Author Archives: Adam P. Liff

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)

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CONCLUSION

In answering the “who interprets the constitution?” and “whose interpretation shall prevail” questions foundational to large literatures in both constitutional law and political science, the scholarship on constitutional review has generally focused on three competing models: judicial supremacy, legislative supremacy, and departmentalism. The former two schools argue that the buck should stop with the judiciary or the legislature, respectively, while not necessarily excluding other branches in the process. The latter, in contrast, essentially treats each branch as, in the words of political scientist Keith Whittington, “an equal authority to interpret the Constitution in the context of conducting its duties… [because] each branch of government has its own, non-overlapping set of interpretive responsibilities.”
What this massive and important debate has generally overlooked heretofore, however, is the prospect of a fourth model: de facto executive supremacy. The theoretical literature has also neglected a particularly compelling real-world case that suggests its viability: Japan’s Cabinet Legislation Bureau, at least under some conditions. Indeed, for 70 years Japan’s postwar CLB has exercised extraordinary influence over constitutional review in the world’s third largest economy. Throughout this period, it has acted as the de facto supreme interpreter of the constitution and draft statutes, despite the existence of a court explicitly empowered by Japan’s Constitution to do so.
By introducing Japan’s CLB to this important interdisciplinary literature, emphasizing the distinction between law in books and law in action, and comparing the CLB with France’s Conseil d’État and the U.S. Office of Legal Counsel, this article highlights the important role executive institutions can play in the law-making process in both theory and practice, discusses several preliminary implications of de facto executive supremacy as a “fourth” model of constitutional review, and calls on scholars to continue the debate. Several potentially fruitful avenues for future research related to the “whose interpretation shall prevail?” question, in particular, are to broaden the conventional scope of analysis in the study of constitutional review as a whole, and to conduct more theoretical, empirical, and normative research specifically on the prospects for de facto executive supremacy as a fourth model.

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The Washington Quarterly: “Kishida the Accelerator: Japan’s Defense Evolution after Abe”

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The Next Chapter in Japan’s Security Strategy

Japan’s unprecedently ambitious December 2022 strategic documents and out- comes from the January 2023 US-Japan meetings in Washington reflect a historic re-evaluation by Japan’s government of what it can and must do to more effec- tively enhance deterrence in response to a rapidly worsening regional and global security environment. The documents and subsequent Kishida govern- ment rhetoric are also noteworthy for their acknowledgment that decades of rela- tively stagnant defense spending mean Japan must not only develop new capabilities but also expeditiously and “fundamentally” reinforce its existing ones. In a country that has for decades effectively pegged the defense budget to an arbitrary ceiling of 1 percent of GDP, the authoritative coalition government’s call to surge spending by two-thirds by 2027 to enable this, as well as new capabilities, is extraordinary.The historic decisions to acquire “counterstrike capabilities” and “active cyber defense” for self-defense are particularly compelling testaments to how rapidly Japanese leaders’ sense of their nation’s security environment–and what is necess- ary for effective deterrence–has changed. Also remarkable but less commented upon: against the backdrop of Russia’s war of aggression in Ukraine, Japan’s public appears to recognize a changed reality. Though there is clear discomfort with some key measures (e.g., counterstrike), and how to pay for them, the Kishida Cabinet’s strategies have to date attracted far less domestic resistance than would have been likely in previous eras.

That these strikingly ambitious pledges occur under the administration of a prime minister heretofore almost universally identified by media as a “dove” not only reveals how much regional geopolitics and Japan’s domestic political terrain have shifted in recent years, but also exposes the pitfalls of excessive focus on individual leaders as the primary determinants of Japan’s national security tra- jectory. Leaders of course matter greatly, but other potent factors are also at play.

While Japan’s new national security and defense strategies are unprecedently ambitious and potentially transformative, core, unique pillars of Japan’s decades- old defense orientation also persist. Rather than marking an across-the-board “disjuncture,” the developments of the past few months are the opening pages of the latest chapter—sure to be a major and fascinating one—in a multi- decade story of reforms to Japan’s national security-relevant institutions and pol- icies amidst a rapidly changing external environment.

The rest of this chapter is not yet final, however. Numerous stars will need to align over the next five to ten years for Japan to achieve the goals contained within these three documents. Domestic and international political vicissitudes will have a lot to say about whether Japan’s new national security ambitions will be sufficiently resourced, supported by robust new legislation, and efficiently and effectively implemented. The specifics of implementation, not just the head- lines, will matter greatly. Even if fully resourced and legislated, key components of Japan’s vision, including active cyber-defense and counter-strike capabilities, may take years to fully come online. Amid what the documents themselves call “the most severe and complex security environment since the end of WWII” and with the world at a “historical inflection point,” the implications of these initiatives for Japan’s region and the world, to say nothing of its US ally’s own strategic objectives, are potentially profound. Watch this space.

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Brookings: “Japan’s new security policies: a long road to full implementation”

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Pointing out the difficult road ahead is not meant to minimize the significance of the ambitions contained in Japan’s new national security and defense strategies, or to suggest achievement is unlikely. Rather, the intent is simply to highlight that despite the bold steps forward already taken by the Kishida Cabinet, there remain many unknowns about what will come next, and how bumpy the path forward is likely to be. One thing is certain: a lot of hard work — in both Tokyo and Washington — lies ahead.

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The China Quarterly: “Japan, Taiwan, and the ‘One China’ Framework”

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Though what future path Japan-Taiwan relations will take is uncertain, in confronting these complicated challenges, Japan is not alone. Policy debates in Washington and other major democratic partners, including Australia, the UK, and the EU, evince similar dilemmas vis-à-vis democratic Taiwan, “One China,” and stable ties and economic exchange with an increasingly powerful, assertive, and authoritarian Beijing. At least so far, and as additional indicators of the vagueness and flexibility built into the “One China” framework, developments during the fiftieth-year post-normalization suggest many in Japan and beyond are eager to continue deepening support for and practical cooperation with Taiwan—even as their official positions on “One China” remain frozen in time…

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Asia Policy: “The U.S.-Japan Alliance and Taiwan”

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In April 2021, Japan’s then prime minister Yoshihide Suga and U.S. president Joe Biden made global headlines when they jointly “underscored the importance of peace and stability across the Taiwan Strait and encouraged the peaceful resolution of cross-Strait issues”—the first such reference in a summit-level statement since 1969. This statement catalyzed a striking degree of public discussion in Japan and expressions of concern about cross-strait stability from Japanese leaders. It also elicited widespread, though often misleading or inaccurate, assertions overseas that Japan’s position vis-à-vis a “Taiwan contingency” had abruptly or radically transformed. Especially given the proximity of Japan (and U.S. military bases in Japan) to Taiwan, soberly appreciating the complexity and incremental evolution of Japan’s nuanced and intentionally ambiguous positions and policies, as well as its unique domestic constraints, is critical. Doing so is especially crucial for policymakers to accurately assess the status quo, manage expectations within and beyond the alliance, and ensure sound decision-making as the cross-strait deterrence challenge seems all but certain to deepen in the years ahead.

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Journal of Contemporary China: “Reassessing Seoul’s ‘One China’ Policy: South Korea-Taiwan ‘Unofficial’ Relations after 30 Years (1992-2022)”

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In 1992, Korea’s first democratically-elected government was clearly eager to normalize relations with Beijing. Nevertheless, it did not give in to pressure to recognize Beijing’s ‘One China principle’ as it concerns the essential claim that Taiwan is part of the PRC. Coupled with this study’s historically- grounded case study and comparative analysis with the similarly vague U.S. and Japanese official positions and other countries’ ever-evolving ‘One China’ policies, this reality demonstrates that Seoul’s relative reluctance to publicly express support for or significantly expand practical cooperation with Taiwan is best understood as due to a succession of ROK leaders’ subjective political judgments about what is in Korea’s national interest—not any putative commitment made to Beijing thirty years ago…

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Journal of Japanese Studies: “Japan Transformed? The Foreign Policy Legacy of the Abe Government”

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To conclude that widespread narratives exaggerate Abe’s individual impact is not to deny his agency or influence. Abe altered Japan’s image as a nation plagued by frequent leadership turnover and struggling to exercise international leadership. He accelerated important institutional reforms, and his busy diplomatic schedule and active management of the foreign
policy apparatus reflected a clear desire to enhance Japan’s international stature. Undoubtedly, Abe left office in 2020 with a list of foreign policy accomplishments.
However, his track record also demonstrates that there are
clear limits on the ability of a Japanese leader to fundamentally transform the country’s foreign policy. To exaggerate the individual significance of any prime minister is to risk overlooking the other, sometimes larger forces reshaping Japan’s foreign policy trajectory—forces that will remain important even now that Abe has passed the baton to his successors.

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Asian Survey: “Japan in 2021: COVID-19 (Again), the Olympics, and a New Administration”

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For Japan in 2021, COVID-19-related disruption was again the dominant storyline. Its impact transcended societal consequences to affect Japan’s economy, politics, and foreign affairs. It frustrated Japan’s economic recovery and, for the second time in as many years, contributed to a prime minister’s premature resignation. Yet the year also witnessed major positive developments, including…

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AEI: “10 Years After ‘the Pivot’: Still America’s Pacific Century?”

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No Time to Waste

Ten years ago, the Obama administration pledged that the United States would pivot to Asia. It rightly identified the region as the “key driver of global politics,” called the US role “irreplaceable,” and articulated a compelling vision for leadership along six lines of action. The Trump administration repeatedly spoke of the Indo-Pacific as its priority theater and competition with China as a defining foreign policy challenge. Yet the record of the past decade reveals a recurring gap between rhetoric and action.

Although circumstances have improved significantly under Biden, after nine months warning signs are emerging. Notwithstanding the efforts of the administration’s Asia team, the United States is not back in the region—at least not yet. As the new administration and Congress look to learn from US missteps over the past decade, three top priorities should be: (1) re-centering US strategy on Asia, rather than China; (2) embracing a positive regional economic agenda; and (3) rebalancing significantly enhancing diplomatic and military resources to prioritize the region.

Despite America’s recent struggles, the importance of Asia to US interests and the core strategic logic of the pivot have only become clearer over the past decade. In addition to the rapidly growing region’s inherent economic and strategic importance, Asia is the central stage of a competition that will define key standards, rules, and norms of regional and global geopolitics and geo-economics for decades to come. This competition is not some far-off, future challenge. It is already here.

US leaders must humbly reflect on the shortcomings of past efforts and invest in a comprehensive agenda focused on positively shaping the region’s future. In the months and years ahead, the administration and Congress will have to act far more proactively, affirmatively, and multilaterally to ensure that this will truly be America’s Pacific century.

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Washington Post: “Has Japan’s policy toward the Taiwan Strait changed?”

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Japanese leaders in 2021 have made an unusual series of high-profile statements and comments concerning Taiwan and the Taiwan Strait. These appeared to crescendo last month, when global headlines asserted that July 5 remarks by Japan’s deputy prime minister meant “Japan pledges to defend Taiwan if China attacks” or marked a fundamental change in Japanese policy…

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Asian Survey: “Japan in 2020: COVID-19 and the End of the Abe Era”

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JAPAN’S LEADERS BEGAN 2020 full of hope and expectation, and with lofty ambitions. As then-Prime Minister Abe Shinzō (2020a) proclaimed at his New Year’s press conference, “Together with the Japanese people, I will make this historic year . . . a year for carving out a new era for Japan.” Indeed, 2020 was not just any year. Perhaps more than any other in recent memory, the Japanese public (and Abe himself) had long anticipated that 2020 would be one for the history books. In 2013, Japan had been awarded the 2020 Summer Olympics and Paralympics. The following January, Abe predicted in a major policy speech that in 2020 Japan would “be newly reborn,” just as, he argued, it had been in 1964, the last time Tokyo hosted a Summer Olympics, just 19 years after Japan’s defeat in World War II (Asahi Shimbun 2014). In 2017, not only was it announced that 2020 would also be the first full year of Japan’s new Reiwa imperial era, but also Abe began repeatedly pledging that he would make it the year that Japan finally revised its (never-amended) US-drafted 1947 constitution—a deeply held ambition central to Abe’s personal and political legacy and a key pillar of the 1955 founding charter of his conservative Liberal Democratic Party (LDP).

But COVID-19 had other plans for Japan in 2020.

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Wilson Center: “A “Taiwan Relations Act” for Japan?”

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In a provocatively titled article published earlier this month, Nikkei reported that “Japan lawmakers want ‘Taiwan Relations Act’ of their own.” The article, which was published in English and attracted attention from U.S.-based Asia policy experts, further suggested that a “2-plus-2 dialogue among the foreign and defense ministers of Japan and Taiwan” is being discussed in Tokyo.

Were Japan’s National Diet to actually pass legislation analogous to the landmark U.S.’ 1979 Taiwan Relations Act or to set up a Cabinet-level government-to-government “2-plus-2 dialogue,” it would be a groundbreaking and historic development in Japan-Taiwan relations. It is therefore no surprise the article attracted so much attention in Washington, D.C.

But neither seems likely to happen…at least not anytime soon or in the manner many may assume.

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Brookings Institution Press: “Proactive Stabilizer: Japan’s Role in the Asia-Pacific Security Order”

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“…All the aforementioned challenges threaten foundational pillars of Japan’s economy and national security. Indeed, if the order were to collapse or the United States to “withdraw” or “abdicate” in the manner already suggested by some and feared by many, defining assumptions of Japan’s foreign policy would be fundamentally undermined…”

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Brookings Institution Press: “Japan and the Liberal International Order: A Survey Experiment”

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Taken collectively, the results suggest that Japanese citizens believe the liberal international order has been crucial to postwar national prosperity and peace and stability in the Asia-Pacific region. There is also robust support for Japan adopting a relatively more proactive posture in international trade and security affairs-within limits. In the economic domain, survey respondents strongly support the idea that Japan has benefited greatly from international free trade and should play a leadership role in that domain regardless of what the United States does. This comports with Solis’s argument that Japan is no longer a follower on free trade, as reflected in its effort to champion the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP, also known as TPP-11) after the Trump administration’s withdrawal from the twelve-member Trans-Pacific Partnership in January 2017. With regard to security affairs, the survey reveals strong support for strengthening ties with the United States, for Japan deepening ties with other countries in the region as a counterweight to China, and for pursuing more robust defense capabilities to bolster deterrence, such as increased defense spending. These goals all appear congruent with U.S. policies.

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Brookings: “China, Japan, and the East China Sea: Beijing’s “gray zone” coercion and Tokyo’s response”

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“…This paper focuses on the competition between China and Japan over their festering territorial dispute in the East China Sea. Though political frictions over the Senkaku (Diaoyu in Chinese) Islands are decades-old, since a 2012 contretemps over the islands led Beijing to begin regular, provocative deployments of government vessels into the islands’ contiguous zone and territorial seas, the dispute has become the most significant geopolitical flashpoint and locus of security competition between China and Japan today…

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Brookings Foreign Policy Interview: “The Stress Test: Japan in an Era of Great Power Competition”

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In September 2019, Brookings Vice President and Director of Foreign Policy Bruce Jones convened seven Brookings scholars and affiliates — Richard Bush, Lindsey Ford, Ryan Hass, Adam Liff, Michael O’Hanlon, Jonathan Pollack, and Mireya Solís — to discuss Japan’s present and future path in this era of great power competition. The edited transcript below reflects their assessment of the current state of Japanese strategic choices.

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East Asia Forum: “Japan’s National Security Council at five”

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On 4 December 2018, Japan’s National Security Council (NSC) marks its fifth anniversary. Prime Minister Shinzo Abe’s administration established the NSC after a decades-long reform movement aimed at strengthening the prime minister’s office and addressing perceived weaknesses of previous national security institutions. Its creation was, and remains, a big deal. Leading experts on Japan’s foreign policy have deemed it ‘the most ambitious reorganization of Japan’s foreign and security policy apparatus since the end of World War II’.

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