The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

much stronger and where the President can veto legislation and has broad discretion to refuse to execute unconstitutional statutory provisions. 243 These checks and balances have become even stronger due to severe political polarization such that Congress is rendered completely immobile unless one party maintains control of both houses and the presidency. 244 According to the HLR, reducing the power of judicial review by implementing a legislative override akin to Canada’s might provide breathing room for effective government. 245 Its recommendation is that the override be adopted in the U.S. subject to seven conditions being satisfied. 246 First, it must be time-bound like the NWC’s five-year sunset. 247 Second, unlike Canada’s NWC, it should apply retrospectively to only shield laws that laws that are clearly unconstitutional under existing judicial precedents. 248 Third, it must be discrete, such that the legislature must make a good-faith effort to explain, in plain English, which constitutional rights and statutory provision(s) are at issue. 249 Fourth, a justification for the override must be given by Congress. 250 Fifth, that the override power be granted to the U.S. Congress alone and not by the states. 251 Federal exclusivity is justified by HLR on the grounds that federal judicial review over state constitutional violations are typically effectuated by federal statutes that Congress can always amend, whereas judicial review over federal law leaves no such option. 252 Sixth, the HLR recommends that should Congress employ an override, that a unanimous or supermajority of the Supreme Court be able to double-override Congress. 253 243 The Constrained Override, supra note 189 at 1743. 244 Id. 245 Id. citing CONSTITUTIONALISM AND A RIGHT TO EFFECTIVE GOVERNMENT? (Vicki C. Jackson & Yasmin Dawood eds., 2022).

246 The Constrained Override, supra note 189 at 1744-5 247 The Constrained Override, supra note 189 at 1744. 248 The Constrained Override, supra note 189 at 1744. 249 The Constrained Override, supra note 189 at 1744. 250 The Constrained Override, supra note 189 at 1744-5. 251 The Constrained Override, supra note 189 at 1739. 252 Id. 253 The Constrained Override, supra note 189 at 1745.

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