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Boston College Law School Faculty Papers
1-1-2009
The Fusion of Presidentialism and Parliamentarism
Richard Albert
Boston College Law School, richard.albert@bc.edu
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Recommended Citation
Richard Albert. "The Fusion of Presidentialism and Parliamentarism." American Journal of Comparative Law 57, (2009): 531-.
RICHARD ALBERT*
The Fusion of Presidentialism and Parliamentarism
No question of constitutional design is more intensely debated
than whether emerging democracies should adopt presidential or parliamentary
systems. This is an important debate but it misses a
critical point about constitutional design—namely that the structural
differences between presidentialism and parliamentarism conceal
much more than they reveal. In this Article, I demonstrate precisely
how conventional accounts of the structural differences between presidentialism
and parliamentarism actually obscure their functional
similarities.
I. INTRODUCTION
Parliamentarism and presidentialism are commonly, and correctly,
set in opposition as distinguishable systems of governance
that exhibit distinguishable structural features.1 Yet the structural
differences between them do not necessarily give rise to functional
differences. Quite the contrary, the very structural features that allow
us to distinguish between presidentialism and parliamentarism
often conceal their functional similarities.
These similarities between presidentialism and parliamentarism
are at once the result of purposeful design, political practice and unintended
consequences. They highlight a fascinating dimension of
constitutional design that conventional theories of presidentialism
and parliamentarism have yet to fully explore: that parliamentary
systems may sometimes function as presidential ones while presiden*
Assistant Professor, Boston College Law School; Yale University (J.D., B.A.);
Oxford University (B.C.L.); Harvard University (LL.M.). For helpful comments on
earlier drafts, I am grateful to Bruce Ackerman, Farrah Ahmad, Katherine Cornett,
Asha Kaushal, Daryl Levinson, Juan Linz, Jason Marisam, Adam Perry, Vinay
Sitapati, Alison Young, and the editorial team of the American Journal of Comparative
Law. I am also grateful to La Fondation Baxter & Alma Ricard for its generous
support of this project.
1. See, e.g., Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405,
1454 (2007); Adam B. Cox, The Temporal Dimension of Voting Rights, 93 VA. L. REV.
361, 389 n.88 (2007); Jorge A. Schiavon, The Central-Local Division of Power in the
Americas and Renewed Mexican Federalism: Old Institutions, New Political Realities,
4 INT’L J. CONST. L. 392, 392 (2006); Alice Poole, Convergent American and British
Anti-Terror Paradigm; Dissonant Policy Implementation, 11 GEO. PUB. POL’Y REV. 99,
101 (2005-06); Paul W. Kahn, Comparative Constitutionalism in a New Key, 101
MICH. L. REV. 2677, 2693 (2003).
531
532 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
tial systems may sometimes function as parliamentary ones. These
similarities also suggest a larger point about modern constitutional
design, namely that political culture can often overcome the strictures
of constitutional structure.
Political actors in presidential and parliamentary systems have
successfully imported foreign constitutional mechanisms from their
counterparts—mechanisms once thought to be incompatible with the
constitutional structure of the importing state. This constitutional
cross-pollination has fused elements of parliamentarism and presidentialism
into a unified constitutional structure, creating a
template for a new hybrid form of presidential parliamentarism and
of parliamentary presidentialism. In breaking free from their traditional
constitutional boundaries, modern forms of parliamentarism
and presidentialism offer new insights into the continuing debate on
whether political culture shapes constitutional structure or constitutional
structure constrains political culture.2
My modest task in this Article is to begin to theorize this fusion. I
will demonstrate that conventional constitutional theory oversimplifies
the differences between presidentialism and parliamentarism,
and that it reflects little more than dated caricatures of presidential
and parliamentary systems. I will start, in Part II, by challenging the
conventional wisdom that parliamentarism fuses powers and presidentialism
separates them. In Part III, I will show how
parliamentary systems often adhere to the fixed electoral terms characteristic
of presidentialism, just as presidential systems are
sometimes vulnerable to the forced or variable elections that are
more closely associated with parliamentarism. Part IV will critique
the idea that parliamentary systems are efficient and that presidential
ones are inefficient. In Part V, I will conclude with a few
additional observations.
II. THE SEPARATION OF POWERS
According to constitutional scholars, the separation of powers
serves the important purpose of thwarting the rise of tyranny.3 The
theory of the separation of governmental powers insists that each
branch of government must not exceed its pre-determined institu-
2. See, e.g., Gary Jeffrey Jacobsohn, The Permeability of Constitutional Borders,
82 TEX. L. REV. 1763, 1775-76 (2004); Daniel Halberstam & Roderick M. Hills, Jr.,
State Autonomy in Germany and the United States, 574 ANNALS 173, 178 (2001);
Roger B. Myerson, Economic Analysis of Constitutions: The Strategic Constitution, 67
U. CHI. L. REV. 925, 928-29 (2000).
3. See, e.g., Richard W. Murphy, Separation of Powers and the Horizontal Force
of Precedent, 78 NOTRE DAME L. REV. 1075, 1114 (2003); Stanley H. Friedelbaum,
State Courts and the Separation of Powers: A Venerable Doctrine in Varied Contexts,
61 ALB. L. REV. 1417, 1421-22 (1998); Rebecca L. Brown, Separated Powers and Ordered
Liberty, 139 U. PA. L. REV. 1513, 1534 (1991); Larry Kramer, The Constitution
as Architecture: A Charette, 65 IND. L.J. 283, 286 (1990).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 533
tional boundaries and must respect the jurisdiction of other
branches.4 Drawing on the insights of Montesquieu—who suggested
assigning legislative, executive and judicial powers to different institutional
agents5—states have designed their governing charters
consistent with this theory. For instance, the United States6 and
France7 both separated government powers in their respective constitutions,
both among the first written constitutions in the history of
the world.8 Since then, the separation of powers has become viewed
as a fundamental feature of democracy,9 some scholars even regarding
it as a necessary feature.10
Presidentialism and the separation of powers are sometimes
used synonymously, as though one entailed the other.11 The conventional
narrative holds that presidential regimes separate
governmental powers12 and disperse public power across autonomous
branches of government, typically the executive, legislature, and the
judiciary.13 In contrast, parliamentary systems, according to the con-
4. David Rudenstine, Judicially Ordered Social Reform: Neofederalism and Neonationalism
and the Debate Over Political Structure, 59 S. CAL. L. REV. 449, 479
(1986).
5. CHARLES DE SECONDAT MONTESQUIEU, THE SPIRIT OF THE LAWS, Book 11, Ch.
6, 157 (Anne M. Cohler et al. eds., 1989).
6. Note that there is no separation of powers clause in the United States Constitution.
It is instead inferred from the structure of the Constitution. DONALD E.
LIVELY, CONSTITUTIONAL LAW: CASES, HISTORY, AND DIALOGUES 369 (2d ed. 2000).
7. D ´ECLARATION DES DROITS DE L’HOMME ET DU CITOYEN (1789) (“Toute soci´et´e
dans laquelle la garantie des droits n’est pas assur´ee ni la s´eparation des pouvoirs
d´etermin´ee, n’a point de Constitution.”).
8. A.E. Dick Howard, The Bridge at Jamestown: The Virginia Charter of 1606
and Constitutionalism in the Modern World, 42 U. RICH. L. REV. 9, 30 (2007).
9. See, e.g., Manuel Medina-Ortega, Comment, A Constitution for an Enlarged
Europe, 32 GA. J. INT’L & COMP. L. 393, 400 (2004); Charles McDaniel, Islam and the
Global Society: A Religious Approach to Modernity, 2003 B.Y.U.L. REV. 507, 540
(2003); Douglas S. Reed, Popular Constitutionalism: Toward a Theory of State Constitutional
Meanings, 30 RUTGERS L.J. 871, 927 n.135 (1999).
10. See, e.g., Emanuel Gross, The Struggle of a Democracy Against the Terror of
Suicide Bombers: Ideological and Legal Aspects, 22 WIS. INT’L L.J. 597, 655 (2004); Lt.
Col. Susan S. Gibson, International Economic Sanctions: The Importance of Government
Structures, 13 EMORY INT’L L. REV. 161, 213 (1999); Sammy Smooha, The
Implications of the Transition to Peace for Israeli Society, 555 ANNALS 26, 33-34
(1998).
11. See, e.g., Fred W. Riggs, Globalization, Ethnic Diversity, and Nationalism:
The Challenge for Democracies, 581 ANNALS 35, 42 (2002).
12. See, e.g., Steven G. Calabresi, Why Professor Ackerman is Wrong to Prefer the
German to the U.S. Constitution, 18 CONST. COMMENT. 51, 54-55 (2001); Heinz Klug,
Model and Anti-Model: The United States Constitution and the Rise of World Constitutionalism,
2000 WIS. L. REV. 597, 603 (2000); Vijayashri Sripati, Toward Fifty Years
of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead
(1950-2000), 14 AM. U. INT’L L. REV. 413, 476 (1998); Kyong Whan Ahn, The Influence
of American Constitutionalism on South Korea, 22 S. ILL. U. L. J. 71, 99 (1997).
13. Some nation-states possess more than three branches of government. See, e.g.,
CONSTITUTION OF INDIA (1950) (establishing four branches); CONSTITUTION OF COSTA
RICA (1949) (creating five branches).
534 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
ventional wisdom, do not separate powers in the same fashion.14 One
scholar even declares that parliamentarism and the separation of
powers are incompatible, arguing that parliamentary systems cannot
separate their governmental powers.15 But these conventional accounts
of presidentialism and parliamentarism fail to appreciate that
presidential systems may sometimes fuse—and parliamentary systems
may separate—their governmental powers.
A. Separating Powers in Parliamentary Systems
I begin with the proposition that there is more than one type of
parliamentary system. I will examine two different forms—Westminster
parliamentarism and constrained parliamentarism—to show
how they actually separate governmental powers within their respective
regimes of fused governmental powers.
1. Westminster Parliamentarism
The first model is the Westminster parliamentary system, which
operates in the United Kingdom. Similar to presidential systems, it is
organized into the three traditional branches of government. And like
presidential systems, Westminster parliamentarism also separates
governmental powers. But it does so in a way that differs from the
customary understanding of separated powers. Rather than separating
powers among the legislative, executive and judicial branches of
government, the Westminster system separates powers between two
organs of the state: the Crown, which subsumes the judiciary, and
the Parliament.16
Burke was an early advocate of applying separation theory in the
United Kingdom.17 The separation of powers between the Crown and
Parliament emerged as part of the Revolution Settlement,18 statutorily
enshrined in the Act of Settlement of 1700 that established the
14. See, e.g., CALVIN R. MASSEY, AMERICAN CONSTITUTIONAL LAW: POWERS AND
LIBERTIES 333 (2d ed. 2005); WALTER BAGEHOT, THE ENGLISH CONSTITUTION 76 (1873);
Russell A. Miller, Book Review, Recent Books on International Law, 100 A.J.I.L. 980,
985 (2006); Eric Stein, International Integration and Democracy: No Love at First
Sight, 95 A.J.I.L. 489, 521 (2001); Erin Daly, Idealists, Pragmatists, and Textualists:
Judging Electoral Districts in America, Canada, and Australia, 21 B.C. INT’L & COMP.
L. REV. 261, 266-67 (1998).
15. Luan-Vu N. Tran, The Canadian Charter of Rights and Freedoms: Justification,
Methods, and Limits of a Multicultural Interpretation, 28 COLUM. HUMAN RIGHTS
L. REV. 33, 46 n.32 (1996).
16. David Jenkins, Both Ends Against the Middle: European Integration, Devolution,
and the Sites of Sovereignty in the United Kingdom, 16 TEMP. INT’L & COMP. L.J.
1, 3 (2002).
17. Carl T. Bogus, Rescuing Burke, 72 MO. L. REV. 387, 411 (2007).
18. Philip A. Joseph, Scorecard on our Public Jurisprudence, 3 NEW ZEALAND J.
PUB. & INT’L L. 223, 249 (2005); Carl T. Bogus, The Battle for Separation of Powers in
Rhode Island, 56 Admin. L. Rev. 77, 89 (2004).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 535
primacy of parliamentary democracy.19 This division was intended to
empower Parliament to hold the Crown accountable.20 Blackstone
echoed this Crown-Parliament separation in his treatise on the laws
of England, observing that any power exercised by the Crown or in its
name must first be sanctioned by Parliament.21
The leading modern work on English constitutional law, Tomkins’
Public Law,22 describes this Crown-Parliament separation
using three examples: (1) Acts of Parliament, (2) ministerial responsibility
to Parliament, and (3) the authority of courts.23 First,
parliamentary acts become law by virtue of the agreement of the
Queen, the House of Commons and the House of Lords, the Queen
representing the Crown and the Parliament comprising both Houses.
This is a crucial tripartite covenant because it captures the legal moment
of concurrence between the two sovereign bodies in
Westminster parliamentarism: the Crown and the Parliament.24 A
bill cannot become an Act of Parliament without the consent of both
the Crown and the Parliament. Each therefore holds veto power.
Second, Cabinet ministers represent the Crown insofar as they
advise the Crown, swear an oath of allegiance to it, and exercise powers
on behalf of and in the name of the Crown.25 By requiring
ministers to be members of Parliament and to appear regularly in
Parliament to answer for the decisions and actions of the Crown, Parliament
is able to perform its supervisory function over the Crown,
thus ensuring that the Crown neither arrogates powers to itself contrary
to the public will nor performs its functions without oversight.26
The final illustration of the Crown-Parliament separation relates
to the judiciary. Tomkins argues that courts, and the judges that staff
them, derive their authority from the Crown, and are therefore
agents of the Crown.27 The Crown-Parliament separation of powers
is sustained by the theory of parliamentary sovereignty, which authorizes
Parliament to override judicial decisions.28 This confers upon
Parliament the capacity to check the powers that the Crown exercises
19. Rett R. Ludwikowski, Politicization and Judicialization of the U.S. Chief Executive’s
Political and Criminal Responsibility: A Threat to Constitutional Integrity or
a Natural Result of the Constitution’s Flexibility?, 50 AM. J. COMP. L. 405, 407 (2002).
20. Susanna Frederick Fischer, Playing Poohsticks with the British Constitution?
The Blair Government’s Proposal to Abolish the Lord Chancellor, 24 PENN. ST. INT’L L.
REV. 257, 285 (2005).
21. Christopher A. Chrisman, Article III Goes to War: A Case for a Separate Federal
Circuit for Enemy Combatant Habeas Cases, 21 J.L. & POL. 31, 37 (2005).
22. ADAM TOMKINS, PUBLIC LAW (2003).
23. Id. at 47-54.
24. Id. at 48.
25. Id. at 48-49.
26. Id. at 50-51.
27. Id. at 53.
28. JEFFREY GOLDSWORTHY, THE SOVEREIGNTY OF PARLIAMENT: HISTORY AND PHILOSOPHY
232-35 (1999).
536 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
through its courts. These three examples show that a regime can separate
governmental powers even as it departs from the traditional
model of legislative-executive-judicial separation. They furthermore
undermine the commonly held notion that parliamentarism does not
separate powers.
2. Constrained Parliamentarism
The second model is constrained parliamentarism, a term coined
by Bruce Ackerman to refer to systems that add the following wrinkles
to Westminster parliamentarism: (1) a written constitution and
a bill of rights, (2) a supreme or constitutional court endowed with
the power to invalidate duly passed acts of the legislature, (3) a bicameral
legislature that does not hold conclusive authority, (4) an
upper house of the legislature that is not as powerful as the lower
house, and (5) independent agencies, for example an independent
electoral commission or an auditory body.29 As I will show with respect
to the Indian Constitution, constrained parliamentary systems
separate governmental powers between Parliament and the judiciary.
They also deploy independent agencies to help the legislature
monitor the executive Cabinet, as is the case in Canada and South
Africa.
i. Separating Judicial and Parliamentary Powers
India is a parliamentary state that fuses its legislative and executive
powers yet separates its judicial and parliamentary powers.
The Indian Supreme Court has often repeated the claim that the separation
of powers is necessary for judicial independence.30 To its
credit, the Court has also acknowledged that the separation of powers
protects the legislative sphere from undue judicial intrusion.31 Nonetheless,
the Court has asserted itself against the Parliament and has
been very firm in guarding its jurisdiction, boldly declaring that a
29. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 635-
36, 718-20 (2000).
30. See, e.g., People’s Union of Civil Liberties (PUCL) & Anor v. Union of India &
Anor, [2003] 2 LRI 13, Supreme Court of India (Civil Original Jurisdiction), at para.
9; Gauhati High Court & Anor v. Kuladhar Phukan & Anor, [2002] 2 LRI 253, C.A.
No. 2337, Supreme Court of India (Civil Appellate Jurisdiction), at para. 14; State of
Bihar & Anor v. Bal Mukund Sah & ORS, [2000] 2 LRI 471, C.A. Nos. 9072 (1996) and
2083 (2000), Supreme Court of India (Civil Appellate Jurisdiction), at para. 57; Registrar
(Admn), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (Deceased) By
Lrs & Anor and Other Appeals, [2000] 1 LRI 1145, C.A. Nos. 4751-4753, Supreme
Court of India (Civil Appellate Jurisdiction), at para. 1.
31. See, e.g., Chairman & MD, BPL Ltd. V. SP Gururaja & ORS, [2003] 4 LRI 338,
C.A. Nos. 2166-67, Supreme Court of India (Civil Appellate Jurisdiction), at para. 32;
Guruvayur Devaswom Managing Committee & Anor v. CK Rajan & ORS, [2003] 3
LRI 713, C.A. Nos. 2148-51, Supreme Court of India (Civil Appellate Jurisdiction), at
para. 74.
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 537
parliamentary law overriding a judicial decision be a clear violation
of the separation of powers.32
One case is particularly instructive. In Union of India, the Court
was asked whether the executive could, consistent with the Indian
Constitution, exercise the power to review or revise a decision of a
quasi-judicial court.33 The background is important: the Cinematograph
Act had established a tribunal assigned the task of assessing
the effect of movies on the public, for instance whether certain movies
were likely to provoke or incite responses that might endanger public
safety and welfare.34 The Act provided for an appeal to an appellate
tribunal, but it also authorized the executive to issue an order to the
appellate tribunal instructing it how to resolve a matter pending
before it.35 The Act was challenged on separation of powers
grounds.36
The Court invoked judicial independence and the separation of
powers to declare the Act unconstitutional: “Once a quasi-judicial
body like the appellate tribunal . . . gives its decision that decision
would be final and binding so far as the executive and the government
is concerned.”37 The Court added that, “[t]o permit the
executive to review and/or revise that decision would amount to interference
with the exercise of judicial functions by a quasi-judicial
board. It would amount to subjecting the decision of a quasi-judicial
body to the scrutiny of the executive.”38 Important principles are at
stake, reasoned the Court, stating that “[t]he executive has to obey
judicial orders.”39 This is a useful illustration of the separation of judicial
and parliamentary powers in constrained parliamentary
systems.
ii. Policing the Border Separating the Executive and
Legislature
In addition to separating governmental powers between the judiciary
and Parliament, constrained parliamentarism also mitigates
the potential hazard posed by merging the legislative and executive
branches in Parliament. Constrained parliamentarism endows independent
agencies with significant powers to help the legislative
32. See Indira Sawhney v. Union of India & ORS, [2000] 1 LRI 390, Supreme
Court of India (Civil Appellate Jurisdiction), at para. 25.
33. Union of India v. KM Shankarappa, [2001] 4 LRI 903, C.A. No. 3106, Supreme
Court of India (Civil Appellate Jurisdiction).
34. Id. at para. 6.
35. Id. at paras. 4-5.
36. Id. at paras. 2-3.
37. Id. at paras. 7.
38. Id.
39. Id.
538 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
branch scrutinize the action and inaction of the executive Cabinet.40
Agency independence is entrenched in some significant way, either
constitutionally or statutorily, which allows independent agencies to
discharge their delegated duties without intrusion from the executive.41
This legislative-executive separation represents the second
dimension along which constrained parliamentarism separates
powers.
For instance, the Indian Constitution creates an independent
Election Commission that is responsible for the conduct of elections.42
Iraq has also adopted this strategy, creating an independent
High Commission for Human Rights, an Electoral Commission, and a
Commission for Public Integrity,43 each of which answers to the legislative
Council of Representatives, not to the executive Council of
Ministers.44 These institutions are vehicles through which the Parliament
may hold the executive accountable and, with particular
respect to independent electoral commissions, they provide the legislature
with an important tool to ensure the fairness of parliamentary
elections. This is especially important in parliamentary systems—regimes
where the executive often enjoys the privilege of choosing the
date for national elections.
For a clearer illustration of the function of these independent
agencies, let us focus on two jurisdictions in somewhat greater detail,
beginning with South Africa. The South African Constitution establishes
six independent agencies: (1) the Public Protector; (2) the
Human Rights Commission; (3) the Commission for the Promotion
and Protection of the Rights of Cultural, Religious and Linguistic Minorities;
(4) the Commission for Gender Equality; (5) the AuditorGeneral;
and (6) the Electoral Commission.45 Each of these is expressly
designated independent from the executive and directly
accountable to the entire Parliament—and not to the head of government
nor to the Cabinet.46
The South African Constitution requires the state, including
both the executive and the legislature, to protect the independence,
dignity and effectiveness of these institutions,47 as well as to refrain
40. House of Commons standing committees have also historically played an important
role in this respect. See, e.g., Rod B. Byers, Perceptions of Parliamentary
Surveillance of the Executive: The Case of Canadian Defence Policy, 5 CANADIAN J. OF
POL. SCI. 234 (1972).
41. Christopher S. Elmendorf, Advisory Counterparts to Constitutional Courts, 56
DUKE L.J. 953, 978 (2007).
42. Constitution of India, art. 324.
43. Constitution of Iraq, arts. 99-105; Mohamed Y. Mattar, Unresolved Questions
in the Bill of Rights of the New Iraqi Constitution, 30 FORDHAM INT’L L.J. 126, 135-36
(2006).
44. Constitution of Iraq, art. 99.
45. Constitution of South Africa, art. 181(1).
46. Constitution of South Africa, art. 181(5).
47. Constitution of South Africa, art. 181(3).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 539
from interfering in any way with their operation.48 Two of these independent
agencies merit particular notice. First, the South African
Public Protector has the duty to investigate alleged or suspected improprieties
in any government sector, and subsequently to report and
take remedial action, on its findings.49 Second, the Auditor-General
has a similarly broad mandate: to audit and report on the financial
administration of the state, including both national and provincial
governmental institutions.50 Both of these independent agencies
have been useful to the legislature in monitoring the conduct of the
executive.51
Canada, too, has a number of these independent agencies, whose
chief officials are designated as Officers of Parliament.52 As parliamentary
officers, they derive their authority from a parliamentary
statute (not from an executive appointment), receive their commissions
or appointments from the Parliament (not from the Cabinet),
and they report to one or both houses of Parliament (neither to the
Prime Minister nor to the Cabinet).53 There are eight independent
Officers of Parliament: (1) the Auditor-General, (2) the Chief Electoral
Officer, (3) the Official Languages Commissioner, (4) the Privacy
Commissioner, (5) the Access to Information Commissioner, (6) the
Conflict of Interest and Ethics Commissioner, (7) the Commissioner
of Lobbying, and (8) the Public Sector Integrity Commissioner.54
Consider first the Auditor-General. The appointment comes from
the Cabinet but statute mandates that the Cabinet consult with the
leader of every political party in the Parliament and that both houses
48. Constitution of South Africa, art. 181(4).
49. Constitution of South Africa, art. 182(1).
50. Constitution of South Africa, art. 188(1).
51. See, e.g., Public Protector RSA, Press Release, Public Protector to Investigate
the Deputy Minister of Home Affairs, Sept. 13, 2007, available at http://www.public
protector.org/news/media_releases/2007/13092007.htm (announcing investigation
into allegations of improper conduct by executive official) (last visited Aug. 1, 2008);
Public Protector RSA, Press Release, Public Protector Finds that the Minister of Minerals
and Energy, Ms. Mlambo-Ngcuka, was not Involved in the Awarding of a
Contract by PetroSA to a Company in which her Brother-In-Law, Mr. V. Ngcuka, has
an Interest, June 23, 2004, available at http://www.publicprotector.org/news/media_
releases/23062004.htm (reporting that investigation found no wrongdoing of improper
conduct) (last visited Aug. 1, 2008); Auditor-General, Press Release, Auditor-General’s
Performance Audit Highlights Shortcomings in the Import Inspection Services at the
Department of Agriculture, May 31, 2007, available at http://www.agsa.co.za//Press%
20realeses/Current/docs/2007/may/DoA(FormatedFinal).doc (last visited Aug. 1,
2008); Auditor-General, Press Release, Auditor-General Investigation Highlights Misappropriation
of Funds Totalling Over R8,7 Million at the National Development
Agency, Jan. 17, 2007, available at http://www.agsa.co.za/Press%20realeses/Current/
docs/2007/January/NDARelease.doc (last visited Aug. 1, 2008).
52. Parliament of Canada, Officers and Officials of Parliament, Nov. 15, 2007,
available at http://www2.parl.gc.ca/Parlinfo/compilations/OfficersAndOfficials/OfficersOfParliament.aspx?Language=E
(last visited Aug. 1, 2008).
53. Id.
54. Id.
540 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
of Parliament confirm the nomination.55 The Auditor-General’s duties
include facilitating executive accountability to the Parliament by
reporting on such matters as whether executive departments have:
(1) faithfully accounted for public funds,56 (2) properly maintained
public records,57 (3) expended public funds in an appropriate fashion,58
and among others (4) made expenditures without due regard to
environmental sustainability.59 The Auditor-General occupies a central
role in the Canadian public consciousness and is viewed as one of
the most trustworthy individuals in political life.60 These thorough
investigations into the administration of the state have often
equipped the legislature with sufficiently probative evidence to demand
inquiries into allegations of executive wrongdoing.61
Consider next the position of Chief Electoral Officer in Canada.
The House of Commons appoints the Officer to administer the electoral
apparatus at the national level. The Officer remains in office until
the age of sixty-five,62 subject to removal for cause by Parliament.63
By statute, the Chief Electoral Officer reports not to the Prime Minister
nor to the Cabinet, but rather to the Speaker of the House of
Commons on such matters as general elections,64 special elections,65
election staff,66 and campaign finance.67 This is a critical electoral
institutional design, and perhaps a necessary one for a constrained
parliamentary system like Canada, where the party in power has the
ability strategically to engineer its own defeat and therefore to set
election dates when most politically expedient.
These and other independent agencies are recent additions to the
constitutional and political toolkit of parliamentary democracies in
search of innovative ways to confer authority upon the legislative
branch. Despite the control that the doctrine of responsible government
permits the executive to exercise over the legislature,
constrained parliamentarism partners the legislature with independent
agencies in order to neutralize and perhaps even counter the
overwhelming influence that the executive might otherwise exert
over the legislative branch.
55. AUDITOR GENERAL ACT, R.S., 1985, c. A-17, §3(1).
56. Id. at 7(2)(a).
57. Id. at 7(2)(b).
58. Id. at 7(2)(c).
59. Id. at 7(2)(f).
60. See, e.g., Steven Chase, Straight-Talking Fraser Strikes Fear on the Hill,
GLOBE AND MAIL (Toronto, Canada), Feb. 12, 2004, at A4.
61. See, e.g., Thomas S. Axworthy, The Responsibility Crisis in Canada, 28 CANADIAN
PARLIAMENTARY REVIEW 7 (2005), available at 2005 WLNR 11638664.
62. Canada Elections Act, c. 9, §13(1) (2000).
63. Id. at §13(2)
64. Id. at §534(1).
65. Id. at §534(2).
66. Id. at §535.2.
67. Id. at §536.1.
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 541
B. Fusing Powers in Presidential Systems
Just as parliamentarism refutes the conventional wisdom by separating
powers, presidentialism likewise rebuts that same wisdom by
fusing powers. Perhaps the best illustration of the fusion of powers in
presidential systems is the United States. I will focus on two manifestations
of this fusion: (1) the presidential veto power, and (2) the
impeachment power. I begin by briefly introducing the American
founding theory of the separation of powers.
1. The Founding Theory of Separation
As Neustadt has argued, the Constitutional Convention of 1787
did not create a government of strictly separated powers; it created a
government of separate institutions that share powers.68 The separation
of powers was not meant to be enforced exactingly.69 It was
instead understood to permit a certain measure of overlap among the
branches.70 This pragmatic approach reflects how government functions
in practice71 because it is not feasible to demand and police a
strict separation of powers.72 The Supreme Court of the United
States has itself recognized that the Constitution does not require
such a strict separation.73
The Framers of the American Constitution set out to intermingle
powers among branches.74 Looking to the state constitutions of the
day—which routinely fused governmental powers—the Framers
deemed it acceptable to depart from an unforgiving and rigid construction
of the separation of powers.75 There would be no strict
division of governmental labors.76 In this spirit, the branches were
given intersecting powers, exemplified by the national legislative and
executive branches both being granted a role in the legislative pro-
68. RICHARD E. NEUSTADT, PRESIDENTIAL POWER 33 (1960).
69. Brown, supra note 3, at 1531-32; William N. Eskridge, Jr., All About Words:
Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776-1806,
101 COLUM. L. REV. 990, 994-95 (2001).
70. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1808-10
(1996).
71. Robert J. Pushaw, Jr., Justiciability and the Separation of Powers: A NeoFederalist
Approach, 81 CORNELL L. REV. 393, 427-28 (1996); Allan Ides, Essay, The
Jurisprudence of Justice Byron White, 103 YALE L.J. 419, 427-28 (1993).
72. Ellen E. Sward, Legislative Courts, Article III, and the Seventh Amendment,
77 N.C.L. REV. 1037, 1050 (1999); Daniel T. Kobil, The Quality of Mercy Strained:
Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569, 590 n.122 (1991).
73. See Buckley v. Valeo, 424 U.S. 1, 121 (1976); see also Nixon v. Administrator
of General Services, 433 U.S. 425, 443 (1977) (describing as “archaic” the view that
the separation of powers requires “three airtight departments of government”).
74. Lloyd N. Cutler, The American Constitutional Tradition of Shared and Separated
Powers: Now is the Time for All Good Men . . . , 30 WM & MARY L. REV. 387, 387-
88 (1989).
75. THE FEDERALIST No. 47, at 264 (James Madison).
76. SIDNEY M. MILKIS & MICHAEL NELSON, THE AMERICAN PRESIDENCY: ORIGINS
AND DEVELOPMENT, 1776-2002, at 37 (2003).
542 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
cess.77 The Framers freely acknowledged that this was a deviation
from the principle of separated powers.78 It followed from the theory
of the “partial intermixture” of powers that the Framers preferred
over strict separation.79 The intended effect was to create a political
culture in which, in Madison’s famous phrase, ambition “would
counteract ambition.”80 Nonetheless, the Framers were cognizant of
the dangers of commingling powers in such a way that would defeat
the very purpose of their separation in the first place: to prevent the
concentration of power.81
In this way, American separation theory permits shared powers
and even contemplates shifting powers.82 Still, American separation
theory protects the autonomy of the legislature, executive and judiciary.83
Indeed, ensuring the independence of each was one of the main
preoccupations of the Framers.84 Although, wrote Hamilton, each
branch should be endowed with the power to rein in other branches,85
each branch should nonetheless have the capacity to discharge its
delegated functions without undue intrusion from the others.86 The
three branches were therefore intended to operate independently of
each other, but not entirely without connection.87
2. Presidential Legislative Power
One example of shared powers in American constitutional government
is discernible in the legislative sphere. The United States
Congress exercises constitutionally created legislative authority.88
But the President—in whom the Constitution vests executive authority89—also
exercises some measure of legislative authority when he
77. Stphen H. Legomsky, The Making of United States Refugee Policy: Separation
of Powers in the Post-Cold War Era, 70 WASH. L. REV. 675, 691-92 (1995).
78. THE FEDERALIST No. 51, at 280 (James Madison).
79. THE FEDERALIST NO. 66, at 354 (Alexander Hamilton).
80. THE FEDERALIST No. 51, at 322 (James Madison).
81. THE FEDERALIST No. 47, at 261-62 (James Madison).
82. Matthew M. Curley, Note, Untying a Judicial Knot: Examining the Constitutional
Infirmities of Extrajudicial Service and Executive Review in U.S. Extradition
Procedure, 49 VAND. L. REV. 1239, 1272-73 (1996).
83. THE FEDERALIST No. 47, at 263 (James Madison).
84. See, e.g., THE FEDERALIST No. 71, at 383 (Alexander Hamilton); THE FEDERALIST
No. 51, at 321-22 (James Madison); John Ferejohn, Independent Judges,
Dependent Judiciary: Explaining Judicial Independence, 72 S. CAL. L. REV. 353, 362
(1999).
85. THE FEDERALIST No. 66, at 354 (Alexander Hamilton).
86. THE FEDERALIST No. 48, at 268 (James Madison).
87. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
197 (1833).
88. Constitution of the United States, art. 1, § 1 (vesting legislative power in the
United States Congress).
89. Constitution of the United States, art. 2, § 1, cl. 1 (vesting executive power in
the President of the United States).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 543
deploys the presidential veto.90 This is a departure from school civics
courses, which generally teach that the President executes the laws
that the legislature passes.91 The presidential veto demonstrates the
contrary, namely that the President occupies a central role in the legislative
process.
This presidential veto power is enshrined in the constitutional
text. Note that it is not mentioned in Article II, which lists executive
powers, but rather in Article I, which concerns legislative powers.92
The relevant text provides that a bill must be presented to the President
before it becomes law. If the President does not approve of the
bill—which by then has proceeded through the congressional legislative
process and received the approval of both houses of Congress—
he may return the bill to the Congress, which then resumes its deliberations,
keeping in mind the objections raised by the President.
It is evident why the presidential veto appears in Article I: although
it is a power exercised by an executive official, the
presidential veto is a legislative function.93 It is a useful illustration
of how the American presidential system does not in fact separate all
governmental powers. In availing himself of the presidential veto and
transmitting his objections to a particular bill to Congress, the President
participates in the lawmaking process.94 This exchange between
Congress and the President creates a dialogic dynamic in which the
two branches collaborate in shepherding a bill through the legislative
stages. At the very least, the presidential veto makes the President a
partner to Congress in the task of making law.95 It has even been
said that the veto power may make the President the “legislator in
chief.”96
There is an important distinction between two kinds of vetoes:
constitution-based and policy-based presidential vetoes. Exercising
the former, the President performs the constitutionally delegated
function to faithfully execute the law and to defend the Constitution
by blocking a bill on grounds of unconstitutionality or violation of
90. Paul R. Verkuil, Lecture, A Proposal to Resolve Interbranch Disputes on the
Practice Field, 40 CATH. U. L. REV. 839, 839 (1991). The White House Office of Legislative
Affairs assists the President in his legislative role. See KENNETH E. COLLIER,
BETWEEN THE BRANCHES: THE WHITE HOUSE OFFICE OF LEGISLATIVE AFFAIRS (1997).
91. HAROLD J. KRENT, PRESIDENTIAL POWERS 17 (2005).
92. Constitution of the United States, art. I, § 7, cl. 2 (capitals in original).
93. DAVID K. NICHOLS, THE MYTH OF THE MODERN PRESIDENCY 59 (1994).
94. Saikrishna B. Prakash & Michael D. Ramsey, Foreign Affairs and the Jeffersonian
Executive: A Defense, 89 MINN. L. REV. 1591, 1615 (2005); Nick Bravin, Note,
Is Morrison v. Olson Still Good Law? The Court’s New Appointments Clause Jurisprudence,
98 COLUM. L. REV. 1103, 1109 (1998).
95. Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive
Power, 23 CONST. COMMENTARY 307, 346 (2006).
96. See FORREST MCDONALD, THE AMERICAN PRESIDENCY: AN INTELLECTUAL HISTORY
348 (1994); Vasan Kesavan & J. Gregory Sidak, The Legislator-in-Chief, 44 WM
& MARY L. REV. 1, 3 (2002).
544 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
constitutional rights or powers. In the latter, the President wields the
veto for no particular constitutional reason but rather because he disapproves
of the bill on legislative or policy grounds.
This is a material distinction that Broughton has elaborated fluently
and persuasively.97 It is significant because, as Peabody has
demonstrated, modern Presidents have used the presidential veto
more as an instrument to pursue legislative preferences than to defend
their vision of American constitutionalism98—the latter being
precisely what the President pledges to do when he takes the oath of
office on inauguration day.99 Modern Presidents therefore deploy
their veto power to make political statements about policy,100 rather
than to articulate a broader declaration about constitutionality, as
was the case under the earliest Presidents.101 The practical result is
that the President now looms very large in the legislative domain,
despite being the constitutional embodiment of executive authority.
The theoretically interesting result is that, conceptually, the presidential
veto transforms the bicameral legislature into a tricameral
one, with the President in effect constituting his own legislative
branch, albeit one whose legislative powers are purely negative and
do not authorize enacting positive law.102
3. Congressional Judicial Power
A second example of the fusion of powers in American presidentialism
is the congressional impeachment power. The United States
Constitution gives the House of Representatives the power to impeach103
and, to the Senate, the power to convict individuals
impeached by the House.104 The President and other officers are subject
to impeachment for “treason, bribery, or other high crimes and
misdemeanors.”105
There are at least two reasons why these impeachment clauses
run counter to the conventional wisdom that presidential systems
separate powers. The first is that impeachment subjects the execu-
97. J. Richard Broughton, Rethinking the Presidential Veto, 42 HARV. J. ON LEGIS.
91, 93-94 (2005).
98. Bruce G. Peabody, Congress, the Court, and the “Service Constitution”: Article
III Jurisdiction Controls as a Case Study of the Separation of Powers, 2006 MICH. ST.
L. REV. 269, 324 (2006).
99. Constitution of the United States, art. 2, § 1, cl. 8.
100. CONGRESSIONAL QUARTERLY INC., POWERS OF THE PRESIDENCY 87 (2d ed. 1997);
TERRY EASTLAND, ENERGY IN THE EXECUTIVE 70-71 (1992).
101. ERWIN C. HARGROVE & MICHAEL NELSON, PRESIDENTS, POLITICS, AND POLICY
46 (1984).
102. WOODROW WILSON, CONGRESSIONAL GOVERNMENT 52 (15th ed. 2002); Larry
Alexander & Lawrence B. Solum, Book Review, Popular? Constitutionalism?, 118
HARV. L. REV. 1594, 1611 (2005).
103. Constitution of the United States, art. I, § 2, cl. 5.
104. Constitution of the United States, art. I, § 3, cl. 6.
105. Constitution of the United States, art. II, § 4.
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 545
tive to the will of the legislature and in so doing denies the very
independence that the separation of powers is intended to extend to
each branch.106 The second is that the impeachment power confers
judicial powers upon the legislative branch.
If the purpose of separating powers is to ensure that each branch
can exercise its functions independently of, and without intrusion
from, the other branches, then the impeachment power appears to
put this in peril. Some of the founders adopted this view, contending
that the threat of impeachment served only to render the executive
subservient to the legislative branch.107 On this theory, the congressional
prerogative to render a permissive interpretation of “high
crimes and misdemeanors” undermines the independence of the President
and other executive members because it gives expansive
authority to control executive action to the impeaching House and the
convicting Senate.108
But perhaps the more powerful argument that American presidentialism
fails actually to separate powers is that the
impeachment process grants judicial powers to the legislative branch.
Specifically, the power to try and the authority to convict an officer
that the House of Representatives has impeached is a judicial power
exercised by the Senate. To many constitutional scholars, this is an
unmistakable instance of a constitutionally enshrined fusion of powers.109
Other scholars have argued the contrary: that the
106. See, e.g., Jonathan Turley, Congress as Grand Jury: The Role of the House of
Representatives in the Impeachment of an American President, 67 GEO. WASH. L. REV.
735, 745 (1999).
107. Laurier W. Beaupre, Note, Birth of a Third Immunity? President Bill Clinton
Secures Temporary Immunity from Trial, 36 B.C. L. REV. 725, 748 (1995).
108. See, e.g., Stephen M. Griffin, Scholars and Public Debates: A Reply to Devins
and Farnsworth, 82 B.U.L. REV. 227, 234 (2002); James Randolph Peck, Note, Restoring
the Balance of Power: Impeachment and the Twenty-Second Amendment, 8 WM. &
MARY BILL OF RIGHTS J. 759, 784 (2000); Jonathan Turley, Reflections on Murder,
Misdemeanors, and Madison, 28 HOFSTRA L. REV. 439, 459 (1999); see also Nixon v.
United States, 506 U.S. 224, 243 (1993) (“As [the Framers] clearly recognized, the
branch of the Federal Government which is possessed of the authority to try impeachments,
by having final say over the membership of each branch, holds a potentially
unanswerable power over the others.”) (White, J., concurring).
109. See, e.g., Robert J. Pushaw, Jr., Judicial Review and the Political Question
Doctrine: Reviving the Federalist “Rebuttable Presumption” Analysis, 80 N.C.L. REV.
1165, 1187 (2002); Jeremy Waldron, Eisgruber’s House of Lords, 37 U.S.F. L. REV. 89,
97 (2002); James C. Ho, Misunderstood Precedent: Andrew Jackson and the Real Case
Against Censure, 24 HARV. J.L. & PUB. POL’Y 283, 292 (2000); Louis Fisher, Unchecked
Presidential Wars, 148 U. PA. L. REV. 1637, 1643 (2000); M. Elizabeth Magill,
The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127, 1132 (2000);
Leslie M. Kelleher, Separation of Powers and Delegations of Authority to Cancel Statutes
in the Line Item Veto Act and the Rules Enabling Act, 68 GEO. WASH. L. REV. 395,
409-10 (2000); Paul R. Verkuil, The American Constitutional Tradition of Shared and
Separated Powers: Separation of Powers, the Rule of Law and the Idea of Independence,
30 WM. & MARY L. REV. 301, 309-10 (1989); Lynn A. Baker, Note, Unnecessary
and Improper: The Judicial Councils Reform and Judicial Conduct and Disability Act
of 1980, 94 YALE L.J. 1117, 1134 n.97 (1985).
546 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
impeachment power is not a judicial function but instead a legislative
one.110 As a consequence, the latter do not regard impeachment as a
fusion of governmental powers.
Yet on either view, impeachment cannot escape the charge that
it fuses powers, and in either case, one of two of the following statements
must be true: either (1) impeachment is a judicial function, in
which case the legislature exercises judicial powers in derogation
from the conventional wisdom that presidential systems separate
powers; or (2) impeachment is a legislative function, in which case
the judiciary may be seen to participate in legislative powers because
the Constitution instructs the Chief Justice of the United States to
preside over impeachment when the President is on trial.111
4. The Fusion of Personnel
The previous example of the Chief Justice presiding over presidential
impeachment hints at an additional aspect to the American
theory of the separation of powers: separating powers also entails
separating personnel.112 The separation of personnel is a constitutional
mandate that, at its core, prevents one member of the state
apparatus from simultaneously holding legislative and executive office.113
As Calabresi and Larson have demonstrated, separation of
powers theory and practice demands not only a separation of institutions
but just as importantly a separation of personnel, which means
that one individual cannot discharge functions assigned to more than
one branch of government.114
But American presidentialism runs afoul of this proscription on
possibly as many as three counts.115 First, the impeachment process
110. See, e.g., Jonathan Turley, Senate Trials and Factional Disputes: Impeachment
as a Madisonian Device, 49 DUKE L.J. 1, 145 (1999).
111. Constitution of the United States, art. I, § 3, cl. 6.
112. Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 341
(2002).
113. Constitution of the United States, art. I, § 6, cl. 2.
114. Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of
Powers or Separation of Personnel?, 79 CORNELL L. REV. 1045, 1048, 1052 (1994).
115. Just as presidentialism does not strictly observe the conventional wisdom that
it must separate personnel, parliamentary systems likewise contradict their corresponding
conventional wisdom. Traditional parliamentary theory holds that
parliamentarism adheres to a fusion of personnel, specifically that members of the
executive Cabinet must sit concurrently in the legislature as elected officials. See, e.g.,
John D. Richard, Federalism in Canada, 44 DUQ. L. REV. 5, 7 (2005); Jamie Cameron,
Federalism, Treaties and International Human Rights Under the Canadian Constitution,
48 WAYNE L. REV. 1, 36 (2002); Ronald L. Watts, States, Provinces, L¨ander, and
Cantons: International Variety Among Subnational Constitutions, 31 RUTGERS L.J.
941, 953 (2000). Elected legislators are therefore thought to constitute the finite pool
from which the prime minister selects the individuals who will comprise the Cabinet.
See, e.g., Angela L. Beasley, Note, The Ethics in Government Act: The Creation of a
Quasi-Parliamentary System, 5 WIDENER L. SYMP. J. 275, 288 (2000). But this is not
always the case because parliamentarism often separates its personnel—the very
converse of conventional belief. For instance, the Canadian parliamentary system
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 547
may create a fusion of judicial and legislative personnel. Specifically,
if one adopts the view that impeachment is a legislative function and
not a judicial one, then the Chief Justice breaches this constitutional
rule of the separation of personnel when presiding over the impeachment
of the President.
Second, possible infringement on the separation of personnel becomes
apparent in the context of presidential succession, which
arguably fuses legislative and executive personnel. The United
States Constitution authorizes the Congress to establish the rules
governing succession to the presidency in the event of vacancy,116
which Congress has indeed done in a statute.117 This succession statute
designates the Speaker of the House of Representatives as acting
President if the Vice President is unable or unavailable to succeed to
the presidency, and also provided the Speaker resigns from the Congress.118
Where the Speaker is unable or unavailable to succeed to
the presidency, the next in line is the President pro tempore of the
Senate.119 Some have argued that this succession statute fuses personnel
because it discards the distinction between executive and
legislative officers.120 The consequence of this fusion would be a violation
of the separation of powers and a very close approximation of
the merging of powers that is characteristic of parliamentary
systems.121
The third—and perhaps most compelling—instance of the fusion
of personnel in the American presidential system is embodied in the
Vice Presidency. On one account, the Vice President could be “a walkpermits
a prime minister to appoint an unelected individual to the Cabinet, as was
the case when the sitting prime minister in 1995 tapped an academic to join the federal
Cabinet. See E. Kaye Fulton & Mary Janigan, French Power: Newcomers to Battle
the Sovereigntists, MACLEAN’S, Feb. 5, 1996, at 17. The conventional wisdom is mistaken
on a related point: that the head of a parliamentary government must also be a
member of the legislature. See Michael Skold, Note, The Reform Act’s Supreme Court:
A Missed Opportunity for Judicial Review in the United Kingdom, 39 CONN. L. REV.
2149, 2155 (2007). Turning once again to Canadian parliamentarism, it is evident
that parliamentary systems do not require the head of government to resign the
prime ministership if he loses his seat in the House of Commons. See Emilia Casella,
Coops: Leader by Default?, SPECTATOR (Hamilton, Ontario), Oct. 23, 1998, at A8.
116. Constitution of the United States, art. II, § 1, cl. 5.
117. See 3 U.S.C. § 19.
118. 3 U.S.C. § 19(a)(1).
119. 3 U.S.C. § 19(b).
120. See, e.g., Sarah Helene Duggin & Mary Beth Collins, ‘Natural Born’ in the
USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential
Qualifications Clause and Why We Need to Fix It, 85 B.U.L. REV. 53, 88 n.190
(2005); Steven G. Calabresi, The Political Question of Presidential Succession, 48
STAN. L. REV. 155, 156 (1995). But see John F. Manning, Not Proved: Some Lingering
Questions About Legislative Succession to the Presidency, 48 STAN. L. REV. 141, 153
(1995) (arguing that Congress should be given the benefit of the doubt in constructing
the ambiguous language of the Succession Clause).
121. Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law
Constitutional?, 48 STAN. L. REV. 113, 121 (1995).
548 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
ing violation of the separation of powers doctrine”122 because the
Constitution appoints him—despite being second in the executive hierarchy—to
serve as President of the Senate, which of course
constitutes part of the legislative branch.123 This particular fusion of
personnel has a fateful consequence because, as Senate President,
the Vice President is constitutionally duty-bound to open certificates
and count electoral votes in a presidential election.124 Though it may
be odd to imagine, it is nonetheless contemplated by this American
constitutional design that a sitting Vice President would tabulate the
votes for himself as a presidential candidate and the competition in a
presidential race.125 This has of course happened several times in
American history.126 These three cases of fused personnel in the
United States help rebut the established view that presidential systems
strictly separate their personnel.
III. ELECTORAL DESIGN
Scholars have also focused on elections as a way to distinguish
presidentialism from parliamentarism. The first prominent electoral
difference between them, it is generally thought, involves the timing
of elections. Presidential systems are said to adhere to fixed electoral
cycles for the legislative and executive branches.127 Even if a majority
of the legislature opposes the President, presidential systems give
no recourse to that legislative majority apart from impeachment to
remove the President.128 This rigidity129 of presidentialism has
drawn piercing criticism because fixed terms in presidential systems
122. Richard D. Friedman, Some Modest Proposals on the Vice-Presidency, 86
MICH. L. REV. 1703, 1722 (1988).
123. Constitution of the United States, art. I, § 3, cl. 4.
124. Constitution of the United States, art. II, § 1, cl. 3.
125. James C. Ho, Running for the White House from the Hill, 7 GREEN BAG 2D 205,
205 (2004); Gary C. Leedes, The Presidential Election Case: Remembering Safe Harbor
Day, 35 U. RICH. L. REV. 237, 253-54 (2001); Jack M. Balkin, Bush v. Gore and the
Boundary Between Law and Politics, 100 YALE L.J. 1407, 1421 n.55 (2001).
126. See, e.g., Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself
Into the Presidency, 90 VA. L. REV. 551, 552 (2004); Christopher Lee, As Gore
Presides, Bush Wins, Dallas Morning News, Jan. 7, 2001, at A1.
127. See, e.g., Manuel Jose Garcia-Mansilla, Separation of Powers Crisis: The Case
of Argentina, 32 GA. J. INT’L & COMP. L. 307, 359 (2004); Steven L. Winter, When SelfGovernance
is a Game, 67 BROOKLYN L. REV. 1171, 1183-84 (2002); Gabriel L.
Negretto & Jose Antonio Aguilar Rivera, Liberalism and Emergency Powers in Latin
America: Reflections on Carl Schmitt and the Theory of Constitutional Dictatorship,
21 CARDOZO L. REV. 1797, 1804 n.20 (2000); William C. Banks & Alejandro D. Carrio,
Presidential Systems in Stress: Emergency Powers in Argentina and the United States,
15 MICH. J. INT’L L. 1, 5 (1993); Juan J. Linz, The Perils of Presidentialism, in PARLIAMENTARY
VERSUS PRESIDENTIAL GOVERNMENT 118, 120 (Arend Lijphart ed., 1992).
128. See, e.g., Jos´e Antonio Cheibub et al., Government Coalitions and Legislative
Success Under Presidentialism and Parliamentarism, 34 BRITISH J. POL. SCI. 565, 567
(2004).
129. JUAN LINZ & ARTURO VALENZUELA, THE FAILURE OF PRESIDENTIAL DEMOCRACY
6 (1994).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 549
are thought to be undemocratic130 insofar as they compel citizens to
remain—for the balance of a given fixed term—under the rule of a
leader who may have lost the legitimacy needed to govern effectively.131
In contrast, parliamentary systems are thought to confer
upon the head of government the discretionary power to call an election
at the time of his choosing,132 subject to an intervening vote of no
confidence in the legislature.133 According to conventional thought,
fixed terms and parliamentarism are mutually incompatible.134
The second conventional electoral difference between parliamentarism
and presidentialism has to do with impeachment.
Presidential systems are thought to provide only one option—impeachment
but not a vote of no confidence135—to remove a President
before the end of a fixed term. Yet impeachment is a daunting proposition
given the difficulty of mustering the requisite majorities or
supermajorities to impeach and convict a sitting President—even
where he loses the confidence of the legislature, the party, the people,
or all three.136 In contrast, it is often believed that parliamentary
systems do not have recourse to impeachment but only to a vote of no
confidence to replace a weakened head of government.137 This makes
it relatively easier to replace a head of government who has lost the
confidence of the legislature, has become a political liability for the
party, or has alienated the people.
This assumption is wide of the mark once again. Not only may
parliamentarism operate on a calendar of fixed electoral terms but
presidentialism may likewise incorporate the theory of non-confidence
votes into its own electoral design. Furthermore, the use of
130. See, e.g., Sanford Levinson, How the United States Constitution Contributes to
the Democratic Deficit in America, 55 DRAKE L. REV. 859, 869-70 (2007).
131. See, e.g., Maxwell O. Chibundu, Political Ideology as a Religion: The Idolatry
of Democracy, 6 R.R.G.C. 117, 138 n.51 (2006); Ludwikowski, supra note 19, at 410;
Sanford Levinson, Transitions, 108 YALE L.J. 2215, 2233 (1999).
132. See, e.g., Seth Barrett Tillman, Reply, Defending the (Not So) Indefensible, 16
CORNELL J.L. & PUB. POL’Y 363, 379 n.56 (2007); Bruce E. Cain, The Internet in the
(Dis)Service of Democracy?, 34 LOY. L.A. L. REV. 1005, 1010 (2001); John O. McGinnis
& Michael B. Rappaport, Essay, Symmetric Entrenchment: A Constitutional and Normative
Theory, 89 VA. L. REV. 385, 438 n.171 (2003).
133. See, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive
During the First Half-Century, 47 CASE W. RES. 1451, 1473 n.54 (1997).
134. See, e.g., PATRICK MALCOLMSON & RICHARD MYERS, THE CANADIAN REGIME 61
(3d ed. 2005); Arend Lijphart, Reforming the House: Three Moderately Radical Proposals,
31 POL. SCI. & POLITICS 10, 12 (1998); Robert A. Goldwin, Comment, Original
Intent and the Constitution, 47 MD. L. REV. 189, 190 (1987).
135. See, e.g., Jody C. Baumgartner, Introduction: Comparative Presidential Impeachment,
in CHECKING EXECUTIVE POWER: PRESIDENTIAL IMPEACHMENT IN
COMPARATIVE PERSPECTIVE 1, 3 (Jody C. Baumgartner & Naoko Kada eds., 2003).
136. John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution,
80 TEX. L. REV. 703, 752-53 (2002).
137. See, e.g., Frank O. Bowman, III & Stephen L. Sepinuck, “High Crimes and
Misdemeanors”: Defining the Constitutional Limits on Presidential Impeachment, 72
S. CAL. L. REV. 1517, 1533-34 (1999).
550 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
impeachment as a tool to dismiss the head of government or state is
not reserved exclusively for presidentialism because parliamentarism
also deploys this procedure to sanction heads of government or state.
This is a significant point because it undermines the traditional distinctions
between presidential and parliamentary systems.
A. Fixed Terms in Parliamentary Systems
Parliamentary systems are not confined to open-ended terms
during which parliamentarians are uncertain about when they will
have to stand a future election. Quite the contrary, parliamentarism
is a much more flexible regime than conventional thought would have
us believe. I will introduce and illustrate some of the innovative parliamentary
designs that have married parliamentarism with fixed
electoral terms and show that parliamentary states have borrowed
an additional presidential device: impeachment. But let us first consider
how parliamentary theory can tolerate these presidential
imports.
1. Parliamentary Practice
The keystone of parliamentarism is responsible government.
This means that the government, which consists of the prime minister
and members of the executive Cabinet, is responsible to the
elected House of Commons and must consequently retain its confidence.138
Responsible government authorizes the Parliament to
dismiss the government of the day.139 In practice, this rule subjects
the government to periodic votes of approval in the House of Commons.140
The theory of responsible government therefore demands
that the Parliament possess the power to express its lack of confidence
in the government.
When a government fails to retain the confidence of the House of
Commons on a parliamentary vote, one of two things must follow:
either (1) the Cabinet member whose ministry has lost the confidence
of the House of Commons must resign, or (2) the government must
request the dissolution of the House of Commons and call for new
elections.141 The mechanism through which the Parliament may
138. SIR WILLIAM IVOR JENNINGS, CABINET GOVERNMENT 13-17 (3d ed. 1959).
139. COLIN TURPIN, BRITISH GOVERNMENT AND THE CONSTITUTION 447 (5th ed.
2002) (citing DOROTHY PICKLES, DEMOCRACY 148 (1970)).
140. Id.
141. Jason L. Pierce, A Sketch of Australian Constitutional History, 10 GREEN BAG
2D 327, 338 (2007); L. Kinvin Wroth, Notes for a Comparative Study of the Origins of
Federalism in the United States and Canada, 15 ARIZ. J. INT’L & COMP. L. 93, 113
(1998); Susanna Frederick Fischer, Rethinking Sullivan: New Approaches in Australia,
New Zealand, and England, 34 GEO. WASH. INT’L L. REV. 101, 128 (2002); James
A. Thomson, American and Australian Constitutions: Continuing Adventures in Comparative
Constitutional Law, 30 J. MARSHALL L. REV. 627, 656-57 (1997).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 551
withdraw its confidence from the government is called a vote of no
confidence.142
Notwithstanding the discretionary decision of the parliamentary
head of government to request the dissolution of the Parliament,143 a
vote of no confidence is usually thought to be the only mechanism by
which to trigger an election in parliamentary systems before the end
of the regular legislative term.144 Such a vote demonstrates that the
head of government no longer commands a majority in the legislature.145
This forces new elections that reconstitute both the executive
and the legislature.146 Absent a no confidence vote, by convention the
head of parliamentary government (for instance in the United Kingdom)
has five years from the date of election, at a time of his
choosing, to request that the head of state issue writs of election.147
This gives parliamentarism its distinguishing characteristic of flexibility
that fixed-term presidential regimes do not enjoy.148
Given the apparent stringency of the constitutive rules of responsible
government, one can understand why some scholars believe that
fixed terms and parliamentarism are irreconcilable. But fixed terms
and parliamentarism are in fact compatible. Parliamentary systems
can fold, and have folded, within themselves fixed electoral terms
that operate just as they do in presidential systems while also respecting
the principle of responsible government and preserving the
distinctive flexibility of their electoral calendar.
Parliamentary systems may successfully straddle this boundary
simply by adopting a law that mandates a fixed electoral term for
parliamentarians but that still leaves in the hands of the lower house
the power to withhold its confidence from the government of the day.
For instance, a parliamentary democracy could pass a law requiring
the government to hold elections every four years while making this
142. John D. Huber & Nolan McCarty, Cabinet Decision Rules and Political Uncertainty
in Parliamentary Bargaining, 95 AM. POL. SCI. REV. 345, 346 (2001). There also
exists such a thing as a vote of confidence in parliamentary systems. See Andrew
Heard, Just What is a Vote of Confidence? The Curious Case of May 10, 2005, 20
CANADIAN J. OF POL. SCI. 395 (2007).
143. RICHARD ROSE, PRESIDENTS AND PRIME MINISTERS 8 (Richard Rose & Ezra A.
Suleiman eds., 1980).
144. See, e.g., Kenneth Anderson, Review Essay, Goodbye to All That? A Requiem
for Neoconservatism, 22 AM. U. INT’L L. REV. 277, 311 (2007).
145. Sanford Levinson, Bush v. Gore and the French Revolution: A Tentative List of
Some Early Lessons, 65 LAW & CONTEMP. PROBS. 7, 37 (2002).
146. Cindy Skach, The “Newest” Separation of Powers: Semipresidentialism, 5
INT’L J. CONST. L. 93, 95-96 (2007). It is a daunting proposition for a legislator to
withhold confidence from the government because a successful non-confidence vote
typically triggers a new election, which puts into peril the prime objective: to retain
membership in the legislature. Ann Seidman & Robert B. Seidman, Beyond Contested
Elections: The Processes of Bill Creation and the Fulfillment of Democracy’s Promises
to the Third World, 34 HARV. J. ON LEGIS. 1, 21 (1997).
147. ROBERT BLACKBURN, THE ELECTORAL SYSTEM IN BRITAIN 18 (1995).
148. Juan J. Linz, Democracy’s Time Constraints, 19 INT’L POL. SCI. REV. 19, 23-24
(1998).
552 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
fixed term contingent upon the government retaining the confidence
of the House of Commons by not succumbing to a vote of no confidence
during that four-year term.
In the event that a government loses a vote of confidence in the
House of Commons before the expiration of the four-year term, the
prime minister would be expected to request the dissolution of Parliament
in order to face the electorate at the polls. As a consequence of
departing from the fixed electoral calendar, the forced election would
reset the calendar such that future elections would be rescheduled
according to a new four-year cycle traced back to the date of the election
that had been held as a result of the vote of no confidence. This is
precisely what some parliamentary systems have chosen to do.
2. Parliamentary Innovation
For instance, Romania adheres to fixed four-year terms but also
contemplates the possibility of a forced election during the pendency
of that term as a result of a vote of no confidence.149 Sweden holds
parliamentary elections for its national assembly every four years yet
also provides for extraordinary elections in the event of a no confidence
vote.150 Finland151 and the Republic of Estonia152 both follow
the Swedish model in this regard. In Spain, elections are constitutionally
required to be held every four years, similarly subject to an
intervening vote of no confidence.153 But Spain adds a twist to its
parliamentary rules by requiring that at least one year must pass
before a subsequent election may be held.154 Those are only five examples
of parliamentary systems that have adopted fixed electoral
terms. Two other instructive examples are Germany and Canada.
The head of the German government, the Chancellor, must be
selected by a majority of the Bundestag.155 German members of the
Bundestag—the lower house of Parliament—serve fixed four-year
149. Constitution of Romania, art. 63(1); Constitution of Romania, art. 110(2).
150. Constitution of Sweden, Ch. 3, art. 3; Constitution of Sweden, Ch. 3, art. 4;
Constitution of Sweden, Ch. 6, art. 5.
151. Constitution of Sweden, Ch. 3, § 24(1); Constitution of Sweden, Ch. 5, § 64(2);
Constitution of Sweden, Ch. 3, § 26(1).
152. Constitution of the Republic of Estonia, Ch. IV, § 60; Constitution of the Republic
of Estonia, Ch. VI, § 97. Significantly, the Republic of Estonia requires at least
a three-month period between votes of no confidence on the same subject matter. See
Constitution of the Republic of Estonia, Ch. VI, § 97. Estonia also contemplates the
possibility of a forced election in two specific circumstances: (1) where a proposed referendum
fails, and (2) where the government fails to secure parliamentary approval
of its budget within a specified period. See Constitution of the Republic of Estonia, Ch.
VII, § 105; Constitution of the Republic of Estonia, Ch. VIII, § 119.
153. Constitution of Spain, Part III, Ch. 1, § 68(4); Constitution of Spain, Part IV,
§ 101(1); Constitution of Spain, Part V, § 115(1).
154. Constitution of Spain, Pt. IV, § 115(3).
155. Constitution of Germany, Pt. VI, art. 63(2).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 553
terms.156 This electoral schedule is subject to disruption by a special
measure called a constructive vote of no confidence, which requires
the Bundestag to identify and express its support by a majority vote
for a specific person to replace the Chancellor.157 If the constructive
vote of no confidence fails to achieve the support of a majority, the
enfeebled Chancellor may request the dissolution of the Bundestag,
and along with it a new round of elections prior to the end of the fouryear
term.158
As Kommers explains, accelerated elections in Germany are possible
only if a number of discrete events unfold in a particular
sequence: (1) the Chancellor must request, in a motion of confidence,
that the Bundestag express its confidence in his leadership; (2) a majority
of the Bundestag must vote against the Chancellor; (3) the
defeated Chancellor must then request the dissolution of the
Bundestag; and (4) new elections must be held within sixty days.159
This German innovation has been adopted in other jurisdictions,160
including Hungary,161 Lithuania,162 and Poland.163 The constructive
vote of no confidence stands in contrast to what Lindseth describes as
the destructive vote of no confidence that is typical of most parliamentary
systems.164
Another interesting example of a parliamentary system that has
adopted fixed electoral terms is Canada. In May 2007, Canada joined
other modern parliamentary states that abide by pre-determined
election dates. In a series of amendments to the Canada Elections
Act, the Parliament passed a law establishing a four-year term for
the House of Commons.165 The new law nonetheless preserves the
156. Constitution of Germany, Pt. III, art. 39(1); Donald P. Kommers, The Basic
Law: A Fifty Year Assessment, 53 SMU L. REV. 477, 480 (2000).
157. Constitution of Germany, Pt. VI, art. 67(1).
158. Constitution of Germany, Pt. VI, art. 68(1).
159. Donald P. Kommers, The Federal Constitutional Court: Guardian of German
Democracy, 603 ANNALS 111, 113 (2006).
160. Inga Markovits, Exporting Law Reform—But Will it Travel?, 37 CORNELL
INT’L L.J. 95, 98 (2004); Jon Elster, Constitutionalism in Eastern Europe: An Introduction,
58 U. CHI. L. REV. 447, 462-63 (1991).
161. Jon Elster, Essay, Forces and Mechanisms in the Constitution-Making Process,
45 DUKE L.J. 364, 380 (1995).
162. Kathryn A. Perales, It Works Fine in Europe, So Why Not Here? Comparative
Law and Constitutional Federalism, 23 VT. L. REV. 885, 887 (1999).
163. Eli M. Salzberger & Stefan Voigt, Economic Analysis of Constitutional Law:
On Constitutional Processes and the Delegation of Power, with Special Emphasis on
Israel and Central and Eastern Europe, 3 THEORETICAL INQ. L. 207, 224 (2002);
Hanna Suchocka, Checks and Balances Under the New Constitution of Poland, ST.
LOUIS-WARSAW TRANS’L L.J. 45, 58-59 (1998).
164. Peter L. Lindseth, The Paradox of Parliamentary Supremacy: Delegation, Democracy,
and Dictatorship in Germany and France, 1920s-1950s, 113 YALE L.J. 1341,
1390-91 (2004).
165. An Act to Amend the Canada Elections Act, S.C. 2007, c. 10, § 56.1(2).
554 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
power of the prime minister to request dissolution of the Parliament
prior to the expiration of this four-year period.166
This new law provoked intense reaction in Canada when the government
of the day proposed it.167 Some of the concern was perhaps
driven by the constitutional requirement in the founding Canadian
charter that elections be held within five years of the previous election,
consistent with British parliamentary tradition.168 Nonetheless,
as Canada and other parliamentary democracies have demonstrated,
parliamentarism may fully respect the principle of responsible government
while concurrently following a schedule of fixed election
dates.
In addition to the Canadian federal government, the Canadian
province of British Columbia—also a parliamentary system—has
adopted a fixed election cycle.169 The provinces of Ontario170 and
Newfoundland and Labrador171 now operate under a fixed electoral
calendar. Note also that the Canadian province of Quebec once proposed
a number of constitutional reforms, including fixed election
dates, that would have seen Quebec nonetheless retain its parliamentary
model of government.172
This parliamentary electoral approach appears to have gathered
supporters across the community of parliamentary states. For example,
the recently elected Australian prime minister has expressed his
support for a four-year electoral calendar,173 and fixed terms are becoming
increasingly appealing to political actors and observers in the
United Kingdom as well.174 These examples point to the limitations
166. Id. at § 56.1(1).
167. See, e.g., Editorial, Fixed Election Dates Make a Lot of Sense, GLOBE AND MAIL
(Toronto, Canada), May 31, 2006, at A18 (supporting the move to fixed terms); Murray
Martin, Letter to the Editor, Don’t Put the Fix In, GLOBE AND MAIL (Toronto,
Canada), May 31, 2006, at A18 (arguing that fixed terms do not address concerns with
the Canadian regime); Jeffrey Simpson, Mr. Harper is Right: Let’s Go for Fixed Terms,
GLOBE AND MAIL (Toronto, Canada), May 20, 2006, at A17 (favoring fixed terms); Reginald
Stackhouse, To Make a Minority Govern, GLOBE AND MAIL (Toronto, Canada),
May 19, 2005, at A19 (arguing in favor of fixed terms).
168. Constitution of Canada (Constitution Act, 1867), § 50; Constitution of Canada
(Constitution Act, 1982), § 4(1).
169. Constitution (Fixed Election Dates) Amendment Act, 2001, S.B.C. 2001, c. 36.
170. Election Act, R.S.O. 1990, c. E.6, § 9(2).
171. House of Assembly Act, R.S.N.L. 1990, c. H-10, Pt. I, § 3.
172. Guy Tremblay, La r´eforme des institutions d´emocratiques au Qu´ebec: commentaires
en marge du rapport du Comit´e directeur, 44 CAHIERS DE DROIT 207, 215-16
(2003).
173. Rudd Would Seek Four-Year Fixed Terms, LIVE NEWS (Australia), Nov. 20,
2007, available at http://www.livenews.com.au/Articles/2007/11/20/Rudd_would_seek
_fouryear_fixed_terms (last visited Aug. 1, 2008).
174. See, e.g., Louise Gray, “Young Turks” in the Frame Over Labour’s Election
Fiasco, SCOTSMAN (Edinburgh, Scotland), Oct. 8, 2007, available at 2007 WLNR
19691718; Call for Fixed Terms, DAILY MAIL (UK), Oct. 8, 2007, available at 2007
WLNR 19725058; Bid to Stop PM From Deciding on Voting Day, ABERDEEN PRESS &
J. (UK), Oct. 8, 2007, available at 2007 WLNR 19736418; Harry Reid, Stop this Nonsense
and Fix the Term of a Parliament, HERALD (Glasgow, Scotland), Sept. 27, 2007,
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 555
of the conventional narrative that fixed terms are incompatible with
parliamentary systems.
3. Parliamentary Impeachment
Beyond fixed terms, parliamentary systems have imported another
device from presidential systems: impeachment. This defies the
usual definition of parliamentarism because parliamentary systems
are thought to rely only on a vote of no confidence to replace or sanction
the head of government. According to this traditional view,
parliamentarism has no use for an impeachment process. Parliament
may simply withhold its confidence from the head of government and,
as a result, end the mandate and trigger new elections.175
But this logic neglects the important qualitative distinction between
a vote of no confidence and an impeachment. Consider that, on
a vote of no confidence, the head of government will normally petition
for the dissolution of the Parliament, which will trigger new elections.
If the defeated head of government retains the support of his
political party—despite having lost the confidence of the legislature—he
may continue lead his party into the new election. The
defeated head of government may therefore conceivably be thrust
once again back into his the previous role as head of government if
that is the will of the electorate. Here is where we see the distinction
between a vote of no confidence and an impeachment. The former allows
the defeated head of government to remain active in politics.
The latter typically prohibits the impeached politician from holding
or running for public office, and it may be a prelude to civil or criminal
penalties in a competent court of law.176
Some modern parliamentary systems have seized upon this critical
distinction to provide for impeachment proceedings for the head of
government as a supplement to the vote of no confidence. For instance,
Thailand has adopted the German model of a constructive
vote of no confidence in the prime minister.177 In addition, the Thai
Constitution authorizes the Senate to remove the prime minister for
various kinds of improprieties.178 As a result of his removal, the
prime minister not only becomes disqualified from holding office for a
period of five years but moreover remains subject to any pending or
available at 2007 WLNR 18945929; see also Fixed-Term Parliament Bill (proposed in
Session 2000-20001), available at http://www.parliament.the-stationery-office.co.uk/
pa/cm200001/cmbills/054/2001054.htm (last visited Aug. 1, 2008).
175. See, e.g., Laurence H. Tribe, Defining “High Crimes and Misdemeanors”: Basic
Principles, 67 GEO. WASH. L. REV. 712, 713 (1999).
176. See, e.g., Constitution of the Philippines, art. XI, § 3(7); Constitution of the
Republic of Korea, Ch. III, art. 65(4); Constitution of Paraguay, Ch. I, § VI, art.
225(2).
177. Constitution of Thailand, Ch. VI, Pt. 5, § 185.
178. Constitution of Thailand, Ch. X, Pt. 3, § 303.
556 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
future judicial action.179 Likewise, the Constitution of Lebanon allows
the legislature to issue a vote of no confidence against the prime
minister.180 But the legislature is also authorized to impeach the
prime minister.181 If the legislature gathers the requisite
supermajority to impeach, the prime minister must leave office and
may subsequently face civil or criminal charges.182
Therefore parliamentary impeachment is indeed possible, both
as a matter of theory and practice. Indeed, impeachment is not a new
discovery for parliamentarism: impeachment originated in England.183
The Westminster House of Commons used the
impeachment power—beginning as early as the fourteenth century184—until
it secured the power to remove a sitting prime
minister via a vote of no confidence,185 the centerpiece of the principle
of responsible government.186 English practice conceived of
impeachment as both a political and criminal process.187 Parliament
deployed it against ministers of the Crown,188 for instance in cases of
misuse of public funds.189 Impeachment was also used against individuals
whose office complicated the task of prosecuting them in the
judicial domain, for instance judges or Crown officials.190 Impeachment
therefore often entailed both removal from office and a criminal
179. Constitution of Thailand, Ch. X, Pt. 3, § 307.
180. Constitution of Lebanon, Ch. III, § 3, art. 68; Constitution of Lebanon, Ch. III,
§ 3, art. 69(1)(f); Constitution of Lebanon, Ch. II, art. 37.
181. Constitution of Lebanon, Ch. III, § 3, art. 70(1).
182. Constitution of Lebanon, Ch. III, § 3, art. 72.
183. W. Hamilton Bryson, Judicial Independence in Virginia, 38 U. RICH. L. REV.
705, 713 (2004).
184. Craig S. Lerner, Review, Impeachment, Attainder, and a True Constitutional
Crisis: Lessons from the Strafford Trial, 69 U. CHI. L. REV. 2057, 2070 (2002).
185. Richard K. Neumann, Jr., The Revival of Impeachment as a Partisan Political
Weapon, 34 HASTINGS CONST. L.Q. 161, 222 (2007); Brian C. Kalt, The Constitutional
Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History,
and Practice of Late Impeachment, 6 TEX. REV. L. & POL. 13, 23-24 (2001); Cass
R. Sunstein, Impeaching the President, 147 U. PA. L. REV. 279, 291 (1998).
186. Julie R. O’Sullivan, The Interaction Between Impeachment and the Independent
Counsel Statute, 86 GEO. L.J. 2193, 2198-99 (1998).
187. Gary L. McDowell, “High Crimes and Misdemeanors”: Recovering the Intentions
of the Founders, 67 GEO. WASH. L. REV. 626, 635 (1999); Michael J. Gerhardt,
The Lessons of Impeachment History, 67 GEO. WASH. L. REV. 603, 605 (1999); Mark R.
Slusar, Comment, The Confusion Defined: Questions and Problems in the Aftermath
of the Clinton Impeachment, 49 CASE W. RES. 869, 875 (1999).
188. Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543,
1563-64 (2002); Jack N. Rakove, Statement on the Background and History of Impeachment,
67 GEO. WASH. L. REV. 682, 684 (1999); Michael J. Gerhardt, Chancellor
Kent and the Search for the Elements of Impeachable Offenses, 74 CHI.-KENT. L. REV.
91, 110 (1998).
189. Kath Stith, Congress’ Power of the Purse, 97 YALE L.J. 1343, 1353-54 n.48
(1988).
190. Michael J. Broyde & Robert A. Schapiro, Impeachment and Accountability:
The Case of the First Lady, 15 CONST. COMMENTARY 479, 485 (1998).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 557
punishment.191 This remains the case today in some modern parliamentary
systems—contrary to the conventional account of
parliamentarism.
B. Forced Elections in Presidential Systems
Just as some parliamentary systems depart from the conventional
account about how they structure their electoral processes,
some forms of presidentialism also defy customary assumptions. Contrary
to the received wisdom, presidentialism does not always adhere
to a fixed electoral cycle. For instance, some presidential systems authorize
the President to dissolve the legislature before the expiration
of the fixed term of constitutionally specified years. Likewise, presidentialism
has devised an interesting way to reproduce the
consequence of a vote of no confidence: the popular recall election. I
will review both of these presidential innovations and thereby illustrate
the great variety of constitutional possibilities, beginning with
the presidential power to dissolve the legislature—a power that is
normally reserved for parliamentary heads of government.
1. The Dissolution of the Legislature
Presidential systems sometimes confer upon the President the
power to dissolve the legislature and consequently force elections
ahead of schedule. This creates a much more fluid electoral process
that diverges from the perceived rigidity of presidentialism and instead
resembles the more volatile parliamentary practice of variable
elections. For instance, the Peruvian Constitution authorizes the
President to dissolve the legislature,192 as do the Constitutions of the
Slovak Republic,193 Kazakhstan194 and, among others, Mongolia.195
The presidential power to dissolve the legislature is perhaps
most common in semi-presidential systems. These systems began
with the French Constitution of 1958.196 Semi-presidential models
191. Eric M. Freedman, On Protecting Accountability, 27 HOFSTRA L. REV. 677, 700
(1999).
192. Constitution of the Republic of Peru, § IV, Ch. VI, art. 131; Maria McFarland
Sanchez-Moreno, Note, When a “Constitution” is a Constitution: Focus on Peru, 33
N.Y.U. J. INT’L L. & POL. 561, 614-15 (2001).
193. Constitution of the Slovak Republic, Title Six, § 1, art. 102(e); Eric Stein, Out
of the Ashes of Federation, Two New Constitutions, 45 AM. J. COMP. L. 45, 51 (1997).
194. Constitution of the Republic of Kazakhstan, § IV, art. 63; Yyliya Mitrofanskaya
& Daulet Bideldinov, Modernizing Environmental Protection in Kazakhstan, 12
GEO. INT’L ENVTL. L. REV. 177, 190 (1999).
195. Constitution of Mongolia, Ch. Three, Pt. I, art. 22; see also Tom Ginsburg &
Gombosuren Ganzorig, When Courts and Politics Collide: Mongolia’s Constitutional
Crisis, 14 COLUM. J. ASIAN L. 309 (2001) (describing the Mongolian Constitution and
recent amendment efforts).
196. Luis Lopez Guerra, The Application of the Spanish Model in the Constitutional
Transitions in Central and Eastern Europe, 19 CARDOZO L. REV. 1937, 1946
(1998).
558 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
usually have a President who is directly elected and a prime minister
whose political survival depends on keeping the confidence of the legislature.197
Presidents are typically endowed with foreign affairs and
defense responsibilities,198 whereas prime ministers operate the government.
As a result of the co-existence of both a President and a
prime minister in the executive branch, semi-presidentialism is often
referred to as a dual executive model.199 This cohabitation may potentially
lead to ambiguity in the division of executive authority as well
as to conflict in the performance of executive duties.200 Indeed, this
tension is magnified when the party of the President does not hold a
majority in the legislature, and the prime minister therefore represents
an opposing party.201 In light of this potential constitutional
tension, the semi-presidentialist President is often given tie-breaking
powers—such as the authority to dissolve Parliament—that allow
him to break the deadlock associated with divided government.202
Consider first the French model. The President, who is elected to
a five-year term,203 may dissolve the legislature after consultations
with the parliamentary officials, including the prime minister.204
Elections must then be held within forty days.205 Following this election,
the President may not dissolve the legislature for a period of at
least one year.206
Consider also the Russian model. Like the French President, the
Russian President may dissolve the legislature, the Duma.207 There
197. Lee Kendall Metcalf, Presidential Power in the Russian Constitution, 6 J.
TRANSNAT’L L. & POL’Y 125, 125 (1996).
198. Samuel H. Barnes, The Contribution of Democracy to Rebuilding Postconflict
Societies, 95 A.J.I.L. 86, 95 (2001).
199. Jenny S. Martinez, Essay, Inherent Executive Power: A Comparative Perspective,
115 YALE L.J. 2480, 2509 (2006); Tay-sheng Wang, The Legal Development of
Taiwan in the 20th Century: Toward a Liberal and Democratic Country, 11 PAC. RIM
L. POL’Y 531, 542 (2002); Ian Richard Brown, Note, Clinging to Democracy: Assessing
the Russian Legislative-Executive Relationship Under Boris Yeltsin’s Constitution, 33
VAND. J. TRANSNAT’L L. 645, 661 (2000); Jack van Doren & Thomas Magstadt, Essay,
Czech Constitutional Democracy: Focus on the Czech Dual Executive Power and the
Future Senate, 20 FORDHAM INT’L L.J. 347, 351 (1996); Peter Kresak, The Government
Structure in the New Slovak Republic, 4 TULSA J. COMP. & INT’L L. 1, 8 n.29 (1996).
200. Bernard Susser, Essay, Toward a Constitution for Israel, 37 ST. LOUIS L.J.
939, 942 (1993).
201. Eugene D. Mazo, Constitutional Roulette: The Russian Parliament’s Battles
with the President Over Appointing a Prime Minister, 41 STAN. J. INT’L L. 123, 135-36
(2005); Carlo Dapelo, The Trends Towards Federalism in Italy, 15 ST. THOMAS L. REV.
345, 348 (2002).
202. Thomas Weishing Huang, The President Refuses to Cohabit: Semi-Presidentialism
in Taiwan, 15 PAC. RIM L. & POL’Y 375, 378-79 (2006); Lucio Pegoraro &
Angelo Rinella, Le gouvernement au Parlement selon le mod`ele semi-pr´esidentiel:
l’exp´erience fran¸caise et les propositions de la Commission parlementaire pour les
r´eformes constitutionnelles en Italie, 34 R.J.T. 275, 277 (2000).
203. Constitution of France, Title II, art. 6.
204. Constitution of France, Title II, art. 12.
205. Constitution of France, Title II, art. 12.
206. Constitution of France, Title II, art. 12.
207. Constitution of the Russian Federation, § 1, Ch. 4, art. 84(b).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 559
are two instances in which the President may do so. First, if the
Duma rejects three successive presidential nominees to serve as head
of government, the President must dissolve the Duma and call new
elections.208 Second, if the government succumbs to two votes of no
confidence within a period of three months, the President may choose
either to accept the resignation of the government and to appoint a
new head of government or to dissolve the Duma.209 The Constitution
grants the President one week to choose between these two
options.210
Consider next Croatia. Its semi-presidential regime differs from
both the French and Russian models. There are two instances in
which the legislature may be dissolved. First, a majority of parliamentarians
may choose this course,211 opting to call an election in
advance of the expiration of the four-year parliamentary term.212
Second, the President may take the initiative to dissolve the legislature.213
But the President may do so only upon the recommendation
of the prime minister, and then only if the government has either
suffered a vote of no confidence or failed to pass its budget.214 New
elections must follow within sixty days of the dissolution of the
legislature.215
Finally, consider the Pakistani model. The Constitution requires
the President generally to act on the advice of the parliamentary government.216
Therefore the President must dissolve the legislature if
the prime minister advises him to do so.217 But the President also
holds the constitutionally delegated discretion to dissolve the legislature
before the end of its five-year term.218 At the dissolution of the
legislature, the President may at his discretion select the date for
new elections to be held within 90 days219 and must appoint a caretaker
government.220 The President may issue a dissolution order
either following a vote of no confidence against the prime minister or
if he believes dissolution is necessary.221 As between these two discretionary
reasons to dissolve the legislature under the Pakistani
Constitution, the former is not uncommon among semi-presidential
states. The latter is unusual and has prompted one scholar to high-
208. Constitution of the Russian Federation, § 1, Ch. 6, art. 111(4).
209. Constitution of the Russian Federation, § 1, Ch. 6, art. 117(3).
210. Constitution of the Russian Federation, § 1, Ch. 6, art. 117(4).
211. Constitution of the Republic of Croatia, Ch. IV, Pt. 1, art. 77(1).
212. Constitution of the Republic of Croatia, Ch. IV, Pt. 1, art. 72(1).
213. Constitution of the Republic of Croatia, Ch. IV, Pt. 1, art. 77(2).
214. Constitution of the Republic of Croatia, Ch.IV, Pt. 2, art. 103(1).
215. Constitution of the Republic of Croatia, Ch. IV, Pt. 1, art. 73.
216. Constitution of Pakistan, Pt. III, Ch. 1, art. 48(1).
217. Constitution of Pakistan, Pt. III, Ch. 2, art. 58(1).
218. Constitution of Pakistan, Pt. III, Ch. 2, art. 52.
219. Constitution of Pakistan, Pt. III, Ch. 1, art. 48(5)(a).
220. Constitution of Pakistan, Pt. III, Ch. 1, art. 48(5)(b).
221. Constitution of Pakistan, Pt. III, Ch. 2, art. 58(2).
560 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
light this discretionary authority as democratically problematic.222
Alongside the Pakistani model, the Constitutions of France, Russia
and Croatia lay bare the shortcomings of the assumption that presidential
systems are consigned to unyielding fixed electoral terms.
2. Popular Recall
American constitutional scholars have often argued in favor of
adopting an instrument like the vote of no confidence as an intermediate
position between the rigid fixed four-year presidential term and
the divisive use of the impeachment power.223 This instrument would
authorize Congress to voice its disapproval of the President by casting
a vote of no confidence—something that the American
presidentialist Constitution does not currently allow.224 For Reuss,
the vote of no confidence is a promising possibility because it exhibits
four important features: (1) speed, since it does not take long to invoke
and consummate; (2) breadth, allowing for a farther-reaching
assessment of presidential competence during his term of office than
the narrow impeachment standard of “high crimes and misdemeanors”;
(3) suprapoliticization, insofar as it can withstand efforts to be
commandeered in the interests of party politics; and (4) balance, because
it conforms to the American constitutional cornerstone of
checks and balances.225 Others have taken the contrary view, arguing
against transplanting the vote of no confidence into the American
presidential system.226
For enthusiasts of the vote of no confidence, the presidentialist
Constitution of the Slovak Republic may perhaps serve as a model for
incorporating the device into American presidentialism. The
Slovakian Constitution implements the vote of no confidence in an
interesting way: rather than importing the actual parliamentary vote
of no confidence into its semi-presidential regime, the Slovak Republic
subjects its President to the possibility of recall before the end of
222. See Osama Siddique, The Jurisprudence of Dissolutions: Presidential Power to
Dissolve Assemblies Under the Pakistani Constitution and its Discontents, 23 ARIZ. J.
INT’L & COMP. L. 615 (2006).
223. See, e.g., SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 114-21
(2006).
224. Paul W. Kahn, Approaches to the Cultural Study of Law: Freedom, Autonomy,
and the Cultural Study of Law, 13 YALE J.L. & HUMAN. 141, 153 (2001).
225. Henry S. Reuss, An Introduction to the Vote of No Confidence, 43 GEO. WASH.
L. REV. 333, 334 (1975).
226. See, e.g., Louis W. Koenig, Recipe for the Presidency’s Destruction, 43 GEO.
WASH. L. REV. 376, 377 (1975) (arguing that no confidence vote would weaken presidency);
John H. Reese, No Confidence Removal of the President: The Wrong Solution
to a Constitutional Problem, 43 GEO. WASH. L. REV. 416, 435 (1975) (advocating
amendments to Impeachment Clause instead of adopting no confidence vote); Allan P.
Sindler, Good Intentions, Bad Policy: A Vote of No Confidence on the Proposal to Empower
Congress to Vote No Confidence in the President, 43 GEO. WASH. L. REV. 437,
458 (1975) (suggesting that should strengthen Congress instead of weakening
presidency).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 561
the term.227 This popular referendum achieves the very same result
as a vote of no confidence: removal from office. But it does so in a
different forum (the voting body is the national electorate instead of
the legislature) and under a different name (calling it recall instead
of a no confidence vote). The Slovakian Constitution also provides for
a presidential impeachment procedure in addition to this presidential
recall mechanism.228
The same is true of Venezuela, where the President is subject to
recall by a popular vote229 after fulfilling at least half of the fixed
term of office.230 Yet recall is not the only tool available to sanction a
sitting Venezuelan President. He is also subject to the prospect of impeachment.231
The decision to impeach rests with the Supreme
Tribunal of Justice, to which the Venezuelan Constitution assigns the
task of determining whether there exist sufficiently compelling
grounds.232
The presidential popular recall accomplishes a result equivalent
to a parliamentary vote of no confidence: if successful, it removes the
head of government from his leadership position. Like the vote of no
confidence, the popular recall is a means by which the head of government
may be temporarily displaced or permanently replaced in midstream,
before the end of his electoral term. Though a vote of no confidence
and presidential impeachment are similar on these grounds,
they are distinguishable insofar as the former is generally invoked
for political motives, while the latter is summoned in response to alleged
criminal, legal or constitutional mischief.
Therefore, presidential systems also undermine the claim that
votes of no confidence are incompatible with presidentialism. Parliamentary
systems have successfully integrated impeachment with the
enduring principle of responsible government and presidential systems
have accomplished the converse: complementing their
presidential impeachment procedures with a process that is analogous
to a parliamentary vote of no confidence.
227. Constitution of the Slovak Republic, Title Six, § 1, art. 106(1); Constitution of
the Slovak Republic, Title Six, § 1, art. 106(2).
228. Constitution of the Slovak Republic, Title Six, § 1, art. 107.
229. Constitution of the Bolivarian Republic of Venezuela, Title V, Ch. II, § 1, art.
233.
230. Constitution of the Bolivarian Republic of Venezuela, Title III, Ch. IV, § 2,
art. 72; Constitution of the Bolivarian Republic of Venezuela, Title V, Ch. II, § 1, art.
228.
231. Constitution of the Bolivarian Republic of Venezuela, Title V, Ch. II, § 1, art.
233.
232. Constitution of the Bolivarian Republic of Venezuela, Title V, Ch. II, § 2, art.
266.
562 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
IV. LEGISLATIVE EFFICIENCY
Efficiency in government administration is an indication of the
ability of the head of government to successfully and swiftly shepherd
his policy agenda through the legislative process.233 On this premise,
one can conceive of the degree of efficiency of a government administration
as directly proportional to and reflective of the level of
strategic coordination or convergence on priorities between the executive
and legislative branches.234
The conventional view holds that presidentialism is less efficient
than parliamentarism. This argument presupposes that the norm in
presidentialism is divided government,235 an arrangement in which
different political parties control the executive and legislative
branches. Under divided government, it is more difficult for presidential
than parliamentary systems to implement the legislative
program of the head of government because presidentialism has more
veto gates and players positioned along the legislative process.236
Presidential systems are therefore said to be inefficient,237 and to
sacrifice efficiency in the pursuit of other democratic objectives.238
One of those democratic objectives is to make it exceedingly difficult
233. Lloyd N. Culter, Address, Party Government Under the American Constitution,
134 U. PA. L. REV. 25, 32 (1985).
234. See John C. Reitz, Political Economy as a Major Architectural Principle of
Public Law, 75 TUL. L. REV. 1121, 1145 (2001). Efficiency may also refer to competence.
But the separation of powers serves the interest of efficiency as competence only
if governmental powers are assigned to the branch of government most capable of
effectively discharging them. See, e.g., JEROME A. BARRON ET AL., CONSTITUTIONAL
LAW: PRINCIPLES AND POLICY 289-90 (2006); DAAN BRAVEMAN ET AL., CONSTITUTIONAL
LAW: STRUCTURE AND RIGHTS IN OUR FEDERAL SYSTEM 74-75 (5th ed. 2005); JOHN H.
GARVEY & T. ALEXANDER ALEINIKOFF, MODERN CONSTITUTIONAL THEORY 335 (1999);
Richard A. Posner, The Constitution as an Economic Document, 56 GEO. WASH. L.
REV. 4, 12 (1987).
235. See, e.g., SIDNEY M. MILKIS, THE PRESIDENT AND THE PARTIES 294 (1993);
DEAN MCSWEENEY & JOHN ZVESPER, AMERICAN POLITICAL PARTIES 68-69 (1991);
Michael J. Malbin, Political Parties Across the Separation of Powers, in AMERICAN
POLITICAL PARTIES AND CONSTITUTIONAL POLITICS 75, 84-85 (Peter W. Schramm &
Bradford P. Wilson eds., 1993); James L. Sundquist, Party Decay and the Capacity to
Govern, in The Future of American Political Parties: The Challenge of Governance 42,
52-54 (Joel. L. Fleishman ed., 1982).
236. KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 244 (16th
ed. 2007); Martin H. Redish & Elizabeth J. Cisar, “If Angels Were to Govern”: The
Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L.J. 449,
465-67 (1991).
237. See, e.g., CHARLES A. SHANOR, AMERICAN CONSTITUTIONAL LAW: STRUCTURE
AND RECONSTRUCTION 113 (2006); LOUIS FISHER, AMERICAN CONSTITUTIONAL LAW 161
(6th ed. 2005); THEODORE J. LOWI & JOSEPH ROMANCE, A REPUBLIC OF PARTIES?: DEBATING
THE TWO-PARTY SYSTEM 43 (1998); JAMES P. PFIFFNER, THE MODERN
PRESIDENCY 166-71 (1994); Thomas E. Mann, President Clinton and the Democratic
Congress: Promise and Performance, in Back to Gridlock? Governance in the Clinton
Years 9, 13 (James L. Sundquist ed., 1995).
238. See, e.g., DANIEL A. FARBER ET AL., CONSTITUTIONAL LAW: THEMES FOR THE
CONSTITUTION’S THIRD CENTURY 1054 (3d ed. 2003); JESSICA KORN, THE POWER OF
SEPARATION 14 (1996); Frederick R. Anderson, Revisiting the Constitutional Status of
the Administrative Agencies, 36 AM. U.L. REV. 277, 293 (1987).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 563
for policy proposals to become law without first achieving broad support
from political branches.239 Two others are fostering a
deliberative process that produces better and more thoughtful public
policy,240 and preventing the arbitrary exercise of government
power.241
Presidentialism, according to this view, creates conflict among
the branches of government.242 It is therefore thought to be more vulnerable
to stalemate than parliamentarism,243 and less conducive to
speedy and decisive action.244 This helps explain why some have advocated
a parliamentary system for the United States in order to
avoid the inefficiencies of separated powers.245 Such a reform would
confer upon the American President the legislative powers of a prime
minister to control the legislative process as well as the executive
power to control party members.246
In contrast, the absence of gridlock in parliamentary policymaking
is believed to be a virtue247 and a reason to favor
parliamentarism over presidentialism.248 Parliamentary efficiency
derives from several sources, including the strictures of party discipline,
the fusion of executive and legislative offices,249 and the
executive control of the legislative process.250 The executive therefore
239. F. Scott Boyd, Legislative Checks on Rulemaking: Under Florida’s New APA,
24 FLA. ST. U.L. REV. 309, 316 (1997).
240. See Arthur M. Schlesinger, Jr., The Constitution and Presidential Leadership,
47 MD. L. REV. 54, 61-62 (1987).
241. See, e.g., Meyers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J.,
dissenting).
242. Jeffrey K. Tulis, Constitutional Abdication: The Senate, the President, and Appointments
to the Supreme Court, 47 CASE W. RES. 1331, 1334 (1997); Louis Fisher,
The Allocation of Powers: The Framers’ Intent, in SEPARATION OF POWERS IN THE
AMERICAN POLITICAL SYSTEM 19, 19 (Barbara B. Knight ed., 1989).
243. See, e.g., Yen-Tu Su, Beyond Nightmare and Hope: Engineering Electoral Proportionality
in Presidential Democracies, 30 J. LEGIS. 205, 231 (2004); Keith E.
Whittington, Yet Another Constitutional Crisis, 43 WM & MARY L. REV. 2093, 2103-04
(2002).
244. See David Golove, Comment, Exception and Emergency Powers, 21 CARDOZO
L. REV. 1895, 1897 (2000).
245. See, e.g., JAMES L. SUNDQUIST, CONSTITUTIONAL REFORM AND EFFECTIVE GOVERNMENT
14 (1986).
246. See Peter M. Shane, Presidents, Pardons, and Prosecutors: Legal Accountability
and the Separation of Powers, 11 YALE L. & POL’Y REV. 361, 361 (1993).
247. See Tom Farer, Consolidating Democracy in Latin America: Law, Legal Institutions
and Constitutional Structure, 10 AM. U. J. INT’L L. & POL’Y 1295, 1326 (1995).
248. See James J. Brudney, The National Labor Relations Board in Comparative
Context, 26 COMP. LAB. L. & POL’Y J. 221, 253-54 (2005).
249. See Matthew S. R. Palmer, Using Constitutional Realism to Identify the Complete
Constitution: Lessons from an Unwritten Constitution, 54 AM. J. COMP. L. 587,
602 (2006).
250. Ruth Sullivan, The Challenges of Interpreting Multilingual, Multijural Legislation,
29 BROOKLYN J. INT’L L. 985, 995 (2004).
564 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
enjoys a “de facto monopoly” in introducing legislation, which contributes
to the efficiency in achieving its passage.251
In light of its fusion of the executive and legislative branches,
parliamentarism is thought to provide integrated controls against political
division252 by creating the conditions for cooperative
governance precisely because the executive and legislative branches
are not separated and each depends upon the other for its political
survival.253 Legislators in parliamentary systems are therefore
thought to have an incentive to support the agenda of the governing
party.254 Parliamentary systems also possess an efficient mechanism
to break a legislative stalemate: the vote of no confidence.255 Parliamentary
theorists tend to view separated powers as obstructive to
governmental efficiency.256
A. Inefficiency in Parliamentary Systems
But closer inspection reveals that the conventional wisdom offers
an inadequate account of how parliamentarism actually works.
Granted, it is accurate to claim that parliamentary systems are sometimes
archetypes of legislative efficiency. But to assert such a claim
without acknowledging how parliamentary legislative practice sometimes
departs from this convention is to neglect terribly important
variations in parliamentarism with respect to minority and coalition
governments. Both of these forms of government make parliamentarism
look like and operate in similar fashion to presidentialism. I will
explore coalition governments under proportional representation and
minority governments under first-past-the-post electoral systems.
Minority and coalition governments are inexorably linked to, and
are a function of, the electoral systems that give rise to them.257
First-past-the-post systems often lead to an incongruity between the
popular vote of parties and their respective seat totals in the legisla-
251. Elisabeth Zoller, The Treaty Establishing a Constitution for Europe and the
Democracy Legitimacy of the European Union, 12 IND. J. GLOBAL LEGAL STUD. 391,
401 (2005).
252. See Paul R. Verkuil, A Proposal to Resolve Interbranch Disputes on the Practice
Field, 40 CATH. U.L. REV. 839, 840 (1991).
253. See Mark Freeman, Constitutional Frameworks and Fragile Democracies:
Choosing Between Parliamentarianism, Presidentialism and Semi-Presidentialism,
12 PACE INT’L L. REV. 253, 257 (2000).
254. Noah Sachs, Planning the Funeral at the Birth: Extended Producer Responsibility
in the European Union and the United States, 30 HARV. ENVTL. L. REV. 51, 86-87
(2006).
255. John C. Reitz, Political Economy and Separation of Powers, 15 TRANSNAT’L L.
& CONTEMP. PROBS. 579, 609 (2006).
256. Bruce G. Peabody & John D. Nugent, Toward a Unifying Theory of the Separation
of Powers, 53 AM. U.L. REV. 1, 25 (2003).
257. MICHAEL LAVER & NORMAN SCHOFIELD, MULTIPARTY GOVERNMENT: THE POLITICS
OF COALITION IN EUROPE 204 (2d ed. 1998).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 565
ture.258 Consider that the winner in first-past-the-post elections need
not earn a majority of the votes cast in an electoral district because
victory is won with only a plurality.259 In contrast, proportional representation
endeavors to assign legislative seats among political
parties according to the percentage of the popular vote that each
party secures.260 Proportional representation is also subject to criticism.
Perhaps the most stinging is that it fragments legislatures and
may create deadlock in the legislative process.261 Proportional representation
multiplies political parties, encourages narrow rather than
broad based platforms, and typically leads to instability.262
1. Minority Government
Minority governments—an arrangement in which the party in
power does not command a majority of parliamentary seats but instead
holds only a plurality of those seats—may arise under firstpast-the-post
electoral systems. Minority governments resemble divided
governments in presidential systems, which arise when the
presidency and the legislature are controlled by different parties.263
Both are generally inefficient when it comes to passing the full and
undiluted legislative agenda of the governing party.264 Both disperse
power in a similar fashion and afford governing as well as opposition
parties the possibility of participating in shaping policy.265
Once formed, minority governments tend to be vulnerable to defeat
at the hands of the opposition parties.266 This leads to a
precarious situation of governance. In addition to rendering the gov-
258. See, e.g., MICHAEL D. MCDONALD & IAN BUDGE, ELECTIONS, PARTIES, DEMOCRACY:
CONFERRING THE MEDIAN MANDATE 9 (2005); Dominique Leydet, Pluralism and
the Crisis of Parliamentary Democracy, 10 CAN. J.L. & JURIS. 49, 55 (1997).
259. DOUGLAS J. AMY, REAL CHOICES/NEW VOICES: THE CASE FOR PROPORTIONAL
REPRESENTATION ELECTIONS IN THE UNITED STATES 1-9 (1993).
260. MARTIN HARROP & WILLIAM L. MILLER, ELECTION AND VOTERS: A COMPARATIVE
INTRODUCTION 46-47 (1987).
261. Sanford Levinson, “Imposed Constitutionalism”: Some Reflections, 37 CONN.
L. REV. 921, 929-30 (2005).
262. Susan Rose-Ackerman, Political Corruption and Democracy, 14 CONN. J. INT’L
L. 363, 375 (1999); Peter H. Schuck, The Thickest Thicket: Partisan Gerrymandering
and Judicial Regulation of Politics, 87 COLUM. L. REV. 1325, 1363 (1987).
263. See Robert Elgie, What is Divided Government?, in DIVIDED GOVERNMENT IN
COMPARATIVE PERSPECTIVE 1, 6 (Robert Elgie ed., 2001); James A. Thurber, Representation,
Accountability, and Efficiency in Divided Party Control of Government, 24 POL.
SCI. & POLITICS 653, 653 (1991).
264. See PAUL CHRISTOPHER MANUEL & ANNE MARIE CAMMISA, CHECKS AND BALANCES?
HOW A PARLIAMENTARY SYSTEM COULD CHANGE AMERICAN POLITICS 146-47
(1999).
265. G. BINGHAM POWELL, JR., ELECTIONS AS INSTRUMENTS OF DEMOCRACY:
MAJORITARIAN AND PROPORTIONAL VISIONS 120-21 (2000).
266. Erik Damgaard, Parliament and Government, in BEYOND WESTMINSTER AND
CONGRESS: THE NORDIC EXPERIENCE 265, 273 (Peter Esaiasson & Knut Heidar eds.
2000).
566 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
erning party susceptible to a vote of no confidence at any moment,267
a minority government constrains the schedule of the prime minister
to short-term commitments.268 A further consequence of minority
governments is that political parties must be in a continuous mode of
election readiness.269 This resulting uncertainty reaches even beyond
the legislature and into the government bureaucracy.270
We may draw an instructive illustration of minority governments
from Canadian parliamentarism. The 2004 federal elections
produced a minority government, the first since 1979. The governing
party earned thirty-seven percent of the popular vote, which translated
into 135 of the 308 seats in the legislature, while the secondplace
party earned ninety-nine seats with thirty percent of the popular
vote.271 That minority government lasted for only eighteen
months, a period marked by political instability, before being replaced
by another minority government.272
Other Canadian minority governments have been similarly unstable.
The minority government in 1972-74 operated in a mode of
constant crisis control, fearful that its unsteady support would collapse
and send Canadians back to the polls.273 The minority
governments of 1962-63 and 1979-80 were similarly shaky and unable
to govern effectively,274 the former even arousing the attention of
the New York Times and the Washington Post, both of which warned
267. See, e.g., Bruce Campion-Smith, Rivals Practise Before Election Kickoff, TORONTO
STAR (Canada), Nov. 28, 2005, at A1, available at 2005 WLNR 19119418; Les
Whittington, High-Wire Act Continues for Minority Government, TORONTO STAR (Canada),
June 13, 2005, at A6, available at 2005 WLNR 9340259; Tim Naumetz & Allan
Woods, Budget Bill Could Topple Government, WINNIPEG FREE PRESS (Canada), Apr.
1, 2005, at A16, available at 2005 WLNR 8348286.
268. See, e.g., Joe Friesen, Harper Plays Down Talk of Election, GLOBE AND MAIL
(Toronto, Canada), Oct. 6, 2007, at A4, available at 2007 WLNR 19597883.
269. See, e.g., Susan Delacourt & Bob Benzie, Harper’s Team Gears Up for Election,
TORONTO STAR (Canada), Sept. 25, 2007, at A1, available at 2007 WLNR
18765843; Jane Taber, Dion Team Scrambling to Find a Campaign Plane, Inside
Reveals, GLOBE AND MAIL (Toronto, Canada), Apr. 5, 2007, at A4, available at 2007
WLNR 6509144; Andrew Dreschel, Valeri is Out. What About Di Ianni?, HAMILTON
SPECTATOR (Canada), Jan. 31, 2007, at A15, available at 2007 WLNR 1825413; John
Slykhuis, “Stay on Your Toes” For Next Vote: MP Loan, GEORGINA ADVOCATE (Canada),
July 1, 2004, at 1, available at 2004 WLNR 6232928.
270. See, e.g., Allan Woods, Elections Agency Bends Under “Strain”; Agency Bears
Burden of Several By-Elections, Uncertainty Posed by Minority Governments, TORONTO
STAR (Toronto, Canada), Nov. 6, 2007, at A19, available at 2007 WLNR
21877948.
271. See Inter-Parliamentary Union, Canada, 38 CHRONICLE OF PARLIAMENTARY
ELECTIONS 37, 41 (2005).
272. See Inter-Parliamentary Union, Canada, 40 CHRONICLE OF PARLIAMENTARY
ELECTIONS 30, 32-33 (2007).
273. Lawrence LeDuc, Political Behaviour and the Issue of Majority Government in
Two Federal Elections, 10 CANADIAN J. OF POL. SCI. 311, 312 (1977).
274. Tom Kent, Making Minority Government Work: The Politics of Purpose, POLICY
OPTIONS, Sept. 2004, at 15.
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 567
of the economic risks associated with electing a minority government
in Canada.275
Nevertheless, minority governments in Canada have in some instances
been very dynamic and socially useful. For instance, the
Pearson minority governments of the 1960s are regarded as successful
by any reasonable measure.276 They passed the Canadian Pension
Plan and the Canada Student Loan program, modernized immigration
policy, created the Canadian-made national flag featuring the
maple leaf, renewed national bilingualism, and established national
health care—all amid the volatility of minority government politics.277
In this respect, perhaps Forsey was correct when he observed
that minority governments should be regarded neither as a problem
nor a threat but instead as an opportunity.278 This is likely true, but
only if the governing party is willing to compromise in the larger interest
of political stability.279
2. Coalition Government
Under proportional representation, elections are unlikely to result
in majority governments and instead typically yield minority280
or coalition governments.281 Coalition governments in parliamentary
275. Dennis H. Wrong, Canadian Politics in the Sixties, 78 POL. SCI. Q. 1, 4 (1963).
276. Desmond Morton, Remembering the Fun of Minority Government?, POLICY OPTIONS,
Sept. 2004, at 33.
277. John English, Pearson—Amiable But Ambitious, He Governed in Chaos and
Confusion, Yet Left a Legacy of Unequalled Achievement, POLICY OPTIONS, June-July
2003, at 63, 67-68.
278. Eugene Forsey, The Problem of “Minority” Government in Canada, 30 CANADIAN
J. OF ECON. & POL. SCI. 1, 11 (1964).
279. Barry Kay, Majority Parliament Nowhere in Sight, KITCHENER RECORD (Canada),
May 4, 2005, at A15, available at 2005 WLNR 6965964. Minority governments
have been relatively durable in Ireland. See Peter Mair, Ireland: From Predominance
to Moderate Pluralism, and Back Again, in UNDERSTANDING PARTY SYSTEM CHANGE IN
WESTERN EUROPE 129, 132-33 (Peter Mair & Gordon Smith eds., 1990).
280. VERNON BOGDANOR, WHAT IS PROPORTIONAL REPRESENTATION? 127-28 (1984).
281. Consider the New Zealand experience with proportional representation. Since
adopting a mixed member proportional system in 1996, New Zealand has had only
coalition or minority governments and has not once been governed by a single-party
majority government. See Bureau of Intelligence and Research Electronic Affairs Public
Office, U.S. Department of State, Background Note on New Zealand, U.S. FED.
NEWS, May 1, 2007, available at 2007 WLNR 9080573. Moreover, recent elections in
parliamentary systems with proportionate representation have born this out. For instance,
in the 2001 Bulgarian parliamentary elections, the National Movement
Simeon II Party failed to win an outright majority and therefore partnered with the
Turkish Movement for Rights and Freedoms to form a coalition. See Inter-Parliamentary
Union, Turkey, 35 CHRONICLE OF PARLIAMENTARY ELECTIONS 35, 37 (2002). Four
years later in the 2005 Bulgarian parliamentary elections, the coalition government
was composed of the Coalition for Bulgaria Party, the National Movement Simeon II
Party and the Turkish Movement for Rights and Freedoms. See Inter-Parliamentary
Union, Turkey, 39 CHRONICLE OF PARLIAMENTARY ELECTIONS 45, 48 (2006). In 2001,
none of the political parties in Norway managed to secure a majority. The governing
coalition was ultimately composed of the Christian People’s Party, the Conservative
Party, the Liberal Party and other conservatives. See Inter-Parliamentary Union,
568 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
systems result when a minority party that has secured a plurality of
seats in an election joins forces with a another minority party or parties
in order to form a majority—or less frequently a minority—
coalition party.282 Coalition governments are, on one masterful account,
“a reflex of a living and continuous interaction between a
party’s natural and hence ultimate quest to come to power by itself
and the expedient, perhaps essentially transitional, inter-party collaboration
to capture the reins of government.”283
One consequence of coalition governments is that party discipline
becomes more important than usual in parliamentary systems
because the dissenting votes from members of the governing coalition
threaten to destabilize the coalition itself.284 Another, perhaps peculiar,
consequence of coalition arrangements is that they sometimes
confer greater influence upon small, regional or fringe parties than
larger, national or mainstream parties. In an electoral context in
which neither of the larger parties has secured a majority of the vote,
the key determinant of the influence of the smaller party is whether
it is a prospective coalition partner to the larger parties, something
that may be gauged by considering whether the smaller party is positioned
between the two (or more) larger parties with respect to
political ideals and ideology, and whether it was sufficiently successful
in the election to garner a critical mass of seats that would push
either of the two larger parties into majority territory.285
But both the converse and the reverse may also be true. For instance,
a small or regional party may believe that it can best
represent the interests of its constituents by remaining in opposition
Norway, 35 CHRONICLE OF PARLIAMENTARY ELECTIONS 106, 108 (2002). Similarly, the
2005 Danish elections resulted in a coalition government among the Liberal Party,
Conservative People’s Party and the Danish People’s Party. See Inter-Parliamentary
Union, Denmark, 39 CHRONICLE OF PARLIAMENTARY ELECTIONS 79, 82 (2006). But it is
not impossible for a party to achieve an outright majority under a proportional representation
electoral system. See, e.g., Inter-Parliamentary Union, Turkey, 36
CHRONICLE OF PARLIAMENTARY ELECTIONS 200, 202 (2003) (reporting that the Justice
and Development Party garnered a majority of seats under Turkey’s proportional representation
electoral system in the 2002 parliamentary elections).
282. Kaare Strøm & Benjamin Nyblade, Coalition Theory and Government Formation,
in THE OXFORD HANDBOOK OF COMPARATIVE POLITICS 782-83, 786 (Carles Boix &
Susan C. Stokes eds., 2007). The first leading study of coalition government is WILLIAM
H. RIKER, THE THEORY OF POLITICAL COALITIONS (1962).
283. Iqbal Narain, Coalitional Politics and the Indian Political System—The Crisis
of Compatibility, in THE COALITION GOVERNMENT 124, 126 (Saral K. Chatterji ed.,
1974) (internal citations omitted).
284. Vernon Bogdanor, Conclusion, in COALITION GOVERNMENT IN WESTERN EUROPE
263, 271 (Vernon Bogdanor ed., 1983).
285. Gordon Smith, In Search of Small Parties: Problems of Definition, Classification
and Significance, in SMALL PARTIES IN WESTERN EUROPE: COMPARATIVE AND
NATIONAL PERSPECTIVES 23, 30 (Ferdinand M¨uller-Rommel & Geoffrey Pridham eds.,
1991).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 569
instead of joining the governing coalition.286 Similarly, the largest
party in a proportional representation system may have the most influence.
For example, a large party that regularly fails to win a
majority of seats yet nonetheless achieves a commanding plurality
may find itself in the enviable position of mediating a bidding war
between smaller prospective coalition partners who are willing to
make enticing compromises in return for the chance to govern, as has
been the case in Belgium and the Netherlands for much of the last
century.287
The various steps and stakes involved in building and sustaining
coalitions conspire to diminish the legislative efficiency of coalition
governments because those governments have to invest their resources
in processes that would not otherwise require attention
under majority governments. Coalition governments face several
challenges, including creating a coalition, managing the allocation of
Cabinet portfolios, consulting with coalition parties and their respective
pressure or interest groups, managing intra-coalition and interparty
disagreements, or shoring up legislative coalitions.288
Perhaps the most complex element to navigate in coalition governments
is the initial stage of building the coalition. Coalitionbuilding
begins in earnest after the election,289 a process that can be
very lengthy, lasting upwards of several months290 because of the intense
negotiations required.291 These negotiations entail significant
costs, including bargaining costs (the time required to build the coalition
and to resolve all subsidiary coalition matters), policy costs
(compromise and concession in developing a governing program) and
286. Christian Tuschhoff, The Compounding Effect: The Impact of Federalism on
the Concept of Representation, in COMPOUNDED REPRESENTATION IN WEST EUROPEAN
FEDERATIONS 16, 22 (Joanne B. Brzinski et al. eds., 1999).
287. Renaat Hoop, Social Policy in Belgium and the Netherlands: Third Way or
Not?, in SOCIAL DEMOCRATIC PARTY POLICIES IN CONTEMPORARY EUROPE 66, 67 (Giuliano
Bonoli & Martin Powell eds., 2004).
288. Jonathan Boston & Andrew Ladley, Efficient Secrets: The Craft of Coalition
Management, 4 N.Z. J. PUB. & INT’L L. 55, 59-87 (2006).
289. PIPPA NORRIS, ELECTORAL ENGINEERING: VOTING REGIMES AND POLITICAL BEHAVIOR
70 (2004).
290. Arco Timmermans, Cabinet Ministers and Policy-Making in Belgium: The Impact
of Coalitional Constraints, in CABINET MINISTERS AND PARLIAMENTARY
GOVERNMENT 106, 106-07 (Michael Laver & Kenneth A. Shepsle eds., 1994); see, e.g.,
Inter-Parliamentary Union, Israel, 40 CHRONICLE OF PARLIAMENTARY ELECTIONS 124,
127 (2007) (one month to negotiate coalition after 2006 Israeli parliamentary election);
Inter-Parliamentary Union, Netherlands, 40 CHRONICLE OF PARLIAMENTARY
ELECTIONS 173, 175-76 (2007) (three months to negotiate coalition after 2006 Dutch
parliamentary election); Inter-Parliamentary Union, Germany, 39 CHRONICLE OF PARLIAMENTARY
ELECTIONS 102, 106 (2006) (two months to negotiate coalition after 2005
German parliamentary election).
291. ´Olafur R. Gr´ımsson, Iceland: A Multilevel Coalition System, in GOVERNMENT
COALITIONS IN WESTERN DEMOCRACIES 142, 157-84 (Eric C. Browne & John
Dreijmanis eds., 1982).
570 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
office costs (the payout or distribution of portfolios).292 Their cumulative
impact is considerable. Sometimes the costs of coalition-building
and coalition-sustaining may be so great as to compel the leader of
the plurality party to give up on those efforts and instead attempt to
govern as a minority government. This is precisely what occurred following
the 2002 Swedish parliamentary elections, when the prime
minister refused to enter into a coalition because his prospective coalition
partners had opposed Swedish membership in the European
Union, one of his principal policies.293
The product of this interparty bargaining is usually a formal
agreement to which the coalition partners are signatories, outlining
the policy priorities, rules of conduct and, among others, the allotment
of ministerial and other offices.294 One particularly instructive
illustration of the conditions that may be attached to coalition-building
and coalition-sustaining comes from Iceland, where the
Progressive Party agreed in May 2003 to form a coalition government
with the Independence Party on the condition that the prime minister—who
was a member of the Independence Party—resign the post
by September 2004 in order to allow a member of the Progressive
Party to become prime minister.295
This is not to understate the inefficiencies associated with governing
a coalition after it has successfully cleared the hurdles to
coalition formation. On the contrary, coalitions typically become more
fragile as the legislative session progresses because the coalition
members discover fewer and fewer matters upon which they may
make gainful compromises, which consequently destabilizes the coalition
and weakens its cohesion as the divergent preferences of
coalition members are not met.296 Furthermore, the legislative inefficiency
of coalition governments exacts a significant cost on another
dimension of governance: political ideology. The political parties constituting
a coalition must dilute their preferred partisan policies in
order to successfully pass their bills through the legislature—and
even then the resultant bill, which members of the governing alliance
would unlikely support were they in control of a majority government,
may not find favor with the broader legislative assembly.297
292. CAROL MERSHON, THE COSTS OF COALITION 100-24 (2002).
293. See Inter-Parliamentary Union, Sweden, 36 CHRONICLE OF PARLIAMENTARY
ELECTIONS 182, 184 (2003).
294. GREGORY S. MAHLER, POLITICS AND GOVERNMENT IN ISRAEL: THE MATURATION
OF A MODERN STATE 158-59 (2004).
295. See Inter-Parliamentary Union, Iceland, 37 CHRONICLE OF PARLIAMENTARY
ELECTIONS 74, 76 (2004).
296. Timothy M. Hennessey & Jeanne Martin, Exchange Theory and Parliamentary
Instability, in LEGISLATURES IN COMPARATIVE PERSPECTIVE 182, 196 (Allan
Kornberg ed., 1973).
297. Wilfried Dewachter, Changes in a Particratie: The Belgian Party System from
1944 to 1986, in PARTY SYSTEMS IN DENMARK, AUSTRIA, SWITZERLAND, THE NETHERLANDS,
AND BELGIUM 285, 351 (Hans Daalder ed., 1987).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 571
Indeed, it was the difficulty associated with forging sustainable
coalition governments that led Israel to adopt a new premier-parliamentary
system that freed the prime minister of what critics believed
was the burden of establishing and preserving a coalition government.298
Much has been written about the challenges to coalitionbuilding
and coalition-sustaining in Israel.299 Germany is another
fascinating manifestation of coalition politics because of the interaction
between national and state officials after elections to the
Bundestag. Specifically, the prominent role of the German states in
implementing social policy requires as a matter of practice that coalition
talks involve not only national party leaders but also their state
equivalents, even though the latter do not hold seats in the
Bundestag nor do they ultimately join the Cabinet.300
In Italy, some are calling for a move to the more stable semipresidential
French model to replace the weak form of coalition government
that has become the norm.301 Building a coalition
government in Italy involves such complexity that policy is often relegated
to secondary importance relative to the principal concern of
political survival.302 As a final example, consider Portugal. It has also
lived through short and unstable parliamentary coalitions: the Portuguese
Parliament has often failed to reach its constitutionally defined
298. Avraham Brichta, The New Premier-Parliamentary System in Israel, 555 ANNALS
180, 182, 190 (1998). The new model that Israel adopted in 1996 borrows from
both parliamentary and presidential systems to create a structure that has the following
characteristics: (1) like the chief executive in a presidential system but unlike the
chief executive in a parliamentary system, the chief executive in Israel’s new system
is popularly elected; (2) as in both presidential and parliamentary systems, Israel’s
chief executive appoints members of the cabinet; (3) just as the chief executive in a
parliamentary system but unlike the chief executive in a presidential system, the
chief executive in Israel must retain the confidence of the legislature in order to avert
new elections. Id. at 188-89. Israel has since abandoned this new electoral model. See
Yoav Dotan, The Spillover Effect of Bills of Rights: A Comparative Assessment of the
Impact of Bills of Rights in Canada and Israel, 53 AM. J. COMP. L. 293, 299 n.23
(2005).
299. See, e.g., GREGORY M. LUEBBERT, COMPARATIVE DEMOCRACY: POLICYMAKING
AND GOVERNING COALITIONS IN EUROPE AND ISRAEL (1986); Douglas M. Stinnett, International
Uncertainty, Foreign Policy Flexibility, and Surplus Majority Coalitions in
Israel, 51 J. OF CONFLICT RESOLUTION 470 (2007); Itai Sened, A Model of Coalition
Formation: Theory and Evidence, 58 J. OF POLITICS 350 (1996); Judith Bara, Party
Policy and Coalition Bargaining in Israel, in PARTY POLICY AND GOVERNMENT COALITIONS
346 (Michael J. Laver & Ian Budge eds., 1992).
300. Thomas Saalfeld, The German Bundestag: Influence and Accountability in a
Complex Environment, in PARLIAMENTS AND GOVERNMENTS IN WESTERN EUROPE 44,
55-57 (Philip Norton ed., 1998).
301. Laura Nader & Mariane Ferme, Book Review, Transplants, Innovation, and
Legal Tradition in the Horn of Africa, 45 AM. J. COMP. L. 209, 216 (1997).
302. Alfio Mastropaolo & Martin Slater, Party Policy and Coalition Bargaining in
Italy, 1948-87: Is There Order Behind the Chaos?, in PARTY POLICY AND GOVERNMENT
COALITIONS, supra note 299, at 312, 335.
572 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
legislative term of four years, instead collapsing well short of that
period.303
It is therefore apparent that coalition governments are both fragile
and volatile.304 One comparative study of parliamentary
democracies from 1918 to 1974 concluded that majority governments
survive for an average of fifty-five months whereas coalition governments
last for less than half that length of time: an average of
twenty-six months.305 This difference may be explained by several
related reasons: (1) given that Cabinet ministers in the governing coalition
may come from different political parties, they have different
constituencies and different interests that may cause them to take
conflicting positions; (2) ministers may take positions that undermine
the stability of the coalition in the interest of demonstrating their
autonomy; and among others (3) government and party leaders in the
coalition face the complex task of managing what may be an uneasy
alliance whose creation was based on convenience and the possibili-
303. Ken Gladdish, Portugal: An Open Verdict, in SECURING DEMOCRACY: POLITICAL
PARTIES AND DEMOCRATIC CONSOLIDATION IN SOUTHERN EUROPE 104, 115
(Geoffrey Pridham ed., 1990). But see Inter-Parliamentary Union, Portugal, 39
CHRONICLE OF PARLIAMENTARY ELECTIONS 193, 196 (2006) (reporting that the Socialist
Party won an outright majority of parliamentary seats in the 2005 elections).
304. See, e.g., RON GOULD ET AL., STRENGTHENING DEMOCRACY: A PARLIAMENTARY
PERSPECTIVE 123-24 (1995); Adam M. Smith, Understanding Foreign Law in Domestic
Jurisprudence: The Indian Case, 24 BERKELEY J. INT’L L. 218, 236 (2006); Barak Cohen,
Empowering Constitutionalism with Text from an Israeli Perspective, 18 AM. U.
INT’L L. REV. 585, 632 (2003); Kent Benedict Gravelle, Islamic Law in Sudan: A Comparative
Analysis, 5 ILSA J. INT’L & COMP. L. 1, 4 (1998); Paul J. Magnarela, The
Legal, Political and Cultural Structures of Human Rights Protections and Abuses in
Turkey, 3 D.C.L. J. INT’L L. & PRAC. 439, 444 (1994); Irwin P. Stotzky, Essay, The
Fragile Bloom of Democracy, 44 U. MIAMI L. REV. 105, 121 (1989). But see GIOVANNI
SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING 113 (1194) (arguing that stability
is not a function of time but rather the capacity to govern); ANDREW REEVE & ALAN
WARE, ELECTORAL SYSTEMS: A COMPARATIVE AND THEORETICAL INTRODUCTION 122
(1992) (stating that some coalition governments in proportional representation systems
are stable). But note that some parliamentary leaders mitigate the instability of
coalition governments by requiring coalition partners to agree to support the coalition
for a specified period of time, as was the case following the 2002 New Zealand parliamentary
elections when the Labour Party invited the United Future Party to join its
governing coalition on the condition that it support the coalition for three years. See
Inter-Parliamentary Union, New Zealand, 36 CHRONICLE OF PARLIAMENTARY ELECTIONS
152, 154 (2003). It is equally important to note that some proportional
representation electoral systems are expressly designed to foreclose the possibility of
coalition government. For instance, under the Greek proportional representation electoral
model the political party earning the highest popular vote total is awarded
bonus parliamentary seats that allow it to govern with an absolute parliamentary
majority—even if its popular vote total is lower than fifty percent. See Inter-Parliametary
Union, Greece, 34 CHRONICLE OF PARLIAMENTARY ELECTIONS 58, 60 (2001)
(reporting that the Panhellenic Socialist Movement Party won the highest popular
vote total of all political parties with 43.79% in the 2000 parliamentary election but
was awarded supplemental parliamentary seats that allowed it hold a majority in the
Parliament: 158 out of 300 seats).
305. LAWRENCE C. DODD, COALITIONS IN PARLIAMENTARY GOVERNMENT 10-11
(1976).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 573
ties of power.306 These and other considerations combine to create a
government that does not exhibit the legislative efficiency enjoyed by
a parliamentary majority government. Quite the contrary, a coalition
parliamentary government displays the very legislative inefficiency
that is usually ascribed to presidential systems.
B. Efficiency in Presidential Systems
The American Founding Fathers adopted the separation of powers
in an effort to avoid what they perceived to be the dangers of
parliamentarism.307 But even the American model of separated powers
is not impervious to the creeping tendencies of parliamentarism.
One such parliamentary quality that we may discern in American
presidentialism at various points throughout history is legislative efficiency.
The very same measure of legislative efficiency that
characterizes parliamentary systems—in which the head of government
finds very few impediments to implementing his legislative
program with a majority in the legislature—is achievable in presidential
systems during periods of unified government. Unified
government exists when the same political party holds the presidency
and controls a majority of seats in each of the houses of the
legislature.308
The executive may freely pursue its legislative program in times
of unified government309 because it is less likely that the legislature
will check the executive as vigorously as it would under a divided
government.310 Given their common political party membership, the
executive head and the legislative majority are more likely to converge
on political ideology, interests and priorities.311 They are also
less likely to clash over institutional authority and jurisdiction.312
Unified government undermines the presidentialist structure of interlocking
supervistory checks among branches of government
306. NAUNIHAL SINGH, A SYSTEM OF GOVERNANCE: PARLIAMENTARY OR PRESIDENTIAL
70-71 (1998).
307. Louis J. Sirico, Jr., The Trial of Charles I: A Sesquitricentennial Reflection, 16
CONST. COMMENTARY 51, 58 (1999).
308. James C. Ho, Ensuring the Continuity of Government in Times of Crisis: An
Analysis of the Ongoing Debate in Congress, 53 CATH. U.L. REV. 1049, 1071 (2004).
309. Nathaniel Persily & Bruce E. Cain, The Legal Status of Political Parties: A
Reassessment of Competing Paradigms, 100 COLUM. L. REV. 775, 795 (2000).
310. Eric A. Posner & Adrian Vermuele, The Credible Executive, 74 U. CHI. L. REV.
865, 887-88 (2007). But see CHARLES O. JONES, SEPARATE BUT EQUAL BRANCHES: CONGRESS
AND THE PRESIDENCY 12-13 (2d ed. 1999) (illustrating that divided government
does not always foretell an adversarial relationship).
311. Paul J. Quirk & Bruce Nesmith, Divided Government and Policy Making: Negotiating
the Laws, in THE PRESIDENCY AND THE POLITICAL SYSTEM 565, 580 (Michael
Nelson ed., 5th ed. 1998).
312. STEVEN A. SHULL, PRESIDENTIAL-CONGRESSIONAL RELATIONS: POLICY AND TIME
APPROACHES 15 (1997); Steven M. Pyser, Recess Appointments to the Federal Judiciary:
An Unconstitutional Transformation of Senate Advice and Consent, 8 U. PA. J.
CONST. L. 61, 107 (2006).
574 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
because it often results in diminished legislative oversight of the executive313
and an eager willingness of the legislature to accede to
executive requests.314
This state of affairs resembles the free reign that majoritarian
heads of government enjoy in parliamentary systems. Unified government
reduces legislative obstacles and exhibits enhanced
productivity,315 and it undermines the traditional view that the
American Constitution prevents the President from pushing through
his legislative programs.316 This therefore gives rise to conditions
comparable to those under which a prime minister governs: power
becomes concentrated in the executive rather than dispersed between
the executive and the legislature—the very opposite of the conventional
account of presidential power.317 Accordingly, in times of
unified government, the President enjoys a measure of legislative
success that eludes Presidents in periods of divided government.318
313. David A. O’Neil, The Political Safeguards of Executive Privilege, 60 VAND. L.
REV. 1079, 1125 (2007); Jack M. Balkin & Sanford Levinson, The Processes of Constitutional
Change: From Partisan Entrenchment to the National Surveillance State, 75
FORDHAM L. REV. 489, 520 n.113 (2006); Adam M. Samaha, Undue Process, 59 STAN.
L. REV. 601, 657 (2006).
314. Trevor W. Morrison, Suspension and the Extrajudicial Constitution, 107
COLUM. L. REV. 1533, 1594 n.292 (2007).
315. See, e.g., John J. Coleman, Unified Government, Divided Government, and
Party Responsiveness, 93 AM. POL. SCI. REV. 821, 832 (1999).
316. See George C. Edwards III, Director or Facilitator?: Presidential Policy Control
of Congress, in THE MANAGERIAL PRESIDENCY 285, 285 (James P. Pfiffner ed., 2d
ed. 1999).
317. See, e.g., Richard Rose, The Job at the Top: The Presidency in Comparative
Perspective, in THE PRESIDENCY AND PUBLIC POLICY MAKING 3, 6 (George C. Edwards
III et al. eds., 1985).
318. James A. Thurber, An Introduction to Presidential-Congressional Rivalry, in
RIVALS FOR POWER: PRESIDENTIAL-CONGRESSIONAL RELATIONS 1, 10-12 (James A.
Thurber ed., 2d ed. 2002); James A. Thurber, Conclusions about Congressional-Presidential
Rivalries, in RIVALS FOR POWER: PRESIDENTIAL-CONGRESSIONAL RELATIONS,
supra. Consider that the Clinton Administration entered office in a period of unified
government which lasted for two years. In those two years, the Clinton Administration
enjoyed the third highest rate of legislative success since Congressional Quarterly
began tracking this indicator. See James W. Davis, The American Presidency 327 (2d
ed. 1995). In a study of presidential-congressional relations from 1953 to 1984, the
presidential success on Senate and House roll call votes was 76.3% and 74.7%, respectively,
in periods of unified government. In contrast, during period of divided
government, presidential success on the same measure was 53.7% and 54.1%, respectively.
JON R. BOND & RICHARD FLEISCHER, THE PRESIDENT IN THE LEGISLATIVE ARENA
74-75 (1990). But see DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING,
AND INVESTIGATIONS, 1946-2002, at 3 (2d ed. 2005) (claiming that unified
government is no more productive than divided government); MICHAEL FOLEY & JOHN
E. OWENS, CONGRESS AND THE PRESIDENCY: INSTITUTIONAL POLITICS IN A SEPARATED
SYSTEM 412-13 (1996) (defending the virtues of divided government); CHARLES O.
JONES, THE PRESIDENCY IN A SEPARATED SYSTEM 195-201, 287-88 (1994) (contending
that divided governments are not consigned to deadlock); Roberta Q. Herzberg, Unity
Versus Division: The Effect of Divided Government on Policy Development, in DIVIDED
GOVERNMENT: CHANGE, UNCERTAINTY, AND THE CONSTITUTIONAL ORDER 173, 174 (Peter
F. Galderisi et al. eds., 1996) (arguing that divided government is only one of
several factors in explaining the success or failure of policy); Michael J. Malbin, Was
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 575
An unsurprising consequence of unified government is a decline
in the frequency of presidential vetoes.319 Another consequence is
that delegations of power to administrative agencies tend to be very
broad, for instance during the period of consolidated authority in the
1930s, and less so under divided government, as was the case in the
1970s.320 Relatedly, it has been demonstrated that the President has
historically been granted greater control over administrative agencies
when those agencies were created during periods of unified,
rather than divided, government.321
Yet another important historical consequence of unified government
has been the expansion of the size of federal appellate courts.
One study illustrated that during the period of thirty-six unified governments,
Congress increased the size of federal appellate courts
twenty-one times as opposed to the twenty-five periods of divided
government, when this happened only four times.322 On a related
point, of the forty-five Supreme Court nominations made during periods
of unified government, only two were rejected by the Senate. In
contrast, of the fifteen nominations made during periods of divided
government, the Senate rejected three.323 There is perhaps a simple
explanation for these two divergent findings: congressional action
during periods of unified government may be bolder and more aggressive
in the face of weak opposition than during periods of divided
government where entrenchment efforts are more difficult to realize.324
It is therefore evident that unified government dramatically
increases the power of the President to control political and legislative
outcomes in a receptive majority legislature.325
Divided Government Really Such a Big Problem?, in SEPARATION OF POWERS AND
GOOD GOVERNMENT 219, 220-21 (Bradford P. Wilson & Peter W. Schramm eds., 1994)
(stating that divided governments do not necessarily lead to stalemate). Interestingly,
one scholar has argued that gridlock is more likely when different parties control each
congressional chamber than when different parties control the presidency and the
Congress. See JEN REITH SCHROEDEL, CONGRESS, THE PRESIDENT, AND POLICYMAKING
133-34 (1994).
319. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118
HARV. L. REV. 915, 953 (2005).
320. Peter H. Schuck, Delegation and Democracy: Comments on David Schoenbrod,
20 CARDOZO L. REV. 775, 784 n.28 (1999).
321. Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106
COLUM. L. REV. 263, 290 (2006).
322. Emerson H. Tiller & Frank B. Cross, Colloquy, A Modest Proposal for Improving
American Justice, 99 COLUM. L. REV. 215, 219-20 (1999).
323. Kevin J. McMahon, Presidents, Political Regimes, and Contentious Supreme
Court Nominations: A Historical Institutional Model, 32 LAW & SOC. INQUIRY 919, 922
(2007); see also Keith E. Whittington, Presidents, Senates, and Failed Supreme Court
Nominations, 2006 SUP. CT. REV. 401, 411-33 (illustrating different success rates for
Supreme Court nominations under divided and unified government).
324. John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the
Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary,
39 J. LAW & ECON. 435, 451-52 (1996).
325. Tracey E. George, Judicial Independence and the Ambiguity of Article III Protections,
64 OHIO ST. L.J. 221, 239 (2003).
576 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
In their important article recasting separation of powers theory,
Levinson and Pildes suggest innovative strategies to moderate the
might of unified governments and to equip the minority congressional
party with legislative tools to counteract the power of a unified
government and to hold accountable the majority presidential and
congressional party—something that the majority party cannot be
expected to do in periods of unified government, particularly in times
of real or imagined constitutional crisis.326 They propose a set of parliamentary
opposition rights for the minority party, for instance,
auditing and investigative powers that may help the minority to hold
the majority accountable. This would also be accomplished with minority
party veto rules like supermajority voting requirements, and
by insulating administrative agencies from political control by giving
them the powers to discharge their duties independently of the party
in power.327 These recommendations are all the more useful in presidential
systems when we consider what Mark Tushnet calls the “oneway
ratchet,” a term he uses to describe the difficulty of repealing or
revising laws passed under unified government: “what is done under
unified government cannot be undone under divided government.”328
Nonetheless, it is important to recognize that unified government
does not always lead to the equivalent of a majority
parliamentary government. One need only look to the most recent
unified government in the United States when the Republican Party
held not only the presidency but also the House of Representatives
and the Senate. Even under those conditions, the legislative process
continued to be slowed by obstruction and delay.329 Only a filibusterproof
unified government could circumvent these built-in barriers to
legislative efficiency in presidential systems. But even then, as one
scholar notes, such supermajority governments have been rare in
American history.330 Moreover, transformational changes under unified
government may also face resistance from non-legislative actors,
for instance bureaucrats as well as political interest and pressure
326. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119
HARV. L. REV. 2311, 2352 (2006).
327. Id. at 2370-78.
328. Mark Tushnet, Alarmism Versus Moderation in Responding to the Rehnquist
Court, 78 IND. L.J. 47, 64 (2003).
329. Michael J. Gerhardt, Essay, The New Religion, 40 CREIGHTON L. REV. 399, 405
(2007); Elliot E. Slotnick, Appellate Judicial Selection During the Bush Administration:
Business as Usual or a Nuclear Winter?, 48 ARIZ. L. REV. 225, 235 (2006); David
S. Law & Lawrence B. Solum, Positive Political Theory and the Law: Judicial Selection,
Appointments Gridlock, and the Nuclear Option, 15 J. CONTEMP. LEGAL ISSUES
51, 89 (2006); Sheldon Goldman, Judicial Confirmation Wars: Ideology and the Battle
for the Federal Courts, 29 U. RICH. L. REV. 871, 898 (2005); see also Mark Silverstein
& William Haltom, You Can’t Always Get What You Want: Reflections on the Ginsburg
and Breyer Nominations, 12 J.L. & POLITICS 459, 472 (1996) (discussing hindrances
posed by unified government during the Clinton Administration).
330. David Law, Appointing Federal Judges: The President, the Senate, and the
Prisoner’s Dilemma, 26 CARDOZO L. REV. 479, 512 (2005).
2009] FUSION OF PRESIDENTIALISM AND PARLIAMENTARISM 577
groups.331 Still, unified presidential government is an inviting framework
within which the governing party may pursue its legislative
agenda on a path of lessened resistance that approximates the conditions
facing majority parliamentary governments.
V. CONCLUSION
Presidential and parliamentary systems exhibit many more
functional parallels than their distinctive structural features might
otherwise suggest. This observation underscores the limitations of
existing constitutional theory and makes plain that conventional constitutional
conceptions of presidentialism and parliamentarism are
not only limited but quite often mistaken. The immediate implication
of this conclusion is significant: the distinction between presidentialism
and parliamentarism is not as clear as once thought. The larger
implication is intriguing: as political culture becomes normalized
across constitutional states, whether a state has adopted presidentialism
or parliamentarism may become less important than whether
that state has assimilated fundamental democratic mechanisms
within its constitutional structure.
Modern statecraft demonstrates that the caricatures of presidentialism
and parliamentarism are rarely enshrined wholesale in
constitutional charters. States instead often introduce indigenous
wrinkles to traditional models of presidentialism and parliamentarism
in order to achieve objectives that are anchored in politically and
culturally specific contexts. These presidential and parliamentary innovations
signal that presidentialism and parliamentarism are
receptive to modern renovations, and lay bare the richness of constitutional
possibilities that these two systems offer the democratic and
democratizing citizens of the world.
331. Mark Tushnet, The Supreme Court 1998 Term—Foreword: The New Constitutional
Order and the Chastening of Constitutional Aspiration, 113 HARV. L. REV. 29,
74 (1999).
578 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57