Constitution

US Government Power: Theory and Practice

Dean McSweeney UWE

1. The Theory Constitution in operation since 1789  Only 27 amendments since then (10 in 1791, the Bill of Rights) 

Written Constitution Earlier experiences weighed heavily in the founders’ thinking  Need for government to provide order and freedom  Need to avoid a government that threatened freedom→  Avoid concentrated and unchecked power → Separation of powers, checks and balances, federalism 

2. Theory coincides with practice 

Separation of powers

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Checks and balances

Separation of powers The Founders created 4 institutions of government which are still the principal institutions of US government: - Presidency - Supreme Court - Senate - House of Representatives (Senate + House= Congress) 

Separation of powers 

Each institution: – Has separate membership –

Is chosen by a different method

–

Is chosen for a different length of time

Separation of powers Institution

Selection Method

Term

President

Electoral College

4 years

Senate

Elected (states)

6 years

House of Reps

Elected (districts within states)

2 years

Supreme Court

Nominated by President. Needs approval of Senate.

Life

Separation of powers 

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No person can serve in two institutions at the same time In 2008 Obama and Biden were members of the Senate when they were elected to the presidency and vice presidency On election to the executive branch, their seats in the Senate became vacant

3. Checks and Balances: Powersharing The term ‘separation of powers’ is misleading  Powerholders are separated between different institutions  But many powers are shared between institutions  Better description: ‘Separated institutions sharing powers’ (Neustadt, 1960) 

Checks and Balances: Powersharing Shared legislative powers: - President can veto bills passed by Congress to prevent them becoming law (e.g. George W. Bush vetoed 12 bills in his 8 years in office)

Checks and Balances: Powersharing Shared executive powers - President appoints senior members of the executive branch subject to Senate confirmation (e.g. 2013- John Kerry confirmed as Secretary of State to replace Hilary Clinton)

Checks and Balances: Powersharing Shared judicial powers: - Supreme Court decides major court cases but justices nominated by the president and confirmed by the Senate (e.g. Elena Kagan appointed 2010) - Justices (and other officials, including the president) can be impeached (removed from office) in a trial conducted by the Senate on charges drawn up the House of Representatives

Checks and Balances    

Congress checks the President [through confirmations of appointments, approval of bills] Congress checks the Supreme Court [appointments, limiting the right to appeal] The President checks the Supreme Court (and lower courts) [appointment] The President checks Congress [veto power]

Checks and Balances: Conflict Conflict between institutions likely because of separation of powers – different people, chosen in different ways, chosen by different people, chosen at different times, chosen for different lengths of time.  They have different roles, powers, interests, constituencies and electorates  Separate elections at separate times allows for different branches of government to be controlled by different parties, e.g. - Obama (Democratic party) elected president in 2008 - Republican party majority elected to House of Representatives 2010 

Checks and Balances: Cooperation 

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Co-operation between branches essential because of checks and balances Co-operation between president and Congress achieved by: Negotiation and compromise Appeals to public opinion Fear of electoral retaliation

3. Theory and practice differ  

No written constitution can cover every eventuality No written constitution entirely describes practice

Differences between theory and practice in the US: - Judicial review - War powers - Unilateral presidency

i. Judicial Review 

Judicial review: the right of the Supreme Court to consider whether laws or actions of the executive conform to the Constitution. If they do not conform, they are ruled unconstitutional and therefore legally invalid

Judicial Review 

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The Constitution does not give the Supreme Court the power of judicial review The Court claimed this power for itself soon after coming into existence Marbury v. Madison (1803) was the first federal law to be ruled unconstitutional The legislative and executive branches came to accept that the Court could exercise judicial review

Judicial review and checks and balances 

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Judicial review checks the actions of the other branches of government e.g. 165 laws enacted by Congress (and signed by the president) ruled unconstitutional 18032010 President Nixon forced to hand over tape recordings to the courts which implicated him in a criminal cover-up (leading to his resignation in 1974)

Judicial review and rights 

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In interpreting the Constitution the Court, in effect, writes new laws and has created new rights which are not in the Constitution. These include rights to: A defence lawyer in court Remain silent when questioned by police An abortion Unlimited spending of own money to influence elections

ii. War Power 

Article 1, section 8 of the Constitution says:

‘Congress shall have the power to…. Declare war…’

War Power 

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The Constitution gives the president no role in declaring war At the constitutional convention one delegate proposed giving the president the power to declare war but no seconder could be found for the proposal and it was not put to a vote

War power in practice 

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Congress has only declared 5 wars. The last time was 1942 US involvement in wars in Korea, Vietnam, Kuwait, Bosnia, Iraq, Afghanistan etc were started without a declaration of war by Congress

War power in practice   

In practice, presidents start wars On occasions they have requested approval from Congress (but not always) When President Bush senior asked for authorization of war against Iraq in 1991 he stated that he was not required to do this

iii. The Unilateral Presidency 

The war power is an example of the growth of presidential power since the Constitution came into effect

The Unilateral Presidency According to Article 1 of the Constitution:

‘All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’

Legislating in practice 

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Many significant policy decisions are approved by Congress in laws or treatieswhich only go through the Senate But presidents have developed the power to make legally binding decisions without the approval of Congress

Legislating in practice 

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Presidents make legally binding decisions through: Executive orders (instructions given to the executive branch) Proclamations (public declarations of new conditions or circumstances) Executive agreements (with foreign countries)

Legislating in practice 

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These methods started early in the history of the presidency: George Washington issued the first executive orders and proclamations in the 1790s President Monroe made the first executive agreement in 1817

Legislating in practice 

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Many of these measures are not of great political consequence But there are exceptions Very rarely are they overturned by Congress or the Supreme Court

Policy and unilateral powers Significant examples of presidents’ unilateral powers: - Internment of 100, 000+ Japanese Americans (Ex. Order, 1942) - Desegregation of armed forces (Ex. Order, 1948) - Enforcement of affirmative action (Ex. Order, 1965) - Military tribunals to deal with terrorist suspects (Ex. Order, 2001)

Policy and unilateral powers 

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Freeing of slaves in Confederate states (Proclamation, 1863) Introduction of wage and price freeze (Proclamation, 1971) Pardon of Vietnam War draft evaders (Proclamation, 1977)

Policy and unilateral powers    

Lend-Lease (Ex. Agreement 1940) Yalta and Potsdam Agreements (Ex. Agreements 1945) Vietnam War peace settlement (Ex. Agreement, 1973) Anti-Counterfeiting Trade Agreement (Ex. Agreement 2011)