Monitor 65: Testing constitutional times

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has included the High Court and Supreme Court rulings in the Article 50 case, the unveiling of Theresa May’s Brexit plan and the election of Donald Trump as President of the United States, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

monitor-65-coverPolitics remains fast-moving. Its unexpected turns have raised fundamental questions about the constitutional order, in the UK and beyond – including the rightful place of voters, elected legislators, governments and judges in political decision-making – as well as the media’s role in questioning those decisions.

Here, Brexit remains the dominant preoccupation. The previous issue of Monitor reported how ‘ministers have repeatedly insisted that they are in charge of the Brexit negotiations and that to reveal their hand to parliament in advance would weaken their negotiating position’. A lot has changed since then.

Following rulings by the High Court on 3 November, and Supreme Court on 24 January, ministers had to accept that they require parliamentary approval to trigger Article 50; at the time of writing, the European Union (Notification of Withdrawal) Bill has now passed through the Commons and awaits scrutiny in the Lords (see page 3). Even before the bill’s introduction, the government had conceded (in December) that its Brexit plan would be published prior to triggering Article 50, and (in January) that this would include a white paper – commitments necessary in order to see off potential Commons defeats. With help from the courts, parliament has rediscovered some of its teeth.

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Is Poland’s constitutional tribunal crisis over?

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With one of the judges elected by the current parliament taking over as its new president, and the opposition losing interest in the issue, the political conflict surrounding Poland’s constitutional tribunal is moving into a new phase, writes Aleks Szczerbiak. Although the European Commission is very unlikely to secure support for EU sanctions against Poland, some tribunal members appointed by previous parliaments could boycott cases involving contested judges elected by the new one.

The bitter conflict over the membership and functioning of the constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws, has dominated the political scene since the right-wing Law and Justice (PiS) party came to office following its victory in the October 2015 parliamentary election. The most serious constitutional crisis to affect the country since the collapse of communism in 1989 began almost immediately after Law and Justice took office in November. The new government decided to annul the appointment of five judges to the 15-member body by the previous parliament – dominated by the centrist Civic Platform (PO), the former ruling party – who were to replace those whose terms of office expired that month and in December. Earlier these judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda, who questioned the legality of their appointment, did not accept their oaths of office.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms expired in December was unconstitutional the other three were nominated legally. The government, in turn, argued that the tribunal did not have the right to make judgments about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges elected by the new parliament instead. Tribunal president Andrzej Rzepliński responded by only allowing those two filling the December vacancies to assume their duties.

Law and Justice tried to break this impasse by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen; thereby hoping to oblige Mr Rzepliński to recognise all of those appointed by the new parliament. The so-called ‘repair law’ also increased the threshold for tribunal rulings to a two-thirds majority, making the votes of these new appointees more significant. However, in March 2016 the tribunal decided that it was empowered by the Constitution to ignore these amendments and declared the ‘repair law’ unconstitutional. The government, in turn, said that the tribunal had no power to review the law (as the Constitution stipulates its rules are regulated by parliamentary statute), which had come into effect as soon as it was passed, and refused to publish the judgement in the official journal, a necessary step for tribunal rulings to become legally binding.

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Updates from Canada: don’t call it constitutional reform

andrew-cookIn October 2015 a Liberal government took office in Canada with commitments to both electoral and second chamber reform. In this post Andrew Cook provides an update. He reports that so far Senate reform has made the greater progress: following the introduction of a new appointments process, a plurality of Senators are now independents. Although a special parliamentary committee has considered options for electoral reform it remains unclear whether the government will be able to make good on its pledge that future federal elections will be conducted under a system other than first-past-the-post.

The government of Justin Trudeau came to power in October 2015 with a wide-ranging platform that included several propositions touching on the operations of the Canadian constitution. As was outlined on this blog at the time, the proposals range from introducing a dedicated Prime Minister’s Question Period in parliament, to reforms of the electoral process that would increase the autonomy of the Chief Electoral Officer and create an independent commission to organise leaders’ debates during election campaigns. The two most significant, and politically challenging, reforms proposed by the Liberal government were a focus of its agenda in 2016. Both electoral reform and reform of Canada’s second chamber, the Senate, have advanced since October 2015 but in different ways. It is worth reviewing the current state of reform in light of the recent developments on both these files.

Senate reform

Reform of Canada’s appointed Senate has long been discussed, and re-emerged as a key issue in the last federal election as a result of a Senate expenses scandal that eventually led to the resignation of then Prime Minister Stephen Harper’s chief of staff.

Harper’s own relatively modest proposals for reform were previously deemed fundamental to the country’s constitutional framework, and therefore requiring substantial provincial consent, so he abandoned them and simply stopped appointing Senators.

The recent return to constitutional debate, which dominated almost two decades of Canadian political life, has not brought with it a renewed interest in reforming the written constitution. Justin Trudeau has repeatedly stated that he does not want to re-open the constitution, which he rightly fears ‘would require protracted constitutional discussions with the provinces.’ Hence rather than considering large-scale Senate reform, such as introduction of elections, Trudeau has created an Independent Advisory Board on Senate Appointments – an attempt to move towards a non-partisan and merit based appointment process. The board selects five candidates for each Senate vacancy, with the Prime Minister making the final decision on who is appointed.

Because there were so many vacancies left by Harper (22 out of the total 105 Senate seats), new appointments by Trudeau resulted in a plurality of Senators being independents by November 2016. They will work together on matters of Senate rules and logistics but will otherwise vote independently. This new reality will have major impacts on both the operation, and role, of the Senate.

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The US presidential transition will occupy the Trump administration for months to come

Donald Trump will be inaugurated as the 45th US President next week, but the vast task of assembling the new administration will continue for months to come. In this post Donald F. Kettl explains what America’s unique transition process involves and outlines what progress Trump has made so far.

There is nothing in the world quite like the American presidential transition. In the foreground is the mega-debate about how the new president will shape policy (see our previous blog posts, here and here). But in the critical background, there is the incredible job of actually putting the new administration together, a challenge unlike that facing any other major democracy in the world.

It is an unusually long stretch between the election and the start of the new administration –10 weeks, compared with the virtually instantaneous transition in the United Kingdom.

In the US, the transition involves far more people – nearly 700 top officials, who head government agencies, nearly all of whom require confirmation by the Senate. There are another 4,000 appointees across the government, including policy assistants and political staffers, that the president appoints and who do not require Senate confirmation.

In the US, many of the appointees come into government with relatively little preparation. Despite constant warnings from experts about the need to plan months before the election for the complexity of the transition, the search for cabinet ministers often doesn’t begin in earnest until after the election. British transitions are much easier, with shadow ministers in the opposition bird-dogging the government, with fewer positions to fill, and with no separate legislative confirmation process.

For better or worse, there are reasons why the American system has evolved in this way. The transition period is actually shorter than it used to be – until 1937, the inauguration was in March, because it often took months in an agrarian society for newly elected officials to put aside their work and make their way to Washington. Having so many political appointments has long been thought to be a good thing, at least by some people, because it provides a way for new presidents to put their stamp on the workings of government. Senate confirmation has provided a reinforcement of the checks-and-balances system on which the US Constitution builds.

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More than just populism: Renzi, the Italian Senate referendum and the perils of second chamber reform

Roberta Damiani passport-styleMeg-RussellOn 4 December Italians decisively rejected Matteo Renzi’s proposed constitutional reforms, which centred on reforming the Senate – leading to his resignation as Prime Minister. The international media widely reported this as a victory for populism. In this post Roberta Damiani and Meg Russell argue that the referendum result was more complex than that. It demonstrated the perils of referendums on detailed constitutional matters and in particular – with echoes of Nick Clegg’s experience in the UK – of attempted second chamber reform.

Italian ‘perfect’ bicameralism has dodged another bullet. After a long, fragmented, and highly personalised referendum campaign, on 4 December the Italian electorate voted against Prime Minister Matteo Renzi’s constitutional reform by 59 per cent to 41 per cent, on a turnout of 65 per cent. The main elements of the reform would have been to drastically cut the powers of the upper chamber (the Senate), reduce its membership from 315 to 100, and turn it from a directly elected chamber into an indirectly-elected one, comprising representatives of the regions. Vincenzo Scarpetta has previously described what else the reform entailed on this blog.

Opinion polls over the last few months showed a shift towards a No outcome. The latest, published before the two-week ‘electoral silence’, indicated that 54 per cent of respondents would vote against the reform. This time, the polls showed the correct outcome. Prime Minister Matteo Renzi, who had linked the passage of this reform to his government’s survival, resigned the following day. In an emotional speech delivered on the evening of the defeat, he claimed: ‘I wanted to get rid of some seats in Italian politics. I failed, and hence the only seat I can get rid of is my own’.

Many commentators described the possibility of a No victory as the third anti-establishment vote of the year, following the Brexit vote and Donald Trump’s election. The main reason for this interpretation was that Renzi, a little too confident of the merits of his reform, highly personalised the campaign, and bet his political career on it. This naturally meant that his opponents would vote against him, and turned the referendum into a protest vote against the government. Renzi eventually personalised the loss just as much as the campaign: ‘To all my friends from the Yes front I say that you didn’t lose. I lost’, he said in his speech.

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The Trump administration is likely to run into major obstacles in policy implementation

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In a recent post on this blog Nigel Bowles argued that Donald Trump will largely be able to carry out his policy agenda when he becomes US president in January. In this post Colin Provost joins the debate, concluding that in the areas of trade, health care, financial regulation and climate change Trump is likely to run into major obstacles. This is because many of Trump’s campaign pledges involve large, complex governing systems and he will have limited control over these systems in their entirety.

Nigel Bowles recently wrote on this blog that President-Elect Trump will be able to push through key parts of his policy agenda in the coming four years, because of the powers afforded to him by the US Constitution and because collective action problems within Congress will prevent meaningful attempts to block his agenda. Many of Dr Bowles’ points are correct and some scholars may argue he does not go far enough in articulating the strengths of the administrative presidency. However, President-Elect Trump has made numerous grandiose promises which potentially affect large policy making networks. The more groups he touches, the more resistance he possibly engenders, thereby making policy making a grinding and tortuous battle. In this post I look at Trump’s proposals for trade, health care, financial regulation and climate change and conclude that his administration is likely to run into major obstacles in each of these areas.

As Dr Bowles has articulated, Donald Trump benefits from collective action problems in Congress and a broad range of constitutional, as well as unilateral, powers. Since the Nixon administration, every president has presided over what Richard Nathan referred to as the ‘administrative presidency’. The president ideologically steers dozens of federal agencies through appointments, s/he can also impose new substantive and procedural requirements on agencies through the use of executive orders, and s/he can employ ‘signing statements’ which enable the president to specify which parts of the law by which s/he would abide. Perhaps most importantly, Terry Moe and William Howell have argued that the Constitution’s language that the president ‘shall take care that the laws be faithfully executed’ builds ambiguities and discretion into the formal power structure that the president can shrewdly exploit.

Moreover, Trump will have Republican majorities in Congress, as well as a conservative Supreme Court after Trump likely pushes aside Merrick Garland in favour of a more conservative nominee. However, many scholars have noted in recent decades how we no longer study ‘government’, but ‘governance’. Implicit in this concept is the idea that governing is performed by a very large coalition of actors involved not only in a national government, but in subnational governments, in foreign governments, in markets, in non-governmental organisations, in the media, in think tanks and so on. These actors do not all represent veto players of equal power, but taken together, creative means of resisting policies can often be formulated and applied. When we look at some of the President-Elect’s proposals closely, we can envision how his proposals may not be implemented to the extent he would prefer.

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Will Congress be able to hold President Trump in check?

nigel-bowlesDonald Trump will become the 45th President of the United States in January, but will he actually be able to carry out his agenda? Nigel Bowles writes that he will largely be able to. In the areas of trade, security, taxation and judicial appointments Congress will struggle to constrain him under current law and politics. Changing immigration law and reforming the Affordable Care Act are likely to prove more challenging. Nonetheless, during the first year of the Trump presidency American politics is likely to give the appearance of being what it only rarely is: a presidential system. For better or for worse, President Trump really will be in charge.

The United States constitution is Madisonian in design and spirit. Separation of powers and federalism in combination are the structure against which, through which, and by which American politics plays out. Much else matters: party, ideology, public opinion, crises external and internal, leadership’s quality of imagination and purpose, especially. But the system’s architecture is Madisonian. It is not (not usually, at least) a presidential system. Instead, federal government comprises separate but coordinate institutions sharing in authority and in power. Article I of the US Constitution places Congress first in this separated Madisonian order. The symbolism of first place reflects Congress’s abundant richness in authority.

Yet Congress’s authority is limited by recurrent and systematic collective action problems. Those problems spring from Congress’s bicameralism, from its four-party organisation across the two chambers, and from its committee structure. They arise, too from electoral bases of legitimacy: from Senators’ identifications with state interests and cultures, from Representatives’ dependence upon their districts’ majority party voters and party activists for biennial re-election. The collective action problems are exacerbated in the early twenty-first century by ideologically distinct, and typically hostile, Congressional parties; and they are complicated by clashing personal ambitions of legislators. These constraints upon Congress’s authority in turn limit its political effectiveness and, accordingly, its collective capacity to bring about intended effects – in other words, its political power.

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