The Rule of the Courts

M. Akram Faizer

predominates. 238 Indeed, the new version of the law lacks an override provision altogether. 239 These factors counsel in favor of introducing the NWC to the U.S., especially since the U.S. constitution has an extremely onerous amendment framework. 240 Because there is nothing explicitly granting judicial review power to the federal courts in Article III, this could be achieved by Congressional statute under Article III’s Exceptions and Regulations provision. 241 Indeed, the Presidential Commission on the Supreme Court of the United States found that “Congress could enact a statute that affirms congressional authority to reenact a statute after a negative court ruling” including procedures for such reenactment. 242 This is HLR’s recommendation for the U.S., where checks and balances between the American legislature and executive are 238 The Constrained Override, supra note 189 at 1738 citing Kahana, supra note 198 at 42 239 Id. 240 U.S. Const. art. V. (providing that “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”). 241 The Constrained Override, supra note 189 at 1744 citing U.S. CONST. art. III, § 2, cl. 2 (“[T]he supreme Court shall have appellate Jurisdiction... with such Exceptions, and under such Regulations as the Congress shall make.”). 242 The Constrained Override, supra note 189 at 1745-46 citing PRESIDENTIAL COMM’N ON THE SUP. CT. OF THE U.S., FINAL REPORT 190 (2021) [hereinafter PRESIDENTIAL COMM’N REPORT], https://www.whitehouse.gov/wp-content/uploads/2021/12/ SCOTUS-Report-Final-12.8.21-1.pdf [https://perma.cc/6HXT-S3YK] (“In both Canada and Israel... the federal legislatures have used the [override] power rarely. One might predict a similar outcome in the United States...” (footnote omitted)). In other words, the negative and positive defenses of the override clause are in tension with each other. The only resolution to that tension is to maintain enough cost on override use (to reduce the risk of abuse) without that cost being so great (that the clause is not used at all). It seems only federal exclusivity might achieve that.

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