Tag Archives: Domestic Politics

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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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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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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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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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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Japanese Studies: “Japan’s National Security Council: Policy Coordination & Political Power”

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Abstract: In 2013, Japan’s first-ever National Security Council (NSC) was established as the leading edge of ambitious reforms to Japan’s foreign policy-relevant institutions. Within weeks, Japan’s new national security tripod was firmly in place: the top-level, political NSC ‘control tower’, Japan’s first-ever National Security Strategy, and its first-ever National Security Secretariat. In the years since, the NSC has played a central role in every major aspect of the Japanese strategic trajectory that has attracted so much global attention (and controversy) in ‘the Abe era’. This study analyzes the motivations driving Japan’s decision to establish an NSC, the institution’s key characteristics, and offers a preliminary assessment of the current and likely future implications of this historic institutional reform. Beyond NSC’s impact on policy, of potentially greater long-term significance is its effects on Japan’s foreign policy decision-making processes: in particular, expanded Kantei-centered political leadership of national security affairs and more ‘whole-of-government’ approaches specifically designed to transcend the ‘vertical hurdles’ traditionally dividing Japan’s powerful bureaucracies. The goal of these reforms is as straightforward as it is ambitious: to transform Japan’s ability to flexibly and independently cope with a rapidly changing, increasingly complex, and ever more uncertain security environment in East Asia and beyond.

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

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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”

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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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