This chapter examines the executive power of the Commonwealth. The provisions of the Constitution concerning the structure of the Federal Executive Government and the exercise of federal executive power do not fully describe how the Federal Executive Government operates in practice. Those provisions need to be understood in light of the conventions of responsible government governing the actual operation of the Federal Executive Government and the exercise of its powers. The Federal Executive Government cannot be treated as if it is an ordinary legal person with capacity to act as it pleases subject only to the general law. The Federal Executive Government can only exercise powers which it lawfully possesses. Federal executive power includes powers derived from the Royal Prerogative, powers derived from Australia’s status as a nation, and powers conferred on the Federal Executive Government by statute.

Chapter 3 is dedicated to an analysis of the distribution of power within Hegel’s model of constitutional monarchy, or what he calls the rational constitution. By focussing on the arrangement of power in Hegel’s organic political system, it provides a necessary grounding for the analysis in the chapters that follow. First, Hegel’s peculiar separation of powers into a princely, governmental, and lawgiving power, which are all organically interconnected, is addressed, which is of particular interest on account of its variance with the concept of that name which is widely held today. Next, the role played by the monarch is scrutinised, who is hereditary, bound by the law, and embodies subjective freedom. This is followed by a discussion of the exercise of government, which exposes the ultimate restrictedness of the monarch’s field of influence. Lastly, the chapter recovers the various competences that Hegel envisioned for the Assembly of Estates, with which the two subsequent chapters are principally concerned.

In Australia, executive power is concentrated in the roles of the prime minister and the Cabinet – the body of senior ministers who provide leadership for the government and departments of state. Executive power is the capacity to ‘execute’ or implement political decisions and legislation. Although the Australian Constitution formally vests executive power in the Queen, which is then ‘exercisable by the Governor-General as the Queen’s representative’ (Australian Constitution, Chapter 2, article 61), this executive power is chiefly symbolic. Real executive power resides in the elected government of the day, led by the prime minister and the Cabinet.

In this chapter, we begin with defining executive power and distinguishing between the political and administrative wings of executive government. We continue with a consideration of the functions that the executive government serves. The chapter then delves deeper into the heart of Australia’s executive government, examining the key features of the roles of the prime minister and the Cabinet, and the relationship between them. We end by considering the tensions between executive power and accountability.

This is a case about racial exclusion from the border. Specifically, this case concerns the constitutionality of the Chinese Exclusion Act of 1882 (CCA) and subsequent amendments to that provision enacted by Congress,2 which ban the return of a noncitizen permanent resident of this country on the basis of his race – because he is Chinese. As we explain below, this immigration racial ban violates the Due Process Clause of the Fifth Amendment and, thus, must be deemed unconstitutional. We therefore invalidate the CCA and hold that the Constitution prohibits Congress from passing laws that exclude noncitizens on the basis of race.

Alexis de Tocqueville’s classic Democracy in America is widely recognized as one of the most definitive accounts of American society and political culture. However, his thoughts on the US Constitution have often been overlooked. In this chapter, Jeremy D. Bailey argues that this neglect is unfortunate insofar as Tocqueville’s view of the US Constitution diverges in significant ways from the authoritative rendition of The Federalist. Rather than echoing classic explanations of the workings of the US Constitution by James Madison and Alexander Hamilton, Tocqueville’s understandings of federalism, Congress, US elections, the presidency, and the Supreme Court are more influenced by the constitutional interpretation of Thomas Jefferson. Despite his extensive discussion of other parts of the US Constitution, however, Tocqueville has little to say about the Bill of Rights. This apparent oversight may be explained by the fact that he sees a respect for rights as emerging from political culture rather than any specific institutional framework.

The United Kingdom’s decision to invoke Article 50 of the Treaty on European Union triggered serious ripples across its constitutional order, including repeat clashes between Parliament and the Government. This friction reached a crescendo in 2018, following the former’s unprecedented decision to hold the latter in contempt for refusing to obey its request to publish the Attorney General’s full legal advice on the Government’s draft Withdrawal Agreement with the EU. One of the many interesting constitutional issues thrown into sharp focus by this event, was the important relationship between executive power and the legal advice-giving role of executive lawyers.

Using the UK and Ireland as illustrative examples, this essay considers how the work of executive lawyers interacts with executive authority. I argue that their legal advice can be important in supporting the executive’s political narratives about the basis for controversial policy action or inaction and is deployed by the executive to enhance its perceived legal credibility and political legitimacy. Its relationship to exercises of public power deserves greater positive and normative scrutiny, both in each system and from a comparative public law perspective more broadly.

Astute observers of Latin American politics note a widespread shift towards social inclusion at the turn towards the twenty-first century. Is such a shift evident in written constitutions, and if so, how? We leverage historical data on the content of constitutions to explore this question. A preliminary test is whether the Bolivarian republics of Venezuela, Ecuador, and Bolivia – the militant edge of the “inclusionary turn” – represent a shift from their constitutional trajectory. The evidence suggests that in both style and content, the Bolivarian constitutions are novel by historical standards. A second part of the chapter explores, broadly, the patterns of inclusion across the dimensions of recognition, access, and resource distribution. There is, in fact, a strong trend towards the constitutionalization of inclusion within each of these dimensions. We observe the strongest evidence of such in channels of political access, in the form of participation and accountabililty. Finally, we document a counterintuitive element of the inclusionary turn – the persistence of, and even increase in, strong presidential power with respect to lawmaking authority. We advance the possibility that presidential power, for all of its other implications, may be conducive to inclusion. Broadly, processes of political inclusion are well represented in written constitutions.