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Emory International Law Review

René Reyes

Abstract

The United States and the United Kingdom share a common legal history and a number of fundamental constitutional values. Some of these fundamental values may occasionally come into conflict. For example, in 2019, both the United States and the United Kingdom experienced considerable legal and political upheaval as debates over the scope of executive power and the accountability of the executive branch came to the fore. In the United States, these debates culminated in the impeachment of President Donald Trump for abuse of power and obstruction of Congress. In the United Kingdom, the furor focused on Prime Minister Boris Johnson’s approach to Brexit and his attempt to prorogue Parliament. The impeachment drama and the Brexit saga were so severe that each was frequently referred to as a “constitutional crisis” in the popular press and public discourse. These parallel constitutional crises and the litigation they generated afford a valuable opportunity to analyze each country’s commitment to democratic accountability of the executive from a comparative perspective. The results of such an analysis may well pose a challenge to commonly held assumptions about American exceptionalism in matters of liberty and democracy. Indeed, throughout the impeachment crisis, it was frequently asserted that “Presidents are not kings”—seemingly suggesting that it is obvious that the executive department is subject to greater legal constraint under a presidential system like the United States than under a constitutional monarchy like the United Kingdom. But a deeper examination of U.S. and U.K. constitutional law paints a different picture. Through an analysis of the constitutional crises of impeachment and Brexit, this Article argues that executive authority is in fact significantly more accountable to democratic control under the British model of government than under its American counterpart. While the American experience reveals that extreme claims of executive power have largely gone unchallenged and unchecked by the other branches of government, the British sequence of events testifies to an enduring constitutional commitment to popular and parliamentary sovereignty. The Article concludes by arguing that a key lesson to be drawn from these constitutional crises is that the British system may actually do more to honor the commitment to “a government of laws and not of men” that has long been said to be central to the American constitutional order.

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