Today’s United States of America enjoys a separation between the three branches of power. Originally this idea must have occurred to the father founders of America, during giving birth to U.S. Constitution, based on works and ideals of some philosophers such as such as John Locke and James Harrington as well as Montesquieu who was strongly in favor of separation legislature, executive and judiciary powers.
The logics supervising this separation is that it is, theoretically, going to help avoid power abuse through some checks and balances entrusted to all three branches so that each one can have an eye, simultaneously, on the other two. This is the utmost perfection a constitution can ever reach, as for its theory, at least.
Now, our concern begins here with the fact that based on the same overlaps in the powers entitled to, according to the focus of this paper, head of executive, President, and legislature, Congress comprising of House of Representatives and Senate, one of these above mentioned powers can, in some cases not always, corner the other pushing it to function along its pre-determined purpose.
Here is a list of what legislative and executive powers can do according to U.S. Constitution:
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Legislative:
The House of Representatives initiate a charge of impeachment against the President, drawing up the articles. The Senate has the power to try impeachments; a two thirds majority is needed to secure a conviction.
Executive:
Article I Section 7, remarks that the president can veto legislation sent to him.
The President exercises a check over Congress through his power to veto bills, but Congress may override any veto except for a pocket veto by a two-thirds majority in each house.
The President, as noted above, appoints judges with the Senate's advice and consent. He also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either the House of Representatives or the Senate, or even to acceptance by the recipient.
The President is the civilian Commander in Chief of the Army and Navy of the United States. However, it is the Congress that has the power to raise, fund and maintain the armed forces, and to prescribe the laws and regulations under which the armed forces operate, such as the Uniform Code of Military Justice. Congress also has the sole power to declare war, and requires that all military officials appointed by the President be confirmed by a majority vote of the Senate.
Congressional powers over President:
Having said that, according to a report by the Center for American Progress, there are several instances regarding the issue of Congress’ monetary power in funding wars in which Congress has put limitations over president’s domain of action: [1]
December 1970. P.L. 91-652 Supplemental Foreign Assistance Law. The Church-Cooper amendment prohibited the use of any funds for the introduction of U.S. troops to Cambodia or provides military advisors to Cambodian forces.
December 1974. P.L. 93-559 Foreign Assistance Act of 1974. The Congress established a personnel ceiling of 4000 Americans in Vietnam within six months of enactment and 3000 Americans within one year.
June 1983. P.L. 98-43 The Lebanon Emergency Assistance Act of 1983. The Congress required the president to return to seek statutory authorization if he sought to expand the size of the U.S. contingent of the Multinational Force in Lebanon.
June 1984. P.L. 98-525 The Defense Authorization Act. The Congress capped the end strength level of United States forces assigned to permanent duty in European NATO countries at 324,400.
November 1993. P.L. 103-139 The Congress limited the use of funding in Somalia for operations of U.S. military personnel only until March 31, 1994, permitting expenditure of funds for the mission thereafter only if the president sought and Congress provided specific authorization.
This sort of restrictions was practiced repeatedly during Clinton’s tenure by the Republican Congress.
From the CAP report:
In 1994, Senator Jesse Helms tried unsuccessfully to prohibit funding for any U.S. military operations in Haiti and the House attempted to cut $1.2 billion in peacekeeping and humanitarian funds for Haiti, Bosnia, Somalia, and Iraq
In 1995, Sen. Gregg (R-NH) sought to cap the allowable number of combat troops deployed to Bosnia at 25,000 and House members sought unsuccessfully to prohibit any federal funds from being used for deployment in any peacekeeping operations in Bosnia-Herzegovina.
Similarly in 1998, Senators Warner and Byrd sought to cut off funding for the Kosovo deployment unless the president sought and received explicit congressional authorization and developed a plan to turn the peacekeeping duties over to U.S. allies by July 1, 2001.
Sens. Warner and Byrd also sought to withhold a quarter of FY 2000 supplemental appropriations for operations in Kosovo until the president certified that NATO allies were fulfilling their requirements.
In 1999, in the House, Rep. Souder sought to prohibit funding for military operations in Yugoslavia.
Although Congress has this power and has indeed employed it several times, during national perils or when there is public unity over the approval of the President’s decision, Congress withdraws its legal rights and lets the President act as he/she wishes.
As Commander in Chief of the armed forces of the United States, the president may also call into federal service the state units of the National Guard. In times of war or national emergency, the Congress may grant the president even broader powers to manage the national economy and protect the security of the United States. These actions have been taken by presidents from Washington to today but are not powers granted by the Constitution to the president. In 1973, Congress passed the War Powers Act to severely limit the ability of the President to conduct warfare without Congressional approval. Following the events of September 11, 2001, Congress returned some of the war power to the President.
During after 9/11, there is notably positive cooperation between Congress and the President. President Bush, then, issued many Orders to bolster America's security and the use of the military in Afghanistan received support from Congress. In July 2002, Congress approved of the largest expansion of America's military with a $34.4 billion increase in defense spending. The impetus for this came from the president and in many senses Congress could not refuse his requirements as President Bush has constantly played on America's security as being at stake. In convincing the Senate to pass in July what the House had passed in June, President Bush said:
"With our nation at war, it is imperative that we address the important priority of ensuring that our troops have the resources they need."
If Congress had not passed the presidential push for increased defense spending, then they themselves would have been blamed by the public and in November 2002, all House and one-third of the Senate are up for re-election. President Bush's increased budget (that will total $355 billion) was passed by 95 votes to 3 in a clear sign of unity between the White House and Congress.
In this regard, Pew Research Publications has done a precious work on public opinion over the Iraq war declared by President Bush, over four years from 2003 to 2007. As Scott Keeter puts it the war which began in March2003 gradually lost the public approval. The research coordinates are as follows: [2]
Presidential Powers over Congress:
On the other hand there are instances in which the U.S. Presidents have used their constitutional powers to reject Congress. [3]
“The first six Presidents of the United States did not make extensive use of the veto power: George Washington only vetoed two bills, James Monroe one, and John Adams, Thomas Jefferson and John Quincy Adams none. James Madison, a firm believer in a strong executive, vetoed seven bills. None of the first six Presidents, however, used the veto to direct national policy. It was Andrew Jackson, the seventh President, who was the first to use the veto as a political weapon. During his two terms in office, he vetoed twelve bills—more than all of his predecessors combined. Furthermore, he defied the Supreme Court in enforcing the policy of Indian removal; he famously said, "John Marshall has made his decision. Now let him enforce it!
“Some of Jackson's successors made no use of the veto power, while others used it intermittently. It was only after the Civil War that Presidents began to use the power to truly counterbalance Congress. “Andrew Johnson's struggles with Congress are particularly notable. Johnson, a Democrat, vetoed several Reconstruction bills passed by the "Radical Republicans." Congress, however, managed to override fifteen of Johnson's twenty-nine vetoes. Furthermore, it attempted to curb the power of the Presidency by passing the Tenure of Office Act. The Act required Senate approval for the dismissal of senior Cabinet officials. When Johnson deliberately violated the Act, which he felt was unconstitutional (Supreme Court decisions later vindicated such a position), the House of Representatives impeached him; he was acquitted in the Senate by one vote.
“Grover Cleveland worked to restore power to the Presidency after Andrew Johnson's impeachment. Johnson's impeachment was perceived to have done great damage to the Presidency, which came to be almost subordinate to Congress. Some believed that the President would become a mere figurehead, with the Speaker of the House of Representatives becoming a de facto Prime Minister. Grover Cleveland, the first Democratic President following Johnson, attempted to restore the power of his office. During his first term, he vetoed over four hundred bills—twice as many bills as his twenty-one predecessors combined. He also began to suspend bureaucrats who were appointed as a result of the patronage system, replacing them with more "deserving" individuals. The Senate, however, refused to confirm many new nominations, instead demanding that Cleveland turn over the confidential records relating to the suspensions. Cleveland steadfastly refused, asserting, "These suspensions are my executive acts ... I am not responsible to the Senate, and I am unwilling to submit my actions to them for judgment." Cleveland's popular support forced the Senate to back down and confirm the nominees. Furthermore, Congress finally repealed the controversial Tenure of Office Act that had been passed during the Johnson Administration. Thus, Cleveland's Administration marked the end of Presidential subordination.
“Several twentieth-century Presidents have attempted to greatly expand the power of the Presidency. Theodore Roosevelt, for instance, claimed that the President was permitted to do whatever was not explicitly prohibited by the law—in direct contrast to his immediate successor, William Howard Taft. Franklin Delano Roosevelt held considerable power during the Great Depression. Congress had granted Franklin Roosevelt sweeping authority; in Panama Refining v. Ryan, the Court for the first time struck down a Congressional delegation of power as violative of the doctrine of separation of powers. The aforementioned Schechter Poultry Corp. v. United States, another separation of powers case, was also decided during Franklin Roosevelt's Presidency. In response to many unfavorable Supreme Court decisions, Roosevelt introduced a “Court Packing” plan, under which more seats would be added to the Supreme Court for the President to fill. Such a plan (which was defeated in Congress) would have seriously undermined the judiciary's independence and power.
“Richard Nixon—whose Presidency is sometimes described as "Imperial" [4] used national security as a basis for his expansion of power. He asserted, for example, that "the inherent power of the President to safeguard the security of the nation" authorized him to order a wiretap without a judge's warrant. Nixon also asserted that "executive privilege" shielded him from all legislative oversight; furthermore, he impounded federal funds (that is to say, he refused to spend money that Congress had appropriated for government programs). In the specific cases aforementioned, however, the Supreme Court ruled against Nixon, especially since a criminal investigation was ongoing as to the Watergate tapes, even though they acknowledged the general need for executive privilege. Since then, Nixon's successors have sometimes asserted that they may act in the interests of national security or that executive privilege shields them from Congressional oversight. Though such claims have in general been more limited than Nixon's, one may still conclude that the Presidency's power has been greatly augmented since the eighteenth and nineteenth centuries.”
After all, they are equal though. Separation does not mean eminence of one power over the other. These brilliantly arranged regulations in the Constitution have only led America to grow to be a more democratic system of policy/decision making. Through a well-thought connection of checks and balances, branches get to have a chance of supervision over others and this has brought along with it some limitations occasionally imposed by branches, as this paper has tried to share.
Notes:
1. http://www.thecarpetbaggerreport.com/archives/9565.html , retrieved: 11/10/2009.
2. http://pewresearch.org/pubs/431/trends-in-public-opinion-about-the-war-in-iraq-2003-2007 , retrieved: 11/19/2009.
3. http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution , retrieved: 11/19/2009.
4. http://writ.news.findlaw.com/dean/20040116.html, retrieved: 11/10/2009.
References:
1. McKay D. & Houghton D. & Wroe A., (2002), Controversies In American politics And Society, MA: Wiley-Blackwell publishing.
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