by Ken Stremsky

Mr. Berg-Andersson:

In your Commentary of 11 April 2009, you wrote "In the American system, the political executive - the President and those who report to him (the Executive Branch)- is not at all responsible to the Congress of the United States".

What do you mean "not at all responsible to the Congress of the United States"? You should realize Congress may have as much power on FOREIGN POLICY as it wants to have.

For example: Article I, Section 8 of the United States Constitution says Congress has the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".

Congress may require the President of the United States of America and other officials within the Executive Branch to come before Congress to answer its questions. Yes, they may refuse to speak, but Congress may punish them for not answering its questions because of its constitutional power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Congress has the power to IMPEACH the President of the United States of America and other Executive Branch officials.

Do you still think the President and other Executive Branch officials are not responsible to Congress? If the President of the United States of America breaks the laws passed by Congress, the President may be sent to jail. The President of the United States of America is not above the law. Members of Congress should realize that the President of the United States of America is not above the law.

You would have been better off saying

In the American system, the political executive - the President and those who report to him (the Executive Branch) - has a great deal of independence from the Congress of the United States.

Keep in mind that- because of Article II, Section 2 of the United States Constitution- the United States Senate has to vote on the Secretary of State, Secretary of Defense, Secretary of the Treasury and other Secretaries of Departments as well as Ambassadors.

Because Ambassadors and Secretaries of Departments are confirmed by United States Senators, may Congress refuse to allow the President of the United States of America to fire them even though the President of the United States of America has the "executive Power"? Could Congress say that, because the United States Senate voted for them, the United States Senate should have a vote on allowing them to keep their jobs? Is the permission of the United States Senate necessary in order to fire them?

I hope you realize "responsible to" is a poor choice of words.

Ken Stremsky
kstremsky at live dot com

Ken Stremsky was a candidate for the Republican nomination for the United States Senate in 2002.

Mr. Berg-Andersson responds:

Well, truth be told, it was not really my own choice of words to begin with (though- yes- I suppose I could have, instead, written "not at all directly responsible to the Congress of the United States"- in which case what I wrote on 11 April would still, basically, hold true):

for I was using "responsible to" in the sense of 'being beholden to' (in the sense that a child is responsible [beholden] to his parents- that is: required to answer to them in every aspect [where, for instance, a child who comes home later than he was told to be home by a parent after having spent the evening with his or her friends knows he or she might well face some form of punishment by his parents for such a transgression of their rules]), which is pretty much the way political "responsibility" is defined- as something of the proverbial "term of art"- within the realm of Political Science.

The Prime Minister (or Premier or Chancellor, whatever term might be used for the political executive in a given Parliamentary Democracy) and his or her Cabinet of Government Ministers are (directly) responsible to the Parliament (or at least the lower house of same, where a Parliament might be bicameral) in the sense that a mere vote of the legislative body can remove them (the vote of No Confidence). Not so in the United States of America, however!

Your own rhetorical query, Mr. Stremsky- where you ask "may Congress refuse to allow the President of the United States of America to fire [Secretaries of Departments and Ambassadors] even though the President of the United States of America has the "executive Power"? Could Congress say that, because the United States Senate voted for them, the United States Senate should have a vote on allowing them to keep their jobs? Is the permission of the United States Senate necessary in order to fire them?"- suggests that you at least acknowledge an essential difference between a Parliamentary system and a Presidential-type Democracy such as ours: for ours is one in which Congress- or either chamber of same- cannot remove the President's Cabinet, or even the President himself, by simple majority vote (as in the case of a No Confidence vote in a Parliamentary Democracy).

The most serious attempt to institute an at least quasi-Parliamentary system here in the United States at the Federal level, initiated by the so-called "Radical Republicans" in control of Congress after the Civil War, came with the passage of the 'Tenure of Office Act of 1867'- adopted through override of a veto by President Andrew Johnson (Johnson's open defiance of this law- which he believed to be inherently unconstitutional- was largely what led to his eventual Impeachment by the U.S. House of Representatives and subsequent Trial on said Impeachment by the United States Senate, which- however- failed of the 2/3 of the vote necessary to remove him from office-- but the key thing to note here is that, constitutionally, a 2/3 vote of the Senate [the upper house of Congress, by the way] was actually necessary in order to remove the President: this is quite different from what is entailed in a simple vote of No Confidence in a Parliamentary Democracy).

This 'Tenure of Office Act of 1867' that had caused all the fuss in the first place gave Congress- specifically the Senate- the power to, in essence, override a President's removal of an Executive Branch officer whom Congress supported (the Act specifically required that any Executive Branch officer confirmed by the Senate must remain in that office until one month beyond the expiration of the four-year Administration resulting from the most recent Presidential Election unless the Senate might vote otherwise).

Most constitutional scholars since the close of the era of Reconstruction have consistently opined that President Andrew Johnson, indeed, had been correct- that such a law was, in fact, a clear violation of the United States Constitution (thus, the answers to all of Mr. Stremsky's questions as I quoted them earlier in this response would be a resounding "No!"-- but, in so answering "no", it must also be noted that, thereby, neither the President of the United States nor his Cabinet [or equivalent Executive officers or, for that matter, Ambassadors] are "responsible to"- in the Political Science sense of the term- to Congress in the manner in which the Government Ministers in a Parliamentary system are "responsible to" a Parliament).

To be fair, it must be noted that there was never ever a United States Supreme Court ruling on the issue- at least not in direct relation to the 'Tenure of Office Act of 1867' itself. For the law was modified (one could argue a better term might even be "somewhat watered down") not all that long after Ulysses S. Grant had succeeded Andrew Johnson in the White House (thus, one can fairly consider if, indeed, the 'Tenure of Office Act' was merely a congressional weapon aimed directly at Johnson personally) and was eventually repealed some two decades after it had first been adopted: thus, no lawsuit ever emerged under this Act which could have presented a live case or controversy appealable to the High Court as regarded the constitutionality of this Act.

However, there was an earlier Supreme Court decision- long before the Tenure of Office Act was even adopted- that did touch upon the issue at hand: the case so decided was Ex parte Hennen [13 Peters (38 U.S.) 230 (1839)] re: which the Opinion of the Court stated that

it would seem to be a sound and necessary rule to consider the power of removal as incidental to the power of appointment... it was very early adopted as the practical construction of the Constitution that the power was vested in the President alone.

In other words: the person doing the appointing (the President) retained the sole power of removal and, while the U.S. Senate might constitutionally be allowed to "advise and consent" (or not) to appointments requiring just such Senate confirmation, once an Ambassador or the Head of an Executive Department (that is, a Cabinet 'Secretary')- or an equivalent officer, such as the head of a Federal Agency established by Act of Congress- has been so confirmed, the Senate's direct input (as regards said appointee) is over and done with (although, obviously, Congress ever retains the power to simply abolish the given Executive Branch office itself- and, should the President veto just such an Act of Congress, override said veto: in which case the appointed officer would no longer be in said office [but this would only be because the office in question would no longer exist and not because the office, while it had still been in existence, was at all "responsible to" Congress in the sense in which I was using this phrase in my 11 April Commentary!])...

at least this I have stated has been the essence of what the constitutional Presidential Removal Power has been held to entail throughout most of this Nation's History (the period during which the Tenure of Office Act of 1867 was on the statute books- perhaps, but only just perhaps- excepted).

Again, the ultimate authorities to which the President of the United States is responsible are, first and foremost, the Constitution of the United States which he, alone, has taken an oath to "preserve and protect", as well as "defend" (yes, all other Federal officers- elective and appointive, from Cabinet Secretaries down to the rawest recruit in any branch of our Nation's Armed Services- take an oath to "support" as well as "defend" the Constitution but such "support[ing]" is not precisely the same as the burden of "preserv[ing] and protect[ing]" it) and, then, the American People, the collective actions of which- however indirectly- elected him.

As regards the latter, future President of the United States Woodrow Wilson- in his doctoral thesis Congressional Government: a Study in American Politics- stated the following:

Power and strict accountability for its use are the essential constituents of good government. A sense of highest responsibility, a dignifying and elevating sense of being trusted, together with a consciousness of being in an official station so conspicuous that no faithful discharge of duty can go unacknowledged and unrewarded, and no breach of trust undiscovered and unpunished- these are the influences, the only influences, which foster practical, energetic and trustworthy statesmanship. The best rulers are always those to whom great power is intrusted in such a manner as to make them feel that they will surely be abundantly honored and recompensed for a just and patriotic use of it, and to make them know that nothing can shield them from full retribution for every abuse of it.

Having said this, however, Wilson next went on to address that which appears, to me, to be at the heart of your own concerns, Mr. Stremsky, about my having used the phrase "not at all responsible to" as regards the relationship between a President and- in the case of the United States- Congress in a Presidential system of governance in contradistinction to the Parliamentary, where he [Wilson] wrote

It is, therefore, manifestly a radical defect in our federal system that it parcels out power and confuses responsibility as it does. The main purpose of the Convention of 1787 seems to have been to accomplish this grievous mistake. The "literary theory" of checks and balances is simply a consistent account of what our constitution-makers tried to do; and these checks and balances have proved mischievous just to the extent to which they have succeeded in establishing themselves as realities. It is quite safe to say that were it possible to call together again the members of that wonderful Convention to view the work of their hands in light of the century that has tested it [NOTE: Wilson was writing this in 1885- REB-A], they would be the first to admit that the only fruit of dividing power had been to make it irresponsible.

Now, I don't at all share Wilson's implication, in his words as quoted above, that the Framers of Our Nation's Constitution purposely set out to so divide political Power and, thereby, render it irresponsible- nor do I accept his notion that the "only fruit" such a division bore was inherent irresponsibility. I myself, during all of the now-nearly four decades I have been pursuing the study of American Constitutionalism, have ever given the Framers the wider benefit of the doubt when it comes to their intentions and, rather, always recognize that these were ordinary men of Politics wrestling with a unique political problem: how best to fashion an effective overarching central government without risking the Tyranny (as they themselves would have seen, and called, it) of the British system of governance from which they had so recently broken away (nor, it should be added, without too much encroaching upon the separate political power of the sovereign States that would make up their new "more perfect Union"); the very fact that the Framers- not just of the U.S. Constitution itself, but also those who framed many of the earliest State Constitutions- pretty much invented the Presidential system, while Great Britain continued to develop the earliest features of the Parliamentary, strongly suggests that such was, indeed, the case.

Thus, whatever "irresponsibility" might (or might not) have accrued within American Government as the years and decades passed and as a direct result of just such a literal application of Separation of Powers (which is precisely what Wilson was addressing here) was, in the main, wholly inadvertent on the part of those who had drafted the original document. Yet, and also in the main, the Framers also left it to Providence- or, at the very least, the collective wisdom of future generations of Americans (however much or little of this there might be at any given time in History)- to be brought to bear upon the continual- in truth, never ending- working out of the kinks in a system of governance in which, as I've said, the President is not so directly subject to Congressional disapprobation.

Rather, as Wilson implied in the first portion of my quoting from him above, it is the approbation (or disapprobation) of the American People per se that much more affects the ability of the President to carry out his many and various official responsibilities in the way he might most wish to do so: for a lack of Popular Will does far more to dissuade- or at least make rather difficult- a President implementing his chosen policies and program than anything Congress might ordinarily do (after all, the President has a veto power, constitutionally made difficult to override, over Congress that he has not at all over American Public Opinion); by the same token, and at the same time, Popular Will can very well aid and abet a President in any potentially contentious relationship with a recalcitrant Congress, even one controlled by his own Party.

Again, it is as regards this latter sense that I argue the President of the United States is "not at all responsible to the Congress" in the same manner in which a Prime Minister or equivalent of a Parliamentary Democracy is responsible to its legislative assembly. At the same time, however, it is the President's responsibility to Public Opinion (which he ignores at his own political peril) that makes his position notably different from that of the political executive in Parliamentary Democracy, where it is Party Opinion- as much as, if not more than, Public Opinion- the Prime Minister or equivalent ignores at his potential political peril... and that was my whole point to begin with!