Prabardhan News

Complexity of Legislative Executive Relations in the United States

The framers of the US constitution left the most enduring rival in the government system, the president, and the Congress. However, lawmaking, one of the core functions of congress cannot be accomplished until these rivals come to a common point of policymaking. What made them rivals? Arthur M. Schlesinger Jr, in one of his scholarly articles, has examined several root causes of rivalry between the president and Congress. He argued that different electoral constituencies for the president, the House, and the Senate; constitutional design with the president and congressional powers, varying terms of office, increased partisanship and polarization of Congress, competition for power between the president and the congress, the permanent election campaign, narrow majorities in both houses, congressional individualism, the impact of the increasingly microscopic nature of the political analysis of the media, and the nature of the interest groups and American pluralism are the factors that determine why the president and the congress perform the way they are. A careful analysis of these factors is necessary to understand the interaction between the constitutionally specified relationship between Congress and the President and their impact on lawmaking.

The constitution has separated the three branches of government, in the way that the executive, legislative, and judiciary branches have minimal dependence or influence upon one another, but their functions are combined, and powers are shared, creating a conflict. When separate institutions are sharing powers, even in the best of political circumstances, it is difficult for the president to bridge the constitutional gap. And, both Congress and the president are envious of one another's constitutional privilege (Thurber, 2009).

There is a distinct separation of power between the three branches of government. The legislative branch has lawmaking and budgetary power; it also has the power of delegation, and the power of confirmation. Whereas, the executive branch has the responsibility to implement the policy. Moreover, the executive branch also has veto power, the power of discretion, and the power to issue executive orders. These powers establish a check and balance between these two branches of the government. Moreover, the executive branch can appoint the judges of the Supreme and federal courts, whereas, the court has authority to examine the constitutionality of the decisions made by the executive. Similarly, the legislative branch confirms the Judges of the Supreme and the Federal courts and can control the budget that goes to the judiciary. Judiciary can do the constitutional review of various activities of the legislative. 

Congress and the president, both have different electoral preferences. Due to the nature of the constitutional design of electing the president and the Congress from a different constituent base, it is less likely that both executive and the legislative branch have shared policy choices. However, their powers on policymaking are shared. The bill passed by Congress must be signed by the president to make it a law. And, the greatest tool of the president to bargain in the divided government (the condition that exists when the majority party in either or both houses of Congress differs from the party of the president) is the power to say 'No', a presidential power given by the Section 7 of the Article I of the United States Constitution. If the president vetoes a bill, it must be overridden by two-thirds of the Senate and the House of Representatives. And, it is extremely hard for Congress to gain two-thirds. To date, the presidents of the United States have used veto 2,572 times (including pocket veto), and only 4% of them have been overridden.

According to Hamilton, the principal objective of the veto is to protect the executive from legislative encroachments, safeguard the integrity of the presidential office, and rejection of flagrantly unconstitutional legislation. In 1976, Justice White wrote in an opinion that, "the veto's principal aim was not to provide another check against the poor legislation, but rather to protect the executive against legislative encroachments." Nonetheless, the purpose of presidential veto hasn't been limited to protecting the integrity of the president's office. The vast range of activities carried out by the federal government has resulted in a great mass of private bills. In 1986, President Cleveland received nearly 240 private bills in a single day purposing new pensions for veterans, increasing their benefits, etc. Many of them were so weak that they were vetoed (Fisher, 2007). Although the effort to override the public bills is common, Congress acknowledges vetoes of private bills without a vote. It is a well-known fact that the framers of the constitution did not foresee the emergence of the political parties. They were unaware that different political parties might have control over Congress and the White House, and it would encourage vetoes. Congress passes hundreds of measures on the closing day of a session, makes irrelevant amendments to appropriation bills, which will provoke a veto. President Clinton, during a budget battle in 1995 said, "I am grateful for the wisdom of our Founding Fathers. The Congress gets to propose, but the president has to sign or veto, and that Constitution gave me that authority, and one of the reasons for the veto is to prevent excess. They knew what they were doing, and we are going to use the Constitution they gave us to stand up for what’s right."

Article I Section 8 of the constitution has given the Congress power to pass the laws directly binding upon all citizens. Similarly, the power of the purse is another crucial authority given to congress by the constitution. It has the power to authorize and appropriate funds for the president and the executive branches, levy and collect taxes, borrows and coin money, and regulate foreign and interstate commerce. The budget proposed by the president has to be approved by Congress (Thurber, 2009). This creates a struggle between the two branches over the spending priorities. Congress can establish and eliminate executive branch agencies, create new departments, and oversee their operations. President has authority to nominate cabinet, ambassadors, Supreme Court, and Federal judges, but must be approved by the Senate. Another congressional check over the executive branch is impeachment. When accused by majority vote in the House and Convicted by the Two-third vote in the Senate, the president or any executive official can be removed from the office. However, the occurrence of impeachment has been very rare in American history. Hence, the constitution has given Congress a great deal of negotiating ability over policy preferences with the executive branch.

Lawmaking is a profoundly chaotic process, especially in the US Congress in which 435 House Members and 100 Senators represent markedly different constituencies with conflicting interests. The United States has practiced separation of power through presidential and different electoral constituencies. The executive and the members of the legislature are elected independently. The president has a broader electoral coalition of 271 electoral votes, as compared to representatives and senators. Even the president and the member of Congress are from the same political party and a home state, the president represents a nation as a whole, whereas the member of the congress and relatively narrow policy preferences. Therefore, there might be a conflict on policy choice.

In the United States, the terms of office for a representative are two years, senators six years, and the president fours years. They are also chosen from different constituency bases. Thus, they have differences in specific policy interests. This constitutional design also reflects Madison's theory of using the union as a safeguard against the faction. Madison explicitly argued in Federalist No. 10. that the faction is inevitable, and if different factions with similar interests come together, it may infringe the rights of the minority. Therefore, the US constitution ensures that the executive and the legislative branches have different interests and policy goals, and they all must come to a common point of agreement before any policy comes into action. 

Even the policy goals of the president and the members of Congress are different. Presidents are expected to set the national policy agenda and move rapidly in the first year before their decline in popularity. They are also less concerned about reelecting for another term. Their priority is establishing good public policy and getting an honored place in history. On the contrary, members of Congress are often driven by short-term motivation (Thurber, 2009).

The federal system of state-based political parties is another factor that creates coordination problems in passing the law. The political parties are highly decentralized. They exercise little control over the selection of candidates running under the party label, hence, resulting in weak discipline, and less control over the members. The senators and the representatives run the election on their expenses and pursue their interests. In such conditions, the coordination becomes extremely daunting when it comes to making common views on specific policy preferences.

Another problem in a lawmaking process is party control of the government. Divided government is the condition that exists when the majority party in either or both houses of Congress differs from the party of the president. From 1901 to date, America has experienced about 60 percent of the unified party control, and 40 percent of the divided party control in the government. Because of divided government, America has seen democrat president working with a Republican majority, and a Republican president working with Democrat majorities in the House and Senate. Presidents can build up a strong relationship with the Congress when there is unified government control, that is, the majority in one or either Houses has a majority of the President's party.

In general, coordination problems in lawmaking can be divided into three groups; a) External Sources, b) Internal sources, and, c) Legislative process and Pareto Optimality. External sources comprise of three elements, i) social diversity, ii) economic diversity, and iii) regional diversity. Similarly, Internal sources consist of i) Re-Present the diversities, ii) Responsiveness to constituencies, and iii) size of the Congress with 435 representatives, and 100 senators. The legislative process is a very long and complex process that requires the consent of various constitutional bodies, as well as stakeholders. Pareto optimality is a condition, where resources are allocated most efficiently, and it is obtained when a distribution strategy exists where one party's situation cannot be improved without making another party's situation worse.

External coordination problems can be managed by the proper use of political parties, interest groups, civil society, and mass movements. Internal coordination problems can be managed through standing orders, rules of debate, committee systems, and filibustering. Because of the severe coordination problems that exist in the very nature and structure of the US Congress as a representative body, a complex set of structures and procedures – e.g., Standing Orders, Rules of Debates, Committee Systems – have emerged over the years to deal with these problems.

Standing orders are instructions or prescribed procedures in force permanently or until changed or canceled. They are of continuing or standing nature, that is, they do not lapse at the end of the session. It comprises of explanation of the legislative process, nature of the assembly's calendar, description of the legislative process, the role of the speaker, rules governing the work committees, etc. The House declares these continuing orders to be Standing orders when it formally adopts them, and it periodically issues them as a publication for the guidance and use of all members. Rules of debates maintain order and decorum when the debate is taking place. It includes what may be said, when, by whom, and for how long. The speaker of the House is responsible for maintaining order during the active session.

Due to the high volume and complexity of the work the House is divided into different committees. Those committees have their guidelines, and each committee adopts its own rules. In the United States, the congressional committees are also termed as legislative sub-organization. The committee members have an opportunity to develop a specialization in a specific field. The committees are often headed or accompanied by members who have experience of working in that specific field. The committees monitor ongoing governmental operations, identify issues suitable for legislative review, gather and evaluate information, and recommend courses of action to their parent body

Article I of the Constitution provides that "all legislative Powers herein granted shall be vested in a Congress of the United States." In Youngstown Co. v. Sawyer, Justice Black held that the Constitution "limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of law he thinks bad." But as of now, we have seen the vast quantity of legislative power to be delegated to the President, to executive agencies, and independent regulatory commissions. As the legislative branch is not always able to put in place all the details required to regulate future actions, the delegation of legislative power became inevitable. Sometimes lawmakers, agency heads, and their staff may decide that they lack the expertise to draft specific language. In this situation, legislative powers are delegated using broad language on the statutes. The problem of legislating for future events avoids the use of clear and explicit statutory language (Fisher, 2007). The eighteenth-century English jurist, William Blackstone stated, "manner, time, and circumstances of putting laws in execution must frequently be left to the discretion of the executive magistrates." The Administrative Procedure Act (APA) of 1946 was enacted to establish various standards for agency rulemaking to guarantee fairness and equitable treatment, and minimize executive caprice and arbitrariness.

Even members of Congress would like to yield up the power and try to shift the responsibility elsewhere when the task is so vexing and politically less rewarding. For example, general tariff-making exposed Congress to such ridicule that it delegated the bulk of the job to the executive branch and the Tariff Commission. Responsibility involves blame, and if the demands exceed what the congressman can efficiently handle, he may happily yield up a significant portion of his power (Fisher, 2007).

Judicial review has established extra leverage of Presidential power over foreign affairs. In United States v. Curtiss-Wright Corp (1936), Justice Sutherland described the international affair as a vast external realm, with important, complicated, delicate, and manifold problems. He added, "legislation over the international field must often accord to the President a degree of discretion and freedom from statutory restrictions which would be not admissible were domestic affairs alone involved. However, Justice Sutherland is criticized for going far beyond the necessities of the case. Nonetheless, sometimes it is very hard to draw a line between domestic and foreign affairs. In 1991 President Bush was criticized for spending too much time traveling abroad while neglecting domestic problems. He replied that his efforts to promote trade agreements with foreign nations would benefit the US (Fisher, 2007).

The president and the department heads alone cannot accomplish all the legislative tasks assigned to them. Therefore, they have to transfer responsibilities to a subordinate. The Supreme Court has been lenient towards this kind of sub-delegation, as it has been with the delegation. After World War II Congress enacted legislation to recognize the President's need to sub-delegate the function assigned to him by law. A survey found that President Truman had to act, either expressly or by inference, under at least 1100 statutes. Based on the survey the Congress authorized the President's sub-delegation to his department head or agency official. However, such an official must be approved by the Senate.

Administrative legislation is another way to carry out the law. Administrators issue rules and regulations of their own. However, it is required that such act of the executive must be within the sphere of his legal and constitutional authorities. This kind of agency rulemaking must rest on authority granted directly or indirectly by Congress, and published in the Federal Register (Fisher, 2007). Other forms of lawmaking appear in the form of Presidential Proclamations, Executive Orders, and Secret Executive Directives.  

References

Fisher, L. (2007). Constitutional conflicts between Congress and the President (5th ed.). Lawrence, Kan.: University Press of Kansas.

Mozaffar, S (2017). Executive-Legislative Relations, Bridgewater State Univeristy, USA.

Thurber, J. A. (2009). Rivals for power: presidential-congressional relations (4th ed.). Lanham, MD: Rowman & Littlefield.