Constitutional Crises Compared: Impeachment, Brexit, and Executive Accountability

• Publication year: 2021

Constitutional Crises Compared: Impeachment, Brexit, and Executive Accountability

René Reyes

CONSTITUTIONAL CRISES COMPARED: IMPEACHMENT, BREXIT, AND EXECUTIVE ACCOUNTABILITY

René Reyes^*

Abstract

The United States and the United Kingdom share a common legal history and a number of fundamental constitutional values. Some of these fundamental values may occasionally come into conflict. For example, in 2019, both the United States and the United Kingdom experienced considerable legal and political upheaval as debates over the scope of executive power and the accountability of the executive branch came to the fore. In the United States, these debates culminated in the impeachment of President Donald Trump for abuse of power and obstruction of Congress. In the United Kingdom, the furor focused on Prime Minister Boris Johnson's approach to Brexit and his attempt to prorogue Parliament. The impeachment drama and the Brexit saga were so severe that each was frequently referred to as a "constitutional crisis" in the popular press and public discourse.

These parallel constitutional crises and the litigation they generated afford a valuable opportunity to analyze each country's commitment to democratic accountability of the executive from a comparative perspective. The results of such an analysis may well pose a challenge to commonly held assumptions about American exceptionalism in matters of liberty and democracy. Indeed, throughout the impeachment crisis, it was frequently asserted that "Presidents are not kings"—seemingly suggesting that it is obvious that the executive department is subject to greater legal constraint under a presidential system like the United States than under a constitutional monarchy like the United Kingdom.

But a deeper examination of U.S. and U.K. constitutional law paints a different picture. Through an analysis of the constitutional crises of impeachment and Brexit, this Article argues that executive authority is in fact significantly more accountable to democratic control under the British model of government than under its American counterpart. While the American experience reveals that extreme claims of executive power have largely gone unchallenged and unchecked by the other branches of government, the British sequence of events testifies to an enduring constitutional commitment to popular and parliamentary sovereignty. The Article concludes by arguing that a key

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lesson to be drawn from these constitutional crises is that the British system may actually do more to honor the commitment to "a government of laws and not of men" that has long been said to be central to the American constitutional order.

Introduction

The United States and the United Kingdom share a common legal history.¹ To be sure, the two nations have taken somewhat different paths since the American colonies declared their independence from the British Crown in 1776.² The United States opted for a written Constitution,³ for instance, while the United Kingdom steadfastly operates under an uncodified one.⁴ The written American document reflects additional departures from the British constitutional tradition, such as providing for a President rather than a King or Queen and a Senate rather than a House of Lords.⁵ Yet notwithstanding these differences, the U.S. and U.K. constitutional systems continue to share many fundamental features. Separation of powers,⁶ protections for individual rights

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and freedoms,⁷ dedication to the rule of law,⁸ and a commitment to democracy⁹ are but a few important examples.

Another shared feature of U.S. and U.K. constitutional law is the potential for some of these fundamental commitments to come into occasional conflict. Indeed, in 2019, both nations experienced considerable legal and political upheaval as debates over the scope of executive power and the accountability of the executive branch came to the fore. In the United States, these debates culminated in the impeachment of President Donald Trump for abuse of power and obstruction of Congress.¹⁰ In the United Kingdom, the furor focused on Prime Minister Boris Johnson's approach to Brexit and his attempt to prorogue Parliament.¹¹ The impeachment drama¹² and the Brexit saga¹³ were so severe that each was frequently referred to as a "constitutional crisis" in the popular press and public discourse.¹⁴

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These parallel constitutional crises and the litigation they generated afford a valuable opportunity to analyze each country's commitment to democratic accountability of the executive from a comparative perspective. The results of such an analysis may well pose a challenge to commonly held assumptions about American exceptionalism in matters of liberty and democracy. As Steven Calabresi has observed, "American popular culture overwhelmingly rejects the idea that the United States has a lot to learn from foreign legal systems, including even those of countries to which we are closely related like the United Kingdom . . . . Most Americans think instead that the United States in an exceptional country[.]"¹⁵ The fact that the United States has an elected president rather than a hereditary monarch only heightens the ostensible contrast between American democracy and foreign models of government. For example, in a recent case arising out of a subpoena issued to a former While House Counsel by the House Judiciary Committee, Judge Ketanji Brown Jackson rejected a claim of absolute immunity from compliance and opined that "the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings"¹⁶ —seemingly suggesting that it is obvious that the executive department is subject to greater legal constraint under a presidential system like the United States than under a constitutional monarchy like the United Kingdom.

But a deeper examination of U.S. and U.K. constitutional law paints a different picture. Through an analysis of the constitutional crises of impeachment and Brexit, this Article argues that executive authority is in fact significantly more accountable to democratic control under the British model of government than under than its American counterpart. The analysis begins in Part I by defining the contours of each country's constitutional crisis with greater specificity and detail. The discussion in this part situates each crisis in its broader context of constitutional structures and political events, and considers the ways in which those structures and events are themselves illustrative of each nation's commitment to democratic governance. Part II turns to an examination of how various elements of each nation's constitutional crises have been resolved—in the courts, in the legislature, and in the electoral process. This part analyzes Trump's victories before the bench and his acquittal in the Senate, and contrasts

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them with Johnson's setback in the courts and his defeats in Parliament. Part III then considers the implications and lessons of these events. Whereas Trump and Johnson both emerged from their respective constitutional crises still in office, the ways in which they did so bespeak significant differences between the roles played by democratic principles in each country's constitutional system. While the American experience reveals that extreme claims of executive power have largely gone unchallenged and unchecked by the other branches of government, the British sequence of events testifies to an enduring constitutional commitment to popular and parliamentary sovereignty. The Article concludes by arguing that a key lesson to be drawn from these constitutional crises is that the British system may actually do more to honor the commitment to "a government of laws and not of men" that has long been said to be central to the American constitutional order.¹⁷

I. Identifying the Crises

A. What is a Constitutional Crisis?

The term "constitutional crisis" can mean different things to different people. While many commentators have used the term to describe a wide range of political controversies,¹⁸ some scholars would reserve its use for a narrow set of circumstances. Keith Whittington has argued that a true constitutional crisis arises "out of the failure, or strong risk of failure, of a constitution to perform its central functions."¹⁹ Such a situation might take the form of an "operational crisis," in which "important political disputes cannot be resolved within the existing constitutional framework."²⁰ Or the crisis might manifest itself as one of "fidelity," in which "important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions."²¹ Sanford Levinson and Jack Balkin likewise argue that a genuine constitutional crisis refers to something more than conflict between government institutions, and instead is akin to "a turning point

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in the health and history of a constitutional order."²² Their account is in many ways similar to that offered by Whittington, but Levinson and Balkin also add a third type of crisis to the list. This third type "involve[s] situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail."²³

Both of these accounts suggest that actual constitutional crises are rare occurrences. The secession of the Southern states and the ensuing American Civil War is one clear example cited both by Whittington²⁴ and by Levinson and Balkin,²⁵ but many other serious political disputes may not qualify. For instance, events like the Supreme Court's intervention in the disputed 2000 presidential election, the Senate's refusal to hold a hearing on President Obama's nomination of Merrick Garland to the Supreme...