Is the separation of powers exportable?

• Author: Calabresi, Steven G.
• Position: Separation of Powers in American Constitutionalism

It was a great honor for both Authors to participate in this Symposium together with Professor Juan Linz. (1) Although Professor Linz favors parliamentary government and we both favor presidential separation of powers systems, we agree on one absolutely crucial point. We think it is a disastrous mistake to combine the French semipresidential constitutional system with a proportional representation electoral regime as some countries have unfortunately done. (2)

We both think American-style presidential separation of powers regimes are exportable and desirable under some carefully controlled circumstances. Like Professor Linz, we would not recommend such a regime for a country polarized into two hostile religious or ethnic camps. (3) We also would not recommend a presidential separation of powers regime for third-world countries suffering from a history of dictatorship or rule by caudillos or strongmen like Russia. But we do recommend a presidential separation of powers regime for federal polities that have multiple cross-cutting cleavages, a recent history of democratic rule, a majoritarian electoral system, strong member states within the federation, and a need for a more assertive federal foreign policymaking apparatus. We want in this Essay to make the perhaps startling argument that the European Union is such a polity and that it needs a presidential separation of powers system like the one in the United States if it is to become a successful federation rather than merely a confederation. (4) In so arguing, we realize of course that there is no chance at all of such a presidential separation of powers system being adopted. Nonetheless, if we can show that it would be a good thing for the people of the European Union to elect a president directly that would surely be relevant to the question of whether it is ever desirable for a presidential separation of powers system to be exported.

The European Union is a confederation of twenty-seven member states with a population of almost five hundred million citizens that generates more gross domestic product than the United States. (5) The EU has an annual budget of 141 billion Euros and 24,000 employees serving as career civil servants. (6) The EU, in effect, has a bicameral legislature like the United States. There is a Parliament (7) with 785 members (8) chosen by proportional representation from closed party lists in elections where turnout is low. (9) There is also a Council of the European Union (10) with twenty-seven members--one from each state--that votes by a qualified majority and in which more populous nations cast more votes than less populous ones. (11) The executive power is in the hands of a twenty-seven member European Commission (12)--one member from each nation state--and the Commission is headed by a President who is picked by the Council and Parliament. (13) The Commission is subject to substantial direction and control by the Council, which is the most powerful entity in the EU. (14) Finally, there is a judicial branch headed by the European Court of Justice. (15)

The European Union suffers from a severe democracy deficit because the cumbersome twenty-seven member Council and Commission and their presidents only imperfectly control the 24,000 or so civil servants of the European Union. (16) More important, the people of Europe do not get to vote directly either for the members of the Council or for the President of the Commission, so they rightly feel that they have little say in EU policymaking. (17) This leads to low turnout in elections to the EU Parliament, and the splintering effects of proportional representation and a closed ballot further delegitimize that body. (18) The EU is unable to make its weight felt in foreign policy, and it is almost completely dependent on the United States to provide for its national defense. (19) In short, the governance structure of the EU is a mess. It is suitable for the governance of a confederation but not for the federation that many hope Europe will become.

The EU needs a democratically elected President chosen for a four-year term by a 51% majority of Europeans with only one re-election allowed. The two-stage election should include a primary followed at least two months later by a majoritarian runoff between the top two candidates in the primary election. The President of the EU should be the chief executive officer of the federation with the power to fire all policymaking personnel. The President ought not to have any decree lawmaking power, power to declare states of emergency, or power to call for new legislative elections. The President should appoint EU cabinet officers subject to the advice and consent of the twenty-seven member Council, (20) which ought to have the staff and the power to hold oversight hearings. Parliament should be reduced in size by one half--to no more than three hundred members--with representation based on population. Members of Parliament should be elected, not through party list proportional representation as they are now, but by the majoritarian two-stage electoral system currently used by the French Fifth Republic to pick its Assembly. Lawmaking should require the concurrence of both Parliament and the Council but the President ought to have a veto which can be overridden by a two-thirds vote of both the Council and the Parliament.

Consider ten reasons why the emerging constitutional order in the EU ought to be an American presidential separation of powers regime rather than a German or Italian-style parliamentary system like the one towards which the EU is currently moving. (21)

First, a presidential separation of powers system with separate elections for President, for the Council, and for Parliament would do a better job of sampling European public opinion than would one all-or-nothing election for a German or Italian-style Parliament held every five years. Europeans would be forced to make a choice as a federation for President, as nation-states for the Council, and as localities for the geographical districts in Parliament. Choices for three offices picked over a rolling cycle would do a better job of sampling European public opinion than would one election with one choice every five years. This is the case for the same reason a tracking poll in an election works better than a monthly or weekly poll. (22) More elections, more often, in more units, offer more democratic and popular control.

Second, the EU needs a lot more energy and stability in its executive governance structure than it currently has. One cannot have 24,000 civil servants running around doing things while controlled by the President of a twenty-seven member commission or council and not have a lack of energy and stability. A popularly elected President with a fixed term of office would offer energy and stability that no parliamentary government chosen with proportional representation can provide. (23) The experience of Italy, Japan, and Israel today--and of France under the Third and Fourth Republics--shows why a regime d'assemblee type of weak, revolving door cabinet delegitimizes democracy. Such systems simply fail to provide for energy and stability in the executive. (24)

Third, the EU needs a democratically elected...