Riassunto esame Introduction to public law, Prof. Conticelli Martina, libro consigliato The Oxford Companion to comparative constitutional law , Masterman, Schutze

THE ORGANIZATION OF THE GUBERNATIVE

IN THE AMERICAN PRESIDENTIAL SYSTEM

THE PRESIDENT IN A SYSTEM OF SEPARATED POWERS

 The American constitution places the president at the center of the executive

branch of government:

1. It is the President who carries the ultimate responsibility for the execution

of the laws;

2. S/he is the Commander in Chief of Army and Navy and who has (with the advice

and consent of the Senate) the power to make treaties and to appoint ambassadors

and other public officials. This concentration of powers is based on the

president’s exceptional political legitimacy as he is elected by the people;

3. He is politically responsible only and directly to the electorate. It is also

a core value of the American governmental system that power is balanced and

there therefore exists a division of political power between the branches of

the government so that each branch checks and balances the other;

4. President’s control of the administration is surprisingly weak and has been

famously described as being the power of persuasion only.

 Congress has extensive powers to shape and control the administration through

organizational, financial and substantial means. It also establishes a large number

of independent executive agencies over which the President has hardly any direct

influence. THE PRESIDENT’S CABINET

 The American Cabinet holds no formal powers.

 It is a merely advisory body, while the power to take decisions rest with the

President.

 The Cabinet evolved from practical demand and was shaped by practice and each

President’s personal style. The American Cabinet is not to be confused with its

namesake in a parliamentary system. The differences are profound, both with respect

to composition and function.

 Presidents have traditionally assembled the heads of the executive departments as

well as the Vice President in the Cabinet. The composition is flexible. President’s

power to include somebody into the Cabinet is not restricted.

 But the President’s power to appoint the heads of the executive departments or

agencies is constrained by two provisions:

Article 2 paragraph 2 clause 2: President has to ‘seek advice and consent

1.

of the Senate’ on his nominees, thus giving the Senate a veto power on presidential

nominees. This is more a formality than a serious burden; and legally it has seldom

raised any problems with regard to Cabinet officers. In 1935, the Supreme Court

qualified an earlier ruling and stated that the President could not at his pleasure

remove from office a Federal Trade Commissioner before the end of his statutory

term, when Congress has sought to deny such discretion to the President. The

removal power of the President does not depend on the formal status of the

secretary, but more so on his function. The President removal power is unlimited.

The constitution’s incompatibility rule determines that members of Congress

2.

cannot hold an executive office and this changes the recruitment pool and

recruitment process for Cabinet members profoundly. The Cabinet members are

individual and spontaneous choices of the President-elect, indeed they are not

leading parliament members or politicians

main functions of the Cabinet:

 Advise the president and provide direct communication between the President and

1. the departmental heads. The President has limited direct control over the

departments, so this is one of the main challenges for each incoming President

to establish a hold on the standing bureaucracy.

The other function of the Cabinet is symbolic: the President, surrounded by his

2. Cabinet’s members, is a familiar picture on TV and coveys the impression of a

unified and proactive government with the President as its leader. This message

is directed not only to the general public but also to the Cabinet members,

reminding them their common commitment to the President.

WHITE HOUSE STAFF: THE PRESIDENTIAL BRANCH

 In the 20 century, the Cabinet became overshadowed by a new institution: the

th

White House administration. What has been baptized the ‘presidential branch’ is

‘separate and apart from the executive branch’, which is no longer just the personal

bureau of the chief executive but has developed into a virtual parallel bureaucracy

and a super-ministry overseeing all departments.

 The need for coordination and oversight of the executive branch contributed to the

growth of the White House administration.

 The White House administration is composed by 125 officers under the umbrella of

the Executive Office of the President (EOP). Their organizational structure is hardly

formalized but it can be thought as a solar system in which the President is the sun

and other units influence the president with different degrees of proximity. The WHA

has evolved into a super-ministry, which basically covers and oversees all areas of

policy and politics. There is not a clear definition of substantial and exclusive

responsibilities. Managing the complexity of the modern White House has become one

of the major problems for any presidency.

 There are two models of dealing with such a complexity, and both revolve around a

central figure in the White House administration below the President: the Chief of

Staff:

1. Pyramidal model is an attempt to run the White House in a structured and

hierarchical way. The Chief of Staff is here entrusted by the President to

menage the internal White House administration and shield himself from

managerial tasks;

2. Circle model tries to avoid a dominant Chief of Staff and is built on the idea

of direct access to the President.

 The White House administration covers a wide range of tasks, but four main

functions can be distinguished:

1. The core units in the EOP perform coordination and enforcement functions. They

basically oversee the executive departments and agencies, coordinate the

governmental policy and are supposed to make sure that narrower departmental

perspectives do not prevail over the President’s priorities. The Office of

Management and Budget (OMB), the National Security Council and the Office of

Policy Development mainly serve this function;

2. Other units have advisory functions: they provide information to the President

and are not built to oversee departments and agencies;

3. There are units which have primary outreach and communication functions, such

as the Office of Global Communications, Public Liaison or Press Secretary

4. There are those units that serve mainly administrative functions

 WHA has no permanent staff: every President brings along his own and completely

new personnel. They are recruited from those people who campaign for and with the

candidate, showing their commitment even before the candidate was elected. “There is

only one qualification for working in the White House and that is the confidence of

the President”.

UNITS OF ADMINISTRATIVE FUNCTIONS

 This shows how the growth of the White House has affected the Cabinet. This

development had practical and structural reasons. Practically the White House has

the advantages of proximity and confidence based on loyalty, while the Cabinet depends

not only on the president but also on money from congress.

 The structural reasons are linked to the limited power of president on department

and agencies. His attempt to control agencies is doomed if he relies only on direct

communication with the Cabinet members. Instead, it is now task of the white house

offices to coordinate and control departmental and agency policies.

 The relationship between white house and the Cabinet is difficult because white

house staff considers the Cabinet as a natural enemy and the Cabinet questions the

expertise and legitimacy of the White House staff.

 The White House is an institution without institutional memory and while the

offices remain, the officers change. It is run on the principle of discontinuity.

THE ORGANIZATION OF THE GUBERNATIVE

IN THE GERMAN PARLIAMENTARY SYSTEM

 The Chancellor is elected by the parliament, the federal government consist of

both Chancellor and ministers, and there are no incompatibility rules that would

prevent Cabinet members from sitting in parliament.

 The German governmental system has been characterized as a Kanzlerdemokratie,

meaning a parliamentary system which is dominated by the Chancellor as a

constitutionally resourceful and dominant leader of the Cabinet.

 The German system strikes a balance between the need for gubernative coordination

(though the Cabinet) and the need for gubernative leadership (in a strong Chancellor).

Even this model is victim of modification. The Chancellor office, called the Federal

Chancellery, plays a more dominant role today than was originally planned and the

Cabinet has been undermined by the rise of informal procedures and institutions.

THE CHANCELLOR AND THE CABINET

 The Cabinet is the institution in which coordination takes place and coherence is

established. The Cabinet is the central and regular meeting place of all ministers

and the Chancellor. All major topics have to be discussed and decided in its weekly

sessions. The characterization of the German system as Kanzlerdemokratic is based on

assumptions about the political skills of the Chancellor and on his constitutional

power.

 The Chancellor has three central competences:

He has the power to determine the general policy guidelines of the government.

1. This is grounded in his superior democratic legitimacy (is the only member of

the Cabinet directly elected form the parliament), but it is also based on his

skills of political leadership. There are no formal procedures to issue

political guidelines and no legal instruments to ensure compliance but there

are also no legal limits on how to use this competence.

It is formally the Federal President who appoints the Cabinet, it is the

2. Chancellor, who has the constitutional right to select and an nominate them.

This power is complemented by the power to dismiss his ministers. Here again,

the Federal President only performs a formal part of the procedure as a kind

of notary, whereas the material decision rests solely with the Chancellor.

There are considerable political constrains on whom the Chancellor can nominate:

he has to select from the ‘charming circle’ (the group of leading politicians from

a. his party and party group), because the Cabinet is dependent for its existence

and success on the support of the parliament. He has to ensure this support

selecting the most respected and influential members of her party.

The choice is restrained for another reason: Germany normally has coalition

b. governments. There is an unwritten rule that every party within the government

decides autonomously about its misters and the Chancellor has no influence on the

decision of other parties.

The Chancellor has the competence to organize the scope and the structure of

3. the minis