Political Branches Of Government Research Articles

The relational impact of social rights judgments: a trust-based analysis

AbstractThere is a growing body of scholarship examining the impact of courts’ social rights judgments, especially their distributive impact (ie the extent to which they deliver social rights-related goods and services to the poor and marginalised). Commentators have used this impact to evaluate the effectiveness of courts in realising citizens’ social rights. This paper contributes to the scholarship by adding a new ‘relational’ dimension to our understanding of such impact. It uses the literature on the concept of trust from philosophy, sociology and other disciplines to analyse the impact that social rights judgments have on the relationship between citizens and the political branches of government, and argues that social rights judgments can modify two elements of this relationship that determine the dynamics at play in it: citizens’ vulnerability to the political branches with respect to the relevant goods and services; and citizens’ uncertainty about the political branches’ exercise of control over the goods and services (which can promote the political branches’ trustworthiness). By broadening our understanding of these judgments’ impact, the paper offers a valuable lens through which to analyse social rights judgments and adds needed nuance to current debates about courts’ effectiveness in realising citizens’ social rights.

Using constitutional courts to advance abortion rights in Latin America

ABSTRACT Over the past two decades, the abortion rights controversy has become the most prominent field of dispute between feminists and religious conservatives across Latin America. In this context, the political branches of government have generally been reluctant to change the region’s restrictive legal frameworks around abortion. Since the mid-2000s, Latin American feminists have turned to the courts in search of long-pursued reforms in this field. Through an analysis of the role of constitutional courts in the liberalization of abortion laws in Colombia, Brazil, Argentina, and Mexico, this study points out the diverse ways in which courts have contributed to the advancement of abortion rights, becoming alternative venues for feminist advocacy in Latin America. It highlights how courts have been used to liberalize abortion laws, ensure the implementation of existing abortion laws, and deter backlash processes. Furthermore, it details how courts have offered a platform for public debate on abortion. The study’s findings show that the judicial system can be a favorable forum for feminist activism in Latin America when access to other institutions is blocked. The findings also add nuance to the critique of the use of courts for social change, which stresses the pernicious consequences of the judicialization of social movements.

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

The judiciary’s influence on foreign affairs has been neglected for too long as the focus has been confined to the role of the two political branches – thus, a state-centrism orientation. Studies on foreign affairs confirm this omission. Hence, the question: what is the role of the judiciary in foreign affairs and what precisely is its influence? Consequential decisions by the Supreme Court of the United States (“SCOTUS”) underscore the extent of the court’s engagement with foreign policy-related issues. While the political branches of government most directly determine foreign-policy outcomes, the contribution of the court by way of its relevance and influence is no less significant. Its impact is incontrovertible. The executive can no longer assume that its actions in foreign affairs will not be scrutinised and evaluated constitutionally. Presidential decisions often stem from overreach, especially in matters with implications for foreign affairs. Over the years, it has become increasingly apparent that the President is not immune from rebuke. SCOTUS is the only constitutional interpreter and consequently a vital compass. The result is that the executive has to bend to the judiciary. The latter will not accommodate the former when its judicial mandate is to interpret the Constitution in order to make clear what the executive has decreed, however unpalatable that may be to the executive. The response by SCOTUS is no longer confined to single, isolated cases; it has become widespread. The court no longer shies away from displaying judicial power when it is faced with cases dealing with foreign affairs. What SCOTUS has declared unequivocally is that when the political branches are allowed to switch the Constitution on or off at will, this will lead to a regime in which the executive, and not SCOTUS, says what the law is. This article concludes that the recognition of this role of SCOTUS in foreign affairs is long overdue.

The Headless Fourth Branch: Rethinking the Assumptions of Administrative Jurisprudence

AbstractA mismatch exists between the fundamental principles underlying modern administrative jurisprudence and the practical realities of administrative governance as illuminated by social science. This mismatch is most evident in the judicial conceptions of congressional intent, delegation, administrative procedures, and political accountability. As a result, federal agencies have the opportunity to shape the parameters under which courts analyze administrative authority and to capitalize on overlapping delegations of power. Agencies respond by shifting resources toward unorthodox policymaking and legalized personnel, raising questions about what it means legally for federal agencies to be accountable to the judicial and political branches of government. In sum, the mismatch between doctrine and practice presents many avenues for future research and has important consequences for the operation of our separation of powers system.

The High Court and Constitutional Identity – the 2019/2020 term

What do we learn about Australian Constitutional Identity from the Australian High Court? This paper teases out three elements of Australian constitutional law seen in the decisions of 2019 that tell us something about who we are, how we distinguish the role of our High Court from what other institutions of power do within our system and what we value under the Constitution. Specifically, who are ‘the people’ under the Constitution and how does the Court understand that concept of ‘the people’; how does the Court explain its distinct role under the Constitution and the distinction between the courts and the political branches of government and what values affect the reasoning of the Court? Finally, this paper focuses on the controversial decision of Love decided in February 2020 to explain the deep divides between the majority and dissenting reasons, which map onto the issues found in the 2019 cases and which indicate constitutional values that are as yet unsettled.

The Political Remedies Doctrine

This article describes and analyzes a hitherto unrecognized doctrine—the political remedies doctrine. This doctrine maintains that courts ought not adjudicate separation of powers claims until both political branches of government have asserted their rights. The doctrine has escaped analysis (and even explicit notice) because judges camouflage it, employing it while invoking the more familiar rubrics of ripeness, standing, political questions, and equitable discretion. Justice Powell provided the leading articulation of the doctrine, but the Supreme Court as a whole has never squarely endorsed it. The political remedies doctrine, however, has played a surprisingly important role in the lower courts, helping justify refusal to adjudicate war powers cases and cases arising from President Trump’s challenges to the constitutional order. While invoked as a neutral rule, the courts always apply it to shield presidential acts from judicial scrutiny and never to protect acts of Congress from activist adjudication. As such, it tends to aid aggrandizement of presidential power. Partly for that reason, this doctrine has great potential to unravel the rule of law and even, during times of partisan stress, to hasten the collapse of the separation of powers undergirding our democracy. This article claims that the Courts should not apply this doctrine, except perhaps to avoid adjudication of challenges to bipartisan legislation signed by the President. It employs a Coasean property rights analysis to provide new insights germane not just to this doctrine, but also to debates about the proper role of bargaining in resolving separation of powers questions, general theory about the relationship between law and politics, and understandings about how the courts should approach justiciability doctrine more generally. That Coasean analysis shows that judicial resolution of separation of powers claims on the merits does not preclude political bargaining, but simply determines a baseline for future negotiations. Conversely, dismissing claims because of the potential for political bargaining functions much like a ruling on the merits, also creating a constitutional baseline for future political negotiations. Hence, justiciability rulings do not involve a choice between political and judicial resolution of disputes, but rather a choice about baseline power allocations form which to conduct future bargaining. Thus, analysis of this hitherto unrecognized doctrine yields a host of useful insights.

Judicial Independence in Dominant Party States: Singapore's Possibilities for China

AbstractCourts in China are often criticized for lacking ‘independence’ from the Chinese party-state. Entrenched perceptions of interference in the judiciary by the political branches of government have continued to fuel public resentment in recent years, risking the legitimacy of the party-state. Such criticisms, however, often fail to appreciate the complex political reality in China and the evolving role of Chinese courts following China's incremental legal reforms since the reform era. What does ‘judicial independence’ mean in the context of a socialist rule of law state such as China? More importantly, can we identify the touchstone of ‘independence’ that should be intrinsic in any judicial institution? In recognition of the resilience of the Chinese party-state in the foreseeable future, the authors contend that widening the scope of judicial independence, as conceptualized herein, in line with China's ongoing judicial reforms provides a better tool for promoting economic development and good governance and enhancing the state's legitimacy in a dominant party state. In this regard, insights are drawn from Singapore, which presents two broad lessons for China: first, a rule of law framework can be established in which the state in a non-Western liberal democracy respects the autonomy of the courts and the judiciary strictly enforces the law enacted by the state within its institutional limits; second, judicial pragmatism in the exercise of judicial power enables the courts to ensure that governmental power is exercised in accordance with the principle of legality, which ensures good governance in a polity governed by a strong state. Contrary to claims that such reforms may serve as an apology for power in China, it is hoped that such reforms may lay the foundation for normative constitutionalism in the future.

The Structural and Administrative Demands of Unwritten Constitutional Principles

This article challenges the traditional view in administrative law scholarship that the mandate and design of administrative decision-makers are principally products of executive policy choice and legislative delegation. Drawing on public law theories of structural interpretation and positioned within the growing field of administrative constitutionalism, this article argues that unwritten features of the Constitution can make concrete demands on institutional structure and tribunal design such that certain functions and features of the administrative state are constitutionally required. The argument emerges from a careful analysis of a single case study, that of the discipline, and in particular the removal, of superior court judges in Canada. The analysis reveals that section 99(1) of the Constitution Act, 1867 provides an incomplete account of the procedures that must be followed in order to remove a federally appointed judge from the bench. More specifically, the case study establishes that the principle of judicial independence requires that judges be eligible for removal under section 99(1) only after an administrative process is held, one that investigates the alleged misconduct and assesses the facts against the constitutional standard of good judicial behaviour. Judicial independence further demands that this process embody certain essential features—features that are familiar to administrative law: the inquiry must be carried out by a body that is independent from the political branches of government; the body must conduct itself in accordance with a commitment to the independence of the judiciary; the inquiry must be carried out in accordance with the duty of fairness; and both the process and substantive determinations of the inquiry process must be subject to review by the courts. While current theories of administrative constitutionalism have often been focused on the role of administrative decision-makers in interpreting and implementing constitutional rights, this article builds on the work of Mashaw, Lee, Bremer, and Metzger and Stack to open and contribute to important structural conversations in the field.

Formal and Informal Constitutional Amendment in Hungary

In this paper, we give a critical overview of the formal and informal constitutional amendments that have occurred in Hungary since the transition. We argue that even though we face terminological difficulties, informal constitutional amendment is not only possible but is actually present in the Hungarian constitutional order in the form of the constitutional interpretation of the Constitutional Court. In certain cases, this exercise is beneficial for the stability of the rule of law, while in others it may have a detrimental effect on the same. We also claim that it is up to the other powers (political branches of government or the constitutional court/high court itself) to decide whether the informal constitutional amendment by constitutional interpretation is legitimate or not. No one can challenge a constitutional interpretation in any legal way in a constitutional democracy; however, it is up to the political branches or the courts to reject or uphold its result. This latter can occur by applying the new content or consolidating it to the text of the constitution. The phenomenon that we call informal constitutional amendment by constitutional interpretation is not only experienced in countries with a rigid constitution but also in states having a rather short constitution with many vague provisions especially concerning certain principles and fundamental rights.

Constitutional Courts Securing Their Legitimacy - An Institutional-Procedural Analysis

It is imperative for constitutional courts and their judgments to enjoy respect to allow them to make good on the intended objective of providing solid constitutional guardianship. At the same time, judicial legitimacy is a precious commodity that once lost is hard to replace. It should be realised that threats to the legitimacy of constitutional courts are often not self-manufactured, in the sense of gratuitous judicial overreaching or a callous disregard by the court for what the other organs of State or the country’s population deem important. They are, rather, a corollary of two distinct though related factors. First, the extent to which the procedural framework, as designed by the political branches of government, allows for the referral of any and all constitutional questions to the court. This chapter explains how quasi-comprehensive portfolios of responsibility, coupled with lenient rules on access, enhances the probability that social or politically sensitive issues will enter the judicial arena for resolution. The second factor concerns a country’s political and economic climate. A government faced with a poorly performing economy or other financial constraints, and an electorate demanding effective and rapid action, may be enticed to respond with rules that give short shrift to constitutional values. In such situations, remedial approaches other than annulment decisions are particularly attractive for courts faced with constitutional defective statutes, as they mitigate the risk of an inter-institutional confrontation and any ramifications such may have for the enforcement of judgments. These could further ameliorate perceptions of judges as sympathetic to the plight of governments in regulating society, rather than legalistic troublemakers who do not know or care about socio-political realities. This chapter critically discusses the most significant of these decisional techniques as applied by Europe’s Kelsenian constitutional courts: constitution-conform interpretation, rendering rulings of temporary constitutionality or severing the link between a finding of unconstitutionality and annulment. It is interesting to note that in many countries, several of these techniques have been fashioned by the courts themselves in direct response to the precarious reality of their political environment. This suggests that courts are keenly aware of the delicate balancing act that they must perform in protecting constitutional integrity and alert to using ‘prudential’ remedial techniques to attenuate political or public discontentment.

Why Have Constitutional Courts Been so Important for Democracy in Central Europe (…And So Hated by Those in Power)?

The contribution reacts to various thoughts about the present state of constitutionalism in the V4 countries. The author argues that the constitutional court, an institutional check on majoritarian decision-making, has been an indispensable component of constitutional-building in the Central European area. However, the model of a highly esteemed constitutional court, with its justices, nominated in a bipartisan manner, has been regularly contested, especially by those who were supposed to be constrained thereby. To outlive current and future populist waves, a result of vibrant discourse between political branches of government and a self-restrained constitutional court has a strong potential to stabilize democracy in the region, marked by authoritarian governments of the second half of the 20th century. Thus, the article will reason that we, the Central Europeans, need “more”, rather than “less” constitutionalism to protect the legacy of the last democratic revolution.

ODNOS CENTRALNE BANKE I GRANA DRŽAVNE VLASTI

Highly regulated legal relations in a single legal system reflects the level of legal culture of a nation. When it comes to standardizing the relationship between the branchеs of government and other subjects of the political system and the public, regulatory bodies and independent institutions that have a considerable degree of autonomy in their work and this is a sensitive issue. States authorities must fulfill their functions of creating the law, its execution, and creating a general national policy (and the creator of that creation is executive power) whose element is also economic policy. In this paper, the authors pay attention to defining a branches of power, starting from the triple division of functions of state power into legislative, judicial and executive. It is pointed out that there are different types of organizations, primarily the executive, ie parliamentary, presidential, semi-presidential and аssembly system Relations between the branches of government and the central bank are different in the legal systems. This has to do with the system of government organization and democratic relations in society. The primary function of the modern central bank is to control the supply of money and credit conditions in the country. The Central Bank is responsible for the conduct of monetary policy and in the achievement of its objectives it must not be blocked by two political branches of government: legislative and executive. The executive has the greatest responsibility for the state of the nation, and thus in some legal systems it still has a major impact on the central bank's staff structure.

Amicus Brief of the Constitution Project Submitted to D.C. Circuit Court of Appeals in Smith v. Trump

In Smith v. Obama (2016), the District Court found that Captain Smith’s action presents a political question for three reasons: first, it presented questions committed to the political branches of government; second, the courts are ill-equipped to resolve those questions; and third, there is no conflict between Congress and the President regarding the lawfulness of the war against ISIS. In this brief, amici ask the DC Circuit to reverse that ruling, arguing that the District Court erred in each of those findings. First, the Supreme Court has previously reached the merits to decide two seminal cases that are directly on point — Little v. Barreme (1804) and Youngstown Sheet & Tube Co. v. Sawyer (1952) — without even considering the possibility that either presented a political question. Second, judicial fact-finding incapacities present an evidentiary hurdle that a plaintiff can overcome by meeting the applicable burden of persuasion, not an insurmountable justiciability barrier that prevents a plaintiff from even attempting to do so. And third, the District Court could conclude that no conflict exists between Congress and the president only by holding sub silentio that the War Powers Resolution’s clear statement rule is unconstitutional — thus creating an issue of statutory validity that the Supreme Court has emphasized does not present a political question.

The Law of Politics and the Politics of Law: The Changing Relationships Between the Political Branches and the Legal Institutions in Israel

The paper tells the story of Israel’s public legal institutions, particularly the Supreme Court and the Attorney General office, their increasing pivotal role in collective decision making and their relationship with the political branches of government – the law of politics and the politics of law. Between 1948 and the 1990s the public legal institutions in Israel established and crystalized their independence and, invigorated by the high public’s trust (the Supreme Court, until recently, enjoyed the highest approval rate by the public, save the IDF, among all public institutions), gradually and significantly increased their input into public decision-making, and their review of government and of other political institutions. This gradual process has not met real opposition or resistance by the political branches until the 1990s. However, in the last two decades increasing tensions have arouse between the political branches and the public legal institutions, especially the Israeli Supreme Court, which prompted increasing attempts by politicians to curtail the powers, independence and influence of state legal institutions. These resulted recently with a more conservative and deferent approach of the legal institutions, which could affect the vigor of Israel’s liberal democracy.

Dialogue isn't working: the case for collaboration as a model of legislative–judicial relations

In the past two decades, it has become commonplace for legislative–judicial engagement on contested constitutional questions to be described as a dialogue. This paper argues that the time has come to abandon the notion of dialogue. The first part of the paper describes the difficulties with dialogue theories. Despite the existence of many different versions, these theories share certain constitutionally problematic characteristics. Dialogue theories promote a view of government that is unrealistic, susceptible to normative bias and that overlooks the critical importance of disagreement and institutional differences to a system of democratic government based on the rule of law. The second part of the paper argues that Christopher Ansell's idea of collaboration-as-fruitful-conflict provides a more descriptively and normatively appropriate account of the relationship between the legal and political branches of government.

Regulating Greenhouse Gas Emissions: The Supreme Court, the Environmental Protection Agency, Madison’s “Auxiliary Precautions,” and Rohr’s “Balance Wheel”

Regulating greenhouse gas emissions is a complicated task, exacerbated by the inability of the political institutions of government to provide clear guidance on this matter to the Environmental Protection Agency. Using the Madisonian notion of “auxiliary precautions,” it is argued that the EPA is in the best position to serve the public’s interest in this area and should have more discretion in the absence of decisive action by the political branches of government. It is further argued that the EPA is in a position to embody Rohr’s notion of a “balance wheel” to protect the nation from the harmful effects of greenhouse gas emissions.

No Competing Theory of Constitutional Interpretation Justifies Regulatory Takings Ideology

Compensation for excessive regulation of the use of property under the Just Compensation Clause of the Fifth Amendment has gained wide acceptance. Introduced in 1922 in Pennsylvania Coal Co. v. Mahon, and gathering considerable momentum in 1978 with Penn Central Transportation Co. v. City of New York, regulatory takings constrains government regulation protecting the environment, public health, consumer safety, affordable housing, and other community interests. Upon close examination, however, the regulatory takings doctrine does not appear to be justified by any of the competing theories of constitutional interpretation: textualism, originalism, or evolutionary document. Rather, the doctrine seems to arise from a misunderstanding of the Just Compensation Clause as guaranteeing a laissez-faire political economy. The initial parts of this article rely for the most part on existing scholarship analyzing regulatory takings under the textualist and originalists theories of interpretation. The bulk of the article is devoted to an examination of regulatory takings under the evolutionary document theory, which has received less attention in the literature of takings. The argument that the regulatory takings doctrine in its entirety is unwarranted under an evolutionary document approach is founded on the absence of precedent for granting the courts a significant role in the formulation of what is essentially economic policy, and profound conflicts between regulatory takings and core values of the Constitution, such as liberty, equality, and democracy. I also respond to claims that a broad reading of the Just Compensation Clause is necessary to balance the interests of property owners against society or that regulatory takings is a practical tool for property regulation. Finally, the article recommends an alternative system for government policy-making to control the use of property that relies almost exclusively on statutes and administrative regulations adopted by the political branches of government.

According to the Spirit and not to the Letter: Proportionality and the Singapore Constitution

Abstract When interpreting the fundamental liberties in the Singapore Constitution, courts presently do not engage in a proportionality analysis - that is, a consideration of whether limitations on rights imposed by executive or legislative action bear a rational relation with the object of the action, and, if so, whether the limitations restrict rights as minimally as possible. The main reason for this appears to be the expansive manner in which exceptions to the fundamental liberties are phrased, and the courts’ deferential attitude towards the political branches of government. This paper considers how the rejection of proportionality has affected the rights to freedom of expression and assembly, and freedom of religion, and argues that although proportionality was originally a European legal doctrine, its use in Singapore is not only desirable but necessary if the Constitution is to be regarded as guaranteeing fundamental liberties instead of merely setting out privileges that may be abridged at will by the Government.

Speech Beyond Borders: Extraterritoriality and the First Amendment

Does the First Amendment follow the flag? On the one hand, the Supreme Court’s 2008 decision in Boumediene v. Bush categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad, it also made the application of such rights, the First Amendment presumably included, contingent on “objective factors and practical concerns.” In addition, as Boumediene affirmed previous decisions, it also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might also be without any constitutional recourse. The import and application of the decision outside the habeas context therefore remains unclear. But on the other hand, with regard to the First Amendment in particular, such ambiguity is replaced with tension. In the recent case of USAID v. Alliance for Open Society, although the fact that the speech was going to be uttered abroad was not mentioned in the decision, this factor was raised in several instances in the lower courts, and even in the oral arguments before the Supreme Court. An implication is that free speech rights, at least by U.S. registered entities or U.S. citizens, already exist abroad.This Article resolves this doctrinal ambiguity and argues that the First Amendment covers speech made beyond U.S. borders and should be so judicially recognized. It situates existing First Amendment precedents within the broader framework set by decisions pertaining to the Constitution’s extraterritorial application. In particular, it extends First Amendment coverage to both citizen and alien speech, in cases where either speech have been subject to government regulation outside traditional national borders. The two conceptions of the First Amendment, either as a right that accrues to the individual or as a structural limitation against the government support the interpretation of making it available to both citizens and aliens. Recognizing the extraterritorial First Amendment, however, is only the beginning. What are the implications of such recognition? In many instances, an extraterritorial speech right is more than likely to go against legitimate foreign policy interests as crafted by the political branches of government as well as international law since First Amendment jurisprudence is less restrictive than global standards on freedom of expression. In the last part of the paper, it looks at an area where this claim would have the greatest impact: that of government speech abroad.

Hearing on Electronic Communications Privacy Act Reform and the Revolution in Location Based Technologies and Services

This testimony, presented at a congressional hearing entitled “Electronic Communications Privacy Act Reform and the Revolution in Location Based Technologies and Services,” discusses the role of magistrate judges in handling surveillance requests by law enforcement, summarizes reported cases dealing with cell phone tracking, and suggests possible reforms to ECPA. The task of finding the appropriate balance between privacy and law enforcement belongs first of all to the political branches of government. As a judicial officer, I do not presume to advocate for either side of that debate. That said, from a magistrate judge’s perspective, there are two systemic flaws in the current statutory scheme that ought not be preserved in the next: undue complexity and undue secrecy. Simplicity may not be entirely achievable in a statute dealing with complicated technology. Likewise, transparency is not practicable for every phase of a criminal investigation. But complexity and secrecy take hidden tolls in the form of diminished privacy protection, unchecked judicial (and executive) power, and loss of public confidence in the judicial system. The 21st century version of ECPA should recognize and avoid these dangers.