EXECUTIVE AND JUDICIAL BRANCHES.

THE US PRESIDENCY

The Presidency means not only a man: it means an institution— the " executive branch" of the government. And this branch is precisely named: it is meant " to execute" —translating purposes into programs and programs into actions. The executive power belongs to the President of the United States, who holds office for four years and is elected, together with the Vice-President chosen for the same term, by electors from each state. The President may be re-elected and serve two terms (eight years altogether) but not longer than that (Franklin Delano Roosevelt was elected for a third and fourth term, but since then the Twenty-Second |'Amendment to the Constitution was adopted (1951) limiting the President's term in office.) The presidential election is technically an election of presidential electors, not of a president directly. After the presidential elections in November, the " President-elect" (one who has been elected President, but has not taken office) is busy choosing candidates for his Administration. " Administration" is a popular term to identify the executive branch especially that of the federal government The Administration includes the President, the Vice-President and his policy-making appointees, or even the whole body of executive officials. Generally the Administration position is taken to be the official policy of the political party in power.

In January the President-elect becomes the US President. The formal act of installing the President of the United States or the governor of a state in office is called " inauguration". Inauguration Day on January 20 is usually the occasion for extensive ceremonies, the central point of which is the taking of an oath by the chief executive officer and the delivery of his inaugural address. The solemn and formal declaration required of all holders of major public office is known in the USA as the " oath of office". The oath declares that the person taking it will preserve, protect, and defend the Constitution of the United States or of a state and that he " will faithfully execute" the office to which he has been elected or appointed. The oath of office of a newly elected President of the United States is administered by the Chief Justice of the United States Supreme Court. Governors usually take the oath of office from the Chief Justice of the State Supreme Court.

Among the duties and powers of the Presidency listed by the Constitution are these: " the President shall be Commander-in-Chief of the Army and Navy", he shall " make Treaties providing two-thirds of the Senators present concur" and appoint ambassadors and other officers of the United States, he is charged with the responsibility for taking care that " the Laws be faithfully executed". These three phrases from the Constitution give the President control of the military establishment, impose upon him a great share of responsibility for foreign policy, and assign to him the obligation to administer the federal laws and the programs of the federal government.

American historians and students of the US government system are fond of discussing the particulars of their Constitution, praising its qualities as a supreme virtue no other nation can even hope to achieve. But on closer scrutiny one can see that the document leaves much room for all sorts of undefined, and therefore unlimited action. This is particularly true as regards the functions of the US President.

As long as the White House is the exponent of the will of the oligarchy, the President is free to act as he sees fit. Super-strong executive power in the United States seems to have been regarded as the answer to all the problems facing the country, and the wisdom of the Founding Fathers seems to have thus been reaffirmed.

One may term the President Chief Legislator as well as Chief Executive of the United States. This is nowhere better illustrated than in the national budget that the President submits to the US Congress for its guidance. The budget represents the policy of the President. In his State of the Union Message the President provides the US Congress with another legislative blueprint. The State of the Union Message is an annual message from the President to the Congress. The Constitution requires that the President «shall from time to time give to. the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient". The President always submits such a message near the opening of each session of the Congress and also sends special messages, as he often does, on particular matters of concern to him. The statement may consist of past accomplishments, present activities, and future needs, and it usually is followed by other messages dealing with specific problems. The President is now required by law to submit two other annual messages to the Congress, the Economic Report and the Budget Message. The Economic Report of the President is an annual message from the President to the Congress which must be submitted by January 20. This report contains detailed information about the condition of the American economy.

The President's influence over legislation is enhanced by his position as the acknowledged leader of his party.

Frequently, individual measures are drafted in some executive department and then introduced by senators or representatives friendly to proposals. To facilitate the passage of these administration bills, the President widely uses arm-twisting (a kind of official blackmail) and his power of " patronage".¹

The US President influences the US Congress also through his right of veto, hi vetoing a bill, the President returns it to the Congress without his signature, usually accompanied by a statement of his objections. Sometimes the President disapproves of a measure but does not return it within ten days, Sundays excepted, while the Congress is in session. In that case the measure becomes law without his signature. On the other hand, if the Congress should adjourn during that ten-day period, a disapproved measure dies for want of the presidential signature. This is known as a " pocket veto".

The President's influence over the judicial branch is further. exercised through his power to appoint, with the Senate approval, all federal judges and attorneys. He has also power to set aside federal-court decisions in certain instances. For example, he may pardon, shorten the sentence of a federal judge, substitute a fine for imprisonment, or change a sentence from death to imprisonment He may also postpone the punishment until further investigation can be made or he may pardon a person convicted of a crime.

The President is responsible for relations between the United States and other powers. With the Senate approval, he names the major officers of the State Department, as well as ambassadors. He receives diplomats accredited to the United States, and communicates directly with the heads of foreign governments. 'The President has the power to recognize or withhold recognition from foreign countries. The " big stick" ² was widely used in dealing with Latin American nations, where the President could make or break a government by extending or withholding recognition, since approval ordinarily meant loans and military supplies, while disapproval meant their denial.

Treaties must be approved by the Senate, however, and for this reason the President ordinarily takes the members of the Senate Committee on Foreign Relations into his confidence. The. Senate approval sometimes is difficult to obtain, because a two-thirds majority is required. The President may by-pass the Senate, however, by entering into an " executive agreement" which does not require the Senate approval.

The Constitution makes the President Commander-in-Chief of the armed forces. While the US Congress alone may declare war, the President may make the war inevitable by diplomatic maneuvers or by the use of the armed forces.

Beginning with World War II, the power of the President sharply increased; and it was to grow through the Korean War, the development of nuclear weapons, and the cold war until it led to the US invasion in Vietnam. President Truman, for instance, ordered the American forces to invade South Korea in a " police action" that quickly developed into a major (although undeclared) war.

In its power to provide the proposed measures with money the US Congress exercises an important curb on the President. His projects require appropriation, and when the Congress is controlled by members of the opposing party, the President sometimes finds it difficult to get the money he needs, for legislative leaders may come forward with a program of their own.

The President is supposed to inform the nation of his plans and intentions through presidential press conferences. Originally presidential press conferences were rather confidential, " off the record" meetings and reporters were not allowed to quote the President directly. Now they are " on the record", and what the President says is immediately-reported. President Franklin D. Roosevelt brought into common use a new coinage— " fireside chats".⁴ The frequent deception of the people by politicians has led to the creation of a new phrase—" credibility gap" —the gap between what a politician says and what he really does, between his words and deeds.

The " credibility gap" between the government and the people grows wider day by day, and the American politicians, starting with the presidents themselves, complain that they do not have the confidence of the people.

A constitutional protection against misused executive power is the provision that the House of Representatives may bring charges against the President in impeachment proceedings. " Impeachment" is a formal accusation against a public official by a legislative body. The Constitution of the United States provides that " the President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for... treason, bribery, or other high crimes and misdemeanors". After the House has acted, the Senate tries the person who has been impeached. A vote of two-thirds of the members of the Senate present is required for conviction.

The threat of impeachment as a result of the Watergate affair⁵ made Richard Nixon resign from, the post of the US President. Against the background of the general decline of capitalism the ruling oligarchy once again decided to revert to the traditional form of government that had been evolved in America two hundred years ago and curbed the tendency that began to form in the years of World War I and which blossomed forth during the cold war, and especially in the course of the US military intervention in Vietnam. The great ascendancy of the executive branch to a certain extent distorted the principle of division of power among the three branches of government and so the oligarchy set about seeking a balance.

Now, after Watergate, one can say with a certain degree of certainty that one of the aspects of this affair, among other things, was a straggle for the restoration of American political tradition. The events in August 1974 had nothing in common with the contest between reactionary and progressive forces. It was only the " strong men" of the oligarchic republic who crossed swords, while the millions of citizens could as much influence the outcome of the drama as a TV-watcher can change the action he sees taking place in front of him. However, all were invited to watch the " box", and thus the illusion of mass participation was fostered. The course of events was very much in line with general American political practice: having settled their differences the three branches of government have again resumed their places within the system of government.

In describing the executive branch of government, little mention is made of the Vice-Presidency, a fact quite revealing in itself. The Vice-President of the United States is humorously called " His Superfluous Excellency", a title suggested in 1789 because of his lack of power. The Vice-President has tended to be the forgotten man of American politics despite the fact that at any moment he may inherit the Presidency. President Kennedy's assassination and President Nixon's resignation reminded the American policy-makers that nominees for the Vice-Presidency should be as qualified for high office -as candidates for the Presidency. Gerald Ford was the ninth Vice-President to succeed to the Presidency. Once elected, the Vice-President has an anomalous position. He has a legislative role of sorts since he presides over the Senate and may break a tie with his vote, but his executive duties are not clear. If the President chooses to share authority with the Vice-President, that is his privilege, but not his obligation.

The Vice-President is called " Acting President" when, according to the Twenty-Fifth Amendment to the Constitution he is discharging presidential powers and duties.

Today the President is Chief Executive of an organization that is bigger than the World's largest corporations. Assistants, counselors and aides make up the staff of the White House, the so-called " White House Office". The White House Office is the name given to the President's immediate aides. Their roles depend in large measure on what the President expects of them, rather than on their titles. The White House Office includes: the Assistants to the President, the President's Press Secretary, who is called upon to explain what the President meant to say, or in some cases what the President intended to say. Frequently the Press Secretary is a close personal friend and adviser to the President. An important position in the White House Office is that of Special Counsel, who is expected t advise the President on legal questions. The Assistant for Congressional Affairs is supposed to establish and maintain a close working relationship between the executive branch and the legislative branch. In addition to these more or less regular officers, the White House Office is likely to contain several special assistants who undertake whatever task the President assigns to them, a Staff Secretary who supervises staff procedures, and several military aides who may perform both in ceremonial and advisory roles.⁷

The key policy-making bodies, such as the National Security Council and the Office of Management and Budget, are incorporated in the Executive Office of the President which supervises and co-ordinates the executive departments. The National Security Council—an inner cabinet created in 1947 with the President, Vice-President, the Secretaries of State and of Defense as its members, is the main centre of planning the US foreign and military policy. The NSC is often called the " super cabinet". Under some Administration there was a growing tendency to replace the Cabinet by the NSC.

The NSC and certain federal agencies, especially the CIA (the Central Intelligence Agency), present a distinct threat to the long-established rights in the Constitution. The CIA has been involved in illegal spying on American people. The CIA's activities are hidden from the people and it tends to usurp the authority of the State Department and other governmental bodies.

By long custom the heads of the major executive departments have been regarded as the Cabinet. The Cabinet has existed continuously since Washington's administration, though it is not provided for in the Constitution. Some presidents have relied on the Cabinet more than others.

There are now the following executive departments: of State; Defense; Treasure; Justice; Agriculture; Commerce; Labour; Interior; Health, Education and Welfare; Housing and Urban Development; Transportation, and Energy.

Aside from these departments, there are more than fifty independent agencies, such as the Interstate Commerce Commissions the Civil Aeronautics Board, and the Federal Trade Commission. The scope of the executive activity is demonstrated by the fact that civilian employees of the executive branch total almost 2.5 million, a number roughly equal to the population of Los Angeles.

The existence of numerous independent boards and commissions, each exercising combined legislative, executive and judicial powers, apparently is contrary to the " separation of powers" theory. Those agencies are so numerous and their abbreviated names are so confusing that in the US common usage they got a name " alphabet soup", in allusion to the soup made of noodles in the form of the letters of the alphabet.

Court. The Supreme Court is the highest court in the country and the head of the judicial branch of the US government The federal and state courts have the power of " judicial review". This is a doctrine and practice by which the courts have authority to declare legislative acts unconstitutional, that is, in violation of the Constitution. The Constitution did not explicitly grant this power to the courts, but it has long been generally accepted as part of the US constitutional system. The articles of the US Constitution are subject to various interpretations, and it is traditional in political debate to argue over whether a proposal or action is constitutional. The Supreme Court is the only body, however, that can determine constitutionality in federal matters. The federal judiciary is responsible for the trial of cases involving federal laws, and each state has its own judicial system. This means that the United States has a dual court structure and two distinct systems of law, state and federal. As a matter of fact, the nation has fifty-one sets of courts (in fifty states and District of Columbia), fifty-one systems of law, and fifty-one collections of. judicial precedents for magistrates to follow. The result is that the United States has the most complex judicial system in the world. The Supreme Court of the United States is composed of eight associate justices and the Chief Justice, all of whom are appointed by the President for life, and the appointment must be approved by the Senate. Hence the nickname—" the nine old men", used contemptuously, especially during the late 1930's, when President F. D. Roosevelt tried to expand the Court's membership because of the advanced age of the justices.⁸

Most of the cases heard by the Supreme Court are on appeal from lower federal courts. A few of these cases come directly from federal district courts, but most of them are sent up from courts of appeal. Of the 2, 500 or more requests for hearing that the Court receives each year, almost all are rejected. In recent years, the number of cases decided at an annual session has seldom reached two hundred. Some of the cases get a " five-to-four decision", that is, a decision of the US Supreme Court in which the result is determined by one of nine justices. Criticism of such decisions in important constitutional cases has occasionally led to a demand that at least six justices be required to declare a statute unconstitutional.

There are about ninety district courts in different parts of the United States. Each state has at least one district court. Cases from minor courts, such as justices of the peace and municipal courts, may be appealed to state courts. Courts of appeal in the national court system are below the Supreme Court. The country is divided into eleven " circuits", each of these being served with a court of appeal.

At the base of the state judicial system are the courts presided over by justices of the peace. Justices of the peace are local officials usually without formal legal training and elected for a two- or four-year term. They try minor civil and criminal cases and conduct preliminary hearings in some more serious cases. They may also fix bail. Their jurisdiction usually extends throughout a county. Except in a few states, their compensation is derived from fees, with the result that, in many cases, judgement is for the plaintiff In cities there are also police courts having jurisdiction over minor crimes and misdemeanours. Their jurisdiction in the city " usually corresponds to that which is exercised by the justice of the peace courts in rural areas. In the USA they would also use the word " magistrate". Popularly the term is used to designate minor judicial officers, such as police court judges or justices of the peace.

American judicial practice is firmly committed to the idea of jury trials. The Constitution guarantees them for both criminal and civil cases. And, every year, two million Americans are called as possible jurors in some 150, 000 federal, state and local trials. Until 1970 it was generally assumed that the " trial by jury" requirement of the Constitution meant not less than a 12-man body. There were " grand juries" and " petite juries". The " grand jury" is a group of persons usually numbering between 12 and 23, assigned the responsibility of hearing witnesses and determining whether sufficient evidence exists to bring the accused to trial. " Grand juries" have come under heavy criticism over the years, and about half of the states have abandoned them in favours of a system whereby the prosecuting attorney initiates the trial declaring that he has sufficient evidence.

The " petite jury", so-called because it is fewer in number than a " grand jury", is a group of 12 persons, charged with the responsibility of rendering a judgement as to the facts in a case. (Hence its other name—" trial jury".) The conclusion of the jurors must be unanimous.

The Supreme Court in 1970 ruled that the 12-member panel was a " historical accident" and " not a necessary ingredient of trial by jury". The Supreme Court in 1970 recognized the constitutionality of a 6-man jury.

According to the US judicial doctrine, " justice is a relationship in which each citizen or group receives due respect and return". The anti-labour decisions of US courts in labour disputes, trials on cooked-up charges of Communists and labour leaders, of militant black, Indian and civil-rights fighters have proved more than once that US justice and the " due process of law", much vaunted in the United States and in which so many people in that country take pride, is in reality no law at all, or legalized lawlessness, to be more precise.

It is also called " Jim Crow justice". By this word they call in the USA racist trials of Afro-Americans who make attempt to use their civil rights, and " Jim Crow law" is a popular term for any law requiring the segregation of the white and coloured races in politics, economy and everyday life, including education, transport and places of public entertainment As a result of " Jim Crow justice" American jails are full of black prisoners. In California, where black people are 8 per cent of the population, they constituted in the early 1970's 42 per cent of the jail population. Most of them are awaiting trial and are unable to provide bail.

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