On Saturday, Justice Antonin Scalia of the US Supreme Court passed away unexpectedly in Texas, marking the end of an almost 30-year career as one of the most conservative, if not controversial, justices on the bench.

The sudden death of Justice Scalia, while unfortunate, opened up a chance for President Obama to nominate one more justice to the Court, setting the stage for a constitutional battle between the Democrats and the Republicans.

The general Republican position is that Obama should not be given the opportunity to appoint another liberal to the Court. Of course, despite the Republican effort to cast Obama as a lame duck, no legal or constitutional provisions prevent him from nominating a justice in an election year, and he has vowed to do so ‘in due time’.

This purported lame duck period is much longer than, but not unlike the one currently facing President Ma Ying-jeou, who does not leave office until May 20 despite his successor Tsai Ing-wen’s electoral victory last month. The main difference between the two is that Taiwan’s lame duck period became foreseeable in March 2015 when the Central Election Commission (CEC) decided to hold the presidential election on January 16 along with the legislative elections despite the May 20 inauguration date.

While the Taiwanese president cannot appoint anyone as powerful as a US Supreme Court Justice – the Justices of the Constitutional Court in Taiwan have eight-year tenures and weigh in far less frequently than their American counterparts – the underlying tension facing lame duck presidents is the same. The opposition that will or hopes to take over would like the incumbent to do as little as possible, while the departing president would like to continue to wield power per usual until the very end.

For now, it appears that political truce has been reached between the Executive Yuan and Legislative Yuan so that controversial bills will not be pushed through before Tsai assumes the presidency, and the public seems to accept this arrangement in large part due to the unpopularity of Ma and the KMT. Still, this only pertains to legislative and not executive action.

What would happen if Ma were to take executive action on an issue that enjoys public support but is contrary to the president-elect’s position? For example, Ma could direct Minister of Justice Luo Ying-shay to execute death row inmates. Capital punishment enjoys roughly 75% to 85% of popular support in Taiwan, a reality that allows this action to be justified as simply abiding by public consensus. Should Ma have to forebear from carrying out the death penalty, a policy known to voters who re-elected him in 2012, because the president-elect may be opposed to it? He would merely be carrying out his constitutional duties.

Furthermore, did the CEC effectively prolong Ma’s lame duck period by scheduling the election so early? In 2012, Ma was elected to a four-year term. Had this year’s election taken place in March per the practice prior to 2008, would Ma’s powers even be in question now? Should a presidential term be effectively truncated because the unelected members of the CEC made a unilateral decision? Given the possible illegitimacy of the CEC’s decision, is there a plausible argument to be made that Ma has the absolute right to, for example, execute prisoners prior to March, and would only have to start being politically mindful of how the electorate voted after?

Taiwan’s democracy has flourished as a result of the general adherence to the rule of law, and abiding by this principle means that whatever one’s position on the aforementioned issues, the answers should not differ if the identities and party memberships of the outgoing president and president-elect were to be swapped. While the political reality may mean that a constitutional crisis can be avoided this time because even Ma knows he has very little political capital, legislation is still necessary to guarantee that the Constitution, laws, and the institution of the presidency – and not partisanship and popular opinion on the presidential officeholder – guide presidential transitions in the future.

The DPP and NPP should be lauded for vowing to deliberate on a presidential transition bill in the Legislative Yuan soon, but their focus, as least publicly, has only been on mandating that the departing president cooperate with the incoming administration. What has been missing in the public discourse is that the law needs to reaffirm the president’s un-curtailable powers of the office until May 20 regardless of the political climate, per the ROC Constitution.

Senate Majority Leader Mitch McConnell released a statement stating: “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

In response, Massachusetts Senator Elizabeth Warren said:

Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes.

Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.”

Similarly, Ma won the 2012 election by almost 800,000 votes, a larger percentage of the total votes than Obama’s five million. As there are no clauses in the ROC Constitution that restrict presidential powers when there are four months left in the term of a KMT President, Ma should be allowed to, and, in fact, be encouraged to exercise all the presidential powers stipulated in the ROC Constitution until his term expires. Anybody arguing otherwise would have no standing to protest when the opposition seeks to limit Tsai’s powers during her own lame duck period.


Bob Kao

M. Bob Kao is a California lawyer and PhD Candidate at the Centre for Commercial Law Studies, Queen Mary University of London. He has degrees from Wesleyan University, University of California, Berkeley, and University College London. He blogs at Taiwan Law Blog.