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Government in Opposition

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Government in Opposition TH AL LAW JO RAL DAVID FONTANA Government in Opposition A B S T RA CT. In the past generation, in countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged in greater numbers, what this Article calls "government in opposition." After democratic elections are held, power to govern is granted to the winners of those elections -but substantial power to govern is also granted to the losers of those elections as well. This Article first discusses how this emerging regime of separation of powers differs from other major forms of separation of powers, and in doing so introduces a new way of understanding the major systems of separated power that the world's constitutional democracies have created. After providing some examples and illustrations of how this new, government in opposition system of separated powers operates - and why it has proven to be so consequential in so many countries - this Article discusses how government in opposition rules have much to offer constitutional designers around the world. In fragile democracies and stable democracies alike, government in opposition rules can better constrain power and stabilize the core elements of constitutional democracy, better prepare all parties to govern effectively, more fairly involve all interests in the process of governing -and can do all of this at minimal cost. To illustrate this point, this Article closes with a discussion of how government in opposition rules might work in the United States, and how they might remedy some of the current political and constitutional problems that we face. A U T H O R. Associate Professor of Law, George Washington University Law School. This Article is the first published part of a larger project, and since it is a larger project I have received feedback on the Article in many forms and in many contexts. A long but necessary list of those to thank includes Michael Abramowicz, Bruce Ackerman, Nicholas Bagley, Naomi Cahn, Kristina Daugirdas, William Eskridge, Barry Friedman, Stephen Galoob, Heather Gerken, Tom Ginsburg, Grant Harris, Paul Horwitz, Aziz Huq, Richard Hyland, Samuel Issacharoff, Vicki Jackson, Kevin Johnson, Johanna Kalb, D. Ryan Koslosky, Ethan Lieb, Sanford Levinson, Ren&e Lettow Lerner, Chip Lupu, William Marshall, Jerry Mashaw, John McGinnis, Jim Pfander, Richard Pildes, Ted Ruger, Mike Seidman, Susan Rose-Ackerman, Nicholas Rosenkranz, Jed Shugerman, Jonathan Siegel, Peter Smith, Brad Snyder, Nicholas Stephanopoulos, Mark Tushnet, Amanda Tyler, Howard Wasserman, Lorraine Weinrib, and David Zaring. I am grateful to participants in workshops or conferences at the law schools at Alabama, Georgetown, GW, Northwestern, Texas, and USC, as well as to participants in the politics departments at Emory and Princeton and to the annual Comparative Constitutional Law Roundtable at GW. Finally, thanks go to Adam Braveman and Anil Murjani, my incomparable research assistants. ARTICLE CONTENTS INTRODUCTION 550 SEPARATIONS OF POWERS: THE CONSTITUTIONAL LAW OF WINNING POLITICAL COALITIONS AND LOSING POLITICAL COALITIONS 555 A. Terminological Preliminaries: Winners' Powers and Losers' Powers 556 B. Apportioning Winners' Powers: Parliamentary and Presidential Regimes 557 II. A CONSTITUTIONAL INNOVATION: GOVERNMENT IN OPPOSITION 563 A. An Unnoticed Innovation in Constitutional Form 564 B. A Typology of the Innovation in Constitutional Form 566 C. The Forms of Government in Opposition 571 1. Legislative Government in Opposition 571 2. Executive Government in Opposition 575 3. Judicial Government in Opposition 579 III.THE NORMATIVE BENEFITS OF GOVERNMENT IN OPPOSITION RULES 581 A. The Benefits of Government in Opposition Rules 582 i. The Constructive Winner: The Illiberal Democrat and Permanent Constraint 582 2. The Constructive Loser: Legitimacy and Readiness 589 B. Concerns about Government in Opposition Rules 595 1. The Stalemate Tradeoff? 595 2. Sowing the Seeds of Destruction: The Weimar Problem 598 IV. CONSTITUTIONAL DESIGN FOR THE AMERICAN SCENE 6ol A. Problems with the American Separation of Powers 602 i. Unified Government 602 2. Majoritarian Domination 607 3. Bureaucratic Competence 61o B. Design Fundamentals 613 C. The Constitutional Considerations 618 CONCLUSION 622 THE YALE LAW JOURNAL 119:548 2009 INTRODUCTION We all remember Wednesday morning, November 5, 2008, the morning after the 2oo8 American presidential election between Republican Presidential nominee John McCain and Democratic Presidential nominee Barack Obama. President-elect Obama won a clear majority of the national popular vote, a landslide in the electoral vote, and his Democratic Party captured more seats in the House of Representatives and the Senate. But imagine if the next day, despite such a major Democratic victory, because of a constitutional or other legal obligation, Obama was required to name a Republican such as Senator Orrin Hatch as his Attorney General -putting Hatch in control of the future of judicial appointments and wiretapping programs - and Obama was required to name his former rival McCain as his new Secretary of Defense, in charge of Obama's military policy in Afghanistan and Iraq. This idea about government -of granting losing political parties the right not just to dissent from and obstruct the efforts of the winning political party, but also to exercise the power to govern as well -is an approach to government I call "government in opposition." In the past several decades, rules granting losing, minority parties the power to act like winning, majority parties -rules this Article references as government in opposition rules -have spread around the globe, infusing the fundamental law of dozens of democratic countries, including countries as diverse as Argentina, Britain, Chile, Germany, and South Africa. Such government in opposition rules helped resolve constitutional crises in post-apartheid South Africa, are at the core of the discussion about how to resolve the current political crisis in Zimbabwe, and have dominated the constitutional discussions when leaders in Afghanistan and Iraq met to draft their new constitutions. The spread of government in opposition rules as a means of dividing power among political groups is one of the most consequential innovations in constitutional design in the past several decades. Indeed, when Great Britain first experimented with government in opposition rules in the early nineteenth century, then-Harvard University President Lawrence Lowell called it "the greatest contribution of the nineteenth century to the art of government."' Yet governments in opposition rules have received almost no attention in the academic literature. In legal scholarship, there have been a few articles raising the possibility of the occasional, obscure rule that permits minorities of various 1. A. LAWRENCE LOWELL, THE GOVERNMENT OF ENGLAND 451 (1924). GOVERNMENT IN OPPOSITION sorts to exercise majority power,2 and a few articles mentioning in passing specific examples of such rules.' In the political science literature, Arend Lijphart makes an occasional, brief reference to government in opposition rules when discussing his idea of "consociationalism,"4 but devotes little attention to them, and unfortunately goes astray from government in opposition principles in important respects. But even these few and brief academic discussions of similar issues tend to focus on government in opposition rules as merely a random set of quirky, disconnected, and largely insignificant rules. There has been no discussion of how government in opposition rules-when grouped together-can form part of a deliberate, new, and alternative form of separation of powers. This Article is an exercise in comparative and American constitutional law, examining the constitutional approaches of many different countries in pursuit of the most desirable constitutional structure, both in general for all constitutional designers, and more specifically for the United States. This Article is therefore a mix of the analytical and the normative; analytical in the sense that this Article is presenting an innovative "new' s or "newer" separation of powers that has eluded the attention of scholars to this point; and normative in the sense that this Article offers a partial (albeit qualified) endorsement of the many institutional virtues of this emerging addition to separation of powers technologies, for the United States and for all other sorts of constitutional democracies. Part I will begin our exploration of government in opposition by examining how constitutions around the world and in the United States have decided to 2. See Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REv. 1385 (2008); Heather K. Gerken, Dissenting by Deciding, 57 STA'i. L. REv. 1745 (2005) [hereinafter Gerken, Dissenting by Deciding]; Heather K. Gerken, Second-Order Diversity, 118 HARv. L. REv. lO99 (2005) [hereinafter Gerken, Second-Order Diversity]; Adrian Vermeule, Submajority Rules: Forcing Accountability upon Majorities, 13 J. POL. PHIL. 74 (2005). For further discussion of these articles and their relationship to this Article, see infra Section II.A. 3. See Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029, 1051-52 (2004); Daryl J. Levinson & Richard H. Pildes, Separationof Parties, Not Powers, 119 HARv. L. REV. 2311, 2316, 2368-75 (2006). 4. See, e.g., Arend Lijphart, Consociational Democracy, 21 WORLD POL. 207 (1969) (discussing how fragmented societies divide
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