The Nature and Use of Unilateral Executive Measures

Abstract

Constitutions and constitutional constructs offer executives a repository of fuzzy sources of power which enable unilateral action. This chapter focuses on one of these forms: executive making of (semi)-formal unilateral measures. These orders and edicts have an important edge: on their face, they are ‘lawlike’, and seemingly carry the imprimatur of binding law, even when their legal status is fuzzy. The chapter uses comparative methodology in order to show the strong similarity between such measures as they emerged and continue to be applied in the two systems compared in this book. Orders in Council, Executive Orders and the like, such as the ones brought before the courts in Bancoult and Youngstown, have been at the focus of extensive study; yet to date, such measures, issued in both systems, have never been conjointly discussed. This chapter offers the first comparative analysis. This novel comparative exercise leads to the discovery of a surprising convergence—surprising, if attention is focused on structural regime elements. The findings support two of the main themes advanced in this book: that the emergence and retention of fuzzy legality is an unavoidable feature of the state, despite the ingrained danger it poses to the proper functioning of democracies. A third theme, concerned with the need to constrain fuzziness by robust judicial oversight, is addressed in the last chapter of this book. This chapter also offers new insights on the unclear distinction between constitutional- and statute-derived fuzziness, again, a feature shared by both systems.