Document Type

Article

Abstract

Independently elected presidents invoke the separation of powers as a justification to act unilaterally without checks from the legislature, the courts, or other oversight bodies. Using the cases of Argentina and the Philippines, we demonstrate the negative consequences for democracy arising from presidential assertions of unilateral power. In both countries the constitutional texts have proved inadequate to check presidents determined to interpret or ignore the text in their own interests. We review five linked issues: the president’s position in the formal constitutional structure, the use of decrees and other law-like instruments, the management of the budget, appointments, and the role of oversight bodies, including the courts. We stress how emergency powers, arising from poor economic conditions in Argentina and from civil strife in the Philippines, have enhanced presidential power. Presidents seek to enhance their power by taking unilateral actions, especially in times of crisis, and then assert that the constitutional separation of powers is a shield that protects them from scrutiny and that undermines others’ claims to exercise checks and balances. Presidential power is difficult to control through formal institutional checks. Constitutional and statutory limits have some effect, but they also generate the search for ways to work around them. Both our cases illustrate the dangers of raising the separation of powers to a canonical principle without a robust system of checks and balances to counter assertions of executive power. Argentina and the Philippines may be extreme cases, but the fact that their recent constitutional revisions were explicitly designed to curb the president, should give us pause. Despite the obvious and substantial differences between the United States and our cases, they should lead Americans to ponder both the need for checks on the executive and practical ways to make them work effectively without the government grinding to a halt.

Date of Authorship for this Version

Spring 3-2010

Keywords

Comparative Law; International Law

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