32. This does not mean that modern democratic constitutions cannot promote alternative formal structures. The Constitution of the French Fifth Republic officially confers on the executive the residual power to legislate in areas not provided for in the Constitution. The extent to which the Constitutional Council can prevent laws from entering “prohibited” areas is controversial, but emerging practice tends towards a more traditional division of powers, where the legislator has the upper hand. On the main stepping stones, see CC 82-143, 30 July 1982, Price and Income Freezes, Rec. 57; CC 05-512, 21 April 2005, Loi d`orientation et de programme pour l`avenir de l`école, Rec. 72; CC 2012-649 CD 15 March 2012, Simplification of the Law, ECR 142. The permanence of the present state depends to some extent on the foundations of vague law. If polarization provides crucial grounds for an executive structured by tensions between discretion and legality, then we might expect the executive to function differently if politics enters a cycle of depolarization. However, if globalization and new communication technologies fuel the contemporary executive system, practices based on vague law may be impervious to change. At best, we will likely see more fuzzy laws than fewer (and constitutional design is probably a bad way to reduce fuzzy law in the long run, given the underlying underpinnings of this phenomenon). The scaremongering narrative, on the other hand, does not give sufficient weight to how commitment to legality and constitutional limits remains decisive for political legitimacy.
Even if executive actors do not feel morally constrained by legal restrictions, resent them intensely and try to push their limits and cultivate the perception in which they actually act, the law remains important for its legitimacy in the eyes of citizens, officials, judges and legislators. The constitutional traditions of the United Kingdom and the United States also share a thin but tenacious understanding of the limits of executive power associated with its role as faithful executor and cannot simply be ignored: subordination of executive power to the rule of law, the duty of the executive branch to faithfully execute the law, even if it does not agree with it, and the prohibition of unilateral suspensions of the executive. The echoes of this formally weak conception of the executive – where the executive is above all the faithful executor of legislative diktats – remain anchored in all systems and clearly anchored in legal doctrine, which retains a certain bite when it comes to the external limits of executive action. [1] Professor Cohn`s second important idea is that much of the executive`s action is constituted by a “vague law”. These are practices structured by legal and discretionary norms in a way that cannot be fully disaggregated. Much of A Theory of the Executive Branch consists of the delineation of thirteen forms of fuzzy law. Professor Cohn acknowledges that while we want to change the balance between legal and discretionary factors in executive action or how legal and discretionary factors interact, there are no areas free of laws or policies in the executive branch. Their creation is neither desirable nor possible. Those who design, amend, or simply manage constitutional institutions govern better by creatively exploiting the tension between legality and discretion, rather than trying to put law and politics in separate booths. Researchers who follow Cohn would be better advised to do the same. Professor Cohn`s new book, however, dramatically refutes this aphorism.
Cohn`s book offers a compelling and innovative comparative and theoretical study of the executive branch in contemporary constitutionalism. It is one of the few books (the other that comes to mind is Professor Harvey Mansfield`s Taming the Prince: the Ambivalence of Modern Executive Power (1989) and long before canonical texts such as Locke`s Two Treatises on Government and Montesquieu`s Spirit of the Laws) that goes beyond the systemic study of political executives and deals with the conceptual nature of executive power in constitutional theory more broadly. It should and will undoubtedly be required reading for students of constitutional theory and comparative constitutional law. “Complete submission to the legislature and imperialism do not fully characterize the executive. But none of these conclusions should be seen as a failure of theory. On the contrary: the submission and domination of the executive flourish in reality” (p.55). 58. Ibid., 610-11.
See also Dames & Moore v Regan, 453 US 654 at 678-83 (1981) (executive order suspending claims after the settlement of the Iranian hostage crisis, deemed “implicitly approved” by related legislation and the history of congressional acquiescence); “We cannot ignore the general tenor of congressional legislation in this area. Congress cannot anticipate and legislate all possible actions that the president deems necessary. The fact that Congress has not explicitly delegated its authority does not mean “in particular.” in the areas of foreign policy and national security” imply “congressional disapproval” of executive branch actions”).