Peter M. Shane | |
---|---|
Born | 1952 (age 70–71) |
Nationality | American |
Education | Harvard College, Yale Law School |
Genre | Polemic |
Subject | separation of powers, cyberdemocracy |
Website | |
petermshane |
Peter Milo Shane (born 1952) is a law professor and writer. His best-known scholarly work focuses mainly on two subjects. The first is separation of powers law, especially law and the presidency. His work often explores what he calls an institutional conception of the rule of law in a separation of powers regime. See, e.g., Peter M, Shane, When Inter-branch Norms Break Down: Of Arms-for-Hostages, 'Orderly Shutdowns,' Presidential Impeachments, and Judicial 'Coups,' 12 Cornell Journal of Law and Public Policy 503 (2004). [1] Under Shane's antiformalist conception, the rule of law is sustained not only by formal legal rules, but perhaps most importantly, by informal norms and conventional behaviors designed to maintain interbranch accountability even when public officials could ignore formal rules with impunity. Peter M. Shane, Madison's Nightmare: How Executive Power Threatens American Democracy 116 (University of Chicago Press, 2009). [2] Checks and balances in such a system likewise "depend on an assemblage of norms, cooperative arrangements, and informal coordination activities." Id. Following political scientist Kenneth Shepsle, Shane thus calls the rule of law "an unstructured institution." Id. at 117.
Shane's second major focus is cyberdemocracy. He is particularly interested in the potential of online government initiatives to engage the public more fully in actual policy making. [3] He is a prominent member of the "cyberrealist school," which rejects technological determinism of both the utopian and dystopian kind. He argues that the democratic potential of digital information technologies depends significantly on human agency, although he perceives the structures of power in society as limiting the impact of any specific initiative. See, e.g., Peter M. Shane, Democracy Online: The Prospects for Political Renewal Through the Internet (Routledge, 2004). [4]
Madison's Nightmare is the major synthesis of Shane's separation of powers views. It both describes and analyzes the theory and practice of "presidentialism" as they unfolded from 1981 to 2009. He describes the period of 1981 to 2009 as a time of aggressive presidentialism. Presidents Ronald Reagan through George W. Bush made arguments for unilateral presidential authority that Shane characterizes as unprecedented and legally groundless. These arguments (and the actual assertions of power they supported) went so far beyond the claims of prior presidents as to constitute a new and distinctive phenomenon. Shane's critique, however, goes beyond his attack on presidentialism as legal doctrine. He also argues that presidentialism, as an operating ethos of government, undermines sound decision making and the rule of law in executive branch affairs. He illustrates many of his points through examples from the G. W. Bush administration, but argues that his analysis transcends party. His view is that, for presidents of either party, presidentialism can subvert the quality of decision making, policy makers' attentiveness to law, and democratic accountability more generally.
Shane took his degrees at Harvard College and Yale Law School. He was dean of the University of Pittsburgh School of Law from 1994–1998 and, as a faculty member at Carnegie Mellon University Heinz College, directed the Institute for the Study of Information Technology and Society. He is currently the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Moritz College of Law at The Ohio State University, where he has taught since 2003. He also served Executive Director of the Knight Commission on the Information Needs of Communities in a Democracy.
Separation of powers refers to the division of a state's government into "branches", each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical division into three branches of government, sometimes called the trias politica model, includes a legislature, an executive, and a judiciary. It can be contrasted with the fusion of powers in monarchies, but also parliamentary and semi-presidential systems where there can be overlap in membership and functions between different branches, especially the executive and legislative.
Article One of the United States Constitution establishes the legislative branch of the federal government, the United States Congress. Under Article One, Congress is a bicameral legislature consisting of the House of Representatives and the Senate. Article One grants Congress various enumerated powers and the ability to pass laws "necessary and proper" to carry out those powers. Article One also establishes the procedures for passing a bill and places various limits on the powers of Congress and the states from abusing their powers.
Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the president of the United States, lays out the procedures for electing and removing the president, and establishes the president's powers and responsibilities.
A legislature is an assembly with the authority to make laws for a political entity such as a country, nation or city. They are often contrasted with the executive and judicial powers of government.
Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important for the idea of separation of powers.
A presidential system, or single executive system, is a form of government in which a head of government, typically with the title of president, leads an executive branch that is separate from the legislative branch in systems that use separation of powers. This head of government is in most cases also the head of state. In a presidential system, the head of government is directly or indirectly elected by a group of citizens and is not responsible to the legislature, and the legislature cannot dismiss the president except in extraordinary cases. A presidential system contrasts with a parliamentary system, where the head of government comes to power by gaining the confidence of an elected legislature.
Imperial presidency is a term applied to the modern presidency of the United States. It became popular in the 1960s and served as the title of a 1973 book by historian Arthur M. Schlesinger, Jr., who wrote The Imperial Presidency to address two concerns: that the presidency was uncontrollable and that it had exceeded its constitutional limits. According to professor of political science Thomas E. Cronin, author of The State of the Presidency, the imperial presidency is a term used to define a danger to the American constitutional system by allowing presidents to create and abuse presidential prerogatives during national emergencies. This was based on: (1) presidential war powers vaguely defined in the Constitution, and (2) secrecy – a system used that shielded the Presidency from the usual checks and balances afforded by the legislative and judicial branches.
Myers v. United States, 272 U.S. 52 (1926), was a United States Supreme Court decision ruling that the President has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body. It was distinguished in 1935 by Humphrey's Executor v. United States. However, in Seila Law LLC v. Consumer Financial Protection Bureau (2020), the Supreme Court interpreted Myers as establishing that the President generally has unencumbered removal power. Myers was the first Supreme Court case to address the president's removal powers.
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the drafting of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. The American form of separation of powers is associated with a system of checks and balances.
In political philosophy, limited government is the concept of a government limited in power. It is a key concept in the history of liberalism.
Federalist No. 47 is the forty-seventh paper from The Federalist Papers. It was first published by The New York Packet on January 30, 1788 under the pseudonym Publius, the name under which all The Federalist Papers were published, but its actual author was James Madison. This paper examines the separation of powers among the executive, legislative, and judicial branches of government under the proposed United States Constitution due to the confusion of the concept at the citizen level. It is titled "The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts".
Federalist No. 70, titled "The Executive Department Further Considered", is an essay written by Alexander Hamilton arguing for a single, robust executive provided for in the United States Constitution. It was originally published on March 15, 1788, in The New York Packet under the pseudonym Publius as part of The Federalist Papers and as the fourth in Hamilton's series of eleven essays discussing executive power.
Federalist No. 77 is an essay by Alexander Hamilton, the seventy-seventh of The Federalist Papers. It was published on April 2, 1788, under the pseudonym Publius, the name under which all The Federalist papers were published. The title is "The Appointing Power Continued and Other Powers of the Executive Considered", and it is the last in a series of 11 essays discussing the powers and limitations of the Executive Branch.
The unitary executive theory is a normative theory of United States constitutional law which holds that the President of the United States possesses the power to control the entire federal executive branch. The doctrine is rooted in Article Two of the United States Constitution, which vests "the executive Power" of the United States in the President. Although that general principle is widely accepted among legal scholars, there is disagreement about the strength and scope of the doctrine. Steven Calabresi and Christopher Yoo (2008) described the unitary executive theory as ensuring "… the federal government will execute the law in a consistent manner and in accordance with the president’s wishes." This stands in contrast to other scholarly literature that stresses the fact that federal employees have to faithfully execute the laws enacted according to the process prescribed in the U.S. Constitution.
Bowsher v. Synar, 478 U.S. 714 (1986), was a United States Supreme Court case that struck down the Gramm–Rudman–Hollings Act as an unconstitutional usurpation of executive power by Congress because the law empowered Congress to terminate the United States Comptroller General for certain specified reasons, including "inefficiency, 'neglect of duty,' or 'malfeasance.'" The named defendant in the original case was Comptroller General Charles Arthur Bowsher and the constitutional challenge was brought forth by Oklahoma Congressman Mike Synar.
Fusion of powers is a feature of some parliamentary forms of government where different branches of government are intermingled or fused, typically the executive and legislative branches. It is contrasted with the separation of powers found in presidential, semi-presidential and dualistic parliamentary forms of government, where the membership of the legislative and executive powers cannot overlap. Fusion of powers exists in many, if not a majority of, parliamentary democracies, and does so by design. However, in all modern democratic polities the judiciary does not possess legislative or executive powers.
In United States constitutional law, the Vesting Clauses are three provisions in the United States Constitution which vest legislative power in Congress, executive power in the President, and judicial power in the federal courts.
The Madisonian model is a structure of government in which the powers of the government are separated into three branches: executive, legislative, and judicial. This came about because the delegates saw the need to structure the government in such a way to prevent the imposition of tyranny by either majority or minority. James Madison proposed this governmental scheme so that the power and influence of each branch would be balanced by those of the others. The separation of powers is a result of Congress passing laws, the president enforcing laws, and the courts interpreting the laws. The three branches of government are independent from each other, yet cooperate by necessity. In the Federalist Paper No. 51, Madison illustrated his beliefs on how a balance in the power was necessary for a government to exist.
The concept of the separation of powers has been applied to the United Kingdom and the nature of its executive, judicial and legislative functions. Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom. However, in recent years it does seem to have been adopted as a necessary part of the UK constitution.
The Separation of powers in Singapore is governed by Constitution of the Republic of Singapore, which splits the power to govern the country between three branches of government – the parliament, which makes laws; the executive, which executes them; and the judiciary, which enforces them. Each branch, while wielding legitimate power and being protected from external influences, is subject to a system of checks and balances by the other branches to prevent abuse of power. This Westminster constitutional model was inherited from the British during Singapore's colonial years.
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