US Government Power: Theory
and Practice
Dean McSweeney
UWE
1. The Theory
Constitution in operation since 1789
 Only 27 amendments since then
(10 in 1791, the Bill of Rights)

Written Constitution
Earlier experiences weighed heavily in the founders’
thinking
 Need for government to provide order and freedom
 Need to avoid a government that threatened
freedom→
 Avoid concentrated and unchecked power →
Separation of powers, checks and balances, federalism

2. Theory coincides with practice

Separation of powers

Checks and balances
Separation of powers
The Founders created 4 institutions of
government which are still the principal
institutions of US government:
- Presidency
- Supreme Court
- Senate
- House of Representatives
(Senate + House= Congress)

Separation of powers

Each institution:
– Has separate membership
–
Is chosen by a different method
–
Is chosen for a different length of time
Separation of powers
Institution
Selection Method
Term
President
Electoral College
4 years
Senate
Elected (states)
6 years
House of Reps
Elected (districts
within states)
2 years
Supreme Court
Nominated by
President. Needs
approval of Senate.
Life
Separation of powers



No person can serve in two institutions at the
same time
In 2008 Obama and Biden were members of
the Senate when they were elected to the
presidency and vice presidency
On election to the executive branch, their
seats in the Senate became vacant
3. Checks and Balances: Powersharing
The term ‘separation of powers’ is misleading
 Powerholders are separated between different institutions
 But many powers are shared between institutions
 Better description:
‘Separated institutions sharing powers’ (Neustadt, 1960)

Checks and Balances: Powersharing
Shared legislative powers:
- President can veto bills passed by Congress to
prevent them becoming law (e.g. George W. Bush
vetoed 12 bills in his 8 years in office)
Checks and Balances: Powersharing
Shared executive powers
- President appoints senior members of the
executive branch subject to Senate confirmation
(e.g. 2013- John Kerry confirmed as Secretary of
State to replace Hilary Clinton)
Checks and Balances: Powersharing
Shared judicial powers:
- Supreme Court decides major court cases but
justices nominated by the president and
confirmed by the Senate (e.g. Elena Kagan
appointed 2010)
- Justices (and other officials, including the
president) can be impeached (removed from
office) in a trial conducted by the Senate on
charges drawn up the House of Representatives
Checks and Balances




Congress checks the President [through
confirmations of appointments, approval of bills]
Congress checks the Supreme Court [appointments,
limiting the right to appeal]
The President checks the Supreme Court (and lower
courts) [appointment]
The President checks Congress [veto power]
Checks and Balances: Conflict
Conflict between institutions likely because of separation of
powers – different people, chosen in different ways, chosen by
different people, chosen at different times, chosen for different
lengths of time.
 They have different roles, powers, interests, constituencies and
electorates
 Separate elections at separate times allows for different
branches of government to be controlled by different parties,
e.g.
- Obama (Democratic party) elected president in 2008
- Republican party majority elected to House of Representatives
2010

Checks and Balances: Cooperation


-
Co-operation between branches essential
because of checks and balances
Co-operation between president and
Congress achieved by:
Negotiation and compromise
Appeals to public opinion
Fear of electoral retaliation
3. Theory and practice differ


No written constitution can cover every eventuality
No written constitution entirely describes practice
Differences between theory and practice in the US:
- Judicial review
- War powers
- Unilateral presidency
i. Judicial Review

Judicial review: the right of the Supreme
Court to consider whether laws or actions of
the executive conform to the Constitution. If
they do not conform, they are ruled
unconstitutional and therefore legally invalid
Judicial Review




The Constitution does not give the Supreme
Court the power of judicial review
The Court claimed this power for itself soon
after coming into existence
Marbury v. Madison (1803) was the first
federal law to be ruled unconstitutional
The legislative and executive branches came
to accept that the Court could exercise
judicial review
Judicial review and checks and
balances

-
-
Judicial review checks the actions of the
other branches of government e.g.
165 laws enacted by Congress (and signed
by the president) ruled unconstitutional 18032010
President Nixon forced to hand over tape
recordings to the courts which implicated him
in a criminal cover-up (leading to his
resignation in 1974)
Judicial review and rights

-
In interpreting the Constitution the Court, in effect,
writes new laws and has created new rights which
are not in the Constitution. These include rights to:
A defence lawyer in court
Remain silent when questioned by police
An abortion
Unlimited spending of own money to influence
elections
ii. War Power

Article 1, section 8 of the Constitution says:
‘Congress shall have the power to….
Declare war…’
War Power


The Constitution gives the president no role
in declaring war
At the constitutional convention one delegate
proposed giving the president the power to
declare war but no seconder could be found
for the proposal and it was not put to a vote
War power in practice


Congress has only declared 5 wars. The last
time was 1942
US involvement in wars in Korea, Vietnam,
Kuwait, Bosnia, Iraq, Afghanistan etc were
started without a declaration of war by
Congress
War power in practice



In practice, presidents start wars
On occasions they have requested approval
from Congress (but not always)
When President Bush senior asked for
authorization of war against Iraq in 1991 he
stated that he was not required to do this
iii. The Unilateral Presidency

The war power is an example of the growth
of presidential power since the Constitution
came into effect
The Unilateral Presidency
According to Article 1 of the Constitution:
‘All legislative Powers herein granted shall be
vested in a Congress of the United States,
which shall consist of a Senate and House of
Representatives.’
Legislating in practice


Many significant policy decisions are
approved by Congress in laws or treatieswhich only go through the Senate
But presidents have developed the power to
make legally binding decisions without the
approval of Congress
Legislating in practice

-
-
-
Presidents make legally binding decisions
through:
Executive orders (instructions given to the
executive branch)
Proclamations (public declarations of new
conditions or circumstances)
Executive agreements (with foreign
countries)
Legislating in practice

-
-
These methods started early in the history of
the presidency:
George Washington issued the first executive
orders and proclamations in the 1790s
President Monroe made the first executive
agreement in 1817
Legislating in practice



Many of these measures are not of great
political consequence
But there are exceptions
Very rarely are they overturned by Congress
or the Supreme Court
Policy and unilateral powers
Significant examples of presidents’ unilateral powers:
- Internment of 100, 000+ Japanese Americans (Ex.
Order, 1942)
- Desegregation of armed forces (Ex. Order, 1948)
- Enforcement of affirmative action (Ex. Order, 1965)
- Military tribunals to deal with terrorist suspects (Ex.
Order, 2001)
Policy and unilateral powers



Freeing of slaves in Confederate states
(Proclamation, 1863)
Introduction of wage and price freeze
(Proclamation, 1971)
Pardon of Vietnam War draft evaders
(Proclamation, 1977)
Policy and unilateral powers




Lend-Lease (Ex. Agreement 1940)
Yalta and Potsdam Agreements (Ex.
Agreements 1945)
Vietnam War peace settlement (Ex.
Agreement, 1973)
Anti-Counterfeiting Trade Agreement (Ex.
Agreement 2011)