Judicial Review in Times During Times of Emergency Is it justified to allow legislators, the ability to enact laws without the constraint of the judiciary in times of emergency? Due to the inability of the court to act in emergency situations, Oren Gross and Mark Tushnet are opposed to the process of judicial review during times of emergency (Cole, 712). Consequently, they believe that legislators should be granted extra-constitutional powers to make decisions without the process of judicial review (712). I disagree with this position. Judicial review, even in times of emergency is essential to protecting the constitutional rights of individuals. I will first outline the main arguments asserted by Gross and Tushnet, which relate to the lack of action taken by the courts in the past (712). Following this, I will outline David Cole’s argument, which demonstrates a strong case for judicial review and the faults he finds in the …show more content…
Gross states that it is inevitable “that executive officials in times of crisis will act extra constitutionally” (713). Since this is expected, in Gross’ opinion, it is necessary to give legislators the authority to “act extra legally when they believe that such action is necessary for protecting the nation and the public” (713). Gross argues that, as long the legislators “openly and publicly acknowledge the nature of their actions” (713) this is a benefit for society (713). Gross defends his arguments by reminding us that by requiring legislators to be transparent with their extra-constitutional actions, they subject themselves to the “judgment of the people” (714). In doing so, the legislators must fairly represent the citizens that they speak for; otherwise they run the risk of not being elected, this in turn will avoid the “abuse of executive powers”
(475 U.S. 469 [1986]), connects with the concept that Lynn proposes in the essay, Federalist No. 51: Is Liberty Guaranteed by Structures? Lynn suggests that the checks and balances system of the U.S. government has created a gridlock when keeping the government’s integrity (2011). Pemnaur can be used an as example to justify Lynn’s argument.
Federalist no. 78 is persistent in its sort of justifications of the Constitutions vagueness. The letter claims that the judiciary branch is of the least danger of t...
When the rights of the American citizen are on the line than the judiciary should utilize the powers invested in them to protect and enforce what is constitutional. However, in times of controversy, where personal preference or aspects of religious or personal nature are at hand, the judiciary should exercise their power with finesse, thereby acting out judicial restraint. An example of such is in the case of Engel v. Vitale where Mr. Justice Black delivered the opinion of the court directing the School District’s principal to read a prayer at the commencement of each school day. In cases that do not regard whether an action is constitutional or not, the judiciary should suppress their power of judicial review.
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety," says Benjamin Franklin in Historical Review of 1759. Others tend to say just the opposite of what Ben Franklin quoted. With that being said, a key question comes up for discussion: Does the government have the Constitutional power to suspend the Constitution during a time of crisis? Certain documents were brought up for discussion that deal with certain articles from the Constitution and some acts/laws that the Congress passed to substantiate whether the government has certain powers. By using the U.S. Constitution, the Espionage Act, the Sedition Act, an executive order from President Franklin D. Roosevelt, and two federal Supreme Court cases, it will be proven that the government DOES have certain powers during a time of crisis.
The old idea of the separation of branches has proven to be able to solve modern day issues. However, recent issues have also proven to disregard the system, in which selfish needs over power and manipulate its uses. One example of this would be the over-empowerment of a singular branch within the government. A recent IRS scandal brought up the question as to whether or not the Presidential (executive) branch used the IRS to intimidate the opposite party, in which skepticism arose towards the “equality” of the separated branches. Another example of questionable equality of the balance of branches would be the passing of the “Patient Protection and Affordable Care Act” (Obamacare) within 2008-10, which was a law passed without the consent of the other branches besides the executive. These are clear examples of how modern day issues can twist and ruin this ‘flawless’ system. These examples, however, show the greater need for the separation of powers in today’s government. As society has grown and evolved, the government’s people, their job being the voice of the people of the country, has turned into a way to achieve selfish wants for our representatives, creating an even more significant need for the separation of powers.
Madison touches on the importance of ‘checks and balances’ and why they play such a huge role in distributing power among the branches. Checks and balances are meant to check the levels of government and to ens...
In conclusion it seems that the traditional view of parliamentary sovereignty as purported by Dicey is no longer an immutable part of our constitution. Although it remains a key principle of our constitution, it has now been reinterpreted in light of seminal cases such as Factortame and Jackson, from a legally unchangeable, rule of our constitution, to one in which Parliament is no longer prevented from placing limits to the content and form of itself.
Works Cited Hudson, William E. American Democracy in Peril: Eight Challenges to America’s Future – Fourth Edition. Washington, D.C.: CQ Press, 2004. Landy, Marc and Sidney M. Milkis. American Government: Balancing Democracy and Rights.
To explain, the president has little control with regard to current events and policy making, his wishes are ignored, and his hands are tied. With such circumstances, the president’s desires are viewed as, just that, desires, rather than commands. Unless of course he holds the power of persuasion. In order to reach political power and presidential achievement, the president must persuade other political actors his interests are theirs (Howell 243). Howell counter argues Neustadt, explaining the president exerts influence not by the power of persuasion, but by his unilateral powers. “The president can make all kinds of public policies without the formal consent of Congress”. The unilateral powers emerge from institutional advantages such as the structure, resources, and location within the system of separated powers. (Howell 246-247). By that Howell means, the president’s power does not derive from persuasion, but from simply being the
The Hollow Hope examines the following research question: when can judicial processes be used to produce social change? (Rosenberg 1). Rosenberg starts out the book by describing the two different theories of the courts. The first theory, the Dynamic Court view, views the court as being powerful, vigorous, and potent proponents of change (Rosenberg 1). The second theory, the Constrained Court view, views the court in the complete opposite way. With this view the court is seen as weak, ineffective, and powerless (Rosenberg 3). In this view there are three different constraints that restrict the courts from producing effective political and social change. These constraints include: limited nature of constitutional rights, lack of judicial independence, and the lack of tools the courts need (Rosenberg 35). Even though there are constraints on the court there are conditions where the court is able to overcome the constraints.
The power of the Executive branch has expanded over time to become the most authoritative division of government. In contrast to the Constitution 's fundamental designer, James Madison, who predicted the Legislative branch would dominate due to it’s power in making laws and regulating taxes/spending, the executive powers have proven to be superior and ever broadening. From the birth of the Republic, the President has sought to protect his rights and seek beyond his restriction of power. Setting the precedent as early as 1795, George Washington refused to relay documents relating to the Jay Treaty to the House of Representatives and saw his actions as a justified act of “executive prerogative.” Moreover, weaving throughout the Nineteenth century, presidents such as Andrew Jackson and Abraham Lincoln conceived and added functions, such as the extensive use of the veto and the president’s direct and active role as Commander in Chief to their executive tool-belt. The Constitution communicates very little details regarding the President’s use of the power of veto and the role as Commander in Chief, but it was these presidents which established the major authority of the executive branch in these areas.
as it does supporters. But, if we do not allow the Supreme Court to translate
Dahl conducted his study on the decision making of the Supreme Court and whether the Court exercised its power of judicial review to counter majority will and protect minority rights or if it used the power to ratify the further preferences of the dominant “national law making majority.” From the results of Dahl’s study he builds numerous arguments throughout his article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker”. In what follows, I will thoroughly point out and explain each of the arguments that Dahl constructs in his article.
Light, Paul C., and Christine L. Nemacheck. "Chapter 7 Congress." Government by the People, Brief 2012 Election Edition, Books a La Carte New Mypoliscilab With Etext Access Card Package. By David B. Magleby. 2012 Election Edition ed. N.p.: Pearson College Div, 2013. N. pag. Print.
A key feature of the unwritten constitution is ‘the Separation of Powers’. This exercises the idea of independence within ‘different functions of government’; it is represented by the legislature, the executive and the judiciary. Separating the three prevents a dangerous occurrence where power is entirely centralized in one group. Cooperating with one...