INTRODUCTION
After Boris Johnson’s attempted prorogation this year, Westminster and Downing Street alike were the sites of marches and protests by vocal advocates from the two factions in the Brexit debate. And yet both sides claimed to be the rightful protectors of democracy. Those hoping to remain in the EU argued that the prorogation unlawfully prevented the UK’s sovereignParliament from enacting the will of the people; Brexiteers countered that the public had already spoken—in the form of the 2016 referendum—and that the election of Boris Johnson to the position of prime minister equipped him with the necessary authority to see this decision through. But it wasn’t just the political branches that were involved. The Supreme Court’s ruling in Cherry/MillerII, declaring Boris Johnson’s prorogation null, called into question the very nature of the executive branch in the United Kingdom.
With similar questions regarding presidential power being raised in Britain’s largest common-law companion just across the pond,this article will compare the executive branches in the United States and the United Kingdom and evaluate how Cherry/Miller II might have played out differently had such a case been brought in the US.
COMPARING THE TWO EXECUTIVES
In order to properly compare the executive branches of the United Kingdom and the United States it is necessary first to understand where government power stems from. In all democratic institutions the short answer is “the people”; however, the way in which “the people” let their voices be heard in these two common law countries is vastly different. Are vealing answer demands a more in-depth analysis of both the selection process for the executives and of the responsibilities which they hold. This article will first explore the meaning of an electoral “mandate” and subsequently advance that, due to the organisation of the Presidential system,the president in the US holds a stronger popular mandate than their counterpart in the UK. In support of the thesis above this article will analyse and contrast (1) the election process and (2) the direct and indirect accountability of the executives in the US and the UK.
The Electoral Mandate
In order to properly frame the scope of executive power it is necessary to evaluate the degree to which the heads of government act as representatives of the people. The terminology adopted, commonly employed in the field of political science, is of a public figure having claim to a “mandate.” StanleyKelley, former professor of politics at Princeton University, sets out the three criteria that compose an electoral mandate: (1) “elections carry messages about problems, policies, and programs”; (2) “certain of these messages must be treated as authoritative commands… either to the victorious candidate or to the candidate and his party”; and (3) “[g]overnments should not undertake major innovations in policy or procedure… unless the electorate has had an opportunity to consider them in an election”[1]. This article will employ Professor Kelley’s understanding of a popular mandate in relation to the differing understanding of the separation of powers doctrine to inform the comparison between the UK and US heads of state.
The Election Process
In order to address the different election processes in the United Kingdom and its younger ally across the Atlantic a trite yet unavoidable reference must be made to the former’s lack of a written constitution. The relevance of this is twofold: first, that there is not a single, rigid method by which the prime minister is chosen and second, as will be explored later in this article, that the dividing lines between the different branches of government are less clear cut.
Without any codified law to dictate how the executive is to be elected, the UK depends on a combination of convention and party politics to inform its selection process. Convention holds that the head of the majority party (or, in the absence of a majority, the largest party in the governing coalition) is to take on the reins of Prime Minister. In the UK’s two largest parties, leadership is determined by the combined input of the Members of Parliament (MPs) of the party and of registered party members. This sort of process immediately brings into question Professor Kelley’s first component of an effective mandate; with the selection of the prime minister entirely within party control, the election can only “carry messages about problems, policies, and programs” from within party lines. While it may be preferable to have a prime minister who can garner support from other parties as well as their own, this is by no means necessary for a successful campaign. As such, the mandate held by the prime minister cannot be said to embody the concerns of the entire nation; its restriction to party politics imposes a meaningful limit on the executive’s ability to claim that they are acting on behalf of the public at large.
This faction-based arrangement in the UK is the antithesis to system which the founding fathers had envisaged for the United States. Robert Dahl, professor ofpolitical science at Yale University, submits that the framers’ intent was to create a system that could avoid the “factional choice” that would result“if the president were chosen by the Congress”[2]. Indeed, this intention can be gathered from a single line of Alexander Hamilton’s Federalist68 (writing in favour of the ratification of the US Constitution): “theExecutive should be independent for his continuance in office on all but the people themselves.[3]” A well recognised US electoral pattern that merits mention here is the change in a candidate’s platform between the primary election (when they are running to become the presidential nominee of their party) and the general election (when they are running for the office of president). The former involves a process that, although still directly involving the general public, is far more comparable to the UK system of selection by party members. Across the political spectrum it has been noted that during their bid for party nomination candidates favour far more extreme views than in their presidential race. [4] The public mandate which the executive can lay claim to after a primary election is therefore significantly weaker than the one they receive upon winning the presidency. Because a president-hopeful must win both elections to secure their executive position(whereas their UK counterpart must only cater to party politics) the mandate bestowed upon them is more closely connected to the demands of the nation(Professor Kelley’s first criteria) than the UK equivalent.
Direct and Indirect Accountability
The UK’s lack of a codified constitution bears additional relevance to the separation of powers between the executive and the legislative bodies. Because UK convention dictates that the prime minister must be a member of the House of Commons and election results depend heavily on the support of MPs, the selection process for prime minister is intrinsically intertwined with that of Parliament. This sort of election results in an executive more directly accountable to the legislature that appointed them and therefore only indirectly accountable to the people. Such a system stands in stark contrast with the process in the US, where the candidate does not have to be a member of the legislature and is also by no means directly dependent on members of Congress. Where the executive is directly chosen by the people, the decision of the electorate can be more intuitively regarded as an authoritative command of the public (criterion two of Kelley’s test) than where the executive is chosen by a body of politicians who might have been selected by their constituents on a plethora of other platforms and promises. Because voters must choose a candidate who best represents their interests rather than one who perfectly represents them, a degree of information is lost in every election cycle; the more indirect the election process, the harder it becomes to decipher which political views “must be treated as authoritative commands” to fulfill the second criterion ofProfessor Kelley’s test.
The clearer separation of powers in the US demands that all cast ballots directly contribute towards the election a single candidate. Presidential elections have consistently brought 50% more voters to the polls than midterm elections (elections for members of Congress) [5]. This confers upon the winning candidate in the US a mandate for more clearly embedded in Professor Kelley’s second and third criteria than the prime minister in the UK, whose election can only be regarded as the culmination of a series of votes, none of which amounted to the direct election of a single candidate.
Interactions between the Branches of Government
Having addressed the public mandates of the two executives, the necessary question which follows is whether any practical implications arise from the differences. For the sake of brevity,this piece will concentrate on the degree to which the prime minister and president can act independently of the other two branches. The principle of parliamentary sovereignty in the UK (which is too complex a topic to be explored in depth here) means that the prime minister can operate with a wide expanse of power,so long as that power has been correctly delegated to them by Parliament. The royal prerogative, although a well-recognised grant of authority, can be narrowed by statute. The prime minister’s public mandate therefore acts as a check on Parliament only in the political and never in the legal sense. This makes the mandate no less real, but it does crucially differentiate the interactions between the prime minister and Parliament from their US equivalents.
CHERRY/MILLER II IN THE UNITED STATES
It is important to recognise that the Presidential system to which the US president owes their popular mandate is a double-edged sword with regards to executive authority. The President’s mandate helps to enshrine the legitimacy of executive action and therefore warrants greater discretion from the Courts. At the same time, however, the stricter separation of powers doctrine which underlies the Presidential system also succeeds in curtailing the power of the executive when it extends into territory clearly delegated to another branch of government.
Therefore, separation of powers and the authority of the executive must be regarded as inseparable doctrines: the president’s popular mandate is heavily dependent on the separation of powers doctrine and the doctrine depends on the preservation of presidential autonomy. In order preserve this constitutional synthesis, the courts must strike a careful balance between upholding the independence of the executive and upholding clear separations between the three branches.
From the above it follows that, if the president’s action falls within the scope of the executive’s constitutionally delegated authority, then the Court ought to analyse the reach of the executive’s powers if and only if there has been a conflict with another branch of government; if the president’s action falls outside the scope of the executive’s constitutionally delegated authority and interferes with another branch, then the Court has a responsibility, regardless of the political implications of its decision, to uphold the separation of powers doctrine.
Turning to the case of Cherry/Miller II, we are tasked with determining in which of the two aforementioned categories the case falls. This analysis turns, ultimately, on what we regard as the “president’s conduct” in the criteria outlined above—the actual prorogation or the goal which that prorogation was meant to achieve. Because the “action” taken by the prime minister was the prorogation of Parliament, this article submits that the suspension of the legislative branch ought to be the way in which the Court understands the “president’s conduct” in our hypothetical scenario.
Because the US executive has no such constitutionally-delegated authority to prorogue Congress, we must treat the Cherry/Miller II hypothetical as an example of the executive acting beyond the scope of their power. Therefore,on a proper analysis of the separation of powers doctrine, any questions about the president’s popular mandate are rendered moot; it is a clear infringement of legislative authority for the executive to even attempt to prevent Congress from meeting and the Court would no doubt recognise it as such. Analysis by the judiciary would stop there.
Although the facts of Cherry/Miller II demand that theCourt disregard the political elements underlying presidential authority, it is important not to understate the power which the presidential mandate commands.Were our hypothetical scenario to involve a power more clearly grounded in the constitutionally recognised jurisdiction of the president, the Court’s deference to politically-supported policies of the government would become abundantly clear.
The US Supreme Court case of Goldwater v Carter provides a good case study for such a scenario. After President Carter unilaterally ended a defense treaty with Taiwan (without Congressional approval) suit was brought by members of Congress as to the legality of his action. The majority ruled that the issue was entirely non-justiciable, referencing the importance of theCourt keeping out of such political spats between the legislative and executive acts (in particular where the executive is operating within the constitutionally identified scope of his powers)[6].
The opinion given by Justice Brennan, and supported by two other justices, went even further by actively enshrining the presidential power. JusticeBrennan made explicit reference to the public support behind the president’s decision and, on that basis, found that the executive had every right to withdraw from treaties without legislative approval [7]. Such a judgement speaks clearly to the impact of the popular mandate, even in the legal realm.The Court’s general (and appropriate) hesitation to undermine the democratic institutions of the country means that the presidential system places the executive in a unique position in the eyes of law. Where that position is employed in accordance with the fundamentals of the presidential system (and the separation of powers doctrine in particular) rather than running contrary to them, theCourt is correct in ceding decision-making authority to the political body.
Implications & Looking Forward
Political figures in the US and UK have been playing a game of “constitutional hardball”—pushing the legal limits of their powers with growing ambivalence as to the consequences of their conduct on the proper operation of the system of government itself [8].Now, more than ever, it is essential that the courts properly understand what role they should play in the midst of this political jungle. With the two countries so polarized, the courts interfering in executive decision-making risks entirely destroying public faith in judicial neutrality—which, especially in the US, has already been repeatedly called into question. But while intervention in the political field should be discouraged, disavowing it entirely could prove even more dangerous. The hypothetical application of Cherry/MillerII demonstrates the importance of the courts retaining an honest conception of what falls within and what falls outside of executive authority; in a system like the US, where separation of powers lies at the very heart of the rule of law, the courts ignoring this distinction threatens to put a false stamp of approval on expanding executive authority.
In light of these two countervailing arguments, drawing the line between appropriate intervention and judicial overreach will not be an easy task. Comparing the starting assumptions of different common law systems may be a good place to start.
References
[1] Stanley Kelley, Interpreting Elections (PrincetonUP 1983) 126–128.
[2] Robert A. Dahl, "Myth of the PresidentialMandate," Political Science Quarterly 3, no. 105 (Fall 1990): 357,accessed November 5, 2019,https://www.jstor.org/stable/pdf/2150822.pdf?refreqid=excelsior%3Ac6a8bcce0d1f81a6041620e426a462e1.
[3] Alexander Hamilton, “No.68: The Mode of Electing the President,” The Federalist Papers, (Seattle:Amazon Classics, 2017), 555.
[4] JamesQ. Wilson, John J. Dilulio, Jr., and Meena Bose, American Government:Institutions and Policies, ap ed. (Stamford, CT: Cengage Learning, 2015),227.
[5] “VoterTurnout.” FairVote, 2019.https://www.fairvote.org/voter_turnout#voter_turnout_101.
[6] Goldwater v Carter 444 U.S. 996.
[7] ibid.
[8] Steven Levitskyand Daniel Ziblatt, "How Wobbly Is our Democracy?", The New YorkTimes (New York, NY), January 27, 2018, accessed November 24, 2019, https://www.nytimes.com/2018/01/27/opinion/sunday/democracy-polarization.html.
