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	The press has played a great role in the changes that occurred to the executive branch. Indeed, dealing with one single person is more telling than dealing with Congress. FD Roosevelt started the movement, resorting to the radio and giving his « fireside chats ». Presidents have more and more relied on the press to become what can be called « plebicitary presidents », the master among them was probably Reagan who was nicknamed the « Great Communicator ».		The press has played a great role in the changes that occurred to the executive branch. Indeed, dealing with one single person is more telling than dealing with Congress. FD Roosevelt started the movement, resorting to the radio and giving his « fireside chats ». Presidents have more and more relied on the press to become what can be called « plebicitary presidents », the master among them was probably Reagan who was nicknamed the « Great Communicator ».
	Under the thesis of plebicitary presidents, presidents would be accountable only once every four years, and would be allowed to do more or less all they want provided they have the support of the population. As Nixon said « if the President does it, that means that it is not illegal » The question that could be raised is thus: have we reach (pas de ed!!!) a time of elected dictatorship? President Bush Junior answered by saying « I am president you know, I don't need to explain why I say things. That's the good part about the job. »		Under the thesis of plebicitary presidents, presidents would be accountable only once every four years, and would be allowed to do more or less all they want provided they have the support of the population. As Nixon said « if the President does it, that means that it is not illegal » The question that could be raised is thus: have we reach (pas de ed!!!) a time of elected dictatorship? President Bush Junior answered by saying « I am president you know, I don't need to explain why I say things. That's the good part about the job. »
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Version du 28 mai 2008 à 13:57

Note obtenue: 13 / 20

According to the famous historian Arthur Schlesinger, the American presidency has become what he called « Imperial », meaning that it has accumulated the powers of an emperor. Caesarism refers to the theory of the Roman empire, in which a single entity, namely the emperor was granted all powers on society. As such, the emperor was allowed to wage wars at leisure and had unconditional rights on his citizens. Throughout history these rights have been reduced: the Magna Carta in the 13th century and the Habeas Corpus in the 17th century granted inalienable rights to the citizens of England. When the constitutional convention met in 1787, they wanted to avoid the risks of a monarchy such as existed in England. Even if this power could be seen as tyrannical, yet, it was already not as strong as the imperial power. In order to reduce the risks of having one single man grabbing all powers, the framers relied on the theory of separation of powers as theorised by Montesquieu and John Locke. They tried to define a strong separation between the executive, the legislative and the judicial branches of government. Each branch was granted specific powers and a system of checks and balances was set into place. In the Framers' view the main branch of government was the legislative branch : Article I of the Constitution is about Congress. The executive only came second – Article II- and much talk went on as to the powers that should be granted the president. Eventually, the Framers agreed on an executive branch led by a president because they knew a single voice was needed to take emergency decisions and represent the country abroad. The president was endowed with the powers of Commander in Chief, his role being that the laws be « faithfully executed ». Congress, on the other hand was given the « power of the purse », and the power to declare war, along with the power to legislate and enquire. The judiciary branch was quite separated from the other two branches of government. Yet, if one look(pas de s!!!) at the way the executive branch has evolved over the years, and especially since 1933, it seems obvious that power has concentrated in the executive branch, to the detriment of the other two branches of government. The powers granted to Congress have shifted to the presidency and the judiciary branch does not always seem to play its role. This shift of powers started very early but became obvious with the advent of F D Roosevelt as president in 1933, and it has not stopped since, even if some attempts have been made to curtail the presidential powers. It seems interesting to see first how such a concentration of powers has been possible. This will lead to the second question that has to be tackled, namely why the system of checks and balances has not been efficient. Eventually, the risks such concentration of powers could represent for the American citizens should be analysed.

When Franklin Delanoe Roosevelt became president in 1933, the economic situation in the USA was terrible. The crisis, which had started in 1929, was not solved and millions of Americans lived in poverty. F D Roosevelt presented himself as the « steward of the people », and promised he would use every possible tool to solve the situation. He even went as far as to say that he would act as if facing a « foreign foe ». Congress was eager to delegate some of its power, since so far it had been unable to find a solution. Roosevelt, with his plan he called the « New Deal », then started draft legislation and then pass it over to Congress for approval. The executive branch, whose role it was that the law be faithfully executed thus began to seize some of the legislative power, to the point that the president soon came to be known as « the third house » of Congress. Instead of being a reactive body, the executive turned into an initiator, leading the country in the direction the president chose. Thus, the National Recovery Act and the Agricultural Adjustment Act were passed in 1935 and the New Deal policy was launched. The power of initiating legislation was given by Congress to the president at a time of emergency, and Roosevelt’s successors followed suit. Thus, Truman presented what he called the « Fair Deal» and Jonhson gave his program the name of « Great Society ». Since FD Roosevelt, the president has thus been seen as « Chief Legislator », and in the State of the Union speech, given each year by presidents, the legislative direction wanted by the executive is given. Launching the New Deal implied other changes because the federal government got involved in the economy. A commission was set up to analyse the need of the executive, supervised by Browlow. Its results was summarised in a very short sentence: « The President needs help! ». Indeed, since the executive tackled more and more problems, the system as existed before was not efficient enough. Thus, the Executive Office of the President was created in 1939 in order to reorganise all the different agencies that worked in the White House. More and more people started to work for these agencies and, the vertical power gained in the legislative field was coupled with a horizontal expansion of power. As the historian Milkis wrote, « with seize, came power ». Congress has since drafted legislation which is rather general and the executive agencies are left to determine how the main goals are to be achieved. Another power granted to Congress is what is called « the power of the purse », that is, the budget. Congress, according to the constitution, must decide where the money is to go. It is a very powerful tool since all programs need money to be implemented. Just as what happened with the law making process, this power has shifted from one branch to the other. Congress still pass the legislation, but the White House drafts it : Nixon created the Office of Management and Budget. It could be argued that Congress retains its power since it can pass or reject the White House proposals. Yet this power has also been curtailed and challenged. Nixon resorted to what is called impoundment to reduce the weight of Congress. Relying on precedents, the first dating back to Jefferson, Nixon refused to spend some of the money voted by Congress on the laws he did not like, arguing that it could endanger the nation. Doing so, he used an emergency tool in a situation that did not correspond to an emergency, so much so that Congress eventually responded by curtailing his power in the Impoundment Act of 1974. This use of impoundment was a kind of « line-item veto » which enabled the president to reject only part of a law. Although the Constitution clearly states that only complete bills can be vetoed, the line item veto was a tool also granted to Bill Clinton from 1996 to 1998. Eventually the Supreme Court ruled it was unconstitutional in New York City versus Clinton. The third and most important power of Congress is the power to make war. Even if the president is the « sole organ » representing the nation in foreign policy, as stated by the Supreme Court decision in Curtiss Wright v US in 1936, the power to declare war is given to Congress. Yet, from the start, this power has been taken away from it, simply because most wars are not declared. Thus, Polk launched a so-called defensive war against Texas and seized the territory, Hawaï was invaded and incorporated into the US territory by the end of the 19th century without any war declaration. With the advent of the atomic era, this power to declare war was even more reduced. Technology has thus changed the Constitution: many are those who think that in the nuclear era, there is no time for discussion and decisions should be taken very quickly. That is why most presidents decided to intervene in foreign countries without war resolutions. Truman decided to send US troops to Korea without asking Congress and stating the UN resolution as his guideline, and Reagan intervened in Granada without warning Congress. Arguing that foreign policy was part of the executive powers, presidents decided to wage wars wherever they thought fit without the assent of Congress. So, over the years, the powers granted to Congress have shifted to the executive branch of the government, endowing it with more and more powers. Yet, the Framers were aware of such dangers and that is why they set up a system of Checks and Balances between the three branches of government. Unfortunately, this system seems also unable to reduce the growth of the presidency.

The system of Checks and Balances, as devised by the Framers, was supposed to avoid the emergence of one branch of government to the detriment of the other two. When it became clear that the presidents abused their powers in the field of foreign involvement, the legislative and judiciary branches reacted by passing the War Powers Act in 1973. Indeed, the American nation had had enough of American involvement in Vietnam. Moreover, Nixon allienated public opinion by bombing neutral countries such as Laos and Cambodia. In order to avoid the advent of a new « Mad Bomber » as Nixon came to be nicknamed, the War Powers Act curtailed the president's power in the field of war. This act states that a president has to ask the assent of Congress for any use of US armed forces abroad within two days. If Congress disagrees, the president has then 60 days to remove the troops, and 90 days in case it can not be done faster. Yet, this law, which was passed over Nixon's veto is quite tricky. By curtailing the president's power to make war, it creates it since, in the constitution, this power belongs to Congress. Moreover, by allowing US troops to stay in a foreign country 60 days, it gives enough time for a lot of actions to happen. Indeed most wars are very short and 60 days is long enough to overthrow a government. This example clearly shows that what was conceived as a means to balance powers has not been efficient. The executive branch uses another tool to assert its power by resorting to what is called the « Emergency Prerogative ». John Locke's theory was that in case of emergency, the executive should be given extraordinary powers to save the situation. President Lincoln used this power when the Civil War broke out, while Congress was adjourned. He suspended the writ of Habeas Corpus and decided on the blockade of Southern ports. Although the Supreme Court did not agree with Lincoln's use of military tribunals, it stated its decision in Ex Parte Milligan only after the end of the Civil War. Lincoln contended that the extraordinary powers he grasped were needed to save the nation by resorting to the hackneyed metaphor of the body politic when he stated « Often a limb must be amputated to save a life, but a life is never wisely given to save a limb ». Thus he set a precedent and his successors followed in his tracks. In December 1941, Pearl Harbour was attacked and the USA entered the war. FD Roosevelt declared a state of emergency and also curtailed the rights of the people. For example, in 1942 by Executive Order 9066, he decided the internment of American citizens from Japanese origin without trial. The end of the Second World War did not put a stop to the Emergency because it led to the Cold War and the threat seemed then to be on a permanent basis. Anticommunism spread in America and Truman's decision to go and fight in Korea was supported by public opinion. Yet, when he advocated the « emergency prerogative » and his power as Commander in Chief to seize the steel plants in 1952, the Supreme Court rejected his appeal, saying the emergency was not real. That is one of the main reasons why this emergency prerogative can lead to abuse of power: nowhere is an emergency defined.

The Supreme Court thus seems to be the last resort to the balancing of powers, especially in a state of emergency. Being so, it should be absolutely impartial, yet as shall be seen it is not always the case, simply because of the way its Justices are chosen. Indeed, the power to nominate the juges (pas de d, ce n'est pas une faute de frappe!!)is vested in the president, but Congress has a say in it, since it can refuse nominations. Being nominated for life, juges can disagree with the executive policy and oppose it. When FD Roosevelt started his New Deal policy, the Supreme Court was rather conservative and did not accept that the federal government got involved in economics. In order to show its disapproval, the juges declared the NRA and the AAA unconstitutional. Since the number of juges is not clearly stated in the constitution, FD Roosevelt proposed in 1937 what is known as his « Court Packing Plan »: he wanted to add one Justice for each Justice who had reached the age of 70 and who did not resign. Thus he hoped to change the orientation of the Court, which would have been easy since it is the president who nominates the Justices. Even if his Court Packing Plan did not work, the Supreme Court eventually changed its opinion and accepted Roosevelt's legislation. As we have seen, the Supreme Court can sometimes oppose a presidential grasp of power as was the case with the Steel Seizure case in 1952, but most of the time, it complies with the executive. The Case of Richard Nixon is worth examining in this matter. When asked to release the tapes that had been recorded in the White House, Nixon refused putting forward what he called « executive privilege ». Even if in a unanimous decision the Court stated that Nixon had to hand in the tapes, it also clearly stated that executive privilege did exist even it could not apply in the case.

Despite the system of checks and balances, power has concentrated in the executive branch. The judicial branch has not always checked presidential powers and can sometimes resort to partisan ideology as was the case with Roosevelt. Moreover, the use of the emergency prerogative has endowed the presidency with tremendous powers, that have been considered as imperial.

According to Arthur Schlesinger, the test of imperialism is threefold: the power to wage war, secrecy and the curtailing of freedom for the citizens. We have seen that, over the years powers have concentrated in the executive branch and it is now clear that the president is the one who decides to go to war. Secrecy is the second pillar of imperialism. Richard Nixon was not the first president to use secrecy. Jefferson for instance decided on the Louisiana purchase without Congress knowing it. Moreover, when asked to testify in A Burr trial, he also refused on account of executive privilege. Eisenhower, during the Witchhunt of the 1950's did not want his staff to testify at the HUAC commissions. More recently, Bill Clinton who was accused of perjury resorted a lot to executive privilege during his impeachment and some of George W Bush's executives keep their task force secret thus violating laws. Secrecy has developed over the years so much so that it can lead to an abuse of power. For example, when Congress was asked to vote for the Use of Military Forces against Iraq Resolution, it was in the position of Shakespeare's plebians who said « We have in ourselves the power to do it, but it is a power we have no power to do ». Indeed Congress can refuse to grant funds for a military involvement but when asked on what ground the executive wanted to start the war and what proofs they had, the executive just answered that they could not tell because it was secret and revealing it could be dangerous for the nation. So Congress had to take what the Bush administration said at face value. Moreover, in the matter of foreign affairs, politics has become bipartisan since the Cold War and so no debate takes place concerning presidential decisions. The last test to which the presidency has to be put to is in the field of public liberty. It could be argued that the laws that curtail the freedom of the people must be passed by Congress and that the president has nothing to do with it. Yet, many decisions are taken that are not acts per se. Let's take the example of Lincoln: he decided to emancipate Black slaves by Executive Order, that is to say a text which has the value of a law but which is not voted by Congress. As the presidency has become more and more administrative, the tools that the executive branch can resort to have become more and more used. For instance, instead of signing treaties with foreign countries – which have to be ratified by Congress- presidents have used more and more executive agreements which do not have to be reviewed by Congress. In the field of public liberty, some may argue that the Bill of Rights grants the American people a shield that would protect them against a tyrannical power. Yet it is not always the case. For example, in Nixon's time some journalists were jailed for refusing to give their sources. As a reaction against Nixon's abuses of powers some legislations were passed so as to protect people's privacy and the release of information. Yet, the emergency theory grants powers that are otherwise (??) denied. In 2001, in response to the attacks of 9 11, the Patriot Act was passed. Relying on Ex Parte Quirin (1942) which stated that « unlawful combatants » could be detained and tried by military tribunals, the Bush Administration suspended the writ of Habeas Corpus and refused to abide by the Geneva Convention of 1949 arguing that the place where the « unlawful combatants » were detained was not within the United States territory. Moreover, some secret wire tapings have been ordered by the executive branch that violates the laws passed after the Watergate scandal.

It have (c'est la fin!!!) been shown how the executive branch has managed to accumulate power over the years and that the system of checks and balances as devised by the Framers does not seem to stop the movement. Even if the legislative and judicial branches have tools to curtail presidential powers they do not always use it and often comply with the president. It was so from 2002 to 2006 under George W Bush's presidency, when the theory of unitary executive is put forward. The risks of caesarism are very strong indeed, because the abuses of power are many and reduce people's liberty. Yet, there is another force which must be taken into account which is public opinion. The press has played a great role in the changes that occurred to the executive branch. Indeed, dealing with one single person is more telling than dealing with Congress. FD Roosevelt started the movement, resorting to the radio and giving his « fireside chats ». Presidents have more and more relied on the press to become what can be called « plebicitary presidents », the master among them was probably Reagan who was nicknamed the « Great Communicator ». Under the thesis of plebicitary presidents, presidents would be accountable only once every four years, and would be allowed to do more or less all they want provided they have the support of the population. As Nixon said « if the President does it, that means that it is not illegal » The question that could be raised is thus: have we reach (pas de ed!!!) a time of elected dictatorship? President Bush Junior answered by saying « I am president you know, I don't need to explain why I say things. That's the good part about the job. »

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