5 - Checks and Balances : 1932-1974 Flashcards
What is written in the Constitution might differ from practice. In the Constitution,
three powers check on another : legislative, executive, judiciary. With the legislative one having more enumerated power than the two other branches. In practice, we witnessed the expansion of the executive power during the modern era.
A gradual assertion of the executive power from when to when ?
from WW2 to the late 60s. There was no resistance from the other branches up to the early 70s, there was even approval with a bi-partisan consensus.
Concomitantly, there was the rise of new powers not defined by the constitution but more and more important in the second half of the 20th century :
Interest groups
The press
The public opinion
This evolution of excutive branch was due to several factors :
The growth of mass media, especially TV in the 50s & 60s
The democratisation of politics with voting right reforms, women’s liberation, party reform & the growth of independent politics.
In a way, these factors became part of the Checks and Balances system. The president became apparently more independent from the legislative but more dependent on public opinion and the media.
=> This is linked with the notion of mandate. This was a gradual process that developed in the post world war II period was confirmed in the 70s and was accentuated in the last decade.
I. The president and Congress
The executive ascendency came along with the Congressional delegation of powers in foreign & domestic policy
A. Foreign policy
V. Michelot
According to historian Vincent Michelot, foreign policy reveals the tension between the president and congress & the President has absolute monopoly of initiative in this field.
A. Foreign policy
During the period between 1932 and 1974, the expansion of inherent powers and emergency powers doctrines occurred. There were also wars without declaration of wars, except for WW2. And there was also bi-partisan consensus.
Main landmarks :
1932-1974
1941
1947
1950-1953
1961
1962
1955-75
1932-1974 : expansion of inherent powers & emergency power doctrines
1941 War power act
1947 National Security act > creation of CIA
1950-1953 Korean war
1961 Bay of pigs
1962 Cuban missiles crisis
1955-75 Vietnam war
What happened in those cases
→ Congress either delegated broad powers to the president : for instance with the war power act during WW2 or with the creation of the CIA.
→ Congress sanctioned the Presidential initiative after unilateral presidential action. For instance, with the Korean war in 1950 or concerning the Gulf of Tonkin resolution
→ Congress did nothing because he was not consulted. For instance, the Bay of Pigs failure or the Cuban missile crisis which was a success.
Executive Agreements
After the Belmont decision in 1937 which declared Executive agreements constitutional, Presidents tended to sign such agreements rather than treaties because unlike treaties, Executive Agreements did not require the approval of Congress and of the Senate.
→ For instance FDR & Truman during WW2 or the Paris Peace Accord in 1973
Congress tried to limit the powers of the president by legislating on executive agreements. In the 1950 & 1960s, several bills were debated in Congress but failed.
Then, in 1972 the Case Act was passed : it didn’t prohibit executive agreements but it required the secretary of State to hand over to Congress the text of all executive agreements within 60 days. It actually did not mandate prior consultation of COngress & it was not very effective
Domestic affairs
With the acceptance of the President’s new role as a chief-legislator, Congress delegated its constitutional power. It was not forced to do so. Some historians note that Congress could have resisted but it did not because it was unable and unwilling to cope with issues. (// Lowi & Shlesinger)
After WW2, not only was the Presidential initiative in the legislative approved but it was expected even required. If a president had no specific program he was considered weak. Congress was only expected to react favourably or not.
When the President & Congress belong to the same party, the president is expected to act as a party leader when the government is divided, there is a confrontation between the 2 branches
Congress’s powers to check on the presidency :
Congress’s powers to check on the presidency : Congress can..
Refuse to vote a bill
Override a presidential veto
The President’s power to check on Congress :
Veto
Executive orders
Impoundment (= refusal to spend money appropriated by congress)
What can you say on domestic affairs
⇒ These powers were originally conceived as constitutional tool meant to make the gvt more effective,to unblock conflict or to preserve institutions in case of abuse by Congress. They were not routine powers. They were very rarely use up to the Modern era. But it became more and more common to use them after WW2
Roosevelt :
He was a democrat.
The first New Deal was marked by collaboration despite a few hiccups. A broad legislative program was passed by a cooperative Congress in time of crisis.
The Second New Deal however was marked by confrontation
Cf The court packing plan (when new justices), the unsuccessful democratic purge, and the rise of the Conservative coalition
The third New Deal after 1937, marked by WW2, national unity, cooperation & delegation of power
Truman :
He was a democrat
Between 1946 and 1948, Congress was republican. Truman had proposed a 21-points plan in 1945 to reinforce the New Deal but he failed to have his program pass.
He resorted to veto and executive orders to check Congress.
→ He vetoed the Taft Hartley Act (also called the Labour Management Relations Act, 1947) to restrict the powers & activities of labour union. But his veto was overridden by Congress.
→ He issued Executive order to bar discrimination in federal armed forces and administrations.
1985-1952 : there was a democratic congress but a powerful conservative coalition of republicans and thousands democrats hostile to Truman.
Congress killed Truman’s fair deal program as well as Civil Rights Plan. Congress passed the Internal Security Act against communist influence over Truman’s veto and Congress passed the 22nd Amendment to limit the number of terms for the president.
⇒ These were highly partisan measures sponsored by Republicans in reaction to FDR’s legacy.
So Truman was successfully resisted by Congress but he did without Congress.
Eisenhower
He was a Republican.
There was no confrontation between him & Congress, but no close collaboration either. Actually, he wanted to restore the balance between Congress & the President in legislative matters.
But he was soon criticised for not proposing a program, that was proof that Congress had deliberately ceded its legislative prerogatives to the President.
1954 was marked by a high tension between Congress & the President because of McCarthyism. McCarthy attacked the administration but Eisenhower refused to disclose executive information, arguing that such action was not justified. It was the first assertion of the Executive Privilege Doctrine.
After 1954 there was a divided government as Democrats won the majority in mid-term election. There was not much legislative cooperation and also not between 1956 and 1960
Kennedy
He was a Democrat.
He was frustrated by the opposition of Conservative coalition. His program was blocked by COngress. He then proposed the Civil Rights Bill but he was assassinated before it was passed.
Johnson
He was a Democrat.
His presidency marked a historic collaboration with Congress and the Supreme Court. He was a top legislator, he had a solid experience as a former Senate leader and his presidency was also marked by the trauma of Kennedy’s assassination.
Hence massive legislative programs from 1964 on : the Civil Right act, The Voting Rights Act and the Great Society. The term was first coined during a 1964 address by Johnson at the University of Michigan.
First must come “an end to property and racial injustice” he said. But that would be just the beginning. The Great Society would also be a place where all children could enrich their minds, where people could renew their contact with nature and where citizens would be deeply concerned with the quality of their goals.
In a nutshell, the main aim was the elimination of poverty and racial injustice. It horrified the Conservatives. Johnson’s relationship with Congress was probably its greatest achievement
Nixon
He was a Republican.
His relationship with Congress was caracterised by confrontation. The government was divided
Congress was dominated by Democrats openly hostile to Nixon
Nixon’s Congress started to reassert its power : Senate rejected 2 Supreme Court Nominations in 1969 and 1970.
Then, there was a climax, a majority in the House was ready to vote Impeachment which caused Nixon to resign.
II. The President and the Supreme Court
The SC can check the powers of the president by invalidating legislation emanating from Presidential programs.
But the crucial point is that the President can transform the social and political order in the long run by nominating federal judges who will support his policies if challenged.
This is all the more crucial in times of divided Government. The SC becomes the arbiter between Congress & the President. Hence the importance of these appointment process : the President can ensure his legacy by nominating judges sharing his political orientation. Actually appointment powers give the president a huge power to influence the judiciary in the long run.
A - Nominations
Here are the best illustration of the importance of nomination up to 1962 : FDR & Nixon
Nomination FDR
FDR tried to turn a Conservative court into a liberal one with the Court Packing Plan in 1937. It would have given him the opportunity to nominate 6 new Justices to the SC. He failed but then he named 9 of them between 1937 and 1943. This state they are as they stand on the court for decades. He was the president who most influenced the COurt in the 20th century.
Nomination Nixon
Nixon after decades of liberal activism supported by the SC, Nixon tried to favour a return to Conservatism by naming 2 southern conservatives in 1969 and 1970 but they were rejected by the Senate which was then hostile to Nixon.
B- The court and Presidential Powers
After the first invalidation of New Deal legislation, the SC accepted the expansion of the executive as legitimate in the Modern Era.
→ It was especially true in foreign matters.
→ In Domestic Matters, it checked presidential authority in a few cases but it was not the general trend.
It applied the political question doctrine, it was not the role of the SC to interfere with other branches, concerning political issues.
So the court simply refused to hear controversial cases involving president during that period.
