Legislative Supremacy Research Articles

Circumventing Section 116 Through ‘Indirect or Devious Means’: Freedom of Religion and the Boundaries of Executive Power

This article considers how section 116 of the Australian Constitution applies to executive power. Notwithstanding that the express terms of s 116 apply only to legislative power, we argue that s 116 should be interpreted to also limit the exercise of executive power. A literal interpretation would have the effect that the Commonwealth can circumvent a constitutional limitation on legislative power through the exercise of executive power and would undermine the fundamental constitutional principle of legislative supremacy. An implication that s 116 restricts executive power in the same fashion as legislative power enhances the coherence of the Constitution as creating an integral polity and eliminates disconnect between legislative power and executive power with respect to the same subject matter.

Lessons from the age of empire: the UK Internal Market Act as a rupture in the understanding of competence

The emergence of devolution in the United Kingdom (UK) has led to the emergence of a significant body of jurisprudence to understand its place in the UK constitution, including various conceptual frameworks to explain its operation. A problem with some of this jurisprudence is the characterisation of devolution as novel or exceptional, capable of being understood only on its own terms. An examination of the history of constitutional development within the British empire, however, reveals otherwise. Imperial history shows that the issues faced by devolved administrations in the post-Brexit UK – uncertainties about competence and the extent of dynamism and plurality, for example – have emerged before. More than that, they were dealt with by a combination of statutory text, judicial approach and political pragmatism. Some of these solutions provide a rich source from which lessons can be drawn for present-day challenges.This article explores how legislative competence was understood across the empire and the UK before the emergence of devolution in its most recent form. It looks at the political and judicial approaches to thorny questions of legislative supremacy, legislative subordination, political paramountcy and political pragmatism. This article aims not only to challenge the myth of devolution’s sui generis nature but demonstrate why the UK Internal Market Act 2020 represents a rupture in how competence was constitutionally understood. In this way, we may be better equipped to understand and resolve the problems of devolution posed by Brexit.

The Purpose Error in the Modern Approach to Statutory Interpretation

The modern approach to statutory interpretation mandates that statutes be read with an eye toward harmonizing their text, context, and purpose. This article notes that jurists can stray from the modern approach by prioritizing abstract statutory purposes over the specific legal rules by which an act pursues these objectives, a mistake here identified as the “purpose error.” The article argues that the purpose error contradicts the principle of legislative supremacy and recent guidance by the Supreme Court. The article furthers suggests that two factors generally drive the commission of the purpose error. First, the definition of the statutory purpose at an unduly high level of abstraction. Second, the failure to qualify a statute’s primary purpose by considering other competing secondary purposes that the act also aims to achieve. The article finally submits that awareness of the “purpose error” is key to ascertaining the scope of the “making available” right under the Copyright Act — a question that will soon come before the Supreme Court.

Rights, Mini-Publics, and Judicial Review

AbstractLandmark Supreme Court rulings determine American law by adjudicating among competing reasonable interpretations of basic political rights. Jeremy Waldron argues that this practice is democratically illegitimate because what determines the content of basic rights is a bare majority vote of an unelected, democratically unaccountable, elitist body of nine judges. I argue that Waldron's democratic critique of judicial review has implications for real-world reform, but not the implications he thinks it has. He argues that systems of legislative supremacy over the judiciary are democratically preferable to the American one. I provide reasons why his argument is unsound and explain that, properly construed, Waldron's premises support implementing a system where ordinary citizens chosen by lottery participate in a deliberative mini-public to vote on which reasonable interpretation of a basic political right will become the law of the land.

Towards a European Principle of Independence: The Ongoing Constitutionalisation of an Independent Energy Regulator

This article analyses recent case law of the European Court of Justice in which the European requirements concerning the political independence of national regulatory authorities in the energy sector were interpreted in a broad way. These judgements were delivered in a time in which a strong independent authority plays a crucial role in the acceleration of the energy transition by safeguarding fair market access to new entrants offering innovative energy services. At the same time, the European developments towards a politically independent regulatory authority with discretionary, regulatory, powers is at odds with the way the democracy principle and the legality principle have traditionally been interpreted in several Member States, such as in the Netherlands and Germany. However, it is argued that the latter principles do offer scope for a different interpretation than the more traditional one of the principle of legislative supremacy. A condition, however, is that accountability mechanisms must be improved to provide citizens a legal guarantee that they can have a say and that the regulatory authority can be held accountable by the courts.

The Duality of Jurisdictional Error

Jurisdictional error has a prominent role in entrenched review of executive action in Australia, despite near universal acknowledgment that it does not illuminate the operative norms of administrative law. A statutory approach to jurisdictional error dominates in Australia, despite widespread agreement that the concept is merely conclusory. It is widely assumed that the path to explain - or to challenge - these matters is through better understanding a legislative supremacy rationale for jurisdictional error. However, a more compelling account of jurisdictional error can be drawn from a fundamental constitutional characteristic of executive power: The lack of inherent executive power over legal rights or obligations. By drawing out this distinct constitutional foundation for review of purported executive decisions, this article shows that the prominence of jurisdictional error in entrenched review of executive powers is explicable for substantive constitutional reasons, which reasons also cast light on why the concept does not require a statutory approach to the grounds of entrenched review.

The Alberta Court of Appeal's Vexatious Litigant Order Trilogy: Respecting Legislative Supremacy, Preserving Access to the Courts, and Hopefully Not to a Fault

The Alberta Court of Appeal's Vexatious Litigant Order Trilogy: Respecting Legislative Supremacy, Preserving Access to the Courts, and Hopefully Not to a Fault

Misappropriating Chevron for a New Nondelegation Test

The Supreme Court has recently signaled its interest in developing a new nondelegation test, one that would have courts more aggressively police Congress’s delegations of power to agencies. This could represent a death knell for significant climate action. The technical and scientific complexity of climate change mean that it is a problem uniquely suited to redress by expert agencies. If Congress is not permitted to delegate authority to agencies to address climate change, then it will be difficult for meaningful action against climate change to be taken at the federal level. With this threat in mind, this Article evaluates the emerging basis for the Court’s new nondelegation test: Chevron. The Court has hinted that it will look to two rules developed under Chevron to guide its revived nondelegation doctrine: the major questions doctrine and the jurisdictional exception that Chief Justice Roberts laid out in City of Arlington. By grounding the long-extinct nondelegation doctrine in the robust body of Chevron jurisprudence, the Court could give the nondelegation doctrine a legitimacy and specificity that a freeform version would lack. This Article argues, however, that transplanting the rules of Chevron to the nondelegation context would be doctrinally and logically incoherent. The Article first explains how the Court’s Chevron jurisprudence is based on a particular legal fiction about congressional delegation of authority to agencies. The Court has used this legal fiction to derive limiting principles for the application of Chevron deference, such as the major question doctrine and the City of Arlington jurisdictional exception. Importantly, Chevron’s limiting principles and the legal fiction underlying them are based on a principle of legislative supremacy, i.e., the understanding that Congress is supreme in the realm of policymaking, and thus courts’ role in interpreting statutes is to be agents of Congress. By contrast, the nondelegation doctrine as it is envisioned by the current Court relies on a notion of judicial supremacy: It imagines that courts have the final say as to what is acceptable policymaking, regardless of Congress’s intentions. Transferring Chevron to the nondelegation context would therefore amount to a categorical error. As a result, the Article concludes that, given the incompatible institutional framework underlying Chevron’s rules, the Court must look elsewhere for inspiration and support for its new nondelegation test.

Nondelegation Step Zero

The nondelegation doctrine, as a matter of both precedent and logic, properly distinguishes between delegations to administrative agencies and delegations to the President, imposing more vigorous scrutiny on the latter. The nondelegation doctrine vindicates the Article I Vesting Clause by preventing Congress from being divested of the legislative power. Its purpose is to reinforce Congress’s legislative supremacy in the realm of ordinary law, not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies. At the same time, the nondelegation doctrine has a valuable role to play in constraining the delegation of broad powers to the President directly, a constraint that encourages delegation of regulatory authority to administrative agencies. The diffuse structure of the modern administrative state is a testament to the great success of the nondelegation doctrine, not evidence of its underenforcement. Indeed, the contemporary push to reinvent the nondelegation doctrine in an indiscriminate way would turn it into something closer to its opposite.

The judicialisation of politics in South Africa: A critique of the emerging trend

In apartheid South Africa, the judiciary was relegated to obscurity by a combination of executive dominance and legislative supremacy. The courts of law had a very narrow function, which was to search for, and implement, the ‘intention of Parliament’. This paradigm shifted with the end of apartheid. In the new dispensation, the courts have consistently held that their role has changed markedly. They are now ‘stronger’ than they were under apartheid’s constitutional edifice. This ‘stronger’ position of the judiciary is indisputably in keeping with the transformative nature of the new constitutional dispensation. However, the excessive power of the judiciary also has the potential to distort the desired balance between the three key branches of government; thereby judicialising the functions of the other two political branches. The untrammelled power of the judiciary is as dangerous as a parliament that operates in terms of the doctrine of parliamentary supremacy. The purpose of this article is to critique this arguably emergent pattern of judicialisation of politics in South Africa.

A Common Law of Choice of Law

For more than a generation, choice of law has been the victim of a historical contingency. The “Conflicts Revolution” of the mid-twentieth century and its legal realist leaders bundled together three concepts that, although all typifying the traditional approach, are not inherently connected: the “scientific formalism” of Bealean territorialism; attention to “system values” like uniformity and predictability; and judicial activism. The revolutionaries tied an anchor to formalism, sinking the regard for system values and judge-led decision-making in the process. This Essay argues that the rejection of system values and judicial lawmaking in the choice-of-law context was a mistake — and it offers a means of reintegrating them into post-revolution choice-of-law thought. Waving the flag of “legislative supremacy,” modern choice-of-law theory has asserted that standard techniques of “statutory interpretation” ought to be determinative of how courts resolve choice-of-law problems. However, the modernists have failed to grapple with what “interpretation” means in a context that is almost never contemplated by legislatures. In recent years, those studying statutory interpretation have become increasingly sophisticated in their understanding of the ways in which courts use expansive sets of resources to counter difficult cases, leading to recognition of the “common law” of interpretation. But, so far, choice-of-law theorists have been left behind — continuing to adhere to a primitive conception of statutory interpretation that shuns the role of the judge and the importance of broader goals, including the facilitation of system values. The Restatement (Third) of Conflict of Laws, currently being circulated in draft form, continues that error, wholeheartedly endorsing an outdated and unworkable mode of interest analysis. This Essay offers a means of modernizing the modernists and rescuing the Restatement (Third) in the process. The key insight is to recognize that judicial creativity and attention to the facilitation of a workable system of choice of law is fully consistent with realism. Moreover, the principle of legislative supremacy is better protected by a methodology that does not mask metaphysical invention behind empty phrases like “interests,” but instead recognizes explicitly the important yet limited role of the judiciary. In line with these recommendations, this Essay advocates for the embrace of a “common law of choice of law” methodology, an approach that recognizes judicial, common-law rule-making and that does not rely on sharp, fictive lines drawn between “interpreting” the law and developing system-oriented rules.

Legislative Intent, Collective Intentionality and Fictionalism

It is commonly taken for granted that legislatures form intentions and act on them. When a legislature passes a law, it comes naturally to think that this is the law that the legislature intended to make. Furthermore, legal officials often claim that they interpret statutes according to the legislature’s intention, or on the basis of the ends that the legislature intended to pursue. Now the question is: can institutional entities such as legislatures have intentional attitudes? According to some writers, the answer is negative. Legislatures are not capable of forming genuine intentions. Legislative intentions can obviously be attributed to the members of a legislative body but individual intentions do not matter with regard to the statutory contents. This standpoint is puzzling, however. As a matter of political theory, it seems meaningless to give a legislative body law-making power unless the law that the members of this body make is the law they intended to make. Furthermore, any conception of judging rooted in the principle of legislative supremacy appears unintelligible without a conception of legislative intent. This is the reasons why a number of legal scholars defend the common view that legislatures do have intentions and act on them. To vindicate this view, however, one is to show that intentional attitudes can be attributed to legislative bodies and that such intentions can be known. An obvious way to address these issues is to rely on collective intentionality. The general idea is that legislative intent is something that individual legislators join together, that allows them to act in a coordinative and cooperative fashion and to achieve collective goals. Based on all this, I will defend four claims in this paper: (1) Individual legislators necessarily share a collective participatory intention when they legislate. A legislature is able to legislate only if individual legislators intend that the legislature enacts a statute. (2) However, participatory intentions do not determine statutory contents, nor individual legislators necessarily share any form of communicative intention when they participate in the legislative activity. (3) When legal officials resort to legislative intent in legal interpretation, they actually make reference to a fictional entity within a collective game of make-believe. (4) Yet, legislative intent qua fictional entity serves important functions in current legal systems. It is the cornerstone of a set of argumentative frameworks that provide guidance to judicial interpretation, contribute to align individual expectations with regard to statutory contents, put constraints on how litigants and courts pursue their goals, help identifying the interpretive practice legal officials are engaged in. In short, legislative intent is a coordination tool for practice of legal officials. Furthermore, fictionalism calls attention to the fact that when judges interpret statuses according to legislative intent, they actually employ various interpretative frameworks that are grounded on concurrent principles and values. Choosing one doctrine of legislative intent over the others ultimately depends on the normative claim that this choice will make legal interpretation better.

The Notwithstanding Clause and the New Populism

The following article asks whether the notwithstanding clause contained in Canada’s Constitution Act, 1982 [Constitution Act]1 remains defensible where populists are in power. It ultimately dismisses two conventional justifications of the clause — one based on a principle of interinstitutional dialogue, one based on a majoritarian principle of legislative supremacy — before briefly considering possible amendments to the clause that may render it justifiable in a populist context (or more generally, where the political convention against using section 33 substantially weakens).

The Notwithstanding Clause and the New Populism

This article asks whether the notwithstanding clause contained in Canada’s Constitution Act, 1982 remains defensible where populists are in power. It ultimately dismisses two conventional justifications of the clause — one based on a principle of interinstitutional dialogue, one based on a majoritarian principle of legislative supremacy — before briefly considering possible amendments to the clause that may render it justifiable in a populist context (or more generally, where the political convention against using section 33 substantially weakens).

The Real Standard Picture, and How Facts Make It Law: a Response to Mark Greenberg

Abstract Mark Greenberg has attempted to refute what he regards as a popular metaphysical thesis about how law is constituted. He calls it the “Standard Picture,” and it includes a “Communication Theory.” His own “Moral Impact Theory” of law is built partly on that attempted refutation. I defend positions that are very close to the Standard Picture and Communication Theory, albeit different in important respects. In particular, they are not primarily metaphysical theses, although they have metaphysical implications. They are actual fundamental doctrines of constitutional law in Anglo-American legal systems, which I call Legislative Supremacy and Legislative Intention. I argue that: (a) these doctrines, and their metaphysical implications, vindicate much of the Standard Picture, and explain why so many theorists have been attracted to it; (b) the doctrines are inconsistent with Greenberg’s Moral Impact Theory; and (c) the best theory of what makes them part of the law is legal positivism: in other words, facts about legal practices make them law. In arguing for (a) and (b), I examine in detail and respond to Greenberg’s account of the legal principles and practice of statutory interpretation. I distinguish between three kinds of interpretation: clarifying, supplementing and rectifying. In arguing for (c), I contend that legal positivism satisfies Greenberg’s (questionable) insistence that any metaphysical account of what constitutes law must satisfy a “rationality requirement.”

The Appellate Rule of Lenity

The Appellate Rule of Lenity, 131 Harv. L. Rev. F. (2018) responds Abbe Gluck & Richard Posner’s recent article, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298 (2018). My piece argues that Professor Gluck and Judge Posner are right to point to appellate courts as the locus of most statutory interpretation, and notes that in their survey of appellate judges, lenity takes on special prominence. But in my review of the actual practice of appellate judges in all the criminal law statutory interpretation cases in the Roberts Court so far and in the appellate courts below, lenity does not fare well. The Supreme Court has elevated the rule of lenity into an interpretive precedent (on par with Chevron deference), I argue, showing that the Justices consider the framework to almost every question of criminal law statutory interpretation and applies the rule to the benefit of the defendant almost a third of the time. By contrast, appellate judges – despite their statements that lenity is special and binding – almost never consider the framework or the rule. If my survey of appellate court practice reflects a broader trend, this Response argues that many courts and commentators have gotten lenity wrong by failing to distinguish between regular consideration of the lenity framework and constitutionally driven application of the rule. Lower courts’ and commentators’ appraisals of lenity have led to the false impression that the Supreme Court’s approach to the framework is inconsistent and weakly grounded. In fact, until the recent misunderstandings that accompanied harsh punishment, mass incarceration, and the breakdown of the criminal justice system the Supreme Court has historically and constitutionally required application of lenity for three distinct rationales: legislative supremacy, due process/fair warning, and defendants’ rights. In the end, I argue for a return to the “constitutional rule of lenity,” as not only a desirable but arguably required approach to criminal law statutes, which is particularly timely as a guide for appellate and other judges to respond appropriately to the increasingly urgent need for more cautionary approaches to criminal law statutory interpretation in view of the collapse of the American criminal justice system.

Judicial Review of Constitutional Amendments: Taiwan

Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, whereas “soft” review attempts to strike a balance between judicial and legislative supremacy by giving the legislature the ability to override or set aside what the courts have done. However, the binary hard/soft distinction does not convey the full spectrum of possibilities between the extremes of legislative and judicial supremacy. On the one hand, so-called “hard” review can in practice operate like soft review because, even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. On the other hand, courts have increasingly turned to options that are harder than “hard” review. A small but growing number of courts—the Taiwanese Constitutional Court among them—have claimed the power to invalidate constitutional amendments as unconstitutional. Yet even judicial review of constitutional amendments does not exhaust the options at their disposal. Analysis of Taiwan’s experience with judicial review over the last thirty years holds a number of lessons about judicial power and constitutional politics. First, “soft” review, “hard” review, and even review of constitutional amendments are merely intermediate points on a spectrum of judicial power that ranges from no judicial review to the judicial initiation of constitutional amendments. Moreover, the spectrum itself is dynamic and prone to expansion. In the face of new challenges, courts find new ways of asserting themselves, and in so doing, they continually remake the frontiers of judicial power. Second, there is no point on this spectrum where a court—or any other institution—is guaranteed the last word. Whenever courts assert themselves, other institutions have the ability to respond, and vice versa. Different responses are available at different points on the spectrum, but a response always exists. It is a defining characteristic of politics that, for every move, there exists a countermove. Finality is as elusive in constitutional politics as in any other form of politics. Third, the celebration of “dialogic” judicial review—in which constitutional questions are resolved via interaction between courts and legislatures rather than by judicial fiat—is problematic because, in some sense, all judicial review is “dialogic”. The fact that courts are never guaranteed the last word means that every plausible institutional configuration can be characterized as “dialogic” in the sense of allowing or inviting some degree of interaction, or “dialogue,” between the courts and the legislature. Finally, a court’s position on the spectrum of judicial power is not necessarily fixed by the constitution and can instead be highly fluid. As the recent history of the Taiwanese Constitutional Court demonstrates, it is possible for a court to traverse the entirety of the spectrum in a relatively short period of time without any corresponding change in the constitution itself. Major shifts in judicial power can occur without formal constitutional change because judicial power is at least as much a function of the political and institutional context as of the constitutional text.

'Something New Under the Sun?' A NZ-Centric Critique of Comparative Constitutional Law Scholarship on the Anglo-Commonwealth 'Model' of Human Rights Protection

There is a substantial body of literature suggesting that the new generation of Anglo-Commonwealth bills of rights exemplifies a discrete third form of constitutionalism; one that is distinct, that is, from the traditional paradigms of legislative and judicial supremacy. There is also a substantial literature critiquing this distinctiveness (as I call it). But that critical literature tends to be dominated by northern hemisphere perspectives. My project here is to develop a critique specifically from the perspective of the New Zealand Bill of Rights Act - one of the earliest exemplars of the (so-called new Commonwealth model). Ultimately, I suggest here that the real error made by constitutional distinctiveness scholars is in treating the“traditional paradigm” of legislative supremacy as a static benchmark, frozen in time around the middle of the twentieth century. The truth is far more complex. The NZ Bill of Rights was layered onto a system that was, and is, in constant flux. The constitutional distinctiveness hypothesis fails not because the NZ Bill of Rights creates nothing new, but because it does so in synergy with what came before it. The NZ Bill of Rights and the common law are not hermeneutically sealed. They are both on the move. But we cannot understand that journey unless we appreciate that they are travelling hand in hand.

A house divided: The Supreme Court of Canada’s recent jurisprudence on the standard of review

In this article, the author examines the Supreme Court of Canada’s administrative law jurisprudence in 2016–18 to measure the level of deference that the Court afforded to administrative decision makers and to assess where the law may be headed next. The Court’s voting patterns indicate that its members have become increasingly polarized, moving away from the high level of unanimity that has historically prevailed in this area. Led by Justice Suzanne Côté, a minority of justices have frequently dissented or concurred in order to disagree on either the identification or the application of the standard of review. These justices have taken a more interventionist approach, voting to apply the correctness standard and to overturn administrative decisions at higher rates than the rest of the Court. This quantitative polarization reflects doctrinal disagreements on basic questions such as the extent to which administrative decision makers should be presumed to have expertise relative to the courts in interpreting their enabling statutes, whether there is any room in the standard of review analysis for either the concept of jurisdiction or a contextual inquiry, whether legislative supremacy or the rule of law should take precedence, and whether the standard of review analysis should be replaced with a single reasonableness standard. Looking ahead to the Court’s forthcoming reconsideration of Dunsmuir v New Brunswick, which approach prevails may be determined by Justice Michael Moldaver, whose voting pattern on the issue has been inconsistent, and the Court’s newest member, Justice Sheilah Martin, whose views on the standard of review analysis are not known.

The Real Standard Picture, and How Facts Make It Law: A Response to Mark Greenberg

Mark Greenberg has attempted to refute what he regards as a popular metaphysical thesis about how law is constituted. He calls it the “Standard Picture”, and it includes a “Communication Theory”. His own “Moral Impact Theory” of law is built partly on that attempted refutation. I defend positions that are very close to the Standard Picture and Communication Theory, albeit different in important respects. In particular, they are not primarily metaphysical theses, although they have metaphysical implications. They are actual fundamental doctrines of constitutional law in Anglo-American legal systems, which I call Legislative Supremacy and Legislative Intention. I argue that: (a) these doctrines, and their metaphysical implications, vindicate much of the Standard Picture, and explain why so many theorists have been attracted to it; (b) the doctrines are inconsistent with Greenberg’s Moral Impact Theory; and (c) the best theory of what makes them part of the law is legal positivism: in other words, facts about legal practices make them law. In arguing for (a) and (b), I examine in detail and respond to Greenberg’s account of the legal principles and practice of statutory interpretation. I distinguish between three kinds of interpretation: clarifying, supplementing and rectifying. In arguing for (c), I contend that legal positivism satisfies Greenberg’s (questionable) insistence that any metaphysical account of what constitutes law must satisfy a “rationality requirement”.