In a 2014 article published in the Adelaide Law Review, Professor Harold Bruff explained the U.S. executive power to an Australian audience. Bruff described the constitutions of Australia and the United States as “cousins”; they share some traits—such as federalism—but in other areas there is less of a resemblance. The Australian system of government blends features of the federal system of the United States with the parliamentary system of the United Kingdom. In 1980, Elaine Thompson famously described it as a “Washminster” system of government. The framers of the Australian Constitution were familiar with the U.S. Constitution, both through their readings—particularly Lord Bryce’s well-timed treatise, The American Commonwealth, published the decade preceding the major Australian constitutional drafting conventions—and through their personal experiences. The development of the U.S. Constitution and the constitutional practices of the United Kingdom were frequently referenced and compared during the drafting of the Australian Constitution.
Bruff considered how the American experience might assist in Australia’s understanding of its executive power, particularly at a time when the Australian government appears to be increasingly relying upon “inherent,” extrastatutory sources as the basis for its actions. Since Bruff’s article there have been a number of further instances when the High Court of Australia has had to consider the scope of executive power. Against the background of such developments, this Article provides a brief explanation of the Australian executive power and, drawing on Bruff’s American analysis, offers a comparison of the two systems of executive government. In this Article, we argue that the High Court has played an important role in regulating the limits of executive power in circumstances where the legislature has been reluctant to supervise the executive.
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As noted in Dean Harold H. Bruff’s superb book, Untrodden Ground: How Presidents Interpret the Constitution, the President of the United States routinely interprets the United States Constitution. How aggressively the President should interpret the Constitution is subject to significant dispute. This Article considers that issue in the context where the President is the most aggressive, i.e., when threatening to decline to enforce a federal statute because the President believes the statute is unconstitutional. Such action has become increasingly common in the past few decades as Presidents have increasingly promulgated constitutional signing statements, official statements explaining how the President will enforce or decline to enforce enacted legislation based on the President’s opinion regarding the legislation’s constitutionality. The latitude the President has or should have to interpret the Constitution is particularly important in areas such as foreign policy and national defense, where the President claims plenary constitutional authority. Whether constitutional signing statements fit comfortably within our constitutional structure or are in derogation of that structure may depend on how aggressively the President interprets the Constitution.
Continue reading from Professor Chambers here.
Over the past forty years, no one has written more knowledgeably or wisely than Hal Bruff about how law actually operates as a source of constraint on the presidency. His analysis of the role and significance of executive branch lawyering in operationalizing the rule of law is especially distinctive. Professor Bruff’s 2009 book, Bad Advice, captures beautifully the ethical dilemmas of the President’s legal advisers and the chronic difficulty of balancing an ever-present pressure to support a president’s wishes with the demands of professionalism and personal conscience for a sound reading of the law.
Continue reading more from Professor Peter Shane here.
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