BETWEEN DOMINANCE AND SUBSERVIENCE: A COMPARATIVE STUDY OF EXECUTIVE POWER IN IRELAND, THE UNITED KINGDOM AND THE UNITED STATES CONOR CASEY TRINITY COLLEGE DUBLIN Thesis submitted for the deGree of PhD in law, 2021 i Declaration, online access and the General Data Protection ReGulation I declare that this thesis has not been submitted as an exercise for a degree at this or any other university and it is entirely my own work. I agree to deposit this thesis in the University’s open access institutional repository or allow the Library to do so on my behalf, subject to Irish Copyright Legislation and Trinity College Library conditions of use and acknowledgement. I consent to the examiner retaining a copy of the thesis beyond the examining period, should they so wish (EU GDPR May 2018). ii SUMMARY This thesis undertakes a comparative constitutional analysis of the position of the political executive in Ireland, United Kingdom, and the United States. I address three central questions. First, why has the executive become the most powerful and predominant branch of each state? Second, what does its predominant status tell us about the conceptual nature of the political executive in these, and similar, constitutional systems? Third, is the predominant status of the political executive a normatively positive or negative feature of these political systems? These questions are important by virtue of the fact the political executive is the centre of public power in the contemporary state, despite the fact historical and formal legal accounts of executive power are modest - a pale reflection of the executive’s current predominant status. Methodologically, my study takes the form of a comparison of three qualitative case-studies. I build my arguments based on inductive observations taken from a small sample of contextual and detailed case studies. A small number of highly detailed cases studies allows for a more rigorous qualitative analysis of how constitutional power is actually allocated and exercised in practice. This, in turn, allows for the building of robust narratives providing a solid explanatory foundation for both the why of executive predominance and the executive’s conceptual nature. I argue the root of executive predominance lies in each political system’s attempt to increase the ability of the state to use public power to meet the political expectations, fears, and hopes of the polity, and to promote the common good. Pressures placed on the state to meet complex social and political challenges has pressed each system to evolve its constitutional order. This evolution came in the form of a diffusion of power to the executive, based on its superior institutional capacity to use it, far outstripping other political actors. It was the executive that was bestowed, above any other branch, the daunting role of steering the polity through the complexities and dangers of contemporary government. After tracing the common forces and trends which underpin the status of the executive, I offer a conceptual account of the nature of the executive branch in each system. I argue historical conceptions of the executive as faithful executioner of the law created by representative assemblies offer an unsatisfactory account of the contemporary executive, as do accounts of the executive as kind of elected dictatorship unbound by law. Instead, I make iii the case each system has a political executive with a similar - and pronounced - conceptual tension between legal subservience on the one hand and political dominance on the other. By tying these dualities together, I offer a more analytically and descriptively accurate and helpful understanding of its conceptual nature. I suggest each system can be conceptually understood as having a ‘Constrained Primacy Model of Executive Power’, one where the executive is highly predominant in the formation and execution of domestic and foreign policy; vested with very capacious administrative, regulatory, and security powers; but genuinely constrained within the bounds of legality. Finally, I conclude with a qualified defence of the constrained primacy model of executive power. I argue adequately responding to the challenges of contemporary government can require embrace of strong executive authority, and that an enfeebled executive can leave the polity less able to use public power to secure conditions like domestic order and social justice – and a host of other goals which are closely linked to the common good. But my defence is qualified in the sense I argue a predominant executive must be accompanied by a constitutional and political culture broadly dedicated to aiming its capacity toward the common good. This is because a powerful executive is inevitably a double-edged sword. It is potentially a more efficient tool for evil purposes, as it faces less veto-points in having its bad preferences changed into public policy. As such, a combination of such a potent institution with the erosion of a political culture orientated toward the common good could easily produce toxic effects. Offering a via media between these concerns, I conclude it is normatively defensible to argue that, in political systems where the right conditions hold, it is not the mere existence of a powerful executive that should be our primary concern, but who wields this authority, where its power is directed, and why. iv ACKNOWLEDGMENTS This project has been supported by an Ussher Postgraduate Research Fellowship and a Trinity Arts & Humanities Long Room Hub Early Career Research Fellowship. Both fellowships greatly assisted completion of the project and I am grateful to the Faculty of Arts, Humanities and Social Sciences and all the staff of the Long Room Hub. Parts of chapter one were featured in the Dublin University Law Journal. Parts of chapter seven were featured in the Dublin University Law Journal and International Journal of Constitutional Law and presented at a seminar organized by the Trinity Centre for Constitutional Governance in February 2020. I extend thanks to the staff of the Law School, who have made Trinity such a welcome environment and intellectual home for me since I first arrived for undergraduate study in 2011. I owe particular thanks to Ms. Kelly McCabe for all her patience and help. For his particularly invaluable assistance, guidance, and mentorship I thank Ciarán Toland SC. I have been exceptionally fortunate in my choice of supervisor and owe a profound thanks to Dr. David Kenny. He has been endlessly patient and thoughtful in his advice and encouragement and gave generously of his time. Getting to discuss, co-author, and co- present articles of mutual intellectual interest was a particular highlight of my doctoral studies. Throughout this project, I have been lucky enough to enjoy the help and support of a loving family and great friends. Without them, I would never have been able to begin a doctorate, let alone finish one and I owe them the deepest of gratitude. To my good friend Conor Ringland, who sadly passed away in October 2018. I will never forget him or the friendship we had: Ar dheis Dé go raibh a anam. To my dear friends and PhD colleagues Roísin Costello, Dáire McCormack-George, and James Rooney: your comradeship, kindness and, humour was the best tonic to some of the more difficult times of this project. To Cira Danda for her friendship, love, support, and constant encouragement. And finally, to my family. Especially my grandparents Neil-Patrick, Joan, and Helen, my sisters Ciara and Emma and my parents, Donna and Steven. They encouraged my education unfailingly from the very beginning and I am forever grateful. Nothing I have done would ever have been possible without them and the loving home where I was raised. This thesis is dedicated to them. Ad maiorem Dei gloriam v TABLE OF CONTENTS INTRODUCTION Introduction…1 Methodology…2 Outline of Thesis…6 PART ONE: HISTORY AND THEORY OF EXECUTIVE POWER Chapter I: The Modest Executive? Historical & Theoretical ConcePtions of Executive Power…20 Executive Power in the United Kingdom…22 Executive Power in the United States…36 Executive Power in Ireland…44 Executive as a Formally Constrained Actor?...53 PART TWO: RISE OF EXECUTIVE POLICYMAKING Chapter II: The Ties That Bind: Political Parties and the Rise of Executive PolicymakinG….58 The Efficient Secret: Political Parties in the United Kingdom Constitutional Order…59 From Presider to Decider: Rise of Presidential Policymaking…73 The Power of the Whip Hand: Political Parties in the Irish Constitutional Order…80 Conclusion…98 Chapter III: Executive Enabled: The ImPact of the Administrative State on Executive Power…101 Rise of the Administrative State…103 Centralization of Control of Administrative State in the Executive…124 Conclusion…144 PART THREE: EXECUTIVE PREDOMINANCE IN ACTION Chapter IV: Our Man in Havana: ForeiGn Affairs and Executive Power…….149 Constitutional Allocation of Foreign Affairs Powers…150 Factors Driving Executive Predominance…156 Status Quo of Executive Predominance…166 vi Conclusion…179 Chapter V: Executive Unbound? The Executive and EmerGency Powers…181 Theoretical Models of Emergency Powers…183 Constitutional Emergency Powers in Each System…193 Statutory Emergency Powers in Each System….201 Factors Driving Executive Predominance over Emergency Powers…211 Conclusion…218 PART FOUR: HOW LAW CONSTRAINS AND EMPOWERS THE EXECUTIVE Chapter VI: A Modest Check on Leviathan? Judicial Controls on the Administrative State….221 Judicial review of Delegated Rulemaking…222 Judicial review of Administrative