Few if any national legislatures can control
or even restrain the executive branch of
government
Bsc. International Business and Politics 1st semester
Political Science Midterm Assignment
October 26th 2015
Jakob Damgaard Terkildsen
Group XE
Martin Bæk Carstensen
STU count: 22609
Page count: 9,94
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In an attempt to secure that no single person or group can gain excessive control within a democratic
society, and to ensure and protect the rights of the individuals living in it, all western governments to
some degree applies the principle of separation of power, as formulated by Montesquieu during the
Age of Enlightenment (Montesquieu, 1748) The separation between the judicial, legislative and
executive branch of government is commonly defined within a nation’s constitution, which also
defines the framework of the three branches relative level of power. However, these power relations
are not constant. During the 20th century, the power relation between the legislative and the
executive branch of government has changed, which in most countries has resulted in increased
power on executive level, changing the role of legislatures from being more focused on law-making,
to focusing on passing (or rejecting) laws presented by the executive branch, and scrutinizing their
work (Heywood 2013). Legislatures do of course have other functions to fulfill, mainly working as a
forum in which issues, local or national, can be debated and addressed. But without measures to
thoroughly scrutinize and interfere with the executive branch of government, they might end up only
fulfilling this role, being no more than a glorified talking shop with little to no actual, political power,
and no way of controlling or even restraining the executive branch (Heywood 2013).
This paper investigates the power relation between legislative and executive branches in countries
with presidential and parliamentary systems, stating that legislatures in presidential systems are able
to restrain and control the executive branch to a wider extent than legislatures in parliamentary
systems. It also states that, within parliamentary systems, a proportional voting system will generate
legislatures with a greater ability to restrain the executive branch. All three branches of government
can be studied in the style of new institutionalism, seeing them as organizations shaping the
structures individuals act by. Specifically the institutional mechanisms developed in legislatures to
scrutinize are important when investigating to what degree legislatures are able to restrain the
executive branch (Heywood 2013) Due to the complexity and uniqueness of legislative-executive
relations in every nation, this paper only discusses western democracies. The main focus will be on
the legislature and executive of the US and UK, highlighting them as example of a presidential and
parliamentary system with a relatively high and low level of scrutiny respectively. The reason for
choosing the UK over other examples is that, apart from being closest to the ideal type of a
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parliamentary system, the Westminster-system used in the UK parliament, dating back to the
thirteenth century, became the model upon which most other liberal democracies formed their
parliamentary system (Heywood 2013). However, to account for differences in party structure, voting
system and government formation, examples from other countries with parliamentary systems will be
used.
Heywood defines a parliamentary system, or fused power system, as a political system in which the
executives are drawn from the legislatures, effectively uniting, or fusing, the legislative and executive
branch (Heywood 2013). This creates a situation, where the head of government also commands a
majority in the legislature. In a presidential system, however, all three branches of government are
formally separated. Voters do not only decide who occupies the legislature, they also vote for a head
of government to control the executive branch, as seen with the presidential election in the US
(Heywood 2013). The term legislature in this context simply refers to the law-making branch of
government, and can be used interchangeably with the terms assembly and parliament etc. in that it
is not stressed that legislatures are the only institutions with law-making capabilities1 (Heywood
2013).
But how do we define a legislature’s ability to control or restrain the executive branch? The amount
of control which a legislature can exercise on a government depends on their relative power level;
stronger legislatures have more influence on the policy-making process, which equals more control.
Since legislatures increasingly emphasize their role as scrutinizing bodies (the watchdog role), we look
at its ability to perform meaningful scrutiny of government work, to determine the strength of a
legislature. But as Heywood puts it: “Knowledge is power; without full and accurate information,
meaningful scrutiny is impossible” (Heywood, 2013, p. 316). Following this argument, strong
legislatures have the ability to extract information from the government (often through committee
work), without the government stopping this process.
When the “founding fathers” created the US constitution in 1789, they created a system in which, in
order to ensure complete separation of power, no overlap between branches of government was to
1
The Congress and Parliament are examples of legislatures in the US and UK
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be found. The president and the rest of the executive branch do not have a seat in Congress, and
Congress does not elect, nominate, or in any way affect the presidential election process. In “The
Federalist Papers”, a paper written by the founding fathers to explain the thoughts behind and need
for a constitution, James Madison, who later became the 4th president of the US, mentions what was
later dubbed “Madison’s dilemma”, the paradox that people need governing to avoid conflicting and
suppressing each other, but a strong government with no limitations will suppress the people,
assuming that the executives are not better people than the general voter (Madison 1788). To solve
this dilemma and to guarantee mutual accountability between Congress and the executive branch, a
system of “checks and balances” was imposed (Heywood 2013). Government is given sufficient
resources to govern, but by giving each branch a “check” (a way to restrain) on the other, no
institution can govern without persuading and cooperating with the other. Effectively, this means that
while the president is appointed head of state, with the power to veto all legislation passed by
Congress, a two-third vote in both the House of Representatives and the Senate can override a
presidential veto. Additionally, Congress was given the power to declare war and ratify treaties
(Heywood 2013).
As a result of such a system, with its distinct separation of power, the US Congress, being an
institution that in many ways is independent from the executive branch, is one of the most powerful
legislatures in western democracies in terms of personal staff and funding (Heywood 2013). With
much of the legislative power moving from Congress to the White House, starting with Roosevelt’s
New Deal in the 1930s, Congress eventually begins emphasizing its role as a scrutinizing body, in order
to hold the executives accountable (Heywood 2013). The US Congress standing committees are
institutions specifically designed to this purpose. Being very well funded, with access to expert advice
and bureaucratic machinery that by far exceeds any committee in parliamentary legislatures, the
standing committees of the US Congress are capable of performing extensive scrutiny, including
overseeing and changing legislation presented by the executives. The standing committees of the US
Congress have served as inspiration in legislatures around the world, without any of these becoming
as powerful (Heywood 316).
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Another key element in the relatively large control Congress has over the executive branch also ties in
with the fact they are elected separately. If the president is from one party, and the other party has a
majority in both houses of Congress, we have what is often referred to as political “gridlock”. All
legislation the president attempts to get through Congress will not win a vote, and all legislation
passed by Congress will be vetoed by the president (Heywood 2013). This situation is not uncommon,
and was most recently seen when President Obama and the democrats lost majority in the House of
Representatives in 2010. The congressmen and the president, despite being from the same party,
might not always have aligned interests. During the Carter administration between 1977 and 1981,
political gridlock occurred despite both branches of government being controlled by the democrats
(Heywood 2013). This relatively low party discipline is another reason scrutiny in the US is so farreaching, seeing that the interests of the congressmen may not always align with those of the parties
or the presidents.
To examine the reason for this, we once again look at the separation between Congress and the
White House. Unlike parliamentary systems, the president cannot promote congressmen to executive
positions, so this is not an incentive for them to obey him. Additionally, with every congressman
winning his seat in a first past the post vote in their local constituency, their loyalty lies with the “folks
back home” (Heywood 2013). In order to be reelected for another term, they therefor do not need to
be specifically loyal to the party, as much as they need to “bring home the bacon”. Since there is no
way to exclude members from their political party in the US, the main way for an administration to
persuade members of Congress to vote on their behalf on bills that might not pass, is through “pork
barrel” politics, which essentially is to “buy” the doubters with legislation that increases federal
spending in their state (Heywood 315). Bottom line is; members of Congress have very little incentive
to allow executives to “get their way”, which additionally strengthens their scrutiny of the White
House.
Shugart (2008) considers the presidential system transactional, since the legislative and executive
branches both are directly chosen by the electorate, making them equivalent in terms of power and
legitimacy, which creates incentive to transact with one another in order to create legislation and
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govern the country. The opposite of this, the parliamentary system, in which the electorate only
appoints the legislature who then forms the executive branch with members from the winning party
(or a coalition of parties), is called hierarchical. In this model, the executive branch is subordinate to
the legislature, since it only governs with the support of the legislature, which at any time can remove
the government of the day. While, in theory, this puts a great deal of power in the hands of the
legislature, as we are about to see, the opposite will often be the case in parliamentary systems.
As mentioned earlier, the UK parliamentary system became the inspiration for most other European
nations. The Westminster-system consists of a bicameral legislature, composed of the House of
Commons and the House of Lords. The House of Lords main duty is to scrutinize the work of the
House of Commons, advising against or delaying bills put to vote. Members of the House of
Commons, who therefore have all the legislative power, win a seat in a general election, using a
single-member plurality (first past the post) system. Following the election, the leader of the biggest
party in the House of Commons is appointed to form the executive branch, making him prime
minister. As a result, the prime minister, leader of the executive branch, always command a majority
in the House of Commons. And since the voting system tends to deliver majority, single party
governments2, the executive branch effectively controls the law-making process, assuming that all
bills presented are supported by the party (Heywood 2013).
The idea behind drawing government from the parliament is to create a responsible government, in
the sense that it, being part of the legislature, is accountable thereto. The executive can only govern
as long as it has the support of the legislature, which technically puts the legislature above the
executive, seeing that parliament can remove the government at any given time (Heywood 2013). But
the fact that members of the House of Commons can obtain prestigious positions as executives, gives
the prime minister an excellent tool to avoid scrutiny. A literal showing of this can be seen within
parliament, with so called “back-benchers” and “front-benchers”, referring to the actual seating and
level of influence within the House of Commons. Party members, who display disloyalty towards the
political agenda presented by the Prime minister, can be punished by denying them influence, or in
2
Since 1929, only two British governments consisted of more than one party, which happened in 1974 and 2010.
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severe cases, exclusion from the party, making it near impossible to get reelected. Other
parliamentary systems use a proportional voting system involving some sort of party list.3 This allows
the party leader (not only from the majority party), to punish members who do not demonstrate
proper party loyalty, by lowering their position on the party list.
In Parliament, Committees are, inspired by the standing committees of the US Congress, in place to
secure proper scrutiny of government work. But unlike Congress, members of parliament committees
owe their membership to the party top. This makes harsh criticism an unfavorable approach, if a
member of parliament has a goal of career advancement (Heywood 2013). Additionally, committees
of the UK parliament are in no way as well funded as their American counterparts, and they do not
have the same access to expert advice. And while the US standing committees can scrutinize and
propose changes to legislation before it is presented to Congress, members of committees in
Parliament scrutinize bills after they have been debated, and they are unable to force ministers or
cabinet members to attend hearings. Ideally, committee work is unrelated to party politics. But since
no alternate career path relying on committee work is possible, members of Parliament committees
still respond to party pressure, decreasing effectiveness of the committees’ scrutiny (Heywood 322).
The lack of qualified, in depth scrutiny, combined with the immense power on executive level, caused
Lord Hailsham to name the UK parliamentary system an “elective dictatorship” in 1976, a term meant
to illustrate the great power and few restrictions vested in the Prime minister of the day. (Heywood
2013) Described with a term with fewer connotations, we often refer to British governments as being
Prime-ministerial. With a cabinet working mainly as an advisory body, and a majority large enough to
avoid any pressure from the legislature, and direct access to the media, the Prime Minister enjoys
power unmatched by most other head of governments (Heywood 2013). An exemplification of this
occurred in 2003, when Tony Blair decided to support the US in its war on terror, by invading Iraq.
This decision was made without consent from Parliament, which at the time was, and perhaps still is,
an unmatched manifestation of prime ministerial power.
3
Variations of party list systems are found in Israel and many European countries including Belgium, Switzerland and
Denmark.
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Due to the tradition of majority governments combined with great power on executive level, Shugarth
(2008) argues that the British parliament in many ways is close to the ideal type of a hierarchical
system. Looking towards other parliamentary systems with a proportional voting system, the relation
between executive and legislative is not as black and white. Proportional voting systems tend to
produce multi-party legislatures, which means that no single party will gain a majority and form a
single party government, like we generally see in the UK. To command a majority in the legislature, a
coalition between parties must form4. This implies some sort of bargaining, or transaction, between
the parties. Shugarth (2008) names this a transactional parliamentary system, since while it is still
hierarchical, some sort of tradeoff between executive and legislative branch must be made to govern.
The presence of several parties means that there is an incentive for all parties to scrutinize and
monitor government work, often resulting in more powerful legislative committees (Heywood 2013).
Unlike committees in the UK, members of scrutinizing committees in a transactional parliamentary
system will not be under pressure from party leaders to avoid scrutiny, as full knowledge of
government work is in the best interest of everyone.
Despite all the arguments that Congress has a firm grip on the executive branch, there is a tendency
worth mentioning, that draws a different picture. The use of executive orders, or decrees, has a long
history in the US. An executive order is the president’s way of implementing rules without consent
from the Congress. All presidents use executive orders, and they are only declared invalid if they are
retracted by the president, or if the Supreme Court deems them to be unconstitutional. Controversial
decrees include President Johnson’s and President Nixon’s escalation of the Vietnam War, and most
recently President Obamas’ immigration rules, allowing undocumented immigrants to apply for
permits. The ease with which presidents can implement legislation that would never pass the scrutiny
of Congress gave birth to the term “imperial presidency” (Arthur Schlesinger, 1974, mentioned by
Heywood 2013, p. 290) This implies that the president has the same, if not greater, control over the
legislature as a leader in a parliamentary system. Nevertheless, despite the fact that a US President
has the constitutional power to implement legislation, it is clear that he still relies on his relationship
4
In case of negative parliamentarism, a minority government can form. However, it will still rely on other parties in the
legislature, and a process of bargaining will therefore still take place.
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with Congress, as the success of presidents is often measured by how much of their legislation is
passed (Heywood 2013). Worth mentioning in this context is the president’s relationship with the
media. If a president is successful in taking the role as leader of the nation, executing more extensive
executive orders can be easier to get away with (Heywood 2013). Bottom line is; despite the ability to
go around Congress, a US president is only as strong as his relationship with Congress, meaning that
Congress do have the ability to restrain the executive branch to some degree.
It could also be argued that the difference between parliamentary systems that produce majority
governments and transactional parliamentary systems is in fact negligible. Since they are both
hierarchical, and the prime minister controls a majority of the legislature (through his party or a
coalition of parties, whether they are part of government or not), it is plausible that members of the
coalition responds to pressure from the prime minister, despite him not being their party leader. This
would limit scrutiny the same way we see in the UK. But looking towards countries like Sweden and
Germany, who both have a long history of coalition governments, we see that committee work is
more extensive in that of the UK (Heywood 2013). The legislature is still not policy-making, but it does
hold influence on the executive’s policy-making process, and does not only play a reactionary role.
This means that countries with proportional voting systems and a tradition of coalition governments
generally will see stronger legislatures, with a greater ability to restrain the executive branch than the
UK parliament (Heywood 2013).
This leads to another objection against the arguments put forth so far. If proportional voting systems
generate legislatures with larger control of the executive branch, why is the difference between
presidential and parliamentary systems even important? The answer to this is that although the
voting system does differentiate the degree to which legislatures can effectively perform scrutiny, the
difference in legislative-executive relation is smaller than a complete, formal separation (Shugarth
2008). A multi-party government in a hierarchical system pulls towards a more transactional system,
as shown earlier. However, a presidential system is already fully transactional, due to the formal
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separation of power defined in the constitution.5 This means that the most important classification
remains the one between presidential and parliamentary systems. Underpinning this claim is the fact
that the legislatures of Sweden and Germany, or any other presidential system, transactional or not,
can in no way be considered as independent and involved into the law-making process, or as capable
of restraining the executive branch, as the US Congress (Heywood 2013).
Conclusion
To determine whether legislatures are capable of controlling or even restraining the executive branch
of government, this paper investigates the relation between the legislative and executive branches of
governments in presidential and parliamentary systems, using an analysis of the US and UK systems as
examples. By defining the ability to restrain government as the ability to influence policy-making
processes and conduct extensive scrutiny of government work, the paper found that legislatures in
presidential systems can restrain government to a larger degree than legislatures in parliamentary
systems. Furthermore, by comparing the UK parliamentary system to parliamentary systems with a
proportional voting system, it found that parliamentary systems with a proportional voting system
creates stronger legislatures than parliamentary systems with a majority government. Although
classifiable in categories and sub-categories, as shown in this paper, the relation between legislature
and executives is unique for every nation. The countries chosen for exemplification are done so
because they are the closest to ideal types we get (Shugarth 2008). To further investigate the effect
voting systems have on executive-legislative relations, one might want to look beyond these ideal
types. This could be done, as done in this paper with parliamentary systems, by investigating how a
proportional voting system affects the legislature’s ability to restrain government in a presidential
system.
5
Shugarth (2008) Notes that voting system also affects legislative-executive relations in presidential systems, evident in
many South American countries. However, this goes beyond the limitations of this paper.
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List of References
Heywood, Andrew. (2013): Politics. 4th edition. Hampshire: Palgrave Macmillan
Madison, James (1788) Federalist No. 51. In: Alexander Hamilton, James Madison and John Jay Edited by
Michael A. Genovese. (December 2009). The Federalist Papers. [Online] Available at:
http://www.palgraveconnect.com/pc/doifinder/10.1057/9780230102019. (Accessed: 25 October 2015).
Montesquieu, Charles-Louis (1748): The Spirit of Laws. Kitchener: Batoche Books, 1992
Schlesinger, Arthur M. (1974): The Imperial Presidency. Boston: Huffington Mifflin
Shugart, Matthew Søberg (2008): Comparative Executive-Legislative Relations. In: Binder, Sarah A., Rhodes, R.
A. W. and Rockman, Bert A. (eds.) The Oxford Handbook of Political Institutions. Oxford: Oxford University Press
(2008)
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