For force, the modal Latin American president again enjoys stronger formal powers than those in the United States, although the latter is still able to shore up support through reinforced mechanisms. To a greater degree than scope, the concept of force lends itself more easily to manifestations of both positive and negative reinforced power, illustrated most clearly by potential constraints issued by legislatures and the judiciary. We explain this with a focus on each institution, first in Latin America and then the U.S.
Limits on Overturn attempts by Latin American Legislatures
Many Latin American constitutions support the president's ability to fight off legislative attempts to overturn executive initiatives, and several associated powers reinforce provide an extra buffer. In particular, many Latin American presidents have a partial veto powers, some can limit the time for legislative action, and most prohibit the legislature from making significant changes to the budget. The most important tools on the reinforced side are the control of parliamentary parties that help to block legislation or veto overrides, and courts that have limited authority with regard to executive actions and are frequently under the president's influence.
The partial veto is a tremendous weapon available to presidents in at least 12 Latin American countries (Saiegh 2010: 56).11 It is a much more potent than the even more widespread package veto, because it allows presidents to undo (and therefore stop before they are started) legislative logrolls. That is, if the president may excise a legislator's favorite project, then that legislator has little incentive to enter into a deal with a second legislator. In sum, the partial veto complicates deal-making, and thus should severely limit the ability of legislatures to solve collective action problems and overturn presidential edicts.12
At least in one case, ambiguous language even turned the reactive partial veto into a proactive power. In Uruguay in late 1994, President Lacalle vetoed an article from the new Organic Law for the Central Bank, and sent the bill back to the legislature with a “suggested” alternative version of the crucial article. Congress was unable to muster a quorum to debate the veto and, as a result, the published law included the president’s substitute article—an article which had never been voted on by the legislature. Many constitutions define a partial veto authority, and in all of these cases the language is ambiguous enough to suggest that Uruguayan-style suggestions could become law.13
A second friend of Latin American presidents is the time limitation that some constitutions impose on legislative action with regards to the budget and bills the president deems urgent. To take just one example, under both the 1998 and 2008 Ecuadorian Constitution, executive-initiated bills of “economic urgency” can be approved, modified, or rejected by a congressional majority. However, if a bill is not ruled on within 30 days, it officially becomes a decree law (decreto-ley).
Judicial Upholding of Executive actions in Latin America
As an additional reinforced power, Latin American presidents have frequently been able to control the judiciary—although some are becoming more independent.14 The Argentine court, which validated military decrees and abstained from political questions, exemplified the old model (Nino 1993; Larkins 1998).15 Even recently, Helmke explains that Argentine executives routinely cleaned house at the Supreme Courts, resulting in justices fearing for their jobs (Helmke 2005).16 Courts in some countries, however, have recently gained greater independence and power of judicial review, leading to a high degree of variation in the ability of constitutional courts to arbitrate policy decision (Helmke and Ríos-Figueroa 2011). One noteworthy case was the Colombian Constitutional Court’s 2010 ruling against a referendum that would have given citizens the ability to allow President Uribe to seek a third term in office. Similarly, the constitutional chamber of the Costa Rican Supreme Court has gained a high level of independence over the past twenty years (Wilson 2011; Wilson et al. 2004). Simultaneously, other countries, like Ecuador and Bolivia, had courts with counter-intuitively independent judges who have now lost much of that independence as presidents fight back (Basabe Serrano 2012; Castagnola and Pérez-Liñán 2011). Like the recent provisions that have tried to regulate presidential use of decrees, this growing independence of courts in some cases perhaps suggests a growing maturation of democracy and a concern for a more even balance of powers, though the effects are far from uniform across the region. However, the presidents' resistance to the changes suggests that while they may not retain outsized powers, they will still keep enough force to prevent frequent overturns of their policies.
Limits on Overturn Attempts by the U.S. Legislature
U.S. presidents lack the partial veto or the ability to impose time limits on legislative action that help Latin American presidents prevent actions that could counteract their decisions. Why then, in the face of a significant number of unilateral decisions by the U.S. presidents, has there been no legislative response to many of these intrusions? We contend that even though the U.S. president lacks some advantages enjoyed by presidents of Latin America, a combination of formal and reinforced provisions that limit legislative reaction.
From the perspective of Kiewiet and McCubbins (1988) or McCubbins and Schwartz (1984), the U.S. Congress tries to write legislation in ways that allow agencies broad latitude in areas that serve the legislature’s interests, or limit freedom in other areas (statutory control). Congress, they argue, also relies on monitoring mechanisms (“police patrols” and “fire alarms”) so that it can react if the bureaucracy acts in ways that harm the congressional majority’s interests. Once the legislature discovers prejudicial action, it can threaten budget cuts or more limiting legislation. West and Cooper (1989) add that Congress has significantly increased the resources and staff dedicated to oversight to accomplish these goals.
This perspective has several problems. First, while the problem is surely much more severe in Latin America where legislators still often work with no more than a private secretary, even in the U.S. Congress the lack of resources has made the “review [of the multitude of rules]… inevitably sporadic and haphazard” (Pierce Jr 1985).
A formal mechanism, the veto, is another part of the answer. Fisher (1978) puts the problem most clearly: while the Congress “delegate[s] authority by a majority vote [it can] recapture it only with a two-thirds majority” (244).17 In short, even if the legislature uncovers executive decisions that it wishes to undo, it must rally two-thirds of its members to take action. As important as this limitation is, it has been much more acute since 1983, when, as noted earlier, the U.S. Supreme Court issued its ruling in Immigration and Naturalization Service v. Chadha that ended the use of legislative vetoes.
Berry’s (2009) interesting work on the Chadha decision illustrates that despite the ruling, Congress has continued to use legislative vetoes extensively. Using a carefully constructed database, he also shows that the president uses reinforced powers—this time in the name of signing statements—to overcome unwelcomed legislative oversight.18 The president is not always successful but Berry shows that a) while sometimes the legislative veto is respected, there are many and important exceptions and b) bureaucracies sometimes react to the presidents’ signing statements rather than the enacted legislation.
Judicial Upholding of Executive Actions in the United States
While the veto and resource restraints provide U.S. presidents significant advantages, they do not have enough control over the courts to prevent a determined legislature from overturning unilateral actions. The U.S. Supreme Court dealt a severe blow to the legislature when it struck down the legislative veto, but other rulings also limit executive actions, since there is a supposition that the court will not allow the executive to directly contradict legislation. An example of this limitation was George W. Bush’s issuance of EO 13233, which regulated the Presidential Papers Act. That act explicitly states that 12 years after a president leaves office, his or her papers are to be turned over to the national archives for publication. The first affected presidency was to be that of Ronald Reagan, and the papers should have been released in 2001. But President Bush issued an order stating that the papers would only be published after both the current and affected president gave their approval. This clearly contradicted the letter and spirit of the law, yielded bi-partisan reproach in Congress, and was challenged in court by Public Citizen, on behalf of the American Historical Society. The court ruling favored the opening of the records, and most of the papers have since been published. Two facts still suggest that this executive order had teeth: first, the court only struck down a portion of the bill, and it took a second order, by President Obama, to revoke the order. In sum, while this case shows that the president is not without constraints, it also does show the limits on the legislature in reacting.