Tall, Grande, or Venti: Presidential Powers in the United States and Latin America

Powerful Presidencies, Varying Formal Powers

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Powerful Presidencies, Varying Formal Powers

Our motivating question is how presidents possessing different levels of formal powers can all be strong or very strong. The U.S. president's ability to implement policy priorities, sometimes in spite of institutional obstacles, is the focus of many studies. Schlesinger (1974), West and Cooper (1989), and Rudalevige (2005) all argue that the president’s intrusion onto legislative turf threatens the theoretical foundations of representative government. Owing to the covert exercises during the Vietnam War and then Watergate, Schlesinger labeled the American president “imperial,” refrains of which were also heard during the George W. Bush administration (Cooper 2005). Meanwhile, Cox and Morgenstern (2001) and Cheibub and Limongi (2002) explain that Latin American presidents intrude into traditional legislative domains, though the branches are not as fully integrated as in the ideal-typical parliamentary system. And O’Donnell (1994) admonishes that overly powerful presidents in Latin America yield a cheapened form of democracy which he labels “delegative.”

This characterization of similarly strong U.S. and Latin American presidencies clashes with the textbook model and most comparative studies that include the United States as a case. While the U.S. founders were concerned with representation and therefore envisioned a balance of powers between the branches, Latin American constitutional framers were more interested in efficiency and therefore endowed the president with greater powers (Alemán and Tsebelis 2005). The resulting constitutions, as coded by Shugart and Carey (1992) and updated by others (e.g. Payne et al. 2002; 2007; Tsebelis and Alemán 2005) suggest that the U.S. presidency is weak, scoring close to the bottom of scales of presidential powers in terms of absolute scores or in comparison with Latin American countries. The low U.S. score is based on a two-thirds vote required for an override of the U.S. president’s veto, the lack of a partial veto, decree powers, exclusive initiative, or dominance over the budget.2

This formal weakness, however, clashes with studies (e.g. Howell 2002; Rudalevige 2005; Beckmann 2010) showing U.S. presidents with significant success in implementing their agendas. How do formally weaker (U.S.) presidents manage to achieve similar policy success as formally stronger (Latin American) presidents? What are the sources of these powers, and what prevents the legislatures from protecting their turf?

When answering this first question, authors have commonly focused on the U.S. presidents’ “power of persuasion” in legislative bargaining as a function of reputation and prestige (Neustadt 1990), and their ability to appeal to the public and generate a mandate (Neustadt 1990; Lowi 1985; Kernell 2006; Rudalevige 2005; Schlesinger 1974; Canes-Wrone 2005). Ingberman and Yao (1991), for example, argue that public support allows presidents to issue credible veto threats, while Canes-Wrone (2005) demonstrates how presidents' appeals to the mass public can place pressure on Congress and shift policy in the direction of majority opinion. Other scholarship emphasizes how presidents fortify their bargaining power through control over the bureaucracy and its extensive resources (Neustadt 1954; Cooper and West 1988; West and Cooper 1989; Bawn 1995) and manipulation of both negative (Cameron 2000) and positive (Beckmann 2010) agenda-setting power.

Another branch of scholarship examines presidents’ ability to unilaterally implement policy without the consent of Congress through such mechanisms as signing statements, national security directives, and executive orders (Howell 2003, 2005; Moe and Howell 1999; Cooper 2005; Mayer 2001; Krause and Cohen 2000). Within the comparative literature there have been efforts to distinguish different types of presidential powers, such as Haggard and McCubbins’ (2001) classification of proactive and reactive powers. In their view, proactive powers, such as the authority to take unilateral action through orders and decrees, differ from reactive powers, such as the ability to veto or alter legislation through line-item vetoes, with respect to their potential effects on enhancing policy-making by the president.

Informal and associated powers, which we term ‘reinforced’ powers, are less central to studies of Latin America, in part because most of that region's presidents have stronger formal powers over legislative agenda control, including partial vetoes, decree powers, budgetary discretion, urgency provisions that allow the president to force quick legislative action, and the ability to directly initiate legislation (Shugart and Carey 1992; Mainwaring and Shugart 1997; Carey and Shugart 1998; Baldez and Carey 1999; Cox and Morgenstern 2001; Mustapic 2002; Negretto 2004; Tsebelis and Alemán 2005; Payne, et al. 2007). Studies, do, however, suggest that these presidents often have “partisan powers” (Mainwaring and Shugart 1997; Cox and Morgenstern 2001) that allow them to buy or negotiate for the support of legislators (through either legitimate or illegitimate means). However, with notable exceptions such as Calvo (2007), the comparative literature has tended to ignore presidents’ power to persuade the public and congress.

To explain the interactive role of formal and reinforced powers of the U.S. and Latin American presidencies, we focus on the scope of their power—the range of ideas that they put on the table and can turn into policy—and their ability to ensure that the legislature or courts do not overturn those policies, what we term the force of their power.3 A president with unrestricted decree authority, for example, would have the highest level of scope. Force, by contrast, is the ability of the president to make those policies stick. For example, if a president issues a decree or executive order (EO), Congress could attempt to change or repeal the requirement with a new law. But because a new law would require the president’s signature, the president can usually assure that the decree sticks. Scope would be limited if there were legal or other restraints on the use of decrees, and force would be limited if the legislature could review and rescind decrees.

Reinforced powers help presidents “fill in the cracks” of formal powers. For different countries, formal scope would include constitutionally-listed areas of exclusive executive initiative, decrees, and partial veto provisions that allow the president to implement some but not all parts of bills. These powers over the scope of legislation are reinforced by presidents’ abilities to push legislation through control over their parties, perhaps with the aid of public opinion or the control of budgetary resources that they can direct to recalcitrant legislators. Also reinforcing the scope of a president's powers could be the loose interpretation of constitutional provisions regulating decrees or executive orders, signing statements, presidential proclamations and memoranda, and national security directives, frequently built on past practices and sometimes further reinforced by presidential control over the judiciary.

A president's ability to define a policy agenda can also be reinforced by contextual variables and collective action problems that limit the legislature's action. Legislatures in Latin America generally have few resources, and thus must rely on the executive for technical expertise in formulating legislation.4 It seems uncontroversial that this limitation on legislative ability to be proactive further supports the president's scope.

Presidents also have an array of powers to prevent the legislature from negating their initiatives, which we collectively term force. The most important constitutional aspect of a president's force is the ability to veto legislative initiatives. As noted, if veto override requirements are high, then presidents only require a minority of legislative support to prevent legislation that would overturn a policy. U.S. legislators had tried to counter this problem by inserting "legislative vetoes" into bills, thus allowing them to oversee and abrogate executive actions that were taken under the authority that legislation. In the 1983 case of INS vs Chadha, however, the Supreme Court ruled that these were unconstitutional.

Since the 1930s the U.S. Congress had frequently written legislation that included provisions such that it could review and rescind agency rules that met disapproval in either one or both legislative chambers. In some cases legislation even called for committees to review expenditures or other actions.5 Under Chadha, however, the Court decided that such rules violated the constitution since they were essentially legislative, and as such, they must pass through both houses of congress and be submitted to the president for approval or veto (Cooper 1983; Leigh 1984).6 The result of this decision is that while it may be able to delay the implementation of agency rules (Cooper 1983), Congress would have to either challenge the rules in court, or write new legislation which would be subject to presidential veto. These authors deal with agency rules rather than executive orders, but presumably the Congress lacks a veto over orders as well, and would not have the same dilatory power over orders.

The Chadha ruling is surprisingly similar to Argentina’s infamous Peralta decision of 1990, in which members of the Argentine Congress who disapproved of President Menem’s continual use of Necessity and Urgency Decrees (DNUs) brought a test case regarding authority to transfer term deposits into public loans to their Supreme Court (see Ferreira and Goretti 1998). The court—which President Menem had successfully packed—both justified the broad use of decrees (scope powers), and in a manner similar to the US Supreme Court ruling under the Chadha, reinforced the president's ability to assure that these decrees stuck by arguing that the Congress could only overturn executive actions with a law. Their decision, however, did not dwell on the requirement of a presidential signature for any such law.

This example shows the grey areas of formal and reinforced force, and also highlights the interaction between them. They also show how contextual variables can reinforce both scope and force. Other variables that we discussed as reinforcing scope, then, also support force. Collective action problems, for example, not only give presidents advantages in initiating legislation, they also limit congressional response to executive initiatives. Relatedly, legislators who might wish to overturn a president's action face many veto gates (e.g. recalcitrant committees), especially on issues where the president has legislative allies (Kiewiet and McCubbins 1991; Moe 1993; Krause and Cohen 2000; Howell 2003). Urgency provisions that require short time frames for legislative action may also improve a president's force. In Ecuador, for instance, if the legislature fails to act on the president’s budget or other bills that the president deems urgent within a fixed (and short) time, the president’s proposal becomes law. Most of the Latin American legislatures are further hampered by executive control of (or at least sway over) the judiciary (Helmke 2002; Hilbink 2007) and limited access to professional analytical staff that can help them monitor executive actions and write bills (Morgenstern 2006). Short legislative careers and certain types of electoral laws also work against the motivations of legislatures to counteract executive actions (Morgenstern and Nacif 2002).

Table 1 summarizes some of the formal and reinforced powers for both scope and force that we have discussed, separating each by region. The list is meant to highlight tools available to different presidents, but is not intended to be exhaustive. For this reason the table ignores the important distinctions within Latin America and many of the reinforced powers listed as pertaining to the U.S. presidents are also available to Latin American presidents. Further, as noted, some of the lines are blurred; for example, delegated powers can bleed from formal to informal, as could judicial interpretations of the constitution that allow, executive orders. The purpose of the table, in short, is to highlight a wide range of powers available to presidents and suggest that the US presidents may need to rely more on reinforced scope and force, while most Latin American presidents have both formal and reinforced powers.

[Table 1 about here]
Substitutability of Formal and Reinforced Powers

Because many Latin American presidents have both formal and reinforced powers, it would be tempting to conclude that they are much stronger than their US counterpart. Clearly those presidents who can decree bills with the force of law (Negretto 2004; Carey and Shugart 1998; Pereira et al. 2005), excise individual lines from bills (Alemán and Schwartz 2006), cast amendatory or partial vetoes (Alemán and Tsebelis 2005; Tsebelis and Alemán 2005; Alemán and Schwartz 2006), or demand legislative action through urgency provisions (Cox and Morgenstern 2001) can go beyond what U.S. presidents can do. The question is whether these differences result in separation of presidential power by kind or just degrees.

Our answer is the latter: while there are more excesses in Latin America, studies that suggest that the U.S. president has usurped legislative authority or brand the U.S. president as “imperial” support the notion that this weak formal president is not as ineffective as comparative rankings would suggest. Overall, while Latin American presidents enjoy unbalanced constitutions that aid their abilities to direct policy, U.S. and Latin American presidents all enjoy powers that reinforce their ability to set the agenda and ensure implementation of their policies. In this sense, reinforced and associated powers have decreasing marginal utility. When formal powers are at their nadir, reinforced powers prove important in setting the legislative agenda and ensuring implementation of legislation, while extensive formal powers limit the necessity for and utility of associated powers.

Together these analyses imply that while institutions can create a strong presidency, presidents operating in the absence of those institutional prerogatives have other tools to support them. Perhaps then, these two types of powers are substitutes, and/or there is declining marginal utility of informal powers. In other words, reinforced power is more valuable to formally weaker U.S. presidents than to already powerful Latin American presidents. We support this finding below through an analysis of unilateral actions that shows broadly similar patterns.

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