Biodiversity Protection and Executive Power in Australia and Canada: Delegation of Authority under Parliamentary Systems

How does regime type affect delegation of authority? In the existing literature, most authors have assumed that legislators in parliamentary systems tend to enact vague, non-specific statutes, which delegate most decision-making powers to executive agencies. However, as I argue in this paper, this relationship may not be as strong as suggested. Rather, legislators can and do use restrictions on executive authority as a part of their drafting strategies, no matter the background system of government. To illustrate this claim, I conduct a close examination of two policymaking episodes: specifically, development and implementation of biodiversity statutes in Australia and Canada. In both cases, discretionary restrictions formed a central part of the drafting process, as legislators sought to constrain executive authority on biodiversity protection. In practice, these restrictions have not been at all well-enforced; however, legislators still viewed these restrictions as a viable and useful part of their drafting strategies. Based on these cases, then, scholars should be cautious about making blanket characterizations about policymaking modes based solely on regime type. Instead, authors should focus on lower-level features like bicameralism and electoral systems, and the influence these features exert on the political balance of power. What factors cause legislators to delegate policymaking powers? When constructing a new policy program, one of the first decisions drafters must make is how much authority to allocate to the executive branch. By giving bureaucrats wide decision-making latitude, legislators can often improve administrative performance, removing cumbersome procedural requirements and inflexible policy targets. Left unchecked, though, discretionary executive authority can create major problems for democratic accountability. These kinds of concerns are not restricted to academic circles; for example, in American debates over the Affordable Care Act, conservative commentators often worried about the role of unelected, unaccountable “death panels,” which could potentially restrict access to life-saving treatments. Legitimate or not, these concerns reflected a basic uneasiness about unchecked discretionary authority, and its impacts on administrative performance and downstream policy outcomes. Scholars have studied delegation dynamics extensively in the American setting. Thus far, however, few authors have expanded the delegation framework to the comparative context. When considered at all, discretionary restrictions are usually viewed as an American phenomenon, occurring relatively rarely outside of the United States. Compared with their counterparts in the US, scholars have argued, parliamentary legislators possess neither the incentives nor the capacity to impose heavy restrictions on executive authority. As I argue in this paper, though, these factors are probably less influential than scholars have previously assumed. Though institutional context can affect affect drafting tendencies, legislators in all systems of government can and do use discretionary restrictions as part of their drafting strategies. To illustrate these claims, I conduct a close examination of two case studies: specifically, development and implementation of biodiversity in Australia and Canada. In both countries, the major biodiversity statutes impose strong restrictions on executive authority, with comparable provisions to those found in American biodiversity law. As predicted in the existing literature, the restrictive provisions contained in these statutes were not at all well-enforced. Nevertheless, because of intense interand intra-party conflicts, legislators in both Australia and Canada were willing to risk significant political capital to draft and pass restrictive statutes. The remainder of this paper will be divided into three sections. First, I describe the existing literature on comparative delegation dynamics, and contrast it with more recent scholarship from the literature on comparative legal systems. Second, I lay out my two case studies, describing both the implementation and drafting processes for both statutes I examine. Though these cases are by no means conclusive, they illustrate potential causal processes underlying legislative drafting in the comparative context, suggesting important and exciting new directions for future research. Delegation in Parliamentary and Presidential Systems Explicitly or not, delegation studies often start with a basic puzzle: why would a legislator ever want to restrict an agency's discretionary authority? Almost by definition, bureaucrats possess greater domain-specific knowledge and expertise than elected representatives. As a result, discretionary restrictions – for example, deadlines, evidentiary requirements or citizen-suit provisions – often inhibit agency performance, reducing administrative flexibility and forcing bureaucrats to fulfill cumbersome legal requirements (Kagan 2001). Worse, discretionary requirements are also costly for legislators to create and enforce (Moe 1990). On the drafting side, creating discretionary restrictions requires significant legislative capacity, forcing legislators to develop detailed policy prescriptions and incentive structures (Huber, Shipan, and Pfahler 2001; Huber and Shipan 2002). And, on the implementation side, most discretionary restrictions involve active, long-term oversight, requiring proponents to investigate and punish agency malfeasance (Epstein and O’Halloran 1999). Some restrictions are easier to enforce than others; for example, “fire alarm”-type regulations usually require a smaller time investment than “police patrols” (McCubbins and Schwartz 1984), since most of the monitoring costs can be handed off to outside interest groups. Even in these situations, though, legislators are not likely to pass discretionary restrictions without some strong outside motivation. Conflict between the executive and the legislature usually provides the answer. Sometimes referred to as the “ally principle,” this explanation suggests that delegation should manifest as a principal-agent game, where the probability of legislative delegation decreases as probability of executive malfeasance rises (McCubbins 1985). Almost by definition, statutory restrictions on executive activity give legislators greater control over policy implementation, allowing elected representatives (or their preferred interest groups) to identify and punish instances of agency malfeasance. By setting reporting requirements, imposing deadlines and evidentiary standards, and encouraging citizen-initiated lawsuits, legislators can “[lower] the costs of monitoring and [sharpen] sanctions [. ] [producing] an equilibrium in which compliance is greater than it otherwise would be” (McCubbins, Noll, and Weingast 1987, 273). Subsequent studies have complicated this story somewhat, but the basic principles have remained consistent. In both the American and the comparative contexts, scholars have observed a consistently negative relationship between executive-legislative conflict and delegation of authority (e.g. Epstein and O’Halloran 1999; Franchino 2004; 2007; Oosterwaal, Payne, and Torenvlied 2011; Saalfeld 2005). As mentioned earlier, restricting executive discretion is generally a costly strategy; as a result, some authors have found that lower-capacity legislatures are also less likely to impose discretionary restrictions (Huber and Shipan 2002). Other writers have observed a similar negative relationship between issue complexity and delegation (Epstein and O’Halloran 1999). These findings are well-established in the American setting, but few writers have attempted to generalize them to the comparative context. In one of the only major cross-national studies on delegation of authority, Huber and Shipan (2002) do compare delegation patterns across a number of parliamentary governments; however, they generally exclude institutional features from their analyses, focusing instead on political variables like coalition and minority governments. Of those scholars who have considered the relationship between system of government and delegation of authority, most have assumed that restrictions on executive authority should be more common in in presidential systems than in parliamentary ones. Existing studies have offered at least two primary reasons for this prediction: 1. Legislative-executive separation. Throughout the literature on regime classification, direct election of the chief executive forms a core distinguishing feature between presidentialism and parliamentarism (see, e.g., Cheibub, Elkins, and Ginsburg 2013; Elgie 1998). In presidential systems, legislators and executive leaders answer to different constituencies and face different reelection time horizons (Moe and Wilson 1994). As a result, the separation-of-powers system institutionalizes a relatively high level of executive-legislative conflict, encouraging broad restrictions on delegated authority. By contrast, in parliamentary systems, legislators appoint the chief executive, ensuring a certain level of accordance between legislative and executive leaders and reducing opportunities for executive-legislative conflict (Ibid). 1 Moe and Caldwell (1994) and Shapiro (2002) also argue that legislation in presidential systems ought to be more durable than in parliamentary ones, allowing legislators to “insulate” their preferred programs against executive interference. As Tsebelis (1995) notes, however, not all presidential governments possess as many veto players as the United States, creating substantial variation in the likely level of status quo bias within these systems. 2. Legislative capacity. Legislators operating in separation-of-powers systems possess a relatively large capacity to oversee and enforce discretionary restrictions. Again, different governments do display substantial variation in their respective leg