Who Can Overturn Unconstitutional Laws?

The power to declare a law unconstitutional is an important aspect of judicial review and varies across different countries and court systems. In the United States, the Supreme Court, as the highest court in the land, has the authority to declare a law unconstitutional, ensuring that each branch of government recognizes its limits. In contrast, regular courts in Germany cannot legally determine the constitutionality of a law but must refer the matter to constitutional courts. In Muslim-majority countries, secular and religious courts may invalidate statutes conflicting with Islamic law. The European Court of Justice has also played a role in declaring the laws of the EU superior to national laws, impacting individual rights and parliamentary sovereignty.

The Supreme Court can declare a law unconstitutional

The Supreme Court is the highest court in the United States and has the power to declare a law unconstitutional—this is called judicial review. This power is not explicitly stated in the Constitution but has been established through subsequent cases. The Court's role in the constitutional system of government is to ensure that each branch of government recognizes the limits of its power.

The Supreme Court's power of judicial review is essential to protecting civil rights and liberties. The Court can strike down laws passed by the legislative branch that violate the Constitution. Similarly, it can declare executive acts and orders unconstitutional. This power of the Court ensures that the changing views of the majority do not undermine the fundamental values common to all Americans, such as freedom of speech, freedom of religion, and due process of law.

The Supreme Court's authority to strike down laws that conflict with the Constitution was established in the Judiciary Act of 1789, which gave the Court original jurisdiction to issue writs of mandamus—legal orders compelling government officials to act in accordance with the law. In subsequent cases, the Court also established its authority to strike down state laws found to be in violation of the Constitution.

The Supreme Court's power of judicial review is not unlimited, however. The Court can only hear cases that involve a point of constitutional and/or federal law. Additionally, the Certiorari Act of 1925 gives the Court the discretion to decide whether or not to hear a case. The Court agrees to hear about 100-150 of the more than 7,000 cases it is asked to review each year.

The judiciary can declare a law unconstitutional if it conflicts with the Constitution

The Supreme Court, as the highest court in the land, has the final say on whether a law is constitutional or not. It can hear cases on appeal that involve points of constitutional or federal law. For example, the Supreme Court can review a case if a party petitions for a writ of certiorari, asking the Court to examine its decision. While the Certiorari Act of 1925 gives the Court discretion over whether to hear such cases, it agrees to review about 100-150 cases each year out of the more than 7,000 requests it receives.

The Supreme Court has established its authority to strike down laws that violate the Constitution, including acts of Congress and state laws. In doing so, it ensures that the government respects the rights of its citizens and protects civil liberties. This power of judicial review also allows the Supreme Court to set limits on democratic government, preventing popular majorities from passing laws that harm or take advantage of unpopular minorities.

The judiciary's ability to declare laws unconstitutional is a crucial check on the legislative and executive branches, ensuring that the government operates within the framework established by the Constitution. This system of checks and balances aims to protect the rights and freedoms of all citizens, demonstrating the judiciary's vital role in upholding the rule of law and maintaining a balanced and just society.

Courts can declare acts of the legislature unconstitutional

The Supreme Court is the highest court in the United States and plays a crucial role in the country's constitutional system of government. It has the power of judicial review, which allows it to declare acts of the legislature unconstitutional if they violate the Constitution. This power is derived from the Judiciary Act of 1789 and Article VI of the Constitution, which establishes the Constitution as the supreme law of the land.

In exercising its judicial review authority, the Supreme Court ensures that each branch of government respects the limits of its power. It safeguards civil rights and liberties by striking down laws that contravene the Constitution. For instance, in the case of City of Boerne v. Flores (1997), the Court held that certain provisions of the Brady Handgun Violence Prevention Act were inconsistent with the Constitution's allocation of power between the federal and state governments.

Any U.S. court, be it state or federal, can declare a statute unconstitutional if the need arises in the cases before it. This power is not unique to the United States, as other common law countries like Australia, Canada, and India follow a similar process. However, in most civil law countries, the authority to determine the constitutionality of statutes is reserved for a special constitutional court.

While courts can declare acts of the legislature unconstitutional, it is important to note that this does not automatically remove the law from the statute books. Legislative action is required to repeal an unconstitutional law. Nonetheless, a declaration of unconstitutionality by a court holds significant weight and serves as a check on the powers of the legislature.

The European Court of Justice can declare national laws unconstitutional

The Court of Justice of the European Union (CJEU) interprets EU law to ensure that it is applied consistently across all EU countries. It also settles legal disputes between national governments and EU institutions. The CJEU gives rulings on cases brought before it, with the most common types being interpreting the law (preliminary rulings) and enforcing the law (infringement proceedings).

When a national court is in doubt about the interpretation or validity of an EU law, it can ask the CJEU for a preliminary ruling. This mechanism can also be used to determine whether a national law or practice is compatible with EU law. The national courts are normally responsible for applying EU law when necessary, but when an issue relating to the interpretation of the law is raised before a national court or tribunal, the court may seek a preliminary ruling from the CJEU. If the national court is the court of last instance, it is compulsory to refer the matter to the CJEU.

In its judgment of 11 December 2018 in Case C-493/17 (Weiss), the CJEU ruled that it must refuse to give a ruling on a question referred by a national court where the interpretation or determination of the validity of a rule of EU law bears no relation to the actual facts of the main action or its purpose. The CJEU has also confirmed that the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure.

While there have been disputes between the CJEU and national constitutional courts over questions of legal supremacy, the law as it stands today is clear: no national court can overrule a CJEU judgment. If a national constitutional court deems that an EU act or CJEU judgment clashes with its constitution, it cannot simply deem the act or ruling inapplicable in its jurisdiction. Instead, the court might seek to remedy the situation by compelling their government to amend their constitution, seek to change the EU legal norm, or, if necessary, withdraw from the Union altogether.

The Supreme Constitutional Court of Egypt can declare laws unconstitutional

The Supreme Constitutional Court of Egypt is empowered to declare the unconstitutionality of any text in a law or regulation that it encounters in the course of its functions, provided that the text is relevant to the dispute before it. This declaration follows the prescribed procedures for preparing constitutional cases. The law specifies the methods for submitting cases to the court in various forms, as well as the procedures for the preparation and examination of these cases until a ruling is issued.

The rulings of the Supreme Constitutional Court in constitutional cases, as well as its decisions on interpretations, are binding on all state authorities and individuals. A ruling that declares a provision in a law or regulation unconstitutional results in its inapplicability starting the day after the publication of the judgment, unless the Court specifies a different date. For example, the Egyptian Supreme Constitutional Court ruled that the second paragraph of Article 103 of the Income Tax Law, which authorised the Tax Authority to disregard declarations and determine revenues and profits by estimation without setting controls or criteria for this assessment, was unconstitutional.

The Supreme Constitutional Court's rulings on legislative omissions are not binding, as Parliament is not obligated to respond to them or amend laws based on them. However, if Parliament chooses to ignore the Court's ruling and passes a law that contradicts it, the law will be subject to being ruled unconstitutional, creating a conflict between Parliament and the Court.

The Supreme Constitutional Court of Egypt also participates in international activities. It is a member of the Association of Supreme Constitutional Courts and Councils, holds observer status in the Association of European Constitutional Courts, and is an observer member in the Association of Constitutional Courts of Latin American countries.

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