Making presidential and semi-presidential constitutions work

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1375-1407

  Cheibub, José Antonio ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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EID: 69249140998     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (274)

1. Juan J. Linz, Presidential or Parliamentary Democracy: Does It Make a Difference?, in THE Failure of PRESIDENTIAL DEMOCRACY: COMPARATIVE PERSPECTIVES 3, 5-44 (Juan J. Linz & Arturo Valenzuela eds., 1994).
2. E.g., Alfred Stepan & Cindy Skach, Constitutional Frameworks and Democratic Consolidation, 46 WORLD POL. 1 (1993) (gathering data to contrast pure presidentialism with pure parliamentarism in Latin American and Eastern European countries);
3. Arturo Valenzuela, Latin American Presidencies Interrupted, J. DEMOCRACY, Oct. 2004, at 5 (comparing the survival of a variety of presidential systems in Latin America from 1985-2004 despite interruptions occurring during presidential rule);
4. Leiv Marsteintredet & Einar Berntzen, Latin American Presidentialism: Reducing the Perils of Presidentialism Through Presidential Interruptions (Apr. 25-30, 2006) (unpublished European Consortium for Political Research workshop paper), available at http://www.essex.ac.uk/ecpr/events/jointsessions/ paperarchive/nicosia/ws20/Marsteintredet.pdf (using a comparative study of twenty cases of interrupted presidencies in Latin American to illustrate the potential consequences to presidentialism).
5. E.g., Adam Przeworski, DEMOCRACY AND THE MARKET 82-83 (1991) (discussing the potential for success of a new constitution in Poland based on prior constitutional history);
6. ROBERT Zuzowski, POLITICAL CHANGE IN EASTERN EUROPE SINCE 1989, at 141-147 (1998) (comparing and predicting the likelihood of survival of the new democratic governments in Eastern European countries).
7. E.g., Michael Bratton & Nicolas van de Walle, DEMOCRATIC EXPERIMENTS IN AFRICA 63-65 (1997) (discussing the forms of presidentialism that have been used in African political regimes);
8. Gerard Conac, Semi-presidentialism in a Francophone Context, in SEMI-presidentialism Outside Europe 84-87 (Robert Elgie & Sophia Moestrup eds., 2007) (describing the transitions to democracy in the African francophone countries);
9. Nicolas van de Walle, Presidentialism and Clientelism in Africa's Emerging Party Systems, 41 J. MOD. AFR. STUD. 297, 309-11 (2003) (examining the types of presidential systems that are emerging in African political systems).
10. See Adam Przeworski, Michael E. Alvarez, José Antonio Cheibub & Fernando Limongi, DEMOCRACY AND DEVELOPMENT: POLITICAL INSTITUTIONS AND WELL-BEING IN THE WORLD, 1950-1990, at 50-51 (2000) (finding that presidential democracies were almost three times more likely to experience a regime change than parliamentary democracies);
11. Stepan & Skach, supra note 2, at 7 (finding that "presidential systems had a democratic underachiever rate 3.4 times greater than did the parliamentary systems");
12. Michael E. Alvarez, Presidentialism and Parliamentarism: Which Works? Which Lasts? 300 (June 1998) (unpublished Ph.D. dissertation, University of Chicago) (on file with the University of Chicago Library) (finding that presidentialism's correlation to unrest is higher than parliamentarism's correlation to unrest).
13. E.g., Paul D'Anieri, UNDERSTANDING UKRAINIAN POLITICS 37-40 (2007) (recommending the establishment of a "well-functioning parliament" in response to issues with the presidential system in Ukraine).
14. E.g., Carlos Santiago Nino, Hyperpresidentialism and Constitutional Reform in Argentina, in INSTITUTIONAL DESIGN IN NEW DEMOCRACIES: EASTERN EUROPE AND LATIN AMERICA 161, 168-169 (Arend Lijphart & Carlos H. Waisman eds., 1996) (suggesting a variety of reforms to Argentina's presidential system for the following reasons: first, presidents elected by less than a majority cause "the formation of governments that lack strong popular support"; second, where the president and the legislature represent opposing parties, the legislature has a "strong incentive to savagely oppose the president to increase the opposition's likelihood of winning the next election"; and finally, the president can acquire additional power through the submission of the legislature and the judiciary, which undermines the rule of law).
15. See Juan J. Linz, The Perils of Presidentialism, J. DEMOCRACY, Winter 1990, at 51, 52, 56, 55-56 (arguing that presidentialism is "ineluctably problematic" and that parliamentarism "offers a better hope of preserving democracy" in nations with "deep political cleavages and numerous political parties").
16. E.g., MICHAEL COPPEDGE, STRONG PARTIES AND LAME DUCKS: PRESIDENTIAL Partyarchy and Factionalism in Venezuela 169-170 (1994) (discussing modifications to the presidential system in order to gain some of the benefits of parliamentarism while also avoiding the issue of stalemate that can occur in a parliamentary system).
17. E.g., TORSTEN PERSSON & GUIDO TABELINNI, THE ECONOMIC EFFECTS OF CONSTITUTIONS 2-5 (2003);
18. Kent Eaton, Parliamentarism Versus Presidentialism in the Policy Arena, 32 COMP. POL. 355, 356 (2000);
19. R. Kent Weaver & Bert A. Rockman, Assessing the Effects of Institutions, in DO INSTITUTIONS MATTER? GOVERNMENT CAPABILITIES IN THE UNITED STATES AND ABROAD 1, 16-19 (R. Kent Weaver & Bert A. Rockman eds., 1993).
20. E.g., José Antonio Cheibub, Presidentialism, Electoral Identifiability, and Budget Balances in Democratic Systems, 100 AM. POL. SCI. REV. 353, 354-56 (2006).
21. E.g., Alvarez, supra note 5 (manuscript at 162-65).
22. E.g., Arend Lijphart, Ronald Rogowski & R. Kent Weaver, Separation of Powers and Cleavage Management, in DO INSTITUTIONS MATTER? GOVERNMENT CAPABILITIES IN THE United STATES AND ABROAD, supra note 10, at 302.
23. E.g., Stephen M. Saideman et al., Democratization, Political Institutions, and Ethnic Conflict: A Pooled Time-Series Analysis, 1985-1998, 35 COMP. POL. STUD. 103 (2002).
24. E.g., Miriam Fendius Elman, Unpacking Democracy: Presidentialism, Parliamentarism, and Theories of Democratic Peace, SECURITY STUD., Summer 2000, at 91.
25. E.g., Daniel J. Minnich, Veto Players, Electoral Incentives and International Commitments: The Impact of Domestic Institutions on Intergovernmental Organization Membership, 44 EUR. J. POL. RES. 295 (2005).
26. E.g., Alicia Adeserà et al., Are You Being Served? Political Accountability and Quality of Government, 19 J.L. ECON. & ORG. 445 (2003);
27. Joe Foweraker & Todd Landman, Constitutional Design and Democratic Performance, DEMOCRATIZATION, Summer 2002, at 43;
28. John Gerring et al., Centripetal Democratic Governance: A Theory and Global Inquiry, 99 AM. POL. SCI. REV. 567, 569-70, 575-80 (2005).
29. E.g., David Samuels & Timothy Hellwig, Electoral Accountability and the Variety of Democratic Regimes, 38 BRIT. J. POL. SCI. 65 (2008).
30. 19.E.g., Matthew Sober Shugart, Presidentialism, Parliamentarism, and the Provision of Collective Goods in Less-Developed Countries, 10 CONST. POL. ECON. 53 (1999).
31. E.g., Cindy Skach, The "Newest" Separation of Powers: Semipresidentialism, 5 INT'L J. CONST. L. 93, 98 (2007).
32. Eugene D. Mazo, Constitutional Roulette: The Russian Parliament's Battles with the President over Appointing a Prime Minster, 41 STAN. J. INT'LL, 123, 131 (2005).
33. JOSÉ ANTONIO CHEIBUB, PRESIDENTIALISM, PARLIAMENTARISM, AND DEMOCRACY 2-3 (2007).
34. Id. at 140-45.
35. Id. at 145-48
36. Id. at 148.
37. Id.
38. Id. at 152.
39. For example, France created an independently elected presidency in 1958. LA CONSTITUTION [1958 CONST.] art. 6 (Fr.), translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Rüdiger Wolfram & Rainer Grote eds., 2009).
40. Another example is the Slovak Republic, which amended its Constitution in 1999 to allow direct election of its President by secret ballot for a five-year term. ÚSTAVA SLOVENSKEJ REPUBLIKY [Ostava] [Constitution] art. 101, § 2 (Slovk.), translated in 16 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra.
41. E.g., SUOMEN PERUSTUSLAKI [PERUSTUSLAKI] [Constitution] §§58, 60-61 (Fin.), translated in 1 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 28 (subjecting most of the President's decisions to the approval of the Government, which consists of ministers selected through a negotiated appointment process between the President and Parliament);
42. KONSTYTUCJA RZECZYPOSPOLITEJ POLSKIEJ [KONST. RP] [Constitution] arts. 126-127, 146, 154-162 (Pol.), translated in 15 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 28 (creating an independently elected President who has limited domestic executive and administrative powers but who can select the Council of Ministers to perform those functions, subject to the approval and ongoing support of the Sejm (the lower parliamentary house));
43. see also HOWARD J. WLARDA, POLITICS IN IBERIA: THE POLITICAL SYSTEMS OF SPAIN AND PORTUGAL 192-93 (1993) (describing the reduction of the institutional power of the President in Portugal);
44. Lucan A. Way, Pluralism by Default in Moldova, J. DEMOCRACY, Oct. 2002, at 127, 130 (describing the elimination of the popularly elected President in Moldova in 2000).
45. The following discussion borrows heavily from CHEIBUB, supra note 22, at 166-168
46. Id. at 166.
47. Id.
48. Id.
49. Id.
50. CONSTITUCÍN ARGENTINA [CONST. ARG] § 90, translated in 1 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 28;
51. CONSTITUIÇÃO FEDERAL [C.F.] art. 14, para. 5 (Braz.), translated in 3 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 28.
52. U.S. CONST. amend. XXII, § 1.
53. Bernard Manin, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT 175-77 (1996).
54. See José Antonio Cheibub & Adam Przeworski, Democracy, Elections, and Accountability for Economic Outcomes, in DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION 222, 230-32, 234-37 (Adam Przeworski et al. eds., 1999) (questioning the link between accountability and democracy);
55. Adam Przeworski, A Better Democracy, A Better Economy, BOSTON REV., Apr./May 1996, at 11 (positing that politicians may recognize, but may not act in, the best interests of the citizens, even at the risk of losing an election).
56. Linz, supra note 1, at 17.
57. Cheibub & Przeworski, supra note 38, at 234.
58. Id. at 235.
59. See infra subpart II(B).
60. There is a large body of literature on legislator term limits in American states, which is relevant for thinking about limits on presidential reelection. For an excellent review of this literature and for an argument about how it can be used to develop and test hypotheses about legislative theories.
61. see Christopher Z. Mooney, Univ. of Ill. at Springfield, Thank You, Paul Jacob: Term Limits as a Boon to Legislative Scholarship, Presentation at the Annual Meeting of the American Political Science Association (Aug. 30, 2007), available at http://www.igpa.uillinois.edu/system/files/WP152- Mooney%20TermLimits.pdf.
62. See, e.g., Scott Mainwaring, Presidentialism, Multipartism, and Democracy: The Difficult Combination, 26 COMP. POL. STUD. 198, 215, 215-16 (1994) (arguing that the multiparty system can be the "Achilles' heel" of a president's effectiveness).
63. Id.
64. Id. at 220-22.
65. Id. at 217-18.
66. Id.
67. See, e.g., Matt Golder, Presidential Coattails and Legislative Fragmentation, 50 AM. J. POL. SCI. 34, 41-43 (2006) (concluding from empirical data that the number of presidential candidates influences legislative fragmentation). The following discussion borrows heavily from CHEIBUB, supra note 22, at 168-69.
68. See Yen-Tu Su, Beyond Nightmare and Hope: Engineering Electoral Proportionality in Presidential Democracies, 30 J. LEGIS. 205, 240-41 (2004) (observing that the use of single-member districts promotes accountability and strong ties between voters and representatives).
69. See id. at 228 ("[T]o restrict the fragmentation of party system, we can decrease the electoral proportionality of legislative elections by imposing a higher electoral threshold.").
70. See id. at 223 (arguing that imposing a higher threshold of exclusion on the party system can prevent fragmentation).
71. See Mainwaring, supra note 44, at 225 (arguing that countries could make presidential democracy more viable "by introducing a higher threshold, by reducing district magnitude in proportional systems, or by having concurrent congressional and presidential elections").
72. Id. at 224-25.
73. See id. at 215-16 (noting that presidents in systems with fewer parties are more likely to enjoy legislative support, which decreases the potential for ideological conflict or immobility of the government).
74. CHEIBUB, supra note 22, at 95-98;
75. José Antonio Cheibub, Minority Governments, Deadlock Situations, and the Survival of Presidential Democracies, 35 COMP. POL. STUD. 284, 298-302 (2002);
76. see also PRZEWORSKI, ALVAREZ, CHEIBUB & LlMONGI, supra note 5, at 134 (showing that "[p]residential democracies appear particularly vulnerable" when "the largest legislative party controls more than one-third but less than one-half of seats").
77. CHEIBUB, supra note 22, at 81-83.
78. Id. at 86-94.
79. Id. at 87-92.
80. DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT 36-41 (2d ed. 2000).
81. Id. at 637.
82. Id. at 639-41.
83. Id. at 639-40.
84. Id. at 650.
85. Robert Richie, Instant Runoff Voting: What Mexico (and Others) Could Learn, 3 ELECTION L.J. 501, 502 (2004);
86. see also DAVID M. FARRELL, ELECTORAL SYSTEMS: A COMPARATIVE INTRODUCTION 51-52 (2001) (identifying Chile, Columbia, and Ecuador as Latin American nations that use a two-round election system).
87. FARRELL, supra note 65, at 168.
88. See Linz, supra note 1, at 21, 21-22 (arguing that two-round elections produce the "dysfunctional consequence[]" of reinforcing party fragmentation rather than encouraging a reduction in the number of parties).
89. Matthew Soberg Shugart, The Electoral Cycle and Institutional Sources of Divided Presidential Government, 89 AM. POL. SCI. REV. 327, 339 tbl.A-1 (1995).
90. Id.
91. See U.S. CONST., art. 1, § 2, cl. 1 (requiring a two-year term for representatives);
92. id. art. I, § 3, cl. 2 (dividing the Senate into thirds, each of which is elected every two years);
93. id. art. II, § 1, cl. 1 (providing for a four-year presidential term).
94. Golder, supra note 49, at 40;
95. see also Shugart, supra note 68, at 330, 330-31 (showing that "the incidence of divided government will be greater" when presidential and legislative elections are nonconcurrent)..
96. See Golder, supra note 49, at 40 (showing this strong coattails effect in concurrent presidential and legislative elections).
97. See, e.g., MATTHEW SOBERG SHUGART & JOHN M. CAREY, PRESIDENTS AND ASSEMBLIES: CONSTITUTIONAL DESIGN AND ELECTORAL DYNAMICS 19 (1992) ("Powers are never entirely separate under presidentialism-nor were they intended to be.... [P]residentialism seeks to protect mutual checks, which in turn requires that powers overlap considerably.").
98. The following discussion borrows heavily from CHEIBUB, supra note 22, at 170-73.
99. E.g., U.S. CONST., art. I, § 7.
100. E.g., id. The majority of Latin American presidential constitutions also mandate a two-thirds majority to override a veto.
101. See Eduardo Alemán & Thomas Schwartz, Presidential Vetoes in Latin American Constitutions, 18 J. THEORETICAL POL. 98, 101 tbl.1 (2006) (examining the override rule in eighteen Latin American countries).
102. E.g., U.S. CONST., art. I, § 7;
103. CONST. ARG. § 83.
104. See generally John M. Carey & Matthew Soberg Shugart, Calling Out the Tanks or Filling Out the Forms?, in EXECUTIVE DECREE AUTHORITY 1 (John M. Carey & Matthew Soberg Shugart eds., 1998) (defining, analyzing, and classifying different forms of decree power found in various countries).
105. Brian R. Sala, In Search of the Administrative President: Presidential "Decree" Powers and Policy Implementation in the United States, in EXECUTIVE DECREE AUTHORITY, supra note 78, at 254, 260-61.
106. Such vague special circumstances include "relevance," "urgency," and "economic or financial matters, when so required by the national interest." See, e.g., Timothy J. Power, The Pen Is Mightier than the Congress: Presidential Decree Power in Brazil, in EXECUTIVE DECREE AUTHORITY, supra note 78, at 197, 202 (discussing consideration of "relevance" and "urgency" in Brazil);
107. Gregory Schmidt, Presidential Usurpation or Congressional Preference?: The Evolution of Executive Decree Authority in Peru, in EXECUTIVE DECREE AUTHORITY, supra note 78, at 104, 116 (discussing consideration of "economic or financial matters, when so required by the national interest" in Peru). But decree powers under "special" circumstances are not to be confused with constitutional emergency powers, which allow for the temporary suspension of some constitutional provisions in specified circumstances.
108. See Delia Ferreira Rubio & Matteo Goretti, When the President Governs Alone: The Decretazo in Argentina, 1989-93, in EXECUTIVE DECREE AUTHORITY, supra note 78, at 33, 34 (distinguishing "delegated decree authority" from "emergency powers").
109. See Carey & Shugart, supra note 78, at 9-12, 10 tbl.1.1 (reporting that of the eleven constitutions examined, Argentina, Brazil, Chile, Columbia, Italy, Peru, and Russia have constitutional provisions allowing certain presidential decrees to go into effect immediately).
110. See id. (reporting that of the eleven constitutions examined, Ecuador and France have constitutional provisions providing for a time lapse after issuance of certain presidential decrees so that the legislature may take action if desired).
111. See id. (reporting that of the eleven constitutions examined, Chile, Columbia, Ecuador, France, Peru, and Russia have constitutional provisions allowing certain presidential decrees to automatically become law without action on the part of the legislature).
112. See id. (reporting that of the eleven constitutions examined, Argentina, Brazil, Columbia, France, and Italy have constitutional provisions providing that certain presidential decrees will lapse without action on the part of the legislature).
113. E.g., C.F. art. 62 (Braz.) ("In relevant and urgent cases, the President of the Republic may adopt provisional measures with the force of law; such measures shall be submitted immediately to the National Congress.");
114. CONSTITUCIÓN POLÍTICA DE LA REPUBLICA DE CHILE [CONST. CHILE] art. 74, translated in 4 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 28 (allowing the President to invoke "the urgency of a project" and thus speed the legislative process);
115. BUNREACHT NA HÉIREANN, 1937 [IR. CONST.], art. 24 translated in 9 CONSTITUTIONS OF THE COUNTRIES OF THE World, supra note 28 (allowing the President the opportunity to determine whether a bill is "urgent and immediately necessary for the preservation of the public peace and security").
116. E.g., C.F. art. 62 (requiring congressional action within sixty days of the President's adoption of provisional measures);
117. CONST. CHILE art. 74 (mandating that the National Congress respond within thirty days to any bill which the President has deemed urgent);
118. Ir. CONST., 1937, art. 24 (permitting the time frame for considering an urgent bill to be abridged but allowing the specific length of time to be determined by resolution).
119. See U.S. CONST, art. 1, § 1 (granting all legislative powers to the Senate and House of Representatives).
120. See Carey & Shugart, supra note 78, at 6 (describing legislative-agenda powers of presidents in various regimes).
121. See id. (describing the response of Chile's legislature to the executive's submission of appropriations legislation).
122. See, e.g., PETER SIAVELIS, THE PRESIDENT AND CONGRESS IN POSTAUTHORITARIAN CHILE: INSTITUTIONAL CONSTRAINTS TO DEMOCRATIC CONSOLIDATION 191 (2000) (concluding that despite an "exaggerated" Chilean presidency, "the success of the Aylwin and Frei administrations demonstrates that presidentialism can, given certain circumstances, work well in Chile");
123. Argelina Cheibub Figueiredo & Fernando Limongi, Mudança constitutional, desempenho do legislativo e consolidação institutional [Constitutional Change, Legislative Performance and Institutional Consolidation], 29 REVISTA BRASILEIRA DE CIÊNCIAS SOCIAS 175 (1995) (Braz.), translated in 2000 BRAZILIAN REV. SOC. SCI. (SPECIAL ISSUE) 71, 91-92 [hereinafter Figueiredo & Limongi, Constitutional Change] (concluding that the 1988 Brazilian Constitution's maintenance of the President's broad legislative powers are justified because of an otherwise obstructive legislature);
124. Argelina Cheibub Figueiredo & Fernando Limongi, Presidential Power, Legislative Organization, and Party Behavior in Brazil, 32 COMP. POL. 151, 155, 158 (2000) [hereinafter Figueiredo & Limongi, Presidential Power] (finding that between 1989 and 1997, bills introduced by Brazilian presidents were successfully enacted 86% of the time largely through presidential engagement with the legislature);
125. Octavio Amorim Neto, Gary W. Cox & Mathew D. McCubbins, Agenda Power in Brazil's Câmara dos Deputados, 1989-98, 55 WORLD POL. 550, 574 (2003) (contending that President Cardoso's successful creation of an "agenda cartel" in the Brazilian Congress demonstrates that "there is no reason to suppose that he was outside the normal range of success" compared to premiers in foreign parliamentary systems).
126. See SLAVELIS, supra note 90, at 23, 151 (observing that the Chilean executive's control of the legislative agenda allows it to be "quite successful in seeing its proposals become laws of the republic" but also lamenting that such agenda control "limits the effectiveness of the legislature as a deliberative body");
127. Figueiredo & Limongi, Presidential Power, supra note 90, at 151-52 (arguing that Brazilian presidents' "considerable degree of success in enacting their legislative agenda" is due to "[t]he extensive legislative powers of the president," which "allow the executive both to control the legislative agenda and to restrict the legislature's 'transformative power'").
128. David J. Samuels & Scott Mainwaring, Strong Federalism, Constraints on the Central Government, and Economic Reform in Brazil, in FEDERALISM AND DEMOCRACY IN LATIN AMERICA 85, 94-95 (Edward L. Gibson ed., 2004).
129. See Ben GOERTZEl & STEPHAN VLADIMIR BUGAJ, THE PATH TO POSTHUMANITY 379 (2006) (noting that Brazil's large economy is highly economically diverse "with huge variations in development level across industries").
130. See SCOTT P. MAINWARING, RETHINKING PARTY SYSTEMS IN THE THIRD WAVE OF DEMOCRATIZATION: THE CASE OF BRAZIL 5, 4-5 (1999) (noting that Brazil is "an exceptional case of party weakness" where parties have little legitimacy and frequent turnover);
131. RIORDAN ROETT, BRAZIL: POLITICS IN A PATRIMONIAL SOCIETY 33 (1999) (discussing the fragility of the Brazilian political party structure and their "weak roots in society").
132. See Samuels & Mainwaring, supra note 92, at 98 ("An open-list proportional representation system in which states serve as electoral districts forces politicians to compete against members of their own party as well as candidates from other parties for seats.").
133. See id. at 97 ("In the absence of strong national party organizations and of a national legislature that controls the purse strings, federal deputies rely on state governors to provide political sustenance.").
134. See Figueiredo & Limongi, Presidential Power, supra note 90, at 158 (observing that Brazilian presidents have passed their agendas "by building government coalitions through the distribution of ministries to political parties and thereby securing the votes they needed in congress")
135. C.F. arts. 66, 84, 64, 61. The legislative success of the government is also aided by the fact that Congress is highly centralized in its organization, with party leaders yielding enough power to bypass the work of permanent committees and set the agenda for the floor. This organization, of course, is not a constitutional feature and resulted from a decision of the assembly itself. However, it is essential for allowing the President to form stable legislative coalitions with a relatively small number of political parties, despite all the forces that conspire against such stability. Octavio Amorim Neto, The Puzzle of Party Discipline in Brazil, 44 LATIN AM. POL. & SOC'Y 127, 132 (2002) (reviewing ARGELINA CHEIBUB FlGUEIREDO & FERNANDO LlMONGI NETO, EXECUTIVO E LEGISLATIVO NA NOVA ORDEM CONSTITUCIONAL [THE EXECUTIVE AND LEGISLATIVE BRANCHES IN THE NEW CONSTITUTIONAL ORDER] 55-67 (1999));
136. see also Figueiredo & Limongi, Presidential Power, supra note 90, 159-61 (showing that in Brazil the tight control of party leaders over other legislators allows the President to influence the legislative agenda);
137. cf. Leslie Elliott Armijo et al., Compared to What? Assessing Brazilian Political Institutions, 39 COMP. POL. STUD. 759, 768 (2006) (concluding that there is "constant negotiation" between the President and the multiparty Congress, which "is of utmost importance for democratic legitimacy").
138. See generally Figueiredo & Limongi, Presidential Power, supra note 90 (arguing that presidential legislative powers provide presidents with a mechanism to encourage legislative branch cooperation).
139. See id. at 167 (contending that because "the executive-legislative bargaining process is structured along party lines," it is therefore "rational for each representative to act as a party member and to support the party leaders").
140. See id. at 168 (concluding that the legislature's acceptance of the President's proposals "prevails, because centralized control over the agenda has profound effects on party discipline").
141. Amorim Neto, Cox & McCubbins, supra note 90, at 573-74.
142. See, e.g., Carlos Pereira, Timothy J. Power & Lucio Renno, Under What Conditions Do Presidents Resort to Decree Power? Theory and Evidence from the Brazilian Case, 67 J. POL. 178, 180 (2006) (discussing the reasons presidents may choose to use the "extraordinary" decree power rather than "ordinary mechanisms of legislative initiative").
143. Id.
144. Id.
145. See id. (stipulating that the unilateral perspective "views executive orders or decrees as instruments that the executive uses to bypass adversarial or noncooperative legislative bodies").
146. See id. at 186 (suggesting that when "the presidential cabinet's political 'coverage' in Congress" and the degree of "pro-presidential parties' share of seats within the government's floor voting coalition" are high, there is likely to be a strong and "satisfied coalition arrayed behind the president").
147. E.g., OCTAVIO AMORIM NETO, PRESIDENCIALISMO E GOVERNABILIDADE NAS AMÉRICAS 41 (2006) (concluding from statistical analysis of Latin American governments that presidents who exchange ministerial posts to gain a cooperative legislature usually disproportionately select partisan members).
148. Pereira, Power & Rennó, supra note 103, at 181.
149. John M. Carey & Matthew Soberg Shugart, Institutional Design and Executive Decree, in Executive Decree Authority, supra note 78, at 274, 295.
150. See Pereira, Power & Rennó, supra note 103, at 195 (showing that the data relating to the first term of Brazilian President Fernando Henrique Cardoso is best explained by a delegation theory).
151. See Amorim Neto, Cox & McCubbins, supra note 90, at 560 (arguing that the presidential decrees in Brazil are best thought of as "powerful policy-making instruments]... [that] allow the executive to unilaterally change the status quo").
152. See, e.g., JOHN D. HUBER, RATIONALIZING PARLIAMENT 26-27 (1996) (demonstrating that the institutional constraints on the decree power of the President in the French system greatly influence the ultimate legislation channel).
153. See, e.g., Andrés Malamud, Presidential Diplomacy and the Institutional Underpinnings of MERCOSUR: An Empirical Examination, LATIN AM. RES. REV. 138, 153 (2005) (pointing out that the intervention of the Brazilian President, via the decree power, in the Brazil-Argentina sugar dispute of 2000 was successful because it was backed by institutional capabilities within the Brazilian system).
154. Note that the institutional perspective, which does not necessarily see a conflict between the executive and the legislature in the former's use of decrees, is often interpreted as a variant of delegation theory. See Pereira, Power & Renno, supra note 103, at 181 (espousing a delegation theory in which "[executive orders also satisfy the preferences of legislators, because legislators are the actors who delegate this power and who have ample opportunity to overturn ... any undesirable presidential policies"). This, however, is not correct. Delegation theory sees the legislature as the principal and the executive as the agent to whom its powers are transferred.
155. See id. (noting that many other authors have grounded the delegation theory in principal-agent doctrines). The institutional perspective does not see the two bodies in such a hierarchical relationship; rather, if there is a hierarchy, it is one that institutionally favors the executive only in that it gives that body the ability to lead the process of policy formation.
156. See HUBER, supra note 113, at 184, 184-188 (analyzing why, "in parliamentary democracies, the cabinet plays a more important role than the parliament in crafting the policies of the state").
157. See, e.g., HUBER, supra note 113, at 31 (summarizing the French government's authority to implement its budget by decree if the legislature does not vote on a budget within the specified time frame).
158. See id. at 29-30 (cataloging these trends and the inability of conventional explanations of executive power to account for them).
159. See Pereira, Power & Rennó, supra note 103, at 188 (stating that "a study of executive decree authority [from a political perspective]... must provide controls for the very real pressures of macroeconomic management" since presidents regularly use decrees, often by surprise, to deal with "grave socioeconomic crises").
160. See, e.g., John Keeler, Executive Power and Policy-Making Patterns in France: Gauging the Impact of Fifth Republic Institutions, 16 W. EUR. POL. 518, 532 (1993) (noting how the French executive has used its emergency powers and decrees to create laws that were never voted on by Parliament).
161. There is, however, a sizeable specific literature on which this perspective is based. I refer to works revolving around the notions of a strong executive and a "rationalized" parliament, which became current in post-WWII Europe and which saw their epitome in the emergence of the French Fifth Republic. These systems sought to create "effective government authority" by structuring executive-legislative relations in such a way as to strengthen the former and to centralize and streamline the latter.
162. See HUBER, supra note 113, at 1-2 (illustrating the Fifth Republic's dramatic restriction of institutional arrangements between the French executive and legislature); Keeler, supra note 119, at 520-28 (explaining the Fifth Republic's constitutional articles that allow for the executive to control legislation). As some of the work done on these structures has demonstrated, they did not imply dominance of the executive.
163. See HUBER, supra note 113, at 23-24 (dispelling the notion that French institutional arrangements ensure presidential supremacy and parliamentary impotence).
164. See, e.g., Pereira, Power & Renń, supra note 103, at 182 (arguing that the decree power is correlated to the political environment by noting that the constitutional powers in Brazil between 1988 and 1998 were constant, while the degree of presidential political support was quite volatile). Decree rules in Brazil were changed in 2001 in ways that matter for understanding their usage. See Gabriel L. Negretto, Government Capacities and Policy Making by Decree in Latin America: The Cases of Brazil and Argentina, 37 COMP. POL. STUD. 531, 544 (2004) (explaining that a 2001 amendment to the Brazilian Constitution prohibits the President from reissuing a provisional measure whose term for approval has expired).
165. See Pereira, Power & Rennó, supra note 103, at 188-189 (asserting that certain contextual factors such as presidential popularity and congressional support-factors which vary over time and among administrations-help explain why decrees have been used at such varying rates).
166. We have yet to complete our research so it is not yet available, but the following paragraph reflects what we expect it will show.
167. See Aurel Croissant, Legislative Powers, Veto Players, and the Emergence of Delegative Democracy: A Comparison of Presidentialism in the Philippines and South Korea, Democratization, Autumn 2003, at 68, 93 (urging scholars to analyze the presidentialism of any particular system within the institutional architecture of the constitution and the national party system).
168. José A. Cheibub & Svitlana Chemykh, Constitutions and Democratic Performance in Semi-presidential Democracies, 9 JAPANESE J. POL. SCI. 269, 273 (2008).
169. See, e.g., id. at 287-91 (conducting statistical analyses aimed at evaluating the correlation between governmental stability and particular combinations of presidential powers).
170. See, e.g., GIOVANNI SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING: AN INQUIRY INTO STRUCTURES, INCENTIVES AND OUTCOMES 86, 92, 105, 116, 131-32 (1994) (classifying the United States, Brazil, and the Philippines as presidential; classifying Italy, Germany, and Denmark as parliamentary; and classifying France and Portugal (1976-1982) as semi-presidential);
171. Skach, supra note 20, at 93 (noting that Ukraine adopted semi-presidentialism as its form of government).
172. See Tony Burkett, Germany 1948-1978: Evolution of the Bonn Republic, 32 PARLIAMENTARY AFF. 176, 185 (1978) (stating that the German presidency is a "largely ceremonial position");
173. Erik Damgaard, Denmark: Delegation and Accountability in Minority Situations, in DELEGATION AND ACCOUNTABILITY IN PARLIAMENTARY DEMOCRACIES 281 (Kaare Strøm et al. eds., 2006) (characterizing the Danish monarch's powers as ceremonial not political);
174. Jeanne L. Schroeder, The Stumbling Block: Freedom, Rationality, and Legal Scholarship, 44 WM. & MARY L. REV. 263, 323-24 n.237 (2002) (remarking that the Italian presidential office is formalistic with minimal effective power).
175. See SARTORI, supra note 127, at 92 (listing Brazil and the Philippines as countries that are both modeled on the U.S. "prototype" with an executive that is neither appointed nor dismissed by parliamentary vote).
176. Id.
177. See CHEIBUB, supra note 22, at 43 (listing France, Portugal, and Ukraine as having a mixed system);
178. SARTORI, supra note 127, at 131-32 (listing France and Portugal (from 1976 to 1982) as mixed, semi-presidential systems).
179. See supra subparts II(A)-(B).
180. See, e.g., Robert L. Maddex, CONSTITUTIONS OF THE WORLD 170 (3d ed. 2008) (noting that Germany's Federal President is "head of state and moral leader," elected by "a federal convention consisting of the members of the upper house of the legislature and an equal number of members elected by the state legislatures");
181. id. at 317 (noting that New Zealand recognizes England's monarch as "the sovereign in right of New Zealand" but also noting that she "acts through an appointed representative, the governor-general," who is "commander in chief of the armed forces, but in title only").
182. See, e.g., AUSTL. CONST. §§7, 13 (providing for direct election of the Australian Senate, for six-year terms, to be elected on a staggered schedule every three years);
183. DANMARKS RLGES GRUNDLOV [DR GRUNDLOV] [Constitution] §§ 29, 32 (Den.), translated in 5 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 28 (ordaining that any Danish citizen may vote for Members of Parliament, whose terms expire after four years);
184. COSTITUZIONE [COST.] arts. 55-58, 60-61 (Italy), translated in 9 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 28 (dividing Italy's Parliament into two houses, permitting direct elections of both, and setting terms for both at five years).
185. See Alan Siaroff, COMPARATIVE EUROPEAN PARTY SYSTEMS 105 (2000) (noting that the "vast majority of European governments use the system of positive parliamentarianism," which requires a vote of investiture by parliament before a new government can assume power but also noting that such a vote is not required in the United Kingdom, the Nordic countries, the French Fifth Republic, Austria, Malta, and Portugal).
186. See, e.g., DR GRUNDLOV § 15 (Den.) (providing only for a parliamentary vote of no confidence);
187. GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [Constitution] art. 68 (F.R.G.), translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 28 (permitting a vote of confidence to be brought by the Federal Chancellor);
188. see also Michael Laver & Kenneth A. Shepsle, Government Accountability in Parliamentary Democracy, in DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION, supra note 38, at 279, 280-81 (noting that a confidence motion is brought by a government, as opposed to a no-confidence motion, which is brought by its opposition in the legislature).
189. See Laver & Shepsle, supra note 136, at 285-86 (exploring how governments in parliamentary democracies are subject to maintaining the confidence of parliament).
190. See HUBER, supra note 113, at 25 (calling the French President's power of dissolution his "most important one").
191. See Elaine Sciolino, Sarkozy, Elected in France, Vows Break with Past, N.Y. TIMES, May 7, 2007, at A1 (reporting that Sarkozy defeated his opponent by 6.2% of the vote, with 84% of the French electorate voting);
192. Craig S. Smith, Violent Protests Greet Sarkozy's Election in France, N.Y. TIMES, May 8, 2007, at A8 (reporting that in the wake of Sarkozy's election protestors set fire to 730 cars across France).
193. Gunnar Helgi Kristinsson, Iceland, in SEMI-PRESIDENTIALISM IN EUROPE 86, 87 (Robert Elgie ed., 1999).
194. See Tapio Raunio, The Changing Finnish Democracy: Stronger Parliamentary Accountability, Coalescing Political Parties and Weaker External Constraints, 27 SCANDINAVIAN POL. Stud. 133, 133, 149 (2004) (describing how the Finnish government has become more parliamentarized, and the President less powerful, since the new Constitution came into force in 2000).
195. SARTORI, supra note 127, at 131-32.
196. STJÓRNARSKRÁ LÝôDVELDISINS ÍSLANDS [STJÓRNARSKRÁ] [Constitution] (Ice.), translated in 8 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 28.
197. Die Verfassung des Deutschen Reichs of 1919 [Weimarer Verfassung] [Constitution], translated in THE DEMOCRATIC TRADITION: FOUR GERMAN CONSTITUTIONS 147-190 (Elmar M. Hucko ed., 1923).
198. 1958 CONST.
199. See Maurice Duverger, A New Political System Model: Semi-presidential Government, 8 EUR. J. POL. Res. 165, 177 (1980) (analyzing the constitutions and political practices of several European countries, including Iceland, France, and Germany under the Weimar Republic, to explain why "relatively homogeneous constitutions are applied in radically different ways").
200. SARTORI, supra note 127, at 126-27;
201. SHUGART & CAREY, supra note 73, at 71-72;
202. Duverger, supra note 146, at 167.
203. SARTORI, supra note 127, at 128;
204. SHUGART & CAREY, supra note 73, at 68;
205. Duverger, supra note 146, at 173.
206. SHUGART & CAREY, supra note 73, at 24.
207. SARTORI, supra note 127, at 122;
208. SHUGART & CAREY, supra note 73, at 23;
209. Duverger, supra note 146, at 165.
210. WEIMARER VERFASSUNG, art. 53.
211. 1958 CONST., art. 8.
212. STJÓRNARSKRÁ art. 15.
213. Id. art. 24.
214. 1958 CONST., art. 12.
215. WEIMARER VERFASSUNG, art. 25.
216. 1958 Const., art. 16;
217. Weimarer VERFASSUNG, art. 48.
218. WEIMARER VERFASSUNG, art. 48.
219. STJÓRNARSKRÁ art. 28.
220. Id.
221. WEIMARER VERFASSUNG, art. 73.
222. 1958 CONST. art. 11.
223. Id. art. 10.
224. WEIMARER VERFASSUNG, art. 68.
225. Id. art. 52.
226. STJÓRNARSKRÁ art. 25.
227. Id. art. 2.
228. Id. art. 16.
229. 1958 CONST. art. 21.
230. Id. art. 9.
231. Id. art. 13.
232. WEIMARER VERFASSUNG, art. 52.
233. This is consistent with the lack of consensus in the literature about the effect of presidential powers in semi-presidential democracies. Measures of presidential powers in semi-presidential constitutions are not always important in accounting for variation in the performance of these systems. See, e.g., SHUGART& Carey, supra note 73, at 166, 165-66 (1992) (concluding that granting "great legislative powers" to the president, or "granting shared authority over the composition of the cabinet" are "potentially dangerous arrangement[s]");
234. Mikhail V. Beliaev, Presidential Powers and Consolidation of New Post-communist Democracies, 39 COMP. POL. STUD. 375, 375 (2006) ("[PJolitical regimes with stronger executive powers of presidents exhibit worse contemporaneous democratic performance and are less able to consolidate as democracies.");
235. Timothy Frye, A Politics of Institutional Choice: Post-communist Presidencies, 30 COMP. POL. STUD. 523, 527 (1997) (stating that formal powers of the presidency "are a significant predictor of progress in economic reform in the countries of the former Soviet Union and Eastern Europe");
236. Lee Kendall Metcalf, Measuring Presidential Power, 33 COMP. POL. STUD. 660, 679, 678-79 (2000) (finding that "democratic failure is not very likely in" either parliamentary or semi-presidential regimes);
237. José Antonio Cheibub & Svitlana Chernykh, Mixed Constitutions and Democratic Performance: Do Popularly Elected Presidents Matter in Parliamentary Systems?, Paper Presented at Conference on Separation of Powers at the University of Haifa 21 (Dec. 19-21, 2007), available at http://law.haifa.ac.il/events/events-files/Cheibub%20and%20Chernykh%20Haifa.pdf ("[S]ystems which require the government to obtain parliamentary confidence and at the same time institute a directly elected president are not any different from pure parliamentary systems.").
238. Consider, for example, the fact that Viktor Yushchenko, Ukraine's constitutionally strong President and the winner of a hotly contested presidential race in March 2005, finally appointed his opponent in that election, Viktor Yanukovich, as the Prime Minister. Andrew E. Kramer, Ukraine Leader Forced to Name Ex-rival as Prime Minister, N.Y. TIMES, Aug. 3, 2006, at A3. This followed a series of attempts to form a government that would exclude Yanukovich's party from the government, which proved politically unviable. Id.
239. See Raunio, supra note 141, at 133 ("The new unified constitution, in force since March 2000, completed a period of constitutional change that curtailed presidential powers and brought the Finnish political system closer to a standard version of parliamentary democracy.").
240. Perustuslaki § 61.
241. Id. § 64.
242. See Paul R. Verkuil, Cross Currents in Anglo-American Administrative Law, 27 WM. & Mary L. REV. 685, 691 (1986) (explaining that in England the "Parliament and the executive are one, and parliamentary majorities form the government").
243. DR GRUNDLOV § 3. The 1953 Constitution allowed for a female head of state by stipulating that the royal power could be inherited by both men and women. Id. § 2. Since 1972, the head of state in Denmark has been a Queen. Yet, at least in its English translation, the Constitution refers throughout to the power of the King, not the Queen or the Monarch. Id. passim.
244. Id. § 2.
245. Id. § 14.
246. One of the common themes in the literature on democracy and democratization in Eastern Europe is the fact that so many countries adopted a constitution that called for a directly elected president. E.g., Mark Freeman, Constitutional Frameworks and Fragile Democracies: Choosing Between Parliamentarianism, Presidentialism and Semi-presidentialism, 12 PACE INT'L L. REV. 253, 259-62 (2000) (observing that the semi-presidential model is used in much of Eastern Europe);
247. Stepan & Skach, supra note 2, at 4 n.10 (noting that in Eastern Europe the "norm is a directly elected president"). It is worth noting, however, that the truly remarkable fact about the constitutions these countries adopted is that they all called for a government based on assembly confidence.
248. See Andrzej Rapaczynski, Constitutional Politics in Poland: A Report on the Constitutional Committee of the Polish Parliament, 58 U. CHI. L. REV. 595, 624 (1991) ("[M]any Poles (along with other Eastern Europeans)... view the government as in need of constant parliamentary authorization. Typically, this yields a significant constituency for such arrangements as ... the parliament's power to vote no confidence for the government or any particular minister at any time ...."). As a matter of fact, many countries adopted an effective parliamentary formula even before they wrote a new constitution.
249. See Jon Elster, Constitutionalism in Eastern Europe: An Introduction, 58 U. CHI. L. REV. 447, 459-64 (1991) (describing the constitution-making process in a number of Eastern European countries where the constitution had to be approved by two-thirds of parliament).
250. See WEIMARER VERFASSUNG, art. 41 (providing for the election of the President by the whole German people);
251. see also Max Weber, Parliament and Government in a Reconstructed Germany, translated and reprinted in 2 MAX WEBER: ECONOMY AND SOCIETY app. 2 at 1461 (Guenther Roth & Claus Wittich eds., 1978) (calling for " democratization of the suffrage" in post-WWI Germany).
252. See John C. Reitz, Political Economy and Separation of Powers, 15 TRANSNAT'L L. & CONTEMP. PROBS. 579, 603 (2006) ("Under the leadership of Charles DeGaulle, France attempted to create a President who would be above the political fray that inevitably surrounds the Parliament, the Prime Minister, and the Prime Minister's Cabinet.").
253. See, e.g., THE FEDERALIST No. 10, at 76 (James Madison) (Clinton Rossiter ed., 1961) (arguing that a "pure democracy," in which there is no check on the will of the majority, is characterized by "turbulence and contention" and is "incompatible with personal security or the rights of property");
254. Su, supra note 50, at 234 ("Doubtless, a central objective of traditional constitutionalism is to prevent the tyranny of the majority ....").
255. See CONST. KIRIBATI art. 33 (creating a head of state, the Beretitenti, who has no specific term limits and may be removed by a no-confidence vote from the legislature);
256. CONST. Marsh. Is. art. 5, §§ 3, 7 (creating a President without term limits who is subject to a no-confidence vote from the legislature);
257. S. AFR. CONST. 1996 §§ 83, 102 (creating a unified head of state and government who is also subject to a no-confidence vote).
258. S. AFR. CONST. 1996 § 83.
259. Id. § 102;
260. S. AFR. (Interim) CONST. 1993 § 87.
261. Michael Wines, A Stormy Test for Democracy in South Africa, N.Y. TIMES, Sept. 23, 2006, at A1 (recording the beginning of now-President Jacob Zuma's campaign for the leadership of the ANC and documenting the party's complete stranglehold on political power since Nelson Mandela and the end of apartheid in 1994).
262. But see World Briefing South Africa: ANC Claims Win with 66% of Vote, L.A. TIMES, Apr. 25, 2009, at A28 (recording the ANC's latest electoral victory in 2009, which, while resounding, was significantly less than its 70% margin in 2004 and left the party just short of the threshold required to amend the Constitution at will).
263. See, e.g., Cindy Skach, BORROWING CONSTITUTIONAL DESIGNS 93 & n.1 (2005) (referring to the Fifth Republic as "de Gaulle's Republic" and calling its democracy a comparative improvement);
264. Rett R. Ludwikowski, Latin American Hybrid Constitutionalism: The United States Presidentialism in the Civil Law Melting Pot, 21 B.U. INT'L L.J. 29, 59-60 (2003) ("The stability [of the Fifth Republic] results... from bringing the French model closer to a well-tested parliamentary-cabinet system purged of 'spasmodic' features of quasi-presidentialism or excesses of 'pure' parliamentarism of the Third and Fourth Republic.");
265. Shiva Eftekhari, Note, France and the Algerian War: From a Policy of "Forgetting" to a Framework for Accountability, 34 COLUM. HUM. RTS. L. REV. 413, 416 (2003) ("By granting the Executive preponderant power, the Fifth Republic ended the institutional instability that had resulted from parliamentary dominance.").
266. Skach, supra note 189, at 93 & n. 1.
267. 1958 CONST. art. 43.
268. Id. art. 49. These procedures, which have been often used by all governments since 1959, have made the French government highly successful; its rate of legislative success, as defined above, was 69.23% between 1946 and 1958 and 84.8% between 1959 and 1983. Cheibub & Chernykh, supra note 125, at 295 n.l7. Unfortunately, I do not have the information on the years of cohabitation of left and right.
269. HUBER, supra note 113, at 2.
270. Cheibub & Chernykh, supra note 125, at 296. The number of countries with these provisions ranges from eight to over twenty. Id. at n.18. Prior to 1919 there were no democracies that combined a system of assembly confidence with a directly elected president. Id. at 288 n.11. In 1919 both Germany and Finland adopted a mixed constitution, although in Germany the first President was elected by the Parliament and in Finland the President was elected indirectly (although popularly) until 2000. Id.
271. See SLAVELIS, supra note 90 (recognizing empirically the efficacy of Chile's strong presidential authority);
272. Cheibub & Chernykh, supra note 125, at 295 (emphasizing the importance of government-strengthening institutional features);
273. Herbert Döring, Time as a Scarce Resource: Government Control of the Agenda, in PARLIAMENTS AND MAJORITY RULE IN WESTERN EUROPE 223, 224-26 (Herbert Döring ed., 1996) (discussing the balance of power between government and parliament in setting the legislative agenda);
274. Figueiredo and Limongi, Constitutional Change, supra note 90, at 74-77 (describing the powers of the President over the legislative process in Brazil, even after the 1988 Constitution).