Nature of the Executive Power. What is the best constitution for the executive department and what are the powers with which it should be intrusted, said Judge Story, are problems among the most important and probably the most difficult of solution of any involved in the theory of free governments. The first of these problems has already been discussed, it remains now to consider the powers and duties which probably belong to the executive department.
Roughly speaking, the executive power may be classified under the following heads:
First, that which relates to the conduct of foreign foreign relations and which may be denominated the diplomatic power.
Second that which has to do with the execution of the laws and the administration of the government this may be denominated the administrative power.
Third, that which relates to the conduct of war and which may be described as the military power.
Fourth, the power to grant pardons to persons charged with or convicted of crime this may be called the judicial power of the executive.
Fifth, that which relates to legislation or the legislative power.
The constitutions of all states intrust the chief executive, either alone or in conjunction with the legislature or one chamber thereof, with the authority to conclude treaties and other international agreements with foreign states. Everywhere he is the representative of the state in its relations with foreign powers he appoints diplomatic representatives to foreign states and receives those accredited to him by foreign states.
The power to receive a foreign diplomatic representative is generally interpreted to include the power to recognize or refuse to rec0gnize the independence of the state which he represents or the legitimacy of the government which accredits him Strictly speaking, the treaty making power is neither purely executive nor purely legislative in character. It constitutes, as Esmein remarks, a sort of mixed zone occupied at the same time by both the legislative and executive authorities. But whether it be executive or legislative in character, there is practically no difference of opinion with regard to the wisdom of intrusting it to the executive.
The legislature, or one chamber of it, however, may very properly be vested with the negative power of ratification as a means of checking the errors or abuses of an unwise, ambitious, or unscrupulous executive, though owing to the peculiar nature of the treaty making power, the legislature cannot wisely be allowed a direct participation in the negotiation. Alexander Hamilton well observed that accurate and comprehensive knowledge of foreign policies, a steady and systematic adherence to the same views, a nice and uniform sensibility to national character, decision, secrecy, and dispatch are incompatible with the genius of a body so variable and so numerous.
The fluctuating and multitudinous composition of the legislature, he continued, forbid us to expect in it qualities which are essential to the proper execution of such a trust. Nevertheless, as Story observed, it is too much to expect that a free people would confide to a single magistrate, however respectable, the sole authority to act conclusively upon the subject of treaties.
In a few monarchical states like Great Britain, this power is exclusively in the hands of the executive, parliament having no share except. where legislation may be necessary to perfect the treaty or carry it into effect. In such states, therefore, the executive is both the negotiating and ratifying authority. But during and following the World War this feature of the British constitution was the subject of considerable criticism by certain Liberals and by the members of the Labor party who demanded the introduction of what they called democratic control of foreign policy.
They charged that British diplomacy was characterized by too much secrecy and too little regard for public opinion that Great Britain had been committed to unwise foreign engagements without the approval of the public and Without the knowledge of parliament some even charged that she had been led into the World War through secret bungling diplomacy, when if the public had been kept properly informed and its wishes followed, England would never have been involved in the conflict.
They demanded, therefore, that all treaties should be laid before parliament for its assent, and when the new Labor government came into power in 1922, it announced that this procedure would be followed. With the return to power, however, of the Conservative party, the old practice was reverted to.
In the majority of states, however, monarchies as well as republics, the assent of the legislature or one branch of it is essential to the validity of all treaties or certain classes of them. In the United States, for example, the consent of the State is required by the constitution, though the right of the executive to conclude certain kinds of international agreements independently of the Senate has long been acquiesced in.
In practice the power of the United States Senate is not restricted to the mere negative function of ratifying or rejecting the treaties negotiated by the executive, but it claims and has many times exercised the right of virtually amending those submitted for its approval.
The House of Representatives likewise exercises an indirect share in the treaty making power through its right to give or withhold its consent to legislation which may be necessary to carry into execution a treaty such, for example, as, one which stipulates for an appropriation of money. Moreover, the necessity for its approval of treaties which have to do. With the regulation of foreign commerce, such as commercial reciprocity agreements, is now admitted by both the Senate and the President.
In the German Republic treaties and alliances concluded by the president require the assent of the Reichstag when they relate to subjects which fall within the jurisdiction of the Reich which would seem to include practically all treaties and alliances, except minor agreements between the individual states themselves or with their foreign neighbors relating to matters. which are within their competence.
In France treaties of peace and commerce, and treaties which involve the finances or territory of the state or affect the personal or property rights of Frenchmen in foreign states, must receive the assent of both chambers. The French, chambers, however, cannot modify or amend treaties submitted for their consideration as the Senate of the United States may, but must approve or reject them as a whole.
The requirements of the Finnish and Polish constitutions are essentially the same as that of France. In Czechoslovakia not only commercial treaties and those which entail financial burdens but also those which impose military or personal burdens upon the citizens, must be approved by parliament. The Belgian requirement is practically the same. In Brazil and Chile apparently all treaties without exception must be approved by both houses of congress.
In the United States, where one hears much criticism of the existing constitutional rule Which places it within the power of one more than one third of the members of the Senate to defeat the ratification of treaties, ratification by both houses of Congress by a simple majority has recently been proposed by various statesmen and publicists.
As already pointed out in an earlier chapter, Switzerland by, a recent constitutional amendment provides for a popular referendum on treaties of more than fifteen years duration. This amendment introduces the principle of popular control of diplomacy in a form which is not found it any other country.
Administrative powers : Power of Appointment.
In the domain of internal administration the principal power and duty of the executive is to direct and Supervise the execution of the laws. He is the chief of the administration and the responsible head of the civil service. As such he exercises a wide power of control over the personnel of the administrative service through his power to appoint, direct and remove his subordinates.
In most republican states and in a few of the monarchical type the power of the chief executive is limited by the requirement that his appointments shall be approved by one branch of the legislature. Thus in the United States the nominations of the President must be confirmed by the Senate, and this practice is followed in some of the Latin American constitutions and in those of the component states of the American republic.
The power of the President of the United States to remove, however, is not limited by the necessity of obtaining the consent of the Senate, as is the case in making appointments, and it is now settled that Congress has no constitutional right to abridge his power of removal. Ordinarily the appointing power of the chief executive extends Only to political, judicial, and military functionaries but in some European states (e.g., Czechoslovakia) the constitution gives him the power to appoint university professors.
There is little difference of opinion in regard to the wisdom of executive appointment of the higher officials, though as to whether the executive should be independent in his choice or subject to the control of a council or a senate, there is no such unanimity of opinion or practice. In defense of the method provided by the constitution of the United States, Hamilton observed that it is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union, and it will not need proof that on this point must essentially depend the character of its administration. One man of discernment, he declared, is better fitted to analyze and estimate the peculiar qualities adapted to particular offices than a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of the executive, he went on to say, naturally begets a livelier sense of duty and a more exact regard to reputation. He will inquire with more earnestness and decide with more impartiality. He will have fewer personal attachments to gratify than will a body of men, and will be less liable to be misled by his private friendships and affections or, at all events, his conduct will be more open to scrutiny and less liable to be misunderstood. Nevertheless, the provision that the nominations of the executive should receive the assent of the Senate, Hamilton admitted, would be an excellent check upon a spirit of favoritism in the President and would tend greatly to preventing the appointment of unfit characters.
Power of Direction
Flowing from the right of the chief executive to select and dismiss his subordinates is the right to direct , them. This power varies in extent in different countries, and in the same state it often varies as regards different officials. In monarchies, and in republics like France,. where monarchical traditions are still strong, the directing power of the executive (which of course means the ministry) is very great. In the United States the power of the executive to direct his subordinates is, however, often limited by legislative acts which specify in more or less detail the powers and duties of such officials.
Thus the act of Congress organizing the treasury department contains no reference to any presidential power of direction and indicates that the administration of the finances is to be kept under the control of Congress rather than under the executive. Various statutes confer upon the President specific authority to issue instructions and orders to the heads of departments. But aside from specific grants of authority, the President has also a certain power of direction which is inherent in the nature of his office and for which he is not obliged to show statutory authority.
The Ordinance Power.
An important power belonging to the chief executive of most states is that which is commonly known as the ordinance power le pouuoir re’glementaire of the French a sort of subsidiary power of legislation which takes the form of decrees, orders, or regulations. (French réglements German, Verordnungen). This power is frequently expressly conferred on a king or on a president of republic by the constitution.
In the United States the power is derived from the clause of the federal constitution which charges the President with the execution of the laws and in France from a somewhat similar clause which imposes upon him the duty of overseeing (surveiller) and insuring the execution of the laws (Art. 3, Const. Law of Feb..25, 1875). In the absence of express authority in the constitution it may be deduced from the very nature of the office as a necessary and inherent power.
In monarchical states it is considered a part of the royal prerogative in the absence of constitution or statutory prohibitions or restrictions. Where the power is expressly conferred by the constitution it is usually qualified by the condition that ordinances promulgated by the executive must not modify or suspend the laws (statutes), or that they must be such only as are necessary or appr0priate to the execution of the laws, or that their purpose must be merely to supply the details in the application of the laws.
Occasionally constitutions Confer on the executive an extraordinary power of ordinance making in times of emergency. Thus the constitution of Denmark empowers the king in such cases, if the legislature is not in session, to issue laws of temporary application subject to the restriction that they must not be contrary to the constitution and must be laid before the legislature at the next session.
Upon the outbreak of the Eur0pean War in 1914 a very large ordinance power was conferred upon the executives in most of the belligerent countries. Thus by the Defense of the Realm Act of Nov. 27, 1914, the British king (in council) was given power, “during the continuance of the present war to issue regulations for securing the public safety and the defense of the realm” an authority which was practically unlimited. In pursuance of this delegation of power an elaborate series of regulations were put into effect which virtually placed the country under a regime of martial law.
Kinds of Ordinances.
From the point of view of their nature or purpose ordinances may be variously classified. Thus the German jurists distinguish between “law” ordinances (Rechtsverordnungen) and “administrative” ordinances (Verzualtungsverordnungen). The effect of the former is to create new law or to modify the existing law They are essentially a Species of executive legislation and are designated by the Germans as material law in contradistinction to formal law.
The “administrative” ordinances are orders or regulations addressed to administrative authorities and contain rules governing the conduct or functioning of the administrative services. They do not, therefore, bind or affect directly private citizens. In Prussia, at least under the old constitution, the latter type of ordinances could be issued by the proper administrative authority without the necessity of legislative authorization, but the former, after 1850 When Prussia acquired a constitution, required legislative authorization, which was often and generously granted.
Ordinances may be further classified in a threefold division: First those which are, in their nature and effect, laws promulgated by the chief executive in pursuance of a general power of legislation conferred upon him by statute. Such are the decrees issued by the president of the French republic for the government of the French colonies. As a consequence of this authority he and not the French parliament is the legislative organ for the colonies.
Second, ordinances issued by the executive in pursuance of legislative authority to regulate specific matters. Such delegations of legislative authority to the president are common in France. Thus an act of parliament authorizes the president to determine by decree the regime of non navigable waters, to regulate the conditions of appointment and promotion of judges, to modify or suspend existing laws relating to taxes, etc.
Third, ordinances issued upon “invitation” of parliament for the purpose of completing and regulating the details of execution of a particular law. This form of ordinance is also very common in France. There statutes are ordinarily brief, contain only the essential ideas of the legislature, and leave the details to be supplied by ordinance.
The Ordinance Power in France
Today nearly every important act of the French parliament concludes with the familiar clause an ordinance of public administration shall determine the measures proper for assuring the execution of the present law. The ordinances issued in pursuance of this injunction complete the law they supply the details without which it would be unenforceable. The Germans call them supplementary ordinances (Ergoinzungsverordnungen).
They constitute, says Duguit, a sort of “prolongation” of the law which they supplement . Duguit maintains, properly it would seem, that ordinances such as these are materially and intrinsically veritable acts of legislation, though not such in form.
In consequence of this practice, especially in recent years, it has come to pass that a large and important part of French legislation is in the form of ordinances, in theory promulgated by the president, in fact by the ministers. Naturally complaints have not been lacking that they are sometimes contrary to the existing statutes. But until 1907 their legality could not be attacked before the Council of State (the supreme administrative court of France) because the Council, considering them as a species of delegated legislation and therefore assimilate to acts of parliament, held that it had no more jurisdiction to declare them null and void than it did to pronounce a statute of parliament illegal.
However, in 1907 ,the Council of State abandoned its traditional view in this respect, took jurisdiction of a case involving the validity of such an ordinance, and pronounced it null and void as being in excess of the authority of the president who issued it. The result of this epoch making decision is that the ordinance power of the French president, as of every administrative authority, is now subject to judicial control, as in the United States.
The Ordinance Power in the United States.
In the United States the ordinance power of the executive is less important because of the practice of Congress and the state legislatures of framing their statutes in more detail, thus obviating the necessity of supple meting them by means of executive regulation in order to render them enforceable. Nevertheless, the ordinance power of the President is very considerable and few people are aware of the extent to which it is used or of the quantity of subsidiary legislation in the form of executive orders and regulations actually in force of the character of this administrative legislation.
Professor Fairlie says: “There are indeed, besides presidential proclamations and executive orders, many elaborate systems of executive regulations governing the transaction of business in each of the executive departments, and in the various services both Within and without these departments.”
These include organized codes of regulations for the army, the navy, the postal service, the consular service, the customs service, the internal revenue service, the coast guard, the patent office, the pension office, the land office, the Indian service, the steamboat inspection service, the immigration and the naturalization bureaus, and the civil service rules.
In addition to long established types of regulations, there have been many new series of regulations issued in recent years both before the World War and more recently by the new war agencies, such as Food and Fuel Administration, the War Indus tries Board, and the War Trade Board. By acts of Congress in 1933 and 1934 President F. D. Roosevelt was given extensive powers of a legislative character.
In addition to this volume of subordinate legislation in the form of presidential proclamations, orders, and regulations, there is a vast body of more specialized rules, orders, and instructions issued by the various departments, bureaus, and commissions.
The Ordinance Power in Great Britain.
In Great Britain the king no longer has any inherent power of legislation for completing the laws by means of proclamations or ordinances as he once had, but he may issue regulations addressed to the servants of the crown for the conduct of public affairs. Moreover, power to make ordinances which have the force of law and which are binding a& such upon the whole community is frequently conferred upon the crown by statute, especially in respect to such matters as education, the public health, etc.
These ordinances are known as “statutory rules and orders,” and they are published every year in a volume similar to that containing the statutes of parliament. The practice of delegating the power of subsidiary legislation of this kind to the crown has steadily increased in recent years until its quantity and importance has become very great.
The Military Power of the Executive.
The military power of the executive usually includes the supreme command of the army and navy and other military forces of the state. In some monarchical countries like Great Britain it embraces also the right to declare war although, since it belongs to parliament to provide the means of prosecuting the war, parliamentary consent is in effect necessary.
In the United States, however, this latter authority is vested in Congress, though it is possible for the executive in his conduct of the foreign relations of the country to bring about a condition of affairs which will make war a practical necessity. In the German Empire under the old constitution the emperor could declare offensive war only with the consent of the Bundesrath.
Under the new constitution the power to declare war and make peace rests with parliament. In Czechoslovakia a, three fifths majority of the legislature is necessary to a declaration of war. In France the assent of both chambers is necessary. No! where, even where the executive may initiate hostilities, can extensive war be waged for any length of time without the approval of the legislature, since it and not the executive controls the means for the prosecution of war.
Nearly everywhere the right of the executive to dispose of the forces, plan and direct the campaigns, select the commanders, establish blockades, and, in general, do whatever in his judgment may be necessary or expedient to destroy the power of the enemy and prosecute the war to a successful conclusion, is recognized.
Moreover, it belongs to the President of the United States, in particular, to occupy, hold, and govern temporarily those portions of the enemy’s country which have come under the control of the armed forces, and, to this end, he may displace the established civil authority and institute military government, and invest it with such powers as he may choose to confer upon it.
Finally, during the existence of the war it belongs to the executive to suspend the ordinary civil guarantees which the constitution has established for the protection of the individual in time of peace.
As commander of the armed forces he may establish martial law, suspend the writ of habeas corpus, declare certain acts ordinarily innocent to be military offenses and order the arrest of persons committing them, suppress newspapers, and the like. Many constitutions authorize the president, in times of emergency or grave crises when war does not exist, to declare martial law the “state of siege” as it is called in Europe and to suspend temporarily the constitutional rights of the citizens.
War always brings a vast addition to the power of the executive and enables him to assume something of the character of a dictator. Nevertheless, the experience of the past and the testimony of political thinkers almost without exception have concurred in defending the practice of concentrating the military power in the hands of a single person.
In the military organization of the state dualism is out of place of all the cares or concerns of government, the direction of war said Alexander Hamilton:
“most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength and the power of directing and employing the common strength form a useful and essential part in the definition of the executive authority.”
The command and application of the public force, said Chancellor Kent:
“to execute the laws, to maintain peace, and to resist foreign invasion, are powers so obviously of an executive nature and require the exercise of qualities so peculiarly adapted to this department, that they have always been exclusively appropriate to it in every well organized government on earth.”
The Pardoning Power
Finally, the right of pardon or clemency (the droit de grace of the French) is by common consent regarded as a natural and necessary part of the executive power. Beccaria stood almost alone among the political writers of his time in condemning the practice of granting pardons to those whom the courts have convicted of crime.
Montesquieu, while considering it to be one of the most useful and necessary attributes of monarchs, did not regard it as having any place in republics. Some English lawyers of high standing, observed Chancellor Kent, have strangely concluded that it cannot exist in a republic because nothing higher is acknowledged than the magistrate. But, as Kent very properly added,
It may be fairly insisted that the power may exist with greater safety in free states than in any other forms of government, because abuses of the discretion unavoidably confided to the magistrate in granting pardons are better guarded against by the sense of responsibility under which he acts.
Considerations of justice and humanity require that the principle of clemency shall have a place in the administration of justice. No system for the administration of justice is or can be free from imperfections. It is impossible, says Esmein, that there should not occur at times in the administration of justice judicial errors which would result in the condemnation of innocent persons.
One purpose of the pardon is to correct such errors It is impossible also, as Esmein remarks, that the criminal law in fixing the punishment of crime should foresee all the extenuating circumstances that may have attended the commission of a particular offense.
The power of pardon then being required by considerations of humanity and sound public policy, the same considerations conspire, said Hamilton, to dictate that this benign prerogative should be fettered or embarrassed as little as possible.
In China (Const. 1928, Art. 87), the president may grant pardons only with the approval of the supreme court. In some of the states of the American Union the executive in the exercise of this power is associated with an advisory board which is charged with investigating applications for clemency and making recommendations to the executive. Many constitutions except the offense of impeachment from the pardoning power of the executive, and a few make the same exception in the case of treason.
Impeachment is a form of trial usually conducted by the legislature for crimes committed by high officials, and the purpose of the exception referred to is to remove the temptation of the executive to shield public officials, especially those of his own selection, who might be his instruments or his partners in crime. Treason being a crime leveled against the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a lightness in referring the expediency of an act of mercy towards him to the judgment of the legislature.
With these exceptions the power of pardon is general and unqualified. So far as the President of the United States is concerned, it may be exercised before as well as after conviction and it usually embraces the remission of fines and forfeitures and the granting of reprieves and commutations. It also includes the right of amnesty, or the right of absolving by general proclamation large numbers of persons from the consequences of their acts a power which considerations of humanity and public policy make a necessity in times of internal disturbance and insurrection.
Miscellaneous Powers of the Chief Executive.
Such in summary are the powers commonly conferred upon or exercised by the chief executive leaving aside for the moment those which relate to legislation to be discussed in the next section. In addition to these, certain miscellaneous powers are conferred upon the chief executive by the constitutions of some states Thus the constitution of Austria empowers the president to create and confer professional titles, to legitimize illegitimate children, and it adds that other powers may be conferred upon him by law.
That of Czechoslovakia authorizes the president to grant donations and pensions in special Cases upon recommendation of the ministry , that of Finland authorizes the president to naturalize aliens and to release Finns from their nationality while that of Chile authorizes the president to grant pensions and retirement allowances to widows and to orphans in accordance with the laws, and to grant juridical personality to private corporations, and to cancel the same and to approve or disapprove their statutes.
By a sort of blanket clause the constitution of Chile charges the president with the administration and government of the state and declares that his authority extends to everything which has as its purpose the preservation of internal public, order and external security, in accordance with the constitution and the laws. The long enumeration of his specific powers in the constitution does not therefore exhaust his authority.
RELATION OF THE EXECUTIVE TO THE LEGISLATIVE POWER
Power of the Executive in Respect to Legislation.
” The relation of the supreme executive to the legislative organ,”
said Sidgwick: “is one of the knottiest points in constitutional construction,” and it is the nature of this relationship which serves to distinguish the two most important forms of government the cabinet system and the presidential system from each other. In practice there is no state in Which the sphere of the executive power is totally separate from and independent of that of the legislature, not even those in which the presidential system of government is found.
Everywhere the executive is given a certain power of control over the work of the legislature and of participation directly or indirectly in the function of legislation. Conversely, in all states the chief executive is subject in certain respects to the control of the legislature through its power to create offices and prescribe their duties, establish government services, appropriate money for their maintenance, and to impose duties or obligations upon him.
The control of the executive over the legislature consists in the pointer to summon it and to Open, adjourn, and prorogue its sessions and, in countries having the cabinet system of government, to dissolve it and to order new elections.
In republican states the power of the executive to convene the legislature is usually limited to the calling of extraordinary sessions in times of emergency for the consideration of special matters which need immediate attention. In most such states either the constitution or the statutes prescribe the date for the assembling of the regular, sessions, of the legislature, and no call of the executive is necessary.
In states having the cabinet form of government, however, the legislature usually convenes only upon a call of the executive, though in most cases the executive, which, of course, means the cabinet, is required to summon it at certain stated intervals. In some states (e.g., Czechoslovakia) he is required to summon it upon demand of a certain number of its members.
In the former case the legislature assembles automatically, as it were, and opens its proceedings without the participation of the executive in the latter, the formality of opening the session is a function of the executive or his representative, who performs the duty with more or less ceremony, such as the reading of a speech from the throne or the reading by the prime minister of a ministerial declaration outlining the policy of the cabinet, if it happens, to be a new one.
In the European monarchical countries the right of the executive to prorogue the sittings of the legislature, that is, to suspend the session to a certain date in the future, is generally provided for by constitutional provision, though in republics such a power is rarely recognized as belonging to the executive. In countries having the cabinet system of government the executive is usually invested also with the power of adjourning the legislature subject to certain limitations.
In states having the presidential system of government the power of the executive is usually limited to adjourning the legislature only when the two chambers are unable to agree upon a time of adjournment. In all states having the cabinet form of government the executive is vested with the power of dissolving the legislature, or rather the popular chamber, that is, of terminating the mandates of the members and thus putting an end to the legal existence of the chamber. But generally the exercise of this power is subject to certain limitations. With a few unimportant exceptions it can be done only upon the advice of a responsible ministry, and in most instances the dissolution must be followed within a certain period by new elections and the convening of the new parliament.
Theoretically, the British executive is not subject to any limitations regarding the ordering of new elections and the summoning of the new parliament, but practically the conditions of the British parliamentary system make it a necessity.
In the republics of America where the presidential system of government prevails, generally the right of the executive to dis solve the legislature or either chamber of it is not recognized. There the mandates of members of the legislature are terminated only by the legal expiration of the terms for which they are chosen, or by resignation or expulsion.
The more direct participation of the executive in legislation consists in furnishing the legislature with information concerning the legislative needs of the country in recommending measures for its consideration sometimes, though rarely, in the initiation of legislative projects in approving or disapproving its acts and in promulgating those which are approved.
The wisdom of requiring the executive to furnish the legislature with information concerning the state of public affairs and of recommending legislation to meet the needs and conditions of the public service rests on the obvious fact that the executive, from the very nature of his office, must have more extensive sources of information in regard to domestic and foreign affairs than the legislature can be expected to possess.
The true workings of the laws, observed Judge Story, the defects in the nature or arrangements of the general systems of trade, finance, and justice, and of the military, naval, and civil establishments are more readily seen and are more constantly under the View of the executive than they can possibly be of any other department.
There is great wisdom, therefore, in not merely allowing but in requiring the President to lay before Congress all facts and information which may assist their deliberations, and enabling him at once to point out the evil and to suggest the remedy.
The Executive Veto.
The most important power of the executive in connection with legislation arises from the almost universal practice of making his approval essential to the validity of the acts of the legislature. This power of the executive to disapprove acts of the legislature is popularly known as the veto of or, as it was called by the writers of The Federalist, the president’s “qualified negative.”
In a few states, like Great Britain, the veto power is absolute and cannot be overcome by any vote Of the legislature, however large. There, however, owing to the thorough going development which the cabinet system has undergone, the power of disapproval has necessarily fallen into desuetude and will probably not be exercised again unless in very exceptional cases.
In the great majority of constitutions the veto power of the executive is qualified, that is to say, it may be overridden by the legislature, provided an extraordinary majority of the members, usually two thirds, concur in re passing the measure disapproved.
In France, the veto of the executive is merely suspension in character, and can be exercised simply to compel reconsideration by the legislature of measures passed by it and disapproved by the president. It is, says Esmein a preservative against possible abuses and dangers of the parliamentary initiative.
A re passage of the vetoed measure by an ordinary majority of the members makes it a valid law, notwithstanding the interposition Of the executive veto. In fact the suspension veto has never been exercised in France a single time since the establishment of the Third Republic and it may, therefore, be regarded as a dead letter. Since the cabinet system of government exists in France, there is not likely to be any occasion for the exercise by the president of the veto power.
The principal purposes of the veto are to prevent hasty and ill considered action by the legislature, and to furnish the executive with a means of defense against the encroachments of the legislature upon his constitutional powers. Hamilton pointed out that there was a strong tendency a tendency “almost irresistible” in republican governments for the legislative authority to absorb every other.
The representatives of the people,he observed, are sometimes inclined to fancy that they are the people themselves and to assert an imperious control over the other departments. As they commonly have the people on their side they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the constitution.
A mere parchment delineation of the boundaries of the three departments, Hamilton went on to remark, is insufficient, and hence each must be furnished with constitutional arms for its own defense against the depredations of the other. Without the power of veto the executive might be gradually stripped of his authority and even annihilated by the successive resolutions of the legislature. The possibility of this danger is all the greater in a country like the United States, where the executive has not the right of adjournment of prorogation, or of dissolution.
The veto power, continued Hamilton, not only serves as a “shield to the executive,” but it furnishes an additional security against the enactment of unwise legislation and establishes a salutary check upon the evil effects of faction, precipitant, and want of consideration. Where, however, the constitutional rights of the executive are not involved, in short, where the difference of opinion between the executive and the legislature relates to the wisdom or expediency of the measure, the veto power should be used sparingly. A wise executive will be inclined not to set his own judgment against that of the legislature, but will yield to its views of public policy.
To the argument sometimes advanced that the veto power of the executive may be employed to prevent the enactment of good laws as well as bad ones, it may be replied that the power cannot be effectually exercised if an extraordinary majority of the legislature are favorably disposed toward the law vetoed. Such an argument, said Hamilton, will have little weight with those who have a proper appreciation of the mischiefs of that inconstancy and mutability in the laws which form the greater blemish in the character and genius of our governments. We should rather look with favor upon every device intended to restrain the evils of our legislation a evils which since Hamilton’s day have certainly grown to be of the first magnitude.
Where the veto power is qualified, that is, where the objection of the executive may be overcome by the legislature, a larger number than a bare majority concurring, the means is provided for enabling the executive to point out the defects of legislation submitted for his approval and of compelling a reconsideration by the legislature of its former action. In short, when exercised, it is in effect an appeal to the legislature itself and merely asks a revision of its own judgment. Especially is this true in the United States, where the executive is obliged to state the reasons for his objections and where the legislature is required to reconsider measures vetoed.
The Immunity of the Executive from Judicial Process.
It may be laid down as a preposition of almost universal application that the chief executive cannot be subjected to control of the ordinary courts either for criminal or for political policies.
In the United States the President is responsible to but one body for his criminal acts, namely, the Senate organized as a court of impeachment a court whose jurisdiction over the President is limited to removing him from office and disqualifying him from again holding public office. He cannot be arrested or in any manner restrained of his liberty or interfered with by the order of any court or compelled to obey any judicial process or to give evidence either by personal testimony or deposition in any court.
The courts of the United States have uniformly declined to issue processes against him or to restrain him by injunction or in any way control his discretionary authority. The immunity of the President, however, from responsibility to the courts for his criminal acts ceases with the expiration of his term of office. As soon as he becomes a private citizen, the courts may take jurisdiction of his person and compel him to answer for his misconduct.
Moreover, the courts have no scruples against inquiring into the legality of the orders and regulations issued by him and of declaring them null and void when in their Opinion they are not authorized by the constitution or laws. Furthermore, the immunity enjoyed by the chief executive does not belong to his subordinates, not even the members of his cabinet, Over them the courts freely exercise control, and the orders of the President are no defense for violations of the constitution and laws by them.
As the President acts for the most part through subordinates, the courts are thus enabled to restrain him from administering the government in violation of the constitution and the laws.
The exemption of the executive from the control of the courts has been criticized by some doctrinaires as a survival of the monarchical doctrine that the king can do no wrong, and hence as being dangerous and inconsistent with the theories of republican government. Experience and reason, however, teach that the principle rests upon considerations of political necessity and sound public policy.
It is impossible to subject the supreme head of the government to the control of the courts without impairing his independence, interfering with the discharge of his high duties, and destroying the unity of the executive power. To attempt it would lead to useless conflicts between the, executive and the judiciary, since, controlling as he does the machinery of execution, he might successfully resist the execution of judicial process directed against him or pardon himself of any punishment which a court might attempt to inflict upon him.
The experience of the past shows that the dangers prophesied from the personal independence of the executive are mostly imaginary, that they are, indeed, far less than those which would follow from subjecting him to the constant interference of the courts and exposing the people to the dangers of anarchy.
Methods by Which the President May Be Removed from Office in Other Countries-
In most other republics the immunity of the president and the procedure by which he may be removed from office are similar in principle to those in the United States. In France he may be impeached by the Chamber of Deputies, apparently for the crime of high treason only, and tried by the Senate constituted as a high court of justice. But singularly enough neither the constitution nor the statutes of France contain any definition of the crime of high treason or prescribe the punishment therefor.
Does it belong to the Senate in these circumstances to determine whether the act for which the president has been impeached is high treason and to fix the punishment therefore in case it is so held? It is a principle of French criminal law expressly affirmed by the Declaration of Rights in 1789 , that no one may be punished except in virtue of a law that, in short, where there is no law, there is no penalty.
No case has arisen in France involving the application of the constitutional provision relative to the trial of the president for treason. In Chile the president may be impeached by the chamber of deputies during his term and for six months after its expiration for acts by which the honor or security of the state may be gravely compromised or the constitution or laws openly infringed, and tried before the senate, which may by a two thirds majority pronounce him guilty, in which case he is automatically removed from office.
The president of Brazil may be impeached by the chamber of deputies for both ordinary and official crimes for the former he is tried before the federal supreme court for the latter, before the senate. The president of China is declared to be immune from criminal prosecution while in office, except that he may be impeached for treason by the house of representatives (by a two thirds vote) and tried by the senate.
If convicted by a two thirds majority, he shall be expelled from office and may be further prosecuted before the supreme court. The president of Austria may be impeached for violation of the federal constitution, by the two chambers in joint assembly, and tried before the supreme constitutional court.
In case of conviction he forfeits his office and may in addition be temporarily deprived of his political rights.The president of Czechoslovakia may be impeached (offenses not specified) by the chamber of deputies by a two thirds majority and tried before the senate. The president of Poland, may be impeached by the lower chamber (by a three fifths majority) for betraying the country, violating the constitution, and for criminal offenses, in which cases he is tried before the supreme court.
The new constitution of Germany declares that the president shall not be subject to criminal prosecution (for ordinary crimes) without the consent of the Reichstag, but he may be impeached by the latter body (by a two thirds majority) and tried before the supreme judicial court for wrongful violation of the constitution or laws of the Reich? Nothing is said, however, in regard to the punishment which the court may inflict in case he is found guilty. It was probably the intention of the authors of the constitution that this should be regulated by statute.
Existing Methods Evaluated.-
Such are the usual methods by which the chief executives of republican states may be removed from office. The general principle IS the same everywhere, except that the body which hears the charges and renders the decision is in some states the upper chamber of the legislature while in others it is the supreme court. Each has its advantages and disadvantages. Trial by a legislative chamber means trial by a political assembly, and the requirement of an extraordinary vote to convict does not necessarily insure the accused against conviction for political reasons. Trial by the supreme court affords greater assurance that the decision will be unaffected by political considerations, but it has the disadvantage of throwing upon the court the doubtful task of deciding What may in fact be a political rather than a strictly judicial question. On the whole, the latter method would seem to be preferable.
Popular Recall of the German President.
In one respect the situation of the president of the German republic differs from that of all other republican chiefs of state. He may be recalled before the expiration of his term by a vote of the people. By a two thirds vote of the Reichstag the question of his removal may be submitted to a popular referendum, and when such a resolution has been passed, the president is automatically suspended from office pending the verdict of the electorate.
The president may prevent the Reichstag from taking such action, through his power of dissolution, but in that case he would be under the necessity of obtaining the counter signature of the chancellor to the decree of dissolution, and since the chancellor is responsible to the Reichstag, it is doubtful Whether it could be obtained.
The Reichstag, however, is deterred from taking action looking to the recall of the president, unless it is reasonably certain that its proposal for his recall will be approved by the electorate, since by the terms of the constitution a negative vote will have the effect of automatically dissolving the Reichstag. The effect of a popular verdict favorable to the president also amounts to a reelection of him, presumably for a full term of seven years.
Power of the French Parliament to Force the Resignation of the President-
The situation of the French president, in practice, is still more precarious in respect to his tenure. Although, by the constitution he is elected for a term of seven years and can be removed only by impeachment and conviction for treason by the Senate, it is now apparently established by precedent that he may be forced by the hostile attitude of parliament to resign before i the expiration of his term.
Grevys resignation was demanded by parliament and he complied with the demand. More recently still Millerand was compelled to do likewise by the refusal of parliament to give its confidence to any ministry appointed by him, with the avowed purpose of compelling him to resign. He and his supporters vigorously protested that the action of parliament in thus compelling him to abandon his office before the legal expiration of his term was a violation of the constitution, but the protest was without effect.
TYPES OF REPUBLICAN EXECUTIVES
The Presidency of the United States. If we leave aside the Swiss executives, which is sui generis because of its collegial organization and its peculiar relation to the legislature, the existing executives of republican states fall into three fairly well differentiated classes, American, French, and German. The American type includes the presidency and governorship of the United States and the presidencies of the Latin American states, which have imitated the example of the United States.
The characteristic features of the office in these countries is, as already pointed out, the chief executive almost complete independence of the legislature, in respect to his mode of election, his tenure, the sources of his power, and the manner in which he exercises the authority conferred upon him by the constitution or which, as is sometimes contended, may be regarded as inherent the nature of his office.
His position is one of almost absolute irresponsibility to the legislature in respect to his political acts and policies, and, as pointed out in an earlier chapter, his responsibility to the electorate which chooses him is one which is practically unenforceable. Unlike the presidents of cabinet governed republics, the presidents of the American . republics (except of course the few like Chile, which have the cabinet system) actually exercise, subject to no direct control by the legislature, the powers which the constitution confers upon them and the same is true of the governors of states in the United States.
Lord Bryce once remarked that the presidency of the United States was generally recognized to be the greatest political office in the world. The office has often been characterized as monarchical in character because of the actual irresponsibility of the incumbent either to the people or their legislative representatives.
The late President Wilson pointed out that in the hands of a strong man, unafraid of responsibility and having the gift of leadership, the power and influence of the office are nearly unlimited. He himself attributed to the President a triple role first, that of executive or administrative head of the government-the legal or constitutional role second, that of leader of his political party and third, the guide and leader of the nation in legislation. As leader of his party, according to Mr. Wilson, it belongs to the President to exercise a dominant role in the formulation of the party program, and since he alone of those who represent the country is chosen by it as a whole, he alone can be properly regarded as the spokesman of the country it belongs to him to assume the leadership in bringing about the enactment into laws of the measures in favor of which the nation has pronounced.
To this end he is not limited to making perfunctory recommendations to congress and occasionally vetoing a bill which he disapproves, but may intervene personally with leading members by argument and persuasion, refuse to accept the recommendations of recalcitrant or hostile members for appointments, may make direct appeals to public opinion and in other ways employ pressure and use the whip hand to cause Congress to give effect to the policies and measures which he advocates. Mr. Wilson and some other Presidents before him were able to carry out this theory of executive leadership with some success, but it has naturally found vigorous opponents, and in practice most Presidents have acted upon the negative principle that the leadership in legislation properly belongs to Congress and not to the President.
The Presidency of the French Republic.-
The presidential office in France represents the antithesis of the type described above. The French constitution is most generous in the extent of the powers which it confers upon the president. With the exception 3of the veto it gives him virtually all the powers that are conferred by the constitution of the United States,upon the American president and in addition other powers which commonly belong to kings, such as the power to convoke, prorogue, and adjourn the parliament, to dissolve the Chamber of Deputies (with the consent of the Senate), to introduce bills in parliament, to appoint commissaries to appear therein to give information and explanations, to create new offices, and to make appropriations of money from the treasury during the recess of parliament to meet unforeseen emergencies, etc.
The national assembly which framed the constitution apparently believed that it was creating an office of great power, one which would be independent of parliament, and for this very reason it was attacked by the republicans as inconsistent with true republicanism and even dangerous.
It turned out, however, that the fears of the republicans were unnecessary. After enumerating the powers of the president the constitution proceeded to paralyze him to imprison him in an iron cage, as some French writers have characterized it by the addition of a brief clause which states that every act of the president must be countersigned by a minister. All official acts by the president~appointments, dismissals, introduction of bills in parliament and the others ware in the form of decrees each of which must be signed by a minister who is responsible, not to the president but to the parliament, for the consequence of his signature.
Thus the president was placed under the guardianship of the ministers who are in turn dependent upon parliament. As a result, he can perform no official act Which in the opinion of the ministers parliament would not approve. He is, therefore, a dependency of parliament and it is parliament, not the president, who really governs.
Commentators on the French constitution are accustomed to say that the only power conferred by the constitution upon him which he can exercise freely and without the necessity of obtaining the consent of a minister is to preside over national festivals. To this, Casimir-Perier, who resigned the office in a Spirit of some disgust after having occupied it for only six months, added the power of the president to send his resignation to parliament. The president, he said, was little more than an automaton and the record of his official acts consists of nothing but an autograph collection.
As stated above, the president is not only in large degree a figurehead, but it is now established by precedent that the parliament may whenever it sees fit compel him to resign. Aside from the conditions of the parliamentary system, which necessarily reduce the role of the president to a minimum, the mediocre, negative character of many of the men who have occupied the office has contributed to its enfeeblement. When Gravy became president after the resignation of McMahon in 1879, he expressed the View that the office was intended to afford an honorable retirement for weary veterans of long political struggles, and that the duty of the president was to give advice, to efface himself, and not to act.
His own course as president was strictly in accord with that conception. Some of his successors, notably Loubet and Fallieres, imitated his example. The former, at the first meeting of his cabinet, outlined the impersonal negative role which he actually played. “I shall advise you,” he said, ”and at times criticize, but there will be no Elysée policy.” Several presidents with strong personalities have wished to exercise independently the powers which the constitution confers upon them and to play a more active role in the government of the country.
Casimir~ Perier even announced at the time of his election his intention “not to neglect” the exercise of these powers, but he found it impossible in View of the attitude which the parliament then took and has always taken in regard to its own right to govern. He resigned six months after his election and years afterwards (1905) in a letter to the Temps he described the president as an automaton without power, condemned to play the undignified role of signing whatever documents the ministers laid before him. Poincare entertained the same View of the presidential office and he too desired to play a more important part in the government of the country, and it must be admitted that in the field of foreign relations at least he achieved some success.
When Millerand became president in 1920, he made known in no uncertain and not altogether tactful language his intention to do what he could to have the actual powers of the French president extended by constitutional amendment if necessary so as to enable him to play somewhat the same role as the President of the United States does. He also intimated that his ministers, although responsible to parliament, would be expected to accept his own views of public policy.
These utterances, which were regarded as being in violation of the constitution, coupled with his taking sides with the Nationalist party in the parliamentary elections of 1924, which also was regarded as being in conflict with the spirit of the constitution, were the chief reasons which caused parliament to force his resignation in 1924.
Doumergue, his successor, announced that his own policy would be that of an impartial neutral and that he would bow to the will of parliament. Like Grevy, Loubet, and Fallieres, he was little more than a ceremonial figurehead. Considering that parliament has refused to regard the president as a co equal collaborator, has insisted upon controlling him, and has compelled those who have attempted to exercise the powers which the constitution gives them, to resign, it is hard to see how the president of the French republic can ever be more than what he has often been described by French writers a prisoner in an iron cage, a mute idol in a pagoda, a mere dummy, a useless symbol to please the people, the emaciated shadow of a roi faineant, etc.
The question has often been discussed in France as to the necessity or utility of such an choice. For a long time its abolition was demanded by the Radical and Socialist parties, one of its leading advocates being Clemenceau (who, however, in 1921 was a leading and active candidate for the office).
There may be some excuse, they argued, for a hereditary figurehead in a monarchy, but there is no place for an elective one in a republic. Aside from the selection of the prime minister when a new cabinet is to be appointed function which might very well be discharged by the parliament itself or by a committee of parliament, the actual role of the president is ceremonial and decorative: presiding on the occasion of national fetes, attending inaugurations of various kinds, including the races and the annual military review at Longchamps, Opening expositions, conferring decorations awarding the grand prize, entertaining distinguished personages, and the like.
Nevertheless, the great majority of Frenclc men believe that a chief of state of some kind, an exalted functionary to represent the state in its international relations, to receive diplomatic representatives from foreign states, and to personify the majesty of the republic, is desirable. Such a person, moreover, if he is esteemed and respected abroad, is capable Of exerting a valuable influence in the conduct of the foreign relations of the country, especially in concluding alliances and understandings with the heads of other states, as the examples of Faure, Carnot, and Poincaré showed. Parliament would doubtless tolerate positive action of the president in this field if it were not partisan or unduly open.
Finally, the presidency has its value as a “magistracy of influence,” as Barthelemy characterizes it. Prevost-Paradol once described the president as a surveillance of the state. If he is a strong, popularly esteemed, impartial leader, he will be able to exert a moral authority and a moderating influence in a country where party passions are strong, which will be wholesome and valuable.
The Presidency of the, German Republic.-
The presidential office in Germany, from 1919 to 1934, differed from the American and French models. The president of the German republic was neither a powerful functionary such as the president of the United States nor a figurehead like the president of France. He occupied a position and played a role of an intermediate character somewhere between the two, although approximating more nearly that of France, for the reason that Germany, like France, had the cabinet system of government, which necessarily limited the role of the titular head of the state.
Among the framers of the German constitution the Independent Socialists were opposed to the creation of the office of president on the ground that if the titular of the office were vested with the actual exercise of power as in the United States, Germany would be no better off than she was under the monarchy. On the other hand, if a genuine cabinet system were established under which the government would be carried on by ministers responsible to parliament, the president would be limited to playing a purely ornamental role, which in the opinion of the Independents was not worth the cost.
The Prussian, Badenese, and Bavarian republics had decided to give up the luxury of a titular chief executive and to rely upon ministries, and the Reich should follow their example. A large majority of the members of the national assembly, however, were in favor of a president of some sort. They might, therefore, choose between the three existing types the Swiss, the American, and the French. But not one of these commended itself to the assembly the Swiss type because it was collegial in organization, the American type because it was regarded as autocratic and dangerous, the French because it did not comport with the German conception of a strong executive power.
The Germans had no taste for figureheads. Germany, it was argued, must have a strong president who not only would worthily represent and personify the majesty of the state, but also would act as a counterbalance to a parliament which might otherwise become omnipotent and dangerous. The office finally agreed on was a compound which embodied certain features of both the American and the French conceptions.
The American principle that the executive organ should be coordinate with the legislative organ was adopted, and this involved the rejection of the French principle of the election of the president by the legislature, which, as French experience had demonstrated, reduced the president to the position of a dependency of the legislature.
On the other hand, the French principle of ministerial responsibility to parliament, coupled with the political irresponsibility of the president, was introduced. But to insure that the president would not be reduced to the role of a figurehead, his position as head of the state was strengthened by provision for his election by the people as in the United States.
Thus, while the Germans preferred a system of parliamentary government, they preferred a parliamentarism whose mechanism Was controlled not by the legislature but by the people. They also preferred a system in which the ministry alone, and not the president also, as is virtually the case in France, should be responsible to the legislature.
More logical, democratically, than the United States, they also provided for the popular recall of the president. Much larger powers were also conferred upon him, especially in respect to legislation, than are conferred upon the president of France. Thus, although he was not given the power of veto such as belongs to the President of the United States, he might, if he disapproved a bill passed by the Reichstag, submit it to a popular referendum.
He was not, therefore, obliged as the president of France is to promulgate it when it did not meet his approval. Likewise, in case there was a disagreement between the two chambers over a bill, the president could submit,the issue to a referendum. Article 48 gave him power to declare a state of siege, suspend various constitutional rights of the citizen, and to govern virtually as a dictator, a power which was actually exercised more than once, whereas in France a state of siege can be declared only by parliament.
The president was also given the power to dissolve the lower chamber whereas in France this power can be exercised by the president only with the consent of the senate. It is true that the president’s acts required for their validity the countersignature of chancellor or some other minister, who was himself responsible to the Reichstag a requirement which so far as it relates to the power of dissolution was vigorously opposed by the parties of the Right in the National Assembly, on the ground, they argued, that the president would never be able to obtain the counter signature of a minister to the dissolution of a chamber of which he was himself a member and to which he was responsible.
The right of the president in case of a Conflict between him and the chamber to dissolve the chamber and appeal to the people ought not, they said, be dependent upon the will of the chamber itself. Preuss, the principal author of the constitution, however, insisted upon the necessity of the countersignature. He argued that if (the president: and the ministry were in agreement the counter signature could be easily obtained ii van the ministry were opposed to dissolution or a referendum, it would resign and the president would find a new chancellor who would give his signature.
Notwithstanding the necessity which the president was under of obtaining ministerial approval of his acts, as in France, his dependence upon parliament was considerably less than is that of the French president, and it was possible for him to exercise his constitutional powers with greater freedom from parliamentary control.
It was clearly the intention of the authors of the constitution that the Reichstag should be given full political control over the government without meddling with the details of administration, as the French parliament so often does, and in fact a proposal made in the national assembly to give the Reichstag power to issue binding directions to the government was rejected. It was not possible for the parliament to reduce him to subjection and compel him to resign as the French parliament may do.
If there was an irreconcilable conflict between him and the parliament, he could submit the conflict to the people for decision, and if the parliament desired his resignation, its proposal for his recall, which could be made only by a two-thirds majority, had to be submitted to the people for their decision.
In this respect his independence of parliamentary control was much greater than is that of the French president, who can be forced to resign by the vote of a simple majority of the Chamber of Deputies. As already stated, the fact that be derived his office from popular election insured him, certainly if he was a popular and highly esteemed chief magistrate, a position of strength and influence which the French president, elected as he is by parliament,_can never be sure of.
These arrangements were greatly altered in 1933 and 1934 by the Hitler dictatorship. The ministry was empowered to legislate without the approval of the parliament, and in practice the president was reduced to the role of a figurehead. Finally, in August, 1934, following the death of President Von Hindenburg, the powers and duties of the office were added to those of the chancellor, Adolf Hitler, who was to combine in his person both offices. Whether the office of president will ever be separated again from the chancellorship, or whether both will be replaced by a king or emperor, is a matter on which it would be unsafe to make a prediction.