Government in opposition

Yale Law Journal

Volumn 119, Issue 3, 2009, Pages 548-623

  Fontana, David ^a  

^a NONE

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EID: 77949286409     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (250)

1. A. LAWRENCE LOWELL, THE GOVERNMENT OF ENGLAND 451 (1924).
2. See Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REV. 1385 (2008);
3. Heather K. Gerken, Dissenting by Deciding, 57 STAN. L. REV. 1745 (2005) [hereinafter Gerken, Dissenting by Deciding];
4. Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099 (2005) [hereinafter Gerken, Second-Order Diversity];
5. Adrian Vermeule, Submajority Rules: Forcing Accountability upon Majorities, 13 J. POL. PHIL. 74 (2005). For further discussion of these articles and their relationship to this Article, see infra Section II.A.
6. See Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029, 1051-52 (2004); Daryl J.
7. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2316, 2368-75 (2006).
8. See, e.g., Arend Lijphart, Consociational Democracy, 21 WORLD POL. 207 (1969) (discussing how fragmented societies divide power among ethnic groups to preserve stability).
9. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633 (2000) (presenting the idea of parliamentary democracies with constitutional courts as the "new" form of separation of powers).
10. See Cindy Skach, The "Newest" Separation of Powers: Semipresidentialism, 5 INT'L J. CONST. L. 93 (2007) (arguing that semipresidential systems of separation of powers are an even more recent system of separation of powers than the form Ackerman discusses).
11. Two important points must be made about this very purposeful use of the phrase political coalitions, and the discussion of how constitutions divide power among political coalitions. First, there are other criteria that constitutions might use to divide authority among different groups beyond which political coalition one belongs to-for instance, ethnic or religious groups might be considered "majorities" or "minorities," rather than political parties receiving more or less votes being considered as the relevant majorities and minorities. In Canada, for instance, there is a polarizing debate about whether to grant "asymmetrical powers for Quebec.... in order to give it the jurisdictional tools to preserve and promote its [ethnic, linguistic and even religious] identity." Sujit Choudhry, Does the World Need More Canada? The Politics of the Canadian Model in Constitutional Politics and Political Theory, 5 INT'L J. CONST. L. 606, 632 (2007). In Lebanon, some governmental positions have been apportioned according to religious background. See, e.g., Richard Hrair Dekmejian, Consociational Democracy in Crisis: The Case of Lebanon, 10 COMP. POL. 251, 254 (1978) (discussing the situation in Lebanon whereby a ratio of six Christians to five Muslims are seated in the Chamber and there is an even division in the Cabinet). This Article, though, does not focus on ethnic or religious majorities or minorities and how power is allocated between those groups, unless those cleavages are in some way relevant to the distribution of power between electoral majorities and minorities. A second important point about the use of the phrase "political coalition" is the decision to use the word coalition rather than party. To the American reader, the use of the word "coalition" is not necessary. As a practical matter, in the American system there is competition between the Democratic Party and the Republican Party, and so all I need discuss is the division of power between the winning party and the losing party rather than the winning and losing coalition, with some exceptions-such as Ross Perot winning nineteen percent of the nationwide popular vote in 1992, and Ralph Nader perhaps tipping the balance in the State of Florida to George W. Bush. See YANEK MIECZKOWSKI, THE ROUTLEDGE HISTORICAL ATLAS OF PRESIDENTIAL ELECTIONS 142 (2001). More commonly, though, the winner in democratic elections around the world consists of several parties, and the loser also consists of several parties. Since this is an exploration of government in opposition mostly in those countries, account must be taken of the presence of several political parties on the winner and loser side, and so this Article refers to winning and losing political coalitions rather than singular parties.
12. See Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405 (2007).
13. I borrow this phrase "illiberal democracy" from Fareed Zakaria. See FAREED ZAKARIA, THE FUTURE OF FREEDOM: ILLIBERAL DEMOCRACY AT HOME AND ABROAD 17 (2003) ("Across the globe, democratically elected regimes, often ones that have been re-elected or reaffirmed through referenda, are routinely ignoring constitutional limitations on their power and depriving their citizens of basic rights."). Various other phrases have been used to describe the phenomenon that Zakaria is describing, such as Guillermo O'Donnell's use of the phrase "delegative democracy."
14. See Guillermo O'Donnell, Delegative Democracy, 5 J. DEMOCRACY 1, 59-60 (1994) ("Delegative democracies rest on the premise that whoever wins election to the presidency is thereby entitled to govern as he or she sees fit."). But illiberal democracies and delegative democracies are different from what is called "competitive" or "electoral" authoritarianism. In that situation, the elections themselves are unfair, even beyond what suppressions of rights follow from the elections. See Tom Ginsburg, Lessons from Democratic
15. See Ackerman, supra note 5, at 643.
16. See Skach, supra note 6, at 95 ("Parliamentarism is characterized by a fusion of powers and a mutual dependence between the executive and the legislative powers. This is due to the fact that the chief executive (usually a prime minister or chancellor) emanates from the legislature after elections and needs the confidence of the legislature in order for his government to survive the duration of the legislature's term.").
17. See Ackerman supra note 5, at 648 (defining full authority as when "the same party wins enough elections in a row to take control of all the relevant powers").
18. See Skatch, supra note 6, at 95-96 ("Presidentialism is the opposite: it is a system characterized by the separation of powers and a mutual independence of the executive and legislative powers. This is because the chief executive (a popularly elected president) and the legislature are elected independently of each other, for fixed terms of office, and both can survive for their respective terms without the other's approval.").
19. See id. at 93 ("[S]emipresidentialism.... combines a popularly elected head of state with a head of government who is responsible to a popularly elected legislature.").
20. See Elaine Sciolino, Sarkozy, Elected in France, Vows Break With Past, N.Y. TIMES, May 7, 2007, at A1.
21. See MAX WEBER, ECONOMY AND SOCIETY 56, 65 (Guenther Roth & Claus Wittich eds., Ephraim Fischoff et al. trans., Univ. of Cal. Press 1978) (1922).
22. The concept of losers' powers is also captured, albeit not in the legal or constitutional (and more in the political) sense by George Tsebelis, who talks about "veto players," political actors who have the power to prevent government from acting. See George Tsebelis, Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism, 25 BRIT. J. POL. SCI. 289 (1995).
23. See Gerken, Dissenting by Deciding, supra note 2, at 1752 ("This Article uses the term 'dissenter' in a more specific sense, to refer to someone who subscribes to an outlier view on an issue that she deems salient to her identity. A dissenter is someone whom we would naturally term an 'electoral minority' because of the positions she holds."); see, e.g., STEVEN H. SHIFFRIN, DISSENT, INJUSTICE AND THE MEANINGS OF AMERICA, at xi (1999) (defining dissent as "speech that criticizes existing customs, habits, traditions, institutions, or authorities").
24. Just as winning coalitions in parliamentary systems control all of the levers of power, so too can winning coalitions in presidential and semipresidential systems control all of the levers of power, but in the latter systems they must win several elections to do so. So, while in parliamentary systems there is always one winner, in presidential systems there is the possibility of more than one winner. When there is one winner that controls all of the bundles of winning coalitions' powers in a presidential or semipresidential system ("unified" government), the unity of power causes problems in such a system similar to those faced in parliamentary systems. See Levinson & Pildes, supra note 3, at 2315 ("Recognizing that these dynamics shift from competitive when government is divided to cooperative when it is unified calls into question many of the foundational assumptions of separation-of-powers law and theory.").
25. THE FEDERALIST No. 51, at 268 (James Madison) (George W. Carey & James McClellan eds., 2001).
26. Ackerman, supra note 5, at 643.
27. It is not always the case that the leader of the party receiving the most votes is selected as the Prime Minister. In Japan, for instance, the Prime Minister selected after the 1993 election was from the Socialist Party, not from the Liberal Democrats, even though that party had three times as many seats. In Norway, after the 2001 election the Prime Minister was selected from the fifth-most successful party, the Christian People's Party. See Geoffrey Palmer, The Cabinet, The Prime Minister and the Constitution, 4 N.Z. J. PUB. & INT'L L. 1, 25 n.55 (2006). The only limitation is that the Prime Minister selected must be from the winning coalition, even if the Prime Minister is not from the plurality party.
28. See Harold D. Clarke, Marianne C. Stewart & Paul F. Whiteley, New Models for New Labour: The Political Economy of Labour Party Support, January 1992-April 1997, 92 AM. POL. SCI. REV. 559, 559 n.1 (1998).
29. SAMUEL H. BEER, MODERN BRITISH POLITICS 350 (1965). This is true even though there is a "higher incidence of backbench rebellion and dissent... [since] the mid-1960's." Anthony Mughan & Roger M. Scully, Accounting for Change in Free Vote Outcomes in the House of Commons, 27 BRIT. J. POL. SCI. 640, 640 (1997).
30. See Skach, supra note 6, at 93.
31. See, e.g., Kim Lane Scheppele, A Comparative View of the Chief Justice's Role: Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe, 154 U. PA. L. REV. 1757, 1766 (2006) ("Constitutional judges are typically selected by some combination of presidential or prime ministerial appointment and parliamentary approval...."). It is still the case, though, that there are elements of the judicial system that cannot be called winner-related, because they operate using principles similar to the civil service. See id. at 1767 ("Within countries that have constitutional courts, ordinary court judges typically have civil service careers in which they enter the lower-level judiciary first and are promoted up through the ranks on the basis of seniority and merit.").
32. See id. at 1768 ("Because the vast majority of constitutional judges enter the judiciary from either academia or the higher reaches of politics, they are often well known before they issue any decisions at all.").
33. See KENPŌ, art. 79, para. 1 ("The Supreme Court shall consist of a Chief Judge and such number of judges as determined by law. All such judges except the Chief Judge shall be appointed by the Cabinet.").
34. See id. art. 67, para. 1 ("The Prime Minister shall be designated from among the members of the Diet by a resolution of the Diet.").
35. See J. Mark Ramseyer & Eric B. Rasmusen, Why Are Japanese Judges So Conservative in Politically Charged Cases?, 95 AM. POL. SCI. REV. 331, 333 (2001).
36. See J. Mark Ramseyer & Eric B. Rasmusen, Why Are Japanese Judges So Conservative in Politically Charged Cases?, 95 AM. POL. SCI. REV. 331, 333 (2001).
37. This is particularly true in countries outside the United States, where fewer bureaucratic officials tend to be political appointees. Compare PAUL C. LIGHT, THICKENING GOVERNMENT: FEDERAL HIERARCHY AND THE DIFFUSION OF ACCOUNTABILITY 7-13 (1995) ("Between 1960 and 1992, the number of department secretaries increased from 10 to 14, the number of deputy secretaries from 6 to 21, under secretaries from 14 to 32, deputy under secretaries from just 9 to 52, assistant secretaries from 81 to 212, deputy assistant secretaries from 77 to 507."), with Pablo T. Spiller & Santiago Urbiztondo, Political Appointees vs. Career Civil Servants: A Multiple Principals Theory of Political Bureaucracies, 10 EUR. J. POL. ECON. 465 (1994) (noting that there are fewer political appointees outside the United States).
38. Germany has largely adopted the system used by West Germany, in which "German judges, after a three to five year probationary period, become career state employees with lifetime tenure. Whatever political influence exists on the recruitment and promotion of state judges, it is less than that for federal judges and is mediated mostly through state administrative bureaucracies and candidate self-selection." David S. Clark, The Selection and Accountability of Judges in West Germany: Implementation of a Rechtsstaat, 61 S. CAL. L. REV. 1795, 1816 (1988).
39. Indeed, as one article discusses, the range of prominent powers held by presidents can include the president's exclusive discretion to dissolve parliament (Italy), the requirement of countersignatures of cabinet decrees (Italy), suspensory veto over legislation (Czech Republic, Slovakia), the power to decree new laws (Greece for some time after 1975), and appointments to high offices, sometimes (as in the Czech Republic and Slovakia) including ministries.
40. Scott Mainwaring & Matthew S. Shugart, Juan Linz, Presidentialism, and Democracy: A Critical Appraisal, 29 COMP. POL. 449, 451 (1997).
41. See Arend Lijphart, Constitutional Design for Divided Societies, 15 J. DEMOCRACY 96, 101 (2004) (arguing that power-sharing among parties works better in parliamentary systems because "the cabinet in a parliamentary system is a collegial decision-making body-as opposed to the presidential one-person executive with a purely advisory cabinet-it offers the optimal setting for forming a broad power-sharing executive"); see also Mainwaring & Shugart, supra note 34, at 454 ("[M]ost presidential democracies offer greater prospects of dividing the cabinet among several parties. This practice, which is essentially unknown among the Westminster parliamentary democracies, is common in multiparty presidential systems."). This Article later discusses how Lijphart goes astray in including other forms of institutional structures along with government in opposition rules in his prescription of consociationalism. In addition, the descriptive part of Lijphart's project misses out on how many countries are either partly or substantially consociational, or at least have substantial government in opposition rules, because his primary argument is that "consociationalism was successful in Belgium since the end of World War I, Lebanon from 1943 to 1975, and in Malaysia since 1955." Jurg Steiner, Consociational Democracy as a Policy Recommendation: The Case of South Africa, 19 COMP. POL. 361, 364 (1987).
42. Vermeule, supra note 2, at 74.
43. Gerken, Dissenting by Deciding, supra note 2, at 1747-48.
44. Indeed, Vermeule seems to believe that his "submajority rules" function primarily, if not exclusively, as transparency devices which empower political minorities to demand public accountability of majorities. See Vermeule, supra note 2, at 74 ("Submajority rules enable minorities to force public accountability and transparency upon majorities, thereby increasing the force of principled deliberation and argument in official decisionmaking."). The sorts of rules that Vermeule is discussing give losing coalitions winners' powers that command winning coalitions to do things, such as provide information. In fact, though, as this Part discusses, government in opposition rules extend far beyond simply permitting minorities to demand sunlight be placed on majorities; they also give minorities real decisional authority.
45. See Lijphart, supra note 4, at 207.
46. See AREND LIJPHART, DEMOCRACY IN PLURAL SOCIETIES 36-38 (1977).
47. See AREND LIJPHART, DEMOCRACY IN PLURAL SOCIETIES 36-38 (1977).
48. See S. AFR. (Interim) CONST. 1993 art. 84(1) ("Every party holding at least 80 seats in the National Assembly shall be entitled to designate an Executive Deputy President from among the members of the National Assembly.") (emphasis added).
49. The financial and other resource support that is provided to the opposition from the public fisc is a function of statute. See Ministerial and Other Salaries Act, 1997, c. 62 (Eng.); Ministerial and Other Salaries Act, 1975, c. 27 (Eng.); Ministers of the Crown Act, 1937, 1 Edw. 8 & 1 Geo. 6, c. 38 (Eng.). Some issues of resource support are defined by orders-in- council, another form of legislation (one that is made under the name of the Queen by the Privy Council). See Ministerial and Other Salaries Order, 1994, S.I. 1994/3206 (U.K) (increasing salaries); Ministerial and Other Salaries Order, 1991, S.I. 1991/2886 (U.K) (increasing salaries); Ministerial and Other Salaries Order, 1987, S.I. 1987/1836 (U.K) (increasing salaries). Some other elements of losing coalition power, such as control over the proceedings of Parliament at certain moments, are provided by legislative rule. See AUTH. OF THE HOUSE OF COMMONS, STANDING ORDER OF THE HOUSE OF COMMONS 15, available at http://www.publications.parliament.uk/pa/cm200708/cmstords/105/105.pdf. Other parts of government in opposition in Britain stem from practically binding conventions, such as those providing that the opposition party will chair the Public Accounts Committee. See HOUSE OF COMMONS INFO. OFFICE, FACTSHEET P2 PROCEDURE SERIES (JUNE 2009), available at http://www.parliament.uk/documents/upload/P02.pdf.
50. See HONORABLE CÁMARA DE DIPUTADOS DE LA NACIÓN, REGLAMENTO DE LA CÁMARA DE DIPUTADOS DE LA NACIÓN, COMENTADO POR GUILLERMO CARLOS SCHINELLI (Dirección de Información Parlamentaria 1996).
51. See STEVEN F. HAYWARD, CHURCHILL ON LEADERSHIP: EXECUTIVE SUCCESS IN THE FACE OF ADVERSITY 146 (1997).
52. This would be the situation, for instance, in a United States Senate where the majority party has sixty or more senators. In a situation where the majority political coalition does not have a filibuster-proof majority, it has two choices. It can make ad hoc arrangements, which is what happened as a result of the battle over judicial appointments in the United States in 2005. Fourteen United States Senators-seven Democrats and seven Republicans-reached an agreement about how to handle particular judicial appointments, and reached a vague agreement about how to handle later appointments. See Charles Babington & Shailagh Murray, A Last-Minute Deal on Judicial Nominees, WASH. POST, May 24, 2005, at A1. The other choice, though, is to reach a more permanent arrangement that permits the losing political coalition to exercise winners' powers some of the time, and in return that the losing political coalition will support the exercise of winners' powers by winning coalitions the rest of the time.
53. Grundgesetz für die Bundesrepublik Deutschland [GG] [Basic Law], May 8, 1949, art. 93 (F.R.G.).
54. Tom Ginsburg, Economic Analysis and the Design of Constitutional Courts, 3 THEORETICAL INQUIRY L. 49, 68 n.40 (2002).
55. See DONALD P. KOMMERS, THE FEDERAL CONSTITUTIONAL COURT 120-28 (1994) (tracing this system all the way back to the first appointment of Constitutional Court Justices in 1951).
56. See Ginsburg, supra note 48, at 67 (discussing similar approaches implemented in constitutional systems around the world, including in Bulgaria, Korea, and Mongolia).
57. 5 U.S.C. § 2954 (2006).
58. See NAT'L DEMOCRATIC INST. FOR INT'L AFFAIRS, PAPER NO. 2, COMMITTEES IN LEGISLATURES: A DIVISION OF LABOR 16 (1996).
59. See Gerhard Lehmbruch, Consociational Democracy and Corporatism in Switzerland, 23 PUBLIUS 43, 50-51 (1993).
60. See HOUSE OF COMMONS INFO. OFFICE, supra note 43.
61. See C.E.S. Franks, The Dilemma of the Standing Committees of the Canadian House of Commons, 4 CAN. J. POL. SCI. 461, 464 (1971).
62. See 5 U.S.C. § 2954 ("An Executive agency, on request of the Committee on Government Operations of the House of Representatives, or of any seven members thereof, or on request of the Committee on Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.") (emphasis added).
63. S. AFR. (Interim) CONST. 1993 art. 84(1).
64. One other regime of note is the regime in a growing number of countries providing operational and other funding only for losing political coalitions. See Richard S. Katz & Peter Mair, Changing Models of Party Organization and Party Democracy: The Emergence of the Cartel Party, 1 PARTY POL. 5, 17 (1995) ("Access to state subventions is also unaffected; indeed, in some systems, such as Ireland and the UK, parties currently in opposition are actually accorded a higher level of subvention precisely because they lack the immediate resources of parties currently in government.").
65. See NAT'L DEMOCRATIC INST. FOR INT'L AFFAIRS, supra note 52, at 16.
66. See NAT'L DEMOCRATIC INST. FOR INT'L AFFAIRS, supra note 52, at 16.
67. In Slovakia, the opposition members control the Environment Committee-and thus Slovakia's position on global warming-by holding not just the chair but also a majority vote of fifteen to five votes.
68. See Mark P. Jones & Wonjae Hwang, Party Government in Presidential Democracies: Extending Cartel Theory Beyond the U.S. Congress, 49 AM. J. POL. SCI. 267, 277 (2005) (stating that losing political coalitions occupied twenty-three percent of committee chair positions between 1989 and 2003).
69. Labour currently holds nine committee chairs, while the Conservatives hold six chairs and the Liberal Democrats hold four. See UK Parliament, Parliamentary Committees, Commons Select Committees, http://www.parliament.uk/parliamentary_committees/parliamentary_committees16.cfm (last visited Nov. 11, 2009).
70. See COLIN PILKINGTON, REPRESENTATIVE DEMOCRACY IN BRITAIN TODAY 183-205 (1997).
71. The Public Accounts Committee in the House of Commons has traditionally been chaired by a member of the losing political coalition. See Nevil Johnson, Opposition in the British Political System, 1997 GOV'T & OPPOSITION 487, 492. That Committee examines "the accounts showing the appropriation of the sums granted by Parliament to meet the public expenditure, and [since 1934] of such other accounts laid before Parliament as the Committee may think fit." See UK Parliament, Committee of Public Accounts, http://www.parliament.uk/parliamentary_committees/committee_of_public_ac counts.cfm (last visited Nov. 21, 2009).
72. See UK Parliament, Committee of Public Accounts, Members, http://www.parliament.uk/parliamentary_committees/committee_of_public_ac counts/committee_of_public_accounts_members.cfm (last visited Nov. 21, 2009).
73. See MP Dubs Home Office 'Incompetent,' BBC NEWS, Apr. 25, 2006, http://news.bbc.co.uk/1/hi/uk_politics/4944786.stm.
74. See Oliver King et al., Blair Backs Clarke To 'Put Things Right,' GUARDIAN, Apr. 26, 2006, http://www.guardian.co.uk/print/0,,329465577-108101,00.html.
75. See Clarke Is Fired in Cabinet Purge, BBC NEWS, May 5, 2006, http://news.bbc.co.uk/1/hi/ uk_politics/4975938.stm.
76. See Rules of Procedure of the German Bundestag, July 2, 1980, BGBl. I at 1273, last amended by Gesetz [G], Feb. 12, 1998, BGBl. I at 428, art. VII, rule 69a(5) (F.R.G.).
77. Id. art. VII, Rule 70(1).
78. Id. art. VII, Rule 70(2).
79. Letter from Rep. Henry A. Waxman, Ranking Minority Member, House of Representatives, to Tommy G. Thompson, Sec'y, Dep't of Health & Human Servs. (Mar. 2, 2004) (on file with author).
80. See Waxman v. Evans, No. CV014530LGB(AJWX), 2002 WL 32377615 (C.D. Cal. Jan. 18, 2002) (deciding that the Bush Administration had an obligation to release certain census data), rev'd as moot, 52 F. App'x 84 (9th Cir. 2002 ). Importantly, the district court in this case rejected any notion that the Seven Member Rule presented a nonjusticiable political question. Id. at *3-4.
81. The Seven Member Rule, mentioned earlier, supra note 51, functions as a form of elite information disclosure law, permitting losing political coalitions-not the general public- to compel information from executive agencies. The general public has its own Freedom of Information Act (FOIA), but in many important respects FOIA does not sweep as broadly as the Seven Member Rule. For instance, the Seven Member Rule states that "[a]n [e]xecutive agency... shall submit any information requested of it relating to any matter within the jurisdiction of the committee." 5 U.S.C. § 2954 (2006) (emphasis added). By contrast, FOIA includes a list of exceptions to its disclosure requirements. See id. § 552(b).
82. See George F. Will, Op-Ed., McCain's Question Time, WASH. POST, May 29, 2008, at 19 (quoting McCain as stating that he "will ask Congress to grant me the privilege of coming before both houses to take questions, and address criticism, much the same as the prime minister of Great Britain appears regularly before the House of Commons"). Sudha Setty has recently written an article advocating the same. See Sudha Setty, The President's Question Time: Power, Information, and the Executive Credibility Gap, 17 CORNELL J.L. & PUB. POL'Y 247 (2008).
83. In New Zealand, for instance, the Security Intelligence Service is mandated to brief the leader of the losing coalition as well as the Prime Minister, providing information about national security and other threats. See DEP'T OF THE PRIME MINISTER & CABINET, SECURING OUR NATION'S SAFETY (2000), http://www.dpmc.govt.nz/dpmc/publications/ securingoursafety/sis.html. A similar system has been followed in the United States with minority members of certain committees in Congress and with presidential candidates. See Eric Lipton, Security Briefings for the Other Guy, N.Y. TIMES, Aug. 3, 2004, at A12.
84. 423 PARL. DEB., H.C. (6th ser.) (2004) 831-33.
85. See Blair Admits Schools Literacy 'Scandal,' DAILY MAIL, July 7, 2004, http://www.dailymail.co.uk/news/article-309438/Blair-admits-schools-lite racy-scandal.html.
86. Inside Canada's Parliament: The Institution, http://www.parl.gc.ca/Information/library/inside/institutions-e.htm#role (last visited Sept. 9, 2009).
87. See AUTH. OF THE HOUSE OF COMMONS, STANDING ORDER OF THE HOUSE OF COMMONS 18 (2007), available at http://www.publications.parliament.uk/pa/cm200708/cmstords/105/ 105.pdf.
88. See Inside Canada's Parliament: The Institution, supra note 80.
89. See S. AFR. (Interim) CONST. 1993 art. 40(1).
90. Id. art. 84 ("Every party holding at least 80 seats in the National Assembly shall be entitled to designate an Executive Deputy President from among the members of the National Assembly.").
91. Id. art. 82(2).
92. Id. art. 88.
93. Id. art. 89.
94. See Bill Keller, The Overview; South Africans Hail President Mandela; First Black Leader Pledges Racial Unity, N.Y. TIMES, May 11, 1994, at 1.
95. Alexander Johnston, South Africa: The Election and the Emerging Party System, 70 INT'L AFF. 721, 729 (1994).
96. The interim South African Constitution also provided that the heads of cabinet departments were to be allocated in proportion to the number of seats held by a particular political party in the National Assembly, the South African legislature. See S. AFR. (Interim) CONST. 1993 art. 88(2).
97. J.E. Spence, Opposition in South Africa, 32 GOV'T & OPPOSITION 522, 534 (1997).
98. See MICHAEL GALLAGHER, MICHAEL LAVER & PETER MAIR, REPRESENTATIVE GOVERNMENT IN MODERN EUROPE 56 (3d ed. 2001).
99. See Lanny W. Martin & Georg Vanberg, Policing the Bargain: Coalition Government and Parliamentary Scrutiny, 48 AM. J. POL. SCI. 13, 14 (2004); see also id. at 13 ("Coalition government ordinarily requires delegation of important policymaking powers to the ministers who control different portfolios. In other words, a collection of actors (the coalition partners, as represented in the cabinet) with preferences that diverge on at least some issues must delegate power to individuals (the ministers) who are associated with a particular party.").
100. Thomas A. Baylis, Collegial Leadership in Advanced Industrial Societies: The Relevance of the Swiss Experience, 13 POLITY 33, 42 (1980).
101. See Robert Gates, TIME, http://www.time.com/time/world/article/0,8599,1863939,00.html (last visited Sep. 29, 2009).
102. Israel enacted a law in 1992 that provided that the Prime Minister was to be elected directly by the citizens, but that the Prime Minister could be removed by an absolute majority vote of the Knesset. See Gideon Rahat, The Study of the Politics of Electoral Reform in the 1990s: Theoretical and Methodological Lessons, 36 COMP. POL. 461, 462 (2004). In 2003, it changed the law back to give it a traditional parliamentary system, instead of a directly elected Prime Minister. See id.
103. See Greg Myre, Premier-Elect in Israel Closer to a Coalition, N.Y. TIMES, Apr. 28, 2006, at A8.
104. Id. Prime Minister Olmert also included within his coalition the Pensioners' Party (seven seats), and the Shas Party (thirteen seats). See Jonathan Ferziger, Olmert Savvy Keeps Coalition Intact as He Seeks Peace, BLOOMBERG.COM, Apr. 16, 2008, <url>http://www.bloomberg.com/apps/news?pid=20601109&s id=atvaMmPk7ZtY&refer=home.</url>
105. See Isabel Kershner, Ex-Premier of Israel Takes Helm of Labor Party, N.Y. TIMES, June 14, 2007, at A19. There are other recent and prominent examples of chief figures from the political opposition occupying prominent positions in the cabinet of another party. In Germany, Joshka Fischer, leader of the Green Party, was (Social Democratic) Chancellor Gerhard Schroeder's Foreign Minister during the time when Germany had to decide about its policies toward American efforts in Afghanistan and Iraq.
106. TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTION COURTS IN ASIAN CASES 45 (2003).
107. See Sofia Amaral Garcia, Nuno Garoupa & Veronica Grembi, Judicial Independence and Party Politics in the Kelsenian Constituitonal Courts: The Case of Portugal 4-5 (Ill. L. & Econ. Research Paper Series, Research Paper No. LE 08-021, 2008).
108. The blue slip procedure occurs when a senator from the potential or actual nominee's home state objects to the nomination. See Brannon P. Denning, The "Blue Slip": Enforcing the Norms of the Judicial Confirmation Process, 10 WM. & MARY BILL RTS. J. 75, 76 (2001). This procedure can occur both before and after an actual nomination is submitted to the Senate. See Memorandum from Senate Judiciary Comm. Staff to Senator Edward M. Kennedy, Chairman, Senate Judiciary Comm. (Jan. 22, 1979), in Selection and Confirmation of Federal Judges: Hearing Before the S. Comm. on the Judiciary, Part I, 96th Cong. 131 (1979). If the blue slip procedure is utilized after the nomination is submitted, and the home state senator obstructs the nomination, we might see it more as the exercise of losers' powers. If it transpires before the nomination is submitted, and as part of the decision to nominate, it seems more like the exercise of winners' powers by the home state senator (assuming, of course, that the home state senator is not a member of the winning coalition).
109. The Supreme Court has interpreted Article III of the American Constitution to mean that the plaintiff must demonstrate that there has been an "injury in fact," that this injury can be traced to the challenged action of the defendant, and that a judicial decision will remedy this injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
110. See Bundes-Verfassungsgesetz [B-VG] [Constitution] BGBl No. 1/1930, as last amended by Bundesgesetz [BG] BGBl I No. 100/2003, art. 140, 1 (Austria). See generally Victor Ferreres Comella, The Consequences of Centralizing Constitutional Review in a Special Court: Some Thoughts on Judicial Activism, 82 TEX. L. REV. 1705 (2004) (discussing issues related to the structure of constitutional courts).
111. Bundes-Verfassungsgesetz [B-VG] [Constitution] BGBl No. 1/1930, as last amended by Bundesgesetz [BG] BGBl I No. 100/2003, art. 278 (Austria).
112. Id. art. 281.
113. One notable example of this happened, for instance, when Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan, appointed by President Jimmy Carter, decided that President George W. Bush's wiretapping program was unconstitutional. See ACLU v. Nat'l Sec. Agency, 438 F. Supp. 2d 754 (E.D. Mich. 2006).
114. See THOMAS E. BAKER, RATIONING JUSTICE ON APPEAL: THE PROBLEMS OF THE U.S. COURTS OF APPEALS 234 (1994).
115. As mentioned before, I borrow this phrase and concept from Fareed Zakaria, among others. See supra note 9.
116. See Andrew E. Kramer, Kasparov Says He Was Forced To End Bid for Presidency, N.Y. TIMES Dec. 13, 2007, at A18.
117. See THE FEDERALIST NO. 78, at 302 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001) ("The executive not only dispenses the honours, but holds the sword of the community; the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated....").
118. See id. at 403. ("The complete independence of the courts of justice is peculiarly essential in a limited constitution.").
119. See William E. Leuchtenburg, The Origins of Franklin D. Roosevelt's "Court-Packing" Plan, 1966 SUP. CT. REV. 347.
120. Menem succeeded where FDR failed and enlarged the size of the Supreme Court of Argentina from five to nine Justices-and when one remaining Justice resigned, he was able to appoint a majority of members of the Court. See HORACIO VERBITSKY, HACER LA CORTE: LA CONSTRUCCION DE UN PODER ABSOLUTO SIN JUSTICIA NI CONTROL 67 (1993). This was not the first time that the government of Argentina had decided to alter significantly the composition of the Court. See Gretchen Helmke, The Logic of Strategic Defection: Court- Executive Relations in Argentina Under Dictatorship and Democracy, 96 AM. POL. SCI. REV. 291, 292 (2002) ("[T]he Court was replaced en masse by the military following the coup in 1976 and again by the incoming democratic government of Raul Alfonsin in 1983.").
121. See Gerken, Second-Order Diversity, supra note 2, at 1146 (noting how "second-order diversity" might have this characteristic).
122. The "responsible winner" rationale for government in opposition rules is similar to the situations that Eric Posner and Adrian Vermeule discussed when the President of the United States wants to indicate that he or she has the best of intentions. See Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV. 865, 867 (2007) ("[T]he [executive] credibility dilemma can be addressed by executive signaling. Without any new constitutional amendments, statutes, or legislative action, law and executive practice already contain resources to allow a well-motivated executive to send a credible signal of his motivations, committing to use increased discretion in public-spirited ways.").
123. See Vermeule, supra note 2, at 89 ("[S]ubmajoritarian decisions are exposed to reversal by subsequent majorities, and might thus be chronically unstable.").
124. See Russell Korobkin, The Endowment Effect and Legal Analysis, 97 NW. U. L. REV. 1227, 1228-29 (2003) ("[I]ndividuals tend to prefer the present state of the world to alternative states, all other things being equal.").
125. Adrian Vermeule makes this point about transparency decisions that can be made by submajorities. See Vermeule, supra note 2, at 91 ("Once published, perhaps by a submajoritarian decision, the information circulates beyond the power of subsequent majorities to suppress, whether or not they possess legal authority to do so.").
126. See MP Dubs Home Office 'Incompetent,' supra note 67.
127. For a good example of this, consider how a majority of five on the U.S. Supreme Court hardly ever votes to reject a petition that the Rule of Four permits four Justices on the Court to decide to hear. See ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 296 (8th ed. 2002).
128. See 312 PARL. DEB., H.C. (5th ser.) (1964) 831-32.
129. See Pippa Norris, Ballots Not Bullets: Testing Consociational Theories of Ethnic Conflict, Electoral Systems, and Democratization, in THE ARCHITECTURE OF DEMOCRACY: CONSTITUTIONAL DESIGN, CONFLICT MANAGEMENT, AND DEMOCRACY 206 (Andrew Reynolds ed., 2002).
130. See LIJPHART, supra note 40, at 25.
131. These joint winners' powers apply to particularly controversial areas of policy, such as foreign affairs and security policies. See H. IBRAHIM SALIH, CYPRUS: ETHNIC POLITICAL COUNTERPOINTS 3 (2004).
132. See Philippos K. Savvides, Cyprus: The Dynamics of Partition 23-25 (Feb 9, 2000) (unpublished manuscript, on file with author), available at http://www.hks.harvard.edu/kokkalis/GSW2/Savvides.PDF.
133. For two studies making this point about power-sharing regimes in Northern Ireland, see Joanne Hughes & Caitlin Donnelly, Community Relations in Northern Ireland: A Shift in Attitudes?, 29 J. ETHNIC & MIGRATION STUD. 643 (2003)
134. James Tilley, Geoffrey Evans & Claire Mitchell, Consociationalism and the Evolution of Political Cleavages in Northern Ireland, 1989-2004, 38 BRIT. J. POL. SCI. 699, 704 (2008).
135. See Robert H. Dix, Consociational Democracy: The Case of Colombia, 12 COMP. POL. 303, 311 (1980) ("In most communities of any size, there tends to be a mix of Liberals and Conservatives, and partisan allegiances do not prevent regular interaction. Such interaction is especially notable at the elite level, where most elite clubs and interest associations are either by inadvertence or by design bipartisan in nature.") (internal citations omitted).
136. Edmund A. Aunger, Dispersed Minorities and Segmental Autonomy: French-Language School Boards in Canada, 2 NATIONALISM & ETHNIC POL. 191, 191 (1996).
137. JOHN STUART MILL, REPRESENTATIVE GOVERNMENT 157 (New York, Harper & Bros. 1869).
138. For instance, in the United States House of Representatives, two political parties are represented, the Democratic and Republican Parties, while in the Indian Lok Sabha, thirtynine political parties are represented. See GIOVANNI SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING 58-59 (2d ed. 1997).
139. See Richard Rose, British MPs: More Bark than Bite?, in PARLIAMENTS AND PARLIAMENTARIANS IN DEMOCRATIC POLITICS 8, 11 (Ezra N. Suleiman ed., 1986).
140. See VALENTINE HERMAN, INTER-PARLIAMENTARY UNION, PARLIAMENTS OF THE WORLD: A REFERENCE COMPENDIUM 630-37 (1976).
141. See Argelina Cheibub Figueiredo & Fernando Limongi, Presidential Power, Legislative Organization, and Party Behavior in Brazil, 32 COMP. POL. 151, 154-55 (2000).
142. See George Tsebelis, Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism, 25 BRIT. J. POL. SCI. 289, 304 (1995).
143. See Steven G. Calabresi, The Virtues of Presidential Government: Why Professor Ackerman Is Wrong To Prefer the German to the U.S. Constitution, 18 CONST. COMMENT. 51, 59-66 (2001);
144. see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997) ("The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system.").
145. Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. (2007). at 1419.
146. It can be the case that there could be a high burden to meet to qualify to exercise government in opposition powers, such as the rule under the interim constitution of South Africa that a party had to receive at least twenty percent of the vote in order to be granted an executive deputy president position. See S. AFR. (Interim) CONST. 1993 art. 84(1) ("Every party holding at least 80 seats in the National Assembly shall be entitled to designate an Executive Deputy President from among the members of the National Assembly."). The 1998 settlement in Northern Ireland also featured some significant barriers that had to be satisfied before political parties could exercise government in opposition powers. See Brendan O'Leary, Debating Consociational Politics: Normative and Explanatory Arguments, in FROM POWER SHARING TO DEMOCRACY: POST-CONFLICT INSTITUTIONS IN ETHNICALLY DIVIDED SOCIETIES 3, 14-15 (Sid Noel ed., 2005). These rules can be seen as the analogues to the aforementioned rules in some proportional representation systems that require that political parties receive a certain minimum percentage of the vote before they qualify for seats in the legislature. The contrast, of course, is that some government in opposition rules permit virtually any political coalition, no matter how few votes they received, to exercise government in opposition powers-think of the rules governing Short Money in the British Parliament.
147. In Italy, for instance, between 1945 and 1996 the Italian Cabinet lasted an average of 1.28 years before being replaced by a new coalition of parties. See AREND LIJPHART, PATTERNS OF DEMOCRACY: GOVERNMENT FORMS AND PERFORMANCE IN THIRTY-SIX COUNTRIES 132 tbl.7.1 (1999). But, as Bruce Ackerman has stated, many of the problems posed by proportional representation rules can be mitigated, if not eliminated, by "the necessary bits of constitutional engineering."
148. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. (2000), at 654.
149. See Robert A. Dahl, Thinking About Democratic Constitutions: Conclusions from Democratic Experience, in POLITICAL ORDER: NOMOS XXXVIII, 175, 192 (Ian Shapiro & Russell Hardin eds., 1996) ("Of all the major alternatives, presidentialism with PR-the Latin American option-may be the most unstable.") (emphasis omitted).
150. See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787, 1795 (2005) ("When legitimacy is measured in sociological terms, a constitutional regime, governmental institution, or official decision possesses legitimacy in a strong sense insofar as the relevant public regards it as justified, appropriate, or otherwise deserving of support for reasons beyond fear of sanctions or mere hope for personal reward.") (emphasis omitted).
151. See John R. Alford, We're All in this Together: The Decline of Trust in Government, 1958-1966, in WHAT IS IT ABOUT GOVERNMENT THAT AMERICANS DISLIKE? 28 (John R. Hibbing & Elizabeth Theiss-Moore eds., 2001); Jack Citrin & Samantha Luks, Political Trust Revisited: Déjà Vu All Over Again?, in WHAT IS IT ABOUT GOVERNMENT THAT AMERICANS DISLIKE?.
152. See Henar Criado & Francisco Herreros, Political Support: Taking into Account the Institutional Context, 40 COMP. POL. STUD. 1511, 1516 (2007).
153. See DAVID EASTON, A SYSTEMS ANALYSIS OF POLITICAL LIFE 273 (1965) (describing diffuse support as a "reservoir of favorable attitudes or good will that helps members to accept or tolerate outputs to which they are opposed or the effect of which they see as damaging to their wants")
154. See Shaun Bowler, David Brockington & Todd Donovan, Election Systems and Voter Turnout: Experiments in the United States, 63 J. POL. 902 (2001).
155. Donald Horowitz says that "[t]he grand coalition implies that the model of government and opposition is rejected. Consensual democracy replaces majoritarian democracy, and opposition is necessarily located inside government." Donald L. Horowitz, Conciliatory Institutions and Constitutional Processes in Post-Conflict States, 49 WM. & MARY L. REV. 1213, 1216 (2008).
156. See AUTH. OF THE HOUSE OF COMMONS, STANDING ORDER OF THE HOUSE OF COMMONS 15 (2007), available at http://www.publications.parliament.uk/pa/cm200708/cmstords/105/105.pdf.
157. Nevil Johnson, Opposition in the British Political System, 1997 GOV'T & OPPOSITION, at 493-96.
158. Howard M. Wasserman, The Trouble with Shadow Government, 52 EMORY L.J. 281, 281 (2003) ("Presidential succession and government continuity suddenly is a hot topic. The September 11 terrorist attacks and the subsequent War Against Terrorism have brought to the fore the possibility of a catastrophic terrorist attack... killing the president and vice president, and destroying Congress and the federal government. This prospect in turn raises... questions about how to preserve the federal government... how to maintain governance in the federal system... who will... assume the executive power under the Constitution and how to repopulate the political branches.").
159. Sanford Levinson, How the United States Constitution Contributes to the Democratic Deficit in America, 55 DRAKE L. REV. 859, 871 (2007).
160. HEINZ KLUG, CONSTITUTING DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA'S POLITICAL RECONSTRUCTION 151-55 (2000).
161. S. AFR. (Interim) CONST. 1993 art. 84(1) ("Every party holding at least 80 seats in the National Assembly shall be entitled to designate an Executive Deputy President from among the members of the National Assembly.").
162. RICHARD KELLY, HOUSE OF COMMONS LIBRARY, SN/PC/1663, at 2 (2009), available at http://www.parliament.uk/commons/lib/research/briefings/snpc-01663.pdf.
163. David Mayhew, in a book that has attracted substantial agreement and disagreement, has argued that divided government does not decrease the enactment of major legislation. See DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS, 1946-1990, at 178 (1991).
164. For agreement with his findings, see Sarah A. Binder, The Dynamics of Legislative Gridlock, 1947-96, 93 AM. POL. SCI. REV. 519 (1999). Even after a wave of criticisms, there is at least some consensus that Mayhew's core finding has been empirically validated.
165. See MORRIS FIORINA, DIVIDED GOVERNMENT 162-66 (2d ed. 1996).
166. See G. BINGHAM POWELL JR., ELECTIONS AS INSTRUMENTS OF DEMOCRACY: MAJORITARIAN AND PROPORTIONAL VISIONS (2000). Others have helpfully elaborated on this argument: First, in majoritarian systems, where governments have a majority in the parliament, power is concentrated and the outcomes are easily attributed to the incumbent. In proportional systems, power is dispersed among government, opposition parties, and a range of other political institutions, and the outcomes of policies are more difficult to attribute.... The second mechanism claims that in proportional democracies, where power is more dispersed among different political groups, the support for institutions by those citizens who are not ideologically identified with the incumbent will be higher than in majoritarian democracies.
167. Henar Criado & Francisco Herreros, Political Support: Taking into Account the Institutional Context, 40 COMP. POL. STUD. (2007), at 1516-17.
168. See MICHAEL S. LEWIS-BECK, ECONOMICS AND ELECTIONS: THE MAJOR WESTERN DEMOCRACIES 108-09 (1988).
169. A.J. NICHOLS, WEIMAR AND THE RISE OF HITLER 164, 168-69 (4th ed. 2000).
170. See MARY DURKIN & OONAGH GAY, HOUSE OF COMMONS LIBRARY, HER MAJESTY'S OPPOSITION, SN/PC/3910, at 2 (Feb. 8, 2006).
171. See Peter Mair, The Challenge to Party Government, 31 W. EUR. POL. 211, 212-13 (2008).
172. Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405 (2007)
173. See CHRIS SEAR, PARLIAMENT & CONSTITUTION CTR, HOUSE OF COMMONS LIBRARY, THE PARLIAMENTARY OATH, (Research Paper 01/116, 2001), available at http://www.parliament.uk/commons/lib/research/rp2001/rp01-116.pdf.
174. RICHARD KELLY, HOUSE OF COMMONS LIBRARY, SN/PC/1663, (2009), at 19.
175. See Donald L. Horowitz, Making Moderation Pay: The Comparative Politics of Ethnic Conflict Management, in CONFLICT AND PEACEMAKING IN MULTIETHNIC SOCIETIES 451, 451-75 (Joseph V. Montville ed., 1991).
176. See PEACE AT LAST? THE IMPACT OF THE GOOD FRIDAY AGREEMENT ON NORTHERN IRELAND (Jorg Neuheiser & Stefan Wolff eds., 2002).
177. See Robert H. Dix, Consociational Democracy: The Case of Colombia, 12 COMP. POL. 303, 314 (1980).
178. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2368-75 (2006).
179. See JOANNE B. FREEMAN, AFFAIRS OF HONOR: NATIONAL POLITICS IN THE NEW REPUBLIC (2001). Freeman argues that a key notion during the early years of the Republic-and the core animating idea behind the original constitutional design-was that politics was about "the establishment and defense of personal honor and reputation, and with offering leadership based on... personal and social standing."
180. Robert F. Bauer, Thoughts on the Democratic Basis for Restrictions on Judicial Campaign Speech, 35 IND. L. REV. 747, 751 n.13 (2002).
181. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. (2006), at 2326.
182. JAMES Q. WILSON & JOHN J. DIIULIO, JR., AMERICAN GOVERNMENT 339 tbl.13.4 (10th ed. 2006)
183. JAMES Q. WILSON & JOHN J. DIIULIO, JR., AMERICAN GOVERNMENT. at 340 ("[P]arty affiliation is still the most important thing to know about a member of Congress. Knowing whether a member is a Democrat or a Republican will not tell you everything about the member, but it will tell you more than any other single fact.").
184. This partisan behavior is not just a feature of congressional action, but also of the actions of the President. During President Bill Clinton's second term, when he faced a Republican Congress, he opposed about two-thirds of the actions of the Congress. See RICHARD S. CONLEY, THE PRESIDENCY, CONGRESS, AND DIVIDED GOVERNMENT: A POSTWAR ASSESSMENT: THE ESSENTIALS 29-31 (2003).
185. Elena Kagan has noted that the most conservative Democrat is now, according to most studies, still more liberal than the most liberal Republican. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2312 (2001).
186. Nancy Scherer found, in her study, "that there is no difference in voting behavior between judges appointed during united and divided government." Nancy Scherer, Who Drives the Ideological Makeup of the Lower Federal Courts in a Divided Government?, 35 LAW & SOC'Y REV. 191, 191 (2001). But her findings are based on an examination of three areas that, during the time period she studied, were not major sources of legal cleavages between the Democratic and Republican Parties. See id. at 191 (describing how her study focused on "search and seizure cases, race discrimination cases, and federalism cases"). Scherer's findings have also been questioned by other research. See, e.g., MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL & HISTORICAL ANALYSIS, at xxv (2003) ("[There are] problems with Scherer's analysis [that] are noteworthy")
187. Tracey E. George, Judicial Independence and the Ambiguity of Article III Protections, 64 OHIO ST. L.J. 221, 239 (2003) ("[U]nified government is highly correlated with the ability of presidents to name judges who match their policy views on a consistent basis in a set of cases. And this result is intuitive. When the President's party controls the Senate, the Administration may meet privately with Senate leaders to negotiate over nominees thereby ensuring the selection of judges who most closely match the ruling party's perspectives as well as their rapid confirmation. Moreover, unified government limits the role of opposing interest groups in judicial selection by denying them access to key decisionmakers and curtailing the public portion of the Article II process.").
188. See Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep't. of Justice, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, Gen. Counsel, Dep't of Def. (Jan. 22, 2002), in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 81 (Karen
189. John Yoo clerked for two of the more conservative judges on the federal bench, first Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit, and then Justice Clarence Thomas of the Supreme Court. He also served as the general counsel to the Republican majority on the U.S. Senate Judiciary Committee during the 1990s. See Berkeley Law: University of California: Faculty Profiles, http://www.law.berkeley.edu/php-programs/faculty/facultyProfile.php?facI D=235 (last visited June 26, 2009).
190. Bybee was appointed a federal judge by the Bush Administration. See David Luban, Liberalism, Torture, and the Ticking Time Bomb, 91 VA. L. REV. 1425, 1452 (2005) ("The irony is that Jay S. Bybee, who signed the Justice Department's highly permissive torture memo, is now a federal judge.").
191. See Dana Priest, CIA Puts Harsh Tactics on Hold, WASH. POST, June 27, 2004, at A1 (noting that the latter Bybee Memorandum "was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel's office and Vice President Cheney's office").
192. See David Johnston & Neil A. Lewis, Bush's Counsel Sought Ruling About Torture, N.Y. TIMES, Jan. 5, 2005, at A1
193. R. Jeffrey Smith & Dan Eggen, Gonzales Helped Set the Course for Detainees, WASH. POST, Jan. 5, 2005, at A1.
194. See Scott Shane, Two Testify on Memo Spelling Out Interrogation, N.Y. TIMES, June 27, 2008, at A15.
195. AREND LIJPHART, PATTERNS OF DEMOCRACY: GOVERNMENT FORMS AND PERFORMANCE IN THIRTY-SIX COUNTRIES (1999), at 161 (noting the ways that the presidential system of the United States tends to give winners of elections disproportionate lawmaking and other powers).
196. See BARBARA SINCLAIR, LEGISLATORS, LEADERS, AND LAWMAKING: THE U.S. HOUSE OF REPRESENTATIVES IN THE POSTREFORM ERA (1995) [hereinafter SINCLAIR, LEGISLATORS]; BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S. CONGRESS (1997) [hereinafter SINCLAIR, UNORTHODOX].
197. See SEAN M. THERAIULT, PARTY POLARIZATION IN CONGRESS 218 (2008).
198. John Ferejohn, A Tale of Two Congresses: Social Policy in the Clinton Years, in THE SOCIAL DIVIDE: POLITICAL PARTIES AND THE FUTURE OF THE ACTIVIST GOVERNMENT 49, 68 (Margaret Weir ed., 1998). ("Everyone agrees that Congress has gradually changed from a loosely structured locus of committees and subcommittees operating fairly independently, with party leaders serving largely as "traffic cops," to a more coherent, collegial, partisan, and sometimes even centralized institution, where significant policymaking activity sometimes takes place in the offices of party leaders, in party caucuses, and on the chamber floors. These changes have gone farther and happened faster in the House of Representatives than in the Senate... but they have been visible in both chambers to varying extents.").
199. See John H. Aldrich & David W. Rohde, The Transition to Republican Rule in the House: Implications for Theories of Congressional Politics, 112 POL. SCI. Q. 541 (1997).
200. See Gerald M. Pomper, Parliamentary Government in the United States, in THE STATE OF THE PARTIES: THE CHANGING ROLE OF CONTEMPORARY AMERICAN PARTIES 251 (John C. Green & Daniel M. Shea eds., 1999).
201. A compelling recent book on the rise of presidential power highlights this and other growing manifestations of increased executive power, regardless of which party occupies the White House. See MATTHEW CRENSON & BENJAMIN GINSBERG, PRESIDENTIAL POWER: UNCHECKED AND UNBALANCED 19-24 (2007).
202. MATTHEW CRENSON & BENJAMIN GINSBERG, PRESIDENTIAL POWER: UNCHECKED AND UNBALANCED at 24-27.
203. MATTHEW CRENSON & BENJAMIN GINSBERG, PRESIDENTIAL POWER: UNCHECKED AND UNBALANCED at 24-25.
204. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. (2000), at 702 ("There are, then, some pretty fundamental reasons for associating an American-style separation of powers with unattractive forms of bureaucratic governance. Worse yet, these theoretical connections are abundantly confirmed in practice.").
205. See JOELD D. ABERACH, ROBERT D. PUTNAM & BERT A. ROCKMAN, BUREAUCRATS & POLITICIANS IN WESTERN DEMOCRACIES 94-95 (1981)
206. Renate Mayntz & Hans-Ulrich Derlien, Party Patronage and Politicization of the West German Administrative Elite 1970-1987-Toward Hybridization?, 2 GOVERNANCE 384, 394 (1989) ("[C]ivil servants today distinguish their role from that of politicians even more than they did in 1970....") (emphasis omitted).
207. See PAUL C. LIGHT, THICKENING GOVERNMENT: FEDERAL HIERARCHY AND THE DIFFUSION OF ACCOUNTABILITY 7-13 (1995).
208. See GEN. ACCOUNTING OFFICE, FACT SHEET, POLITICAL APPOINTEES: TURNOVER RATES IN EXECUTIVE SCHEDULE POSITIONS REQUIRING SENATE CONFIRMATION, GAO/GGD-94-115FS, at 2-3 (1994).
209. See Linda L. Fisher, Fifty Years of Presidential Appointments, in THE IN-AND-OUTERS: PRESIDENTIAL APPOINTEES AND TRANSIENT GOVERNMENT IN WASHINGTON 1, 27 (G. Calvin Mackenzie ed., 1987).
210. NAT'L COMM'N ON THE PUB. SERV., LEADERSHIP FOR AMERICA: REBUILDING THE PUBLIC SERVICE 7 (1989).
211. See JAMES LANDIS, THE ADMINISTRATIVE PROCESS 10-16, 46-50 (1938).
212. See Neil Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2328 (2006) (discussing the "European model... that... attracts excellent college graduates and retains them").
213. For arguments about the importance of accountability in the administrative state see, for instance, Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541 (1994)
214. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992)
215. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231 (1994)
216. Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. REV. 41.
217. For an underappreciated article in this discussion about the unitary executive which makes these arguments most clearly, see Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995).
218. See, e.g., Saikrishna Prakash, Removal and Tenure in Office, 92 VA. L. REV. 1779, 1780 (2006) ("Conventional wisdom supposes that the President enjoys a power to remove all presidentially appointed officers, save for judges. A corollary of this belief is that neither Congress nor the judiciary may remove such officers, for when the Constitution grants the President a power, it often follows that no one else can enjoy that power.").
219. Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 ADMIN. L. REV. 1111, 1156 (2000).
220. See, e.g., Ministerial and Other Salaries Order, 1994, S.I. 1994/3206 (increasing salaries); Ministerial and Other Salaries Order, 1991, S.I. 1991/2886 (increasing salaries); Ministerial and Other Salaries Order, 1987, S.I. 1987/1836 (increasing salaries). The foundational statute is really the Ministerial and Other Salaries Act, 1975, c. 27 (Eng.). The Act superseded the structure established by the Opposition by the Ministers of the Crown Act 1937. See SIR THOMAS ERSKINE MAY, THE LAW, PRIVILEGES, PROCEEDINGS, AND USAGES OF PARLIAMENT 252 n.19 (20th ed. Butterworths 1983).
221. See Sudha Setty, The President's Question Time: Power, Information, and the Executive Credibility Gap, 17 CORNELL J.L. & PUB. POL'Y 247, 264 (2008).
222. See HOUSE OF COMMONS INFO. OFFICE, FACTSHEET P1 PROCEDURE SERIES: PARLIAMENTARY QUESTIONS (JUNE 2009), available at http://www.parliament.uk/documents/upload/P01.pdf.
223. See Colin Brown & Nigel Morris, Brown Completes Government of "All Talents" with Team of Outsiders, INDEP. (U.K.), June 30, 2007, http://www.independent.co.uk/news/uk/politics/brown-completes-government -of-all-talents-with-team-of-outsiders-455341.html.
224. See Poll Watch: June 2007, BBC NEWS, http://news.bbc.co.uk/1/hi/uk_politics/6264488.stm (last visited Nov. 11, 2009).
225. See Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV. 865, 901 (2007).
226. See William N. Eskridge, Jr. &John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1216 (2001). If the government in opposition rules were to be made binding as part of statutory law, they would probably be considered super-statutes.
227. William N. Eskridge, Jr. &John Ferejohn, Super-Statutes, 50 DUKE L.J. at 1237-42 (discussing the Civil Rights Act of 1964 as a super-statute).
228. th Cong. 118, 119 (1979) ("The blue slip has been used for over 25 years, according to former committee staff members....").
229. See Richard Hrair Dekmejian, Consociational Democracy in Crisis: The Case of Lebanon, 10 COMP. POL. 251, 254 (1978).
230. See Brenda M. Seaver, The Regional Sources of Power-Sharing Failure: The Case of Lebanon, 115 POL. SCI. Q. 247, 255-59 (2000).
231. MARY DURKIN & OONAGH GAY, HOUSE OF COMMONS LIBRARY, HER MAJESTY'S OPPOSITION, SN/PC/3910, at 1.
232. One day after Guinier was nominated, the conservative press labeled her a "quota queen." See Clint Bolick, Clinton's Quota Queens, WALL ST. J., Apr. 30, 1993, at A12. This is what she was called going forward, even though she actually opposed quotas.
233. See LANI GUINIER, THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE DEMOCRACY 19, 189 (1994).
234. Adrian Vermeule, Submajority Rules: Forcing Accountability upon Majorities, 13 J. POL. PHIL., at 88 ("[S]ubmajoritarian decisions are exposed to reversal by subsequent majorities, and might thus be chronically unstable.").
235. Heather K. Gerken, Dissenting by Deciding, 57 STAN. L. REV. 1745
236. Bruce Ackerman has proposed that Congress could exercise broad executive emergency powers by increasing supermajorities through a framework statute. See Bruce Ackerman, The Emergency Constitution, 113 YALE L.J., at 1077 ("Throughout the twentieth century, Congress has enacted 'framework statutes' that have sought to impose constitutional order on new and unruly realities that were unforeseen by the Founders. The same technique will serve us well here.").
237. Ch. 753, 60 Stat. 812 (1946); see George B. Galloway, The Operation of the Legislative Reorganization Act of 1946, 45 AM. POL. SCI. REV. 41, 59-62 (1951) (discussing the importance of this statute for congressional organization).
238. For the constitutional text supporting the distinction between "inferior" and "principal" officers, see U.S. CONST. art. II, § 2.
239. Bowsher v. Synar, 478 U.S. 714, 726-27 (1986) ("To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over the execution of the laws... is constitutionally impermissible.").
240. 272 U.S. 52 (1926).
241. Hanah Metchis Volokh, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, 10 U. PA. J. CONST. L. 745, 772 (2008) see Myers, 272 U.S. at 128-29 (deciding that limitations on the President's Appointments Power are constitutional); id. at 265 (Brandeis, J., dissenting) ("Every President has consistently observed [statutory qualifications for officeholders]. This is true of those offices to which he makes appointments without the advice and consent of the Senate as well as of those for which its consent is required."); see also Bowsher, 478 U.S. at 740 (Stevens, J., concurring) ("[I]t is entirely proper for Congress to specify the qualifications for an office that it has created....").
242. See Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 73, 92-93 (1789) (requiring that the Attorney General be "learned in the law"); see, e.g., Myers, 272 U.S. at 265-74 (Brandeis, J., dissenting) (collecting a large number of statutes prescribing qualifications for officeholders between 1789 and 1926).
243. See, e.g., 2 U.S.C. § 437c(a)(1) (2006) (giving political party requirements for members of FEC); 6 U.S.C. § 313(c)(2) (listing professional experience requirements for the Administrator of FEMA); 29 U.S.C. § 12 (requiring that the Director of the Women's Bureau at the Department of Labor must be a woman); 31 U.S.C. § 703(a) (establishing appointment of the Comptroller General and Deputy Comptroller General by the President, by and with the advice and consent of the Senate, from a list of three or more individuals prepared by a nominating commission); An Act To Provide a Government for the Territory of Hawaii, ch. 339, § 66, 31 Stat. 141, 153 (1900) (noting citizenship and age requirements for the territorial governor of Hawaii); An Act To Remodel the Diplomatic and Consular Systems of the United States, ch. 133, § 9, 10 Stat. 619, 623 (1855) (establishing a citizenship requirement for diplomatic officials, some of whom have confirmation appointments).
244. See, e.g., 13 Op. Off. Legal Counsel 248, 250 (1989) (arguing that statutory qualifications for principle officers are unconstitutional, but not stating an opinion about statutory qualifications for inferior officers)
245. Michael J. Gerhardt, Toward a Comprehensive Understanding of the Federal Appointments Process, 21 HARV. J.L. & PUB. POL'Y. 467, 534-35 (1998).
246. Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 ADMIN. L. REV. 1111, 1139 (2000).
247. 424 U.S. 1, 127 (1976) (noting that the constitutional problems with the statute for the Federal Election Commission include that "with respect to four of the six voting members of the [Federal Election] Commission, neither the President, the head of any department, nor the Judiciary has any voice in their selection").
248. See, e.g., McCain: I Will Appoint Democrats to My Cabinet, FOX NEWS, Sept. 7, 2008, available at http://right-mind.us/blogs/blog_0/archive/2008/09/09/62962.aspx ("Republican John McCain said Sunday if he's elected president, he will appoint Democrats to his Cabinet.").
249. See, e.g., Sarah Baxter, Brainstorming Obama Plans To Pick Republicans For Cabinet, TIMES OF LONDON, Mar. 2, 2008, available at http://www.timesonline.co.uk/tol/news/world/us_and_americas/us_elections /article3466823.ece ("Obama is hoping to appoint cross-party figures to his cabinet such as Chuck Hagel, the Republican senator for Nebraska and an opponent of the Iraq war, and Richard Lugar, leader of the Republicans on the Senate foreign relations committee.").
250. See Shannon Roesler, Permutations of Judicial Power: The New Constitutionalism and the Expansion of Judicial Authority, 32 LAW & SOC. INQUIRY 545, 555 (2007) (discussing new scholarship that argues that the "configuration that makes future electoral victory uncertain for the constitutional drafters favors a constitution delegating substantial authority to a constitutional court").