View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UW Law Digital Commons (University of Washington) Washington International Law Journal Volume 28 Number 2 4-1-2019 Unenumerated Power and the Rise of Executive Primacy Cheng-Yi Huang Follow this and additional works at: https://digitalcommons.law.uw.edu/wilj Part of the Comparative and Foreign Law Commons, and the President/Executive Department Commons Recommended Citation Cheng-Yi Huang, Unenumerated Power and the Rise of Executive Primacy, 28 Wash. L. Rev. 395 (2019). Available at: https://digitalcommons.law.uw.edu/wilj/vol28/iss2/6 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington International Law Journal by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. Compilation © 2019 Washington International Law Journal Association UNENUMERATED POWER AND THE RISE OF EXECUTIVE PRIMACY Cheng-Yi Huang Abstract: This article argues that contemporary syndromes of constitutional dysfunction do not solely stem from the failures of the controlling executive power. Rather, the tendency of chief executives’ appropriation of power is largely due to the fact that the institutional logic of executive power makes them do so. To govern, the chief executive needs to run the government with power, either political or constitutional. These powers are not always enumerated in the constitution, but would still be regarded as constitutional. This paper argues that the idea of taming unenumerated executive powers by definite constitutional language and text is mostly futile. Drawing from recent cases of constitutional controversies in Japan, Taiwan, and Poland, this article suggests that unenumerated powers which cannot be checked by constitutional mechanisms are the cause of the expansion of executive primacy in constitutional democracies. Following the case studies, this article analyzes the nature and problems of unenumerated powers of the executive. Building on the taxonomy proposed by Louis Fisher, the article argues that unenumerated powers are analogous to the “implied powers” in Fisher’s discussion. It must be affiliated with formal constitutional authority, but its scope would spontaneously expand if there were no sensible constraints on the use of unenumerated powers. Political actors take advantage of the fuzziness of unenumerated powers as a means of expanding their power. In democratic systems, the judicial branch is usually called upon to resolve boundary issues. As such, populist politicians often seek to control the court immediately after taking office, which in order to temper this threat, and ultimately this action contributes to the re-emergence of executive primacy. Cite as: Cheng-Yi Huang, Unenumerated Power and the Rise of Executive Primacy, 28 WASH. INT’L L.J. 395 (2019). I. INTRODUCTION: AUXILIARY PRECAUTION AGAINST THE EXECUTIVE POWER? There are two conceptions of executive power: first, executive power should be confined, and second, executive power should flourish.1 The first is built on the fear of power being concentrated in the hands of the executive Associate Research Professor, Academia Sinica, Taiwan. I would like to thank Professors Yasuo Hasebe, Keigo Komamura, Toru Mori, Masahiro Sogabe, George Shishido, Mayu Terada, and Sota Kimura for their careful explanation and comments on Prime Minister Abe’s initiatives for constitutional amendments in Japan. Justices Stanisław Biernat, Andrzej Wróbel, and Marek Zubik of the Polish Constitutional Tribunal offered insightful information during my field trip to Poland in 2016. Professors Lech Garlicki and Mirosław Wyrzykowski provided extremely helpful guidance. Adam Oleksy, Tzung-yuan Lee, Fang-yu Liu, and Junkai Chang have contributed invaluably to this article as research assistants. This paper was presented in the workshop on the Resurgence of Executive Primacy in the Age of Populism at Academia Sinica, June 2018. I thank all the participants’ comments and questions. All errors remain my own. Contact: [email protected] 1 Margit Cohn, Tension and Legality: Towards a Theory of the Executive Branch, 29 CAN. J.L. & JURIS. 321, 321 (2016). 396 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2 branch, while the second avoids fragmenting executive power. 2 Both approaches are aimed towards promoting the public welfare, but the way in which the executive may achieve this goal differs greatly from one to the other. In recent years, there has been growing concern about the expansion of executive power in countries across the globe and worries about populist politicians maliciously maximizing the power of the executive to advance personal political interests and, consequently, paralyze democratic institutions. In a democratic polity, debate over the proper role of executive power is doomed to be circuitous. On the one hand, voters usually expect political candidates to render electoral promises after stepping into office, which signifies a potent and capable executive power. On the other, the party who lost the election strives to confine the executive power as much as they can, since most of the ruling party’s policies go against their agenda and interests. Therefore, the use and control of executive power is a tug of war where one side seeks to maximize its functionality and the other side endeavors to minimize it. However, the tension between maximalism and minimalism cannot be reduced to merely a conflict between the abuse of power and the rule of law. In fact, there is no doctrine in constitutional law or administrative law preventing leaders and governments from doing their job. For example, Article 2, Section 3 of the U.S. Constitution provides the president the duty and power to “take care that the laws be faithfully executed.” 3 In a parliamentary system like Japan, its Constitution also bestows powers on the Prime Minister to “submits bills, reports on general national affairs and foreign relations to the Diet and exercises control and supervision over various administrative branches.”4 Apparently, presidents and prime ministers enjoy constitutional powers to carry out law and policies. The rule of law does not require that everything the executive has done should have been expressly mentioned in law or delegated by the legislative branch.5 The traditional 2 The representative work of the second school is ERIC POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND (2010). The first school is well represented in BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC (2010). 3 U.S. CONST. art. 2, § 3. 4 NIHONKOKU KENPŌ [KENPŌ] [CONSTITUTION], art. 72 (Japan). 5 This is best illustrated by the decision of the Supreme Court of the United States in Chevron v. NRDC, 467 U.S. 837 (1984). Justice Stevens wrote for the court, “When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be April 2019 Unenumerated Power 397 doctrine of ultra vires essentially demands the government rule with legitimacy and, therefore, combines the elements of legitimacy with legality.6 In everyday administration, discretion and deliberation are common features of modern government, which requires dialogic interaction among different constitutional branches. 7 Checks and balances, therefore, mean that democracy should be guarded with the spirit of vigilance rather than the specter of abhorrence. In Federalist Paper No. 51, James Madison wrote: In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught man-kind the necessity of auxiliary precautions.8 Therefore, to attribute the rise of “executive tyranny” or “imperial presidency” to the maximalist conception of executive power is a misunderstanding, which confuses democratic foundation of modern government with rule-bound government.9 necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Id. at 842–43. Meanwhile, Adrian Vermeule, an administrative law professor at Harvard, also noted, “The internal legal argument is that the power to fill in the details is an indispensable element of what ‘executive’ power means; that to execute a law inevitably entails giving it additional specification, in the course of applying it to real problems and cases. General legislative lawmaking can never go all the way down, as it were, to the actual facts of particular cases.” See ADRIAN VERMEULE, LAW’S ABNEGATION 53 (2016). 6 According to Trevor R. S. Allan, although A.V. Dicey’s formulation of ultra vires doctrine seems to create a tension between legislative supremacy and the rule of law, Dicey also claimed that “Powers, however extraordinary, which are conferred or sanctioned by statute, are never really unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges.” T.R.S. ALLAN, CONSTITUTIONAL JUSTICE: A LIBERAL THEORY OF THE RULE OF LAW 13–14 (2001). Therefore, ultra vires actually combines both “legitimacy” (parliamentary sovereignty) and legality (the rule of law or the internal morality of law).