Judicial review

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Judicial review is a legal term to describe the ability of the courts to subject executive and legislative actions to review (and possible invalidation). In some countries, only executive powers can be judicially reviewed by a courts - in the United Kingdom and New Zealand for instance, the doctrine of parliamentary supremacy means that legislation cannot be set aside. In many countries however, notably in the US, the courts play a role in determining the constitutionality of legislation.

Review of legislation in the United States

The authority of the federal courts to declare law enacted by Congress unconstitutional.[1] Chief Justice Marshall established this doctrine in Marbury v. Madison

It is emphatically the province and duty of the judicial department to say what the law is.

If, for example, a law is unconstitutional, then courts should not enforce it.

This is not to be confused with additional unjustified power taken by the judiciary for itself that is known as judicial supremacy or judicial activism.

Review of executive decision making

In Commonwealth countries, decisions made by Ministers and other members of the executive branch can be subjected to a judicial review. The court will check to ensure that the decision maker has not acted ultra vires (beyond their authority), with any procedural impropriety, or in breach of any legitimate expectation. The courts will not impose their own decision, but rather will ensure that the process that the decision maker followed was legitimate.

References

  1. US Government and Politics
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