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

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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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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Asia Policy: “Policy by Other Means: Collective Self-Defense and the Politics of Japan’s Constitutional Reinterpretation”

EXECUTIVE SUMMARY
This article analyzes Japan’s landmark cabinet decision reinterpreting the constitution to allow the limited exercise of collective self-defense (CSD) in both a historical and a contemporary context and assesses its implications for the conditions under which Japan may use military force.
Main Argument
In July 2014, a historic cabinet decision reinterpreted Article 9 of Japan’s 1947 constitution to allow the use of force to aid an ally under attack, overturning 60 years of authoritative constitutional interpretations categorically prohibiting Japan’s exercise of CSD. The decision was followed by a revision of the U.S.-Japan Defense Guidelines and landmark legislation intended to transform Japan’s security policy. Yet the change is evolutionary rather than revolutionary. Japan’s self-imposed precondition for the use of force by the Japan Self-Defense Forces (JSDF) remains uniquely strict: an armed attack posing an existential threat to Japan’s security. Nor is this the first case of a major reinterpretation of Article 9. Though its original wording remains untouched, the article’s effective policy significance has changed repeatedly over 70 years in accordance with shifting domestic political winds and perceived strategic exigencies. Specific to post-2014 developments, understanding what changed and why—especially how Prime Minister Shinzo Abe and his allies’ push for full exercise of CSD failed—elucidates the strategic, political, and normative factors shaping changes to Japan’s security policy and the U.S.-Japan alliance.
Policy Implications
While Japan may now legally exercise “limited” collective self-defense, unique, self-imposed conditions appear so strict that the use of force in support of allies or partners outside a defense-of-Japan scenario seems unlikely.
Security legislation in effect since 2016 opens up space for more expansive JSDF logistical support for U.S. military operations, bilateral planning, and exercises, as well as new authorities that somewhat resemble collective security or CSD operations in peacetime, including use of small arms during UN peacekeeping operations and protection of foreign militaries engaged in activities contributing to Japan’s defense.
Without formal constitutional revision (at a minimum), however, more ambitious efforts to fundamentally transform Article 9’s interpretation or the scope of scenarios in which Japan can use force overseas are unlikely without major domestic political realignments.

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Council on Foreign Relations: Japan & Article 9: “70 Years of Politically Shifting Goal Posts”

In recent years a widespread narrative presents post-2012 changes to Japan’s security policy and Article Nine’s interpretation as fundamentally unprecedented and “All About Abe.” The reality, however, is that Japan’s security policy has been undergoing evolutionary, incremental reforms for decades—under both conservative and moderate Liberal Democratic Party (LDP) and opposition leaders. Practically significant, de facto change—albeit within remarkably “sticky” normative bounds so far—has occurred repeatedly in response to changing external threat perceptions and shifting domestic political winds.

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The Washington Quarterly: “Japan’s Defense Policy: Abe the Evolutionary”

Far from constituting an abrupt transformation of Japan’s defense policy, recent measures adopted during the Abe era to large extent continue long-term trends initiated by previous governments from both his Liberal Democratic Party (LDP) and the leading opposition Democratic Party of Japan (DPJ). They reflect a significant, but evolutionary, rationalization of defense policy driven by growing concerns about regional security because of perceived threats from North Korea’s increasingly advanced nuclear and missile programs, a shifting regional military balance, and China’s maritime advancement and efforts to assert its sovereignty claims in the South and East China Seas. Other important factors include lessons learned from two decades of the Japan’s Self-Defense Forces’ (JSDF) gradually expanding regional and global missions and a desire to maximize efficiencies in response to the changing nature and rising costs of military technology, fiscal constraints, a shrinking and aging population, and the Japanese public’s persistent, deep-seated skepticism about military power. In response to these challenges, Abe and his predecessors have pursued incremental changes to bolster deterrence, to deepen cooperation and interoperability with the United States as well as other partners, and to facilitate a more rapid, flexible, and effective response to a range of perceived traditional and non-traditional security threats.
Furthermore, a flawed yet widespread focus exclusively on changes to Japan’s security policy overlooks the persistence of strict, long-standing, and self-imposed constraints within which political leaders pursue these reforms. Rumors of their demise to the contrary, recent developments have stretched, but not removed, core principles that for decades have defined Japan’s self-restraint. As cases-in-point, political leaders still prohibit the JSDF from using military force outside a singular, narrow interpretation of self-defense, or developing—much less employing—offensive power projection or nuclear weapons. Though practically significant and historic in a Japanese context, recent reforms—up to and including collective self-defense—are, at most, reactive realism within strict normative bounds. Seventy years after Japan’s surrender, the public remains deeply skeptical about the employment of military power as a tool of foreign policy.
Recent developments have stretched, but not removed, Japan’s core principles of self-restraint.

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