Washington University Global Studies Law Review: “A Fourth Model of Constitutional Review? De Facto Executive Supremacy” (re: Japan’s Cabinet Legislation Bureau 内閣法制局)

My latest peer-reviewed article … a study of Japan’s Cabinet Legislation Bureau (内閣法制局) and its implications for literatures in constitutional law and judicial politics concerning the heavily debated question of “whose interpretation of the constitution shall prevail?” … has just been published in the Washington University Global Studies Law Review. I coauthored this piece with Kazuo Fukuda, a brilliant Ph.D. candidate at the Indiana University Maurer School of Law’s Center for Constitutional Democracy (CCD).

This article originated in a talk I gave at CCD on the implications for constitutional review in Japan of the Abe Cabinet’s controversial 2014 “reinterpretation” of Article 9 to allow for the exercise of collective self-defense (集団的自衛権) under limited conditions. Kazuo came on board soon after and leveraged his encyclopedic knowledge of constitutional law to help significantly elevate and expand the analysis beyond my focus on Japan, including introducing the explicitly comparative angle. Please check it out!

A suggested citation and link to the published version (PDF) is below:

  • Abstract: Scholarship engaging the controversial question of whose interpretation of the constitution shall prevail has focused on three models: judicial supremacy, legislative supremacy, and departmentalism. Of late, the literature has centered on questions regarding the authority and/or status of the judiciary. This study argues that this important debate has neglected the prospect of a fourth model of constitutional review: de facto executive supremacy. To make its case, it examines Japan’s Cabinet Legislation Bureau—an executive branch-based institution that has acted as Japan’s de facto supreme interpreter of the constitution and draft statutes, despite the existence of a judicial branch explicitly empowered constitutionally to do so. Supplemented by comparative analysis with France’s Conseil d’État and the U.S.’ Office of Legal Counsel, this article emphasizes the role of executive institutions in the law-making process in both theory and practice and discusses potential implications of considering de facto executive supremacy as a legitimate model.
  • Key words: Japan, executive branch, constitutional review, constitutions, judicial politics