5 - Checks and Balances : 1932-1974

Question 1

What is written in the Constitution might differ from practice. In the Constitution,

Answer 1

three powers check on another : legislative, executive, judiciary. With the legislative one having more enumerated power than the two other branches. In practice, we witnessed the expansion of the executive power during the modern era.

Question 2

A gradual assertion of the executive power from when to when ?

Answer 2

from WW2 to the late 60s. There was no resistance from the other branches up to the early 70s, there was even approval with a bi-partisan consensus.
Concomitantly, there was the rise of new powers not defined by the constitution but more and more important in the second half of the 20th century :

Interest groups
The press
The public opinion

Question 3

This evolution of excutive branch was due to several factors :

Answer 3

The growth of mass media, especially TV in the 50s & 60s

The democratisation of politics with voting right reforms, women’s liberation, party reform & the growth of independent politics.

In a way, these factors became part of the Checks and Balances system. The president became apparently more independent from the legislative but more dependent on public opinion and the media.
=> This is linked with the notion of mandate. This was a gradual process that developed in the post world war II period was confirmed in the 70s and was accentuated in the last decade.

Question 4

I. The president and Congress

Answer 4

The executive ascendency came along with the Congressional delegation of powers in foreign & domestic policy

Question 5

A. Foreign policy
V. Michelot

Answer 5

According to historian Vincent Michelot, foreign policy reveals the tension between the president and congress & the President has absolute monopoly of initiative in this field.

Question 6

A. Foreign policy

Answer 6

During the period between 1932 and 1974, the expansion of inherent powers and emergency powers doctrines occurred. There were also wars without declaration of wars, except for WW2. And there was also bi-partisan consensus.

Question 7

Main landmarks :
1932-1974
1941
1947
1950-1953
1961
1962
1955-75

Answer 7

1932-1974 : expansion of inherent powers & emergency power doctrines
1941 War power act
1947 National Security act > creation of CIA
1950-1953 Korean war
1961 Bay of pigs
1962 Cuban missiles crisis
1955-75 Vietnam war

Question 8

What happened in those cases

Answer 8

→ Congress either delegated broad powers to the president : for instance with the war power act during WW2 or with the creation of the CIA.

→ Congress sanctioned the Presidential initiative after unilateral presidential action. For instance, with the Korean war in 1950 or concerning the Gulf of Tonkin resolution

→ Congress did nothing because he was not consulted. For instance, the Bay of Pigs failure or the Cuban missile crisis which was a success.

Question 9

Executive Agreements

Answer 9

After the Belmont decision in 1937 which declared Executive agreements constitutional, Presidents tended to sign such agreements rather than treaties because unlike treaties, Executive Agreements did not require the approval of Congress and of the Senate.
→ For instance FDR & Truman during WW2 or the Paris Peace Accord in 1973

Congress tried to limit the powers of the president by legislating on executive agreements. In the 1950 & 1960s, several bills were debated in Congress but failed.

Then, in 1972 the Case Act was passed : it didn’t prohibit executive agreements but it required the secretary of State to hand over to Congress the text of all executive agreements within 60 days. It actually did not mandate prior consultation of COngress & it was not very effective

Question 10

Domestic affairs

Answer 10

With the acceptance of the President’s new role as a chief-legislator, Congress delegated its constitutional power. It was not forced to do so. Some historians note that Congress could have resisted but it did not because it was unable and unwilling to cope with issues. (// Lowi & Shlesinger)

After WW2, not only was the Presidential initiative in the legislative approved but it was expected even required. If a president had no specific program he was considered weak. Congress was only expected to react favourably or not.

When the President & Congress belong to the same party, the president is expected to act as a party leader when the government is divided, there is a confrontation between the 2 branches

Question 11

Congress’s powers to check on the presidency :

Answer 11

Congress’s powers to check on the presidency : Congress can..
Refuse to vote a bill
Override a presidential veto

Question 12

The President’s power to check on Congress :

Answer 12

Veto
Executive orders
Impoundment (= refusal to spend money appropriated by congress)

Question 13

What can you say on domestic affairs

Answer 13

⇒ These powers were originally conceived as constitutional tool meant to make the gvt more effective,to unblock conflict or to preserve institutions in case of abuse by Congress. They were not routine powers. They were very rarely use up to the Modern era. But it became more and more common to use them after WW2

Question 14

Roosevelt :

Answer 14

He was a democrat.
The first New Deal was marked by collaboration despite a few hiccups. A broad legislative program was passed by a cooperative Congress in time of crisis.

The Second New Deal however was marked by confrontation
Cf The court packing plan (when new justices), the unsuccessful democratic purge, and the rise of the Conservative coalition

The third New Deal after 1937, marked by WW2, national unity, cooperation & delegation of power

Question 15

Truman :

Answer 15

He was a democrat
Between 1946 and 1948, Congress was republican. Truman had proposed a 21-points plan in 1945 to reinforce the New Deal but he failed to have his program pass.

He resorted to veto and executive orders to check Congress.
→ He vetoed the Taft Hartley Act (also called the Labour Management Relations Act, 1947) to restrict the powers & activities of labour union. But his veto was overridden by Congress.

→ He issued Executive order to bar discrimination in federal armed forces and administrations.

1985-1952 : there was a democratic congress but a powerful conservative coalition of republicans and thousands democrats hostile to Truman.

Congress killed Truman’s fair deal program as well as Civil Rights Plan. Congress passed the Internal Security Act against communist influence over Truman’s veto and Congress passed the 22nd Amendment to limit the number of terms for the president.
⇒ These were highly partisan measures sponsored by Republicans in reaction to FDR’s legacy.

So Truman was successfully resisted by Congress but he did without Congress.

Question 16

Eisenhower

Answer 16

He was a Republican.

There was no confrontation between him & Congress, but no close collaboration either. Actually, he wanted to restore the balance between Congress & the President in legislative matters.

But he was soon criticised for not proposing a program, that was proof that Congress had deliberately ceded its legislative prerogatives to the President.

1954 was marked by a high tension between Congress & the President because of McCarthyism. McCarthy attacked the administration but Eisenhower refused to disclose executive information, arguing that such action was not justified. It was the first assertion of the Executive Privilege Doctrine.

After 1954 there was a divided government as Democrats won the majority in mid-term election. There was not much legislative cooperation and also not between 1956 and 1960

Question 17

Kennedy

Answer 17

He was a Democrat.

He was frustrated by the opposition of Conservative coalition. His program was blocked by COngress. He then proposed the Civil Rights Bill but he was assassinated before it was passed.

Question 18

Johnson

Answer 18

He was a Democrat.

His presidency marked a historic collaboration with Congress and the Supreme Court. He was a top legislator, he had a solid experience as a former Senate leader and his presidency was also marked by the trauma of Kennedy’s assassination.

Hence massive legislative programs from 1964 on : the Civil Right act, The Voting Rights Act and the Great Society. The term was first coined during a 1964 address by Johnson at the University of Michigan.

First must come “an end to property and racial injustice” he said. But that would be just the beginning. The Great Society would also be a place where all children could enrich their minds, where people could renew their contact with nature and where citizens would be deeply concerned with the quality of their goals.

In a nutshell, the main aim was the elimination of poverty and racial injustice. It horrified the Conservatives. Johnson’s relationship with Congress was probably its greatest achievement

Question 19

Nixon

Answer 19

He was a Republican.

His relationship with Congress was caracterised by confrontation. The government was divided
Congress was dominated by Democrats openly hostile to Nixon
Nixon’s Congress started to reassert its power : Senate rejected 2 Supreme Court Nominations in 1969 and 1970.
Then, there was a climax, a majority in the House was ready to vote Impeachment which caused Nixon to resign.

Question 20

II. The President and the Supreme Court

Answer 20

The SC can check the powers of the president by invalidating legislation emanating from Presidential programs.

But the crucial point is that the President can transform the social and political order in the long run by nominating federal judges who will support his policies if challenged.

This is all the more crucial in times of divided Government. The SC becomes the arbiter between Congress & the President. Hence the importance of these appointment process : the President can ensure his legacy by nominating judges sharing his political orientation. Actually appointment powers give the president a huge power to influence the judiciary in the long run.

Question 21

A - Nominations

Answer 21

Here are the best illustration of the importance of nomination up to 1962 : FDR & Nixon

Question 22

Nomination FDR

Answer 22

FDR tried to turn a Conservative court into a liberal one with the Court Packing Plan in 1937. It would have given him the opportunity to nominate 6 new Justices to the SC. He failed but then he named 9 of them between 1937 and 1943. This state they are as they stand on the court for decades. He was the president who most influenced the COurt in the 20th century.

Question 23

Nomination Nixon

Answer 23

Nixon after decades of liberal activism supported by the SC, Nixon tried to favour a return to Conservatism by naming 2 southern conservatives in 1969 and 1970 but they were rejected by the Senate which was then hostile to Nixon.

Question 24

B- The court and Presidential Powers

Answer 24

After the first invalidation of New Deal legislation, the SC accepted the expansion of the executive as legitimate in the Modern Era.
→ It was especially true in foreign matters.
→ In Domestic Matters, it checked presidential authority in a few cases but it was not the general trend.

It applied the political question doctrine, it was not the role of the SC to interfere with other branches, concerning political issues.

So the court simply refused to hear controversial cases involving president during that period.

Question 25

Decisions unfavourable to presidents :

Answer 25

1935-1946 : AAA (agricultural Adjustment Act) and NIRA. The AAA created an agency of the US department of agriculture.
1952 : Youngstown : the President cannot take position of private property without authorisation from Congress or the Constitution. Truman seized/ceased the production facilities of steel companies
1971 : New York Times of Pentagon papers : it was about Vietnam war, and Nixon wanted them to remain secret
1974 : Nixon & Watergate : when the SC forced the President to disclose the tapes.

Even when the SC refused to support the President’s case it never invalidated the doctrine involved like for instance inherent powers or executive privilege.

Question 26

Decisions favourable to presidents :

Answer 26

1936 : Curtiss-Wright decision : assumption that the President had constitutional inherent powers in foreign policy which meant that he did not have to justify his actions nor to consult Congress in foreign matters. This created a crucial President which has determined presidential behaviour up to now.

1937 : Belmont decision : it reinforced the orientation of Curtiss Wright in asserting legitimacy of Executive agreements. (They are agreements signed by the President & Foreign Countries without the approval of Congress) unlike treaties which require gratification by the Senate.

Refusal of the Court to intervene concerning Vietnam

Question 27

III. The Media and the People
A-Growing Independence / Isolation of the Presidency

Answer 27

The past WW2 era saw the development of Mass Media, the decline of parties, along with the rise of interest groups and the democratisation of the electoral system.

It was the start of a New direct relationship between the President and the People through a personalisation process.

The Media are called the 4th power, or the 4th Estate in the modern era which illustrates their influence. Such a development contributed to the growing importance of public opinion, which resulted in a new balance of forces in national politics

The public has accepted to give the Presidency huge powers but in turn, expect the president to deliver on its promises which he cannot always do.

Question 28

Lowi defines the new order

Answer 28

Lowi defines the new order, born in the early 60s, as the second republic, a plebiscitary republic, led by a personal presidency. According to him, such a system creates the illusion of an omnipotent presidency based on a personality cult whereas the President is actually bound to fail as expectations have become too high.

Lowi’s thesis can be discussed but what is sure is that the direct relationship between the president and the people is a double-edge sword.

The president’s authority & legitimacy can either be strengthened or weakened by the public according to his popularity. The main test is the elections.

Question 29

A- Evolution of the Electorate

Answer 29

With the spread of the liberation movement of the 60s, a transformation of politics occurred.There was a new emphasis on direct democracy as opposed to traditional institutional politics embodied by parties.

The result was a growing participation of the people and specific interest groups in Presidential election process. It benefited independent candidates or party insurgence.

Then, once elected, there was a privileged relationship between the President and the voters

Question 30

B - Expansion of Mass Media
FDR

Answer 30

FDR used the radio to get closer to the People and to win its course. (cf the fireside chat). He also used the Press to give a positive image of itself but then the TV became the main instrument of communication for Presidents.

Question 31

Expansion of Mass Media
Eisenhower

Answer 31

In January 1955, Eisenhower held the first televised conference
Then, Kennedy held the first live conference. Kennedy was the first to master TV thus turning the Presidency into a show. It started with a 1960 campaign then during his term.

Question 32

Expansion of Mass Media
Johnson

Answer 32

Mass media also came to be used by the President to short-circuit the other branches of power, especially Congress.
Thanks to the Press and TV, President could publicised their programs and move debate from Congress to the public sphere. (= They could go public).

Yet, TV could also be unfavourable to the ones with poor communication skills like Johnson.

For instance, Johnson pressed for the passage of the Civil rights Act and the Voting rights Acts because the Civil Rights Movement called for federal action and public opinion followed.
Then, his decision not to run in 1968 was directly influenced by the opposition to the Vietnam War.

Question 33

Expansion of Mass Media

Answer 33

Nixon made a very specific use of media : he considered the national press and TV networks as enemies. So he held very few televised press conferences and he broadcast carefully prepared speeches in prime time to avoid confronting the media.

⇒ As a result, the public opinion became directly influenced by the President through Mass Media but it also became an important power in itself as the President could not ignore it anymore.

Question 34

Expansion of Mass Media

Answer 34

This change made the President powerful and dependent at the same time
if the Public supported him he could impose his policy on other powers
but if the public disapproved he could not go on governing alone.

Question 35

C- Elections and the notion of Mandate

Answer 35

The President is said to have a mandate when he is elected with a large majority in the popular vote, confirmed by the electoral vote. This proves that he benefits from the people’s support which gives him legitimacy & freedom of action. It strengthens his position in his relationship with Congress.

Question 36

Among the presidents who won mandate

Answer 36

FDR, Eisonehwer, Johnson, and Nixon

These popular victories enabled populist presidents like FDR and Johnson to ensure the passage of massive programs all the more so as their parties had a large majority in Congress.

Nixon spoiled his mandate with the watergate cover up, In contrast Truman Kennedy and Nixon in 1968 were elected with narrow margins which prevented them from overcoming resistance to their programs especially in Congress.