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)

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

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 2020: COVID-19 and the End of the Abe Era”

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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