Presidents, Pardons, and Prosecutors: Legal Accountability and the Separation of Powers

Abstract

The post-bicentennial period has produced a substantial literature on alleged vices of our national governmental structure. Our historically predominant principle of "checks and balances," which I will also call "checked separation of powers," allegedly renders our legislative and executive authorities incapable of formulating and implementing a coherent policy agenda with anything like the speed or regularity that compelling problems demand. Although some commentators have recommended restructuring the government, chiefly by emulating parliamentary models, other writers would promote the coherence of government policymaking by accentuating the separation of legislative and executive powers. After all, the President's capacity to formulate and implement efficiently a consistent government program could be enhanced not only by rendering the President a prime minister, but also by attributing to the President a substantial and constitutionally vested policymaking role beyond Congress's capacity to regulate. Such authority would move the President, albeit within statutory limits, in the direction of the French executive's inherent decree power.