Which of the following scenarios best demonstrates a president avoiding a check from the judicial branch?

Summary

Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, while “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. By itself, however, the hard/soft distinction captures neither the degree of finality nor the ultimate impact of judicial review. On the one hand, 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, a small but growing number of courts – the Taiwanese Constitutional Court among them – have claimed the power to invalidate constitutional amendments as unconstitutional. Using Taiwan as illustration, this chapter highlights three factors that must be considered in evaluating the extent to which courts have the last word on constitutional matters. First is the formal legal effect of the decision (for example, whether a decision has suspended effect or is valid inter partes rather than erga omnes). Second is the ease with which judicial decisions can be formally overridden or set aside (as in the form of legislative override or constitutional amendment). Third is the extent to which judicial decisions require cooperation and implementation by other institutions of government in order to have practical effect.

References

Halmai, Gábor, ‘Judicial Review of Constitutional Amendments and New Constitutions in Comparative Perspective’ (2015) 50(4) Wake Forest Law Review 951.Google Scholar

Jacobsohn, Gary Jeffrey, ‘An Unconstitutional Constitution? A Comparative Perspective’ (2006) 4 International Journal of Constitutional Law 460.CrossRefGoogle Scholar

Roznai, Yaniv, Unconstitutional Constitutional Amendment: The Limits of Amendment Powers (Oxford University Press, 2017), chs. 1–2, 7–8.Google Scholar

Ginsburg, Tom, ‘Constitutional Choices in Taiwan: Implications of Global Trends,’ in Society, Taiwan Law (ed.), 主權、憲法與台灣的未來 [Sovereignty, the Constitution, and the Future of Taiwan] (Angle Publishing, 2006), available at ssrn.com/abstract=877154.Google Scholar

Kuo, Ming-Sung, ‘Moving Towards a Nominal Constitutional Court? Critical Reflections on the Shift from Judicial Activism to Constitutional Irrelevance in Taiwan’s Constitutional Politics’ (2016) 25(3) Washington International Law Journal 597–641.Google Scholar

Yeh, Jiunn-rong, The Constitution of Taiwan: A Contextual Analysis (Hart, 2016).Google Scholar

The Constitution divided the Government into three branches: legislative, executive, and judicial. That was an important decision because it gave specific powers to each branch and set up something called checks and balances. Just like the phrase sounds, the point of checks and balances was to make sure no one branch would be able to control too much power, and it created a separation of powers. Here are some examples of how the different branches work together:

• The legislative branch makes laws, but the President in the executive branch can veto those laws with a Presidential Veto.
• The legislative branch makes laws, but the judicial branch can declare those laws unconstitutional.
• The executive branch, through the Federal agencies, has responsibility for day-to-day enforcement and administration of Federal laws. These Federal departments and agencies have missions and responsibilities that vary widely, from environmental protection to protecting the Nation’s borders.
• The President in the executive branch can veto a law, but the legislative branch can override that veto with enough votes.
• The legislative branch has the power to approve Presidential nominations, control the budget, and can impeach the President and remove him or her from office.
• The executive branch can declare Executive Orders, which are like proclamations that carry the force of law, but the judicial branch can declare those acts unconstitutional.
• The judicial branch interprets laws, but the President nominates Supreme Court justices, court of appeals judges, and district court judges who make the evaluations.
• The judicial branch interprets laws, but the Senate in the legislative branch confirms the President’s nominations for judicial positions, and Congress can impeach any of those judges and remove them from office.

See our "Branches of Government" infographic to find the checks and balances you see illustrated.

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