Explore the vast range of titles available.

Distribution of power in Indonesian constitutional system not only occur amongst state organs but also within Indonesian judicial system. The Supreme Court and Constitutional Court share their power to review several regulations. The 1945 Constitution delivers power to review act against constitution for Constitutional Court and to review regulations below an act for the Supreme Court. However, this distribution of power is vulnerable to contradicting each other, with the possibility of having clash of judgment. There is no guarantee that the Supreme Court will fully obey the Constitutional Court judgment. So, the research question needs to be solved such as judicial Review pre-the Amendment of the 1945 Constitution process, and judicial Review Post the Amendment of the Constitution implement, that will be main points of research purposes. Furthermore, the main problem is the distribution power between Constitutional Court and Supreme Court, whether have distributed fairly or not. Another problem after amendment is about disagreement amongst judges. Before amendment, judges were forbidden to show their disagreement clearly in the verdict, but now allowed. This fact has led to public distrust. They have questioned the legitimacy of the verdict having disagreement, whether should be obeyed or be denied.

Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny.

After the electoral victories of 2015, PiS transformed the CT from an effective, counter-majoritarian device to scrutinise laws for their unconstitutionality, into a powerless institution paralysed by consecutive bills rendering it unable to review new PiS laws, and then into a positive supporter of the enhanced majoritarian powers. In a fundamental reversal of the traditional role of a constitutional court, it is now being used to protect the government from laws enacted long before PiS rule. Whatever else constitutional courts around the world are expected to do, there is no doubt that their first and primary function is to ensure adherence to a constitution and its protection against legislative majorities. In Poland, the Tribunal became a defender and protector of the legislative majority. This changed role, combined with general distrust of the CT and concerns about legitimacy of its judgments, explains also the extraordinary drop in the number of its judgments. For all practical purposes, the CT as a mechanism of constitutional review has ceased to exist: a reliable aide of the government and parliamentary majority has been born.

In the past two years, the Supreme Court has invalidated two major executive-branch initiatives – the termination of the Deferred Action for Childhood Arrivals (DACA) policy and the addition of a citizenship question to the census – as arbitrary and capricious. Many have cast Chief Justice Roberts's decisive votes and opinions in these cases as efforts to protect the Court's public standing by skirting political controversy. Taken on their own terms, however, the opinions seem less about keeping the Court out of the political thicket and more about pushing the Trump Administration into it. And that use of arbitrariness review as a judicial backstop for political accountability is an important jurisprudential development in its own right. For decades, the Court has understood arbitrariness review mainly as a check against bureaucratic blunders, lawlessness, and political interference with agency expertise. But in the DACA and census cases, a narrow majority refashioned this form of review as a tool for forcing an administration to pay the appropriate political price for its discretionary choices. Through close and context-laden readings of these back-to-back opinions, I surface the \"accountability-forcing\" form of arbitrariness review that they employ and draw out its significance. Between the two cases, the Roberts-led majority identified three kinds of agency explanations that should be rejected or disfavored on political-accountability grounds: post hoc explanations, buck-passing explanations, and pretextual explanations. Standing alone, these new rules (and new justifications for old ones) have important consequences. But if the shift toward an accountability-centric vision of arbitrariness review continues, it could also lead to renovations of several other administrative-law doctrines – including narrowing the carve-outs from judicial review, undermining the remedy of \"remand without vacatur,\" and empowering courts to discount agencies' fallback justifications for their choices. After laying out the accountability-forcing turn in the Court's recent cases and sketching its possible ramifications, I consider several grounds for doubt about its propriety and efficacy. Some of these objections, I conclude, have real force. Still, none debunks the core insight that I take to underlie Roberts's approach: The reasoned explanation requirement can sometimes be deployed not only to ensure rationality and legality in the workings of the administrative state, but to vindicate democratic, political checks on the executive branch as well.

There have long been debates about the nature, scope, and legitimacy of the political question doctrine, the modern version of which originates with the Supreme Court's 1962 decision in 'Baker v Carr'. Despite the differing views, the scholarly commentary has one thing in common: it is focused almost entirely on the Supreme Court. In the sixty years since 'Baker', however, the Court has applied the doctrine as a basis for dismissal in only three majority decisions. By contrast, during this period, the lower courts have applied the doctrine as a basis for dismissal in hundreds of cases. We provide the first empirical account of how the doctrine has operated in the lower courts since 'Baker'. Our account is based on both a quantitative and qualitative analysis of a sample of these decisions. This account reveals a political question doctrine that is substantially different from the one described in most scholarship: It is more vibrant, heavily focused on foreign affairs, often applied in non-constitutional cases, more prudential, and not a permanent disallowance of judicial review. The lower courts use the doctrine to evaluate their own institutional capacity to resolve politically sensitive disputes. It is the lower courts' more limited capacity compared to that of the Supreme Court, combined with their non-discretionary docket, that explains the lower courts' heavier reliance on the doctrine.

It is – and has long been – well known that the Executive’s power is expanding. To date, there are two dominant analyses of the judiciary’s role in that expansion: the judiciary is intrinsically too weak to check the Executive or the judiciary has actively facilitated the Executive’s unprecedented enlargement of power. This Article challenges those views. It argues that the judiciary is very much engaged in devising techniques to check executive power. Through developments that are managerial and doctrinal, substantive and procedural, high-profile and seemingly mundane, federal courts have subjected an important set of executive actions that this Article terms “enforcement lawmaking” – the exercise of enforcement discretion in a manner that goes beyond simple policy and that shares attributes of law – to judicial oversight. Together, these developments reveal a potential shift in the structure of separation of powers. Courts have leveraged their inherent case-management powers–the procedures that shepherd lawsuits through the process of judicial review – to force transparency on the Executive and to hold it to account. This Article maps the effects of these “managerial checks,” which render the simple existence of judicial review powerful, particularly when viewed together with the extension of justiciability and remediation doctrines. Courts have authorized judicial review earlier and to greater effect by redefining when executive action is ripe for judicial review. They have created new avenues for multiparty public litigation through developments in standing doctrine. And they have increasingly deployed a muscular remedy, the nationwide injunction, to counterbalance increasingly muscular forms of executive action. This Article argues that these developments along the entire life cycle of suits challenging enforcement lawmaking – from standing, to ripeness, to judicial recordkeeping and management, to remedies – should be viewed together and in separation-of-powers terms. The nuts and bolts of litigating these suits has led to an emerging expansion of judicial power. Courts have flexibly and responsively assimilated new assertions of executive power in ways that have restructured federal court doctrine and practice and emboldened federal courts. After documenting these changes at all levels of the federal judicial system, this Article offers a prescription for the Supreme Court. The Supreme Court should avoid prematurely dictating the boundaries of this expanded judicial power from above and instead allow district courts and courts of appeals considerable freedom to fashion the judiciary’s checking powers from below. Such an approach will avoid premature Supreme Court interventions that have the effect of subjugating judicial power to executive power.

Important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, a cornerstone of modern constitutional litigation. Deploying a historically inflected methodology that we call equitable originalism, scholars and jurists have sought to confine federal equity power to the forms of equitable intervention common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such limits have led some to question the power of federal courts to grant affirmative Ex parte Young relief and to issue national or universal injunctions. This Article explores the Ex parte Young action and the power of federal courts to issue affirmative constitutional remedies in its name. It shows that equity’s traditional reluctance to intervene in public law matters reflected the perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for oversight of the administrative state. Over time, equity adapted. Ex parte Young confirms a nineteenth-century transition in which the injunction absorbed the lessons of the common law writs and evolved into the primary mode of judicial control of administrative action. Equitable originalism could reverse such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.

Constitutionalism is often analogized to Ulysses binding himself to the mast in order to resist the fatal call of the Sirens. But what is the equivalent of Ulysses's ropes that might enable a political community to bind itself to constitutional rules? The positive puzzle of constitutionalism lies in explaining the willingness and ability of powerful political actors to make sustainable commitments to abide by and uphold constitutional rules even when these rules stand in the way of their immediate interests. Why, for example, would a popular President choose to abide by constitutional limitations on conducting what he and the majority of the country believe to be a vitally necessary war to preserve the Union or to fight terrorism, or a critical intervention to save the country from the Great Depression or the collapse of the financial system? The puzzle generalizes to how intertemporal political commitments of any sort are possible. We might wonder, along similar lines, how a political community can credibly and durably commit itself to repaying its debts, refusing to bail out financially reckless banks, or refraining from war. A standard approach to answering such questions in both legal and political contexts is to invoke stable \"institutions\" of various kinds as reliable commitment mechanisms. Courts can enforce constitutional norms. Structural arrangements such as federalism, separation of powers, democracy, and delegation can raise the cost of political change or stack the deck in favor of particular outcomes. And of course constitutions are commonly cast as somehow self-enforcing guarantors of political commitments. But this explanatory approach just pushes the puzzle back to how these institutions become impervious to socio-political revision or override. Why should we expect institutional commitment devices to be any more stable than the first-order commitments they are supposed to facilitate? Understanding how constitutions and other institutions can effectively constrain politics remains a fundamentally important theoretical challenge in law and the social sciences. This Article demonstrates the generality of that challenge and explores its implications for constitutional law and theory. The Article also attempts to make progress in explaining how, and in what contexts, successful legal and political commitment may be possible by consolidating a set of mechanisms through which legal and political arrangements — prominently including systems of constitutional law, the constitutional structure of government, and judicial review — can become entrenched against opposition and change.

Against increasing rule of law backsliding within the EU, the European Commission has presented the rule of law as a well-established and well-defined principle whose core meaning is furthermore shared as a common value among all Member States. In refute, the national governments of the two EU countries, which are both subject to special EU procedures on account of the systemic threat to the rule of law their repeated actions have caused, have claimed that the rule of law is neither defined in EU law, nor could it be defined in EU law. This article’s primary aim is to assess these conflicting assertions. It does so by first offering an overview of the EU legal framework on the basis of which it is shown that the rule of law, as asserted by the Commission, is a well-established constitutional principle of EU law. It furthermore shows that it is well-defined, not least because of the Court of Justice’s extensive case law, the European Commission’s definitional codification of it and most recently, the adoption of the Rule of Law Conditionality Regulation 2020/2092 which provides the first comprehensive allen compassing internal-oriented definition of the rule of law adopted by the EU co-legislators. This article furthermore contends that the EU’s understanding of the rule of law reflects what may be presented as a broad consensus in the European legal space on its core meaning and components; its legal use as a primary principle of judicial interpretation and a source from which standards of judicial review may be derived; and how the rule of law relates to other fundamental values. Finally, this article concludes by examining the reality of a potentially emerging East-West dissensus as regards the rule of law. In light of evidence of strong and widespread support for the rule of law in every single EU Member State in the face of top-down attempts to systemically undermine it, it is however submitted that there is no meaningful East-West divide but an authoritarian-liberal divide at elite level.

The consensus that surrounded the granting of central bank independence in the pursuit of a price stability oriented monetary policy has been challenged in the aftermath of the global financial crisis, in the light of the rise of populism on the one hand and the expanded mandates of central banks on the other hand. After considering the economic case for independence and the three Ds (distributional, directional and duration effects), the paper examines three different dimensions in the debate of how the rise in populism - or simply general discontent with the status quo - affects central bank independence. Finally, the paper examines how to interpret the legality of central bank mandates, and whether or not central banks have exceeded their powers. This analysis leads us in turn to consider accountability and, in particular, the judicial review of central bank actions and decisions. It is important to have in place adequate mechanisms to ‘guard the guardians’ of monetary and financial stability.