Forthcoming, Journal of Politics in Latin America
Comparative constitutional studies rank the U.S. president as relatively weak and most Latin American presidents as strong. However, specialized studies suggest that U.S. presidents have great abilities to implement their agendas. We argue that presidents with weak formal powers “reinforce” their ability to impose an agenda (scope), as well as their ability to make those decisions stick (force). These reinforced powers, however, have diminishing returns as formal powers rise. As a result, the sum of presidential powers ranges from high (the U.S.) to very high (Latin America).
Keywords: Presidentialism, presidential powers, unilateral powers, decrees
Los estudios constitucionales comparados caracterizan al presidente estadounidense como relativamente débil y la mayoría de presidentes latinoamericanos como fuertes. Sin embargo, los estudios especializados sugieren que los presidentes estadounidenses tienen una gran capacidad para implementar sus agendas. Nosotros proponemos que los presidentes con poderes formales débiles “fortalecen” tanto su habilidad de imponer una agenda (gama) como su habilidad para hacer que sus decisiones sean acatadas (fuerza). Sin embargo, estos
tienen un rendimiento decreciente con un aumento en los poderes formales. Por consiguiente, la suma de los poderes presidenciales tiene un rango de alto (los EEUU) a muy alto (América Latina).
Palabras claves: Presidencialismo, poder presidencial, poder unilaterales, decrees
The comparative literature brands the U.S. presidency as relatively weak. Shugart and Carey (1992) and Payne, et al. (2007) find that U.S. presidents enjoy fewer powers than their counterparts in a wide range of presidential systems. Similarly, Cox and Morgenstern (2001) place the U.S. presidency and European prime ministers on opposite ends of a continuum that distinguishes the degree to which the executives can integrate themselves into the legislative process. They argue that “Latin American executives typically have greater powers of unilateral action than either U.S. presidents or European prime ministers, but they occupy an intermediate position as regards executive penetration of the legislative process within the assembly” (Cox and Morgenstern 2001: 175).
U.S. presidents, however, are not hamstrung. President Bush was known for his assertion of executive authority and President Obama has issued executive orders and additional directives to overcome legislative opposition and inaction on issues ranging from economic growth to environmental protection. U.S. presidential scholars recognize these faculties, titling their works The Imperial Presidency (Schlesinger 1974), By Order of the President (Cooper 2002), and Power without Persuasion (Howell 2003). In his review of the U.S. president’s unilateral powers, for example, Howell states that “a defining feature of presidential power during the modern era…is a propensity, and a capacity, to go it alone” (Howell 2005). Krause and Cohen (1997) also show that the president is poorly constrained by the constitution, revealing that the use of executive orders increases as presidential support in Congress decreases. And recently there have been concerns that U.S. presidents have attempted to overstep their constitutional boundaries by issuing signing statements in an attempt to establish their intentions and implementation strategies (see, for example, American Bar Association 2006). Is the U.S. presidency significantly weaker than its counterparts in Latin America, or have the comparativists substantially underestimated the power of the U.S. president?
We argue here that the latter is more the case; like coffee sizes that range only from “tall” to “venti,” there are strong or extra-strong, but no weak presidencies. The comparativists, however, are not all wrong in their modeling. Their comparisons of formal powers do suggest important distinctions among presidential systems. Institutionalists have shown theoretically and empirically that differences in veto, decree, and budgetary powers, for example, have important consequences for the executive-legislative power balance (Baldez and Carey 1999; Shugart and Carey 1992; Mustapic 2002; Garretón 1989).
The clash between the conclusions of the American and comparative literature is the result of the case-study approach of the former and the limits of larger-n studies in the latter. While presidential popularity and legislative support are available to both sets of studies (Krause and Cohen 1997; Pereira et al. 2005), generally the independent variables explaining presidential powers diverge. The American literature is divided between president-centered (idiopathic) factors, such as the president’s leadership style, character, and ability to move public opinion, and a presidency-centered approach that emphasizes institutional capacity and control of the bureaucracy (Hager and Sullivan 1994). The comparative literature, by contrast, uses variance in formal constitutional powers as its primary independent variable. If both sets of experts are correct in their assessments of the degree of power and the variables that explain it, what are the implications for comparative theory about the weak constitutional U.S. presidency and strong Latin American presidencies?
The answer has two parts. First, even if a theoretical model could include weak presidents, empirically the U.S. and Latin American presidents should range from moderate to strong thus suggesting differences of degree, not of kind. To explore this limited range of the dependent variable, we compare U.S. unilateral tools and Latin American decrees to show the abilities of each in achieving their agendas.
Secondly, the finding of similar exercise of powers implies that the comparative scales of presidential powers are lacking. If the ability to implement policies is similar but formal/constitutional powers are different, then the scales must be missing important tools available to presidents. At the same time, it may also mean that formal and informal powers are substitutive or complementary rather than additive. In other words, if presidents who are weak on the formal scales have similar abilities to implement their agendas as those endowed with stronger formal powers, it is the former that require greater recourse to informal mechanisms. In short, there are diminishing returns from informal powers when a president is already strong.
We explain the ability of presidents to implement their agendas, regardless of their formal powers by first dividing the totality of presidential powers into scope and force. Force and scope are shaped by the constitution and other formal rules, which are supposed to define the balance of powers. We then discuss how each of these pieces of presidential powers is “reinforced” with informal powers which are non-stipulated and often unwritten, such as the ability to guide public opinion for or against a legislative proposal, as well as associated powers which emerge from laws or institutions, such as organizational advantages or the ability to effectively control the bureaucracy.1 In short, reinforced powers are tools that the executive can use that go beyond constitutionally-enshrined mechanisms to directly propose or veto legislation. Oftentimes, the delineations between formal and reinforced powers bleed into each other, complicating strict classifications. U.S. executive orders and some Latin American decree powers, for example, have a constitutional basis, but the limits of authority are ambiguous. Our goal is not to draw strict boundaries between these types of powers, but to suggest that all presidents have recourse to a mix of powers, thus giving them important advantages in the lawmaking process.
We begin by summarizing the conventional wisdom regarding differences in presidential power between the United States and the modal Latin American country, focusing largely on their ability to implement policy proposals. The second section introduces the concepts of scope, the president’s latitude to define legislation, and force, the executive authority to prevent change or abrogation of the executive’s policy proposals by the legislature. Section three examines sources of presidential scope, specifically through reinforced powers, and then compares types and volume of unilateral directives between the U.S. and some Latin American countries. Section four then compares presidential force, focusing on the roles of the legislature and the judiciary. Each of these sections provides clear examples of how formal and reinforced presidential powers create presidents who all have medium or high abilities to implement their agendas. The fifth section concludes.