Interpenetration of Powers: Channels and Obstacles for Populist Impulses

29 Washington International Law Journal 461 (2019)

University at Buffalo School of Law Legal Studies Research Paper No. 2018-017

26 Pages Posted: 29 Aug 2019 Last revised: 18 Sep 2019

See all articles by Anya Bernstein

Anya Bernstein

University at Buffalo Law School

Date Written: April 1, 2019

Abstract

Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article employs a political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in the late twentieth century.

My interviews probe how administrators understand their work and view the conditions for its legitimacy. American administrators tend to hew to a rather rigid notion of separated powers, in which too much interaction with those outside the executive threatens the legitimacy of agency action. Taiwanese administrators, in contrast, tend to present their regulatory practices as highly dialogic: they achieve legitimacy through precisely those kinds of ongoing interactions with multiple outside influences that make American administrators wary. I suggest that this insistence on interpenetration of powers as a hallmark of legitimacy raises conceptual obstacles to populist impulses, which seek to cordon off executive action from outside influence and bypass legislative power and public influence. In contrast, the ideal of separated, antagonistic powers that underlies American administrators' descriptions of their work presents potentially hospitable channels for the flow of populist desires.

Suggested Citation

Bernstein, Anya, Interpenetration of Powers: Channels and Obstacles for Populist Impulses (April 1, 2019). 29 Washington International Law Journal 461 (2019); University at Buffalo School of Law Legal Studies Research Paper No. 2018-017. Available at SSRN: https://ssrn.com/abstract=3444885

Anya Bernstein (Contact Author)

University at Buffalo Law School ( email )

School of Law
624 O'Brian Hall
Buffalo, NY 14260-1100
United States

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