Term Paper, 2008
8 Pages, Grade: 1,0
1. Introduction: Paulson’s quarrel with Congress
2. Checks and balances in the Constitution of the United States
2.1 Historical intentions of the framers
2.2 The checks and balances in detail
2.2.2 Checks by Congress
2.2.3 Checks by the president
2.2.4 Checks by the courts
3. Conclusion: Constitutional gridlock?
The current global financial crisis has seen different governments taking similar steps in order to restore trust and confidence in the shaken financial system: vast, multi-billion bail-out plans. However, the celerity of the legislative implementation of these countermeasures differs greatly from country to country. A comparison of how these parliamentary acts passed the legislation in Germany and the United States provides an interesting insight into the functioning of the respective systems of government.
On the 13th of October, Chancellor Angela Merkel announced a rescue package worth 500-billion Euros for German banks (DW-World, 13.10.2008). Only four days later, on the 17th of October, both houses of the German parliament voted in favour of the plan (Reuters, 17.10.2008). The reason for this expeditious achievement lies in Germany’s parliamentary system of government: The cabinet and the governing majority in the German Bundestag constitute a densely interwoven unit which is very unlikely to offer governmental initiatives intraparty resistance.
Meanwhile, US Secretary of Treasury Henry M. Paulson had to face a great deal of congressional resistance in order to pass a $700 billion bail-out called “Emergency Economic Stabilization Act of 2008”. Congressional criticism centred primarily on a provision that “left the bail-out completely in his [Paulson’s] hands, without the possibility of review by Congress, the courts or any other agency” (NY Times, 18.10.2008). After his first proposal on the 19th of September, multiple revisions of the original plan were necessary until the bill passed Congress on the 3rd of October. American newspapers accompanied those two weeks with a language that reminds of economic or diplomatic talks rather than political negotiations: For the purpose of gaining parliamentary approval, the Bush administration was forced to “sell the bailout plan to dubious lawmakers” (NY Times, 22.09.2008, italics added) and “face rough questioning” (ibid.) by both Democrats and Republicans. This episode is indicative of the level of persuasion that goes into lawmaking in the US. The troubled legislative process is rooted in its presidential system of government, which, unlike Germany’s parliamentarism, is characterised by separation of powers with an elaborate system of checks and balances among the three constitutional branches: Congress (House of Representatives and Senate), presidency and the courts (the Supreme Court in particular). In the following I want to trace back this “vehicle for guaranteeing limits on government power” (Kassop, 2006: 73) to the historical intention of its framers, assess the current distribution of powers and discuss problematic developments.
After the successful upheaval against British rule, 13 former colonies ratified the Articles of Confederation in 1781, thereby creating a loose confederation of sovereign states. But soon the demand for a new constitution arose. As the Articles of Confederation left too much power to the states (Lowi, Ginsberg and Shepsle, 2006: 78), economic progress was impeded by local restrictions and boundaries. So power had to be taken away from the former colonies in order to establish a strong national government. By signing the Constitution in 1787, fifty- five representatives agreed on giving away some of the powers they had enjoyed under the Articles of Confederation on the condition that the government accept certain limitations on its powers: federalism, individual rights and separation of powers (Lowi, Ginsberg and Shepsle, 2006: 79).
By distributing power among the constitutional branches, the framers of the Constitution drew on the writings of Charles de Montesquieu. James Madison (Federalist No. 47, 1788) quoted the French political thinker in the Federalist Papers, stating that "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," and "the power of judging be not separated from the legislative and executive powers". While the idea of separating power was not new, the framers gave it a unique twist by dismissing a simplistic separation of power in favour of an intricate system of mutual checks and balances, or in Madison’s words (Federalist No. 48, 1788):
Unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.
So the framers of the Constitution feared that leaving political authority unobstructed would invite intense competition, inducing the winners to tyrannize and the losers to resort to violent opposition (Kassop, 2006: 82). Instead, they envisioned a system of “separate institutions sharing powers”, as Neustadt’s (in Dickinson, 2006: 456) notorious description puts it, especially in regard of financing executive initiatives: Joint action is required to authorise programmes, to appropriate money and to levy taxes to provide the funds (Maltese and Pika, 2006: 183). Kassop (2006: 83) singles out two main intentions for this constitutional arrangement: Encouraging diversity in the political actors by requiring that they be selected at different times, from different constituencies, by different modes of selection and allocating different aspects of policy to different institutional arenas.
Although this separation proved successful in apportioning power, a new problem arose: As Dickinson (2006: 463) states, the presidential system did not “provide the presidency with a strong enough electoral base to resist congressional encroachment”. The framers’ emphasis on limited government prevented the president and Congress from addressing national problems during the nation’s early years. In turn, citizens failed to develop a strong attachment to a government that “seemed largely ineffectual” (ibid.). This marked the beginning for two contentious developments, the increasing importance of partisanship and the shift to presidential supremacy.
illustration not visible in this excerpt
(Lowi, Ginsberg and Shepsle, 2006: 107)
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