THE DOCTRINE OF «INHERENT POWERS»: CONSTITUTIONAL AND LEGAL CHALLENGES VS. AN INTEGRAL LEGAL TRADITION? (ON THE EXAMPLE OF THE US LEGAL SYSTEM)

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УДК 342.7

DOI 10.37566/2707-6849-2021-4(37)-4

ORCID: 0000-0002-3360-1350

Julia REMINSKA,

advising assistant of people’s deputy of Ukraine, Verkhovna Rada of Ukraine

THE DOCTRINE OF «INHERENT POWERS»: CONSTITUTIONAL AND LEGAL CHALLENGES VS. AN INTEGRAL LEGAL TRADITION? (ON THE EXAMPLE OF THE US LEGAL SYSTEM)

The principle of separation of powers has always remained and still remains the most important legal mechanism of an effective system of checks and balances between different branches of government. Its main functional purpose is to ensure the independence and autonomy of all branches of state power. In particular, constitutional legislator exclude the possibility of concentration of powers by enshrining a set of constitutional and legal guarantees in governing institutions' legal status. However, in practice, situations often arise when the implementation of certain powers serves as the reason for the serious constitutional and legal conflicts in terms of the implementation by a state body of tasks that are extrinsic for its constitutional nature.

Therefore, it is scientifically and practically significant to investigate the experience of the United States in the sphere of control over the constitutionality of normative acts, adopted as a result of the exercise of the so-called inherent powers. The author focused on the analysis of the legal positions of American courts on the implementation of inherent powers, both by Congress as the US legislative body and by the judicial authorities.

The main results of the suggested study include the following. The doctrine of the inherent powers of the US Congress is based on three restrictive principles: 1) the means chosen by the government (enshrined in the normative legal act) must directly lead to the achievement of the constitutional goal; 2) when determining the means necessary to achieve the constitutional goal, there must be a requirement of good faith in the choice of such means; 3) the means used must be directly correlated with the goal contained in the text of the constitution itself, that is, be proportional. In the context of the implementation of the inherent powers by the judicial authorities, it is summarized that the investigated doctrine reflects the essence of the procedural competency of the court and should be considered as an important component of its independence, as well as the effective administration of justice in general.

As a conclusion, the author argues that the issue of whether the implementation of certain inherent powers is «constitutionally verified», constitutional review body should consider three basic requirements, the essence of which lies in the certain scope of basic law norms, as the latter stipulates the status and functions of a certain public authority.

Key words: constitutional doctrine, inherent powers, the US legal system, constitutionality of acts of public authorities, judicial practice.

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