—Ming-Sung Kuo, Reader in Law at the University of Warwick School of Law
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists, see here.]
Introduction
As with many readers of the I•CONnect, I have been ruminating over what I saw and heard in the three-day intellectual feast of the 2026 ICON•S Annual Conference since returning from Dublin. It was fun to learn from colleagues with fresh ideas from different places in the world. Along with the intellectual excitement came the joy of greeting old friends and meeting new family members of the ICON•S as well as the sorrow at the loss of model colleagues ploughing the fields in their own ways and the absence of some pillars of this community. Sharing ideas, reflections, and research results became our way to enrich ourselves, to bring in new-generation scholars, and to celebrate and remember the achievements and lives of the trailblazers. In this era of constitutional tumult, the separation of powers unsurprisingly came to the fore on many panels, while new ideas were debated about alternative arrangements on constitutional powers, in a seemingly joint endeavour to better constitutional democracy. The fourth-branch institutions were one such idea as testified to by the papers presented on the University College Dublin’s idyllic campus.
Yet, outside the ICON•S universe bristling with ideas and numbers, the real-world backdrop against which the renewed interest in the fourth-branch institutions arose, has continued to be undergoing constant changes. Amid and after the ICON•S Conference, some independent institutions are finding themselves in a stormy constitutional landscape as new scenes of the fourth branch are unfolding in Washington, DC and Taipei. Before shifting the focus to the real-world universe, let us take a look at the scene of the fourth branch that played out at the ICON•S in Dublin.
Dublin: The Fourth Branch (Re)Imagined by Scholars
The concept of the fourth branch – including institutions geared towards ensuring government integrity, guaranteeing constitutional norms, or meeting governance needs – is not new. Well before the birth of the ICON•S, the ‘fourth branch’ as a separate power existing independently of the three great branches under the classical tripartite separation of powers system had been discussed as part of the story of how constitutional governance had evolved, and taken the form of the administrative state. In this narrative, governance and regulation lay at the heart of the fourth branch. Regulatory bodies governing monetary policy, mass communication, and market competition, just to name a few, provided one source of inspiration for discussion of the fourth-branch institutions.
This very American account of such governance and regulatory bodies only tells half of the story of the birth of the fourth branch. Instead of the American variety of the fourth branch that was first established by statutes and then constitutionally recognized through judicial rulings, election commission and other independent institutions, as set out in the Constitutions of what Ran Hirschl called the ‘new world’, including India, have really prompted rethinking of the separation of powers. Drawing on the experiences of the new constitutional world from the Global South, the scholarly discussion of the fourth branch has focused on how constitutional democracies can be made resilient through alternative arrangements on the constitutional organization of power. To save constitutional democracies from authoritarian capture, the fourth branch has been invoked to preserve the integrity of democratic election, to ensure the independence of knowledge-producing and truth-seeking bodies, and to provide the antidote to trust-eroding corruption amid the global populist insurgency. This underlies the newfound interest in the fourth branch as manifested in the several presentations at the ICON•S Conference in Dublin. Yet, with emphasis on the provision for the democracy-saving, truth-pursuing, and corruption-countering institutions in the formal capital-C Constitution, the debates surrounding the fourth branch as played out at the constitutional universe of scholars gathering in Dublin seemed to be centred on the stage of constitutional design with little to say on the stress test facing the imperfect fourth-branch institutions in the real-world constitutional universe.
Washington, DC: The Fourth Branch Dismantled by Justices
Soon after the kick-off of the 2026 ICON•S in Dublin on 29 June, the judicial temple seated in Washington, DC issued a seismic decision that shook the foundations of the American administrative state to the core. In Trump v Slaughter, the Supreme Court of the United States (SCOTUS) formally overruled Humphrey’s Executor v United States, the 1935 decision that had provided the constitutional foundation for statutory restriction on the president’s power to remove his appointees from such offices of fixed-term tenure created by the congress and thereby laid the groundwork for independent regulatory bodies known as the fourth-branch institutions. As students of US administrative law have long been taught, statutory restriction on the president’s removal power with respect to officials of independent regulatory bodies who are appointed by the president for a fixed term after having received the consent of the Senate, has been central to the creation and operation of the American administrative state. Without such restriction paired with fixed-term tenure, institutional independence and decisional autonomy required for banking regulation, monetary policy, new communications, market efficiency, and other governance needs would go out the window. Thus, by striking down the ‘for cause’ removal provision in Slaughter, SCOTUS hollows out the fourth branch under the theory of the unitary executive. What is more, putting the fourth-branch institutions at the mercy of the president in the name of democratic accountability, SCOTUS further dismantles the institutional architecture of modern governance in the United States.
Mindful of the ground-shaking implications of Slaughter to the pillar institutions of the American administrative state and its destabilizing effect on the global economy, SCOTUS, in the parallel Trump v Cook issued on the same day, laboured to carve out a narrow constitutional strip for America’s utmost fourth-branch institution, the Federal Reserve Board. Read together, the Slaughter–Cook duoeffectively suggests a parallel constitution of economy alongside – if not above – the US Constitution, notwithstanding SCOTUS’s appeal to textualism and originalism in its latest dismantling of the American administrative state. The American experience since the early 20th century has suggested the need to look beyond the formal constitutional instruments in appreciating the normative and institutional status of the fourth branch against emergent governance modes prompted by new challenges. Moreover, the residuum of the fourth branch entailed from Slaughter and Cook has exposed the conflation of democratic legitimacy and accountability in thinking about alternative arrangements constitutional powers beyond the three great branches.
Taipei: The Fourth Branch Stymied under Divided Government
On 3 July, another scene of the fourth branch in the real-world constitutional universe came up in the parliamentary hall in Taipei. All the three commissioner candidates nominated by the government (the Executive Yuan) for Taiwan’s Central Election Commission (CEC) were rejected by the opposition-controlled parliament (the Legislative Yuan). To appreciate what this means to the fourth-branch institutions in Taiwan, let us rewind the scene a bit.
The CEC, an independent institution under the Executive Yuan, was reduced to a rump body of four commissioners in November 2025, which rendered the CEC unable to meet the statutory minimum quorum of five. Considering the CEC’s crucial role in ensuring the integrity and fairness of free elections in Taiwan and the upcoming municipal elections in 2027, the premier, the head of the Executive Yuan, submitted to the Legislative Yuan a list of seven nominees in late December 2025,[1] including three candidates proposed by the opposition coalition. Capitalizing on their majority status in the Legislative Yuan, the opposition coalition held up the vote on the nomination until March 2026. In the end, only four vacancies (including the chairperson) were filled. The quorum crisis was prevented. The opposition coalition voted down three of the seven nominees, though, on the grounds that they fell into line with the ruling party’s political position on election reform among other issues. The parliamentary rejection of the three government-proposed nominees for the CEC just after the ICON•S in Dublin was a rerun of the first and failed round of nominations in March 2026.
This is not the place to conduct a thorough examination of Taiwan’s statutory creation of the quasi-constitutional fourth-branch institutions such as the CEC, the National Communications Commission, and the Prosecutor-General. As has been reported, along with constitutionally established state organs such as the Taiwan Constitutional Court (TCC), Taiwan’s fourth-branch institutions have been stymied under ultra partisan rivalry since the 2024 general elections resulted in divided government. In contrast to the American constitutional counterrevolution against the fourth-branch institutions and the US administrative state in general, the constitutionality of the statutes-created fourth-branch institutions in Taiwan has rested on a rock-solid basis thanks to the TCC’s landmark interpretation. The troubles the fourth-branch institutions – as well as the TCC and other constitutional organs – in Taiwan have found themselves in lie in prioritizing formal pedigree of democratic legitimacy under the ‘transmission belt’ model over functioning constitutional governance in the design.
It bears emphasis that the democratic legitimacy-centred institutional design was introduced in the 1990s when Taiwan was in transition to constitutional democracy after the martial law decree was lifted in 1987. Democratization and liberalization then arrived in Taiwan at the same time. Building a modern state through institutional reform was absorbed into the pursuit of democratic control of state power by a resurrected parliament. Driven by Taiwan’s democratization, the establishment of the fourth-branch institutions and the constitutional reform on state organs such as the TCC were thus centred on democratic legitimacy as seen through the ‘transmission belt’ lens. Whether the Legislative Yuan, a directly elected representative body, could play a constructive role in deliberative scrutiny of nominees for these independent bodies – which should be a precondition for the parliamentary prerogative to consent on such appointments – was not even asked. Not dismantled, the fourth branch in Taiwan is stymied when the executive and the legislative branch are not controlled by the same party. The scene of the fourth branch from Taipei shows that constitutional democracy may wither where legitimacy and accountability are conflated, while institutional legitimacy is reduced to formal democratic pedigree.
Fields of Constitutional Learning
The three scenes of the fourth branch as briefed above show the multifaceted character of a constitutional phenomenon. With the benefit of hindsight and rigorous research, scholars may be well-placed to come up with ‘scientific’ plans of constitutional design and institutional arrangement, including an updated version of the fourth branch, that can withstand the test of exclusionary populism. Still, the scenes of the fourth branch from Washington, DC and Taipei suggest that institutions, including those classified as the fourth branch, were created and repackaged in response to the immediate challenges confronting constitutional actors. Those institutional planners did not land up with an imperfect fourth branch because of ignorance or failure to learn well from scholars’ scientific ideas. Rather, they acquired their knowledge and made their judgment in the field of action. Learning the societal needs in constitutional action, they decided on their chosen design, without a guarantee that it would work out. Amid the dog days of summer after the 2026 ICON•S in Dublin, I continue to learn the fourth branch and other constitutional phenomena by the light that a variety of gardeners meticulously nurturing the landscape of global public law have helped to shine across fields of the constitutional project.
Suggested citation: Ming-Sung Kuo, Post-2026-ICON•S: Three Scenes of the Fourth Branch in Two (Parallel) Constitutional Universes, Int’l J. Const. L. Blog, July 8, 2026 at:http://www.iconnectblog.com/three-scenes-of-the-fourth-branch-in-two-parallel-constitutional-universes/
[1] The CEC’s organic law caps the number of commissioners at 12, while providing that the CEC shall have not less than 9 commissioners.