The "Problem of Bureaucracy"

Total Page:16

File Type:pdf, Size:1020Kb

The This PDF is a selection from an out-of-print volume from the National Bureau of Economic Research Volume Title: The Federal Civil Service System and The Problem of Bureaucracy Volume Author/Editor: Ronald N. Johnson and Gary D. Libecap Volume Publisher: University of Chicago Press Volume ISBN: 0-226-40170-7 Volume URL: http://www.nber.org/books/john94-1 Publication Date: January 1994 Chapter Title: The "Problem of Bureaucracy" Chapter Author: Ronald N. Johnson, Gary D. Libecap Chapter URL: http://www.nber.org/chapters/c8632 Chapter pages in book: (p. 1 - 11) 1 The “Problem of Bureaucracy” 1.1 Introduction Cynicism about the federal bureaucracy is widespread. The general public views federal employees as aloof, uncaring bureaucrats who are unresponsive to their requests. Throughout the country, there is a prevailing sense that gov- ernment is synonymous with inefficiency and waste and that the federal bu- reaucracy is essentially out of control. Discussions in both the academic and the popular press have focused on the issue of poor productivity and ways to make the bureaucracy more effective and responsive to voters in the provision of services. ’ dIndeed, restructuring the federal bureaucracy so that it “works better and costs less” is a major objective of the Clinton administration.2 In addition to concerns about worker productivity, presidents have also expressed serious misgivings about their ability to manage and direct the bureaucracy in the implementation of p01icy.~President Nixon, for example, felt that the bureaucracy was subverting his programs, and President Reagan repeatedly charged that big government was the problem, not the solution. Despite all this attention and concern, antibureaucratic sentiments are long standing, and few would claim that substantial progress has been made in ad- dressing the problems of bureaucracy. From time to time, there have been at- tempts to reform the federal civil service through the installation of new per- sonnel rules that would reward performance and allow for a greater degree of political control over the actions of federal employees. These efforts began in 1905 with President Theodore Roosevelt’s appointment of the Keep Commit- tee to investigate ways of organizing the federal government more effectively; they were followed by President Taft’s 1912 Commission on Economy and Efficiency, President Franklin Roosevelt’s Brownlow Committee in 1936, Pres- ident Truman’s Hoover Commission of 1949, a second Hoover Commission in 1953 under President Eisenhower, President Carter’s Reorganization Project of 1 2 Chapter 1 1977, President Reagan’s Private Sector Survey on Cost Control in 1982, and, most recently, President Clinton’s National Performance re vie^.^ In each of these cases, recommendations have been made to provide incen- tives for productivity, to develop procedures for greater control of the bureau- cracy, and to eliminate redundant programs and bloated staff^.^ These efforts, however, have met with entrenched opposition, both from federal employee unions, which stress that civil service rules are in place to guard against a return to the evils of patronage, and from elected officials, who have been wary of implementing major changes in the federal personnel system.h Besides performance, the other major problem of bureaucracy is a lack of accountability. Much of the current discussion of accountability has centered on the latitude available to administrative agencies for engaging in opportunis- tic behavior of their own in the implementation of congressional statutes and administration policies. Within the literature on this subject, there is debate as to how far agency officials can go in policy making to channel programs and services to favored constituents, to expand agency mandates and budgets, or to act on their personal preferences in ways that deviate from the desires of Con- gress and the president. Some authors view the federal bureaucracy as acting in self-interested ways to promote agency growth and budget maximization.’ Other authors emphasize strategic alliances made among the bureaucracy and congressional committees that weaken presidential control of executive agen- cies and allow for opportunism (see Sayre 1965, 1-3; Kaufman 1965,57-68). This problem has often been traced to the rise of professionalism in the civil service and the formation of close ties between agency officials and profes- sional interest groups. A parallel literature has developed regarding the ways in which Congress and the president attempt to constrain the discretionary actions of administra- tive officials, although congressional and presidential interests can, and often do, diverge. One avenue is through congressional committee oversight of spe- cific agencies (see Weingast and Moran 1983; Gilligan and Krehbiel 1989). Another is through the budget appropriations process (see Fenno 1966; Wil- davsky 1979; and Weingast and Moran 1983). A third is through systems of administrative rules for policy making, such as those outlined in the Adminis- trative Procedures Act (60 Stat. 237 [and subsequent amendments]; see also Arnold 1979; McCubbins, Noll, and Weingast 1987; and Wilson 1989). In- deed, some argue that the intricate system of committee oversight, appropria- tions hearings, and administrative procedures provides a relatively short rein that does not allow federal bureaucrats to stray very far from the wishes of Congress (see, e.g., McCubbins, Noll, and Weingast 1987). Nevertheless, it is fair to say that much skepticism remains as to how much these institutions really constrain the bureaucracy. In this book, we examine the persisting problem of bureaucracy. Our objec- tive is to identify the forces that have molded the existing civil service system. The analysis offered reveals that, as the federal civil service system developed, 3 The “Problem of Bureaucracy” a permanent bureaucracy and a vast array of bureaucratic rules were created as the result of conscious decisions by successive politicians. The system was put into place incrementally through executive orders and statutes, following political negotiations among the president, members of Congress, and interest groups, particularly federal employees. Understanding why the federal civil service system has evolved in the way it has, with its well-known problems of productivity and accountability, requires attention to the objectives of elected officials and the confused political property rights that exist over the federal bureaucracy. As we point out, the U.S. Constitution did not provide either the president or the Congress with clear authority over the federal bureaucracy. Hence, they have competed as rivals to direct the bureaucracy in different ways. In part, the civil service system has been designed to reduce the costs of competition over control of the bureaucracy. This rivalry, however, has also allowed federal em- ployees to figure as a powerful additional interest in molding the civil service system. The book concludes that, given the forces underlying the civil service system, major institutional changes, such as adoption of the full list of pro- grams suggested by the National Performance Review in 1993, is unlikely. It is ironic that the current civil service system is, itself, a product of an earlier reform movement, one that was aimed at correcting conditions that are reminiscent of today’s problems-a federal labor force that was inefficient, wasteful, and, seemingly, out of control. In the beginning, the federal civil service system was based on patronage, and reforms were sought by the presi- dent and the Congress to improve productivity in the provision of government services. Lafer, rules and sanctions were added to limit the president’s and the Congress’s access to the bureaucracy in order to shield bureaucrats from politi- cal manipulation and threats. These protections, however, reduced political control of the bureaucracy and facilitated the rise of federal employees as a third party, with a specific agenda for further structuring the civil service sys- tem. Despite the complaints of politicians about the functioning of the bureau- cracy, much (but certainly not all) of the current arrangement is as they have wanted it and, indeed, as they have designed it. Recognizing this point helps make clear why meaningful change will be difficult to achieve.8 The shift from a patronage system to one of bureaucratic civil service rules was, in aggregate, a major institutional change, one that has important implica- tions for the control and effectiveness of the government labor force. We argue that an analysis of the political economy of the origins and development of the civil service system is essential for understanding the rationale for the current arrangement and how it affects presidential and congressional authority over the bureaucracy and the performance of federal employees. Moreover, analysis of the gradual formation of the modern civil service system provides a case study of the mechanisms by which institutions are created and altered in the political arena. In general, these institutions can have profound implications for long-term economic gr~wth.~Analyzing the historical development of the 4 Chapter 1 civil service will help in understanding how the system, with all its apparent faults, came to be. Importantly, the analysis provides an explanation for why elected officials, who often run campaigns directed against the bureaucracy, do not support major reforms.'O 1.2 Political Institutional Change
Recommended publications
  • Chapter 9 Quiz
    Name: ___________________________________ Date: ______________ 1. The diffusion of authority and power throughout several entities in the executive branch and the bureaucracy is called A) the split executive B) the bureaucratic institution C) the plural executive D) platform diffusion 2. A government organization that implements laws and provides services to individuals is the A) executive branch B) legislative branch C) judicial branch D) bureaucracy 3. What is the ratio of bureaucrats to Texans? A) 1 bureaucrat for every 1,500 Texas residents B) 1 bureaucrat for every 3,500 Texas residents C) 1 bureaucrat for every 4,000 Texas residents D) 1 bureaucrat for every 10,000 Texas residents 4. The execution by the bureaucracy of laws and decisions made by the legislative, executive, or judicial branch, is referred to as A) implementation B) diffusion C) execution of law D) rules 5. How does the size of the Texas bureaucracy compare to other states? A) smaller than most other states B) larger than most other states C) about the same D) Texas does not have a bureaucracy 6. Standards that are established for the function and management of industry, business, individuals, and other parts of government, are called A) regulations B) licensing C) business laws D) bureaucratic law 7. What is the authorization process that gives a company, an individual, or an organization permission to carry out a specific task? A) regulations B) licensing C) business laws D) bureaucratic law 8. The carrying out of rules by an agency or commission within the bureaucracy, is called A) implementation B) rule-making C) licensing D) enforcement 9.
    [Show full text]
  • The Chinese Civil Service Examination's Impact on Confucian Gender Roles
    University of Louisville ThinkIR: The University of Louisville's Institutional Repository College of Arts & Sciences Senior Honors Theses College of Arts & Sciences 5-2015 The Chinese civil service examination's impact on Confucian gender roles. Albert Oliver Bragg University of Louisville Follow this and additional works at: https://ir.library.louisville.edu/honors Part of the Asian History Commons, and the History of Gender Commons Recommended Citation Bragg, Albert Oliver, "The Chinese civil service examination's impact on Confucian gender roles." (2015). College of Arts & Sciences Senior Honors Theses. Paper 71. http://doi.org/10.18297/honors/71 This Senior Honors Thesis is brought to you for free and open access by the College of Arts & Sciences at ThinkIR: The University of Louisville's Institutional Repository. It has been accepted for inclusion in College of Arts & Sciences Senior Honors Theses by an authorized administrator of ThinkIR: The University of Louisville's Institutional Repository. This title appears here courtesy of the author, who has retained all other copyrights. For more information, please contact [email protected]. The Chinese Civil Service Examination’s Impact on Confucian Gender Roles By Albert Oliver Bragg Submitted in partial fulfilment of the requirements for Graduation summa cum laude University of Louisville May 2015 Bragg 2 Introduction The Chinese Civil Service Examination was an institution that lasted virtually uninterrupted for roughly thirteen-hundred years, beginning during the late Sui Dynasty in 587 C.E. and ending in 1904 shortly before the collapse of the Qing Dynasty1. While the structure and number of examinations varied widely from dynasty to dynasty, the fundamental content of the examinations was to test one’s knowledge of the Confucian classics: The Analects, The Book of Mencius, The Book of Changes, The Book of Documents, The Book of Poetry, The Book of Rites, and the Tso Chuan.
    [Show full text]
  • Determinants and Consequences of Bureaucrat Effectiveness: Evidence
    Determinants and Consequences of Bureaucrat Effectiveness: Evidence from the Indian Administrative Service∗ Marianne Bertrand, Robin Burgess, Arunish Chawla and Guo Xu† October 21, 2015 Abstract Do bureaucrats matter? This paper studies high ranking bureaucrats in India to examine what determines their effectiveness and whether effective- ness affects state-level outcomes. Combining rich administrative data from the Indian Administrative Service (IAS) with a unique stakeholder survey on the effectiveness of IAS officers, we (i) document correlates of individual bureaucrat effectiveness, (ii) identify the extent to which rigid seniority-based promotion and exit rules affect effectiveness, and (iii) quantify the impact of this rigidity on state-level performance. Our empirical strategy exploits variation in cohort sizes and age at entry induced by the rule-based assignment of IAS officers across states as a source of differential promotion incentives. JEL classifica- tion: H11, D73, J38, M1, O20 ∗This project represents a colloboration between the Lal Bahadur Shastri National Academy of Administration (LBSNAA), the University of Chicago and London School of Economics. We are grateful to Padamvir Singh, the former Director of LBSNAA for his help with getting this project started. The paper has benefited from seminar/conference presentations at Berkeley, Bocconi, CEPR Public Economics Conference, IGC Political Economy Conference, LBSNAA, LSE, NBER India Conference, Stanford and Stockholm University. †Marianne Bertrand [University of Chicago Booth School of Business: Mari- [email protected]]; Robin Burgess [London School of Economics (LSE) and the International Growth Centre (IGC): [email protected]]; Arunish Chawla [Indian Administrative Service (IAS)]; Guo Xu [London School of Economics (LSE): [email protected]] 1 1 Introduction Bureaucrats are a core element of state capacity.
    [Show full text]
  • Presidential Executive Orders: the Bureaucracy, Congress, and the Courts
    Graduate Theses, Dissertations, and Problem Reports 2017 Presidential Executive Orders: The Bureaucracy, Congress, and the Courts Michael Edward Thunberg Follow this and additional works at: https://researchrepository.wvu.edu/etd Recommended Citation Thunberg, Michael Edward, "Presidential Executive Orders: The Bureaucracy, Congress, and the Courts" (2017). Graduate Theses, Dissertations, and Problem Reports. 6808. https://researchrepository.wvu.edu/etd/6808 This Dissertation is protected by copyright and/or related rights. It has been brought to you by the The Research Repository @ WVU with permission from the rights-holder(s). You are free to use this Dissertation in any way that is permitted by the copyright and related rights legislation that applies to your use. For other uses you must obtain permission from the rights-holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/ or on the work itself. This Dissertation has been accepted for inclusion in WVU Graduate Theses, Dissertations, and Problem Reports collection by an authorized administrator of The Research Repository @ WVU. For more information, please contact [email protected]. Presidential Executive Orders: The Bureaucracy, Congress, and the Courts Michael Edward Thunberg Dissertation submitted to the Eberly College of Arts and Sciences at West Virginia University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Political Science Jeff Worsham, Ph.D., Co-Chair John Kilwein, Ph.D., Co-Chair Matthew Jacobsmeier, Ph.D. Dave Hauser, Ph.D. Patrick Hickey, Ph.D. Warren Eller, Ph.D. Department of Political Science Morgantown, West Virginia 2017 Keywords: President, executive order, unilateral power, institutions, bureaucratic controls, U.S.
    [Show full text]
  • Nepotism and Meritocracy
    CORE Metadata, citation and similar papers at core.ac.uk Provided by Göteborgs universitets publikationer - e-publicering och e-arkiv NEPOTISM AND MERITOCRACY ANDERS SUNDELL WORKING PAPER SERIES 2014:16 QOG THE QUALITY OF GOVERNMENT INSTITUTE Department of Political Science University of Gothenburg Box 711, SE 405 30 GÖTEBORG December 2014 ISSN 1653-8919 © 2014 by Anders Sundell. All rights reserved. Nepotism and meritocracy Anders Sundell QoG Working Paper Series 2014:16 December 2014 ISSN 1653-8919 ABSTRACT Despite the crucial importance of a well-functioning and impartial public administration for growth and well-being, we know little of how such bureaucracies can be created, and why elites allow them to be. One reason for this dearth of studies is that there are few to none quantitative measures of historical bureaucratic development. This paper analyzes the surnames of civil servants in the Swe- dish central public administration over 200 years to track nepotism in recruitment. A decline in nepotism is registered during the 19th century. The nobility however continued to thrive in the ad- ministration even after reform, due to disproportionate access to education. Paradoxically, birth was thus an important predictor of success in a system that generally was considered meritocratic. This continuity could explain why the old elite accepted reform.1 Anders Sundell The Quality of Government Institute Department of Political Science University of Gothenburg [email protected] 1 The author wishes to thank Andreas Bågenholm, Heather Congdon Fors, Carl Dahlström, Mikael Gilljam, Jenny de Fine Licht, Victor Lapuente, Martin Sjöstedt and seminar participants at University of Gothenburg and Lund University for valuable input during the preparation of this manuscript.
    [Show full text]
  • Implementation of Meritocracy in the Public Sector of Kazakhstan
    IMPLEMENTATION OF MERITOCRACY IN THE PUBLIC SECTOR OF KAZAKHSTAN by Nargis Saginova A Thesis Submitted in Partial Fulfilment of the Requirements for the Degree of Master of Public Administration at NAZARBAYEV UNIVERSITY GRADUATE SCHOOL OF PUBIC POLICY ʼ ASTANA 2017 ABSTRACT Kazakhstan's ultimate goal for the next 20 years is to become one of the most economically successful top 30 countries in the world. In order to get onto that list, the President of the country, on a regular basis, sets goals that should be achieved by politicians, businessmen, scholars, students and others. One of the latest goals was the introduction of 5 reforms in 2015 that included a huge transformation of the civil service. The reform was aimed at creating a professional and effective civil service free from corruption, nepotism, and tribalism, with bright leaders who will guide the country towards success and prosperity. Thus, political stability will gradually result in economic success. The focus of the civil service reform was the implementation of principles of meritocracy. Meritocracy guarantees that access to the civil service will be equally given to everyone interested in working for the government and who has the proper qualifications. Promotion should be based on their merits ignoring things like subjectivism, nepotism, corruption etc. On the basis of the reforms, the government has introduced new law ‘On civil service’. Thus the main objective of this thesis paper is to investigate whether the principle of meritocracy has been introduced and implemented in the civil service of Kazakhstan. Using the example of the Ministry of Foreign Affairs of Kazakhstan I have researched whether the results of this process have been successful or not.
    [Show full text]
  • Why Do Nations Obey International Law?
    Review Essay Why Do Nations Obey International Law? The New Sovereignty: Compliance with InternationalRegulatory Agreements. By Abram Chayes" and Antonia Handler Chayes.*" Cambridge: Harvard University Press, 1995. Pp. xii, 404. $49.95. Fairness in International Law and Institutions. By Thomas M. Franck.- Oxford: Clarendon Press, 1995. Pp. 500. $55.00. Harold Hongju Koh Why do nations obey international law? This remains among the most perplexing questions in international relations. Nearly three decades ago, Louis Henkin asserted that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."' Although empirical work since then seems largely to have confirmed this hedged but optimistic description,2 scholars Felix Frankfurter Professor of Law, Emeritus, Harvard Law School ** President, Consensus Building Institute. Murray and Ida Becker Professor of Law; Director. Center for International Studtcs. New York University School of Law. t Gerard C. and Bernice Latrobe Smith Professor of International Law; Director. Orville H, Schell, Jr., Center for International Human Rights, Yale University. Thts Essay sketches arguments to be fleshed out in a forthcoming book, tentatively entitled WHY NATIONS OBEY: A THEORY OF COMPLIANCE WITH INTERNATIONAL LAW. Parts of this Review Essay derive from the 1997 \Vaynflete Lectures. Magdalen College, Oxford University, and a brief book review of the Chayeses volume in 91 Am. J. INT'L L. (forthcoming 1997). 1 am grateful to Glenn Edwards, Jessica Schafer. and Douglas Wolfe for splendid research assistance, and to Bruce Ackerman, Peter Balsam, Geoffrey Brennan. Paul David, Noah Feldman. Roger Hood, Andrew Hurrell, Mark Janis, Paul Kahn, Benedict Kingsbury, Tony Kronran.
    [Show full text]
  • Bureaucracy As Violence
    Michigan Law Review Volume 115 Issue 6 2017 Bureaucracy as Violence Jonathan Weinberg Wayne State University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Administrative Law Commons, Law Enforcement and Corrections Commons, and the Public Law and Legal Theory Commons Recommended Citation Jonathan Weinberg, Bureaucracy as Violence, 115 MICH. L. REV. 1097 (2017). Available at: https://repository.law.umich.edu/mlr/vol115/iss6/16 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. BUREAUCRACY AS VIOLENCE Jonathan Weinberg* The Utopia of Rules: On Technology, Stupidity, and the Se- cret Joys of Bureaucracy. By David Graeber. Brooklyn and London: Melville House. 2015. P. 227. Cloth, $26.95; paper, $16.95. Introduction David Graeber’s book The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy1 addresses bureaucracy in modern society: how “bureaucratic principles [have been] extended to every aspect of our exis- tence” (p. 27), and how nearly all of us have come to spend most of our time filling out forms. In the first chapter of the book, the author tells a story of his attempts to file paperwork to gain power of attorney over the bank ac- count of his elderly mother, who was in a nursing home following a series of strokes.
    [Show full text]
  • The Executive Branch and the National Bureaucracy Part I
    You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing. Thomas Sowell bureaucracy: set of complex hierarchical departments, agencies, commissions and their staffs that exist to help the president carry out his duties characteristics of effective bureaucracies organized based on specialization, expertise and division of labor hierarchical: chain of command paper trail of actions and decisions standard operating procedures hiring and promotion, merit based growth in bureaucracy from 1789 to 1861 spoils system extension of post office Modern executive branch has over 2.6 million civilian employees (2016). There are spikes every 10 years because of employees hired to conduct the US census. lack the noble heritage of European bureaucracies In other nations, government departments evolved out of the household of the king or emperor. American Revolution fought against King George’s bureaucrats. Civil War brought need for new government agencies. Department of Agriculture (1862) Pension Office (1866) patronage: jobs, grants or other special favors given as rewards to friends and political allies for their support spoils system: a system of government employment in which workers are hired on the basis of party loyalty suited the needs of political parties historically used system to enlist campaign workers, supporters and contributions positive: helped immigrants adjust to the realities of urban life in the US negative: contributed to the negative image of American bureaucracies,
    [Show full text]
  • TESTING the SCHOLARS How Do You Choose Who Runs a Dynasty? Why Do People Seek Power?
    TESTING THE SCHOLARS How do you choose who runs a dynasty? Why do people seek power? ACTIVITY DESCRIPTION Students will explore the classical Chinese civil servants exam system, compare it to / EDUCATOR their current exam systems, and construct their own ideas of what it means to be qualified for a role and how to prove qualification. If you are planning to use this as part of a visit to The Field Museum, see the Page field trip guide on page 7. 1 of BACKGROUND 7 INFORMATION Image: During the Qing Dynasty, students took the civil service examination in door-less cells. Running an empire required a network of The only furniture was a set of boards that could be arranged as a desk and bench or a bed. dedicated and well-educated officials. The men Illustration by Sayaka Isowa for The Field Museum. who governed the empire had to pass a grueling exam. For roughly 1,300 years, China’s emperors used the civil toe, twice. Their supplies, carried in baskets like service examination system to identify talented men for the ones in the drawing above, were searched. It’s government service. Stationed throughout the empire, said that guards even checked inside dumplings. scholar-officials maintained order and reported back to Yet some test-takers found ways to smuggle in help. the emperor on local events. This system was so effective, The museum holds examples of silk cloth covered in even foreign dynasties like the Manchus embraced it writing, cheat sheets that could have been sewn into during the Qing Dynasty (AD 1644-1911).
    [Show full text]
  • Civil Service Entry Level Police Exam Frequently Asked Questions
    Civil Service Entry Level Police Exam Frequently Asked Questions Basic Requirements of the Exam: Who can take the Municipal or Transit Entry-level Police Exam? Education/Experience Requirement: As of the date of appointment, candidates must have either a high school diploma or equivalency certificate approved by the Massachusetts Department of Elementary and Secondary Education or three years of experience in the armed forces of the United States with last release or discharge under honorable conditions. Age Requirement: Pursuant to Massachusetts General Law (M.G.L.) Chapter 31, § 58, candidates must be 19 years of age on or before the first date the examination is being administered for municipal firefighter, police officer and transit police officer. Candidates are also required to be at least 21 years of age by the date of appointment as a municipal police officer or transit police officer. Please review the list of Civil Service departments to identify those that may have an upper age limit: Civil Service Police Departments. Who can take the State Trooper Entry-level Exam? Education Requirement: Candidates must have a high school diploma or equivalency certificate approved by the Massachusetts Department of Elementary and Secondary Education. Age Requirement: In order to take the examination for State Trooper and pursuant to M.G.L. Chapter 22C , § 10 , candidates must be at least 21 years of age and less than 35 years old as of the last date to file an application for an examination. How much does it cost to take an exam and are there hardship exceptions? The combined examination fee for Municipal Police Officer and State Trooper is $150.
    [Show full text]
  • The Jurisprudence of Anti-Erosion
    THE JURISPRUDENCE OF ANTI-EROSION Tom Ginsburg* ABSTRACT Democracy seems to be in trouble around the world through processes that Professor Aziz Huq and I have labeled democratic erosion. Unlike sudden democratic collapse, erosion proceeds slowly in a series of small steps. What, if anything, should courts do about the risk of democratic erosion? Do courts have any role in preventing democratic backsliding? This Article answers in the affirmative and provides numerous examples of courts that helped to prevent democratic erosion at particular points in recent history. Courts are particularly important because the threats to constitutional democracy today tend to take a legal form. Authoritarians have learned to use the law and to leverage the rule-of-law discourse that has spread around the world in recent decades. Law, then, is not a neutral technology but takes its life and direction from the broader political environment. Drawing on a framework I previously developed with Professor Huq, this Article examines what steps courts can take to limit various modalities of democratic erosion. This Article recognizes that courts are unlikely to be sufficient to accomplish this task on their own, but they can contribute to a broader institutional structure that can prevent democratic backsliding. TABLE OF CONTENTS I. Introduction ........................................................................................... 824 II. The Risk of Backsliding ....................................................................... 827 A. Erosion ...........................................................................................
    [Show full text]