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Stars and Stripes, Justice Dept. Washington, D.C.  Photo © 2007 Scott Hanley

The free textbook alternative

If information wants to be free, why are textbooks so expensive?

Stars and Stripes, Justice Dept. Washington, D.C.  Photo © 2007 Scott Hanley

An Overview of the American Political System

 

This chapter provides an overview of the American political system, explaining the three branches of government, the concepts of federalism and separation of powers, and concluding with a brief overview of the Bill of Rights.

 

This chapter provides an overview of the political system of the United States, explaining its 1) its origins, 2) its basic structure, and 3) some of the important ways it has changed over time. This chapter does not provide in-depth analysis of any elements of the American system, but establishes a framework for deeper analyses in subsequent chapters. First we will cover the basic structure of the system, focusing on the how political authority is divided throughout the system and why it is divided that way. Then we will cover some of the significant changes over time.  

The Fragmentation of Political Power in the United States

There are two basic divisions of governing authority in the American political system. The first, federalism, is a vertical division that divides power between the states and the federal government. The second, separation of powers, is a horizontal division that divides power between the branches of the federal government. James Madison, who is often called the “Father of the Constitution” called this structure a “compound Republic in Federalist 51.

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

The system is designed to fragment power to keep it controlled.

Additionally, specific limitations on that power are made for the protection of the political rights of the public. **Bill of Rights and Subsequent Amendments**

Make it the 3 institutions that fragment and constrain political authority: Federalism, Separation of Powers, and the Bill of Rights.  Or Do I need to get all the branches in here?

 

Federalism and the (Limited) Sovereignty of the States

State Sovereignty

A federal system is one in which sovereign political authority is divided between a national-level government and regional-level governments that govern the sub-national political units that collectively make up the whole country. “Sovereign” means that the government’s political authority is independent, and is not at the mercy of some higher power. So in the U.S., as in other federal countries, not only does the federal government have sovereign political authority, but the states themselves have their own sovereign authority that is not dependent on, or subject to the will of, the federal government.

In fact, as a consequence of America’s political history, the sovereignty of the states precedes the sovereignty of the federal government. The colonies were independent entities with few political ties, and when they declared their independence they did not declare themselves a single independent state (country), but each one an independent state (country) of its own. The last paragraph of the Declaration of Independence states that:

these united colonies are and of right ought to be, free and independent states.

The states did bind themselves in a political union with the Articles of Confederation (1781, while still fighting the Revolutionary War), but the Articles explicitly emphasized the states’ independence as separate states (countries). Article II stated that:

“Each state retains its sovereignty, freedom, and independence…”

The federal government’s sovereignty comes from a limited set of political powers surrendered by the states when the Constitution replaced the Articles of Confederation in 1789. This was re-emphasized by the United States Supreme Court in 1947:

The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. (Public Workers v. Mitchell)

These powers are the enumerated powers of Congress listed in Article 1, section 8 of the Constitution. This is a specific list of powers the states surrendered to the federal government, and in theory any power not listed is not within the authority of the federal government, but remains a sovereign power of the states (except for a limited set of powers the Constitution forbids the states from exercising).

This system of both the states and the federal government having their own areas of sovereign authority is called dual sovereignty. Although that term is now used to refer to American Federalism before 1937, it is still the case that states have sovereign powers that are outside the direct control of Congress.

 

Changes in American Federalism

The original structure of federalism that we call dual sovereignty had clear lines of authority. The federal government was given authority primarily to look out for the states’ collective interests. This meant it was responsible for foreign affairs (all dealings with other countries, and the responsibility for maintaining a military force) and for economic activity that crossed state boundaries (including the authority to set tariffs and coin money, but not for very much direct economic regulation). Each state kept its authority over matters that were considered to be entirely internal to the state, including criminal law. In areas of authority that had been surrendered to the federal government, the states had generally given up that authority entirely—for example, having given authority to coin money to the federal government, no state can create its own currency and require its use. But as well will see in the chapter on Federalism, there is a limited set of powers in which the states and the federal government have concurrent authority.

In the 1930s, in the midst of the Great Depression, as the federal government expanded its authority to regulate the economy, the interpretation of federalism shifted. The crucial factor in this shift was a reinterpretation of the meaning of the interstate commerce clause. Originally understood as only giving Congress authority to regulate economic activity that crosses state lines, it came to be understood as giving Congress authority to regulate any economic activity that was related to any activity that crosses state lines, or that has multi-state effects. This is the source of Congress’s power to set a minimum wage that is applicable to all states, and to set workplace safety rules, powers it did not have before the 1930s.

This is just a brief overview of federalism, which we will cover in greater detail in later writings. But bear in mind that federalism is one of the factors that makes the United States unusual. Most democracies (and all authoritarian governments) have a unitary political system. Only about 25 **Check That Number** of the world’s approximately 190 independent countries have a federalist system (~13%). But the list of those that do is broad, including fully developed countries like Australia, Switzerland and Canada; developing countries like Mexico and Ethiopia; populous ones like India, Brazil and Germany; and some much smaller ones such as the Federated States of Micronesia and the country of Bosnia and Herzegovina; and even one Middle Eastern country, the United Arab Emirates.

 

Separation of Powers & Checks and Balances

Separation of powers is the division of a government’s political authority into separate and relatively independent branches. The primary purpose for separating the powers of government is to fragment political authority so that it is easier to prevent despotic government. The classic statement of this principle—one familiar to the men who drafted the U.S. Constitution—was written by French political theorist Charles Louis de Secondat, Baron de Montesquieu, in 1748

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

(<ahref=“http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=837” target=“_blank”>Spirit of the Laws</a>)

Montesquieu’s warning was echoed by James Madison in Federalists 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.  

But the 3 branches of the U.S. government are not entirely separate from each other, as each has some check on the other. For example the President has veto power over legislation passed by Congress, Congress (through the Senate) has veto power over presidential appointments and treaties the president negotiates with other countries, federal courts can nullify laws passed by Congress and signed by the president, and the judges on the federal courts get there by being appointed by the president and approved by the Senate.

The idea behind these checks is to ensure that each branch balances the others’ attempts to expand their political power. Madison explains the idea behind these encroachments on the separation of powers. In Federalist 48 he defines the problem:

It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, [between] the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved.

In Federalist 51 he explains the solution:

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. …

These “necessary constitutional means” are the checks and balances each branch has on each other.  The “personal motives” are, simply, jealousy of each other’s power. The whole system of separating powers and then giving each checks on each other is based on the assumption that people in government will have a thirst for power. Madison’s explanation continues in Federalist 51:

Ambition must be made to counteract ambition. … It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

**YADDA YADDA**

The Three Branches of Government

Congress

The United States Congress is the legislative branch of the American government, responsible for drafting the laws of the country and allocating public money to support the many programs and policies it has developed.

The Congress is divided into two houses of roughly equal authority. The lower house is the House of Representatives, sometimes called “the people’s house,” because in the original constitutional design Representatives were the only government officials elected directly by the people, and with a short two-year term of office they are frequently going back to the people for approval. The upper house is the Senate, which originally represented the states (Senators were appointed by state legislatures until 1913 when the 17th Amendment instituted election by the people).

The reason for dividing the legislature into two houses was, again, about fragmenting the power of government. Madison explains this in Federalist 51, where he notes that the inevitable predominance of the legislative branch requires an extra constraint on their power:

In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.

To pass legislation, both houses must have a majority vote in favor of the same bill. This makes it harder to pass laws, and gives more opportunities for opponents to object and try to persuade legislators to vote against the proposed law.

The House of Representatives

The House of Representatives is the larger of the two houses, with 436 members. Its membership is based on proportional representation, with more populous states having more representatives. The purpose behind this is to provide the people of each state with an equal amount of representation as those of each other state. Its representatives are also based on districts, so that a state that has, for example, 5 representatives, will draw 5 equal-population districts, with a single representative for each one. Although the Constitution does not require this, it is a deeply embedded and traditional practice and was written into law by the U.S. Congress in 1967. The Constitution requires that a census be conducted every ten years to determine the number of people in each state, after which the 435 seats in the House are re-apportioned, to adjust for population changes among the states. States then re-district, to add new ones or subtract old ones as necessary, and to keep equal population among the districts within the state.

Because its larger size makes organization more crucial to effective functioning, the House has developed stronger leadership control over the legislative process than has the Senate. But party leaders in the House have very limited control over their own members. Because the parties do not select political candidates (American political candidates are, mostly, self-selected), Representatives are much more accountable to their constituents than they are to their party’s leadership.

The House has few special responsibilities not shared by the Senate, however it is the chamber that has authority to impeach a president or member of the federal judiciary (the trial is held in the Senate). However any bills for raising revenue must be approved by the House before the Senate gives them final approval.

The Senate

The Constitution requires that each state have two senators, so at present the Senate has 100 members (because there are 50 states). Unlike Representatives, who most often represent only a district within their state, every Senator represents his or her whole state. This makes states look like multi-member districts, but while the districts cover the same territory, they are different temporally—they overlap in time, but do not cover the same time period. Each Senator serves a 6 year term, but with congressional elections occurring every 2 years, one of a state’s Senators will be elected in one election year (such as 2014) while the other will be elected 2 or 4 years later.

Having longer terms, and usually larger and more diverse constituencies, Senators tend to have a less personal relationship with their constituents, and are somewhat more free to act on their own rather than referring back to the wishes of their constituents. Senators are also more individualistic in their chamber’s organization, and even less controllable by their party’s leadership than Representatives are.

The Senate has several special responsibilities. In addition to being the trial court for impeachments, it has the power of “advice and consent,” meaning it has the authority to approve or reject treaties negotiated by the president, and approve or reject presidential appointments to the executive and judicial branches.

The Senate also differs from the House in that its rules allow for the filibuster. Whereas the House sets time limits for debate on bills before the final vote on them, which requires strict limits on how long any Representative can hold the floor to comment on the bill, the Senate has unlimited debate, without set time limits, and any Senator can filibuster—speak on an issue as long as he or she wants in an effort to stave off a final vote. Debate ends when 60% of the Senators vote to impose cloture, but unless and until there are 60 votes in favor of ending debate, Senators can continue to speak as long as they choose. The filibuster is both a long-standing tradition and a controversial topic, as rule changes in the past several decades have made it easier to use a filibuster to stall legislation.

The House and the Senate are similar in that both are organized both along party lines and through a large set of committees. The bulk of the legislative work is done in committees, and because the party that has a majority in the chamber has a majority on each committee, the legislative process is normally controlled by the majority party.

**The president can veto legislation, but Congress can over-ride the veto with a two-thirds majority of each house.

Other Congressional Functions

In addition to legislating and approving (or not) presidential appointments, Congress has three other important functions: budgeting, agency oversight, and constituent service. We will cover each of these in greater detail in subsequent chapters, and will just give a short overview here.

· Budgeting: Congress is responsible for passing a budget to authorize funds for the programs it has legislated into being and for gaining the revenues to cover the amounts authorized. Since 1921 the President has been required by law to propose a budget to Congress, but Congress retains authority to make as many changes as they choose, or to disregard the president’s budget entirely. As with other legislation, though, to become effective law the budget must either be signed by the president, or—if the president vetoes the budget—passed by a veto over-ride.

· Agency Oversight: An important task of Congress is to act as a watchdog on the executive branch. Oversight is an important check and balance on the Executive Branch.  It is generally done by committees that cover the same areas of policy as a particular agency. For example the House Agricultural Committee and Senate Agricultural Committee have primary oversight authority over the Department of Agriculture, but do not have oversight authority over the Department of Defense. Oversight occurs in the legislative and budgeting process, as Congress considers changes to the statutes that govern agency actions or changes to their budgets, and in special committee hearings in response to political controversies involving agencies (such as hearings about the failure of the intelligence agencies to prevent the 9/11 terrorist attacks).

· Constituency Service: An easily overlooked but to Congressmembers and their constituents vitally important function is to provide political services to constituents. Some examples of constituency service are:

o To attend one of the U.S. military academies a person normally needs a nomination from a congressmember, and congressmembers are often happy to do this, to please the nominee’s friends and family;

o Citizens often have trouble negotiating the federal bureaucracy, and congressmembers can help with this—for example a farmer who is trying to get a loan from the Farm Service Agency, or a veteran who is having trouble securing disability benefits from the Veterans’ Administration;

o Congressmembers will often send birthday greetings to their constituents, because it is an easy way to build good will with voters.

o There are many other examples, and a comprehensive constituent services manual has been developed, and made public by the Congressional Management Foundation. http://www.congressfoundation.org/storage/documents/KL/2005-constituent-services-manual.pdf

 

Presidency (including bureaucracy)

The President of the United States is the head of the executive branch of the American government. The president’s primary functions are to ensure that the laws and policies of the country are carried out and enforced, and to represent the U.S. in international affairs.

The president serves a 4 year term. Since ratification of the 22nd Amendment in 1951, presidents have been limited to 2 terms of office.

Presidential Power

President have several types of power—enumerated, delegated, and inherent—and effective presidents work to maximize their influence through strategic use of each type.

**Consider using this  http://nationalparalegal.edu/conlawcrimproc_public/federalism/presidentialpowers.asp**

· Enumerated powers are the powers explicitly given in Article II of the Constitution. They are:

o Commander-in-Chief of the Armed Forces: This is an important principle in American politics, ensuring that the military is always under civilian control. When a former military leader becomes president (12 generals have gone on to become president) they must resign their military commission. This power is checked—at least in theory, if not in practice—by Congress’s control of the military budget and its authority to declare war.

o Pardons: The President is the last line in the federal criminal justice system, able to pardon people who have been convicted of crimes against the U.S. (not for state crimes). The purpose of this power is to prevent miscarriages of justice, but at times it has appeared to be used to protect presidential allies from facing the just consequences of their alleged crimes. There is no check on this power.

o Treaties: As the representative of the U.S. to the world, the president has sole authority to negotiate treaties with other countries. Neither Congress nor the Courts can either require him to negotiate a treaty nor forbid him from doing so. However there is a check on this power, in that before a treaty can take effect it must be approved by a 2/3 vote of the Senate.

o Appointments: Presidents appoint ambassadors (an important foreign policy power), members of the federal judiciary (a check on the judicial branch), and high-ranking officials of the federal bureaucracy (which is part—most—of the executive branch). This power is checked by the requirement that appointments be approved by a majority vote of the Senate. However the president can bypass the Senate by making a “recess appointment,” appointing someone while Congress is not in session to vote on the appointment, and these appointees can serve until the end of the session of Congress.

o Receiving Ambassadors: Along with appointing ambassadors to other countries, presidents can receive other countries’ ambassadors. Together, these two powers have vast significance, as they allow a president to extend diplomatic recognition to groups that have declared independence, helping them to move beyond a mere claim of statehood to being recognized by the international community as an independent country (such as recognizing Panama’s independence from Colombia in 1903, in exchange for the right to build the Panama Canal, and recognizing Israel as an independent state a mere 15 minutes after its declaration of independence in 1948). This power also enables presidents to choose between two rival factions claiming to be the legitimate government of a country, such as our recognition of the anti-communist Kuomintang as the internationally recognized government of China in the late 1940s (even though they had lost a civil war with the communists and been forced off the mainland, controlling only the small island of Formosa), and our subsequent shift to recognition of the communist government on the mainland in 1978.

o Convening and Adjourning Congress: The president has authority to adjourn Congress if the two chambers cannot agree on a time of adjournment, and may also convene one or both houses for special purposes if they are not currently meeting. When the Constitution was drafted, Congress was expected to meet only a few months each year, and now that Congress meets almost year-round, the exercise of either of these powers is exceedingly rare.

· Delegated powers are those that Congress has delegated to the President by statute.

o Budget…still controlled by Congress, but gives president an important informal power, the power of agenda control.

o Rule-making

The power of the presidency has grown extensively over the past century, and many scholars now believe presidential power has reached a point where it threatens the constitutional design of checks and balances. This conception of the presidency has been called “the Imperial Presidency” since the 1960s.

**More*

Judiciary

 

 

 

This section still under construction

This section is under construction.