USA FRAME OF GOVERMENT

www.contitutioncenter.org
Historical Overview
By the early 1770s, a group of politically active colonists had become increasingly dissatisfied with the
imposition on them of regulations adopted by the British Parliament, in which they had no direct
representation.

Declaration of Independence: Philadelphia, 1776

Organized as “Continental congress” with representatives from each of the 30 colonies, the rebels began
to create something resembling a government: a loose confederation of the former colonies, now
denominated “States”.
The States then decided to regularize their government by entering into a formal confederation.
Articles of Confederation: drafted in 1777, they became effective in 1781, during the Revolutionary War.
It’s the first Para-constitutional text of US.

Weak points of the AoC:

 they created a legislative body, but no executive branch:
 the national legislature had no power to impose taxes: all it could do was send requests to the
States for contributions, universally disregarded by States themselves.
 the States saw themselves as fully sovereign, which induced them to engage in economic policies
(each state protected its trade).
 the national government had no power to enforce its international obligations against the States.
Problem: Understood as something like a treaty among sovereigns, they expressly required that
amendments be approved unanimously(they were almost uneditable).

In 1787 enough States did send delegates to what became known as the Constitutional Convention.
The Convention’s charge was to propose amendments to the AoC, but almost from the start the delegates
worked on a complete replacement for the Articles(they wanted to modified it, but finely the replace it all
with the constitution project).

The new government the delegates were designing should reflect Montesquieuan principles of separation
of power:
 executive body
 legislative body
 judiciary body

Two plans for structuring the federal government arose at the Convention’s outset:
1. The Virginia Plan(winner): the legislative branch of the national government should have been
composed of a Bicameral Congress, with both chambers elected with apportionment according to
population.
2. The New Jersey Plan: it proposed that the legislative branch should have been composed of
a unicameral body, with one vote per State.
The real problem arose in designing the new legislature(assumed as the most important and powerful
branch):
the new legislature would have to have substantial power (powerful in fact not only formally), to be able to
govern but it concerns that a powerful national government might reproduce the kind of English imperial
overreaching that had led to the independence.
Delegation of powers from the states to the central government.
Two related conflicts:
1. smaller States / larger States: Smaller States were concerned that they would regularly be outvoted
in a legislature in which representation was based on a population.
Solution: Creation of two houses in the national legislature, basing representation in one on
population (House of Representatives), and giving each State equal representation in the other one
(Senate).

2. States in which slavery was an important economic institution / States where it was not: “Slave
States” were concerned that a powerful national government might eventually become dominated
by opponents of slavery.
Solution:
 The national government was barred from prohibiting the interstate trade in slaves for two
decades.
 Northern States were placed under an obligation to return slaved who escaped to freedom
back to their owners. (fugitive slave act)
 the apportionment of seats in the HoR took slavery into account by giving “slave States” a
bonus based on the free population plus 3/5 of the slave population. (they consider 3/5 or
slaves as “citizens” to have more seats in the parliament)
The new Constitution would take effect when ratified by nine of the existing States (not unanimous
consent).
Federalists /Anti-Federalists debate about pro and cons to the constitutional design.

Drafted on September 17, 1787, the Constitution was then ratified by the States on 1788.
1. Describes the Congress, the legislative branch of the federal government;
2. Describes the office, qualifications, and duties of the President of the United States and the Vice
President;
3. Describes the court system (the judicial branch);
4. Outlines the relations among the states and between each state and the federal government;
5. Outlines the process for amending the Constitution;
6. Establishes the Constitution, and all federal laws and treaties of the United States made according
to it, to be the supreme law of the land;
7. Describes the process for establishing the proposed new frame of government.

The Constitution has (today) twenty-seven amendments:

 amendments 1–10 are collectively known as the Bill of Rights (ratified on 1791, immediately after
the Constitution)
 Amendments 13–15 are known as the Reconstruction Amendments (adopted between 1865 and
1870, after the Civil War).

Us legal system is a common law legal system with a constitution: it’s important to understand the “checks
and balances”( = the relations between the 3 branches).
The Legislative Branch
Each State reflect the National frame of government.
The United States Congress (national legislative branch) consists of two houses:
 House of Representatives: formed by 435 members that serve for term of two years; they are
elected from districts within individual States, on the basis of the current population.
Each State is entitled to have at least one representative; the actual allocation is determined by a
formula written into the nation’s statute books (not in the constitution).
 Senate: there are the interest of the State, it consists of two senators from each state that serve a
term of six years, elected from each State (the Constitution provided that senators would be
elected by State legislatures; the XVII amendment – 1913 – replaced that with direct popular
election).
Why a longer term?: to give Senators the opportunity to take a broader view of the public policy and
making the Senate a stabilizing force (also to control States sovereignty).

Both HoR and Senate have the power to initiate legislation of any topic within the nation’s power.
Exception: bills appropriating funds must originate in the HoR.

Art. II, Section 7: Legislative Process.

Every Bill after passing the HoR and the Senate, before it become a Law, it shall be approved and signed by
the President, but if not he return it with his Objections to that House that have originated it and proceed
to reconsider it. If after such Reconsideration 2/3 of that House agree to pass the Bill, it is sent with the
Objections to the other House by which it shall be approved by 2/3 of that House becoming a Law.
If any Bill shall not be returned by the President within 10 days (Sundays excepted) it become a Law, as if
the President had signed it (unless the Congress by their Adjournment prevent its Return, in which Case it
shall not be a Law).

The President must approve of every legislative proposal that has received a majority vote in both the HoR
and the Senate à departing from a strict separation of powers.
Congress can override presidential vetoes, but only with supermajorities of 2/3 in each house.
Both houses conduct much of their legislative work through standing committees, identified by the subject
matter of their jurisdiction (Committee on Agriculture, C. on the Judiciary...).
Bills approved by committees can be amended on the floor, and there is not the idea that modifying a
committee proposal is inappropriate.

Art. II, Section 8: Powers of Congress : It’s a list of “enumerated” powers.

The U.S. party system.
Originally, the Framers thought that political parties (“factions”) sought to advance narrow interests rather
than the public good.
 The election of the President was to be indirect.
 Senators were to be elected indirectly by State legislatures(today is a direct election).
 Only members of the HoR were to elected directly by the people.
System whose complexity might make it difficult to create a national political party system.
1896 presidential campaign for William McKinley is usually described as the first centrally organized
presidential campaign.
The party system began to change into one in which there were truly national political parties in the last
quarter of the XX century.
Supreme Court of the United States,
California Democratic Party v. Jones (2000).
Parties can limit their membership if they want to; but they can also choose to open themselves up.
This is an essential feature of political parties as associations protected by the First Amendment(=freedom
of association), and States can’t override a party’s decision either to limit participation or to make
participation freely available.
Third party
U.S constitution doesn’t regulate competition amongst parties and since the system has always worked as a
bipartisan one, the electoral process can be tricky when a third party emerge at State level. For this reason
some State passed legislation which can hinder third parties. Some of these pieces of legislation have been
declared unconstitutional by the Supreme Court. However, it started that this kind of legislation can be
considered legitimated since third parties confuse the electorate.
Election
Conduct of elections:
The Constitution locates the power to regulate and conduct elections in the States, subject to a power in
Congress to regulate the “times, places, and manners of holding elections for senators and representatives”
(power exercised rarely).
State regulation of elections is limited by other constitutional provision (first and fourteen amendments).
Pro: decentralized elections
Cons: local political actors have substantial influence on details (voting lines, dates..)
The U.S. voting system requires a registration:
 U.S. citizenship;
 resident of the State in which he/she seeks to register;
 the Supreme Court held that voters can be required to register at least 50 days before an election
(provision that today has lost effectiveness).
The Supreme Court has imposed a strict requirement that each district in the HoR be as nearly as possible
equal in population.
Gerrymandering:
It received its name from a district whose borders resembled a salamander, drawn in Massachusetts in
1812 and signed into law by governor Eldridge Gerry.
It’s the practice of drawing district lines considering just political outcome (it doesn’t affect equal rights and
liberty; race discriminations for drawing lines are unconstitutional). The goal is to achieve the majority of
one of the party in order to elect a member of this party in the HoR.
Trough Gerrymandering is possible to manipulate election’s results(but each party has the same rights to
manipulate it): it might be unconstitutional but it has never found a partisan gerrymander unconstitutional.
Campaign financing:
Candidate ask supporters to finance their campaigns but national law places some limits on the amounts of
individual campaigns and bars corporations from making direct contributions to political campaigns. These
restrictions could be against the First amendment’s:
 Supreme court agreed that contributions are the way in which citizens can advance candidacies.
 Restriction were constitutional as unlimited contributions created the possibility of corruption
(financial support in return of supporting legislation and policies).
 The limits can be evaded through the creation of organizations affiliated with but nominally
independent of the corporations and unions (political actions and committees PCAs).
Candidate selection.
As a general rule, potential candidates are self-nominated(=rich people to cross the country to reach votes).
Neither the national party with which they are affiliated nor any State or local party organization screens
these people.
Post screening: with the primary elections only one candidate will erase in the election.
Lobbying:
Its rules are related to campaign finance rules and practices. It’s a form of political expression.
It’s regulated trough disclosure of contracts between members of Congress and lobbyists representing
clients.
Public opinion treat lobbying as a form of improper influence.
Political insiders see it as an innocuous activity through which to convey information to members of
Congress.
The faster way to understand deeply a new law is listening to a pro lobbyist for this law and one cons.
Rules of the houses: an example.
1. The “Filibuster” in the Senate.
A “filibuster” is a tactic used by minorities in the Senate to block the adoption of legislation that has
majority supports but not enough support to overcome the filibuster.
The Senate rules permit a senator, or a series of senators, to speak for as long as they wish, and on any
topic they choose, unless 60 out of 100 senators bring the debate to a close, by
invoking cloture under Senate Rule XXII. (if the majority wants to block the Filibuster, senators have to be
on their seats to reach the majority (60 out of 100) during the evocation of the rule XXII).

Special rules applied to budget legislation, but everything else was open to filibuster.
On November 21, 2013, Senate Democrats used the so-called «nuclear option», voting 52–48 to eliminate
the use of the filibuster on executive branch nominees and judicial nominees, except to the Supreme Court.
In 2015, Republicans took control of the Senate and kept the 2013 rules in place.
On April 6, 2017, Senate Republicans eliminated the sole remaining exception to the 2013 change by
invoking the «nuclear option» for Supreme Court nominees. This was done in order to allow a simple
majority to confirm Neil Gorsuch to the Supreme Court.
The «nuclear option» is a parliamentary procedure that allows the Senate to override the 60-vote rule
to close debate, by a simple majority of 51 votes, rather than the two-thirds supermajority normally
required to amend the rules.
This procedure effectively allows the Senate to decide any issue by simple majority vote, regardless of
existing procedural rules such as Rule XXII which requires the consent of 60 senators to end a filibuster for
legislation, and 67 for amending a Senate rule.
The Executive Branch
It’s formed by the President and the Vice-president.
The Framers of the Constitution believed that Congress would be the predominant institution in the
national government but rapidly the President came to dominate the U.S. political system:
 could claim to speak for the nation as a whole
 became leaders of national political parties
The President election (art. II, Section 1).
The Constitution sets three qualifications for holding the presidency:
 be a natural-born citizen of the U.S.;
 be at least 35 years old;
 be a resident in the U.S. for at least 14 years.

Procedures:
 In the modern presidential campaign, candidates are chosen in the primary elections which are
covered by the main 2 political party.
 Indirect election election of the President and the vice President in which citizens cast ballots not
directly for those offices but for members of the U.S. Electoral College (electors).
 These electors cast direct votes (electoral votes) for President and for vice President. The
democratic electors have to vote for the democratic leader and vice versa.
 The candidate who receives an absolute majority of electoral votes (at least 270 out of 538) is then
elected to that office.
 If no candidate receives an absolute majority of the votes for President, the HoR chooses the
winner;
 If no one receives an absolute majority of the votes for Vice President, the Senate chooses the
winner.
 Each of the States casts as many electoral votes as the total number of its Senators and
Representatives in Congress
 The manner for choosing electors is determined by each State legislature, not directly by the
federal government.

President’s powers (art. II, Section 2):

 Commander in Chief of the nation’s armed force;
 Power to make treaties (with the consensus of 2/3 of senators)
 Nominate ambassadors, public minister and consuls, judges of supreme court and other officer
Limitation to the President’s power:
 can be removed from office by impeachment (which requires a majority vote in the HoR and a 2/3
vote in the Senate, the latter is very uncommon-> any president has ever been removed)
 can serve no more than two terms (the only president who run 3 times was Roosevelt because of
the particular situation after the second world war).

The President and the legislation.

The Senate must confirm presidential nominees and ratify treaties negotiated by the president. President
has the dominant role of developing legislative proposals and laws after consulting the Congress. The
executive branch has a large measure of control over the legislative agenda.
The President has a suspensive veto, which can be overridden only by a 2/3 vote in both houses of
Congress.
How to reconcile divided government and veto power?
Signing statements.
It’s the modern version of veto power, adapted to deal with the contours of the world of modern politics.
President would refrain from vetoing legislation but would instead use it to modify the meaning of enacted
laws.
The increasing use of signing statements due to:
1. Divided governments: it creates more opportunities than unified government for disagreement
between Congress and the President on legislation
2. Proliferation of bundled laws
The end of the cold war damped down conflicts between the President and Congress but they were revived
after September 11. President Bush argued that his authority in foreign affairs authorize him to develop
surveillance programs that some regarded as unconstitutionally intrusive on privacy.

THE PRESIDENT AND “POLITICAL TIME”

US regimes are distinguish by their ideological commitments and their institutional innovations.
Constitutional regimes can be affiliated with or opposed to the prevailing constitutional regime.
Four typology of presidents distinguished along two dimension:
1. Presidential affiliate with a resilient constitutional regime (ex. Bush). It’s called “politics of
articulation”. If elected he simply pursue the regime’s commitments. He face 2 difficulties:
 He’s innovation may fail helping in converting a resilient regime into a vulnerable one
 He could face resistance from who believe that the existing commitments are working well
2. President who oppose the commitments of a resilient regime. He may offer innovating policies
striking out in entirely new directions. It’s called “policies of pre-emption”(ex. Eisenhower).
3. President committed to the principles of vulnerable regimes: it’s tend to be regarded as failures as
they are doing their best to shore up a set of institution that no longer seem worth defending and
they contribute nothing to the transformation of those institution into something better(Jimmy
Carter).
4. Transformative presidents are opposed to the principles and institutions of a vulnerable regime. It’s
called “politics of reconstruction”. They can tear down vulnerable institution in the name of new
principles while building upon institutional strengths created by prior presidents(Obama).
Chronological time may have come to conflict with political time: each regime leaves a behind a residue of
ideas and institutions which are not completely eliminated in the politics of reconstruction.
The success of politics of reconstruction diminished as time pass also because president is limited to max 8
years in office.

THE UNITARY EXECUTIVE AND THE MODERN ADMINISTRATIVE STATE

President was to be the head of the administration and responsible for its actions. The framers understood
that a single person could not possibly execute the law personally so the government’s bureaucracies were
staff by lower-level officials, subject to the president’s ultimate control and responsibility.

CABINETS: “the head of departments”

Group of advisor nominated by the president to satisfy political pressure and confirmed by the Senate
(they’re likely to defer from President’s choice).
15 Cabinet members divided in Major cabinet and Minor cabinet.
President control over the cabinet:
 He gives cabinet position to figures with their own political support within the president’s party
 “Presidential administration”: growing of the office of the presidency gave itself the power to
oversee the actions of the Cabinet departments and bring them into the White House policy if they
began to stray.

Cabinets members are the heads of the bureaucracies of the executive branch.
Low-level bureaucracies are civil servants who carry out the day-to-day administration of the law.
President is the head of a unified national executive branch. His control is preserved by:
 Policy-making officials in every executive bureaucracy remained subject to direct presidential
appointment and control, excepted from the civil service system
 Possibility of removing civil servants from their positions
The effective of civil service rules is to make difficult for a reconstructive president to shift the
bureaucracy’s direction. Because the president is reconstructive, the bureaucrats already in place are likely
to disagree with president’s policy. Because of the civil services rules, the president can’t replace them
easily.
“Burrowing”: low-level officials who received political rather than civil service appointment took over civil-
service jobs by passing the required examinations ad being selected thought a “merit” process in which
they clearly had an edge.

INDEPENDENT ADMINISTRATIVE AGENCIES (CIA, NASA..)

Administrative agencies are independent from the executive branch because:
 Their members are appointed for fixed terms (that extend beyond 4 years presidential term).
 The independent regulatory commissions are supposed to be removed from presidential oversight.
 Their heads require Senate confirmation.
There’s a tension between the idea that the executive branch was “unitary” under president’s control and
the modern administrative state.
The latter are not independent agencies but located within the executive branch, subject to the presidential
control. (formal and informal).
How can Congress be sure that the agencies are working in a correct way?
The agency has to report to Congress or committee what it has done and the Congress can disapproving the
actions. (Legislative veto)
Another mechanisms for legislative control is to shift from exercising the legislative veto after the agency
has acted to delaying the effective date of the agency’s action until after Congress has had the chance to
disapprove the action. The agency reports to Congress what it proposes to do and Congress indicates its
disapproval. As the agency has not acted, the disapproval violates no one’s vested legal rights.

THE STRUGGLE BETWEEN THE PRESIDENT AND CONGRESS OVER THE BUDGET
The president submit a budget (“deal on arrival”) each year that the congress appropriate money by the
end of each fiscal year but congress typically used the prior year’s budgets as its guideline.
In the end there’s a budget that do not make any real effort to match expenditures with revenues.
 President criticize congress for disregarding their budget submissions and for adding unnecessary
expenditures.
 Congress respond that the projects serve important public purposes
Earmarks: they allow the lawmakers to advocate federal money to their pet projects. This helped get bills
passed but they are also seen as a frivolous spending and corruption.
THE UNITARY EXECUTIVE IN FOREIGN AFFAIRS
President is commander-in-chief of the armed forces so he has the authority to make military decisions
even in the face of congressional disapproval.
The president duty to “take care that the Law is faithfully executed ” includes a duty to preserve the nation,
even if doing so requires that the President take “unconstitutional” actions. (Ex. during the cold war he had
a largely free hand to assure national security policy).

THE STEEL SEIZURE CASE

It was a Supreme Court decision that limited the power of the President to seize private property. (strikes
due to economic difficulties post-war are followed by Truman decision of taking control of the steel
companies: is he allowed to do it? Finally he restored the control over them).
Practical situation in which the president may have this power:
1. When he has authorization from the Congress his authority is at the maximum(ex. Truman).
2. If he doesn’t have authorization from the Congress, he can rely only upon his own constitutional
powers minus ant constitutional powers of Congress over the matter(ex. Bush).
The key determinants of whether the president will be able to execute controversial policy are:
1. How strong the political opposition is
2. How strongly the president’s allies in congress support the president
3. How effective the president’s allies are in using their tools to block president’s opponents

POWER TO DECLARE WAR

Art. 1 gives Congress the power “to declare War”.
The “Resolution” requires that the president submit a report to Congress within 2 days and that the use of
armed forces shall end after 60 days (unless Congress authorize the continuing).
Presidents argued that the Resolution is unconstitutionally limiting their power.
1973: Congress has adopted express authorization for the use of military forces. This seems to have
eliminated any real political controversy.