The President Commentary
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5 The President

5.1 Executive power

The executive power of the Confederation is vested in the President. This section provides a general definition of the President's role within the confederate institutions. This general definition is further clarified in the remainder of the chapter, especially in section 5.2.

Section 5.1 corresponds to the first part of U.S. II.1.1. The remaining issues regulated by the U.S. equivalent (the presiden­tial term and elections) are dealt with separately in the proposal's section 5.3.

5.2 Prerogatives

This section defines the executive power of the President. It grants the President the position of Commander-in-Chief, empowers him to appoint department heads, grant pardons, make treaties, make proposals to state legislatures or state citizens, make proposals to Congress, veto legislation and reduce or eliminate appropriations in order to balance the confederate budget.

The proposed constitution outlines a very powerful presidency compared with the legislature's (Congress`) powers. But as the confederate powers themselves are relatively weak, the sum of presidential powers are less than those of most contemporary federations.

Because the President in many instances, may better represent the people than the Congress, his functions as the third house of the legislature has been extended. The veto power applies to all decisions of the Congress, i.e. even to decisions that normally require a two thirds majority like proposing constitut­ional amendments (amendments to part two of the Constitution), approving deficits etc. The veto can be overridden by Congress by a majority that is 1/6 larger than that required for a decision that meets with the approval of the President, i.e. a majority has to be increased to a two thirds majority, and a two thirds majority has to be increased to a five sixths majority. 

The line item veto and the power to reduce appropriations provides the President with powers similar to those of the Referendum. It provides for the unbundling and uncoupling of spending and legislative decisions in Congress.

5.2.1 Line by line comparison with the U.S. Constitu­tion's Article II. sections 2 and 3

Subsection 5.2.2, appointment of officers, corresponds to U.S. II.2.2 , but limits have been introduced on the Senate's and the President's deliberations as a means of avoiding dead-locks in case of disputes.

Subsection 5.2.3, reprieves and pardons, corresponds to U.S. II.2.1, but limits the President's power to grant reprieves and pardons in the case of impeachment. This limitation is found in the U.S. II.4.

Subsection 5.2.4 provides for the making of treaties with the consent of Congress instead of (U.S. II.2.2) a two thirds majority in the Senate. The proposed change has to do with the changing nature of treaties. Many contemporary treaties deal with matters that previously would have been purely domestic matters subject to ordinary statutory legislation where both houses of Congress have a role to play.

Subsection 5.2.5, the right to make formal proposals to the authorities of individual states, is a new power not granted to the U.S. Pres­ident.

Subsection 5.2.6, the right to make formal proposals directly to the citizens of individual states, is a new power not granted to the U.S. Pres­ident.

Subsection 5.2.8, presidential veto powers, corresponds to the U.S. I.7.2 and U.S. I.7.3, but with major modifications:

  • line item veto granted, i.e. the President is empowered not only to veto the whole bill, but also parts of it.
  • implied veto introduced and veto period abolished. The US President must veto a bill within 10 days (U.S. I.7.2) in order to prevent it becoming law. There is no such limitation on the confederate President. Congress may however, override the implied veto (see section 6.2.4).

An implied veto, unlike its U.S. counterpart, alleviates the need for special regulations related to any actions the Congress may take to prevent the timely return of a veto.

Subsection 5.2.9, the power to reduce appropriations, is a new power not granted to the U.S. Pres­ident. It gives added flexibility in combating excessive spending and budgetary deficits.

It also confirms the President's role as the people's instrument in checking the ambitions of Congress and reconciling the interests of geographical or other pressure groups with those of the people as a whole. It provides a mechanism for enforcing the balanced budget requirement.

5.3 Term and election

Section 5.3 provides for direct presidential elections and fixes the ordinary term at 5 years. If no candidate has a majority of votes cast in the first ballot, there is a run-off between the two candidates with the highest number of votes.

By loosening the requirements for recall (see below), there is no reason why the presidential term may not be further extended (see also the discussion related to continuous election of senators and rep­resentatives in Election Methods).

No limitation on the number of terms is proposed. To the extent that this becomes a problem it may be alleviated through a recall.

5.4   Candidates

This section has no equivalent in either the U.S. or the Swiss constitutions. Candidates are nominated directly by the people through the instrument of petitions. The purpose of this proc­edure is to make the nomination process independent of party politics and procedures.

The vice presidential candidate is chosen by the presi­dential candidate. This corresponds to U.S. practice, but not cons­titutional wording (see U.S. II.1.3).

5.5   Removal

Section 5.5 is modeled on the U.S. Constitution. The first subsection states that the Pres­ident is removable on impeachment. This corresponds to a similar if not identically worded provision in U.S. II.4.

The rest of the section corresponds to the original removal provisions in the U.S. constitution (U.S. II.1.6).

By its power of regulating the courts, Congress may provide for a swift resolution of the President's possible inability, for instance by specifying the supreme court as having original jurisdiction, specifying time limits and special procedures for times of war and crisis and so on. Swiftness, flexibility and impartiality is better served by such a relatively small judicial body, than a larger body which may also be prevented from assembling by the very crisis that demands a swift res­olution.

The corresponding section II.1.6 of the U.S. constitution has since been replaced by the twenty­-fifth amendment which in my view:

  • Unnecessarily com­plicates matters by variously trying to cover all possibilities and at the same time repeating albeit in a more complicated manner, what most people would assume the original section to mean anyhow. By making the issues more complex, the amendment may thereby in a real crisis, be counter­productive and dangerous since it muddles the essentials,

  • Confers on the Congress the ultimate power of deciding whether or not the President is able to discharge his powers. This en­croachment of the Congress on the powers of the judiciary is especially dangerous since it may place the Pres­ident at the mercy of Congress at that very moment, for instance during a war or other crisis, when the executive nature of the executive powers are most needed, and indeed for the occasion from which much of the traditional rationale for creating an independent executive arose. Just in times of crisis, it is even more essential than at other times to leave these kind of issues to the profes­sional level-headedness and detachment of the judiciary and

  • Provides a means by which Congress may usurp power even if there's no crisis. In fact, the inability of the Swedish­/­Norwegian king to dis­charge his executive powers was used by the Norwegian parliament to jus­tify the annulment of the union with Sweden in 1905. 

Thus, safety is better served by a rel­atively simple rule that is flexible enough to take account of crisis circumstances, and without encouragement  for any congressional usurpation of executive power.

Revised: 2004-07-02

Copyright © 1991-2003 John F. Knutsen

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