Latin American presidents frequently exercise policymaking authority that would be the envy of U.S. presidents frustrated by a fractious Congress and hobbled by the lengthy rulemaking procedures of the Administrative Procedure Act (“APA”). This Article critiques the hyper-presidential administration of those Latin American democracies characterized by broad executive policymaking powers and limited procedural safeguards.
In the United States, although some celebrate presidential dominance as a route to democratic accountability, others observe that presidents can undercut agency independence, effectiveness, and public transparency. Public participation through notice-and-comment procedures, enforceable in courts, provides the primary source of democratic legitimacy for regulations. We argue that without procedural checks on executive policymaking, a presidential administration in the United States can approach the hyper-presidential administrations of some Latin American countries, now and in the past. Presidents may use their regulatory powers to entrench and expand their policymaking discretion, thus undermining agencies’ ability to engage in technical and independent decision-making and eroding effective legislative, judicial, and public scrutiny.
Our review of public administration in Latin America underscores the importance of administrative procedures designed to provide legal safeguards against the abuse of executive policymaking power. Administrative law in the region focuses primarily on individual adjudications and the maintenance of public power, imposing few procedural constraints on the promulgation of regulations and other broad policies. Elections are a public check on the Executive, but they provide only retrospective and diffuse scrutiny. Attempts to use other legal mechanisms, such as separation of powers, constitutional rights, public information access, and direct democracy are positive developments. However, administrative law in much of the region has largely failed to constrain extensive and arbitrary executive policymaking.
To ensure democratic accountability, countries in Latin America should consider procedural safeguards that guarantee reasoned and participatory processes in executive policymaking, drawing on the experience––both positive and negative––of the United States. Latin America’s historical experience demonstrates the risks of hyper-presidential administration inherent to any presidential government, whether in Latin America or the United States. At the same time, recent developments suggest that the United States can learn how collective rights and direct democracy facilitate public participation in government decision-making.