Category Archives: International

Will Congress be able to hold President Trump in check?

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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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The US voter registration system is flawed but election officials are working to address the issues

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Amid allegations of widespread voter fraud from Donald Trump’s presidential campaign, the American public has turned its gaze to the maintenance of voter registration lists. John Lindback and Mary Stegmaier provide an overview of the challenges posed by the US’s decentralized voter registration system, and discuss reforms that are already underway to improve the accuracy of voter rolls.

Officials who administer elections in the United States find themselves playing defence this year. In recent months, Republican presidential nominee Donald Trump has frequently charged that the American elections system is rigged against him. While Trump has offered no concrete evidence of systemic fraud, his repeated claims have created a perception problem. US elections officials have responded by emphasizing that studies do not support his allegations, and by citing the decentralised elections system among the 50 states and the multiple safeguards against hacking voting machines.  But, elections officials will acknowledge that one part of the system – voter registration – is flawed.

The American elections system differs from many other democracies in ways that make maintaining accurate voter registration lists a challenge. The US lacks a tool that most other countries use to determine voter eligibility – a centralised, national registry of citizens. Many countries use their national registries as the basis for voter lists at each voting precinct, which means that citizens are automatically registered to vote. When voters show up at their precinct polling station, they present their national ID card, and if this matches, they are issued the ballot. In contrast, the US has no national registry of American citizens nor is there a universally issued national identification card. Instead, to be eligible to vote, Americans must first take the initiative to register with their state and provide the basic identifying information necessary to determine where they are entitled to cast a ballot. Each state and the District of Columbia maintain its own voter registration rolls – a decentralised system that contrasts with the centralised system used in other countries.  Further, because election law in the US is largely made at the state level, the states vary in their voter ID requirements and registration deadlines. For this election, 10 states and the District of Columbia will allow people to register to vote on Election Day; the rest maintain deadlines that range from a few days to a full month in advance of the election.

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Monitor 64: Brexit and the transformation of British politics

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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 of major political and constitutional upheaval following the EU referendum result on 23 June. Unsurprisingly Brexit and its implications feature prominently. The front page article is reproduced here. You can read the full issue at this link. 

The months since the previous issue of Monitor was published on 9 June have been the most dramatic in post-war UK political history. The unexpected victory for Leave in the referendum on the UK’s EU membership sent shockwaves throughout the political system.

Within three weeks of that vote, David Cameron had left Downing Street and been replaced as Prime Minister by Theresa May. Three quarters of Labour MPs had voted no confidence in their leader, Jeremonitor-octobermy Corbyn – and yet he sat tight, in open defiance of the traditional norms of parliamentary democracy. UKIP and the Green Party had both also entered leadership contests. Nicola Sturgeon had declared that a second referendum on Scottish independence was now ‘highly likely’.

Much of this issue of Monitor deals with the aftermath of the Brexit vote, including its implications for Westminster (see pages 2–3), Whitehall (page 6), the devolved administrations (page 10–11) and the EU (page 13). We also explore ongoing debates regarding the conduct of the referendum itself (pages 7–8). This introduction draws out five major constitutional themes.

First, the referendum and its aftermath demonstrate that popular sovereignty, not parliamentary sovereignty, is now the central principle of the UK constitution. The doctrine that parliament is the ultimate sovereign power in the UK (or, at least, in England – Scottish nationalists discern a different heritage north of the border) was asserted by the nineteenth-century constitutional theorist A. V. Dicey. The emergence of referendums since the 1970s had eroded that principle. The referendum in June, however, was the first in which the popular vote went against the clear will of the majority in the House of Commons. That most MPs feel bound to accept that decision shows where ultimate power in UK politics actually lies. There has been great debate over the summer as to whether parliamentary approval is needed to trigger Article 50 of the Lisbon Treaty and begin formal talks on Brexit (see page 12). But this has been something of a sideshow: even if the courts deem that parliament’s consent is needed, it is all but certain to be granted.

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So this is how liberty dies? Hungary’s EU migrant quota referendum

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On 2 October a referendum was held in Hungary on the EU’s plans for refugee and migrant resettlement. 98 per cent of those who turned out supported the government in voting ‘No’ but the result was invalid as the 50 per cent turnout threshold was not met. Zoltán Gábor Szűcs discusses the background to the referendum and the campaign itself. He suggests that the referendum and campaign, the most expensive in modern Hungarian history, fell short of what we would expect in a democratic country. 

The 2 October referendum on the EU’s migrant quota did not make it much easier for foreign observers of Hungarian politics to understand what is going on. The right-wing government gathered huge support for its politics (3.3 million votes, over 98 per cent of those who voted), but failed to secure the 50 per cent turnout required for a valid referendum. The latter is somewhat ironic because it was the present government that raised the threshold to 50 per cent. And it is all the more surprising too since the money they spent on this campaign is unprecedented in post-communist Hungarian history, the opposition was divided and the government made extensive use of state-controlled media and public administration resources in controversial (even illegal) ways to persuade the public to vote ‘No’. The immediate response of the government was telling in the sense that they said nothing about the invalidity of the referendum in legal terms, but declared a big political victory. The new catchword for this so-called historic victory was ‘New Unity’ (somewhat disconcerting if we are sensitive to its not very democratic connotations) and the government immediately drafted a more or less meaningless amendment to the constitution, banning the settlement of migrants without parliamentary approval. These reactions suggest that the government was not completely satisfied with the results.

To put these events into context, we have to look back to the past ten years or so in Hungarian politics. The quasi two-party system of the late 1990s and early 2000s started to erode after 2004. The chronic moral and leadership crisis of the left led to a series of defeats, and even though in 2006 socialists and liberals won a parliamentary election their last years in power become a nightmare for them full with corruption scandals, embarrassing leaks in the media, ever changing policies and the undoing of a decade-long co-operation of the socialist and the liberal parties. The free fall of the left and the emergence of the far-right Jobbik party radically restructured the political space and provided the opportunity for Fidesz to gain a constitutional majority in the parliament in 2010. The new government could change constitutional institutions without the consent of the opposition, and they were not reluctant to use their power to such purposes. They drafted a new Constitution, a very controversial media regulation, restrained the power of the Constitutional Court, extended citizenship to ethnic Hungarians living in the neighboring countries and, among other things, put political appointees into the Constitutional Court, the national election office, the police, the new media authorities and a lot of other positions. The government also used its extensive political power to reorder the Hungarian economy.

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All you need to know about the Italian constitutional referendum

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Vincenzo Scarpetta, Political Analyst

On 4 December Italians will vote in a referendum on a major constitutional reform. The referendum is highly significant both constitutionally and, given Prime Minister Matteo Renzi’s pledge to resign if the reform is defeated, politically. In this post Vincenzo Scarpetta offers an overview of the proposed reform and the key objections to it that have been raised by opponents. Despite an apparent change of tack from Renzi in recent weeks he suggests that a ‘No’ vote would almost certainly result in his resignation.

On Sunday 4 December, Italians will head to the polls to either approve or reject what is, in fact, a major constitutional reform tabled by the government of Prime Minister Matteo Renzi and adopted by the Italian parliament earlier this year. I say major because the reform, if confirmed by the referendum, would modify a third of the Italian Constitution – 47 articles out of a total 139. Most importantly, it would overhaul the country’s parliamentary system.

The Italian parliamentary system is unique in Europe

 Italy’s current parliamentary system, unique in Europe, finds its rationale in the historical context in which the Italian Constitution, which entered into force on 1 January 1948, was written. Italy had gone through two decades of fascist dictatorship and a civil war. Hence, the willingness to avoid future anti-democratic drifts explained the choice of a parliamentary system whereby the two chambers, both directly elected, have equal powers and can oversee one another. As a result, a government needs the backing of both chambers to enter office and must resign if it loses the confidence of one of them. Furthermore, no bill can become law unless it is adopted by both chambers – meaning that it can potentially go back and forth indefinitely.

Seventy years later, however, the context has changed significantly. Italy’s parliamentary system has increasingly been singled out as one of the reasons why the country has so far failed to undertake a number of wide-ranging reforms. Two chambers with equal powers, it has been argued, slow down the law-making process. Therefore, it came as no surprise that Renzi included this constitutional reform among his flagship pledges when he took over power in February 2014.

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