—Ming-Sung Kuo, Reader in Law at the University of Warwick School of Law; Senior Emile Noël Fellow, The Jean Monnet Center for International and Regional Economic Law & Justice at NYU
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists, see here.]
‘It all begins with Democracy in America’
Alexis de Tocqueville and we live worlds apart. When he arrived in America in 1831, the United States was just in her mid-fifties and busy conquering and colonizing the ‘free’ and ‘fair’ land from the mountains to the prairies and to the oceans. Last week when I finally settled down to a research stay at 22 Washington Square in New York, the United States of America was marking her semi-quincentennial, only to find herself engaged in multiple armed conflicts within and without her traditional sphere of influence. Despite nearly 200 years apart, however, both of us have come across an America that instantiates how a democracy – of restive masses – can be both energetic and fanatic, and creative and destructive at once. The difference is that Tocqueville saw more of energy and creativity in America’s first populist presidency, while American democracy’s fanatic and destructive force is on full display under the presidency of Trump 2.0.
Among the multiple conflicts the US is dragged into is the ongoing 2026 Iran War, which the President started but neither he nor the Congress alone – or in agreement with the President – seems to be able to end without the opposing belligerent to go along. Yet this seemingly interminable war further gives away how democracy in America is bound to end up in presidential militancy when claims of national security and constitutional supremacy are interlocked as some executive constitutionalism. The double helix of national security and constitutional supremacy is not a DNA exclusive to America’s invincible executive, though.
In Taiwan, a democracy whose international status remains contested, the executive is emerging as an invincible power at a time when the Taiwan Constitutional Court (TCC) is institutionally damaged and politically weakened, amid increasing popular concerns about national security. Portraying the opposition-controlled parliament (the Legislative Yuan) as a threat to national security when China is forcefully pressing her claim to Taiwan ahead, the executive has discovered an unrivalled constitutional weapon in its struggle with the parliament in the name of defending the constitution. By redirecting against the parliament, the Premier’s (the head of the Executive Yuan) constitutional countersignature vis-à-vis the head of state – i.e., the President, the de facto head of the executive in Taiwan – in the latter’s promulgation of parliament-adopted legislative bills, the executive is effectively vesting itself with an ultra executive veto over legislative bills, which even Trump would only envy. Still, there are differences between the US and Taiwan in the making of the invincible executive amid calls for executive constitutionalism. Let’s start with the American make of invincible executive.
‘The President is the protector’
The illegal nature of the 2026 Iran War has been much discussed and there is no need to repeat here what has been said. What is interesting to me is the weakness inherent in the adoption of House Concurrent Resolution 86 in June – which directed Trump to remove the US armed forces from his Iran war – as a concurrent resolution under the 1973 War Power Resolution. Trump’s defiant reaction to it indeed exposed the limits of the 1973 regime in governing the use of armed forces in America’s overseas intervention. As has been well documented in the literature, the legislative veto, in the form of concurrent resolution of both houses of the Congress and otherwise, allowed the Congress to rebalance its relationship with the executive branch in the post-nondelegation era. Yet, this rebalancing act was no more after the Supreme Court declared the legislative veto unconstitutional in INS v Chadha in 1983. Since then, the only way for the Congress to reverse an executive act is through legislation, which would eventually require two-thirds majority of each house of the bicameral Congress in the face of a defiant President. Given the post-Chadha constitutional infrastructure of the President-Congress interaction and the broad array of statutory provisions allowing for emergency power by decree, the US has found herself time and again in interminable wars and states of emergency willed by the President alone. The ill-fated House Concurrent Resolution 86 is not so much a one-off incident as a reflection of the state of the American constitution in the post-Chadha era.
Worsened by Chadha indeed, the invincible executive power as embodied by Trump 2.0, especially with his interminable illegal war with Iran and incredulous invocation of emergency powers to launch trade wars on allies as well as adversaries, has its seeds sown in the US Constitution itself. Trump’s hero, Andrew Jackson, during whose reign Tocqueville made his field trip for the landmark Democracy in America, made such executive constitutionalism abundantly clear in his relentless bank war and brutal displacement of Native Americans. The executive branch under the US Constitution is indeed to be checked and balanced by the legislative and judicial powers. Yet, from its inception onwards, the US presidency has been cast in an alternative image. The single-headed executive branch in the constitutional design was meant to maximize decisiveness, activeness, secrecy, and dispatch expected of effective government. The President was thus envisaged as a power full of ‘energy’. Read through this lens, the constitutional provision for the presidential oath, among others, has been construed as defining the role of the President: the designee under the Constitution to ‘preserve, protect and defend’ the constitutional order. Here emerges the US President as the energetic constitutional protector in the American constitutional imaginary.
Despite the limited nature of the President’s protective power, it has been read differently thanks to the brevity of the constitutional provision for the presidency. Long story short, with the popular expectation of modern Presidents to solve almost every significant political, military, social, and economic problem, and with the American republic turning into a national security state, the Congress has allowed Presidents to act without much constraint through broad statutory authorization. Under constant pressure to act with agility and forcefulness when time is of the essence and national security is at stake, US Presidents in modern times have departed from their designated role in the Constitution. The presidency, riding on popular expectation and congressional obsequiousness, has grown into the supreme protector of the American nation and the US constitutional order. Under the double helix of national security and constitutional supremacy inscribed into the body of the American constitution, the US has not only found itself in interminable wars and states of emergency from time to time but has also seen the President gradually emerge as the invincible power marking an executive constitutionalism at the expense of checks and balances.
‘The Government must defend the constitution against …’
As I have discussed in a series of commentaries (here, here, here, here, here, and here), Taiwan has been engulfed by a perfect constitutional storm since the 2024 general elections resulted in divided government at a time when the TCC saw seven of its fifteen members stepping down. I will not recap what I have previously said on this forum or elsewhere. For present purposes, suffice it to say, the TCC has been substantially weakened. Since it freed itself of the court-curbing statutory straitjacket in a ruling on 19 December 2025 that has divided its remaining eight members, the TCC has been left with limited institutional capacity and little political capital. In the meantime, the opposition-controlled parliament has been busy pushing through legislative bills notwithstanding the executive’s protest, while the China-hawkish executive has spared no effort in portraying the runaway parliament as a problem to national security to the public amid China’s vociferous threat to take over Taiwan by force if necessary. To supporters of the executive’s hawkish stance on China, even the abovementioned court-curbing statutory scheme stood as part of the opposition’s China-appeasing plot.
The executive-legislative conflict in Taiwan came to a head on 15 December 2025: following the parliament’s rejection of the Premier’s request for ‘special reconsideration’ – to be explained below – with respect to a legislative bill that would reallocate tax revenue from the central government to municipalities, the Premier, with the President’s support, unprecedentedly refused to countersign the latter’s promulgation of the revenue-reallocating bill. As a result, that bill was unilaterally killed by the President-headed executive. Citing the TCC’s crippled condition, the executive scrambled to justify its invocation of the countersignature provision on grounds of, inter alia, constitutional self-defence in preventing the enactment of an unconstitutional bill into law. Notably, at that time the TCC was still constrained by the court-curbing statutory straitjacket. Yet, following the TCC’s reinstatement, the Premier turned to the countersignature provision again on 6 February 2026 with respect to an amendment of a special statute regarding the rebuilding of former military quarters on grounds that it was unconstitutional. This time the Premier did not even request the parliament to reconsider the impugned bill under the mechanism of special reconsideration. Refusing to countersign, the Premier has since de facto vetoed another six parliament-adopted legislative bills on grounds of their alleged unconstitutionality. In this way, the President-headed executive seems to have accidently emerged as a new guardian of Taiwan’s constitutional order.
To simplify Taiwan’s complex constitutional history, the requirement for the Premier’s countersignature to the President’s promulgation of legislative bills passed by the parliament in the enactment of legislation is a legacy provision from the original 1947 Constitution, as amended by the Additional Articles. Under that historical design marked by traits of parliamentarism, the President appointed the Premier subject to parliamentary consent. The Premier’s countersignature was thus directed at the President, not the parliament. The closest constitutional provision to an executive veto in Taiwan’s Constitution – in its current form as well as the original design – has been the special reconsideration procedure mentioned above. Under that mechanism, the Premier, with presidential approval, may request the parliament to reconsider the bill it has already passed if he disagrees and thereby suspend the bill’s enactment into law. Once the parliament rejects the Premier’s request by affirming the bill, he ‘shall immediately accept’ it in the current edition of special reconsideration procedure. As with the presidential veto in the US Constitution, the executive branch under Taiwan’s constitutional design just has no unilateral power to kill the legislative bill at will.
Read together with the special reconsideration mechanism, the countersignature requirement could by no means have been construed as giving the executive a veto power in the form of the Premier’s refusal to countersign that the parliament had no means to override. Following the 1997 constitutional reform giving the President the unilateral power to appoint and remove the Premier, the countersignature provision has effectively lost much of its constitutional significance and its residual clout remains directed at the President. In no way can it be rediscovered as the executive’s nuclear option in its struggle with the parliament. The legacy countersignature requirement would otherwise be turned into an ultra executive veto, making the executive invincible. Yet, acting as the new constitutional guardian when the TCC is at its lowest ebb and riding on the popular concern over national security, the current President-headed executive in Taiwan is self-empowered to kill any legislative bill in the name of defending constitutional supremacy. With the newly found ultra executive veto disguised as a legacy countersignature requirement, Taiwan is sleepwalking towards a militant executive constitutionalism where constitutional self-defence is directed at a contrarian parliament.
‘What is born out of the double helix of national security and constitutional supremacy?’
The invincible executive emerged in the US when national security and the protection of constitutional supremacy were interlocked into the cardinal principle of America’s constitutional survival. By the design of the US Constitution that allows for the rise of an invincible supreme protector from the chief executor of law, the President has led the US into interminable wars and states of emergency. In contrast, the President-headed executive in Taiwan has reinvented the legacy countersignature requirement as an extraconstitutional ultra executive veto vis-à-vis parliamentary legislation when the star of the designated constitutional guardian, the TCC, is dimmed, and the parties controlling parliamentary majority show no signs of loyal opposition even if concerns over national security are heightened. In the name of stepping into the breach in defence of constitutional supremacy, the President-headed executive in Taiwan is no less invincible than the supreme protector as manifested in America’s presidential militancy. Both the US and Taiwan find their invincible executive branches in the double helix of national security and constitutional supremacy.
Yet, at the core of the constitutional tale of the two invincible executives is the survival of constitutionalism. The Constitution is no suicide pact indeed – yet, its health cannot be in good shape when its survival is at the mercy of some wilful invincible forces. Executive invincibility, whether by design or by accident, is repugnant to constitutional governance. It is an external sign of constitutional sickness, not its solution. Will the invincible executive be an already sick constitutional order’s terminator? May God bless America and Taiwan.
Suggested citation: Ming-Sung Kuo, ‘In the Name of (Executive) Constitutionalism’: A Tale of Two Invincible Executives, Int’l J. Const. L. Blog, Sept. 2, 2026, at: http://www.iconnectblog.com/in-the-name-of-executive-constitutionalism-a-tale-of-two-invincible-executives/