Tag Archives: Supreme Court

Gary Murphy – The Irish President and the Council of State

This is a guest post by Gary Murphy, Professor of Politics at Dublin City University


In comparative terms the Irish presidency is essentially a weak office. Presidents have very few constitutional powers of which to avail and so limited are these powers that a president has essentially no room for independent action. Yet the President does have one significant power, which is the ability to refer bills to the Irish Supreme Court for a judgment on its compatibility with the constitution. The president usually signs bills into law as a matter of course, but can decide to refer bills to the Supreme Court. This is a significant power on the grounds that if a bill is referred to the Supreme Court and is found to be constitutional, then the validity of that bill may never again be questioned by any court no matter how that bill affects society and individuals over time. In essence the bill is immune from all further challenge.

Before referring a Bill to the Supreme Court the President must convene the Council of State. Article 26.1.1 of the Constitution states:

‘The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bills is or are repugnant to this Constitution or to any provision thereof.’

In December 2015 President Higgins decided to convene a meeting of the Council of State to discuss the government’s International Protection Bill 2015. This Bill dealt with the provisions for asylum seekers. In this case, the question put to the Council was:

Whether the International Protection Bill 2015 should be referred by the President to the Supreme Court for a decision on the question as to whether the Bill or any specified provision or provisions thereof are repugnant to the Constitution or to any provision thereof.

In particular

  1. Whether section 56 and section 57 of the International Protection Bill 2015 should be referred by the President to the Supreme Court for a decision as to whether either Section or any specified provision thereof is repugnant to the Constitution or to any provision thereof.
  2. Whether the Bill or any of its provisions are repugnant to the Constitution in light of Article 42A (Children)

iii. Whether section 78 of the Bill is repugnant to the Constitution in light of Article 29.6.

Article 42A was approved by the Irish people in a referendum in November 2012 and concerns itself with protecting the rights of children. Article 29.6 for its part states that ‘No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas’ (both houses of parliament).

The current Irish coalition government of Fine Gael and Labour is its last days of office and most political commentators expect an election to be held in late February. In November 2015 this government’s International Protection Bill was passed by the Irish parliament and presented to President Higgins for signing. The principal purpose of the International Protection Bill is the introduction of a single procedure for the examination of applications for international protection (or asylum) in Ireland, incorporating eligibility for refugee status and eligibility for subsidiary protection status.

In essence its aim is to reduce the length of time asylum applicants spend in the direct provision system through establishing a single applications procedure for international protection. Currently applicants can spend literally several years waiting for a decision on their asylum applications and in the meantime live in a system known as direct provision  where the state houses them in residential institutions. The average wait on a decision is three years while some applicants have been waiting for up to seven years.

To its supporters this bill creates a more efficient application process by introducing a single procedure mechanism and appeals process for new applicants and demonstrates the Government’s commitment to ensuring that asylum seekers are given the respect and dignity they deserve while their application is being considered. To its critics the bill is more concerned with making quick decisions which will inevitably lead to deportation as it is with early identification of refugees and will thus be used as a means of enforcing immigration control.

Michael D. Higgins was elected in November 2011 polling 39.6 per cent of the first preference vote from a total of six candidates and has proven to be a very popular president.  He has what one might call the common touch. He is routinely seen in the stands at League of Ireland football games where attendance tends to be low as a matter of course, and has been memorably photographed queuing up to take out money from a bank machine in a busy city centre street. While he initially stated he would only serve as president for the one seven year term there has been much speculation that he will seek a second term in 2018. The only obstacle to that second term might perhaps be his age as he is currently 74 years of age. In fact were to declare that he would seek a second term it is likely that he would be an agreed candidate across the political spectrum. Long associated with left-wing causes both internationally and domestically Higgins has been an outspoken critic of austerity but as Costa Lobo, Elgie, and Passarelli point out in their recent post he has not been critical of specific government policies and has clearly caused much less difficulty for this government than some of his predecessors did for theirs. In fact while Higgins has made various speeches as president questioning the whole neoliberal project and has long voiced concern at what he sees as the triumph of the market over social solidarity, he has not in reality crossed the line into public policy which is the prerogative of the government.

It seems to me that President Higgins summoned the Council of State to discuss the International Protection Bill out of a long-standing passion for social justice, a genuine concern for the plight of refugees and the possibility that this bill did not go far enough in the pursuit of either. The Council of State has few functions and meets rarely. This was only the thirtieth time since the constitution was inaugurated in 1937 that it had actually met. Its one true power; the requirement to make provision for the exercise of the president’s powers in any area not covered by the Constitution, has never arisen.

The Council of State eventually met on 29 December 2015 to discuss the International Protection Bill and the president’s twitter account (@PresidentIRL) issued a message that day simply stating that President Higgins has concluded the meeting of the Council of State. The following day the account tweeted that ‘In accordance with the terms of the Constitution, President Higgins has today signed the International Protection Bill 2015 into law.’ Press reports speculated that all but one of the members of the Council of State had suggested that the bill be signed by the President, but that he himself had given no indication at the end of the meeting as to what he would do, but that he would announce his decision the following day. By deciding not to refer the bill to the Supreme Court President Higgins continued down a path he has trodden since his inauguration; that of raising his doubts in public about various aspects of government public policy, but in effect being happy on consideration to stand by them.

Gary Murphy is Professor of Politics and Head of the School of Law and Government at Dublin City University. His latest book Electoral Competition in Ireland since 1987: the politics of triumph and despair will be published by Manchester University Press in March. Twitter @garymurphydcu

Matthew Eshbaugh-Soha and Paul M. Collins, Jr. – Why do Presidents Speak about Supreme Court Cases?

This is a guest post by Matthew Eshbaugh-Soha at the University of North Texas and Paul M. Collins, Jr. at the University of Massachusetts Amherst

On April 2, 2012, President Obama expressed his belief that the U.S. Supreme Court would uphold his signature first-term domestic policy achievement, the Patient Protection and Affordable Care Act, in the face of a constitutional challenge. The question before the Court was whether Congress had the authority to require American citizens to purchase health insurance coverage, popularly known as the individual mandate. In his public remarks, the president took a firm stance on what he believed to be the proper outcome of the case:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Almost immediately, in the instantaneous media environment within which presidents now govern, critics pounced. Many criticized the president for attempting to bully the justices to support his preferred position on the case. Representative Lamar Smith (R-Texas), then Chairman of the House Judiciary Committee, even penned an op-ed condemning the president for his “disturbing” comments that exposed the president’s “fundamental lack of respect for the judicial branch.”

One might read the president’s remarks and the ensuing response and conclude that presidents often attempt to influence the Court’s decisions through public speeches, much as they do to influence legislation or public opinion. Until recently, that may have been a reasonable conclusion. But our research shows just how unusual presidential commentary is on pending Supreme Court cases, as depicted in Figure 1. This graph indicates the number of Supreme Court cases mentioned by presidents in their public remarks (spoken and written), broken down by whether the remark came before or after the Court rendered its decision in the case.

Figure 1. Number of U.S. Supreme Court Cases Mentioned by Presidents, Before and After They Were Decided, 1953-2012

Screen Shot 2015-11-10 at 17.30.05As this figure reveals, instances of presidents speaking about Court cases before they are decided are exceedingly rare. Since 1953, presidents have mentioned pending Supreme Court cases in only 47 speeches. This is a miniscule portion of all speeches presidents have delivered over the past half century (less than 0.3 percent). Moreover, it is only 5 percent of all mentions presidents have made about Supreme Court cases since 1953. Thus, rather than taking public positions on pending cases, presidents much more frequently discuss cases after they have been decided.

Without question, presidents limit their references to pending Supreme Court cases. As we discuss in our recently published Presidential Studies Quarterly article, one reason this is the case involves the Office of Solicitor General, the group of attorneys who represent the federal government before the Court. Because the Solicitor General may be seen as an agent of the president, presidents have little need to deliver speeches on pending decisions. Such is the case because the Solicitor General can directly communicate to the justices the president’s preferences about a case, and can do so without encouraging accusations of intimidation by the president. Thus, when presidents take positions on pending decisions, we do not think that they do so to bully the justices. Instead, presidents discuss pending cases mainly to demonstrate their commitment to issues of substantial public concern.

Instead of using speeches to affect judicial decisions, presidents speak mostly about cases after they have been decided. Among these references, presidents discuss both historically-significant cases (e.g., Brown v Board of Education and Roe v. Wade) and recently-decided cases, such as President Obama’s repeated criticisms of Citizens United v. Federal Election Commission.

We argue that presidents’ reasons for talking about decided cases are driven by their three primary goals of making good public policy, promoting their reelection, and advancing their historical legacy. Although we find that presidents speak about recent cases mostly during their second terms to promote their historical legacy, and attempt to direct the implementation of policy through written commentary on recently-decided cases, we conclude that the president’s primary motivation for speaking about decided cases is electoral. The likelihood that presidents will speak about decided cases is significantly higher during reelection than all other years in office. This finding is strongest for recently-decided cases, but also holds for historical ones, given the relevance of key precedents to presidents’ electoral bases. Presidents also prefer to comment on recent cases when they are salient to the media and the American people. This makes sense, not only for presidents to demonstrate democratic responsiveness to important matters of public concern, but also to maximize their exposure to the public through news coverage of these contemporary Supreme Court cases.

Although presidential remarks about pending Supreme Court cases generate a great deal of news coverage and political backlash, it is important to keep in mind that this type of position taking is infrequent. Rather than routinely staking out positions on pending decisions, and thus potentially violating the norm of judicial independence, presidents reserve the bulk of their public remarks for Supreme Court cases that have already been decided. Some of these references are to historical cases, while others are to more recently decided cases. Taken as a whole, our analysis indicates that presidents are primarily motivated to discuss Supreme Court cases in their public rhetoric in an effort to take positions on salient matters of public concern for the purpose of appealing to a motivated electoral constituency as they campaign for and attempt to win reelection.


Eshbaugh-Soha_MatthewMatthew Eshbaugh-Soha completed his Ph.D. in 2002 from Texas A&M University and is currently Professor and Chair of Political Science at the University of North Texas. His research agenda focuses broadly on the American presidency, the news media, and public policy.


Collins UMass HeadshotPaul M. Collins, Jr. completed his Ph.D. in 2005 from Binghamton University and is currently Associate Professor of Political Science and Director of Legal Studies at the University of Massachusetts Amherst. His research focuses on understanding democratic influences on the judiciary, interdisciplinary approaches to legal decision making, and interest group litigation.

Presidential Ordinances in India: An Analysis

India has a parliamentary democracy. Ordinarily, laws are enacted by Parliament. But India’s Constitution also provides for an exception; namely, Article 123. It says that the President may promulgate ‘ordinances’ if at least one House of Parliament is not in session and ‘he is satisfied that circumstances exist which render it necessary for him to take immediate action’.

Five things about this exception are worth noting. In keeping with India’s Westminster credentials, the power to promulgate ordinances is exercised by the Council of Ministers; the latter decide if ordinances are necessary. Presidents formally promulgate them. They enjoy some discretion, the precise scope of which still remains unclear. Second, ordinances may be promulgated ‘except when both Houses of Parliament are in session’. That is, it may be done even if either the Lower House or the Upper House of Parliament is still in session. Third, ordinances are limited to circumstances when it is necessary to take ‘immediate action’. They are predicated on some form of legislative urgency and, unlike parliamentary legislation, require additional justifications. They cannot be promulgated merely because the Council of Ministers so desire. Fourth, and most importantly, ordinances are like parliamentary legislation; they have the ‘same force and effect’. They are not rules, orders, by-laws or delegated legislation of some kind. Rather, they are legislation proper. Consequently, there are no substantive limitations. Presidents are competent to do through ordinances all those things Parliament may achieve through Acts. Fifth, ordinances are not permanent. Unless converted into Acts through the usual legislative procedure, they ‘ceases to operate’ six weeks from the day parliamentary sessions resume.

This vesting of original legislative power on the executive is perhaps anomalous, but not necessarily radical. Under Article 123, Parliament, after all, retains final authority. It may approve ordinances or reject them. But that is a mistaken view. After nearly 65 years of use and abuse, interpretations and amendments, Article 123 stands transformed. It effectively functions like a second, or an alternative Parliament in India.

Take the first two conditions, i.e. the conditions that must be satisfied before Presidents may take recourse to ordinances. At least one House of Parliament should not be in session. But who decides whether Parliament is in session, or should be in session? India’s Supreme Court has taken the view that parliamentary calendar is outside the scope of judicial review. Minsters along with the Speaker and the Opposition must decide when and how frequently Parliament should convene. If both Houses are in session, can the Government simply prorogue one House to make an ordinance possible? The Supreme Court has said yes. Consequently, the executive is the sole judge of when the Houses of Parliament are in session, or when they should be in session. The Court will not review this matter. The second condition has attracted a similar fate. Presidents must be satisfied that ‘immediate action’ is necessary.  In 1970, the Supreme Court held that Governments are the sole judge of ‘necessity’; the courts will not get into this question. In other words, when a President on the advice of Ministers concludes that an ordinance is necessary, legally speaking, that is the end of the matter. He or she may promulgate an ordinance for any reason whatsoever, and that is valid. The two pre-conditions, therefore, are not really conditions in any meaningful sense of the term.

What happens when Parliament resumes? An ordinance may become an Act of Parliament. That is the best case scenario for the Ministers. But it may also be voted down. Ministers are also authorised to withdraw ordinances before they are voted in Parliament. Finally, ordinances may lapse; they may ‘cease to operate’ because Parliament takes no action on a given ordinance. Now say that an ordinance is presented before Parliament and it is voted down. Can the executive re-promulgate the same ordinance? In 1987, the Supreme Court answered in the affirmative. While re-promulgation is generally invalid, it may be constitutional under certain – mostly unspecified – circumstances. That judgment effectively makes a Parliamentary vote on ordinances redundant. Irrespective of whether Parliament wants that law or not, the executive can keep the ordinance in force simply by re-promulgating it.

Finally, what happens if Ministers stop re-promulgating a failed ordinance, and allow it to lapse? Like I mentioned earlier, it ‘ceases to operate’. But what does that mean? Imagine a situation where an ordinance was in effect for, say, six months. During that period many actions would have been taken under the ordinance. What happens to all those actions? Do they also ‘cease to operate’? In 1964, the Supreme Court said no; the actions do not get wiped out. All actions initiated or completed during the time an ordinance is validly in force remain permanently valid. What this means is that even if an ordinance fails, it can produce permanent legal effects. Consider an ordinance that repeals an Act, and then ‘ceases to operate’. If the Supreme Court is correct, it implies that the repeal by the Ministers shall become permanent. That is, by any definition, a radical outcome.

Taken together, these decisions imply that the President, acting on the advice of the Council of Ministers, may promulgate ordinances at any time for any reason. More importantly, such ordinances can produce permanent changes in the law even if they fail. Article 123, as a result, has morphed into a second Parliament, and more importantly, renders India’s ‘normal’ Parliament nearly redundant. Compared to the ‘cumbersome’ method of making laws through Parliament, ordinances are easier and quicker; they require neither debates nor votes. It should therefore come as little surprise that 11 ordinances have been promulgated on average every year since 1950. Article 123 is a handy legislative tool for the President, and has been abused more than it has been properly used.