Relation of the executive to the legislative power.
Power of the Executive in Respect to Legislation:-The relation of the supreme executive to the legislative organ, said Sidgwick, :
“is one of the knottiest points in constitutional construction.”
and it is the nature of this relationship which serves to distinguish the two most important forms of government the cabinet system and the presidential system from each other. In practice there is no state in Which the sphere of the executive power is totally separate from and independent of that of the legislature, not even those in which the presidential system of government is found. Everywhere the executive is given a certain power of control over the work of the legislature and of participation directly or indirectly in the function of legislation.
Conversely, in all states the chief executive is subject in certain respects to the control of the legislature through its power to create offices and prescribe their duties, establish government services, appropriate money for their maintenance, and to impose duties or obligations upon him.
The control of the executive over the legislature consists in the power to summon it and to open, adjourn, and prorogue its sessions and, in countries having the cabinet system of government, to dissolve it and to order new elections. In republican, states the power of the executive to convene the legislature is usually limited to the calling of extraordinary sessions in times of emergency for the consideration of special matters which need immediate attention.
In most such states either the constitution or the statutes prescribe the date for the assembling of the regular sessions of the legislature, and no call of the executive is necessary. In states having the cabinet form of government, however, the legislature usually convenes only upon a call of the executive though in most cases the executive, which, of course, means the cabinet, is required to summon it at certain stated intervals. In some states (e.g., Czechoslovakia) he is required to summon it upon demand of a certain number of its members.
In the former case the legislature assembles automatically, as it were, and opens its proceedings Without the participation of the executive in the latter, the formality of opening the session is a function of the executive or his representative, who performs the duty with more or less ceremony, such as the reading of a speech from the throne or the reading by the prime minister of a ministerial declaration outlining the policy of the cabinet, if it happens, to be a new one, In the European monarchical countries the right of the executive to prorogue the sittings of the legislature that is, to suspend-the session to a certain date in the future, is generally provided for by constitutional provision, though in republics such a power is rarely recognized as belonging to the executive. In countries having the cabinet system of government the executive is usually invested also with the power of adjourning the legislature subject to certain imitations.
In states having the presidential system of government the power of the executive is usually limited to adjourning the legislature only when the two~chambers are unable to agree upon a time of adjournment. In all states having the cabinet form of government the executive is vested with the power of dissolving the legislature, or rather the popular chamber, that is, of terminating the mandates of the members and thus putting an end to the legal existence of the chamber. But generally the exercise of this power is subject to certain limitations.
With a few unimportant exceptions it can be done only upon the advice of a responsible ministry, and in most instances the dissolution must be followed within a certain period by new elections and the convening of the new parliament, Theoretically, the British executive is not subject to any limitations regarding the ordering of new elections and the summoning of the new parliament, but practically the conditions of the British parliamentary system make it a necessity.
In the republics of America where the presidential system of government prevails, generally the right of the executive to dissolve the legislature or either chamber of it is not recognized. There the mandates of members of the legislature are terminated only by the legal expiration of the terms for which they are chosen, or by resignation or expulsion.
The more direct participation of the executive in legislation consists in furnishing the legislature with information concerning the legislative needs of the country, in recommending measures for its consideration sometimes, though rarely, in the initiation of legislative projects in approving or disapproving its acts and in promulgating those which are approved.
The wisdom of requiring the executive to furnish the legislature with information concerning the state of public affairs and of recommending legislation to meet the needs and conditions of the public service rests on the obvious fact that the executive, from the very nature of his office, must have more extensive sources of information in regard to domestic and foreign affairs than the legislature can be expected to possess.
The true workings of the laws, observed Judge Story, the defects in the nature or arrangements of the general systems of trade, finance, and justice, and of the military, naval, and civil establishments are more readily seen and are more constantly under the view of the executive than they can possibly be of any other department.
There is great wisdom, therefore, in not merely allowing, but in requiring the President to lay before Congress all facts and information which may assist their deliberations, and enabling him at once to point out the evil and to suggest the remedy.
The Executive Veto.
The most important power of the executive in connection with legislation arises from the almost universal practice of making his approval essential to the validity of the acts of the legislature. This power of the executive to disapprove acts of the legislature is popularly known as the “veto,” or, as it was called by the writers of The Federalist the president qualified negative.
In a few states, like Great Britain, the veto power is absolute and cannot be overcome by any vote of the legislature, however large. There, however, owing to the thoroughgoing development which the cabinet system has undergone, the power of disapproval has necessarily fallen into desuetude and will probably not be exercised again unless in very exceptional cases.
In the great majority of constitutions the veto power of the executive is equalized, that is to say, it may be overridden by the legislative, provided an extraordinary majority of the members, usually two thirds, concur in repassing the measure disapproved.
In France, the veto of the executive is merely suspension in character, and can be exercised simply to compel reconsideration by the legislature of measures passed by it and disapproved by the president. It is, says Esmein
“a preservative against possible abuses and dangers of the parliamentary initiative.”
A repasage of the vetoed measure by an Ordinary majority of the members makes it a valid law, notwithstanding the interposition Of the executive veto. In fact the suspensive veto has never been exercised in France a single time since the establishment of the Third Republic and it may, therefore, be regarded as a dead letter. Since the cabinet system of government exists in France, there is not likely to be any occasion for the exercise by the president of the veto power.
The principal purposes of the veto are to prevent hasty and ill considered action by the legislature, and to furnish the executive with a means of defense against the encroachments of the legislature upon his constitutional power’s. Hamilton pointed out that there was a strong tendency-a tendency almost irresistible in republican governments-for the legislative authority to absorb every other.
The representatives of the people, he observed, are sometimes inclined to fancy that they are the people themselves and to assert an imperious control over the other departments. As they commonly have the people on their side they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the constitution.
A mere parchment delineation of the boundaries of the three departments, Hamilton went on to remark, is in sufficient, and hence each must be furnished with constitutional arms for its own defense against the depredations of the other. Without the power of veto the executive might be gradually stripped of his authority and even annihilated by the successive resolutions of the legislature. The possibility of this danger is all the greater in a country like the United States, where the executive has not the right of adjournment, of prorogation, or of dissolution.
The veto power continued Hamilton, not only serves as a shield to the executive,but it furnishes an additional security against the enactment of unwise legislation and establishes a salutary check upon the evil effects of faction, precipitancy, and want of consideration. Where, however, the constitutional rights of the executive are not involved, in short, where the difference of opinion between the executive and the legislature relates to the wisdom or expediency of the measure, the veto power should be used sparingly. A wise executive will be inclined not to set his own judgment against that of the legislature,but will yield to its views of public policy.
To the argument sometimes advanced that the veto power of the executive may be employed to prevent the enactment of good laws as well as bad ones, it may be replied that the power cannot be effectually exercised if an extraordinary majority of the legislature are favorably disposed toward the law vetoed. Such an argument, said Hamilton, will have little weight with those who have a proper appreciation of the mischiefs of that inconstancy and mutability in the laws which form the greater blemish in the character and genius of our governments. We should rather look with favor upon every device intended to restrain the evils of our legislation evils which since Hamilton’s day have certainly grown to be of the first magnitude.
Where the veto power is qualified, that is, where the objection of the executive may be overcome by the legislature, a larger number than a bare majority concurring, the means is provided for enabling the executive to point out the defects of legislation submitted for his approval and of compelling a reconsideration by the legislature of its former action. In short, when exercised, it is in effect an appeal to the legislature itself and merely asks a revision of its own judgments. Especially is this true in the United States, where the executive is obliged to state the reasons for his objections and where the legislature is required to reconsider measures vetoed.
The Immunity of the Executive from Judicial Process:-
It may be laid down as a proposition of almost universal application that the chief executive cannot be subjected to control of the ordinary courts either for criminal or for political policies.
In the United States the President is responsible to but one body for his criminal acts, namely, the Senate organized as a court of impeachment-a court whose jurisdiction over the President is limited to removing him from office and disqualifying him from again holding public office. He cannot be arrested or in any manner restrained of his liberty or interfered with by the order of any court or compelled to obey any judicial process or to give evidence either by personal testimony or deposition in any court.
The courts of the United States have uniformly declined to issue processes against him or to restrain him by injunction or in any way control his discretionary authority. The immunity of the President, however, from responsibility to the courts for his criminal acts ceases with the expiration of his term of office. As soon as he becomes a private citizen, the courts may take jurisdiction of his person and compel him to answer for his misconduct.
Moreover, the courts have no scruples against inquiring into the legality of the orders and regulations issued by him and of declaring them null and void when in their Opinion they are not authorized by the constitution or laws. Furthermore, the immunity enjoyed by the chief executive does not belong to his subordinates, not even the members of his cabinet: Over them the courts freely exercise control, and the orders of the President are no defense for violations of the constitution and laws by them.
As the President acts for the most part through subordinates, the courts are thus enabled to restrain him from administering the government in violation of the constitution and the laws.
The exemption of the executive from the control of the courts has been criticized by some doctrinaires as a survival of the monarchical doctrine that the king can do no wrong and hence as being dangerous and inconsistent with the theories of republican government.
Experience and reason, however, teach that the principle rests upon considerations of political necessity and sound public policy. It is impossible to subject the supreme head of the government to the control of the courts without impairing his independence, interfering with the discharge of his high duties, and destroying the unity of the executive power.
To attempt it would lead to useless conflicts between the executive and the judiciary, since, controlling as he does the machinery of execution, he might successfully resist the execution of judicial process directed against him or pardon himself of any punishment which a court might attempt to inflict upon him.
The experience of the past shows that the dangers prophesied from the personal independence of the executive are mostly imaginary, that they are, indeed, far less than those which would follow from subjecting him to the constant interference of the courts and exposing the people to the dangers of anarchy.
Methods by Which the President May Be Removed from Office in Other Countries.-
In most other republics the immunity of the president and the procedure by which he may be removed from office are similar in principle to those in the United States. In France he may be impeached by the Chamber of Deputies, apparently for the crime of high treason only, and tried by the Senate constituted as a high court of justice. But singularly enough neither the constitution nor the statutes of France contain any definition of the crime of high treason or prescribe the punishment therefor.
Does it belong to the Senate in these circumstances to determine whether the act for which the president has been impeached is high treason and to fix the punishment therefore in case it is so held P It is a principle of French criminal law (Art. 5 of the criminal code), expressly affirmed by the Declaration of Rights in 1789 (Art. 8), that no one may be punished except in virtue of a law-that, in short, where there is no law, there is no penalty. No case has arisen in France involving the application of the constitutional provision relative to the trial of the president for treason.
In Chile the president may be impeached by the chamber of deputies during his term and for six months after its expiration for acts by which the honor or security of the state may be gravely compromised or the constitution or laws openly infringed, and tried before the senate, which may by a two thirds majority pronounce him guilty, in which case he is automatically removed from office.
The president of Brazil may be impeached by the chamber of deputies for both ordinary and official crimes for the former he is tried before the federal supreme court for the latter, before the senate.
The president of China is declared to be immune from criminal prosecution while in office, except that he may be impeached for treason by the house of representatives (by a two thirds vote) and tried by the senate. If convicted by a two-thirds majority, he shall be expelled from office and may be further prosecuted before the supreme court.
The president of Austria may be impeached for violation of the federal constitution, by the two chambers in joint assembly, and tried before the supreme constitutional court. In case of conviction he forfeits his office and may in addition be temporarily deprived of his political rights.
The president of Czechoslovakia may be impeached (offenses not specified) by the chamber of deputies by a two thirds majority and tried before the senate. The president of Poland, may be impeached by the lower chamber (by a three fifths majority) for betraying the country, violating the constitution, and for criminal offenses, in which cases he is tried before the supreme court.
The new constitution of Germany declares that the president shall not be subject to criminal prosecution (for ordinary crimes) without the consent of the Reichstag, but he may be impeached by the latter body (by a two-thirds majority) and tried before the supreme judicial court for wrongful violation of the constitution or laws of the Reich. Nothing is said, however,in regard to the punishment which the court may inflict in case he is found guilty. It was probably the intention of the authors of the constitution that this should be regulated by statute.
Existing Methods Evaluated :-
Such are the usual methods by which the chief executives of republican states may be removed from office. The general principle is the same everywhere, except that the body which hears the charges and renders the decision is in some states the upper chamber of the legislature while in others it is the supreme court. Each has its advantages and disadvantages.
Trial by a legislative chamber means trial by apolitical assembly, and the requirement of an extraordinary vote to convict does not necessarily insure the accused against conviction for political reasons. Trial by the supreme court affords greater assurance that the decision will be unaffected by political considerations, but it has the disadvantage of throwing upon the court the doubtful task of deciding what may in fact be a political rather than a strictly judicial question. On the whole, the latter method would seem to be preferable.
Popular Recall of the German President :-
In one respect the situation of the president of the German republic differs from that of all other republican chiefs of state. He may be recalled before the expiration of his term by a vote of the people. By a two thirds vote of the Reichstag the question of his removal may be submitted to a popular referendum, and when such a resolution has been passed, the president is automatically suspended from office pending the verdict of the electorate. The president may prevent the Reichstag from taking such action, through his power of dissolution, but in that case he would be under the necessity of obtaining the counter-signature of the chancellor to the decree of dissolution, and since the chancellor is responsible to the Reichstag, it is doubtful whether it could be obtained.
The Reichstag, however, is deterred from taking action looking to the recall of the president, unless it is reasonably certain that its proposal for his recall will be approved by the electorate, since by the terms of the constitution a negative vote will have the effect of automatically dissolving the Reichstag. The effect of a popular verdict favorable to the president also amounts to a reelection of him, presumably for a full term of seven years.
Power of the French Parliament to Force the Resignation of the President :-
The situation of the French president, in practice, is still more precarious in respect to his tenure. Although, by the constitution he is elected for a term of seven years and can be removed only by impeachment and conviction for treason by the Senate, it is now apparently established by precedent that he may be forced by the hostile attitude of parliament to resign before the expiration of his term. Grévy’s resignation was demanded by parliament and he complied with the demand.
More recently still Millerand was compelled to do likewise by the refusal of parliament to give its confidence to any ministry appointed by him, with the avowed purpose of Compelling him to resign. He and his supporters vigorously protested that the action of parliament in thus compelling him to abandon his office before the legal expiration of his term was a violation of the constitution, but the protest was without effect.