This is a guest post by Alissandra T. Stoyan (Assistant Professor, Department of Political Science, Kansas State University) and Sarah Shair-Rosenfield (Assistant Professor, School of Politics and Global Studies, Arizona State University). This post is based on their article, “Constraining Executive Action: The Role of Legislator Professionalization in Latin America,” forthcoming at Governance and now available through Early View online: http://onlinelibrary.wiley.com/doi/10.1111/gove.12210/abstract
Traditionally Latin American presidents have been viewed as excessively powerful, given both their constitutionally-endowed authority as well as their tendency to ignore the rule of law.
Yet, across the region today, legislatures are asserting themselves and challenging executives. Brazilian President Dilma Rousseff is in the middle of impeachment proceedings centering on allegations of corruption. Meanwhile, in Venezuela, the opposition is pushing a two-pronged attack on the presidency of Nicolas Maduro, including a recall referendum and threats to impeach. Both sets of legislative opponents have argued that these presidents have illegally overstepped the boundaries of their authority in an effort to protect themselves and their political allies.
Among the various, and recently politically contested, powers in a presidential toolkit is the authority to issue executive decrees or orders. President Obama’s opponents have argued that his abuse of this authority is unconstitutional, as his predecessor’s critics have argued that President Bush overstretched his policy authority in detrimental ways. In Argentina, President Carlos Menem (1990-1999) was notorious for his abuse of this power, issuing 545 decrees of necessity and urgency (decretos de necesidad y urgencia – DNUs) during his presidency – 50 times more DNUs than his predecessor. Examples like this have contributed to the image of overly strong presidents acting unilaterally and weak legislatures unable to constrain executive incursions into policy-making. Indeed, presidential candidates have reinforced this view, frequently asserting that they would undo the actions of their predecessors by issuing new decrees or orders to overturn the old ones, as if this (more abuse) was the only method to curb executive overreach.
But the examples of Rousseff and Maduro suggest that legislatures may also sometimes be formidable opponents when they clash with executives. Moreover, executives issue wildly different rates of decrees both within and across borders. Under what conditions are legislatures empowered to limit executive action? When might legislatures curb executive decree issuance?
To explore this, we collected original decree count data across four Latin American cases: Argentina, Brazil, Chile, and Uruguay. Explanations based on formal powers and transient political context are insufficient to explain empirical patterns of decree issuance within cases across time (see figure below). Therefore, we argue that informal legislative attributes might shift the balance in favor of executive constraint.
In Latin America, decrees may be permanent unless explicitly rejected by the legislature (Argentina and Bolivia) or they may expire unless they are approved by the legislature during a pre-specified period (Brazil and Uruguay). In either case, decree powers allow the president to set the policymaking agenda.
Legislator Professionalization and Constraining Decree Issuance
Previous work has focused on the constitutional rules in many Latin American countries that favor executive power over that of the legislature. Furthermore, executives, as compared to legislators, are generally better endowed with resources such as funding and staff. This may allow them to make decisions quickly and decisively, as compared to legislators who often face collective action problems. In our article, we argue that when legislators are highly professionalized they bring individual skills and resources to office from previous work or governing experiences, and these factors may help level the playing field to empower the legislature vis-à-vis the executive.
For example, seasoned legislators might better understand how and when to challenge the executive on key procedural issues or they might be able to draw on an established network as a basis for mobilizing against executive action. Alternatively, individuals who worked as lawyers or bankers before their election should have a better grasp of legal and economic issues, allowing them to more efficiently issue policy-oriented challenges than, for example, farmers.
Finally, these relationships may depend on the degree to which the opposition is unified. If professionalized legislators make up a unified opposition, then they are more likely to have the strength and the will to oppose the president; if professionalized legislators make up a highly fragmented opposition, then they may present no real threat to the president. Overall, our analysis demonstrates that when legislators are more professionalized, executives are less likely to issue decrees, particularly if those legislators are part of a unified opposition.
In particular, prior professional job experience has a negative and statistically significant effect on executive decree issuance. When legislatures are composed of more members with previous employment in professional careers, executives tend to issue fewer decrees. The figure below shows the constraining effect of professional experience: when the opposition is unified and professionalized, we see the largest reductions in executive decree issuance.
The Importance of Understanding Executive Constraints
Our analysis points to a better way to assess the balance of power between branches of government. Beyond institutional capacity, we must also consider how attributes of individual legislators may limit or embolden the legislature. Likewise, our results indicate that as Latin American legislatures develop legislator professionalization, the institutional separation of powers inherent to presidential systems should become even more meaningful.
In the future, we’d like to see analyses of questions around the substantive content of executive decrees. For example, do legislatures packed with former bankers and entrepreneurs thwart executive attempts to meddle in macro and microeconomic affairs? As of yet, no comprehensive data on decree issue area exists, and decree counts alone are insufficient for this type of analysis, but this marks one of many potential avenues for further study to better evaluate the executive-legislative relationship on policymaking in a comparative context.
 Carey, John M., and Matthew S. Shugart. 1998. Executive Decree Authority. Cambridge: Cambridge University Press; Negretto, Gabriel. 2004. “Government Capacities and Policy Making by Decree in Latin America.” Comparative Political Studies 37: 531-562.
 Morgenstern, Scott. 2006. “Limits on exporting the U.S. Congress model to Latin America.” In Exporting Congress? The Influence of the U.S. Congress on World Legislatures, ed. T.J. Power & N.C. Rae. Pittsburgh, PA: University of Pittsburgh Press: 82-101.