Term Paper (Advanced seminar), 2001, 29 Pages
Term Paper (Advanced seminar)
2. Constitutional Developments
2.1 The United States
2.2 The Federal Republic of Germany
3.The Executive Power of the American President and the German Chancellor
3.1 The United States’ President
3.1.1 The Election and Powers of the American President
3.1.2 The Cabinet, the Executive Office of the President, and the Bureaucracy
3.2 The Federal Chancellor of Germany
3.2.1 The Election and Powers of the German Chancellor
3.2.2 The Cabinet, the Chancellor’s Office, and the Ministerial Bureaucracy
4. Concluding Remarks
“The German Federal Republic is classified as a parliamentary democracy … [where] the principle portion of executive power is vested in a … chancellor and his cabinet who are responsible to a parliament and removable by the latter. By contrast, the presidential system … in the United States vests executive power in a president who is both head of state and head of government.”
Regarding this quoted statement, the purpose of my paper shall be a comparison between the United States’ executive and the German counterpart. According to this, especially the functions, roles, and powers of the respective chief executives shall be described and compared. In addition, I would like to portray the reciprocal relationship between the United States’ president, the Executive Office of the President, and the bureaucracy on the one hand, and the reciprocal relationship between the German chancellor, his chancellor’s office (Bundeskanzleramt), the cabinet, his governmental coalition (Regierungskoalition), and the federal ministers. In general, I want to achieve a comparison between both systems regarding their executive powers by pointing out the differences as well as the correspondences between them. Because of this general approach, it is not possible to describe everything in detail to avoid exceeding the framework of my paper. In cases when it will be not possible to provide detailed information, I will recommend for further readings in the footnotes.
Although, this paper shall mainly deal with the respective executive power and although the separation of power between the governmental branches in the United States is stricter than in the federal Republic of Germany, it is unavoidable to draw some conclusions regarding the role of the executive in the interplay with the legislative (the United States’ Congress and the German Bundestag). These references within the examination of the executive power shall be made because in carrying out their roles the branches are bound on each other in their interaction within the political system. Furthermore, these references serve for a better understanding of the whole role of the executive in the respective country.
On the whole, one should not forget that I refer to two different systems of government. Although both of them have several essential parts in common, the United States features a presidential democracy whereas Germany constitutes a parliamentary system. But nevertheless, both can be compared very well because the main features of both systems (a powerful executive, a separated legislative branch, and an independent judiciary) are the same. Moreover, the United States exerted a big influence on the development on the Basic Law (the German Constitution, Grundgesetz) and therefore on the political system itself because according to the United States’ occupation politics Germany should become a western democracy after World War II.
In reference to the topic of my paper, the following questions shall be answered: Which historical circumstances and which constitutional developments led to the structure of the executive? What are the differences of the role of the president in the United States and the federal chancellor in Germany? In general, which functions and powers do both of the chief executives exert?
Regarding both, the United States’ president and the German chancellor, there exist a wide selection of research literature. Although, most of the books referring to the latter deal in general about the political system of Germany, nevertheless, they contain good parts about the chancellor. Following, I just want to name some examples of the newer literature: A good starting point concerning the American president offers the book “American Government”. The book “The American President” as well as the publication “Presidential Leadership. Politics and Policy Making” show a good review about the executive power. Concerning the German chancellor, the book “State and Government in the Federal Republic of Germany. The Executive at Work” is highly recommendable because it provides a very good examination of his role and function within the political system.
Following, I would like to describe shortly the composition of my paper: The main part deals at first with a description of the constitutional developments of the two countries to provide a general background why and how the executive powers were composed. The next part describes the powers of the two chief executives and their role within the whole executive apparatus as well as their relation to the legislative to show their differences and their correspondences. At last, the concluding remarks shall give a final discussion concerning the questions raised in the introduction.
The powers of the King of England served as a deterrent model when the founding fathers of the American Constitution vested the future president with his powers. Ever since the Declaration of Independence, there was a consistent fear of centralizing too much power in one person. But having faced an ineffective Continental Congress, not capable of dealing with the power of too many duties, the framers saw a need for a separation of powers, thus, creating an independent executive vested with constitutionally granted own powers. After arguing for a long time about the outcome of a presidency, “in the end the framers resolved this problem by checking those powers that they believed to be most dangerous, the ones that had been subject to greatest abuse during the colonial era (appointments, treaty making, and declaration of war), while protecting the general spheres of authority from encroachment (in the executive’s case by qualified veto).”
Thus, a model of checks and balance was applied to ease the fears of the delegates of the Philadelphia Convention. By placing the president behind the Congress, he was granted no legislative functions, except of those conducted together with Congress. The president cannot initiate legislation (till today this has to be formally done by Congress), he can only nominate federal and lower level administrators with the advice and consent of the Senate, he can just negotiate treaties but again not without the advice and consent of the Senate, and his war powers were reduced to being Commander-in-Chief (Article 2). In addition, he was granted unconditional powers that could not be infringed by and with Congress. But on the whole, in almost every instance the president had to share his powers so that he had enough powers to be capable of governing and implementing laws but he could never become tyrannical, especially because he was made liable to impeachment. Nevertheless, what once was intended to be a separation of powers worked out to be a system of “separated institutions sharing powers”. Therefore, executive branch and legislature cannot be separated, a statement today more valid then ever.
In 1945, the allied powers United States, Great Britain, Soviet Union, and France divided Germany, which had lost its sovereignty, into four occupation zones. The Soviets ruled over the Eastern zone whereas the other forces controlled the Western part of Germany. Berlin had a special status and was divided into four sectors, governed by the respective Allied military commanders. Not until 1949 did Germany gain sovereign structures (with the exception of communal and states administration). The Basic Law of 1949, as the foundation of a West German state, was provided by the Parliamentary Council (Parliamentarischer Rat) under the auspices of the allied powers, which pressed Western Germany into parliamentary structures, and into a free and autonomous government with the guarantee of human rights. Especially the United States tried to achieve these fundamentals, at least for the Western part of Germany. Never, until the reunion of Germany in 1990, giving the Constitution (that was called only Basic Law) a real constitutional status, the founding fathers only worked out a provisional law.
Additional provisions were developed:
“The constitutional consensus was directed predominantly towards a balance of power and governmental stability, horizontal and vertical division of powers (federalism), protection against the abuse of power on the part of the President (small competences for the Federal President in cabinet formation and the dissolution of parliament … [and] an extremely federalist mode of voting the President by the FA [Federal Assembly = Bundesversammlung ], which was to be composed of a half of members of parliament and half of delegates from the Länder diets.”
Generally, the framers of the Basic Law wanted to avoid the weakness and incoherence of the executive power under the Weimar Republic (a strong president largely independent of parliamentary and party control undermining the power of the chancellor) as well as the lack of checks on the exercise of power by central authorities like it was the case under the Nazi regime. In this regard, the main constitutional provision concerning the executive power was the aim of strengthening the chancellor’s position as the head of the federal government. The Basic Law states his role as being responsible to and depending on the support of the Bundestag while simultaneously making him far less easy dismissible than ever before. Just with a constructive vote of constructive no-confidence (konstruktives Misstrauensvotum, discussed in point 3.2.1), being only achieved by a majority of the members of the Bundestag (Article 67), he has to leave the office when the Bundestag is able to provide a proposal for a new head of the government.
According to this, the founding fathers strengthened the position of the chancellor furthermore. Although the head of the state was decided to be the Federal President (Bundes-präsident), he merely fulfills representative and integral functions. He formally proposes the chancellor and enacts him after his election. He can order re-elections in case
of a parliamentarian crisis, and appoints and dismisses federal officers and judges. In addition, he signs bills, but he can dismiss them because of missing juristic foundations. However, his powers are generally very restricted. Therefore, the chancellor became the main beneficiary of the president’s former estate.
Although, the president and the chancellor represent both the head of the government, they would never be able to conduct the executive office alone. Whereas the chancellor is constitutionally supported by the federal ministers, the president’s Executive Office is not granted by the Constitution. Nevertheless, he too builds up a cabinet, maintains his duties with a very big staff, and interacts with Congress and bureaucracy. The same features can be found within the German political system, only under different circumstances.
The founding fathers of the Constitution intended that the election of the federal president should comprise a compromise between a selection by the legislature and an election by the voters (direct popular vote). As a result, the Constitution provides in Article II, Section 1 that “each state shall appoint… a number of [presidential] electors”, known collectively as the Electoral College, equal to the total number of its Senators and Representa- tives. The electors, chosen as each state legislature directs, shall meet in their state capital to cast two votes, one for the president by ballot one for the vice president on a distinct ballot. The votes are counted during a joint session of Congress: the candidate who receives the most votes for President with a majority of the total will become president, while the candidate with the highest number of votes for Vice President will become vice president. In the case that “there be more than one who have such majority, and have an equal Number of Votes, then the House of Representatives shall immediately chose by Ballot one of them for President”. If no candidate wins a majority, the House of Representatives has to elect the president by ballot from among the top three vote getters. The representation of each state has one vote, and a majority of all the states is necessary to a choice.
As a control over the power of the president against “Conviction of Treason, Bribery, or other high crimes and Misdemeanors” (Article II, Section 4) the Congress is granted the power to impeach the president, and thus, to remove him from office. Any member of the House of Representatives may introduce an impeachment, which then must be conducted according to Article I, Section 3 by a simple majority of the members of the Senate. Although until now three presidents had to face an impeachment, it was never successfully conducted.
To underscore the role of the president in the system of presidential government, he has several different powers granted by the Constitution in Article II whereby “the executive Power shall be vested in [him]” (Section 1). The meaning of this power is, however, not defined except of the provision that the president “ shall take Care that the Laws be faithfully executed” (Article II, Section 3). Article II, Section 2 provides for the power as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states”, consequently making the president the highest military authority. Although only Congress has the right to raise and maintain an Army and to declare war (Article I, Section 8), presidents have tended to exercise some kind of unilateral power, like sending troops or engaging in war without the consent of Congress, by declaring a ‘state of emergency’ or ‘crisis’. Regarding to this, presidents have tended to interpret constitutional provisions broadly and have derived from them substantial additional powers.
 Robert G. Neumann: The Government of the German Federal Republic, New York: Harper & Row Publishers, 1966, p. 102.
 Theodore J. Lowi/Benjamin Ginsberg: American Government. Freedom and Power, 6th Edition, New York/London: W.W. Norton & Company, 2000.
 Robert DiClerico: The American President, 5th Edition, Upper Saddle River, New Jersey: Prentice Hall, 2000.
 George C. Edwards III/Stephen J. Wayne: Presidential Leadership. Politics and Policy Making, 4th Edition, New York: St. Martin’s Press, 1997.
 Nevil Johnson: State and Government in the Federal Republic of Germany. The Executive at Work, 2nd Edition, Oxford: Pergamon Press, 1983.
 Thomas E. Cronin/Michael A. Genovese: The Paradoxes of the American Presidency, New York/Oxford: Oxford University Press, 1998, pp. 138-134. In this regard, Jeffrey K. Tulis called the “independence of Congress” an “immediate practical need”. Jeffrey K. Tulis: The Two Constitutional Presidencies, in: Michael Nelson (ed.): The Presidency and the Political System, 6th Edition, Washington D.C.: CQ Press, 2000, p. 102.
 Edwards III/ Wayne: Presidential Leadership, p. 3.
 The Constitution of the United States of America, in: Alpheus Thomas Mason/Donald Grier Jr. Stephenson: American Constitutional Law. Introductory Essays and Selected Cases, New Jersey: Simon & Schuster, 1999, pp. 677-687. All following articles of the Constitution are quoted from this book.
 Richard Neustadt: Presidential Power, New York: John Witey & Sons 1960, p. 33.
 Wolfgang Rudzio: Das politische System der Bundesrepublik Deutschland, 4. Auflage, Opladen: Leske und Budrich, 1996, p. 15 as well as Gerard Braunthal: Parties and Politics in Modern Germany, Boulder: Westview Press, 1996, p. 32.
 For further reading see: Gordon Smith: Democracy in Western Germany. Parties & Politics in the Federal Republic, 3rd Edition, New York: Holmes & Meier Publishers, 1986, pp. 44-88.
 A. J. Nicholls: The Bonn Republic. West German Democracy, 1945-1990, London/New York: Longman, 1997, pp. 74-76.
 Klaus von Beyme: The Political System of the Federal Republic of Germany, New York: St. Martin’s Press, 1983, p. 6.
 Niedersächsische Landeszentrale für politische Bildung (ed.): Grundgesetz für die Bundesrepublik Deutschland und Niedersächsische Verfassung, Hannover: Fischer Verlag, 1997. All following articles of the Basic Law are quoted from this book.
 Johnson: State and Government in the Federal Republic of Germany, pp. 49-50.
 Rudzio: Das politische System der BRD, p. 213. For further reading see von Beyme: The Political System of the Federal Republic of Germany, pp. 321-329.
 Smith: Democracy in Western Germany, p. 56.
 The original provision was altered by the 12th Amendment in 1804 to provide for a separate vote for vice president . The description given here takes this into regard.
 For further reading concerning the presidential election see: James W. Davis: The American Presidency, 2nd Edition, Westport: Praeger Publishers, 1995, pp. 68-106. For further reading to the presidential nomination process see: Bruce Buchanan: The Presidency and the Nominating Process, in: Nelson (ed.): The Presidency and the Political System, pp. 251-275.
 Andrew Johnson was impeached 1867 but not convicted by the Senate, while Richard Nixon in 1974 resigned before it could be exercised, and the impeachment of Bill Clinton in 1998 was not successfully conducted. DiClerico: The American President, pp. 102-103.
 The powers of the presidency within the whole governmental system are described in detail in: Michael Nelson (ed.): Congressional Quarterly’s Guide to the Presidency, Washington D. C.: Congressional Quarterly Press, 1989, pp. 393-636.
 According to this, e.g. President George Bush doubled the United States’ forces in the Middle East to over 400.000 troops without prior consultation of Congress. Moreover, in 1991, he declared war on Iraq, and thus, claimed to launch an attack without congressional approval. Davis: The American Presidency, p. 236.
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