The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law

Casey, Conor; Kenny, David

doi:10.2139/ssrn.3820622

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The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law

(2022) International Journal of Constitutional Law

32 Pages Posted: 7 Apr 2021 Last revised: 10 Jul 2022

See all articles by Conor Casey

David Kenny

Trinity College (Dublin) - School of Law

Date Written: April 6, 2021

Abstract

The growth in the power of the executive branch of government has been accompanied by a related growth – heretofore unexplored in the literature on comparative constitutional law – of the role and importance of executive legal advisors. These influential but often secretive advisors can be the first and sometimes only group to review the actions of the executive, or legislative proposals before enactment, for compliance with the constitution. In this article, we compare this practice in four similar but somewhat distinct jurisdictions – the UK, Canada, the US and Ireland – to assess its impact on constitutionalism and the executive power. We conclude that the practice of constitutional review by executive lawyers is highly variable, changing between places and over time along four key axes that can either empower or constrain the executive to varying degrees. It can restrain executive action by holding it within constitutional boundaries; it can bolster the executive power by giving legalistic credibility to its actions while providing little restraint in practice; or it can create policy distortion by overly tightly binding executive and legislative action. Constitutional advice from executive legal advisors, then, does not operate as an exogenous constraint on executive power, but can be structured and manipulated by the executive to have various different effects. As such, we argue that this institution requires much more attention from both comparative constitutional lawyers and constitutional designers to map its effects on the constitutional order and to see what structures, processes and cultural factors might shape it. Finally, we argue for increased transparency in the provision of executive constitutional advice, as without this, even understanding its effects is extremely difficult.

Keywords: Executive power, comparative constitutional law, executive legal advisors, attorney general, separation of powers, political constitutionalism, policy distortion

Suggested Citation: Suggested Citation

Casey, Conor and Kenny, David, The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law (April 6, 2021). (2022) International Journal of Constitutional Law , Available at SSRN: https://ssrn.com/abstract=3820622 or http://dx.doi.org/10.2139/ssrn.3820622