The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Independent Review has posted my review of legal scholar Frank Buckley's excellent new book The Once and Future King: The Rise of Crown Government in America. Buckley contends that parliamentary regimes are more effective in curbing abuses of executive power than separation of powers systems. He makes a good case – one of the best so far on this much-debated issues. But I remain far from completely persuaded. Her's an excerpt from my review:
Frank Buckley is a Canadian-born academic who has long been a leading legal scholar in the United States. Despite (or perhaps because of) living in America for many years, he has not lost his affection for queen and parliament. In The Once and Future King, he offers a penetrating analysis of the dangerous growth of executive power in three predominantly English-speaking democracies: Great Britain, Canada, and the United States. Executives in all three nations have increased their authority at the expense of the legislature in recent decades. But Buckley contends that Britain and Canada's parliamentary regimes are better able to limit the dangers of executive aggrandizement than America's separation-of-powers system.
Buckley's book has many strengths and undoubtedly qualifies as a major contribution to the debate over comparative constitutional design. On some key issues, however, he overrates the benefits of parliamentary systems and undervalues those of presidentialism.
Perhaps the strongest part of the book is the first half, where Buckley traces the growth of executive power in all three nations. The rise of the "imperial presidency" in the United States is a much discussed phenomenon. Less well known is the increasing concentration of power in the hands of the prime minister and his or her staff in the British and Canadian political systems.
Buckley argues that executive aggrandizement is rooted in the fundamental nature of modern government. Because the state has taken on numerous complex functions, it requires a large bureaucracy, which is more readily controlled by the executive than by the legislature….
Although the growth of executive power is a common feature of all three nations' governments, Buckley argues that parliamentary systems have coped with the resulting challenges better than America's separation-of-powers system has. Because a parliamentary majority can remove a prime minister from office at any time, it is more difficult for him to abuse his powers than for an independent president to do so….
Although Buckley presents a formidable case for parliamentary government, there are some flaws in both his diagnosis of the problems of executive power and his defense of parliamentarism as the best solution. It is far from clear that the past century has witnessed a growth of executive power relative to legislative power as opposed to a vast expansion of all forms of government power relative to that of the private sector…
Like many other critics of U.S. separation of powers, Buckley laments the gridlock created by divided government, which indeed sometimes causes problems. But that very gridlock also imposes constraints on executive power that are difficult to replicate in a parliamentary system. When Congress is controlled by a different party from the one that holds the White House, the result is lower levels of federal spending, more hearings investigating possible abuses of executive power, and the enactment of more detailed laws that leave less room for executive discretion. By contrast, a parliamentary prime minister is usually also the leader of the dominant party in the legislature, which is therefore less likely to impose tight constraints on his power or to investigate his abuses of it…
Buckley downplays one important way in which prime ministers can accumulate greater personal power than presidents can: they often stay in office far longer. Margaret Thatcher dominated British politics for eleven years, and Tony Blair for ten. Pierre Trudeau was prime minister of Canada for fifteen of sixteen years between 1968 and 1984, and Brian Mulroney for nine straight years. Such dominance was furthered by the prime minister's ability to time elections to coincide with favorable points in the business cycle.
By contrast, the Constitution bans American presidents from serving for more than eight years, and the last year or two of a president's second term is usually a "lame duck" period during which the incumbent's political leverage declines.
Most previous advocates of the superiority of parliamentary regimes over presidentialist separation of powers systems have been liberals or leftists. Buckley's book is distinctive because he is a generally pro-free market conservative, and therefore offers a case for parliamentarism that is interestingly different from the traditional left-wing rationale. But, as I note in my review, if the traditional pro-parliamentary argument is correct, it actually cuts against Buckley's position. Left-wing defenders of parliamentary government have argued that it is superior in large part because it makes it easier to establish a large welfare state and extensive, centralized government regulation of the economy. What left-liberal parliamentarists regard as a feature should count as a bug from Buckley's perspective.
Be that as it may, this book is an important original contribution to a longstanding debate, and it certainly comes at a time when separations of powers issues have become a major focus of political debate.
NOTE: As I pointed out to the editors of the Independent Review when they invited me to review this book, Frank Buckley and I are colleagues at the George Mason University School of Law. The editors decided this was not the sort of conflict of interest that should prevent me from writing the review. I think readers will be able to see that I did not hide my disagreements with some key aspects of Frank's argument.