England and the United States are two countries divided by a common law [View all]

Recent US Supreme Court judgments uphold executive power in a way English law does not

https://www.prospectmagazine.co.uk/ideas/law/the-weekly-constitutional/74015/england-united-states-constitution-supreme-court-slaughter

https://archive.ph/9FBnF


Rebecca Slaughter, the former trade commissioner whose firing by Donald Trump has been upheld by the Supreme Court. Image: Sipa US/Alamy Live news

If you read a judgment of a US federal court, especially an opinion of a Supreme Court justice, you will see respectful, almost lyrical references to the common law of England as at the point of American independence, 250 years ago. That historic law is presented as the basis of the current law of the United States, contextualising and explaining the provisions of the US constitution itself. The impression conveyed is that US jurisprudence is the heir of and successor to the common law of England.

One problem with this approach, however, is that the common law of England (and of Wales, though Scotland and Northern Ireland have their own legal systems) has developed in a different direction. From the same constitutional tree the branches have gone in different directions. This divergence is perhaps most stark in respect of executive power. Recent judgments of the US Supreme Court, especially this week in the case of Trump v Slaughter, have upheld sheer executive power. This is the sort of legal brute force at which even George III would have blanched—perhaps even Henry III. The point here is not that the executive can act outside the law, but that the law is that the executive can do as it wishes.

In Trump v Slaughter, the issue was whether to uphold a law of Congress providing that the president can only remove a commissioner from the Federal Trade Commission “for inefficiency, neglect of duty, or malfeasance in office”. The president submitted that even these statutory conditions were objectionable, and that the president can remove a commissioner at will, for any reason or no reason at all. A majority of the Supreme Court sided with the president. The congressional legislation was unconstitutional as it fettered the absolute legal power of the president in the exercise of his executive power. The legislation stopped the president doing as he wanted, and so the legislation had to go.

In England, the corresponding constitutional and legal power rests with the royal prerogative. But over the last century or so, the courts have held that the royal prerogative can be limited by parliamentary statute, and even where it has not been limited, the prerogative must generally be exercised for good reason and fairly. Therefore, if in England parliament had legislated that the prime minister (using the royal prerogative on behalf of the Crown) could only remove an appointee to a public body “for inefficiency, neglect of duty, or malfeasance in office”, then the courts would uphold the statutory provision. There would be no question of the statute being disapplied because it conflicted with the royal prerogative. If primary legislation and royal power conflict, the latter always has to yield to the former.

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