Constitutional Constraints on Executive Lawmaking

What determines the success by which heads of government can enact their legislative proposals? Presumably, constitutional rules governing the relationship between executives and legislatures should be part of the answer. We suggest that in order to understand an executive’s leverage in legislative bargaining, one must consider a broad set of formal powers, even those that are not directly related to the normal legislative process. Many of these ancillary powers function effectively as outside options, in that they provide substitute channels of legislating or serve as punitive devices with which to discipline the opposing party. Either way, these powers can increase leverage in bargaining by increasing the costs for the opposing party of failing to reach agreement. We test aspects of this theory with recently collected cross-sectional historical data on bill passage and on the constitutional powers of executives and legislatures. Our findings suggest that the legislative clout of executives is significantly enhanced by the presence of such outside options. An important reference point in this debate is the classic conceptualization of executives and legislative systems as either presidential or parliamentary. In this respect, we find that the effect of outside options significantly outweighs any effect of presidentialism and parliamentarism on the legislative success of executives. 1 James Melton, IMT Institute, Lucca Italy; Zachary Elkins, University of Texas, Austin; Tom Ginsburg, University of Chicago Law School. Thanks to Terry Chapman and Stephen Joyce for helpful suggestions and Anita Dutta for research assistance.