How the President Can Check and Restrain the U.S. Courts.a. The President shares the national legislative authority with the two chambers of Congress. A legislative bill passed by the Senate and House of Representatives cannot become law without the President's consent and signature, unless, after the President has vetoed the bill and returned it to Congress, each of the two chambers, on a vote of reconsideration, marshals a two-thirds vote to pass the bill over the President's veto. The President's power to veto national legislation is a very potent check on the power of Congress. The presidential veto is made potent by the utter difficulty of getting a two-thirds vote in the two houses of Congress to override the veto. For all practical purposes, the President is a third house of the national legislature. b. Obviously, the power of Congress to override a presidential veto is a rather weak check on the President. However, there are other, more potent checks available that enable Congress to thwart and restrain the President. Congress can refuse to pass a a legislative bill desired by the President. Most importantly, Congress can refuse to appropriate funds requested by the President or any of the executive branch departments or agencies. The Senate, deciding and deciding alone, without the necessity of House concurrence, can exercise some potent checks and restraints on presidential power. The Senate can refuse to confirm a presidential appointment and thereby prevent it from going into effect. One third of the Senate, plus one additional Senator, can block ratification of a treaty submitted by the President. If extraordinary action is deemed necessary, Congress can institute impeachment proceedings against the President. In impeachment proceedings, the House of Representatives, by simple majority vote, brings an impeachment charge against the President. The Senate tries the President on the impeachment charge. If the Senate produces at least a two-thirds vote to convict the President of the crime or other act of misbehavior with which he is charged, he is removed from office and permanently barred from again holding any government office under the U.S. Constitution. c. Congress can check the federal courts by enacting laws which increase the size (membership) of the Supreme Court and reduce the Court's appellate jurisdiction and which change the number and jurisdiction of the lower federal courts. The Senate can confirm or reject federal judges appointed by the President and thereby impact upon the membership and political philosophy of the federal judiciary. When extraordinary action is deemed necessary, Congress can institute impeachment proceedings against federal judges, including Supreme Court justices. d. The President can join the two houses of Congress in checking and restraining the federal courts. How? By consenting to and signing congressional legislation increasing the size of the Supreme Court, reducing its appellate jurisdiction, and changing the number and jurisdiction of the lower federal courts. When vacancies on the U.S. Courts occur, the President appoints federal judges, subject to Senate confirmation. In exercising this power, the President may have an impact upon the membership and political philosophy of the federal courts. However, this is not a strong check on the federal judiciary. Federal judges serve during good behavior and therefore enjoy the benefit of judicial independence. Once a judge has been appointed and the Senate has confirmed the appointment, the President has no control over the judge's decisions. A judge is answerable neither to the chief executive nor to the legislature for his decisions in cases coming before his court. e. The federal courts, through exercise of the power of judicial review, can check and restrain Congress and the President. A federal court can declare unconstitutional and null and void a statute enacted by Congress. That is, the court can decline to uphold and enforce a congressional statute on the grounds that the statute is contrary to the U.S. Constitution. A federal court can invalidate – i.e., set aside, declare illegal and of no force and effect -- a decision or action of the President or another federal executive officer on the grounds that the decision or action violates the Constitution or a federal statute. TASK IV. a) Read and translate the following passages, use the GLOSSARY; b) define constitutional government; limited government; republican government: 1) On the inner workings of the Court, social scientists long have argued that political creatures inhabit the Court, that justices are not simply neutral arbiters of the law. Since 1789, the beginning of constitutional government in the United States, those who have ascended to the bench have come from the political institutions of government or, at the very least, have affiliated with particular political parties. 2) Former Supreme Court justice Thurgood Marshall, in reflecting during the bicentennial in 1987 on the Constitution and its opening three words remarked: “I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. 3) Locke’s arguments in favor of individual rights, property, limited government, and the right of the people to hold their governors accountable to them, including through the threat of rebellion, appealed to the American founding generation, influencing not only the drafting of the Declaration of Independence, but also the Constitution. 4) Modern writers, like English philosophers John Locke (1632–1704) and William Blackstone (1723–80), offered elaborate theories based on natural law, and both Locke and Blackstone influenced many American thinkers on matters relating to natural law, natural rights, individualism, the right of revolution, and the need for limited government. 5) Locke explicitly linked the concept of natural law with advocacy of limited government and the right of revolution. 6) In the United States, republicanism denotes limited government in the form of representative democracy. Citizens elect representatives who govern on their behalf, but within the constraints of the rule of law. Republican governments have nonhereditary leadership for fixed terms, are dependent upon the will of the people, and aim at promoting the collective public interest. 7) Alexander Hamilton, in Federalist 84, described the prohibition of titles of nobilityas being “the cornerstone of republican government,”noting that “so long as they are excludedthere can never be serious danger that the governmentwill be any other than that of the people.” In Federalist 85, Hamilton listed the prohibition asbeing among “the additional securities to republicangovernment, to liberty, and to property.” c) Describe the type of government existing in your country.
TASK V. a) Add bicameralism, unicameral, bicameral to complete and translate the following sentences, use the GLOSSARY; 1) The framers’ goal was to protect liberty, preserve popular government, and limit the threats of what we would now call the tyranny of the majority and the Constitution would secure these goals by setting up an elaborate machine that would use checks and balances, separation of powers, …, federalism, and self-interest to check political power. 2) … is the principle that describes the division of power in the U.S. legislative branch between the House of Representatives and the Senate. … is provided for in Article I of the U.S. Constitution and is one of the many checks placed upon legislative power. 3) … describes any legislature composed of two distinct chambers. The chambers, or houses, are often differentiated on the basis of their constituencies or method(s) of election or selection. A so-called lower house is normally directly elected by the general voting-age population, while the upper house may be appointed, directly elected, or indirectly elected. …, in the U.S. Constitution, provides for checks and balances of legislative authority by dividing its powers between the two houses, requiring concurrence in the passage of legislation while assigning unique authority to one chamber or the other, for example, ratification of treaties, confirmation of appointments, and origination of revenue bills. 4) The governments of many countries utilize … parliaments, though some democratic nations operate under a … (single chamber) parliament, an example being the Knesset in Israel. 5) The lengths of members’ terms differ by chamber, with lower-house delegates serving shorter terms (normally two years) and upper-house delegates serving longer ones (normally four to six years). When applied to governments in the United States, the U.S. Congress and 49 of the 50 states operate with … legislatures. Only Nebraska maintains a … legislature, a feature it implemented in 1937, championed by U.S. senator George W. Norris. The vast majority of local governments in the United States – cities, towns, boroughs, school districts, etc., – employ … bodies, such as city councils, boards, or commissions. 6) Dividing a parliament into two chambers establishes an internal check on legislative powers. To pass a law, both chambers must agree on exactly the same language, which requires compromise between the houses, thereby greatly reducing extremist legislation. Critics of … legislatures argue that they are inefficient and easily stalemated by partisan politics. 7) The … tradition in the United States may be traced to the British Parliament, which itself is a … institution. As each of the thirteen colonies in America established its government, many adopted the English model, although several, such as Pennsylvania, opted for a … body. The first U.S. constitution – the Articles of Confederation – created a … legislature in which each state, regardless of the size of its population or delegation to the congress, received one vote. b) Describe the national legislature in your country. TASK VI. Read the text to justify or to question the existence of bicameralism: Scholars have made a number of arguments to explain the emergence of bicameral legislatures. One of the most common arguments for the emergence of bicameralism in Britain and its American colonies is that it helped to preserve “mixed governments,” to ensure that upper class elements of society were protected (Wood, 1969; Tsebelis and Money, 1997). In such settings, bicameralism allowed the upper chamber, dominated by aristocrats, to have a veto on policy. More generally, an explicit role of some bicameral systems has been the protection of some minority who is overrepresented in the upper chamber. A second rationale for bicameralism is the preservation of federalism. The United States, Germany, and other federal systems use a bicameral system in order to ensure the representation of the interests of individual states and provinces, as well as the population of the country. Under “federal bicameralism ”, the lower house is typically apportioned on the basis of population, while the upper house is divided amongst the regional units. Some countries, such as the United States, provide equal representation for the states regardless of their population or geographic size, while others, like the Federal Republic of Germany, unequally apportion the upper chamber by providing additional representation to the larger units. TASK VII. Discuss the issues raised in the text; add, if possible, any other views of or approaches to the doctrine:
|
