Symposium Introduction: ‘The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law’

Conor Casey & David Kenny

University of Liverpool & Trinity College Dublin

Editors’ note: In light of our mission to create truly global conversations surrounding constitutional law topics, we are happy to continue the “Workshop My Paper Series” (WMPS). Launched in 2021, the WMPS is an initiative of the IACL Blog that seeks to bring together scholars across the world to critically engage with forthcoming and recently published scholarship in the field. In this WMPS we are excited to present Conor Casey and David Kenny’s recently published article: ‘The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law’ (2022) 20 International Journal of Constitutional Law 664.

We are very grateful to the team at the IACL Blog for organising this symposium on our recently published article in the International Journal of Constitutional Law. It is a distinct honour and privilege to see such an extraordinary group of scholars—from who we have learned a great deal—engage with our work. Starting today and throughout the month of February, this blog symposium will feature responses to different aspects of our article by Gabrielle Appleby, Hilary Hogan, Aileen Kavanagh, Vanessa MacDonnell, Conor McCormick, Adrian Vermeule, and Juliano Zaiden Benvindo. We owe great thanks to them, and to Professor Mariana Velasco-Rivera for her dedicated work in organising this symposium. 

In the article under discussion, we endeavour to bring descriptive, comparative, and theoretical analysis to bear on a relatively under-explored area of comparative constitutional inquiry—namely, the place and significance of chief executive branch legal advisors. These influential—but often secretive—constitutional actors are of critical importance due to their influence on the policymaking process, and the fact they can be the first and sometimes only institution to review the actions of the executive, or legislative proposals before enactment, for their compliance with constitutional/legal norms. 

We describe and compare the practice of apex executive lawyers in several jurisdictions: the United Kingdom, Canada, the United States, and Ireland. These countries—having substantial legal similarities to anchor comparison, but various differences in the practice of legal advisors—allow us to draw out a conceptual framework for analysing and comparing the operation of executive legal advice.

Our analysis shows that executive legal advice is highly variable, changing between places and over time along at least four key axes that can either empower or constrain the political executive to varying degrees. These are not binaries, but spectra along which different advisors can fall. These are: 

(a) appointed on the basis of political or technocratic considerations; 

(b) secret or public in their provision of legal advice; 

(c) “court-mimicking” (advising what courts would or may do) or “political constitutionalist” (encouraging or enabling the political branches to take interpretations specific to their role) when it comes to the substance of their advice giving; and 

(d) centralised in a single office/entity, or diffused such that the political executive can forum shop for legal advice. 

The variability seen along these axes ensures the institution of executive legal review is neither exogenous to the executive—it does not simply bind the executive to the external restraint of “the law”—nor entirely fixed over time, and so can potentially be structured and used in a manner most suitable to the political executive. Depending on these variables, the work of executive lawyers can have very different effects on constitutional politics: it can restrain executive action by holding it within reasonable 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 tightly binding executive and legislative action to excessively cautious legal advice. 

Our article does not make any firm normative prescriptions, instead it suggests that there is no ‘optimal’ structure for executive legal review: it can come in many different manifestations along the different variables we identify, each with their own difficult normative trade-offs which involve inescapably political choices. However, we argue there is at least one normatively desirable feature that executive legal review should have – some minimum level of transparency that can enable robust scrutiny of advice. Without this, it is difficult to even know the influence the advisor might have, and advice will be insulated from any contest or debate, which is not a desirable trait for constitutional democracies.

Our principal conclusion is that the work of apex government lawyers 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. The basis for appointing executive lawyers; codification of their precise role & purpose in constitution and statute; and the ethics and norms which govern their work: all these and more merit close attention. 

Our work is, perhaps, best characterised first as a tentative step in developing this field of comparative study, and secondly as an offer. Many of the scholars contributing to this symposium highlight the relative and surprising novelty of the topic. Others note and draw on excellent work that has been done previously on this topic in various jurisdictions. Both comments, we think, are correct and important. The topic has not been the subject of broad comparative constitutional law scholarship, and this is a surprising gap that should be filled. But the way to this has been paved by brilliant prior work of other scholars (some of them contributors to this symposium). We hope that our contribution invites and facilitates much broader engagement with the topic. The limited examples we have picked, though helping to anchor comparison and come up with a framework for analysis, barely scratch the surface of the diversity of practice around the world. This symposium itself offers fascinating commentary about other jurisdictions where these questions are underexplored and in need of close scrutiny. We greatly hope that our work here is a springboard for much wider analysis.

Secondly, the framework and analytical tools we suggest in our article should not be taken as in any way comprehensive or final. Instead, they are an offer: a suggestion of how to frame these questions, and a starting point to build fuller and better frameworks that work for different legal contexts. Again, we see this happening even in this symposium: several of the contributions insightfully add new axes for analysis of legal advisors, or complicate the question of the identity and role of such advisors that our research assumes. If the framework we offer here helps to build deeper and more useful ones in the future, we would consider this a great success. 

Conor Casey is a Lecturer in Law at the University of Liverpool

David Kenny is an Associate Professor of Law at the University of Dublin, Trinity College

Suggested citation: Conor Casey and David Kenny, ‘Symposium Introduction: ‘The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law’’, IACL-AIDC Blog (31 January 2023) https://blog-iacl-aidc.org/wmps-gatekeepers/2023/1/31/symposium-introduction-the-gatekeepers-executive-lawyers-and-the-executive-power-in-comparative-constitutional-law.