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WEEK 2: Congress and the President Lesson

The US Constitution: Organization of Power I. The Philosophical Background

With the emergence of nation-state, political philosophers began to explore the relationship between citizens and their state. New issues were being because of the new market economies and the rise of a middle class. What emerges in this era in was a concern for civil and political rights. For the American founders, there was a definite awareness of the writings of Thomas Hobbes, John Locke, and Jean-Jacques Rousseau.

The ideas and thoughts of these three theorists are reviewed: Thomas Hobbes: Rights for Hobbes provided people with a chance to make decisions about what they wanted to do with their own lives within limits established by the culture. The political system we see emerging is the basis for liberalism. Liberalism enables people to have rights which provide opportunities and protections. For Hobbes, liberalism required obligations to society – especially because the freedom of the individual was deemed more important than the community. The English civil wars, which took place during Hobbes’ lifetime, were fought over the issue of who should have greater authority the king or the parliament. This explains why Hobbes saw the state of nature of society s characterized by a state of war. In this situation, rules are created among men to avoid destructive forms of conflict. Liberty is to be circumscribed allowing individuals to move from a state of nature to the state of civil society. Hobbes saw the requirement for a common power that can enforce the social covenant. In the absence of a state – the Leviathan -- that can enforce agreements, society returns to the state of nature – or a condition of continual warfare. The state exists arises from the fact that Hobbes did not trust people to uphold a commitment to civic virtue on their own. It was necessary for the state to compel people uphold common civic standards. Hobbes seemed to suggest that the state’s objectives are defined in a manner to limit the state’s authority. The state exists to promote justice, equity and the protection of the citizen’s rights. But Hobbes’ state had no real institutional constraints and could -- in effect – limit its power. Hobbes favored a monarchy. The monarch is more likely to understand and realize the public interest. Hobbes also argued that there should be one national church and that the civilian authority should have authority over the religious life of society. This way the religious life can sustain the new civil society. It is important to note that – for Hobbes – once the act of consent to be ruled by a sovereign is given, citizens forfeit the right to challenge state policies. John Locke: As with Hobbes, Locke believed that civil society imposes limitations on citizens if individual rights are to be protected by civic virtue. However, Locke’s state must have limited powers so that it does not threaten the very basic rights is supposed to protect. For Locke, the scope of political power is far wider and its coercive abilities to ensure compliance more extensive than our traditional understanding of power. Political power enables the state to make laws that bind the whole of society in support of the public good. Locke saw the state of nature far differently from Hobbes. People in a state of nature were rational creatures who were able to determine the reasonable constraints that govern people’s behavior. It is the acceptance of certain moral restraints that are essential to protecting individual liberty. Possessing freedom is contingent upon being able to own private property.

The purpose of government in a civil society is to protect a citizen’s property which signifies the citizen’s basic rights and freedom. For Locke government has limited power – quite the opposite of Hobbes’ view. The state arises from the unanimous consent of the people to be ruled by the majority – a majority constrained to respect the rights of all. It was also Locke’s view that citizens living in a state that protected their liberties was expected to uphold the laws of that state.

In Locke’s writings, we see the basis of democratic principles enshrined in the American constitutional experience: 1. the rule of the majority 2. the concept of separated powers 3. the concept of an executive, legislative and federative powers There is less stress on the religious component in Locke’s writings. It would be the pursuit of material goals such as wealth and property. Jean-Jacques Rousseau: Rousseau was concerned with liberalism’s impact on the concept of community and the common good. Liberalism, for Rousseau, promoted self-interest and selfishness. For Rousseau, the Enlightenment fostered a civil society that equated the rule of law with the rule of materialism and greed. As well as undermining the norms of civility and the common good. Politics should help to restore citizenship in particular respect for the community and for the traditions of civic virtue. Rousseau would create a civil society that was predicated upon direct citizen participation in shaping the law by which all live. Rousseau believed that people are driven by two basic needs: a natural drive for self-preservation and the urge not to harm others. It was progress which turned society in the direction of political inequality by changing the nature of work and the introduction of private property. The economic context of modern society allows those with superior skills to acquire control over others and to enhance class rule. The economic system’s worst tendencies could be countered through a form of civic education that taught individuals their duties and taught them to make love for their country primary. In Rousseau’s civil society, each person learns to subordinate his own interest to the interests of the larger society and this conduct is the basis for treating individuals as equals. In this society, people share fundamental values. Te most important conditions that contribute to creating among citizens a sense of community sufficient to promote law-making activity would be the need to prevent divisions arising from differences in wealth and property. Censorship is an important concept in Rousseau’s civil society. Rousseau seeks a society where difference is minimized in the name of creating a context that would support the common and general will. A civil society, in promoting difference, would undermine the new social contact. If people manifested values widely different from those generally held by the society, Rousseau argued that these people should be excluded from the society. For Rousseau, the tragedy of modern life – promulgated by Hobbes and Locke – is that our natural moral sentiments are silenced in favor of the values that urge us to deny any importance to community and to civic virtue as wealth and self-interest are extolled. In many ways we see a similar debate taking place in the United States between advocates of a secular society and a moral-based society. In addition to the writings of Hobbes, Locke and Rousseau, the actual experiences of the American colonists with the British government had a major impact on their political thinking – concepts that tied in with the market economies of the colonies and the rise of a classless society. The King and the British Parliament had rejected the notion of the American colonial legislatures being on par with the Parliament in London. The American Declaration of Independence reflected the American view that the colonists were not subject to the British Parliament; they specifically addressed their grievances against the monarch: "The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world. He has refused his assent to laws, the most wholesome and necessary for the public good. He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to

them. He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within. He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands. He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers. He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance. He has kept among us, in times of peace, standing armies without the consent of our legislature. He has affected to render the military independent of and superior to civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

For quartering large bodies of armed troops among us: For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states: For cutting off our trade with all parts of the world: For imposing taxes on us without our consent: For depriving us in many cases, of the benefits of trial by jury: For transporting us beyond seas to be tried for pretended offenses: For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies: For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments. For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection and waging war against us. He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people. He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation. He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions. The political system that emerged was an attempt to ensure that such abuses of political rights would not happen. The fear of a string centralized government led to a separation of powers, a system of checks and balances, and a federalist system which recognized a central government and state government. The system was purposely designed not to allow for threats against individual rights and liberties. Some American political scientists have also seen the constitutional system of government that emerged in the in the late 1780s as an “invitation to struggle” among the various branches of government."

II. The Federalist Construct

Colonial Americans were much more suspicious of government and its power than their peers in Britain. The realities of the Americans experience with British rule, taxation and trade policy decisions made in London, and the awareness of corruption that existed in the London Parliament would be reflected in the American system of government from the system of confederation to the new U.S. Constitution. What emerged was a system of limited powers and constraints on the role of government. The U.S. Constitution enshrined into a formal governance document the fear and suspicions that colonial Americans felt toward a central government. This philosophy has remained a central tenet of American political life into the 21st Century. The U.S. Constitution and the beliefs of the Founders ensured the creation of a liberal democracy. A liberal democracy for the Founders was a system of limited government based upon the consent of the governed and which protected the liberty and freedom of the individual citizen. This was indeed a revolutionary concept. The power of the government would be specified. Powers not assigned to the government belonged to the separate states or the people. Legal protections were defined in terms of the individual rather than a collective group. It is important that we comprehend the precise meaning of the term liberal democracy and not confuse it with the harsh and acrimonious debate that takes place on talk radio over conservative and liberal positions. The American system of government was constructed by the founders to be inefficient and deliberative. To prevent an abuse of power the system had three main constraints: 1. Federalism: power was to be shared among a central governments and separate state governments. 2. Separation of powers: the role of governing was divided among an executive, legislative and judicial functions. 3. Checks & balances: various checking functions of governing co-existed in separate branches of government. For example, Congress could pass laws, but the president could veto them and the Supreme Court could declare them unconstitutional; or, the president was Commander-in-Chief, but only Congress could declare war. As we look at what the founders had created, it is also evident that what they envisioned was modified by time, circumstance and personalities. The founders actually believed that the Congress would be the most important branch of government. Yet, the presidency became a more powerful actor because of the roles that were acquired by the president. The states were seen as significant checks on a central governments power. The role of states and the belief in states’ rights were a contributing factor in the secessionist movement that led to the American Civil War. It would be the practices and behaviors of George Washington, Thomas Jefferson, James Madison and James Monroe that would define the role of the presidency in the early years as a strong executive. It would be the actions of Chief Justice John Marshall that would define the role of the Supreme Court and establish the concept of judicial review. It would be the development of ideological factions in the Congress that would lead to the creation of political parties and a very nasty and partisan approach to American politics that attacked the very character of politicians to include Washington, Adams, Hamilton and Jefferson. During the early years of the republic, the role of government was restricted by the reality of numbers of employees, geographic distances and the demands of an agricultural and trade economy. Congress sat in session for a very short time and most members had to manage their estates, farms or business ventures. The executive staff was extremely small. A standing army was non-existent. And, people didn’t like tax collectors or the federal government. While Americans still dislike taxes and President Reagan said that “government wasn’t the solution; government was the problem,” the number of government employees, agencies, functions has

basically defined the American system of government. Government is more pervasive in our daily life. Nevertheless, the basic constraints on the power of government established by the Founders have continued to function: federalism, separation of powers, and checks & balances.

The Congress Overview: In The Federalist Paper 47, James Madison – considered the Father of the Constitution - observed that, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a pronounced the very definition of tyranny.” The U.S. Constitution ensured a protection against such a tyranny by a mixed government with checks and balances. The founders, however, saw the legislature as the most significant branch of government. In Federalist Paper 48, Madison notes that: “The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” Based upon their experiences and their knowledge of political history, the founders were concerned with the ability of the government to abuse its powers and undermine the rights and freedoms of the citizen. The separation of powers among a legislature, executive, and judiciary would provide one protection. In Federalist Paper 49, however, James Madison acknowledged that “…a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” What was also present in the U.S. Constitution besides a separation of powers was a system of checks and balances as “…the means of keeping each [branch] in their proper places.” (Madison, Federalist Paper 51) Each branch of government would share certain powers with the other branches. The protections that resulted from this procedure would ensure that government would control itself. In one of the most quoted excerpts from The Federalist Papers, James Madison observed that: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” (The Federalist Paper 51) This is one truth that needs to be mentioned in understanding the American political system: The United States Constitution is deliberately inefficient. Legislative Powers Article I of the U.S. Constitution vests all legislative powers in the Congress of the United States, consisting of a Senate and House of Representatives. The specific powers allocated to the legislative branch include: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and Post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel

Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

On the issue of revenue, Article 1 requires that: “All bills for raising Revenue shall originate in the House of Representatives…” As the only legislative body directly elected biennially by the people at the founding of the constitutional system, this was felt as an additional safeguard. Within Article 1, there are certain prohibitions on the powers of the Congress. These include:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. [In the context of the Constitution, a Bill of Attainder is meant to mean a bill that has a negative effect on a single person or group. An ex post facto law is one that is formulated, enacted, or operating retroactively.] No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Structure of Congress As described by Article I, the Congress is a bicameral body consisting of two chambers. Under the original intent of the Constitution, the people elected delegates to the House of Representatives, while the various legislatures of the states appointed the two senators allocated to each state. The appointment of senators was deemed as beneficial – at that time - because it was seen as “…giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems” (The Federalist Paper 62). I. Requirements for Office The requirements of Office were specified within the Constitution: House of Representative: A delegate would be 25 years of age, reside in the U.S. for 7 years, and be a legal resident of state. The Senate: A delegate would be 30 years of age, reside in U.S. for 9 years, and be a legal resident of state. II. Term of Office The terms of office were different for the two legislative bodies though there was no term limit specified for either. For the House, there were 2 year terms with the entire House elected at same time. Membership was capped at 435 delegates. For the Senate, there were 6 year terms with staggered elections. Each state would have 2 senators. III. The Committee System The congressional committee is a legislative sub-organization that handles a specific issue areas. Because of the size of the House membership, more of its basic work is accomplished in the committees. Basically, there two types of committees:

standing committee — a permanent group conducting business throughout the Congress which focuses on a certain, long-lasting issue select or special committee — intended for a specific short-term purpose for the actual functioning of the Congress, committees are formed in various configurations that permit a more effective and efficient system. These include: sub-committees — a smaller sub-group used by most committees committee of the whole — used by the House of Representatives, but not the Senate joint committee — members from both chambers

How a bill becomes a law Succinctly stated, a bill to become a law must be approved by one or more standing committees; must be approved in both chambers of the Congress: and, if the House and Senate versions differ, a conference committee report resolving those differences must be accepted by both chambers. The process is more elaborate that what is suggested above. Before a bill gets to a committee it must be introduced by a member of Congress and sent to the clerk who assigns it a number. The proposed bill is printed, distributed, and set to appropriate committees for consideration. Once the bill a committee it is usually sent to a subcommittee for research and discussion in hearings. After the hearings, the bill is revised and voted on in the subcommittee. If it passes, the bill is sent back to the committee for voting where it can either be rejected or sent to House or Senate floor. Within the House, the bill is sent to the Rules Committee for an assigning of rules for the debate and vote and placed on the legislative calendar. The rule can determine the limits on floor debate and what types of amendments, if any, can be attached. Meeting as a Committee of the Whole, the House can deliberate on the bill with only 100 members present to speed up considerations. If approved by a vote of the full House, the bill is sent to the Senate – provided it was not considered there simultaneously. In the Senate, there are specific privileges allowed to the members of that chamber. There is the Hold - a filibuster tactic by which a senator asks to be informed before a particular bill is brought to the floor which indicates that the senator wants a personal visit to discuss the bill before it is able to go to the floor. The Senate also has the formal filibuster - a formal way of halting action on a bill by means of unlimited debate in the Senate. Through this strategy a bill can be "talked to death." This is often a tactic used by a minority party to affect the passage of legislation. To offset a filibuster, the Senate has a procedure called a cloture vote - which requires sixteen senators to sign a motion of cloture and sixty votes to end the debate. If cloture passes, the debate is then limited to 30 more hours. If there are differences with the House and Senate versions of a bill, members of the originating committee of each house must compromise on the versions of the bill before it is sent back to the two houses for a final vote. After passage by the Congress, the bill is sent to the president. The president has several options:

The President can sign the bill. The President can veto the bill. Congress can override the veto by a 2/3rd vote in both chambers. The President can wait 10 days and - if Congress is in session - the bill becomes a law. The president can wait 10 days and - if Congress is not in session – the bill is considered vetoed. This is referred to as a pocket veto.

The Presidency Overview: The role of the president has evolved dramatically from the office envisioned by the Founders. It was the Congress that was initially seen to be the most significant branch of government. The needs of government, the issues that would emerge on the national agenda, and the ability of the Executive Branch to respond more rapidly would affect the balance of power. Article II of the U.S. Constitution specifies the procedures for the election and possible removal from office of the president, the qualifications for the office, the oath of office and the vested powers of the office. The Founders were familiar with the general theory of executive power. From a traditional perspective, the executive is responsible for:

Enforcing the law. Conducting the foreign relations of the state. Commanding the armed forces. Appointing state officials, including judges and diplomats. Administering government departments and public services.

The concept of executive power has many potential forms. Executive authority within a presidential system is exercised by a president who is also head of state. A president is usually elected directly or, in the case of the United States, indirectly by the Electoral College. Under presidential systems the legislature and the executive are formally distinct, and it is usually expressly forbidden for the president and other executive officers to be members of the legislature. In a parliamentary system, however, the executive branch is generally comprised of a prime minister and a cabinet. Here the government must directly or indirectly secure the support of the legislature. In a semi-presidential system (as in the case of France), executive powers are shared between the president and a prime minister. The presidential system in the United States has specific features and is based on a specific historical and intellectual foundation. The concern with the potential abuse of power by government is evidenced with the deliberate statement of powers and responsibilities – as well as prohibitions -- specified in the U.S. Constitution. In the case of the the U.S. President, the constitution specifies the executive powers in Article II, Section B:

Commander in Chief Right of Pardon and Reprieves Request the Opinions of Department Officers Head of State Right of Appointments Right of Recess Appointments Report on the State of the Union Take care that the “laws be faithfully executed”

What we see is that the powers of the president were mentioned in very general terms -- take care that the “laws be faithfully executed” – and in very specific terms – he shall “Commission all the Officers of the United States.” This allowed for the Executive Branch to grow with the demands placed on the federal government. It would be individual presidents responding to specific historical events that would “grow” the office and increase the responsibilities of the president. For instance:

George Washington established the Cabinet and the succession of office. Thomas Jefferson negotiated the expansion of the sovereign territory of the U.S. with the Louisiana Purchase. Abraham Lincoln established the president’s war powers during the Civil War and demonstrated the permanency of the Union. Theodore Roosevelt brought the United States into the world community with the exercise of American global reach. Franklin Roosevelt legitimized the role of the federal government in the economic life of the nation.

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