Text and the Separation of Powers

2021 ◽  
pp. 83-108
Author(s):  
George Thomas
Keyword(s):  
Separation Of Powers ◽  
Executive Branch ◽  
Judicial Power ◽  
Executive Power ◽  
War And Peace ◽  
Turn On ◽  
Different Types ◽  
War Power

The text of the Constitution points to the separation of powers in its first three articles, which outlines the three branches of government, but how we understand the nature of the different types of power and how they check one another turns on unwritten ideas and not on the constitutional text. This chapter turns to debates about executive power with regard to the president’s ability to remove officers within the executive branch, and how executive power is constructed in relation to legislative and judicial power based on unwritten ideas. The chapter then turns to the allocation of constitutional power regarding issues of war and peace within the separation of powers to illustrate that disputes about the war power, just like disputes about “the executive power,” turn on unwritten ideas. These debates have been with us since the founding, with remarkably little disagreement about constitutional text but profound disagreement on the unwritten concepts that underlie it.

scholarly journals Independence of the Judiciary in the Modern Understanding of the Separation of Powers

2019 ◽  
Vol 6 (1) ◽  
pp. 89-97
Author(s):  
Ilia Vladislavovich Ruzanov
Keyword(s):  
Law Enforcement ◽  
Political Development ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Popular Sovereignty ◽  
Judicial Power ◽  
Executive Power ◽  
Abuse Of Power ◽  
American Experience ◽  
Formal Control

The independence of judicial power is researched from the natural law viewpoint. It is shown that the principle of separation of powers is not static, it is changing under the inf luence of time.The sharp increase of executive branch of power’s role marks the contemporary stage of social-political development. It is shown that such a situation is inevitable. However, the problem is that executive branch fulfills both rulemaking function and law-enforcement one. It causes the risks of abuse of power, which scared the creators of separation of powers principle.In this light the constitutional law faces the aim to reveal legal and political tools which can provide the very essence of separations of powers - to avoid the complete concentration of power in one center. The two innovations which can help to solve this problem are suggested in the article.One of them is to broad the types of direct popular sovereignty. It is demonstrated, based on American experience that notice and comment requirement can restrain the arbitrariness of executive branch and therefore to be a bulwark against usurpation.The nature of judicial power activity also changes. It must turn from formal control over the executive power to theanalysis of the essence of its decisions.

scholarly journals Essay: Justiciability, Federalism, and the Administrative State

2017 ◽  
Author(s):  
Zachary D. Clopton
Keyword(s):  
United States ◽  
Separation Of Powers ◽  
Federal Court ◽  
The United States ◽  
Executive Branch ◽  
Judicial Power ◽  
Federal State ◽  
State Court ◽  
Access To Justice ◽  
Advisory Opinion

103 Cornell Law Review 1431 (2018)Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court or administrative agency. And although the Supreme Court has frequently policed the delegation of the “judicial power of the United States,” legislative delegations of non-justiciable claims should not transgress those limits. Instead, case-or-controversy dismissals imply that non-Article III options are permissible.This formulation is more than a doctrinal trick. It has normative consequences across a range of dimensions. For one thing, this approach reinvigorates the separation-of-powers purposes of justiciability doctrine by turning our attention from judges to legislators. When courts seemingly use justiciability to curtail private enforcement or access to justice, we could re-interpret the results as revealing a legislative failure to authorize non-Article III options. More affirmatively, case-or controversy dismissals could be focal points for political pressure in favor of more rigorous enforcement of important laws that the federal executive may be shirking. Further, consistent with “new new federalist” accounts, this Article suggests another avenue for federal–state interactivity in the development and enforcement of federal law. This too is of added salience given that private and state enforcement may become even more significant in light of the current occupants of the federal executive branch.

A Subjective Jurisprudence

2020 ◽  
pp. 55-92
Author(s):  
Edward A. Jr. Purcell
Keyword(s):  
Twentieth Century ◽  
Separation Of Powers ◽  
Judicial Power ◽  
Executive Power ◽  
The Political ◽  
Institutional Goals ◽  
Policy Goals ◽  
Power Limit ◽  
Political Right ◽  
The U.S

This chapter examines Justice Antonin Scalia’s jurisprudence dealing with the U.S. Constitution’s two structural axes, separation of powers and federalism. It argues that both constitutional principles are general, largely indeterminate, and easily manipulable and that Scalia construed them in light of his own subjective goals and values. He was determined to use them instrumentally to expand executive power, limit Congress, and severely restrict federal judicial power. The chapter argues that Scalia regarded separation of powers as more critical and important than federalism because it was better suited to serve his political and institutional goals and that, in joining the Rehnquist Court’s “federalism revolution” in the early twentieth century, he contradicted the position he had taken in his Senate confirmation hearing about the propriety of the Court giving special deference to Congress on federalism issues. Finally, the chapter shows that before he went on the Court, Scalia had made it clear that he viewed both separation of powers and federalism as principles that could and should be interpreted to serve the practical policy goals of the political right.

scholarly journals Political Law Regulation of Judicial Institutions in Exercising the Powers of an Independent Judgment: Before and After Amendments to the 1945 Constitution

2020 ◽  
Vol 1 (2) ◽  
pp. 119-128
Author(s):  
Salahudin Pakaya
Keyword(s):  
Supreme Court ◽  
Power Law ◽  
John Locke ◽  
Separation Of Powers ◽  
Judicial Power ◽  
Executive Power ◽  
New Order ◽  
Old Order ◽  
The Supreme Court ◽  
Before And After

The Supreme Court is a judicial institution that has existed since the Indonesian state was formed in 1945. This institution was formed based on the mandate of the constitution in article 24 of the 1945 Constitution, namely "judicial power is exercised by a Supreme Court and other judicial bodies according to law". But in fact, in the course of Indonesia's national and state life from its independence in 1945 to 1998, the judicial power exercised by the Supreme Court was not free and independent, both institutionally and independently of its judges. The influence of the executive power held by the president on the judicial power exercised by the Supreme Court can actually be observed in the politics of regulating judicial power through laws by the executive and legislative bodies during the old order government (President Soakarno 1945-1966) and the new order (President Soeharto 1967-1998). The judicial power law that was formed has actually subordinated the judiciary under the power of the president. This is the result of efforts to form the state of Indonesia as a country based on kinship that does not adhere to a separation of powers (executive, legislative and judicial) as the trias politica concept put forward by John Locke and Montesquie. With the 1998 reforms which in turn succeeded in amending the 1945 Constitution in order to realize the Indonesian state as a democratic legal state, the judiciary has been strengthened as an institution that is truly free and independent from the influence of extra-judicial powers.

Unelected does not Equate with Undemocratic: Parliamentary Sovereignty and the Role of the Judiciary

2008 ◽  
Vol 13 (2) ◽  
pp. 1
Author(s):  
Marilyn Warren
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
Judicial Power ◽  
Executive Power ◽  
Judicial Activism ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
The Common

<p>One feature of judicial life that strikes most appointees to judicial office early on is the silence of the Judiciary outside our judgments and statements in court. We are also struck, when we deliver our first judgment that raises controversy or higher public interest, by the vulnerability of the Judiciary to<br />criticism, sometimes vehement and trenchant. Judges do not answer back. With the exception of Chief Justices, judges are generally only heard in court, unless the speaking occasion involves an extra-curial or academic discussion on the law or judicial life. This is properly so. Yet, when the criticism comes, it is troubling. Judges understand the constitutional and<br />governmental conventions that operate and within which they work. The conventions are not complicated, in fact quite simple. The only regret is that they are forgotten or overlooked when the criticism is made. For this<br />evening’s purpose I would wish to reflect on the conventions that judges work within. I will set out the traditional and modern views on parliamentary sovereignty. I will address the doctrine of separation of powers and the role of judicial power. I will postulate that, in modern government, it is the rule of law that is sovereign. I will consider the judicial role and the development of the common law. I will address the topics of<br />judicial activism, the election of judges and judicial accountability. I will conclude with the view that the complaint of judicial activism is misplaced and involves a misapprehension of the judicial function. For some, the high<br />water mark of judicial activism was Mabo.1 For some, the nadir of judicial ‘inactivism’ was Al Kateb.2 These swings of the pendulum in the discussion of judges’ work are not new. In 1956, Boilermakers’3 was an unsatisfactory outcome for some. Similarly, in 1948, the Bank Nationalisation4 decision provoked criticism. When Chief Justice Dixon restrained the Victorian Government from carrying out the execution in Tait,5 criticism ensued. However, each time judicial power prevailed over parliamentary and executive power. Was that undemocratic? My discussion does not say anything new. It has been said before. But, it needs to be said again. I turn then to the topic for consideration.</p>

Presidential Policymaking: Race to the Top, Executive Power, and the Obama Education Agenda

The Forum ◽  
2014 ◽  
Vol 12 (1) ◽  
Author(s):  
Patrick McGuinn
Keyword(s):  
Education Policy ◽  
Education Reform ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Race To The Top ◽  
Executive Power ◽  
Legislative Process ◽  
Health Care Education ◽  
Obama Administration ◽  
Education Agenda

AbstractThis article offers an analysis of the origins, evolution, and impact of the Obama administration’s Race to the Top (RTTT) competitive grant program and places it in the broader context of the debate over President Obama’s aggressive use of executive power. Faced with divided control and partisan gridlock in Congress – which has been unable to reauthorize ESEA, the largest federal education program – the Obama administration has opted to make education policy from the executive branch. While many observers have questioned the expansive interpretation of statutory and regulatory authority that undergirds RTTT – and the NCLB waiver process – there is little doubt that the efforts have had a significant impact on the national political discourse around education and pushed many states to propose or enact important policy changes, particularly around charter schools, common core standards, and teacher evaluation processes. Along with health care, education reform is likely to be remembered as the most significant policy legacy of the Obama administration. However, while the Affordable Care Act was drafted by Congress and secured through the “normal” legislative process, the Obama education agenda has largely been designed and enacted through unilateral executive branch authority. As a result, these actions may well set significant precedents for the separation of powers as well as for education policy.

Introduction

2021 ◽  
pp. 1-4
Author(s):  
Margit Cohn
Keyword(s):  
Public Sphere ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Public Law ◽  
Executive Power ◽  
The Public ◽  
Short Overview ◽  
Executive Action ◽  
The Public Sphere ◽  
Made In

The introduction to the book offers a short overview of the contents of the book. This book is a treatise on the executive branch, which addresses, theoretically and comparatively, the nature of the executive as a body that is the dominant player in the public and political sphere but is also required, under the separation of powers principle, to be subservient to the law made by legislature according to the constitution of a polity. Three arguments are made in the book. First, to grasp the nature of executive power, one should reject hierarchic accounts of the public sphere: searches for the wielder of the final word should be replaced by a model which rests on networks and inter-branch tensions. Secondly, under this ‘internal tension’ vision of constitutionalism, the executive branch is to be considered as concurrently subservient to law and dominant over it. Finally, much of public law is shaped in ways that enable this seeming contradiction. The thirteen forms of ‘fuzzy’ law presented in the book, generated by constitutions, legislators, and executives, enable the executive to act relatively unfettered without losing the legitimacy arising from the existence of formal law, which, in effect, sets limited constraints on executive action. Ranging from open-ended or semi-written constitutions to unapplied legislation, these forms of legality span both constitutional and administrative aspects of public law. The introduction briefly discusses the structure of the book, which is divided into four parts.

scholarly journals The Lockean Constitution: Separation of Powers and the Limits of Prerogative

2011 ◽  
Vol 56 (3) ◽  
pp. 543-589 ◽  
Author(s):  
David Jenkins
Keyword(s):  
Decision Making ◽  
Public Good ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Decision Makers ◽  
Executive Power ◽  
Constitutional Theory ◽  
Modified Model ◽  
The Public ◽  
Per Se

In the post-9/11 era, many legal scholars have advanced theories of constitutional law that make allowance for unreviewable discretionary decision making by the executive branch, particularly in the context of the “war on terror”. Drawing on Lockean constitutional theory for normative support, the author develops an alternative constitutional model that addresses the problem of discretionary executive power. Locke’s constitution divides political power between the executive and the legislature, with the latter checking and balancing the former. Both the executive and the legislature have a fiduciary trust to act for the public good. Locke closely links the public good and the constitution such that any breach of the constitution is per se a breach of the public good. Therefore, unreviewable decision making by the executive always violates its trust because it is a breach of the constitution. After setting out Locke’s theory of separation of powers, the author presents a modified model that makes the judiciary, in addition to the legislature, responsible for the accountability of executive decision makers. Although the executive retains its prerogative power, it must always remain accountable to the legislature and the courts, even in emergencies.

Presidential Privilege and the Freedom of Information Act

2019 ◽  
Author(s):  
Kevin M. Baron
Keyword(s):  
Social Learning ◽  
Historical Analysis ◽  
Public Information ◽  
Executive Branch ◽  
Executive Power ◽  
Power Dynamics ◽  
Freedom Of Information ◽  
Freedom Of Information Act ◽  
Contemporary Politics ◽  
Government Secrecy

Executive privilege (EP) as a political tool has created a grey area of constitutional power between the legislative and executive branches. By focusing on the post-WWII political usage of executive privilege, this research utilizes a social learning perspective to examine the power dynamics between Congress and the president when it comes to government secrecy and public information. Social learning provides the framework to understand how the Cold War's creation of the modern American security state led to a paradigm shift in the executive branch. This shift altered the politics of the presidency and impacted relations with Congress through extensive use of EP and denial of congressional requests for information. When viewed through a social learning lens, the institutional politics surrounding the development of the Freedom of Information Act is intricately entwined with EP as a political power struggle of action-reaction between the executive and legislative branches. Using extensive archival research, this historical analysis examines the politics surrounding the modern use of executive privilege from Truman through Nixon as an action-reaction of checks on power from the president and Congress, where each learns and responds based on the others previous actions. The use of executive privilege led to the Freedom of Information Act showing how policy can serve as a congressional check on executive power, and how the politics surrounding this issue influence contemporary politics.

Institutional organisation of the European Union in the time of crisis – horizontal division of power and functions

2016 ◽  
pp. 54-66
Author(s):  
Monika Poboży
Keyword(s):  
European Union ◽  
Separation Of Powers ◽  
European Council ◽  
Executive Power ◽  
The European Union ◽  
Checks And Balances ◽  
Court Of Justice ◽  
Strong Position ◽  
Institutional System ◽  
The Eu

The article poses a question about the existence of the rule of separation of powers in the EU institutional system, as it is suggested by the wording of the treaties. The analysis led to the conclusion, that in the EU institutional system there are three separated functions (powers) assigned to different institutions. The Council and the European Parliament are legislative powers, the Commission and the European Council create a “divided executive”. The Court of Justice is a judicial power. The above mentioned institutions gained strong position within their main functions (legislative, executive, judicial), but the proper mechanisms of checks and balances have not been developed, especially in the relations between legislative and executive power. These powers do not limit one another in the EU system. In the EU there are therefore three separated but arbitrary powers – because they do not limit and balance one another, and are not fully controlled by the member states.

Sign in / Sign up

Export Citation Format

Share Document