by John Otrompke, JD(*)
Full fathom five thy father
lies;
Of his bones are coral made;
Those are pearls that were his
eyes:
Nothing of him that doth fade
But doth suffer a sea-change
Into something rich and
strange.
- Shakespeare, “The Tempest” (1610)
Introduction
In 2019, Supreme Court of the UK
delivered two resounding rebukes to its executive when it tried to exercise its
discretion, whereas the Supreme Court of the US allowed the executive to
proceed under somewhat similar circumstances. Why? And what does it tell us
about how emergency power is used in the two countries?
This study therefore addresses the
question, “Can the simple inability of one party in the legislature to convince
the other party than an emergency exists be properly deemed an emergency in
itself by the executive?”
This presentation examines the
treatment of executive emergency powers in the UK and the US by comparing 3
different cases: Sierra Club v Trump (the proposed wall on the Southern
border)(1) and Miller I and II (the Brexit prorogation cases, which followed some 5
indeterminate votes on Brexit that were essentially coin flips). With the goal
of determining why Miller 1 and 2 didn’t turn out like Sierra Club,
I then examine 15 candidates for significant constitutional distinction between
the American and British Constitutions, and conclude that precisely none of
them account for the different outcomes (Table 1). The outcome in Miller 1
was determined by its facts. That is, had the facts of Sierra Club
arisen in the British Supreme Court, the case would likely have come out the
same way.
The reason Miller I came out
as it did, even though Parliament has generally deigned to permit the Prime
Minister to exercise discretionary prerogative powers over foreign affairs, is
that the no-deal Brexit which seemed imminent at the time would have resulted
in changes to the rights of British subjects across a wide swath of substantive
legal areas. That is a factual distinction, not a constitutional one.
This presentation then examines 9
areas of recent chaotic flux in British constitutional law (one of them being
Brexit itself), and determines that only one of them accounted for the outcome
in Miller 2, inasmuch as it diverged from Sierra Club (Table 2).
But that source of chaotic disruption in the British Constitution, the Fixed
Term Parliaments Act of 2011, purported to make the two Constitutions more
similar, not more different. It was ineffectual, and it’s gone now, having been
repealed in 2022.
I then briefly conduct a similar
inquiry regarding the obverse question: how would the US Supreme Court treat an
American Brexit?
Having learned about how
constitutional emergencies are handled in the American and British Supreme
Courts, my project is to then examine British examples from relevant time
periods and American examples during 8 recent constitutional crises (Table 3).
Sierra Club v
Trump
All three of the cases came to the
respective Supreme Courts under circumstances giving rise to allegations of
nativism, in environments in which immigration was controversial, and in both,
the executive sought to exercise its discretion using language sometimes
reserved for emergencies.
In Sierra Club, former Pres.
Trump repeatedly sought funds from the US legislature “for the construction of
a border barrier,” but did not receive enough funding, leading to a 35-day
partial government shutdown. Sierra Club at 676. He then decided to "reprogram
funds appropriated by Congress to the Department of Defense…for Army personnel
needs” to build a wall on the border with Mexico, in the southern part of the
US.
Section 8005 of the Department of
Defense Appropriations Act of 2019 authorized the Secretary of Defense to
transfer funds for military purposes if the Secretary determines that the
transfer is "for higher priority items, based on unforeseen military
requirements." Reprogramming does not require the declaration of a
national emergency. Id at 681. But
the US Constitution (art I., § 9, cl. 7) provides that "[n]o Money shall
be drawn from the Treasury, but in Consequence of Appropriations made by
Law."
The majority of the Ninth Circuit
agreed with Sierra Club that the need for funds to build a barrier on the
southern border was not “unforeseen.” Sierra Club alleged that the executive’s
“use of the reprogrammed funds would injure their members because the noise of
construction, additional personnel, visual blight, and negative ecological
effects that would accompany a border barrier and its construction would
detract from their ability to hike, fish, enjoy the desert landscapes, and
observe and study a diverse range of wildlife in areas near the U.S.-Mexico
border.” Id at 683.
But the dissent in the Ninth
Circuit (which I treat as dispositive), concluded that Sierra Club had no way
of redressing any constitutional violation: “neither an implied statutory cause
of action under § 8005, nor an equitable cause of action” directly under the
Constitution. The dissent also held that Sierra Club’s injury fell “outside of
the zone of interests” for purposes of the Administrative Procedure Act. Id at
709.
Miller 1 and
the Limits of the Prime Minister’s Power to Engage in Treaty Making
We may observe the first important
distinction upon reading the captions of the British cases: R (on the
application of Miller and another) v Secretary of State for Exiting the
European Union, et al, [2017] UKSC 5 (Miller 1); and R (on the
application of Miller) (Appellant) v The Prime Minister (and) Cherry and others
(Respondents) v Advocate, et al, [2019] UKSC 41 (Miller 2).
“Mrs. Gina Miller” is a party in
both cases; Joanna Cherry, a party only in Miller 2, is a Member of Parliament,
but Miller was not. Indeed, the two Miller opinions say almost nothing
else at all about Mrs. Gina Miller, noting only that “some of the legal rights
which the applicants enjoy under EU law will come to an end” (Miller 1,
paragraph 6). However, she is credibly described elsewhere as a
“businesswoman.”
The applicants in Miller 1 (including
Mrs. Miller) were “supported in their opposition to the appeal by a group
deriving rights of residence in the UK under EU law on the basis of their
relationship with a British national or with a non-British EU national …[and] a group deriving rights of residence from
persons permitted to reside in the UK because of EU rights, including children
and carers.” (Paragraph 8).
Immediately, then, we can see that standing
may be treated differently in the two societies. True, Miller 1 points
out that some of Mrs. Miller’s legal rights will be affected by a no-deal
Brexit. (I summarize the wide variety of substantive legal changes that were
wrought below, in the section on factual distinctions, which I find to be
determinative). However, the Sierra Club made cogent arguments about the
existence of personalized injury in the Supreme Court case, too, such as the
loss of opportunities to enjoy wildlife, and organizational standing, as the
Sierra Club has expended money in lobbying about the issue of a wall on the
southern border. Nevertheless, the Supreme Court tells us that the plaintiffs
in that case “lack a cause of action.” The dissent in the Ninth Circuit
opinion, which I presume the Supreme Court endorses, lays the cause to
legislative intent. By contrast, it seems the parties in Miller 1 have a
very direct cause of action, with little need for the delegation of
intermediate authority or permission from the legislature. (As mentioned, in Miller
2, applicant Joanna Cherry is also an MP).
Therefore, it seems safe to say that the two
societies may regard standing (oft criticized as an unfair requirement in the
US) differently, especially since legislator standing is so weak in the U.S.
anyway. (2).If it had not been for the lack of a cause of action, the US Supreme Court may
have dismissed on grounds of justiciability.
But the UK Supreme Court found the issues to be justiciable in Miller
1 (paragraph 3) and Miller 2 (paragraph 52).
However, the difference in access
to the courts did not make the difference between the Brexit cases and Trump’s
wall. Such a difference was necessary, but not sufficient. In Miller 1,
that’s because Parliament has generally allowed the Prime Minister to retain
executive prerogative regarding foreign affairs. “[M]inisters generally enjoy a
power freely to enter into and to terminate treaties without recourse to
Parliament…[However,] ministers are not normally entitled to exercise any power
they might otherwise have if it results in a change in UK domestic law, unless
statute, ie an Act of Parliament, so provides.” (Paragraph 5).
Changes in domestic British law
described by the Supreme Court included employment protection such as the
Working Time Directive, and the benefit of the ‘four freedoms’ (free movement
of people, goods and capital, and freedom to provide services)(paragraph 70);
the recognition and enforcement of judgments in matrimonial matters and the
matters of parental responsibility (paragraph 71); the right to stand for
selection or later election to the European Parliament, and the right to vote
in European elections (paragraph 72); and the right of men who have had sex
with men to give blood (paragraph 131).
Miller 2 and
the Limits of the Prime Minister’s Power to Manage Parliament
Actually, Miller I and II
concerned two different forms of executive discretion in the British
Constitution: the power of the Prime Minister to engage in treaty-making sans
an act of Parliament (Miller I), and the power of the Prime Minister to
temporarily prorogue Parliament (which means to prevent Parliament from meeting
for a period of time) (Miller II). In Miller 2, the UK Supreme
Court recognized prorogation as a “prerogative power exercised by the Crown,”
noting that the last monarch to personally announce prorogation in Parliament
was Queen Victoria in 1854. (Paragraph 3).
It is hardly a constitutional
crisis that the Supreme Court ruled the prorogation invalid. After all, an
11-year prorogation was at the root of the English Civil War (which was shortly
followed by another prorogation by Oliver Cromwell). However, the Supreme Court
noted that the average length of a modern day prorogation was under 10 days
(paragraph 18), and concluded that the Prime Minister’s decision to prorogue
for three of five weeks before Brexit was to take place “had the effect of
frustrating or preventing the constitutional role of Parliament in holding the
Government to account.” (Paragraph 55).
The US Constitution, Article II,
Section 3 allows for prorogation; but it has never been used. (3) Therefore, while the power of the Prime Minister to prorogue Parliament is an
important distinction between the American and British Constitutions, this
distinction did not make the difference in outcomes in the cases, because the
Supreme Court did not permit the prorogation to go forward.
However, the outcome in Miller 2
brings us to the discussion of an area of recent chaotic British constitutional
change which made all the difference in the Brexit cases: the customary
constitutional power of the Prime Minister to require a new election general
election, by declaring a vote on a matter the Minister considers important
(such as a no-deal Brexit) a “matter of confidence.”
Historically, and today, this
customary power marks a very significant distinction from the US Constitution,
but in 2019, the Fixed Term Parliaments Act of 2011 (FTPA) made the two
constitutions more similar; Parliament even experimented with requiring a 2/3
supermajority. It was ironically that similarity that made the difference in
the outcome of Miller 2 and Sierra Club.
Historically, and today, the Prime
Minister had another prerogative power: to order the dissolution of Parliament,
followed by a general election. (Miller 2, paragraph 4).
In Commonwealth constitutions, the
executive has kind of a duty to manage Parliament (although that duty is placed
in Canada on another official, the Governor General):
“The governor general has a
responsibility to ensure that Parliament is allowed to function. This is why
she has a right to summon Parliament if a prime minister takes too long to do
so, particularly following an election. If a Parliament ceases to function, the
governor general has the prerogative power to dissolve it and order fresh
elections in the hopes that the new Parliament will be able to function.”
Andrew Heard, The Governor General’s Suspension of
Parliament, in “Parliamentary Democracy in Crisis,” (Russell and Sossin,
eds), p. 58, University of Toronto Press, 2009.
But the Prime Minister’s
prerogative powers are, like everything else in the British Constitution,
subject to Parliamentary sovereignty. At the time of the Brexit cases, the FTPA
provided for general elections every five years unless either the House of
Commons voted by a 2/3 majority for earlier elections; or the House of Commons
voted “no confidence” in the Prime Minister. (Paragraph 5).
Historically, and today, the Prime
Minister would have been able to make a vote on a no-deal Brexit a “matter of confidence,”
and if the Minister did not get what they wanted, to make everybody in the
House of Commons (including the Minister themself) immediately subject to new
elections. (4).
That may have brought us a “Miller
3,” but in the absence of prior action by Parliament, I believe the UK Supreme Court would have
permitted the dissolution, and the American and British cases would have come
out the same. (In fact, as I explain below, the FTPA did not prevent early
elections right before Brexit).
Note that the UK Supreme Court
could have, but didn’t, allow greater flexibility in the executive’s
prorogation powers in light of Parliament’s elimination of the ‘vote of
confidence’ convention.
It would be nice to say that fixed
term parliaments are just another natural step in the progressive evolution of
Parliamentary sovereignty, but it’s gone now.
Cross-Atlantic
Distinctions in a Sea of Chaos
The UK has been positively awash in
recent years in the ebb and flow of what could only be described as chaotic
constitutional change, following admission to the EU in 1973. (See Table 2, describing
9 areas of chaotic flux in British constitutional law).
This maelstrom of back-and-forth disruption has been prompted, according to
some, by nativist backlash against the UK’s submission to the jurisdiction of several
international courts, the EU’s European Court of Justice and the European Court
of Human Rights (which exists by reason of another, non-EU instrument, the European
Convention on Human Rights), not to mention the UN’s International Court of
Justice. (5). Facets of the storm have included nominal devolution of power to the
constituent countries of the UK other than England (Ireland, Scotland and Wales) (6); the transformation of the Appellate Committee of the House of Lords into the UK
Supreme Court in 2009 (7); the enactment of the Fixed Term Parliaments Act in 2011;
Brexit; and the repeal of the FTPA in 2022.
Throughout all of that, what has
not changed at all, even with admission into the EU more than half a century
ago, is what has been absolutely bedrock fundamental about the British
Constitution since the “Glorious Revolution” of 1688: Parliamentary sovereignty. (8)
Put
simply, Parliament is all-powerful in the British Constitution, and requires no
supermajority to do virtually whatever the legislature wants. In point of fact,
usually it is the House of Commons which is Supreme. “[T]he Parliament Act was
passed in August 1911, removing the power of the House of Lords to reject money
bills and replacing its veto over other bills with merely a power of delay.” (9).
One may
verify that this power of a simple legislative majority makes the British
Constitution far more flexible than its American counterpart by examining the
status of the right to bear arms found in the English Bill of Rights, which
followed the English Civil War and was passed in 1689 during the Glorious
Revolution.
While
the right is rightly viewed as “fundamental” by many American legal scholars
today, in part because of its inclusion in the English Bill of Rights, it has
been seriously controlled in the UK since 1910, and thereafter. This illustrates the “wrecking ball” effect
of the power of a simple majority vote in the UK, wreaking havoc on the British
Constitution.
Speaking
of Parliamentary sovereignty, one might wonder, is it Parliament that is
supreme, or the people, or perhaps the electorate? It is Parliament. With the Septennial Act of
1715, the House of Commons extended its own life from three to seven years. (10)
Because
of Parliamentary sovereignty, judicial review in the UK is limited. Courts can
require a degree of clarity in laws passed by Parliament. Since the time of
Edward Coke, a British judge who wrote even before the present British
constitutional settlement, British jurists and legal scholars have expressed
qualms about Parliamentary sovereignty whenever it violated a principle called
“the rule of law” (a set of not always well-defined norms associated with a
limited executive). (11) Since the time of Dr. Bonham’s Case, 8 Co. Rep. 107, 77 Eng. Rep. 638
(Winter 1610), decided by Coke as Chief Justice in the Court of Common Pleas,
British courts have used a concept they call the ultra vires doctrine to
strike down state action they think improper. (12)
For example, British courts could
say of executive action that had been delegated by Parliament, that it was
illegal, because Parliament did not really tell the Crown to do that. Or the
courts could say to Parliament, “You didn’t really mean to do that, did you? We
assume you didn’t really mean to do that, because it would violate the ‘rule of
law’ principle, or some other Parliamentary law.” But if the legislature passes
a law and says, “No, we really, really mean it,” the British courts are
supposed to recognize the authority of Parliament. (13).
Vetoes
Not only is judicial review of
Parliamentary action limited, but the UK sort of lacks an executive veto power.
While law in the UK is nominally made “by the Crown in Parliament,” no monarch
or Prime Minister has exercised the veto power since Queen Anne’s refusal of
royal assent to the Scottish Militia Bill in 1707. (14) During the Brexit controversy, Prime Minister Johnson spoke of potentially
withholding the Royal Assent to legislation preventing a no-deal Brexit. That
might have been a constitutional crisis, but he didn’t actually do it. (15)
Hence, there is no veto in the
British Constitution. While classical British scholars say that “the Crown in
Parliament” (that is, two houses, the House of Lords and the House of Commons) constitutes
the tripartite separation of powers that gives balance to the British
Constitution, it is rumored that the British monarch has less influence than
one might expect with the Prime Minister, who after all is chosen by a vote of
MPs in the House of Commons.
I mentioned above the reduction in
influence of the House of Lords. Accordingly, it is really just one body in the
UK that makes primary law: the House of Commons. (16)
The Prime Minister will reliably
not veto an act of Parliament. However, another customary constitutional
practice, the rule of Crown initiative, means that only the Minister, not
actually the House of Commons, can propose new forms of public spending or
revenue raising. (17)
Musing on Parliamentary
sovereignty, one might be excused for wondering, if God is all-powerful, can he
create a stone so heavy that even he cannot lift it? The answer is no. Parliament is always free to change its mind
later. The Fixed Term Parliaments Act changed the law so that a 2/3
supermajority was required to call for elections earlier. But how many votes did
it take to pass the Early Parliamentary General Election Act 2019, and simply
bypass the FTPA, just this once, after the Prime Minister tried but failed to
get the 2/3 majority? When one considers that it later took only a simple
majority to repeal the FTPA in 2022, it seems that one is transacting in cave
phantoms when one tries to change the bedrock principle of the British
Constitution.
Membership in the EU kind of was a
profound constitutional change, since “[t]he 1972 Act… authorises a dynamic
process by which, without further primary legislation (and, in some cases, even
without any domestic legislation), EU law not only becomes a source of UK law,
but actually takes precedence over all domestic sources of UK law” (Miller 1,
paragraph 60); but this did not alter the fundamental principle of UK law,
because Parliament was always free to take the chains off, by passing a law
leaving the EU.
Comparative
Crises
So what have we learned about
emergency power? “Can the simple inability of one party in the legislature to
convince the other party than an emergency exists be properly deemed an
emergency in itself by the executive?” The answer to this question in the UK is
yes, except not while the FTPA was in effect. In the US, sometimes yes,
especially in areas of foreign relations, especially because the legislature
was able to decide after Watergate that the foreign policy “emergency” did not
justify the executive’s emergency powers.
What kind of emergency powers model
does the US have? Many constitutional theorists describe three models, dating
from the work of Carl Schmitt (author of “Political Theology: Four Chapters on
the Theory of Sovereignty,” trans. George Schwab [Chicago: University of
Chicago Press, 2005]): the extralegal Lockean model, the Machiavellian
neo-Roman model of temporary dictatorship, and the legal model. (18)
The US has a variant on the
Machiavellian neo-Roman model, in which the Supreme Court and/or Congress reins
in the exceptional powers of the executive when they feel it is the right time
to do so (even though the judiciary / legislature will not enforce laws
restraining the executive during an emergency, which may seem to be a lot of
the time).
What about the UK? The UK doesn’t
really have emergencies, at least not constitutional emergencies, because it is
so easy to change the law, and it seems utterly impossible to change what is
bedrock fundamental. But one could look at the period of Northern Ireland
exceptionality (in Marshall v UK, a 9- year derogation in Northern
Ireland was approved by the European Court of Human Rights) (19); the Belmarsh case (20); the creation of the human rights committee described in Loevy (21), or the recent experience with quarantine and COVID, to see that British
practice is sui generis, and allows the UK the flexibility to adopt any of the
three models it feels appropriate, depending on the circumstances. (History
will tell us whether devolution did not mark the advent of a new constitutional
settlement in the UK).
But of all the areas of chaotic
disruption in the UK Constitution that played a role in the Brexit cases, the
one that came closest to a constitutional crisis was the Fixed Term Parliaments
Act, and that’s gone now.
Regarding the relative prevalence
of constitutional emergencies in the UK in recent years, the topsy-turvy
quality of recent Constitutional change in the UK is precisely a product of
Parliamentary sovereignty, just as the relative inertia of the US Constitution
through 8 recent constitutional crises in the US is a product of the
super-majoritarian requirement (see Table 3).
The relativity can’t be ignored: from
an American perspective, the British are subjecting themselves to a soaking
daydream of constitutional ephemerality, drifting back and forth seemingly
without a fixed end in mind, while the Americans are positively helpless to
change the course dictated by the supermajority requirement, emergencies- mass
shootings, for example- notwithstanding.
American Brexit
I have now examined 15 candidates
for significant distinction between the American and British Constitutions, and
have concluded that none of them drove the different outcomes in cases,
although the difference in facts did: Brexit would have affected British law
and the rights of individuals, and therefore required action by Parliament.
That is, had the facts in Sierra Club arisen in the UK Supreme Court, I
think the case would have come out just as it did in the US.
But what about the obverse, that
is, an American Brexit? At first, it is difficult to imagine a situation in
which the U.S. would voluntarily transfer as much sovereignty to an international
union as the UK transferred to the EU and its Court of Justice. (The U.S. is
not even a party to the International Criminal Court). But on second thought,
is it really? Many of the grievances that arose in the UK about the transfer of
sovereignty echo complaints that arose some 25 years ago about accession to the
World Trade Organization, which have long since been utterly muffled by more
than 20 years of constitutional crisis following the atrocities of Sept. 11,
several shocking and constitutionally controversial elections, COVID, and an
epidemic of mass shootings.
Still, if the facts of Brexit came up in the US Supreme Court, I think it would have come out differently from the decisions in the UK. The US Constitution (Article II, Section 2, Clause 2) empowers the President as the primary negotiator of treaties (although it takes a two-thirds supermajority of the Senate to render a treaty binding with the force of federal law). I think the US Supreme court would let the executive go ahead and withdraw from such treaty. (Therefore, my goal is to examine domestic and international cases concerning the WTO and the US, as well as the UK, to explore my hypothesis). In that sense, from the perspective of an American Brexit, maybe legislative sovereignty does make all the difference after all.
Conclusion
Note that the political outcome of
the controversies associated with the cases discussed above was reversed: in Miller
1 and 2, where the executive was not permitted to decide what the emergency
was in the context of legislative uncertainty, Brexit happened; in Sierra
Club, where the executive was given that discretion, the wall on the
southern border was never finished. Ultimately, perhaps the will of the
electorate was different in the two countries.
And at the end of the day, what
difference did Brexit make? With the recent UK Bill of Rights having failed, the
UK is still part of the European Court of Human Rights (the Strasbourg court),
and the process of devolution is still very much alive, its future portent as
yet undetermined. Britain still has a relatively unsettled Constitution.
Having identified the two important
differences between the cases and Constitutions in Miller and Sierra
Club, one factual (the broad impact on British subjects’ rights of a
no-deal Brexit) and one legal (the vote of confidence convention, as cancelled
by the FTPA), we may now turn to our central inquiry: what are the similarities
and differences in the ways the two societies’ legal cultures address executive
emergency powers in an emergency?
The rest of this treatise will compare
the exercise of emergency power in distinct milieux to observe the advantages
and pitfalls of both systems: in the UK before the EU; after the EU but before
the FTPA; during the EU and the FTPA; and after both. On the American side, we
will examine a variety of circumstances before Watergate; between Watergate and
9/11; and post-9/11.
I will also look at several instances where emergency powers were spoken of in the UK, (1) the period of Northern Ireland exceptionality; (2) the Belmarsh case; (3) the creation of the human rights committee described in Loevy; (4) Brexit; (5) and the recent experience with quarantine and COVID; and in the US, (6) Vietnam and Watergate; (7) accession to the WTO; (8) several shocking elections (Bush v Gore, Trump v Clinton, and Trump v Biden); (9) 9/11; (10) COVID; and (11) the gun violence epidemic.
Table 1
15 Candidates for Distinctions Between the British and US Constitutions
1.
Standing (civilian and legislative).
2.
Prorogation (treated differently in US
Constitution).
3.
The UK had surrendered some of her jurisdiction
over her members to several international courts, located outside the UK. Then
again, it has been argued that the US surrendered some of their jurisdiction by
subscribing to the World Trade Organization.
4.
Devolution. Federalism is actually a similarity
between the two countries. The Supreme Court of the UK concluded that it does
not matter whether devolution is a valid argument against the government
action.
5.
The new British Supreme Court’s increased
mandatory jurisdiction, compared with the US.
6.
All of
the members on the UK Supreme Court are Lords.
7.
Parliamentary sovereignty (kind of is not a
distinction that makes a difference, without looking at the divergent facts in
the two situations).
8.
The House of Lords cannot prevent a law from
being made, but may fatally delay it; this is kind of made up for the fact that
the Lords make up the membership of the Supreme Court.
9.
The difference in the individualized rights view
of the right to bear arms in the Constitution of both countries is not
determinative of the different outcomes.
10.
Power of Parliament to extend its own term with
a simple majority vote.
11.
Judicial review is more limited, and the term ultra
vires has a different connotation.
12.
The UK lacks an effective executive veto power.
13.
Rule of crown initiative versus US cases on
impoundment.
14.
The customary practice of votes of confidence
and the power to dissolve the legislature and compel new elections.
15. The facts of the situations (that Brexit involved potentially much broader changes to the rights of British people than the wall on the southern border) are significant, and do determine the divergent outcomes in the cases, in the sense that Sierra Club, with its divergent facts, would have come out much the same in the British Supreme Court.
Table 2
9 Areas of Chaotic Flux in British Constitutional Law
1.
International court jurisdiction.
2.
Joining the European Union
3.
Devolution.
4.
The existence of the new British Supreme Court,
its title, seal and building
5.
The Supreme Court’s new mandatory jurisdiction
6.
The changing nature of the House of Lords and
the membership of the Supreme Court
7.
The Fixed Term Parliaments Act.
8.
Repeal of the FTPA.
9. Brexit.
Table 3
8 Recent American Constitutional Crises
2. 2. Accession to the World Trade Organization
3. 3. Bush v Gore
4. 4. 9/11 and the USA PATRIOT Act
5. 5. Trump v Clinton
6. 6. COVID
7. 7. Trump v Biden
8. 8. The gun violence epidemic
* John J. Otrompke, JD is a bar applicant in New York and a member of the Society of American Law Teachers. He may be reached at John_Otrrompke@yahoo.com.
1. The U.S. Supreme Court issued a very brief opinion in the case and granted the executive’s request for a stay on the Ninth Circuit’s judgement. Trump v Sierra Club, 140 S. Ct. 1 (2019). The case became moot when President Biden was elected. Because the Supreme Court justified its decision by the argument that “the plaintiffs have no cause of action,” this essay will treat the dissenting opinion in the Ninth Circuit as controlling for the purposes of this experiment in contrast. Sierra Club v Trump, 929 F.3d 670 (2019) at 708.
2. See Kucinich v Obama, 821 F. Supp. 2d 110 (2011); Kucinich v Bush, 236 F. Supp. 2d 1, 23-24 (DDC 2002), citing Chenoweth v Clinton, 181 F.3d 112 (DDC 1999); Johnson v. Eisentrager, 339 U.S. 763 (1950).
3. See also the discussion in Federalist No. 69 by Alexander Hamilton.
4. Under the FTPA, the House of commons could vote no confidence in the Minister, but that vote could not be tied to any other vote. That is, the Minister “could no longer designate any other vote (say on its budget, or a particular legislative proposal) as a ‘matter of confidence’ and threaten a dissolution if it lost the vote.” -Private correspondence with Paul Evans, retired Clerk of the Commons (on file with the author).
5. While I treat submission to foreign courts as a source of constitutional disruption, I treat it as not a difference between the two Constitutions, since similar arguments have been made in the US about submission to the jurisdiction of the World Trade Organization.
6. In 1998 in Northern Ireland and Scotland, but in 2006 in Wales. Note that the devolution settlements required of “the devolved governments and legislatures that they must not act in breach of EU law.” Miller 1, paragraph 128. The UK Supreme Court held in Miller 1 that “the devolved legislatures do not have a parallel legislative competence in relation to withdrawal” that was infringed by the Prime Minister’s decision to leave the EU without an Act of Parliament. (Paragraph 130). Hence, I treat devolution as not determinative of the difference in outcomes. Because devolution might loosely be compared with federalism in the US, I treat it as not an important distinction between the two Constitutions.
7. “Building the UK's New Supreme Court: National and Comparative Perspectives,” Andrew Le Sueur (ed.), (Oxford, 2004). The new Supreme Court has a new building and seal in addition to its new name. It is said to sometimes complain about a considerable increase in mandatory jurisdiction. “Human Rights and the United Kingdom Supreme Court,” Brice Dickson (Oxford University 2013), p. 4, note 20; p. 5. That is an important distinction from the US Supreme Court, but not determinative of the difference in outcomes. Another potential distinction: it could be said that membership on the Supreme Court- still all Lords- is tainted by the historically-suspect classification associated with the aristocracy. But that has been changing, after “reforms after 1997 removed all but ninety hereditary peerages, with new hereditary peers elected to the House by their fellow hereditaries.” “The Impossible Office? The History of the British Prime Minister,” Anthony Seldon (Cambridge University Press 2021), p. 186. Both the increase in mandatory jurisdiction in the new UK Supreme Court and the nature of the House of Lords could be significant distinctions from the US Constitution, and both mark chaotic disruption in the British Constitution. I treat the differences in the make-up of the two Supreme Courts as significant but not determinative, because I credit with good faith the transparent reasoning of the British Supreme Court in the Miller cases.
8. An important distinction between the two Constitutions, and one which has not been in flux. Nevertheless, Parliamentary sovereignty kind of doesn’t make the difference in the divergent outcomes in the three cases, unless the disparate facts are considered.
9. “The Impossible Office?”, p. 185.
10. From unwritten to written : transformation in the British Common-Law Constitution, David Jenkins, Vanderbilt Journal of Transnational Law, Vol. 36, No. 3, 2003, pp. 859-870. This power to extend its own term is a distinction from American law, but like the status of gun rights discussed above is only another aspect of Parliamentary sovereignty.
11. “Permanent State of Emergency,” Ryan Alford (McGill-Queen’s University Press, 2018), p. 12
12. The ultra vires notion may play a somewhat different role in American law, but if it is a distinction, it did not cause the disparate outcome in the cases.
13. From unwritten to written, p. 866.
14. Braking the Law: Is There, and Should There Be, an Executive Veto Over Legislation in the UK Constitution, Paul Evans (The Constitution Unit, University College London, October 2020), p. 8.
15. The lack of a veto power is certainly a big distinction between the two Constitutions, but it didn’t make the difference in the outcome of the cases, because Parliament usually permits the Prime Minister the power to conduct foreign affairs anyway.
16. For purposes of this article, I consider the comparative weakness of the British upper house to be not a distinction, because the British Constitution allocates the membership of the Supreme Court to the House of Lords, giving that chamber relatively more power in relation to the Prime Minister and the House of Commons.
17. Braking the Law, p. 19. The rule of Crown initiative could be compared and contrasted with US cases on impoundment. Train v City of New York, 420 US 35 (1975). See also the Impoundment Control Act and the Congressional Budget Act of 1974. The impoundment cases may indeed have played a role in Sierra Club had the Supreme Court more thoroughly developed its thinking in the area; but I treat the rule of Crown initiative and impoundment law as not determining the divergent outcomes in the cases under discussion.
18. “Emergencies in Public Law,” Karin Loevy (Cambridge University Press 2016), p. 24 et seq. See also The Emergency Constitution, Bruce Ackerman (Yale Faculty Scholarship Series 121 (2004); Providing for the Unexpected: Constitutional Emergency Provisions, Oren Gross (Israel Yearbook on Human Rights 2004); Constitutional Exceptionalism and the Common Law, Thomas Poole Law (Society and Economy Working Papers 14, London School of Economics and Political Science, 2008).
19. “Emergencies
in Public Law,” p. 104
20. Id
pp. 98-99.
21. Id p. 122 et seq.
