Executive Rulemaking and Democratic Legitimacy:

Abstract

In both the United States and the United Kingdom, political upheavals could leave lasting marks on the relationship between the executive, on the one hand, and the legislature, on the other, with the courts refereeing conflicts, interpreting legal texts, and applying the common law.

In the United Kingdom, the 2016 Brexit referendum approved exit from the European Union by a narrow margin. That vote is putting pressure on the Westminster structure of government At the time of writing, no deal with the EU is yet in place, and some are pushing for a second popular vote. As Brexit unfolds, established policymaking processes in the executive are facing sharp challenges to their legitimacy both from within Parliament and from outside groups seeking judicial review of government policies and procedures.

In the United States, the Trump administration and the Republican-controlled Senate are appointing sympathetic judges to the federal judiciary who could overturn key administrative law precedents, but the shift will take time as sitting judges gradually retire.' In the meantime, the President, his appointees, and allies in Congress are working to undermine existing administrative law doctrines in ways that could restructure policymaking procedures and the role of the courts.

This article explores ongoing developments in the United Kingdom and United States, but it focuses on the United Kingdom to complement other contributions to this symposium that concentrate on the United States. It examines elements of convergence and points to lessons that each country might take from the experience of the other.