THE THREE POWERS OF THE FEDERAL STATE

1/ The executive branch : the presidency.

The president of the United States is elected through universal indirect suffrage. In November, the voters choose electors (grands électeurs) who are pledged to one of the candidates, generally a Democrat and a Republican, and sometimes an independent (Ross Perot in 1992, 1996). The people vote in the states with a 'winner takes all' system, meaning that even a plurality is enough to win all the electors of one state. The number of electors per state is calculated simply: number of representative(s) + senators. Then the electoral college meets in December to elect the president. The votes are counted by Congress in January. The president assumes office on January 20. Up until the adoption of the Twentieth Amendment (1933), the newly elected president did not take office until March. The emergency of the post-1929 crisis period justified the adoption of that amendment.

The president is elected for 4 years. Since the adoption of the Twenty-Second Amendment in 1951, he is limited to two terms.

The main powers of the president under the Constitution are as follows :

- he is the commander in chief of the Army, Navy, Air Force... - he is at the head of the federal administration

- he has the power to submit a legislative program to the US Congress and recommend it for adoption

- he appoints, with the advice and consent of the Senate, all ambassadors, ministers and federal judges, including the justices of the Supreme Court. Considering the importance of the latter and the fact that federal magistrates are appointed for life (a guarantee of their independence) this is a much more than honorary power.

- he has the power to veto the bills that are submitted to him. Then that bill, in order to become law, will have to obtain a two-third majority in each one of the two houses of Congress. Then only can the veto be 'overcome'.

In practice, but not in the Constitution as the organic document never makes mention of the political parties, the president of the US is also the president of his party. This gives him considerable leverage as, in fine, he is the one to make the decisions on which candidates should receive financial support from the party and what the fund-raising strategies should be.

Recently, the president obtained the line-item veto, which is a partial veto. Instead of having to veto a whole bill, the president can now veto individual sections or items in that bill. This is considered a major expansion of presidential powers at the expense of Congress. On the other hand President Clinton recently (November 1997) saw Congress turn down 'fast-track' powers, that is the ability to sign trade agreements with foreign countries without having to await for Senate ratification before enforcement.

For different reasons, the executive branch is considered to have considerably expanded its powers in the last 50 years, to the point where a lot of political scientists speak of an 'imperial presidency'.

2/ The legislative branch : Congress

Congress is made up of two houses -- the upper house (the Senate), and the lower house (the House of Representatives). The former represents the legitimacy of the states as all states are represented in the Senate on an equal basis (2), so there are 100 senators. The latter represents the legitimacy of the people as the number of Representatives (also called Congressmen) per state is based on the population of each state. There are 435 representatives.

Senators are elected for six years. The Senate is renewed by third every two years (33, 33, 34). Representatives are elected for two years. The House of Representatives is renewed entirely every two years. CAUTION: There is no limit as to the number of terms a senator or a representative can serve. One senator (Strom Thurmond, R., South Carolina) is currently serving his eighth term. On an average election year, 90% of the incumbents (les sortants) who run for reelection are returned to office. Several states have attempted recently to pass term limit legislation. But those were found unconstitutional by the Supreme Court as they violated the division of powers between the states and the federal government. In effect when a state says that one cannot run for the US Senate more than twice, it is adding by state law qualifications to the Constitution of the United States. States cannot indeed amend the Constitution.

The number of representatives each state has is based on the population. Every ten years on the last year of the decade (1980, 1990), the US conducts a census. Following the census, the states are informed depending on whether they have won or lost population if the number of their representatives is going to be increased or decreased. Then it is the responsibility of the state legislatures (les assemblées ou parlements des états) to draw the electoral districts. Since the adoption of the 1965 Voting Rights Act, federal courts have closely monitored the districting process in order to make sure that gerrymandering (charcutage électoral) did not exclude certain categories of voters. Consequently, some states have redrawn their districts to guarantee the election of an African-American or Hispanic congressman. Those 'reserved districts' were found to be in violation of the Constitution by the Supreme Court as they represented 'reverse discrimination' ; they contradicted the principle of 'equal protection of the law'.

The main responsibility of Congress is to make law. A bill is first introduced in either one of the two houses. It is then examined in the competent committee (une commission) before being voted upon on the floor (en séance plénière). Then the two houses have to reconcile their differences and adopt the same bill with a simple majority. The bill becomes law once the president has signed it (cf supra).

The two houses do not have exactly the same powers. The senate is deemed more prestigious as it has the power of advice and consent (cf supra), so it can block presidential nominations. Also the Senate alone is in charge of ratifying treaties, which gives it a prominent role in foreign affairs that the House of Representatives can only rival by withholding subsidies. Sheer numbers also account for an internal organization which, in the House makes the institutional needs prevail over those of the individuals, when in the Senate, each individual has a great deal of power, notably because of the rule of 'unanimous consent' (la plupart des décisions en matière de procédure sénatoriale doivent être prises A l'unanimité des présents). Finally, the respective lengths of the terms of senators and representatives give the former an advantage. They only have to run every six years when representatives feel that they are constantly on the campaign trail. This is especially important when the cost of electoral campaigns, and thus the time spent fund-raising but also the dependence on contributors have been increasing at an extraordinary rate. Consider this : "The average cost for a winning House candidate rose from $87,000 in 1976 to $683,000 in 1996; a winning Senate race went from $609,000 to $3.8 million." (Source: Congressional Research Service)

Overall, legislative power is generally considered to have eroded over the last 50 years and even in a period of divided government (when the president and the majority in Congress are not from the same party) such as the present one, Congress has had a lot of difficulty reasserting its power other than in a negative fashion.

3/ The judiciary : the Supreme Court and the inferior courts

The Constitution of the United States gives the judicial power to one Supreme Court and such inferior courts as the Congress may from time to time create. The Constitution does not mention the number of justices who sit on the Court. Since 1869, that number has been 9 (1 Chief Justice + 8 Associate Justices). Justices of the Supreme Court, like all federal magistrates are appointed for life, "during good behavior" (tant qu'ils ne violent pas la loi), which is a guarantee of their independence. In the United States, one does not make a career in the judiciary.

The American federal judiciary has three levels : district courts (cour de première instance aussi appelées 'trial courts' car c'est 1A que les procès se font), appeals courts and the Supreme Court of the US. The latter practically only hears cases that have been appealed from lower courts. It is one of the few courts in the world to have almost complete discretion as to the cases it will hear. On average in the last 5 years, over 8,000 cases have been appealed every year to the Court. The Court heard an average of 150. The selection criteria are relatively simple: a case, to have any chance of being heard by the Court needs to put into question a major constitutional principle.

The main power of the Supreme Court comes from the fact that it says the meaning of the Constitution, a process which is called 'judicial review'. In other words, when there is a conflict between the organic law (the Constitution) and ordinary law or acts of government (laws passed by the Congress of the United States or the state legislatures, decisions of the president or of the governors ... ), it is the sole responsibility of the Supreme Court to say what the meaning of the Constitution is and how it applies to a particular case. Indeed ordinary law or acts of government cannot be in violation of the supreme law of the land. So the Supreme Court can 'strike down' (invalider) a federal or a state law.

This power of judicial review is a significant one as the meaning of the Constitution or the amendments is far from being very clear; also the Constitution was drafted 210 years ago, the Bill of Rights added 206 years ago and still need to organize society today. What is the meaning today of "cruel and unusual punishment" (Eighth Amendment)? Of "unreasonable searches and seizures" (Fourth Amendment? Can "equal protection of the law" (Fourteenth Amendment) be reconciled with separation of races or sexes, in other words can Americans be "separate but equal"? Is "freedom of expression" (First Amendment) abridged when Congress votes a law limiting the amount of money candidates can spend in an election campaign, in other words, can you say speech = money? Those are but a few of the momentous questions the Supreme Court of the United States had to answer in the last half-century.

This being said, the power of the judiciary should not be exaggerated as the Court depends completely on the executive branch for the enforcement of its decisions and does not have the financial means to support the enforcement of its decisions. In the words of Publius in The Federalist Papers, it has "neither the sword, nor the purse". Also, justices of the Supreme Court, as they are appointed by the president with the advice and consent of the Senate have only very indirect popular legitimacy. The Court is traditionally described as a 'counter-majoritarian' institution. History has shown, especially the 1937 Court packing crisis, that it cannot very well resist very long if it finds itself going in a direction, ideological or political or institutional, opposite to the one followed by the majority of the people and their representatives.