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Introduction to Political Science

11.6 Judicial Review versus Executive Sovereignty

Introduction to Political Science11.6 Judicial Review versus Executive Sovereignty
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Table of contents
  1. Preface
  2. Introduction to Political Science
    1. 1 What Is Politics and What Is Political Science?
      1. Introduction
      2. 1.1 Defining Politics: Who Gets What, When, Where, How, and Why?
      3. 1.2 Public Policy, Public Interest, and Power
      4. 1.3 Political Science: The Systematic Study of Politics
      5. 1.4 Normative Political Science
      6. 1.5 Empirical Political Science
      7. 1.6 Individuals, Groups, Institutions, and International Relations
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
  3. Individuals
    1. 2 Political Behavior Is Human Behavior
      1. Introduction
      2. 2.1 What Goals Should We Seek in Politics?
      3. 2.2 Why Do Humans Make the Political Choices That They Do?
      4. 2.3 Human Behavior Is Partially Predictable
      5. 2.4 The Importance of Context for Political Decisions
      6. Summary
      7. Key Terms
      8. Review Questions
      9. Suggested Readings
    2. 3 Political Ideology
      1. Introduction
      2. 3.1 The Classical Origins of Western Political Ideologies
      3. 3.2 The Laws of Nature and the Social Contract
      4. 3.3 The Development of Varieties of Liberalism
      5. 3.4 Nationalism, Communism, Fascism, and Authoritarianism
      6. 3.5 Contemporary Democratic Liberalism
      7. 3.6 Contemporary Ideologies Further to the Political Left
      8. 3.7 Contemporary Ideologies Further to the Political Right
      9. 3.8 Political Ideologies That Reject Political Ideology: Scientific Socialism, Burkeanism, and Religious Extremism
      10. Summary
      11. Key Terms
      12. Review Questions
      13. Suggested Readings
    3. 4 Civil Liberties
      1. Introduction
      2. 4.1 The Freedom of the Individual
      3. 4.2 Constitutions and Individual Liberties
      4. 4.3 The Right to Privacy, Self-Determination, and the Freedom of Ideas
      5. 4.4 Freedom of Movement
      6. 4.5 The Rights of the Accused
      7. 4.6 The Right to a Healthy Environment
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
    4. 5 Political Participation and Public Opinion
      1. Introduction
      2. 5.1 What Is Political Participation?
      3. 5.2 What Limits Voter Participation in the United States?
      4. 5.3 How Do Individuals Participate Other Than Voting?
      5. 5.4 What Is Public Opinion and Where Does It Come From?
      6. 5.5 How Do We Measure Public Opinion?
      7. 5.6 Why Is Public Opinion Important?
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
  4. Groups
    1. 6 The Fundamentals of Group Political Activity
      1. Introduction
      2. 6.1 Political Socialization: The Ways People Become Political
      3. 6.2 Political Culture: How People Express Their Political Identity
      4. 6.3 Collective Dilemmas: Making Group Decisions
      5. 6.4 Collective Action Problems: The Problem of Incentives
      6. 6.5 Resolving Collective Action Problems
      7. Summary
      8. Key Terms
      9. Review Questions
      10. Suggested Readings
    2. 7 Civil Rights
      1. Introduction
      2. 7.1 Civil Rights and Constitutionalism
      3. 7.2 Political Culture and Majority-Minority Relations
      4. 7.3 Civil Rights Abuses
      5. 7.4 Civil Rights Movements
      6. 7.5 How Do Governments Bring About Civil Rights Change?
      7. Summary
      8. Key Terms
      9. Review Questions
      10. Suggested Readings
    3. 8 Interest Groups, Political Parties, and Elections
      1. Introduction
      2. 8.1 What Is an Interest Group?
      3. 8.2 What Are the Pros and Cons of Interest Groups?
      4. 8.3 Political Parties
      5. 8.4 What Are the Limits of Parties?
      6. 8.5 What Are Elections and Who Participates?
      7. 8.6 How Do People Participate in Elections?
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
  5. Institutions
    1. 9 Legislatures
      1. Introduction
      2. 9.1 What Do Legislatures Do?
      3. 9.2 What Is the Difference between Parliamentary and Presidential Systems?
      4. 9.3 What Is the Difference between Unicameral and Bicameral Systems?
      5. 9.4 The Decline of Legislative Influence
      6. Summary
      7. Key Terms
      8. Review Questions
      9. Suggested Readings
    2. 10 Executives, Cabinets, and Bureaucracies
      1. Introduction
      2. 10.1 Democracies: Parliamentary, Presidential, and Semi-Presidential Regimes
      3. 10.2 The Executive in Presidential Regimes
      4. 10.3 The Executive in Parliamentary Regimes
      5. 10.4 Advantages, Disadvantages, and Challenges of Presidential and Parliamentary Regimes
      6. 10.5 Semi-Presidential Regimes
      7. 10.6 How Do Cabinets Function in Presidential and Parliamentary Regimes?
      8. 10.7 What Are the Purpose and Function of Bureaucracies?
      9. Summary
      10. Key Terms
      11. Review Questions
      12. Suggested Readings
    3. 11 Courts and Law
      1. Introduction
      2. 11.1 What Is the Judiciary?
      3. 11.2 How Does the Judiciary Take Action?
      4. 11.3 Types of Legal Systems around the World
      5. 11.4 Criminal versus Civil Laws
      6. 11.5 Due Process and Judicial Fairness
      7. 11.6 Judicial Review versus Executive Sovereignty
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
    4. 12 The Media
      1. Introduction
      2. 12.1 The Media as a Political Institution: Why Does It Matter?
      3. 12.2 Types of Media and the Changing Media Landscape
      4. 12.3 How Do Media and Elections Interact?
      5. 12.4 The Internet and Social Media
      6. 12.5 Declining Global Trust in the Media
      7. Summary
      8. Key Terms
      9. Review Questions
      10. Suggested Readings
  6. States and International Relations
    1. 13 Governing Regimes
      1. Introduction
      2. 13.1 Contemporary Government Regimes: Power, Legitimacy, and Authority
      3. 13.2 Categorizing Contemporary Regimes
      4. 13.3 Recent Trends: Illiberal Representative Regimes
      5. Summary
      6. Key Terms
      7. Review Questions
      8. Suggested Readings
    2. 14 International Relations
      1. Introduction
      2. 14.1 What Is Power, and How Do We Measure It?
      3. 14.2 Understanding the Different Types of Actors in the International System
      4. 14.3 Sovereignty and Anarchy
      5. 14.4 Using Levels of Analysis to Understand Conflict
      6. 14.5 The Realist Worldview
      7. 14.6 The Liberal and Social Worldview
      8. 14.7 Critical Worldviews
      9. Summary
      10. Key Terms
      11. Review Questions
      12. Suggested Readings
    3. 15 International Law and International Organizations
      1. Introduction
      2. 15.1 The Problem of Global Governance
      3. 15.2 International Law
      4. 15.3 The United Nations and Global Intergovernmental Organizations (IGOs)
      5. 15.4 How Do Regional IGOs Contribute to Global Governance?
      6. 15.5 Non-state Actors: Nongovernmental Organizations (NGOs)
      7. 15.6 Non-state Actors beyond NGOs
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
    4. 16 International Political Economy
      1. Introduction
      2. 16.1 The Origins of International Political Economy
      3. 16.2 The Advent of the Liberal Economy
      4. 16.3 The Bretton Woods Institutions
      5. 16.4 The Post–Cold War Period and Modernization Theory
      6. 16.5 From the 1990s to the 2020s: Current Issues in IPE
      7. 16.6 Considering Poverty, Inequality, and the Environmental Crisis
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
  7. References
  8. Index

Learning Outcomes

By the end of this section, you will be able to:

  • Define judicial review.
  • Discuss restraints on judicial review.
  • Explain who and what is subject to judicial review.
  • Explain executive sovereignty.
  • Explain who and what is subject to executive sovereignty.

Judicial review is one means of checking to see whether the other branches are following a country’s constitution and its principles. In some countries, this review is conducted not by the judicial courts but by a group that reviews proposed laws while the legislature is still debating them. For example, in France, the Constitutional Council reviews all acts of Parliament before they are enacted to ensure that they do not violate the French constitution.117 If the council finds that a proposal does violate the constitution, Parliament can correct it before enacting the law.

In the United States, the courts perform judicial review.118 The US Constitution, not a branch of government or an individual, is the supreme law of the United States. The power of judicial review includes the power to make sure that all branches of government at all levels comply with the US Constitution. Even though judicial review exists in the United States, all laws and government actions that come before the court enjoy a presumption of constitutionality. The amount of deference to that constitutionality varies with the type of action and the judge. For example, since World War II, individual and civil rights have been broadened, and courts have been less deferential to government actions restricting personal liberty. Still, courts rarely hold that an act is unconstitutional.119 As of 2014, out of the millions of actions Congress and the president have taken in the history of the United States, SCOTUS had only ever held 176 acts of Congress to be unconstitutional.120 Another myth about judicial review is that SCOTUS frequently finds actions of the other branches of state governments unconstitutional. More state laws have been struck, but the percentage is still meager, given that the 50 states take millions of actions each year. Most of the state laws the court has struck since 1960 have involved civil rights, with only 483 state laws declared unconstitutional as of 2019.121 Using judicial review, the courts check all government actions against the Constitution and ensure that it is the supreme law of the land. In a parliamentary sovereignty system, this check is not available.

In an executive sovereignty system, a parliamentary sovereignty system, or a legislative sovereignty system, the courts cannot overrule executive or parliamentary action through judicial review. In executive, parliamentary, or legislative supremacy systems, the legislative body is supreme over all other government institutions. The legislature may change or repeal any law and, in some countries, is not bound by case precedent or a constitution. The United Kingdom is an example of a country with parliamentary sovereignty. In the UK, the monarch initially was all-powerful and could do anything they wanted. Even after a royal parliament had been in place for many years, the monarch retained near-total power and could dissolve the parliament. After the English Civil Wars, Parliament became all-powerful, and since that time, the monarch’s role has been largely ceremonial. In the era of parliamentary preeminence, the Houses of Parliament (the House of Commons and the House of Lords), under the unwritten constitutional principles of the UK, hold the right to make or repeal any law. No one can override a parliamentary act. Parliament can make or change any law.

Video

UK Supreme Court Rules Prorogation “Unlawful”

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In 2019, the UK Supreme Court ruled that Prime Minister Boris Johnson acted unlawfully when he stopped the work of Parliament during Brexit debates.

Furthermore, an act of Parliament cannot be challenged in court as unconstitutional, as Parliament is the supreme lawmaker. However, since World War II, the British Parliament’s power has been curtailed in some measure by new laws and agreements to be bound by international treaties. Nevertheless, Parliament retains the ability to repeal these laws or consent to any of these international agreements.122

Brexit, the recent parliamentary vote and referendum of the people of the UK to leave the European Union (EU), which had bound the British courts to follow specific economic laws and policies effective throughout Europe, provides a prime example of such a repeal. While the parliaments that joined and stayed with the EU bound themselves temporarily to international agreements, a later parliament retained the right to undo the binding and reassert supremacy. Any check on the British Parliament rests in the public perception of and support for the government. If the public loses confidence in Parliament, elections can be called, and new members who agree to vote in line with public sentiment can be voted into office.

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