“We are not final because we are infallible, but we are infallible only because we are final.” – Justice Jackson [1]

Neither did the United States Constitution expressly believe that the Supreme Court ever was infallible, nor did it believe it to be final.

The American Constitution called for a Separation of Powers. Though the populist view was in favour of the same, it was quite confusing as to what the Separation of Powers exactly meant till 1788 when Publius explained [2] : “No political truth is of greater intrinsic value than the separation of powers” [3] and goes on to read “The accumulation of all powers, legislative, executive, and judiciary, in the same hands ….. may justly be pronounced the very definition of tyranny.” [4] The intention of the framers was only to ensure that none of the three branches rule with unfettered and uncontrolled authority [5] . This meant that each of the branches imposed some limitations on the powers of the other two, a system of governance that came to be known as the Systems of Checks and Balances. Further within the confines of these Checks and Balances, the Judiciary was considered to be “the least dangerous” [6] .

While examining the Encroachment of the judiciary into Executive Functions, this paper seeks to determine that the Judiciary is not, as it was believed to be, the least dangerous of all branches and will seek to criticise the same.

This paper is divided into 4 sections. The first section would be a brief description of Judicial Review and Judicial Encroachment and will seek to look into cases dealing with the same. The Second section will deal with the Judicial Encroachment into Quasi-Legislative Functions of the Executive. The third section would deal with the Quasi-Judicial Functions of the Executive, while the next section would deal with the Judicial Encroachment into Pure Executive Functions. Finally the author would give his opinions and views in the final section.


The judiciary has been deciding cases about the functions of the Legislative and Executive branches for over 2 centuries now. The term “Judicial Review” has been coined to explain this intervention of the courts into the activities of the other branches, if it feels that such activity violates any provision of the Constitution. Judicial Review, in itself has a positive connotation that the intervention of the courts is justified, and needed.

The framers of America’s Constitution did not consider it important to mention this power of the Court in the text of the Constitution. [7] But this exclusion meant that there existed confusion as to the existence of the Court’s power to review the actions of the other branches of the Constitution. It was only in 1788 [8] that the confusion was sub served “The interpretation of the laws is the proper and peculiar province of the courts.” [9] This, he said was considered an intrinsic part of the Constitutional spirit, and hence was not a part of the actual text.

The power of Judicial Review in the American context was formulated by Chief Justice John Marshall, who it seems borrowed from the Federalist Papers, when he pronounced “It is emphatically the province and duty of the judicial department to say what the law is.” [10] Although this case established the existence of the Judicial Review in the American context, it did not determine the extent of the same, and that is what went on to be debated over years, and still is. The Court, in a subsequent case [11] , held unconstitutional a delegated legislation because it did not lay down guidelines within which the power of delegated legislation was to be exercised. This case was another landmark judgment sowing the seeds of Judicial Review in the United States Judiciary.

On the other hand, “Judicial Encroachment” is the term used by all opponents of this judicial intervention into the other areas. Judicial Encroachment, prima facie, supports the belief that the judiciary is venturing into areas not meant for it, thereby violating the Constitution. However it is now believed that Judicial Encroachment might not necessarily carry with it a negative connotation.

It is the purpose of this paper to determine if the intervention of the Courts into the functions of the Legislature and Executive is to be defended, or is a manifest disregard of the Constitutional spirit of the Separation of Powers.

Since the connotation of Judicial Encroachment remains somewhat equal, neither positive, nor negative, the author would use the term for his analysis.


Judicial Encroachment into Quasi-Legislative Functions of the Executive

The Executive is vested with some Quasi-Legislative functions. Some of them are Constitutional [12] , others being delegated to it by the Legislature. While delegation of these powers, the Legislature lays some limitations to the exercise of these powers. Further even the Constitution lays down limitations on the Executive. Any of the three bodies cannot contravene any provision of the Constitution. It is the violation of these limits by the Executive that calls for Judicial Encroachment into the Quasi-Legislative functions of the Executive.

In the author’s view the encroachment here by the Judiciary is not just warranted, but more importantly imperative. This is probably one of the most important checks on the quasi-legislative powers of the Executive. In the absence of which, the Executive might act in an arbitrary and unreasonable manner. The power of the Court here acts as a check on the arbitrary use of power by the Executive.

The President it was believed had “inherent powers” or “inherent authority” to ignore a Congressional Act till Little v. Barremme, when the Supreme Court rejected the argument and held a Presidential Order invalid since it contravened a Congress Act.

Another instance of such rejection of the contravention of the limitations on powers imposed was the Youngstown, Sheet & Tube Co. v. Sawyer [13] case, in which the Supreme Court held a Presidential Order for the seizure of steel mills unconstitutional. The order was held as such because the President in ordering for such seizure decided not to get the approval from the Congress, which was mandatory in such cases.

The rationale for judicial review was stated in United States of America, v. Michael Negele [14] , in which the Supreme Court stated “When congress lawfully delegates responsibility to the executive branch, the executive’s activities may be scrutinised by the judiciary to ensure that the executive acts within the scope of its proper authority.” [15]

The author hence believes that the judiciary has rightly identified its role in ensuring that the Executive does not exceed its power while acting in its quasi-legislative capacity. The problems emerge when the Supreme Court decides to venture beyond this role. This will be further dealt with in the last section.


Judicial Encroachment into Quasi-Judicial Functions of the Executive

The Executive is vested with duties, for the proper functioning of which it is to act in a Quasi-Judicial capacity. Judiciary has over the years ventured into the functioning of this function of the Executive as well.

The author believes that the intervention of the Court in this function should be restricted only to ensure that the Quasi- judicial functions of the Executive is conducted as per the proper procedure that is laid down, and without contravening any legislation or the Constitution. The Court must not enter into the merits of the decisions unless the order is appealed against as per the proper procedure as laid down.

The Executive has however contravened the inherent powers it has been vested with on a number of occasions. The most blatant and obvious contravention was witnessed in the recent episodes of Guantanamo Bay. The Executive in the post September 2001 attacks decided to expand its anti-terror operations and detained a large number of people in the naval bases at the Guantanamo Bay. These people were denied their civil and political rights, including fair trial, and were treated as “prisoners of war”. The author believes, as has been stated in a long history of literature, that this was a blatant misuse of the powers of the Executive. The Executive used security reasons as an obvious reason for the same.

The Executive in these cases was sued by two persons, one being an American citizen captured and turned over by Afghan troops, the other being a non-citizen of America. While the judgment of the Court in the case filed by the American, Yaser Hamdi was easy for the Court to adjudicate, the case by the foreign national was much more complicated for the Court.

In Hamdi, the question was whether an American citizen could be denied the basic rights as enshrined in the Constitution. The Court upheld Hamdi’s rights above the Executive and held that under no circumstance can the Executive avoid the proper procedure, which included in its ambit, a fair trial. [16] The other case, filed by two foreign citizens, being Asif Iqbal and Shafiq Rasul presented before the Supreme Court a different problem. Although the Executive, like in the Hamdi case, did not follow proper procedure, it claimed that since these were not citizens of the United States, the Executive was not limited by any of the U.S. laws or the U.S. Constitution. However the Supreme Court, over ruled its previous decisions [17] , and held that the U.S. Courts exercised jurisdiction over the habeas corpus writs even though the detainees were in Guantanamo Bay, Cuba. They held that the Supreme Court had this inherent power to treat the citizens and non-citizens on an equal footing in such cases. It held further that the Executive could not by pass the laws and act in an arbitrary manner with unfettered and uncontrolled power.

The author believes that the judicial encroachment into the Executive handling of cases at Guantanamo is a perfect example that the judiciary does need to keep a check on the Executive. It is not hard to notice that the Supreme Court in overruling its own precedents and implying the duty of the Executive to treat the citizens and non-citizens equally created new law.

These cases offered the most interesting Executive- Judiciary show down in American history. The Constitution only allows enemy combatants can be detained and not innocent people. The question is who is to determine in which category a person falls. The Executive argued that there was no reason to prefer Judicial Adjudication to Executive Adjudication. The nature of the argument went beyond the particular case at hand and sought to determine the question in general.

The Executive has been of the view that the executive alone must determine the question, as per the procedures that exist. This, the Executive believes is because they are closer to ground reality and hence in a better position to determine the truth, and secondly because it would be too expensive to approach the Courts in every case. [18]

While conceding that the first point is reasonable, the author believes that the cost of approaching the Courts in every case of manifest disregard to rights is too small a price to pay for ensuring that the rights of the people are not taken away. The author also believes that it would be highly naive to trust the Executive to arrest, prosecute and judge a person accused of an offence with impartiality. [19] An example of the same would be the Hamdan v. Rumsfeld [20] case in which the Executive forged evidence to the judiciary in an attempt to falsely frame the defendant. It is only to be imagined what the Executive might do if it has control over the adjudication of such disputes as well. Further the argument of the Executive, in the opinion of the author, also fails on the grounds of the accepted principles of Due Process of Law and the Separation of Power.

Hence the author believes that the Judicial Adjudication on the face of it seems to be the better of the two alternatives. However the author does not completely agree with this view. He would shed more light on his belief in this regard in the last chapter.

However this does not mean that the author believes that the entire Executive Adjudication must be done away with. This only means that the Judiciary must perform a supervisory role over Executive Adjudication. In cases where the Executive violates rules, or limitations imposed on it, the Judiciary must call upon the Executive and correct its wrongs.


Judicial Encroachment into Pure Executive Functions of the Executive

The Executive’s main functions are the Executive functions that are divested in it. Article II of the Constitution devolves on the Executive certain functions that are to be exercised by the Executive. However it is clear that though these functions are purely administrative in nature, they are not to be performed according to the whims of the Executive. The Constitution and the judiciary over time have restricted this power. The Executive must adhere to the appropriate procedures and also to the laws and the Constitution. Any disregard of any of the above might compel the Judiciary to interfere and hold down an action of the Executive.

The author believes that although encroachment in the quasi-legislative and quasi-judicial functions of the Executive might be warranted, the Judiciary must exercise restraint in encroaching upon pure executive functions. Executive functions are best performed and understood by those chosen for the said purpose and they must be trusted with the same. It is only when it becomes clear that the Executive has misused or is misusing its power, should the judiciary intervene.

The author believes that the landmark judgment of U.S. v. Nixon [21] proves his point best. Refusing to release original tapes, the then U.S. President Richard Nixon’s Counsel claimed “he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.” [22] Further it was argued that the Judiciary should not have intervened since this was an “intra-branch dispute” between a higher and a lower official of the Executive. Further there was no case or dispute which arose for the Judiciary to determine. The Supreme Court rejected the arguments and held that the Courts had jurisdiction in this case to issue a subpoena. “The mere assertion of a claim of an “intra-branch dispute,” without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry.” [23] To the second point the court held “In the constitutional sense, controversy means more than disagreement and conflict”. Finally the Court held that despite the fact that this dispute was between a Higher and a lower Executive official, the lower official was acting within its authority to demand for the tapes, and hence the Court had the jurisdiction, i.e. the lower official had a right to demand for what he did.

The author believes the Court was right in interfering in this case since a Higher Executive authority, being the President was trying to overpower a subordinate Executive officer. The Judiciary intervened to ensure that this did not continue. In the view of the author the Judiciary should restrain itself to such cases to ensure that any department of official of the Executive does not encroach its power. The author will deal with his views in the last section.


While it is no denying that the Judiciary has intervened into areas it needed to, it is also not in dispute that it has intervened into areas it need not. The judiciary has taken its “judicial review” power too far in the opinion of the author. The branch has become despotic since they are not responsible to anyone. [24] From an era of Judicial Review, the Courts have been moving towards “Judicial Supremacy”. [25]

This has been most blatantly asserted by Justice Gibson in Eakin v. Raub [26] , “If the judiciary will inquire into anything besides the form of enactment, where shall it stop? There must be some point of limitation to apply such an inquiry; for no one will pretend that a judge would be justifiable in calling for the election returns, or scrutinizing the qualifications of those who composed the legislature.”

The author believes that while encroachment by the Judiciary is at times, warranted, the Judiciary has taken it too far. While the role of the judiciary should have been limited to, as it was initially desired to be the protector of civil rights and liabilities and not try to impose its power and desires on the other two branches. The Supreme Court judges are handpicked by Presidents in their tenure. The judges then break across all political barriers and decide on questions of Executive if the next President is not the same person or the person backed by the same party. The author believes that in cases where the decisions might enter into political areas, it would be advisable for the judges to refrain from entering into general questions, and stick to the question in hand.

Next the author believes that the judiciary has gone way beyond its role of upholding law and resolving disputes. Today the Judiciary has gone on to be a lawmaker. This has been discussed in extensive literature by American Realists who believe that the judges should not indulge in law making.

This apparent intrusion by the Judiciary into the other branches has led to an apparent mistrust among the legislature and executive. The author believes that the Judiciary must draw a line between Judicial Review and Judicial Tyranny. The Judicial approach to Legislature and Executive has led to a point where attempts have been made to curb the powers of the judiciary unsuccessfully.

The author believes with the kind of power that the Judiciary has itself empowered itself with, the Judiciary has ultimately led it to a point where it has resulted it in the tyranny that the Constitution sought to prevent. It has led to the point where it can control the Executive and the Legislature indirectly according to its whims and fancies.

The author proposes that the Judiciary abstain intervening in Legislative matters. Moreover the Judiciary shall refrain itself as much as possible from Pure Executive Functions of the Executive.

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