Institutions protecting constitutional democracy: Some conceptual and methodological preliminaries

This article talks about the relationship of the National Assembly with the executive and judicial powers. The author came to the conclusion that under the parliamentary model, the functions performed by the state authorities are actually not equal in nature and differ from each other in legal force and content, that is, the activities of the legislative branch are of a legislative nature, and the judicial and executive authorities are of a sub-legislative nature. The article also emphasizes the idea that the legislative branch has so-called “functional superiority” over other branches of government, which in itself should not be considered as a violation of the constitutional balance between the legislative, executive and judicial branches of government. Because the essence of the principle of separation and balancing of powers is not to preserve equal functions for the branches of government, which, due to the nature of the functions of the branches of government, are no longer equal, but to ensure the necessary and sufficient powers of each branch of government.Addressing the issue that one of the central issues in the relationship between the branches of legislative and executive power is parliamentary control over the executive power, and emphasizing that in such conditions it is necessary to ensure effective mechanisms to curb the dominance of the executive power (Prime Minister) becomes of key importance, the author as a political guarantee of the implementation of high-quality control in relation to the executive branch, it takes into account the presence of a strong parliamentary opposition, because the main criterion for creating an opposition is not power, law, but the limitation of power by law.

Ghana’s Constitution has long emphasised the importance of equality, democracy, human rights and development. These principles are entrenched in a separation of powers framework that includes independent constitutional bodies that operate semi-autonomously from the tripartite executive, legislative and judicial branches. As part of a symposium on so-called ‘fourth branch’ institutions that provide redress for poverty and inequality, this article explores two institutions: the Commission on Human Rights and Administrative Justice and the National Development Planning Commission. The first is a 30-year-old national human rights institution, which monitors and investigates alleged violations of human rights, corruption and the misappropriation of public moneys, and provides redress, partly through its increasing focus on economic and social rights and the claims of the most vulnerable, including women, children and persons with disabilities. The second, currently executive body, is the subject of current calls for constitutional reform in Ghana. These reforms would entrench national development planning to enhance features of autonomy, technical capacity and partisan independence. As such, these proposals offer a distinctive and yet also paradigm-defying model of fourth branch arrangements in developmental constitutionalism, raising questions about the usurpation of policymaking and the deficits of democracy that are commonly raised against courts, international financial institutions or other international economic arrangements.

The objective of the article was to investigate the contributions of the information platforms of the branches of governments of Brazilian states to build passive transparency. A descriptive study was carried out, through documentary research, with a predominantly qualitative approach. The object of investigation comprises the executive, legislative and judicial branches of governments of Brazilian states. The data were collected in February 2017 using the structured observation technique, through a protocol for recording information. The data obtained were analyzed using the descriptive analysis technique. The indicators for evaluation of the platforms were ‘communication’, ‘login and receipts’ and ‘barriers’, and they presented different configurations in each of the branches. In terms of ‘communication’ and ‘login and receipts’, in general, the state executive branch received better scores compared to the judiciary and legislative branches. On the other hand, the indicator ‘barriers’, was better evaluated in the judiciary and legislative branches. From the results obtained, it is not yet possible to confirm whether the platforms of the executive, judicial and legislative branches of the Brazilian states contribute to build passive transparency.

Accessible information is an essential resource for equal, meaningful participation in the public life of a democratic society. Such information is particularly vital for the effective functioning of all three branches of government in our constitutional democracy: the administrative branch, which creates government policy and holds state actors accountable to the public; the legislative branch, which scrutinizes old and creates new legislation; and the judicial branch, which reviews the acts of the legislative and executive branches. For the law-reform processes of each branch to effectively foster the informed creation and critique of public law and policy, we require reliable, accessible data depicting the diversity of individuals who make up the broader Canadian public.Beyond this practical purpose, accessible information plays an expressive role as it constitutes a particular notion of the Canadian public. The data created by national population censuses and assembled in welfare reports has the power to “nominat[e] into existence” certain groups of people and, conversely, to “refus[e] to name” others. Such information not only represents the public, it also creates the public, as it stands in for the public at all levels of government. By communicating who we are as a society and how we are changing, census information and welfare reports shape our understanding of ourselves — our laws, policies, government, and place in the world.

Twenty-five years ago, students of the American presidency were confronted with the idea that the chief executive had overstepped the reasonable limits of power and was in danger of becoming imperial. Historian and presidential biographer Arthur M. Schlesinger Jr. wrote the Imperial Presidency(1) to trace the rise and development of presidential power, to identify where and when executive power had grown into executive dominance, and to warn of the consequences of an out-of-control presidency for the American republic. The idea caught on, and the word itself has become common in contemporary political discourse.(2) However, in the early 1970s, Professor Schlesinger was not seeking to sketch out a broad-based indictment of the presidency. Rather, he identified a specific area of concern, the constitutional allocation of power between the legislative and executive branches with attention to matters surrounding the use of military force in foreign settings. The foreword states, This book does not deal systematically with all facets and issues of presidential power.... It deals essentially with the shift in the constitutional balance--with, that is, the appropriation by the Presidency, and particularly by the contemporary Presidency, of powers reserved by the Constitution and by long historical practice to Congress. ... the imperial Presidency received its decisive impetus, I believe, from foreign policy; above all, from the capture by the President of the most vital of national decisions, the decision to go to war.(3) What brought about the fear of an imperial presidency in the early 1970s? The constitutional balance of power, especially the war power, had tilted in favor of the president. Traditional constitutional assumptions based on shared powers and collective judgment had given way as the political and structural conditions on which they were based were altered. The latter half of this century saw the rise of the United States to superpower status, the concomitant need for permanent standing armies (with American troops permanently based on foreign soil), and the development of technologically sophisticated weapons of mass destruction that reduced the war decision to a matter of minutes rather than days or weeks. Professor Schlesinger feared that these changed conditions had helped push the war power fully and exclusively into the hands of a single individual--a form of tyranny that the founders vigorously debated and sought to avoid.(4) A president that could order military troops and weaponry around the globe without fear of being held accountable by a coequal branch of government was a president who had become imperial. A quarter of a century later, the claims of unchecked presidential power in matters of war remain. Political and military conflicts in Lebanon, the Mediterranean Sea, Grenada, Kuwait, Somalia, Ethiopia, and Bosnia have placed the conflict between the executive and legislative branches and the problem of war powers into bold relief. The constitutional balance has not been addressed in a conclusive and satisfying way. Many observers conclude that we are left with a president imperial by default in that the key issue left unresolved by the Philadelphia Convention of 1787, that of the allocation of the war-making power, remains unclear and unanswered. This article is not meant to be another review of the Imperial Presidency. However, twenty-five years later, the language, approach, and interpretive assumptions used in that work continue to provide a basis for analyses and evaluations of presidential initiatives abroad. The Imperial Presidency was published just as this country confronted an oil crisis, the end of the Nixon presidency; and the less-than-satisfying final chapter of the Vietnam War. The book remains an important signpost from that era, and its author himself remains widely read and respected today. …

Introduction At Commonwealth, State and Territory levels in Australia, the judiciary is a branch of government separate from the legislative and executive branches and independent of them. The functions of the courts also differ from those of the other branches of government. While courts have a capacity to shape the law, it is a limited capacity. The principal function of courts is, of course, to adjudicate disputes according to the law. Judges cannot develop the law except in the course of an adjudication, and then only in an incremental fashion. The judicial branches of government are separate from the other branches in the sense that their members cannot be members of the legislature, and, subject to a few exceptions, judges cannot act as agents of the executive branch. The judicial branches can be regarded as independent of the other branches so long as their members are assured that they are able to exercise the judicial function free from interference by either a legislature or an executive, and also that they cannot be prejudiced by other branches simply on account of their decisions.

1. Elissa Passiment, EdM CLS(NCA)[⇑][1] 1. is Executive Vice President of the American Society for Clinical Laboratory Science 1. Address for correspondence: Elissa Passiment EdM CLS(NCA), American Society for Clinical Laboratory Science, 6701 Democracy Boulevard, Suite 300, Bethesda MD 20817. (301) 657-2768, (301) 657-2909 (fax). ElissaP{at}ascls.org Passing legislation in Congress is only the beginning of law-making. Crafting of rules and regulations turns ideas into actual, enforceable laws. Rules and regulations can be thought of as the operator's manual for laws and have the full force of law. Two laws, the Administrative Procedures Act (APA) and the Negotiated Rulemaking Act (“neg reg”) control the writing of rules and regulations.1 The APA defines rules and regulations as statements from federal agencies that “regulate the future conduct of either groups of persons or a single person” and “implement, interpret or prescribe law or policy”.2 They are written by executive branch agency staff, not by members of Congress. The Negotiated Rulemaking Act of 1990 describes a voluntary process that brings interested parties and government together to negotiate the language of a regulation. The committee is chartered under the Federal Advisory Committee Act (FACA) and consists of representatives from groups that will be affected by the regulation such as the public sector, public interest groups, industry and practitioners, or individuals. THE EXECUTIVE BRANCH The structure of the federal government in the United States is divided into the executive branch, legislative branch, and judicial branch. Each is autonomous and has agencies and commissions that deal with the day-to-day business of government. The agencies of the executive branch are in departments created with the consent of Congress (Table 1).3 Each department is administered by a secretary who serves at the designation of the President and must be approved by Congress.4 Each department is… ABBREVIATIONS: APA = Administrative Procedures Act; APC = ambulatory payment classifications; CBER = Center for Biological Evaluation and Research; CDC = Centers for Disease Control and Prevention; CMS = Centers for Medicare and Medicaid Services; CLIA '88 = Clinical Laboratory Improvement Amendments of 1988; CFR = Code of Federal Regulations; DRG = diagnosis-related groups; FACA = Federal Advisory Committee Act; FDA = Food and Drug Administration; HHS = Department of Health and Human Services; OIVD = Offce of In Vitro Diagnostics Device Evaluation [1]: #corresp-1

When delegates discussed the structure of the presidency at the Constitutional Convention in June 1787, serious objections to a unitary executive were raised. Edmund Randolph warned, for example, that a one-person presidency would become the “foetus of monarchy.” Controversy over the idea of a single president was predictable. Only recently had the framers freed themselves from the tyranny of King George III, and they were firmly committed to creating a new government that would not abuse its powers and oppress its citizens. It must have seemed preposterous to replace a hereditary monarch with an elected monarch.To be sure, the framers invoked important arguments for a unitary executive. While Congress would deliberate, the president would act with decisiveness and dispatch. A single president would bring order and energy to the national government. With the passage of time, however, it has become clear that the founding fathers misjudged the consequences of their choice:They did not anticipate the extent to which executive power would expand and give us an “imperial presidency” that dominates Congress and that too often exercises its authority in ways that are detrimental to the national interest. They did not predict the role that political parties would come to play and how battles to capture the White House would greatly aggravate partisan conflict. They did not recognize that single presidents would represent party ideology much more than the overall public good. And they misjudged the advantages and disadvantages of single versus multiple decision makers.Had the framers been able to predict the future, they would have been far less enamored with the idea of a unitary executive and far more receptive to the alternative proposals for a plural executive that they rejected. Like their counterparts in Europe, they might well have created an executive branch in which power is shared among multiple persons from multiple political parties.If the presidency is to fulfill the founding fathers’ vision and function more effectively, it needs to be reconceived. This need for constitutional change led me to the proposal for reform that I consider in this book — the replacement of the one-person, one-party presidency with a two-person, two-party presidency.A coalition presidency carries the potential for many important benefits — a balancing of power between the executive and legislative branches, a dampening of partisan conflict in Washington, an executive branch more representative of the entire electorate, real opportunities for third-party candidates to win election, and wiser presidential decision making.After more than two hundred years with the Constitution’s one-person presidency, it may seem preposterous to suggest a plural executive. But a coalition presidency would be far more faithful to the framers’ view of executive power. They wanted a president with limited authority who would serve as a co-equal with Congress. They also believed that power should be contained by dividing it and requiring it to be shared. A two-person presidency relies on the framers’ structural devices to promote their core values. And by correcting the dysfunction in Washington and making the executive branch operate more effectively, a two-person, bipartisan presidency can be justified even without reference to original intent.

Executive Branch, Government

The U.S. Constitution requires the President to submit Supreme Court nominees to the Senate for its advice and consent. The appointment of a Supreme Court Justice is an event of major significance in American politics. Since the early 20th century, Presidents have submitted 62 nominations for the Court, including those for the post of Chief Justice. Of this total, 55 were confirmed (seven declined to serve). The article dissects the crucial constitutional disputes between the executive and legislative branches of government from the Eisenhower administration to the end of the Clinton administration, and examines the day-to-day working relations between the President and Congress, which go beyond the traditional discussions of Supreme Court decisions. The article analyzes the conflicts between the President and Congress in the field of shared power – nomination and confirmation of the Supreme Court Justices in the Senate. The research is based on historical and statistical data on the Supreme Court: its institutional development; decision trends; background, nomination; its relations with public, governmental, and other judicial bodies; and its influence. A special place in the article is given to the analysis of the policies of the Nixon, Reagan and Clinton administrations.

The judicial branch of government is fundamentally distinct from the executive and legislative branches. Legal norms governing judicial proceedings strictly limit external influence on the courts’ decision-making process. Courts operate independently from other state bodies, are shielded from external interference, and function within a framework meticulously regulated by law. However, in practice, it is challenging to confine judicial proceedings entirely to a professional legal framework or eliminate all potential social influences on the process. The quality of a judiciary is a crucial indicator of the level of democracy within a state. Only a democratic state can establish the necessary conditions to build a self-governing and socially responsible judiciary that enables active public participation in the administration of justice. Such a state must ensure equal and unrestricted access to justice, maintain order in judicial proceedings, and guarantee that every participant can exercise their legal rights. A democratic society thrives on shared responsibility for the effective functioning of the state. By engaging in public governance processes, citizens contribute to the strengthening of democratic institutions, the protection of human rights, and the promotion of collective well-being. This article examines key legal and ethical aspects of the relationship between the judiciary and the public in democratic states. Particular emphasis is placed on analyzing the limitations imposed by the state to balance transparency with the protection of participants’ rights during judicial proceedings. Public participation must adhere to order and defined boundaries. This principle is embraced by most modern democratic states, where laws outline not only the rights but also the obligations of citizens observing court proceedings. By doing so, these laws establish a legal framework that regulates public involvement in the judiciary’s functioning. This article offers an original classification of the legal boundaries for public participation in the judiciary.

Agency Motivations in Exercising Discretion

The article presents the results from the study that aimed to investigate the attendance of the executive, legislative and judicial branches of Brazilian states government, towards the legal demands for availability of information to society, by means of passive transparency. The empirical object included 27 state governments, 27 legislative councils and 27 courts of justice. The research is descriptive, operationalized by a documental research, with a qualitative approach. In order to collect the data, an information request was sent to the three branches and was analyzed through the technic of documentary analysis. In the analysis of passive transparency in the Brazilian states government branches, the majority of the states presented better results in their executive branch, if compared to the judiciary or legislative. On the other hand, there have been those who seemed to face difficulties in the attendance of information demands. This detachment between imposed transparency to the governmental entities and its effective accomplishment is highlighted in literature as being a characteristic of formalism.

Political Opposition, Legislative Oversight, and the Performance of the Executive Branch

The original understanding of the Constitution, I wrote not so long ago, was forged not in the courts but in Congress and the executive branch.(1) That was true of the Federalist period, the first twelve years under the new Constitution--a time of great constitutional controversies involving such matters as the Bank of the United States, the Jay Treaty, and the Alien and Sedition Acts and of quaint and curious squabbles now largely forgotten: what call the president, whether he must accept a salary, how the vice president signs a bill. Some of these disputes sound petty, but even they helped define what kind of country the United States would be. All of them were initially, and many of them finally, fought out in the executive and legislative branches. The same was true of the years that followed, when Thomas Jefferson was president. Jefferson's inauguration was a significant victory for the new system, a peaceful transfer of power from one political party another, which at the time was not be taken for granted.(2) We are all Republicans, he said in his inaugural address, we are all Federalists.(3) It was a breath of fresh air. Jefferson's brave words, of course, did not put an end controversy. His presidency was another exciting time: the Burr conspiracy, the embargo, the war against the Barbary pirates--in which Jefferson, following Washington's example, took a refreshingly narrow view of the president's powers as commander in chief.(4) The Twelfth Amendment, designed with the simple goal of avoiding the near disaster of the 1800 election, proved be a surprising can of worms, a monument the difficulty of constitutional drafting.(5) In the great Court fight of Jefferson's first term, which rivaled that of the 1930s, judicial independence suffered grave setbacks in the repeal of the Judiciary Act and the removal of Judge Pickering, only emerge more firmly entrenched than ever after the dramatic acquittal of Justice Samuel Chase.(6) Jefferson's presidency was also a time of significant events in westward expansion: the admission of Ohio, the Louisiana Purchase, and the beginnings of the Cumberland Road. Each of these events raised fundamental constitutional questions. Each was extensively debated in Congress and in the executive branch, not in the courts. And each served as an important precedent when similar issues arose again. I. OHIO The Northwest Ordinance contemplated the creation of three five new states in the territory ceded by individual states the Union after the Revolution.(7) As soon as any of the areas defined in the Ordinance had sixty thousand free inhabitants it was be admitted statehood, and Congress was directed admit it earlier if that was consistent with the general interest of the confederacy.(8) Settlement of the Northwest was retarded, however, by hostile Indians; the first western states admitted were Kentucky and Tennessee.(9) Then Mad Anthony Wayne defeated the Indians at Fallen Timbers, Jay's Treaty dispersed their British protectors, and Thomas Pinckney's treaty opened the Mississippi western goods.(10) The population of the eastern part of the territory grew by leaps and bounds, and it was separated from the remaining portion, which was christened the Indiana Territory, in 1800.(11) By 1802 a number of its inhabitants were banging on Congress's door in search of admission the union.(12) Although the 1800 census reported that the Eastern Division had a population of only 45,365, a House committee recommended that its inhabitants be authorized to form for themselves a constitution and State government.(13) Congress obliged,(14) but not without a little bloodletting on the House floor. The problem was that not everyone in the division favored immediate statehood. Governor Arthur St. Clair did not; the territorial legislature did not; neither did the territorial delegate in Congress, Paul Fearing. …