D07(a) - Judicial Rights, Legislative Reversals and the Limits on Executive Authority
Date: Jun 2 | Time: 03:15pm to 04:45pm | Location:
Chair/Président/Présidente : Stéphanie Chouinard (Collège militaire royal du Canada / Queen's University)
Discussant/Commentateur/Commentatrice : Stéphanie Chouinard (Collège militaire royal du Canada / Queen's University)
Presidential Constraints on Supreme Court Decision Making: Paul Gardner (Queen's University), Sharece Thrower (Vanderbilt University)
Abstract: Contrary to prominent arguments that the United States Supreme Court is unconstrained in its constitutional decision-making when reviewing statutes, scholars have more recently argued that Congress can limit the Court’s use of judicial review with tools that threaten its institutional power and legitimacy, or “court-curbing.” Few studies, however, have empirically examined the role that presidents play in constraining judicial decision-making. This oversight is surprising, given the increasingly important role of the president in implementing and enforcing the law. Using an expanded dataset of all legislation passed between 1948 and 2015, we examine the ways in which the president can influence whether and when the Supreme Court decides to review, uphold, or overturn a law. We find that the ideology of the president has a significant effect on these decisions. Particularly, we demonstrate that the Court only finds congressional threats influential when Congress and the president are aligned, which is when legislative action is most likely. Furthermore, we find evidence that presidents can increase the likelihood of judicial review and invalidation through their use of signing statements, which provide a signal to the Court about a law’s constitutionality. Overall, this study demonstrates the ability of U.S. presidents to exert power and influence in the judicial arena, whereas most existing studies largely focus on congressional constraints.
Challenging Legislative Reversals of Charter Decisions: Andrew Nguyen (Queen's University)
Abstract: How does Parliament respond when the Supreme Court invalidates or modifies laws that implicate Charter rights? Research suggests that Parliament generally comply with the directives of the courts when amending unconstitutional legislation (Macfarlane 2012). In some instances, however, Parliament’s responses diverge and conflict with landmark rulings – even though the notwithstanding clause has not been used in these cases. As such, many of these legislative responses become subject to further Charter challenges. In these “second-look” cases, the courts review the constitutionality of Parliament’s efforts to bring impugned laws into Charter compliance. However, second-look cases vary in terms of whether the courts accept Parliament’s legislative reversals of prior Charter rulings (Kelly and Hennigar 2012). The variation in the way the courts and Parliament grapple with second-look cases suggests that even after a landmark Charter ruling and legislative response, rights-based disputes can remain unresolved. Established perspectives in Canadian judicial politics understand this back-and-forth between Parliament and the judiciary as an inter-branch “Charter dialogue” permitted by the weak-form architecture of Canadian constitutional politics. Yet, there is limited knowledge about the conditions under which second-look cases occur. This paper addresses this gap by examining second-look cases as recently as 2017 in order to explain the conditions under which Parliament successfully and unsuccessfully reverse judicial Charter decisions.
Judicial Rights and Public Sector Wrongs: Navigating the Relationship between the Courts and the Executive: Kathy Brock (Queen's University)
Abstract: The role of the Supreme Court of Canadian (SCC) in the public policy process has been subjected to much study in recent years, particularly regarding the discourse between the legislative and judicial branches (Kelly, Manfredi, Knopff, MacFarlane, Hiebert). Less attention has been paid to the impact of SCC decisions on the executive branch and its operation (Baier, Brock). This paper examines potential ramifications of the SCC decision in the City of Vancouver v. Ward (2010) on the powers of the executive branch of government, and especially on the ability of the public sector to execute its duties in good faith. In this case, the SCC read Section 24.1 of the Canadian Charter of Rights and Freedoms as providing the Courts with broad discretion to determine “appropriate and just” remedies for breaches of rights and freedoms. While the judges agreed that the province and city did not act in bad faith and were not liable in tort for the Charter breaches, the SCC upheld the trial judge’s decision that constitutional damages were in order and established a process for assessing the appropriateness of damages. Is the process fair to the aggrieved individual and the state? Does it protect the public interest as intended or has the decision had the effect of hampering the ability of the executive branch to fulfill its functions when acting in good faith? This analysis provides insight into the SCC limitations as a policy actor and some unintended consequences of its decisions for policy decisionmakers and actors.
Participants: Kathy Brock (Queen's University)Paul Gardner (Queen's University)Andrew Nguyen (Queen's University)