) This Essay takes a different, more functional approach, examining conceptions of executive power in a handful of modern democracies: the United Kingdom, Germany, France, Mexico, and South Korea. These comparative examples suggest that there is nothing inherent or fixed about the scope of executive power; instead, executive power is highly contingent, shaped by political context and the path-dependent evolution of particular legal systems.
The countries discussed in this Essay have been selected because they start from a range of basic institutional structures--from parliamentary British and German systems, to the semi-presidential French system, to the presidential Mexican and South Korean systems. The ages of their current structures vary--with the long-established Westminster system contrasting with the post-War constitutions of Germany and France and the still-evolving Korean and Mexican systems. They also represent a spectrum of development, from fully industrialized, entrenched democracies to still-emergent, newer democracies.
The experiences of these other nations do not point in a single direction. In some ways, the scope of executive power has been broader in these countries than in the United States; in other ways it has been narrower. There are, however, a few commonalities. In all of these countries, as in the United States, the line between executive and legislative powers is fluid. Regardless of formal governmental structures, all have witnessed a tendency toward executive dominance of national politics. At the same time, all now formally recognize some limits on executive power. These limits preserve a liberty-protecting balance of political power with the legislature and the courts, even in matters touching on foreign affairs or national security. These examples thus provide a counterweight to recent arguments that executive power, by its very nature, requires unchecked authority to act independently in these areas. More fundamentally, they help refute the notion that the "executive Power" vested in the President by Article II of the U. …