17/2017/1772 REPEAT EXAM ROLL NO.

155

Q1. “The President of USA is considered to be the most powerful person in the
world so much so that he is said to be holding the destiny of the world in the
hollow of his hands. He may not have the power to declare war; but he can
create a war like situation wherein the Congress could be forced to declare a
war.” “Substantiate the above statement in the light of overwhelming powers
enjoyed by the US President and the constraints under which he works.”

(Marks 30)

ANSWER

I. INTRODUCTION

“In the United States of America, Presidential form of Government has been at work,
since the very inception of the State. The constitution-framers decided to have a
government which was strong and yet limited. It means that the President is the head
of the state as well as the government. President neither is responsible to the
legislature nor is the legislature responsible to the President. The President remains in
office for a fixed term. At the same time President cannot dissolve the legislature
before the expiry of its full term.”

II. PRESIDENTIAL POWERS

“The powers of the American President can be explained under the following heads:”

I. “Executive Powers:”

“Among all the powers that the President exercises his/her executive powers are
immense. He/she exercises executive powers in the following ways:”

A. “As Chief Administrator:”

“The President is the head of national administration. It is his/her duty to see

that the Constitution, laws and the treaties of the United States and the judicial
decisions given by the federal courts are properly implemented throughout the
country. He/she is assisted in carrying his/her functions by the entire federal
bureaucracy.”

i. “Power of Appointment:”

“As administrative head, the President appoints, with the advice and
consent of a simple majority of the Senators present, Ambassadors,
Ministers, Federal Judges and other officers of the United States whose
appointments are not otherwise provided for in the Constitution.”
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ii. “Power of Removal:”

“The President enjoys unchecked authority to remove persons he/she

disapproves as executive members. This power, however, does not
cover the officials appointed by the commissions. It is to be
remembered here that regarding the removal of the judges the
President enjoys limited powers.”

B. “As Commander-in-Chief:”

“The President being the Supreme Commander of the armed forces of the United
States is responsible for the defence of the country. He/ she appoints military
officers with the advice of the Senate and can remove them at will. Although the
power to declare war lies in the hands of the Congress yet the President can make
war unavoidable and necessary by his/her conduct in administration.”

C. “Treaty-making Power:”

“The President has the power to make treaties with sovereign states. However, all
such treaties have to be approved by a 2/3rd majority of the members present and
voting in the Senate.”

D. “Conduct of Foreign Policy:”

“The US president is the chief architect of the US foreign policy. He/she does not
only make the foreign policy but also conducts foreign affairs of the USA. The
foreign policy decisions of the US President create an impact upon all the nations
of the world.”

III. “Legislative powers of the US president are as follows:”

A. “Messages to the Congress:”

“The President can send messages proposing some legislative measures which
is generally not ignored by the Congress, as it comes from the highest
authority of the State. The President also reports to the Congress on the state
of union and on problems which he/she believes require immediate action on
the part of the Congress.”

B. “Exercise of Veto Power:”

“The Constitution stipulates that every bill passed by the Congress requires the
consent of the President to become a law. The President has to sign within ten
days of submission failing which the bill becomes a law even without the
President’s signature. However, the President can check the passing of laws
disliked by him/her by exercising the veto power. The veto power is of two
types-
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i. Suspensory Veto

“Under suspensory veto, the President can return a bill before expiry of 10
days. The two houses have to again pass it by 2/3rd majority. In case the bill
fails to get this majority, the bill stands rejected. But if it qualifies the
requirement it becomes a law and President has to sign.”

ii. “Pocket Veto”

“Under pocket veto if the President withholds his consent and the 10days term
expires, the bill becomes a law even without the consent of the President,
provided the Congress is still in session. But if the Congress is adjourned
before the expiry of 10 days term, in such case, the bill is killed which is
called as pocket veto.”

C. “Making of Executive Orders:”

“Under this head, it can be stated that the President has the power to issue executive
orders in order to meet the needs of administration arising out of unforeseen
circumstances. Moreover, it is the responsibility of the President to implement the
laws made by the legislature.”

D. “Power to call special sessions of the Congress:”

“Special sessions of the Congress can be convened by the President on extra-ordinary

occasions. To hold such sessions, President has to give in writing the reason. Once
special sessions are convened, it depends upon the Congress to decide the duration of
such sessions and when it is to be adjourned. However, if the two houses fail to decide
the date of adjournment because of serious differences, the President can fix the date.
But it is generally seen that the two Houses never give such an opportunity to the
President.”

E. “Budgetary Power: “

“The Budget and Accounting Act of 1921 gives him or her power over the preparation
of the national budget which he/she submits to Congress with his or her annual budget
message.”

CONSTRAINTS TO PRESIDENTIAL POWERS

“Due to the the vast array of presidential roles and responsibilities, coupled with a
conspicuous presence on the national and international scene, political analysts have
tended to place great emphasis on the president's powers.” “Some have even spoken
of "the imperial presidency", referring to the expanded role of the office that Franklin
D. Roosevelt maintained during his term.” “President Theodore Roosevelt famously
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called the presidency a "bully pulpit" from which to raise issues nationally, for when a
president raises an issue, it inevitably becomes subject to public debate.””

“The Separation of Powers devised by the founding fathers was designed to do one
primary thing: to prevent the majority from ruling with an iron fist. The separation of
powers provides a system of shared power known as ‘checks and balances’.”

1. “The President’s power to execute the laws is subject to plenary legislative

control:”

“The President’s implied power to enforce the laws must be exercised consistently
with the laws that Congress enacts. This conclusion is not subject to the objection that
Congress can thereby remove all of the President’s authority to enforce the laws. The
President has his own protective power. He was given the power to veto legislation
principally for the purpose of resisting encroachments by Congress. The President’s
veto cannot be overridden except by a vote of two-thirds of each House.”

“In practical terms, this requires the President to obtain support from only 34 Senators
or 146 Representatives, which are respectively, only six percent and twenty-seven
percent of the entire Congress. Moreover, in the real world of governing, there is no
reason Congress would want to severely restrict the President’s law enforcement
powers.”

“The Constitution does not give the President plenary power in foreign affairs because
that power is shared with, and constrained by, Congress. A plenary presidential power
over foreign affairs is inconsistent with the allocation of the royal prerogatives in
Articles I and II of the Constitution.

“The implied powers of the President are different because they are subject to
limitations:
(1) the implied foreign affairs powers are subordinate to congressional statutes, and
(2) the President may not use these powers to alter domestic legal obligations without
congressional authorization.”

2. The President’s implied powers over foreign affairs cannot change domestic law
without congressional authorization.
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“Q2. From that of a very powerful monarchy before the World War-II, under
the MacArthur Constitution, Japan has been reduced to one of the weakest
monarchies in the world. Critically examine the powers and position of the
Japanese Emperor in juxtaposition to his counterpart in the United Kingdom.
Explain if the powers and functions discharged by the Emperor justify his
continuation as a Constitutional Monarch?”

(30 Marks)

ANSWER

INTRODUCTION

“Japan is a constitutional monarchy, with a parliamentary system of government

based on the separation of powers. The Emperor is the symbol of the state and does
not hold political functions, only performing ceremonial duties. Nevertheless, he can
play a relevant diplomatic role.”

A. POSITION AND POWERS OF JAPANESE EMPEROR

“The Emperor of Japan is the head of state and the head of the Imperial
Family of Japan. Under the Constitution of Japan, he is defined as ‘the Symbol of the
State and of the Unity of the People’ and his title is derived from ‘the Will of the
People, who are the Sovereign’.”

“Unlike many constitutional monarchs, the emperor is not the nominal chief executive.
Most constitutional monarchies formally vest executive power in the monarch, but the
monarch is bound by convention to act on the advice of the cabinet.”

“In contrast, Article 65 of the Constitution of Japan explicitly vests executive power
in the Cabinet, of which the prime minister is the leader. The emperor is also not
the commander-in-chief of the Japan Self-Defense Forces.
The Japan Self-Defense Forces Act of 1954 explicitly vests this role with the prime
minister.

“The emperor's powers are limited only to important ceremonial functions.”

“Article 4 of the Constitution stipulates that the emperor ‘shall perform only such acts
in matters of state as are provided for in the Constitution and he shall not have powers
related to government’. It also stipulates that ‘the advice and approval of the Cabinet
shall be required for all acts of the Emperor in matters of state’.
Article 4 also states that these duties can be delegated by the Emperor as provided for
by law. While the emperor formally appoints the prime minister to office, Article 6 of
the Constitution requires him to appoint the candidate ‘as designated by the Diet’,
without giving the emperor the right to decline appointment.”

“Article 6 of the Constitution delegates to the emperor the following ceremonial roles:
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1. Appointment of the Prime Minister as designated by the Diet.

2. Appointment of the Chief Justice of the Supreme Court as designated by the

Cabinet.

“The emperor's other duties are laid down in Article 7 of the Constitution, where it is
stated that "the Emperor, with the advice and approval of the Cabinet, shall perform
the following acts in matters of state on behalf of the people."

“In practice, all of the BELOW-MENTIONED duties are exercised only in

accordance with the binding instructions of the Cabinet:

i. “Promulgation of amendments of the constitution, laws, cabinet orders, and

treaties.”
ii. “Convocation of the Diet.”
iii. “Dissolution of the House of Representatives.”
iv. “Proclamation of general election of members of the Diet.”
v. “Attestation of the appointment and dismissal of Ministers of State and other
officials as provided for by law, and of full powers and credentials of
Ambassadors and Ministers.”
vi. “Attestation of general and special amnesty, commutation of punishment,
reprieve, and restoration of rights.”
vii. “Awarding of honors.
viii. “Attestation of instruments of ratification and other diplomatic documents as
provided for by law.”
ix. “Receiving foreign ambassadors and ministers.
x. Performance of ceremonial functions.”

B. POSITION AND POWERS OF EMPEROR IN UK

“In the uncodified Constitution of the United Kingdom the monarch is the head of
state. The Queen's image is used to signify British sovereignty and government
authority. Her profile, for instance, appearing on currency, and her portrait in
government buildings. The sovereign is further both mentioned in and the subject of
songs, loyal toasts, and salutes. Oaths of Allegiances are made to the Queen and her
lawful successors.”

“POWERS OF THE CROWN:”

1. “Executive Powers:”

“The Crown is the supreme executive authority. It appoints all the high executive and
administrative officers, judges, bishops and the officers of the army, navy and air
force; directs the work of administration and national service. It holds supreme
command over the armed establishments. The Crown supervises and in some
instances directs the work of local government, especially that of boroughs and
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counties. The Crown conducts the country’s foreign relations with other countries;
sends and receives ambassadors or other diplomatic agents and all negotiations are
carried out in the name of the Crown. It deals with the colonies and dominions. The
Crown is also the treaty-making authority and all international agreements are made
in its name. It can even declare war or peace and conclude a treaty without consulting
Parliament. Thus, it is seen that all executive authority is vested in the Crown.
However, all these powers are exercised by the ministers, or the Cabinet in the name
of the Crown. It is they who decide who shall be appointed to office. They direct
British foreign policy and conclude treaties. They even decide on the issue of war. In
short, the Cabinet headed by the Prime Minister, and not the king, is the real wielder
of authority.”

2. “Legislative Powers:”

“The Crown is not only an executive but also an integral part of the national
legislature. The Crown summons, prorogues and dissolves Parliament. When a new
Parliament meets it is usually greeted by the Monarch in a speech from the Throne,
which is usually delivered by the King or Queen in person from the Throne in the
House of Lords (upper house of the British parliament) with the Commons (lower
house of the British Parliament) present. Theoretically, no bill passed by the
Parliament can become an act unless and until the King gives assent to it but once a
bill is passed by the Parliament, the King does not exercise the right to veto.
Practically, however, the King exercises all legislative powers as per the advice of the
Cabinet. As a matter of fact, the speech from the throne is not the King’s or Queen’s
speech. It is the government’s speech. Again, the veto power of the King has become
obsolete. The assent of the King to the acts passed by the Parliament is never denied
and is always given as a matter of course.”

3. Judicial Powers:

“The King is still described as the ‘fountain of justice’.” “In fact, the Crown does so
as the King. The King appoints the judges, including the Justices of Peace in the
counties and boroughs. The Lord Chancellor, a member of the Cabinet, exercises
general judicial supervision. All issues which come before the Judicial Committee of
the Privy Council are decided by the Crown. All justice in England is rendered in the
name of the King. Finally, the Crown exercises the prerogative of mercy and may
grant pardon to persons convicted of criminal offences. This is done by the Home
Secretary.””

4. “Head of the Church:”

“Besides, the Crown is the Head of the Church of England. The archbishops, bishops
and other ecclesiastical officers are appointed by it. The appointments are made on the
advice of the ministers.”

5. “Fountain of Honour:”

“The Crown is the fountain of honour. Each year, a list of peerages and other honours
like knighthood is prepared by the Prime Minister in consultation with the Cabinet. At
the request of the monarch, the Prime Minister may add a name or strike off a name.
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However, it is not obligatory for the Prime Minister to act according to the likes and
dislikes of the King.”

CONCLUSION

“It is true that the King/Queen in England has long ceased to exercise the powers
vested in him/her and is only a titular executive. However, it would be wrong to
conclude that the monarch does not exercise influence in the government. For
instance, King George V played an active role in the nation’s affairs, especially in
connection with the Irish question and the struggle over the Parliamentary Act of
1911. Though the ministers need not follow the advice of the King, yet they hardly
disregard it. The exalted position of the King and the non-partisan character of the
institution of kingship, lends weight to his advice. The same cannot be said for the
constitutional monarch of Japan, i.e., Emperor of Japan.”

THE POWERS AND FUNCTIONS OF THE EMPEROR OF JAPAN DO NOT

JUSTIFY HIS CONTINUATION OF THE CONSTITUTIONAL MONARCHY AS
IT IS A MERE CEREMONIAL TITLE, UNLIKE THE MONARCHY IN THE U.K-
WHICH HAS RESIDUARY/RESERVE POWERS.