Opinio Juris

My stint guest blogging here has come to an end......

Thank you to everyone, it was a blast!

Is government in opposition a welcome addition to our separation of powers choices? There are a series of issues to be considered.

First of all, it responds to the problem that all systems of government have—-presidential, semi-presidential and parliamentary—-the problem of the very successful politician and eventual unconstrained democratic leader. If a political figure or political party is very popular, and wins many elections, then it will control all levers of powers. That is true regardless of what type of system of government we are discussing. In parliamentary systems, the singular and one-time winner always controls everything; but in presidential and semi-presidential systems, the same party could win over the legislature and the executive, and control everything. In such a system, giving the opposition party the power to govern and control things is the only real manner to check power.

Think of, for instance, how things might have been different in the United States in the aftermath of September 11, with government in opposition. If the Democrats had the desire—-and that is a big if, of course—-they might have controlled the Justice Department, and therefore prevented an overeager Bush Administration from creating the torture memorandum; or perhaps they might have chaired the Senate Foreign Relations or Judiciary Committees and been able to challenge the Bush Administration’s efforts a little more.

In this way, government in opposition constrains and limits winners. But it also is better for losers. Losing parties can develop a policy record and campaign on it, and can use that to beat the winners. Losing parties have more of an incentive to engage in the system rather than obstruct the system, since they govern in the system rather than just dissent.

There is always the possibility that government in opposition can destabilize the system by permitting the opposition party to use the levers of power to undermine the constitutional order in the first place. In the United States, it might be hard to imagine that happening; but in other countries, that is not hard to imagine. If the Taliban Party in Afghanistan was guaranteed a certain number of cabinet seats, they might use that to undermine Karzai. What many countries have adopted in response is a restriction on how ideologically extreme political parties can be and still operate in a constitutionally permissible manner. This ensures that parties are loyal rather than disloyal opposition, to use a common phrase.

In my last post, I talked about the current and common technologies of the separation of powers, which focus on apportioning authority among winners of elections, or granting powers to losers of elections (as losers). In this post, I will discuss the emerging trend in the foundational public law commitments of many democracies to grant the power to losers of elections to control parts of government—that is, for losers to act as winners.

This idea of "government in opposition" has taken its shape in all three of the major branches of government that constitutionalism has recognized: legislative, executive and judicial.

In the legislative branch, in many countries the chairpersons of committees are allocated proportionality, rather than the majority coalition or party occupying all of the committee chair positions (as is done in the United States). This is the case in countries like Portugal; in other countries (e.g. Britain, Germany, Slovakia, and others), while chair positions are not allocated precisely proportionality, there are some assurances or strategies to ensure that a sufficient number of (usually important) committee positions are assigned to members of the minority party. Many minority parties, even if they are not permitted to chair a committee, have the power to compel or subpoena certain information (we have a procedure like this in the United States called the Seven-Member Rule). In several countries (Britain, Canada, and others), the minority party even controls the legislature and all of its proceedings for a certain number of days per session. In all of these ways, the losing party or coalition of parties in the legislature that form the opposition have the chance to exercise majority power—-to chair committees, to control agendas, and so on.

Similar structures have also prevailed in the executive and judicial branch. In a range of countries (South Africa at one point, Lebanon, Switzerland), minority parties are guaranteed a certain number of cabinet positions and therefore to issue rules and regulations and exercise the full powers of cabinet members. Similarly, in many countries minority parties are permitted to make a certain number of judicial appointments, or are permitted to initiate lawsuits challenging the constitutionality of laws (this procedure is used often in France and Germany).

This is what government in opposition means; giving the power to losers to act as winners. But how has this system worked? Is it a welcome advance in the constitutional design of separation of powers? Does it promote stability? Does it reduce policy innovation?

Those questions and more will be addressed in my next post, when I turn to a more evaluative discussion of government in opposition.

Imagine it is Wednesday morning, November 5, 2008, the morning after the American presidential election. After months of attacks on the Democratic Presidential nominee, Barack Obama, for being weak on terrorism, Republican Presidential nominee John McCain has not only won the presidential election, but against all odds the Republican Party has taken control of the House of Representatives and the Senate. The Democratic Party is the minority now in both houses of the legislative branch, as well as in the executive branch. But imagine if, by constitutional or statutory command, or by an essentially obligatory tradition, Joseph Biden still remains Chairman of the Senate Foreign Relations Committee; Patrick Leahy becomes Attorney General of the United States in the McCain Administration; and Ted Kennedy takes control of Health and Human Services (HHS).

Sound crazy? Well, what might sound crazy to you is one of the most significant constitutional developments around the world in the past forty or so years, what I call “government in opposition”—-providing losing political parties the right to govern, the right to exercise majority, coercive power. From Britain to Canada to Colombia to Germany to South Africa, this new way of imagining separation of powers has been one of the most notable innovations in recent constitutional design. In my next series of posts, I will talk about this constitutional idea, which is also the focus of my latest article.

In my first post, I want to discuss how we currently divide up power among political winners and political losers, so that we can see how government in opposition differs from those regimes and how it creates a new separation of powers technology.

One thing separation of powers does sometimes is divide up political winners, those political entities which have won a democratic election. In presidential democracies, we divide up winners among the branches of government. The winner of one type of election (for the executive branch) controls the executive branch, and the winner of another type of election (for the legislative branch) controls the legislative branch. Sometimes, one party can win both elections and can control both branches; or, as in the United States right now, the winners of the last election for the executive branch might differ from the winners of the last election for the legislative branch. In addition to dividing up winners among the branches of government, we can divide up winners among the levels of government—-this is federalism. George Bush might have won the election in 2004, but Deval Patrick won the election to run Massachusetts in 2006. In the past century, particularly in the past generation, winners might even battle over authority within a branch and level of government-—what is commonly called “semi-presidentialism,” as is seen most notably in France. The President is popularly and directly elected, but the Prime Minister is appointed by the winning legislative majority.

These constitutional designs are all part of one version or idea of separation of powers: winners competing against each other, whether it be among the branches of government, among the levels of government, or even within the same branch and level of government.

Sometimes, entities that are neither winners nor losers might be given power to constrain other actors. This is what civil service bureaucracies are, and in some countries such bureaucracies even exercise quasi-judicial review powers or direct power to legislate and govern (courts do not really count as pure bureaucracies in this sense; they are not directly either winners or losers, but they are appointed in many countries by winners).

But what about losers, groups that lose elections? Well, one thing that constitutions and statutes do is give them power-—but as losers. They have the right to dissent (for instance, in the United States losers have this right to dissent protected by the First Amendment), the right to filibuster in the Senate, and so on. These are formally protected powers, but powers to check winners by being losers.

In my next post, I will discuss how this emerging regime of separation of powers I call government in opposition recognizes losers as winners, by giving them the power to govern in many contexts.