by admin | Jun 2, 2023 | Courts, Fundamental Rights, General
Inspired by two earlier posts penned about the Hungarian Fundamental Law and constitutional interpretation by my friend Márton Sulyok, here I offer some thoughts on the topic as a comparative constitutional law scholar working within the natural law tradition. My basic suggestion is that the Hungarian Fundamental Law appears to commit legal officials to an interpretive framework steeped in classical legal thought, making it a framework that foreign natural law jurists, or anyone interested in ongoing debates over common good constitutionalism, can profitably study.
Classical legal tradition and legal interpretation: a quick primer
Following St Thomas Aquinas,[1] classical jurists tend to maintain that the core object of legal interpretation is ascertaining the reasoned intention of the legitimate political authority in positing what they decide to posit. The lawmaker (whether in the form of the prince or legislature) enjoys “stewardship of the community”[2] and has the duty and responsibility to create new law, and make determinations specifying how the particular community will respect the under-determinate principles of natural law and secure the demanding conditions of the common good. The secondary and related judicial role involves interpretation of a community’s already existing law while resolving disputes. These functions, and the role morality which attend them if they are to be done authentically, combine to radically cabin and structure a courts’ ability to make far-reaching determinations which functionally make new law. Compared to the richly creative role of the lawmaker, the structure of judicial inquiry is necessarily highly institutionally bounded. It is primarily to ask what the public authority has done in its authoritative act, ascertaining and inferring what reasoned choice it has made, mainly as manifested in the text of the legislative act. Their basic charge is discerning the reasoned intention of the legitimate authority, by reflecting on the relationship between the legal scheme it adopted and the good it wished to achieve. It is certainly not the judge’s role to displace positive law by reference to all-things-considered moral decision making or ‘palm tree justice’. Commitment to understanding lawmaking as a reasoned and authoritative act and determination, serves to constrain the scope of sound interpretive method, and would exclude as unreasonable, for instance, so-called living instrument approaches that permit judges to update legislation or constitutional provision by reference to changing moral and political views they think sound. It will also exclude forms of arid textualism that treat lex as a “cryptic collection of words dropped from the sky”[3] and not as rational ordinances aiming to promote the common good.
Classical jurists also regard posited law as part of a wider juridical ordering of a polity to the common good, but not exhaustive of the community’s law. The tradition makes a distinction between two senses of “law”: lex and ius. Lex is the enacted positive law created and promulgated by political authorities, such as a master text constitution or the statutes of designated law-making bodies. In the classical legal tradition lex is understood, as Aquinas famously framed it, as an ordinance of reason promulgated by political authorities for the common good.[4] To count as law in this focal sense, a posited law of a public authority must rationally conduce to the good of the community for which the lawmaker has a duty and privilege of care. Because the natural law only offers a skeleton law to communities – one which determines what posited arrangements are just and right – to enjoy concrete existence the basic precepts of the natural law require the sinew, flesh, and muscle provided by positive law enacted through human creativity and discretion.
Ius is the overall body of a community’s law generally, including and subsuming lex but transcending it, and containing general principles of jurisprudence and legal justice flowing from the natural law. Principles of ius, or legal justice, are not co-extensive with morality tout court.[5] Rather, they are concerned with the maintenance of a just and reasonable ordering of persons in political community through law and legal institutions, and of proper treatment of citizens by political authority; both of which are standing requirements of justice and the natural law. Or as Professor Vermeule puts it, the classical tradition incorporates a “subset of political morality within law, namely the subset bearing on the virtues of general justice and regnative prudence, of which the common good is the object”[6] and “settlement or coordination of social disputes and rational governance”[7] the central means. Principles of ius concern the “art or craft of practical reasoning about legal justice that takes into account distinctive considerations arising from the institutional embodiment of the legal system.”[8]
As John Finnis outlines, these basic precepts include moral absolutes central to a just and basically well-ordered polity like prohibitions on “intentional killing, intentional injury to the person, deliberate deception for the sake of securing desired results, enslavement which treats a human person as an object or a lower rank of being than the autonomous human subject.”[9] Other examples of non-posited principles of legal justice (often found in hard cases) cited by Professor Vermeule in his recent work include: the presumption no-one will be a judge in their own cause, that those affected by a decision will be heard,[10] that no-one shall profit from their own wrong-doing,[11] that all public power will be directed to public and not private good,[12] that retroactivity (especially criminal) is not favoured in the law,[13] that legitimate expectations or reliance interests established by state action will be given consideration,[14] that no one will be punished in the absence of law,[15] that judges will defer to reasonable legislative determinations made in the public interest,[16] that rights are not absolute but ordered to the common good and objective needs of society.[17] Even judges who have lost sight of the classical legal tradition, do not tend regard appeal to such principles as akin to appealing to moral norms external to law, but as part of its fabric and critical to interpretative practice, even if their basis in posited law or social fact sources is decidedly shaky.
Ensuring harmony between lex and ius is a critical component of a sound legal practice that is ordered to the common good. Judges working within a classical legal framework will therefore strongly presume, when ascertaining the reasoned choice of the lawmaker, that they do not “wantonly violate background principles of ius and norms of reason that are constitutive of the nature of law”[18] but will attempt to harmonize lex and ius. The primary structure of judicial inquiry may be to ask what the public authority has done by ascertaining what the authority has said; but an important supplementary task is to ask whether the court faces the nonstandard case, in which the authority’s rational ordering for the common has been imperfectly captured by what the authority said, read in light of larger background principles.[19] Those tasked with administering justice according to law, like judges, are therefore “entitled and required” to treat legal propositions enacted by lawmakers as “presumptively oriented towards justice and the common good.”[20] Part of upholding these standing presumptions will involve relying upon principles of legal justice that help to determine the good the lawmaker wished to achieve, in a manner that renders the lawmaking act intelligible as a work of reason.
Hungarian constitutional law as classical law?
There are several provisions of the 2011 Hungarian Fundamental Law specifying decision rules for legal officials interpreting statutory and constitutional text. Article R) provides that the provisions of the Fundamental Law itself are to be interpreted in accordance with their purpose, the preambular principles of the constitution, and the achievements of the historical constitution. Article 28 additionally provides for the standing interpretive presumption that provisions of the Fundamental Law serve moral and economical purposes in accordance with common sense and the common good. Some of the key preambular principles include the following propositions:
- “human existence is based on human dignity”
- “individual freedom can only be complete in cooperation with others”
- “the family and the nation constitute the principal framework of our coexistence, and that our fundamental cohesive values are loyalty, faith and love”,
- “the common goal of citizens and the State is to achieve the highest possible measure of well-being, safety, order, justice and liberty”
For statutes and other types of posited law, Article 28 provides that Courts will interpret them in accordance with their purpose and consistently with the Fundamental Law. In ascertaining the purpose of a statute, consideration will be given primarily to the preamble of that law and the justification of the proposal for, or for amending, the law. As with interpreting the fundamental law, it is presumed that statutes and other laws serve moral and economical purposes which are in accordance with common sense and the public good.
It seems to me (with all the limitations that attend being an external observer) that the provisions of the Fundamental Law concerning legal interpretation can be considered a series of determinationes guiding the interpretive practice of officials in a way thatfaithfully tracks the core classical legal precepts sketched above. For a start, the basic object of both statutory and constitutional interpretation is unmistakeably classical: it is the search for the purpose, or reasoned choice, of the lawmaker in positing what they decided to posit; by reference to the justification motivating their change to the law. Equally classical is the fact that these provisions make it clear that the search for the intention of the lawmaker takes place within a rich conceptual framework comprised of several standing juridical presumptions, which are all tied to a substantive normative picture of the nature of law-making and law-making bodies.
This paints a normative picture of law-making that rejects the idea law-making is an act of sheer will but sees it as a reasoned and purposive activity concerned with securing legal justice and the rational ordering of persons, families, and communities to their common good. As Adrian Vermeule has recently written of the Hungarian Fundamental Law, its understanding of law does not regard it as the:
“mere arbitrary command of a dominus, a master, but has a fundamentally reasoned and public-regarding aim: to promote the public welfare and public goods of peace, order and justice.”
The Hungarian Fundamental Law places a strong interpretive presumption that lawmakers will not act to transcend or transgress the intrinsic limits on their authority, or the purpose for which their constitutional office is constituted. Thus, legal officials will strongly presume statutes will be consistent with the Fundamental Law, and that all types of law will be understood consistent with moral and economical purposes in accordance with common sense and the public good. This appears to me a prudent means of ensuring legal officials remain attuned to the fact that posited law, or lex, must be understood harmoniously with principles of legal justice.
In the Hungarian context, thus, principles of ius picked out by the preamble to the Fundamental Law and the interpretation clauses include acknowledgment that law is for the sake of persons and human dignity; that the family is the basic and primary unit of the community; that individual rights must be ordered to the common good; that the institutions of State exist to serve the community and promote the good of citizens; and that the purpose of lawmaking is the common good.
Lack of explicit mention of the common good: a missed opportunity?
Márton Sulyok noted earlier on this platform that explicit references to the common good are sparse in the opinions of the post-2012 Constitutional Court and concludes, somewhat gloomily, that “Hungarian constitutional jurisprudence does not provide fertile grounds for references to the common good in constitutional interpretation.” Does this lack of explicit reference to the common good in legal interpretation mean that it is implausible to suggest Hungarian public law has a strong classical flavour? I am wary of straining the bounds of my competence in tackling this question, so I restrict myself here to simply observing that a commitment to a classical legal framework certainly does not require that judges engage in extended elaboration about what the common good requires, all-things-considered.
After all, in the classical tradition it is executives, legislatures, and the People (acting as a constituent authority or voting in referendums) that properly take the lead in specifying how a particular community will respect the under-determinate principles of natural law and secure the demanding conditions of peace and justice conducive to the common good. When it comes to resolving a particular legal dispute judges can only properly have regard to the overall demands of the common good in an institutionally cabined way, because the judicial inquiry aims to resolve legal disputes by discerning the reasoned choice of the lawmaker expressed in and through the text, not to do so by their own moral choices. As Sulyok properly observes above, legal interpretation properly done “does not replace or result in lawmaking, encroaching upon the constitutionally reserved powers assigned to the legislator”.
All of which is to say that, within a classical framework, it should not be unusual at all for direct references to the common good by judges to be sparse. Rather, judicial reflection on the needs of the common good will typically happen under the radar, as it were, by faithfully discerning the choices of the lawmaker while ensuring any interpretive ambiguities or uncertainties are resolved in favour of interpretations that presume the lawmaker acts consistent with reason and human flourishing. Adhering to such juridical presumptions will therefore, at the same time, inevitably indirectly and implicitly invite judicial reflection on the ends and goods the lawmaker wished to achieve for the common good, and press judges to correctly grasp what types of ends would make a given interpretation of an ordinance rational or irrational, or consistent with human flourishing or not.
Thus, if a Hungarian judge opts for interpretation A over interpretation B in a given case because they have concluded the latter would lead to an unjust or irrational result the lawmaker could not possibly have intended – perhaps because it would be immoral or lacking in common sense – then they will have been implicitly reflecting on the requirements of the common good in their own limited way, even if they do not explicitly invoke the term.
If I have sketched anything like a plausible account of how Hungarian legal practice proceeds, then contra my friend Professor Sulyok, it might be premature to say “Hungary is the land of (missed) opportunities” for developing a framework with concern for the common good at the heart of legal interpretation. That, at least, is the optimistic hope of this interested observer.
Conor Casey, Associate Professor, University of Surrey School of Law
[1] Thomas Aquinas, Political Writings, ed. R.W. Dyson (Cambridge: Cambridge University Press, 2002),148-149; 200-201.
[2] Adrian Vermeule, Common Good Constitutionalism (Polity, 2022) 74, 83.
[3] Id., 83.
[4] Thomas Aquinas, Summa Theologiae, Ia-IIae, q. 90, art. 4, Great Books of the Western World: Volume 18, ed. Mortimer J. Adler (Chicago: Encyclopedia Britannica, 1990).
[5] Adrian Vermeule, ‘Enriching Legal Theory’, (November 2022), Ius & Iustitium, https://iusetiustitium.com/enriching-legal-theory/.
[6] Adrian Vermeule, ‘The Common Good as a Universal Framework’, (July 2022), Balkinization, https://balkin.blogspot.com/2022/07/the-common-good-as-universal-framework.html.
[7] Adrian Vermeule, ‘Common Good as a Legal Concept’ (November 2022) Ius and Iustitium, https://iusetiustitium.com/the-common-good-as-a-legal-concept/#:~:text=%E2%80%9CThe%20common%20good%E2%80%9D%20in%20the,is%20an%20absolutely%20ubiquitous%20concept..
[8] Id.
[9] John Finnis, “Natural Law and Legal Reasoning,” Cleveland State Law Review 38 (1990) 11.
[10] Vermeule, Common Good Constitutionalism, 153.
[11] Id., 81.
[12] Adrian Vermeule, ‘The Original Scalia’ (2023) 2 Harvard Journal of Law & Public Policy: Per Curiam 1, 8.
[13] Adrian Vermeule, ‘The Theory and Practice of Common Good Constitutionalism’ (August 2022), https://iusetiustitium.com/the-theory-and-practice-of-common-good-constitutionalism/.
[14] Cass Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State (HUP, 2021) 76-77.
[15] Vermeule, Common Good Constitutionalism, 83.
[16] Id., 61-4.
[17] Id., 164-6.
[18] Conor Casey & Adrian Vermeule, ‘Myths of Common Good’ (2022) 45 Harvard Journal of Law & public Policy 103, 124.
[19] Vermeule, Common Good Constitutionalism, 83.
[20] Gratian, Decretum: Treatise on Laws, with Ordinary Gloss, trans by Augustine Thompson O.P. & James Gordley (1993) 33; John Finnis, “Priority of Persons,” Intention and Identity: Collected Essays Volume II (Oxford University Press, 2011) 27.
Conor CASEY, Associate Professor, University of Surrey School of Law, a non-practising barrister in Ireland since 2020, specialising in administrative law, constitutional law, and legal theory. Co-author of the Irish Human Rights & Equality Commission Report on Irish State response to the COVID-19 crisis. His work has been cited by the United States Court of Appeals for the Third Circuit. Dr. Casey regularly comments on legal matters in public forums.
by admin | May 9, 2023 | General, Rule of Law, USA
At times, European constitutional discourse contributes to American discussions about the administrative state and looks at the work of independent agencies and similar institutions. Offering an American point of view of this field inspired by European institutions is not only relevant to European constitutional discourse, but useful in addressing many of the issues Europe is expected to tackle in the future. This piece serves to start a conversation on the topic of independent regulatory agencies, and an argument for why they should be led by commissions, multipartisan in nature, but with a majority and chair in alignment with the current government.
The independent agency (in general) is the most significant alternative method of conducting executive activities in a government, standing in distinction to an “ordinary” hierarchy of agents reaching back to the chief executive. Unlike the chief executive elected by the people and thereby holding democratic legitimacy, an independent agency is generally led by officials who are appointed. Indeed, the independent agency generally has plural officials, not a singular head, and this plurality must now be considered a constitutional requirement (in America) under the Supreme Court’s ruling in Seila Law.[1] Moreover, it is commonly (although not universally) the case that the board, commission, or other plural leadership group is comprised of members from multiple political parties. Some members, notably, will share partisan affiliation with the chief executive in charge, and some will not; in certain circumstances, the agency may find itself for a time still in control of the opposition or deadlocked between the parties. Finally, it is common to speak more precisely of independent regulatory agencies, because this is most typical task assigned to the independent agency – that of crafting rules of general effect at a level nominally below that of legislation yet with the same legal force and often with even greater impact.
None of the elements of this suite of features is, I would argue, accidental – they cohere together in that the structure of the organizational model chosen matches its core intended quasi-legislative function. But the independent regulatory agency is an institution that arose outside of the letter of the Constitution, and sits uneasily within it. Its very name bespeaks its paradoxes. It is “independent,” but of whom? If it is of the Chief Executive, for whom then it is an agency? This presents a key problem of legitimacy, because it is the President who is elected and therefore any independence from the electorate – even at one remove – takes away the imprimatur of the people’s consent from the agency. The election of the executive is tied to the people’s choice of a plan and agenda; but his or her plan (and thus their choice) is fatally compromised by the presence of an executive element outside presidential control. Presidentialists who support the unitary executive theory consider the division of authority created by independence flatly unconstitutional.[2] Under this theory, moreover, it seems particularly puzzling (and constitutionally dubious) that a newly-elected chief executive must govern through members of an opposition party the voters have just rejected, through semi-autonomous commissions led in part by political opponents, now purportedly his or her subordinates.[3]
Perhaps less commented upon – simply because it has so long been acceded to – is the ambiguous functional role of the independent regulatory agency. From a practical point of view, the broad, consequential rules developed by any executive agency, backed by force of law, constitute the functional equivalent of legislation and therefore compete with (if not actually usurp) the role of a legislature.[4] The typical hierarchical rules-issuing executive agency, with its single head and single-party leadership is, in structural form quite distinct from the form almost universally expected of a legislature, which normally and normatively consists of a plural body representing different interests and viewpoints. The independent regulatory agency, for all its flaws, however, more closely resembles in design a ‘miniature legislature’. Once this is recognized as representing a valid if undertheorized intuition about the kind of institution best suited to make rules (rather than simply execute them), the constitutional tension created by housing quasi-legislative activity within the executive provides a key insight into how to reconceive and thus resolve several of the puzzles about the independent agency as an institutional form.
Especially since the New Deal, there has been a long struggle over the proper constitutional role for the legislative power exerted by the Executive Branch, and especially by the President. The debate over the independent agencies is an important part, but only a part, of an extended process of controversy and compromise, and attempts by our institutions to reconcile the demands on a modern national government for creative action and adaptation with a constitution that contemplated almost no legislative authority for the executive. In particular, it has been the role of the Supreme Court, as the arbiter between legislature and executive, to put some restraints on the tendency of Presidents to act in place of, in lieu of, or in even in spite of Congressional action which could accomplish the same aims. As Justice Jackson put it:
With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.[5]
The independent agencies, although in effect making law within the Executive, at their best can preserve what Jackson thought essential to free government, aspects of parliamentary deliberation in their legislative rulemaking. Here, I briefly outline a normative theory that extends the analogy to parliamentary systems and suggests a single reform to the independent agency which can address the most salient concerns about being forced to use partisan opponents as agents, and about the discoordination of executive plans raised by advocates of the unitary executive.
An actual Westminster-style parliament successfully blends the legislative and executive functions, although not without tensions and complexities in the field of ‘fusion of powers’.[6] At the most basic level, this is accomplished by “the government” – that is to say, the executive power – coming into being and deriving its legitimate authority from its command of a working majority in the legislature. In Britain, for example, when a new majority takes legislative power in the House of Commons, select members of this majority take subsidiary Cabinet roles as principal officers at the heads of the executive departments, with one becoming Prime Minister or chief executive.[7] To state the obvious, this tight connection provides coordination between the executive and legislative policy agenda, and assures that the terms of office and partisan alignment of these two functions will match.
The Founding era naturally was familiar with parliamentary systems – more familiar, indeed, than with the system of separated and interlocking powers that they were creating.[8] For a variety of reasons, the constitutional convention ended up rejecting a parliamentary system (in the form of a president appointed by the congressional majority), although the question was a much closer one than is commonly understood.[9] But since that time, the growth of the administrative state has to some extent created a convergence at the functional level. For matters within the jurisdictions of the bipartisan, multimember independent agencies, quasi-legislative activities take place within the executive through what are structurally quasi-legislatures. These need a level of autonomy in their decisions, but ideally should be in general coordination with the President having legitimate constitutional authority over all executive branch officials, and with the policy program the electorate has empowered him or her to enact.
The British executive establishment and the Prime Minister in particular derives authority from the Parliament elected by the people. Under a similar rationale, but flowing in the opposite direction, the quasi-legislatures of the independent regulatory agencies can be perceived as deriving their authority from the President elected by the people. In effect, the ideal regulatory commission is a kind of “reverse parliament” – a legislature (albeit one with a delimited scope) which comes into being when an executive comes into power.[10] A key implication of this theoretical reconstruction of the independent commission is that, like the British Cabinet, it should reflect the democratic choices embodied in the elected institution from which it derives its authority, although that authority can remain distinct.
From this follows logically an acceptance of the most fundamental argument against opposition party members: that a President should not have to depend on the political opposition to carry out the activities within the Executive Branch. This does not imply a requirement that everyone other than a member of the President’s party should be purged from leadership of an independent agency. However, both the administrative capacity of the President and his constitutional ability to assure faithful execution reach a key inflection point when he or she commands a majority of the commission in question. Moreover, this alignment is what creates democratic legitimacy for the commission’s authority and autonomy, tying its exercise of governmental powers back to the choice of the electorate. Under the reverse parliament model, just as when in Britain a new parliamentary majority creates an executive, in the American administrative state a new executive should generate a new commission majority.
If this model were carried out, it would also address the key and most legitimate demand of presidentialists and unitary executive theorists, that a President have the facility to coordinate the activities he or she has been elected to lead, and be able to execute the program which was presumably the basis of that election. With a majority in place at or near the time the new President comes into office, it becomes possible for the President to effectively transmit his or her proposals to the relevant agencies with a reasonable expectation of them being considered and implemented in conjunction with the rest of the Executive Branch. He or she should not be compelled to wait for years for action based on the adventitious expiration of fixed terms or fortunate resignations. The presidential program would be subject to debate within the commissions, because they would maintain bipartisan membership, and would benefit from the expertise derived from continuity of members’ service, because only members sufficient to form a majority (usually just one) would need be replaced. But a proposal would not be dead on arrival due to overlapping officer terms that have little constitutional weight, and which only serve to exacerbate the constitutional tensions inherent in the independent agency system.
The most efficient way to put the reverse parliament theory into practice is to tie the terms of commission chairmen – but not commission members generally – to Presidential terms, or else make chairs (and only them) removable at will. For some agencies, courts may be able to judicially interpret provisions allowing Presidential selection of the chair to achieve this effect,[11] especially where the statute does not have explicit protection for agency leadership and the “independence” of the agency is based on judicial inference (usually derived from the presence of a bipartisan commission structure). Creating a new background norm of the relations between agencies and Presidents would alter what the Court has until now taken to be the implication from the organizational commission form, at least with regard to the chairs of commissions. The result would be that the judiciary would cease to assume any removal protection or independence for chairs, once a change in the partisan control of the executive branch occurs. The better solution, however, required in many circumstances and more appropriate in all, would be for Congress to pass a straightforward law that aligns the terms of office for commission chairman with the date of the presidential inauguration, putting in place a rule applicable across all the independent agencies.
Note that this does not change the presence or validity of the only-for-cause removal restriction, as such, for any independent agency director, including the chairs. Once appointed, chairs would possess protection, but their term and thus appointment are tied back to the presidential authority. Once their term expires, chairs could continue to serve until replaced (for continuity or to assist during periods of presidential transition). But they would enter into what is called “holdover” status, and become removable even if they had possessed removal protection while serving their term.[12] Knowing this, many chairs likely would resign, but if they refused to do so, they could be legally removed without demonstrating the removal need be one undertaken for cause. As a consequence, new Presidents could have the opportunity to select leadership at the time they are forming their government in general, and avoid the delays and policy asynchrony that should trouble advocates of a strong and responsible executive.
At the same time, this proposal, and the model from which it derives, conserves the core features of the independent agency as it has developed in American law, and permits it to continue as a second-best accommodation to the growth of the administrative state and executive legislation. Under this clarified, limited, and electorally responsive structure, achievable by only minor adjustments to the way most independent agencies are already structured and operate, the long controversy over removability of directors may begin to lessen, and the independent agency can attain a more secure footing in the constitutional order.
Charles N. W. Keckler is a graduate of Harvard College, where he was elected to Phi Beta Kappa and received his B.A. in Anthropology, magna cum laude. He went on to receive his M.A. in Anthropology, and his J.D., from the University of Michigan. He has served, during two presidential administrations, in several senior appointed positions in the U.S. Department of Health and Human Services, including Senior Advisor to the Secretary and Acting Deputy Secretary, and from 2017-2020, led the Department’s award-winning transformation initiative, ReImagine HHS. Between his periods at HHS, he was twice confirmed by the Senate as a minority party member of the Board of Directors of the Legal Services Corporation. His academic experience has included teaching courses in various disciplines at Harvard, the University of Michigan, the University of New Mexico, Northwestern, Pennsylvania State University, Washington & Lee, and George Mason University.
[1] See e.g. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ____ (2020), 2. („leadership by a single individual […] violates the separation of powers.”)
[2] See, e.g., Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 Minn. L. Rev. 1696, 1697 (2009); Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1244 (2013).
[3] Ronald J., Krotoszynski Jr., Johnjerica Hodge, and Wesley W. Wintermyer,
Partisan Balance Requirements in the Age of New Formalism, 90 Notre Dame L. Rev. 940, 949-50 (2015). See also id. at 998 (“Although the Constitution contemplates a system of checks and balances in the federal government, mandatory partisan balance requirements clearly create significant tension with the unitary executive created in Article II, Section 1 of the Constitution.”). Cf. Charles N. W. Keckler, I’m Unconstitutional: Another Dubious Restriction on the Power to Remove, 20 Green Bag 2d 175, 178 (2017) (providing a justification for opposition-party members as an institutional source of alternative analysis).
[4] Stephanie P. Newbold & David H. Rosenbloom, Critical Reflections on Hamiltonian Perspectives on Rule-Making and Legislative Proposal Initiatives by the Chief Executive, 67 Public Admin. Rev. 1049, 1053 (2007).
[5] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 (1952) (Jackson, J., concurring);
[6] See Matthew Flinders, Shifting the Balance? Parliament, the Executive and the British Constitution, 50 Political Studies, 23, 26 (2002) (discussing multiple approaches to the legislative-executive in Britain, all leading to a doctrine of parliamentary sovereignty).
[7] Members of the House of Lords can also join the executive as members of the government, and a number of sub-Cabinet officials (“junior ministers”) are also appointed from the majority and given executive responsibilities. These details and the additional nuances are not critical to the theoretical points developed here, however.
[8] F. H. Buckley, The Efficient Secret: How America Nearly Adopted a Parliamentary
System, and Why It Should Have Done So, 1 Brit. J. Am. Legal Stud. 349, 366 (2012).
[9] See id., at 80-83 (discussing how supporters of a parliamentary system compromised to accept the Electoral College).
[10] This remains only a quasi-legislature with its jurisdiction limited by the statutory delegation of authority by the real legislature, Congress, which loses none (or rather, no more) of its authority under this theory.
[11]See Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 796 (2013) (“Chairs are typically seen as a presidential proxy because they usually hold their position as chair (but not as members of the agency) at the will of the President.”)
[12]See Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) (member of National Credit Union Administration was removable without cause after expiration of his statutory term, although still serving under provision that allowed holding office until replaced). There is not a Supreme Court precedent on this precise point, but the logic of Free Enterprise Fund would almost certainly uphold Swan and extend it. See Keckler, supra n. 2, at 178 n. 10.
by admin | Apr 4, 2023 | European Union
One of the most basic principles of political thought is the fact that the essence of democracy, as the term’s origins reveal, entails the notion of giving the power of ruling (kratos) to the people (demos). Yet, to this day, the purest form of democracy, known as direct democracy has never existed in practice, instead, the system of indirect democracy has been adopted and applied by nation states worldwide. This should come as no surprise. As Churchill famously quoted: “democracy is the worst form of government – except for all the others that have been tried”. It would not only be impractical, but in fact impossible for a demos to vote about all issues together, as it is likely to consume most of their free time, moreover, people simply cannot be experts in all interdisciplinary matters involved in the governance of nations. To this end, in order to overcome the administrative burden of self-governance, it makes sense to elect specialised officials, who devote their time and expertise to representing citizens’ interests.
As a result, policymakers, and those in charge of governance structures have an inherent responsibility to enable citizens willing and able to devote more time to expressing their views on matters to do so, and reevaluate opportunities the implementation of which could enable a gentle shift towards the principle of direct democracy over time. With the formation and evolution of complex multi-level governance structures such as the European Union, the further away representatives are from their citizens, the less citizens are able to exert influence over the activities of their elected representatives, thus, at times, the ability of decision making on a European level to accurately reflect views and interests of the people often conveys the physical and psychological distance of Brussels from European citizens. This asymmetry of influence can result in a slow disillusionment of citizens concerning multi-level governance structures, questioning their legitimacy, and ultimately undermining their very existence long term. It is becoming increasingly clear, that while many in the European Parliament like to claim that they carry the uppermost source of democratic legitimacy, they are only using the European Parliament as a tool to expand their own powers and further their personal political agendas. But they are in a grave misunderstanding: direct source of democratic legitimacy remains within the walls of national parliaments and not the European Parliament.
Some Member States recognised the need to maximise the involvement of citizens in decision making earlier and accordingly developed innovative solutions on a national level to increasingly engage citizens in the process of policymaking. Hungary’s national consultations, a process launched in September of 2010 introduced by the freshly elected government led by Viktor Orbán sought to gather and analyze feedback from citizens on the most defining topics of contemporary Hungarian politics. The core aim of establishing National Consultations was to give a voice to people seeking to express their views on a wide variety of matters, including migration, the economy, family policy or the coronavirus. Relevant questionnaires, initially sent out by mail, later with the development of virtual infrastructure also made accessible online therefore provided a chance for millions of Hungarian citizens to voice their opinions on the most defining questions influencing their everyday lives. The National Consultations saw an unprecedented success, with millions of Hungarian citizens filling out and returning the questionnaires. This innovative institutionalisation of deliberative democracy has arguably contributed to the long lasting success of Prime Minister Viktor Orbán, intrinsically counter-weighing criticisms concerning the state of democracy and the rule of law in Hungary.
It always seemed somewhat surprising, that while EU officials were often the ones voicing loud criticisms concerning democracy and the rule of law, one of the main sources of disapproval concerning the European Union’s institutions is the claim that they are undemocratic and that their decision making or bureaucratic processes do not reflect the will of European citizens. Many continue to argue that the structure of the European Union is in fact overly static, failing to make use of technological developments, and as a result, there remains a lack of democracy and transparency in the decision-making process, which results in a constant democratic deficit. To this end, it is clear that EU institutions have an important task of ensuring they practice what they preach, and continue to look for solutions that help take into account interests and concerns of citizens more efficiently in relevant matters.
Technological development and the information revolution have evidently opened up new channels of quick and efficient communication. Giving the economy a new impetus to provide better products and more targeted marketing campaigns to consumers worldwide, similarly, it has provided politicians with an array of opportunities to reach out to and engage with their constituents, and better understand their needs in order to make more informed policy decisions. Nation state governments, with more citizen-centric governance structures were willing and able to implement solutions overtime to enhance the quality of democracy. Their example should also provide a key source of inspiration to leading officials of multi-level governance structures to strengthen the legitimacy of their functioning in the long run, delivering policy solutions that increasingly reflect the views and interests of European citizens. As Prime Minister Viktor Orbán has stressed, while in Hungary, National Consultations have been organised in order to reinforce the government’s family policy, “in Western Europe and Brussels no one ever asked the people about LGBTQ propaganda or migration”. While the EU is the world’s largest single market and the source of a wide variety of laws, it still has room for improvement regarding one key component to make it truly democratic: direct representation from European citizens themselves.
In recent years, the EU has indeed been facing numerous challenges that tested its democratic credentials. With a growing sense of disillusionment, European leaders saw that new steps needed to be taken to ensure that democracy remains an integral part of the European Union’s identity. Launched in May 2020, the Conference on the Future of Europe was a unique, unprecedented scale initiative launched by the European Commission to bring together citizens, civil society, and political leaders from across the EU to discuss and shape the future of Europe’s continent. With the use of a digital platform, it finally gave European citizens an opportunity to express their views on a variety of topics directly, by uploading opinions, ideas, and conference conclusions, starting a seemingly inclusive international dialogue about some of the most future defining topics of the 21st century.
In contrast with claims made by some EU officials accusing Hungarians of being eurosceptic, Hungary was one of the most active participants in the Conference on the Future of Europe, even advocating for an expansion of the Union. While Hungary’s Prime Minister was amongst the first to share his vision on the future of Europe, published in the form of seven theses, Hungarians organised and uploaded conclusions of hundreds of local conferences, quickly putting the country on the map of the most engaged Member States in the dialogue. Citizens truly believed that with their active participation and commitment, they would finally be able to tip the scale towards a European Union favouring voluntary cooperation between sovereign nations, as opposed to a federal European empire disregarding its diverse historic and cultural heritage.
While Hungarian citizens believed in the opportunity of change through sincere dialogue, hopes of technology paving the way to a more democratic European Union quickly faded. At the end of the day, it was revealed that the pan-European consultation was merely a tool to legitimise a pre-written script of the federalist elite, and that the initiative was not in fact aimed at gaining a true insight into citizens’ opinions, but instead, an instrument seeking to reinforce EU leaders’ own ideology, which placed a federal, nationless Europe at its core. At the end of the day, Hungarian citizens’ views failed to make it to the final conclusions of the conference, despite their unprecedented collective efforts to make their voice heard. Once again, instead of the principle of democracy, the discriminating issue of double standards prevailed. No wonder that eventually, fears arose that European integration has become an end per se, with elites seeking to create a federal empire, ultimately dissolving the very Member States that contributed to their rise.
Perhaps the most important lesson of the Conference on the Future of Europe is the fact that while democratic innovations can indeed pave the way to creating more democratic governance structures, in essence, technology is only a tool, and the outcome of a tool’s use fundamentally depends on the intention of the actor able to exert control over it. As history has often revealed, technology can be both constructive and destructive, and the results very much depend on the context in which technology is applied. If the intention of a tool’s owner is to enhance the quality of democracy using a bottom-up approach, as it proved to be in the case of Hungary’s National Consultations, it can achieve promising results long term, which in exchange will usually assure the success of those in charge with good intentions. On the other hand, a tool in the hands of an ideologically motivated elite can also be used in an attempt to further ideological goals top-down. After all, there is little doubt that federalist elites will sooner or later be faced with an exponential disillusionment of European citizens, as the contrast between their utopia and European citizens’ everyday reality further diverges. One thing is certain: Europe is in urgent need of a sincere, in-depth reality check.
Dr. Boglárka Bólya graduated summa cum laude from the Faculty of Law and Political Sciences at Pázmány Péter Catholic University. Later she studied European Studies at the University of Nice and obtained a Master’s degree in European Law in Brussels, ULB. She started her career as a paralegal, then she began working at the State Secretariat for European Union Affairs of the Ministry of Foreign Affairs. From 2003 to 2019, she worked in the European Parliament, first as a political adviser int the European People’s Party and then as a legal adviser to the EPP, and finally as Head of Unit for Legal and Home Affairs. She continued her career as legal adviser to the President of the European Parliament, Antonio Tajani, from 2017 to 2019. During the Hungarian EU Presidency in 2011, she chaired the Council working group on the drafting of the Treaty of Accession of Croatia to the European Union. From 2019, she was Deputy State Secretary for European Union Relations at the Ministry of Justice and then Chief Political Adviser to the State Secretary for European Union Affairs. Currently, she is working on the preparation of the Hungarian EU Presidency in 2024 as Ministerial Commissioner. She speaks English, Spanish, French and German and understands Italian. She is married and has 3 children.
