The gatekeepers: Executive lawyers and the executive power in comparative constitutional law

The growth in the power of the executive branch of government has been accompanied by a related growth-heretofore unexplored in the literature on comparative constitutional law-of the role and importance of executive legal advisors. These influential but often secretive advisors can be the first-and sometimes the only-group to review the actions of the executive or legislative proposals before enactment, for compliance with the constitution. In this article, we compare this practice in four similar but somewhat distinct jurisdictions-the United Kingdom, Canada, the United States, and Ireland-to assess its impact on constitutionalism and the executive power. We conclude that the practice of constitutional review by executive lawyers is highly variable, changing between places and over time along four key axes that can either empower or constrain the executive to varying degrees. It can restrain executive action by holding it within 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 overly tightly binding executive and legislative action. Constitutional advice from executive legal advisors, then, does not operate as an exogenous constraint on executive power, but can be structured and manipulated by the executive to have various different effects. As such, we argue that this institution 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. Finally, we argue for increased transparency in the provision of executive constitutional advice, as without this, even understanding its effects is extremely difficult.