Table Of ContentA Theory of the Executive Branch
A Theory of the
Executive Branch
Tension and Legality
MARGIT COHN
The Hebrew University of Jerusalem
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Acknowledgements
This book is the product of a longstanding interest in the executive branch. Parts
of it draw on several publications. A book on general unilateral powers in Israel
inspired this project and drew the first scheme for the comparative exercises, and
several articles offered a basis for the arguments found in Chapters 2–5 .
Parts of the book were presented at several seminars and discussions groups.
Chapters 1– 3 were discussed in a seminar hosted by the UK Constitutional Law
Association; at the IX Congress of the International Association of Constitutional
Law; at a joint research workshop, held by the Hebrew University and the
University of Melbourne law faculties; at the Public Law Discussion Group, UCL
London; the Oxford Public Law Discussion Group; the Law School Research
Workshop, Trinity College Dublin; and presented as a Barton Public Lecture,
Carleton University, Ottawa. Early versions of Chapters 4 and 5 were presented at
a Faculty Seminar, Columbia Law School; Juris Diversitas Annual Conference; and
two ICON- S annual conferences. My views on emergency law were presented at
the Minerva Center for the Rule of Law under Extreme Conditions, University of
Haifa. Versions of Chapter 10 were presented in the Public Law Discussion Group,
UCL London, in a Tri.Con research talk, Trinity College Dublin, and at the Faculty
Seminar, the Faculty of Law, Hebrew University of Jerusalem. I thank the OUP edi-
torial team, Jamie Berezin, Paulina dos Santos Major, and Mark Ajin, for their work
and support.
I thank the innumerable friends and colleagues who helped me along the way.
Paul Craig’s kind comments kept me on track throughout this journey. Donald
Bello Hutt, Alon Harel, Moshe Hirsch, Hailey Hooper, Aileen Kavanagh, Jeff King,
Maria Lee, Henry Monaghan, Colm O’Cinneide, Eloise Scotford, and Peter Strauss
offered insights and helpful criticism during various stages of writing. Itamar Ben-
David, Sima Granovsky, Daniel Levi, and Tal Sticker offered invaluable research
assistance that instructed the analyses in Part III, and Adan Arshied was extremely
helpful in the research and preparation of the final version of the book. My intrepid
editor Diana Rubanenko provided not only superb assistance but was also a source
for many a friendly chuckle on the way.
Parts of the book were written during my sabbatical visits at the Columbia Law
School and the Faculty of Laws, UCL London: I thank them for their hospitality
and support. Most of the time, however, was spent at my home-b ase, the Faculty
of Law at the Hebrew University of Jerusalem, which provided much of every-
thing needed for the writing and completion of this manuscript, including research
and travel grants. Funding for the completion and publication of the book was
vi Acknowledgements
generously provided by the Israel Science Foundation, under grant 54/2 1. I thank
all, and hope we can further develop the study of the executive branch—a field of
research that has never lost its relevance and deserves further attention.
Parts of Chapter 2 are based on Margit Cohn, ‘Tension and Legality: Towards a
Theory of the Executive Branch’ (2016) 29 Can J L and Jurisp 321; parts of Chapters 4
and 5 are based on Margit Cohn, ‘Non-S tatutory Executive Powers: Assessing
Global Constitutionalism in a Structural-I nstitutional Context’ (2015) ICLQ 65.
Contents
List of Abbreviations xiii
Introduction 1
PART I. PRELIMINARIES
1. Preliminaries 7
A. Introduction 7
B. ‘The Executive Branch’: A Preliminary Definition 8
C. The Executive Branch Researched: Common Themes and Debates 9
D. Constitutionalism and Internal Tensions 22
E. Answering Initial Challenges to General Theory 27
1. Comparing Parliamentary and Presidential Regimes? 27
2. ‘Core’ Executives and Administrative Agencies 31
F. Concluding Remarks 39
2. Reaching the Internal Tension Model 42
A. Introduction 42
B. Three Institutional Models Rejected 43
1. The Subservient Executive Model: The Separation of Powers and the
Rule of Law 43
a. The separation of powers 43
b. The rule of law 45
2. The Imperial Executive Model 47
a. Managerial theories 47
b. Exception- based theories 49
3. The ‘Bipolar’ Model 53
C. The Internal Tension Model 55
D. Concluding Remarks 57
3. Maintaining the Internal Tension Model 59
A. Introduction 59
B. Conceptualizing Fuzziness I: Research Streams 60
1. Four Research Streams 60
a. Delegation and discretion 60
b. ‘Soft law’ 62
c. ‘Grey holes’ 64
d. ‘Fuzzy law’ 66
2. Moving Forward 68
viii Contents
C. Conceptualizing Fuzziness II: Thirteen Forms of Fuzziness 69
1. Fuzzy Legality: A Taxonomy 69
2. Constitution- Generated Fuzzy Legality 71
a. Open- ended constitutional provisions 72
b. Fuzzy powers under an unwritten constitution 73
c. Non- textual, general constitutional doctrines 75
3. Statute- Generated Fuzzy Legality 78
a. Open- ended, interpretable provisions 79
b. Grants of discretion 80
c. Delegation 82
d. ‘Patchwork’ legislation 85
e. Multiple and indeterminate decision- makers 86
f. ‘Lopsided’ statute 89
4. Executive- Generated Fuzzy Legality 91
a. Selective enforcement and creative compliance 91
b. ‘Pastiche’ law 92
c. Extra- statutory parallel arrangements 93
d. Multiple mixed source citation 94
D. Concluding Remarks 97
PART II. CONSTITUTION- GENERATED FUZZY LAW
4. Unilateral, Non-S tatutory Executive Powers 101
A. Introduction 101
B. Non- Statutory Powers: A Short Primer 106
C. Bases of Authority 107
1. Constitution- Based Direct Sources 107
a. An unwritten constitution: the UK 108
b. A written constitution: the US 112
2. Constitution- Type Extra-T extual Doctrines 115
a. Political reality 115
b. Sovereignty and nationhood 116
c. Personification 117
d. ‘Historical gloss’ 121
e. Aggregation of powers 122
D. Legal Constraints on Unilateral Non-S tatutory Powers 123
1. The Residuality Doctrine 123
2. Subjection to Judicial Review 127
E. Concluding Remarks 135
5. The Nature and Use of Unilateral Executive Measures: A
Comparative Analysis 137
A. Introduction 137
B. The Curious Case of Mixed-A uthority Orders in Council,
Executive Orders, and Others 139
1. The United Kingdom: Orders in Council and Proclamations 139
a. The forms 139
Contents ix
b. Fuzziness I: multiple and mixed authorities 141
c. Fuzziness II: the legal status of unilateral measures 145
d. Fuzziness III: access difficulties 146
e. Interim conclusion 149
2. The United States: Proclamations, Executive Orders, Memoranda,
and Other Measures 149
a. The forms 150
b. Fuzziness I: multiple and mixed authorities 156
c. Fuzziness II: the legal status of unilateral measures 158
d. Fuzziness III: access difficulties 160
C. Comparative Analysis 161
D. Concluding Remarks 163
PART III. LEGISLATION AND EXECUTIVE- GENERATED
FUZZY LAW
6. Case Studies: Emergency and Air Pollution, Overviews 167
A. Introduction 167
B. Emergency Law 169
1. General 169
2. Emergency Law in the UK 171
a. General 171
b. Layers of law pertaining to emergencies 173
(1) Customary international law 173
(2) Constitutional law 175
(3) International treaty law and UN measures 176
(4) EU law 177
(5) Domestic primary legislation 179
3. Emergency Law in the US 180
a. General 180
b. Layers of law pertaining to emergencies 181
(1) Constitutional law 181
(2) Customary international law 182
(3) International treaty law and UN measures 184
(4) Federal primary legislation 185
C. Air Pollution Law 186
1. General 186
2. Air Pollution Law in England 188
a. General 188
b. Layers of law pertaining to air pollution 189
(1) International law 189
(2) EU law 190
(3) Domestic primary legislation 192
3. Air Pollution Law in the US 194
a. General 194
b. Layers of law pertaining to air pollution 194
