The Decade of the Decline of the Balance of Power - Essay Example

? The Decade of the Decline of the Balance of Power s of Learning: s The Decade of the Decline of the Balance of Power Introduction The conflicts resulting from the imbalance when it comes to the powers vested to the different branches of the government in most cases call for the intervention of the Supreme Court. The coequal and separate government branches in question include the Executive and the Congress. The two branches which were traditionally viewed as having an equal balance in the powers vested in them with reference to the running of the nation have in the last decade been faced with contradicting power issues calling for the need of the law to intervene thus such issues ending up in the courts. The results of such conflicts involving the Congress and the Executive put the Judicial branch in a situation where it is left with no option but to re-examine its doctrine of the privileges given to both the Executive and the Congress thus the judicial being forced to reach out to the areas under law that have not been exploited before. It is the democratic situation of the nation that has contributed to this situation as cases like the Executive and the Congress holding different positions such as receiving support from opposing political parties. The privilege doctrine of these branches of the government have proved to be timely and challenging to the judicial branch. Power allocation between coequal and separate government branches has been a major challenge in the last decade in United States. Such power gridlocks have forced the Supreme Court to step in many situations in order to resolve some of the disputes between the different government branches. When it comes to the balance of power between the White house and the Congress, the result is normally a political battle mainly regarding the law thus making such conflicts to spill over to the Supreme Court (Elliot, 2007). The power conflicts among the separate and coequal branches of the government are unavoidable especially in this decade that has been marked by partisan conflicts that have been heightened. The American constitution defines the different powers given to the existing branches of the government but lives some clauses undefined when it comes to the powers dedicated to the government branches thus. This situation is what results to the misunderstandings in the interpretation of the constitution as a means of defining the power balances. For example, the Congress is vested with the power to oversee the activities of the Executive by the constitution in the formulation of its legislation and the appropriation of funds for the executive operations. The imbalance arises when the Executive is also given the power by the same constitution to withhold some of its information regarding its duties as per the constitution. This is because the disclosure of some of the information to the Congress and the entire nation would work against the interests of the nation. However, the constitution still expects the government branches to provide other necessary information without limits. The doctrine of Executive and the Congress are mandated to shield and sought information that are sensitive from disclosure for the sake of the interest of the nation but at the same time making sure that the remainder is disclosed. The consequent of this is that the government branches conflicts force the Supreme Court to reconsider its executive privilege doctrine thus exploring constitutional waters that were unexplored. The last decade has seen a President coming from a party that is different from the party held by the Congress. This scenario has led to unbalanced power between the two resulting to the many conflicts witnessed as a result of the power shifts. The end result is the diminishing of the constitutional concept of the government’s co equal branches (Bickel, 1990). The Supreme Court is left with the responsibility of resolving such conflicts presented before as stated in the context of Article III. The imbalances in the power division among the branches of the government have to be solved as if left un attended to, they will lead to more political and legislation gridlock. This task is not as easy as it sounds to the Supreme Court as it is expected to come up with standards and go ahead to formulate them in order to solve conflicts between the government branches. The situation becomes complicated for the courts when the Executive branch powers get to an impasse calling for the application of the constitution in the same case. The Court on the hand has no option but to involve itself in such issues as any reluctance on its side will lead to its legitimacy being threaten especially when the issues involve political matters (United States v. Nixon, 1974). In such a situation, the Courts will appear as to have dereliction in its duties. In most cases, the Judicial finds itself coming up with executive privileges which bar Congressional powers from forceful testimonies coming from the Executive side. At the same time, the Court cannot afford to allow the Congress to come up with a disclosure is situations where the privileges of the Executive constitutionally applies. Such a stand by the Supreme Court will be a violation of the power separation and thus the Constitution is based on to protect such power imbalances. At the same time, by the Court allowing the Executive to turn down the disclosure of a proper oversight also will be a violation of the same power separation Act as the Constitution does not approve of such refusals. Hence several decisions made by the Supreme Court in trying to delineate the existing power distinction have to be in such a way that they improve the relationships among the different branches through clarifying the role of each branch with reference to the constitution. This research paper is thus out to examine how the efforts to find solutions to power imbalances disputes have had many effects in both the Supreme Court as well as its appellate case law. The paper focuses on how the change in power balance has resulted in several consequences that are unintended resulting from the political influence on important constitutional issues. The executive is in most cases controlled by the majorities political party in the government thus influence at great length the changes taking place in the law judicial system as well as the powers vested in the executive versus those given to the congress by the United States Constitution. Most of the power confusion regarding the executive privileges arises from the congressional oversight nature that is somehow ambiguous. The main purpose of the legislative branch of the government is to legislate (Nixon v. Sirica, 1973). However, there are evidences indicating that the Congress plays an investigative role that is not within its legislative function scope. This was witnessed in the case when Mason passed that the Congress members have awarded themselves inquisitorial powers as they investigate the public officer’s conducts which is not in its legislative role. In a different but similar case, Woodrow Wilson came up with a different view arguing that it is important for the legislation to also serve as an administration oversight (Nixon v. Sirica, 1973). The Supreme Court had to step in and resolve this issue by declaring that under the constitutional powers, the Congress has the mandate of carrying out oversights in relation to the executive government branch. According to the Supreme Court verdict, the inquiry power as well as the act of enforcing it happens to be an appropriate and important supplementary to the legislative functions (United States v. Nixon, 1974) The Constitutional Justification for Executive Powers The executive branch of the government enjoys a number of privileges in the American constitutional tripartite system. The political, executive and the legislative branches have all been given broad powers by the constitution. By having coequal branches that are separate and elected through different parties that are incompatible and driven by different agendas unavoidably results to clashes and conflicts among the different and separate branches that are expected to interact and work as a unit more often in order for the federal government to properly function. However, it has been observed that such process always happens to be slow. This is because the power separation always results to efficiency being impaired in relation to dispatch and the government’s immediate functions. Consequently, the government’s long staying power has to be enhanced through the shared accommodation expected from the power separation. Thus, it is normal and expected for conflicts to arise among the government branches. Ways of coming up with solutions to such conflicts is the most important thing. In a case where the conflicts are as a result of information, the executive privilege ends up being the main issue. Both the legislative branch and the executive branch are in need of the same information for their respective assignments. The U. S Constitution has given the executive branch a superior position making it able to have such information at the expense of the legislative branch. This can be explained by the presence of the intelligence as well as the military apparatus that operate under the executive branch which is an important inclusion in dealing efficiently as well as being in readiness for any attacks the country may face. The main reason for power separation in government is to give room for independent functioning of the respective coequal government branches falling under its assigned circle of responsibility, interference, away from control risk or any intimidation coming from the other branches. The above information scenario does not imply that the Congress is in no position to obtain such information. There are other several tools that the Congress can make use of in order to make the executive branch to reveal information. The Congress power to withhold presidential nominations confirmations is one of the main examples but this power is mostly exercised by the Senate. The convenient way is for the Congress to have the executive encouraged to cooperate. This situation has led to most parties believing that this power was in no way meant to persistently pester or persuade the executive branch but there is enough proof indicating that the purse power was a powerful tool intended to keep the relationship between the separate and coequal branches of the government. The congress seeking information from the executive is just one of the many options it has in its efforts to accomplish its responsibility of overseeing the executive in the constitutional framework. Power imbalances of Constitutional Forces between Coequal Government Branches The power allocation exercise between the coequal and separate branches of the government results in a lot of challenges due to the imbalances associated with such powers. The Congress has been given the power to hold hearings on regular bases in an effort to oversee the agencies of the executive branch. This oversight entails the finding out of how the executive power of the President is being practiced in its respective agencies and departments. The hearings of the Congress have been designed in such a way that they educe information. The issue becomes complicated in the case that the information the Congress is seeking from the executive is one that is confidential yet the same information is of public interest in order to safeguard the Presidents confidentiality while conducting his duties. This calls for the executive privileges to be accommodated in the lawful needs that all the branches have in relation to the information. The privilege has to recognize the important principles of the constitution that give the executive the powers to come up with the necessary laws under the Congress while the executive power is in the President. The Power of the Congress The executive privilege ambiguity is complicated with the inclusion of the ambiguity of the overseeing process by the Congress. Investigative role of the Congress has been part of the Congress work as a branch of the American government for so many years. A part from the confirmation role played by the Senate, there are several roles of the Congress with the clearest being to legislate. In addition, there has been many support of the investigative role performed by the Congress apart from its characteristic legislative function. The Supreme Court had to intervene after a heated debate on whether the Congress should continue with its investigative role and rules by stating that the Congress had the powers under the constitution to oversee the executive branch as the inquiry power was an appropriate and necessary part of its legislative function. It is argued that for the Congress to be able to exercise the powers vested to it properly, from impeaching, elections judging, returns, legislation and overseeing the agencies of administration, it must be allowed to access information related to these functions (Wilson, 2004). If the other branches of the government are the ones in possession of such information, then without investigation, the Congress will only access limited information thus will not effectively carry out its functions. The executive branch on the other hand is aware that the minimal scrutiny its actions get from any coequal branch, the more the freedom it gets to act. Thus the subpoena powers of the Congress are important to oversee the other branches (Medellin v. Texas, 2008). The Supreme Court ruled that the Congress is in a position to effectively carry out its functions from its legislative role, impeaching, oversight on the agencies on administration, judging the election outcomes and returns. To carry out the above mentioned roles, Congress members should be allowed to access any relevant information. If a situation arises where those in possession of the information needed by the Congress are not able to it up, then this will force the Congress to use only the limited information at their disposal thus it won’t be in a position to effectively conduct its functions. The Congress expects a great oversight deal considering its supervisory nature instead of being confined to legislation contemplation. Even the power given to the Senate regarding the incidental supervision lacks the House justification. The arguments that the Congress has the mandate to assume a legal role in overseeing the implementation of the legislation lack textual prove in the U. S Constitution and more so, the clause in the constitution related to the same argument refutes the argument as it charges the executive and not the Congress to ensure that the law is executed properly. Article I provides that the overseeing eye of the Congress is meant to determine whether the warrant of the remedial legislation. However, in case a House committee is made to believe that the Congress is not covering possible legislation, then it will rule out any possibility of its interrogative powers in any hearing. The Congress however still enjoys its power of monitoring the activities of the executive in power appropriation. The Congress committee holds frequent hearings in an effort to review monetary resources prior its allocation to the respective agencies. This role is still unclear especially when it comes to the role played by the committee hearings during constitutional processes. The issue of the kind of information the Congress is supposed to gain access to raises the question on where the contours oversight is found in the constitution. This raises the debate on what the Constitution states versus what has become the norm practice with time over the role of the Congress. Despite the fact that the longstanding practices of the Congress are not the constitutional touchstone, the congressional ubiquity on overseeing the other government branches since the clause was included in the constitution shows that the framing was considered as being part of the designed constitution. As the constitution does not mention anything on the overseeing role, it leaves this role of the congress ambiguous thus the need for enough authority to ensure that a convincing doctrine exists. The role played by the congressional investigation is an important one in the government system as it holds the executive accountable to the people. This makes the Congress to be regarded as the main inquest on the nation. This inquest is mainly carried out in form of frequent hearings. The Supreme Court has passed that the provisions in the constitution that talk about the legislative functions of the Congress are aimed at including overseeing inquiries to the latter such that the function has to the properly executed. The process of gathering information is so important to the government as the inquiry process gives power to the branch enforcing it making it remain essential and appropriate part of the legislative. The scope of the Congress to access information has its limits. The Congress has no mandate to go against the principles of the constitution in trying to get witness testimonies. Thus such limits on the Congress power as they seek information have to be examined carefully as its right to inquire has formed a relevant subject of discussion on government actions as defined in the constitution. The Bill of Rights offers some of these limits but these limits apply only to the Congress inquiry on an individual thus they are not applicable when it comes to the Congress role of overseeing administration personnel with respect to their official responsibilities. Executive Power The federals government executive powers are in the President and this provision serves against the powers of the Congress that cover the executive privilege. The inherent power of the executive is complicated making the judicial fashion laws so as to be in a position to come up with predictions in relation to the constitutional authority that forms part of the executive privilege foundation. The constitution does not mention anywhere the executive confidentiality privilege yet this has continuously been used to refer to the powers discharged by the President while claiming that they constitutionally based. The President position in the constitution is unique. As the legislative branch is represented by approximately 535 members and mostly relies on the way the issues are framed, the judiciary is represented by at least nine Supreme Court members who at times get as many as more than a thousand yet the executive is represented by only an individual. Even though the President is an individual, he remains distinguished by more than his office singularity. The President stands in a national symbol, the chief of state and the nation’s voice. All the executive roles have been vested in the President as America lacks the likes of a prime minister. In addition to the many powers defined in Article II for the President, he is vested with unique resources, a press corps to pass the President’s message and the exceptional ability to have the national discussions shaped. The Supreme Court appreciates that the unique role defined in Art. II of the activities and communications of the President as related to the duties performances under the same article. The President also has the powers to extend some of his office aspects to the subjects under him in both diminished and limited ways. The officers serving under the executive remain answerable to the President take part in the executive power of the President on the behalf of the President. This makes the staff members of the White House to remain special yet they stand in for offices created by the agencies of the Congress. White House staffs work directly within the scope of the President as part of the executive office. Senior aides fall under these officials and they directly make consultations with the President thus play a big role in changing the President’s ego thus serve as the President’s office direct extension and essential to the actions and consideration of the President. One of the applicable laws that has continuously been referred to when it comes to the power balance between the government branches of the government is the Marbury v. Madison in which some of the officials of the Supreme Court were but to task to address the issue of the scope of the powers vested in the federal judiciary. The executive powers under the Constitutional of the United States are conferred in the President. This is a counter-power to the powers of the Congress that oversee executive privileges. The inherent power concept of the executive has remained ambiguous resulting to the Supreme Court being put to task to fashion its laws in such away that it is well positioned to evaluate this inherent constitutional assertions that fall under the executive privilege foundation. The conflict arises in that the Constitution does not provide any reference that is explicit regarding the confidentiality executive privilege yet it is based on when such interests are related to the discharging of the powers of the president (Medellin v. Texas, 2008). Following this, the ability of the President to agree with his advisers has proved to be a significant condition in relation to how the executive powers are exercised. The president is expected to be in a position to evaluate the proposed legislation wisdom when it comes to signing or rejection any law (Watkins v. United States, 1997). In case of existing law, the President is expected to oversee the faithfully execution of such laws. If a situation arises and the president is forced to act, then his actions have to be based on advice from experts making the consulting power be affiliated to the executive powers. Conclusion The Constitution of the United State has separated the government powers into three branches; executive, legislative and judicial. The legislative branch is the Congress and the branch is charged with the responsibility of making the laws of the nation. The executive branch on the other hand is expected to enforce the enacted laws. This enforcement is done mainly by the President who is assisted by the several executive officers. The Judicial branch consists of the Supreme Court with other federal courts that are bellow the Supreme Court. This branch serves to decide on the cases that come up and fall within the law. This government division is referred to as the power separation. The main aim of separation of power is to try and curb dictatorship. The power balance between the government branches are mainly experienced when it comes to the freedom and access to information. This is because, this situation has in the last decade been left and decided by politics and not the law as it was in the past. This has led to the settlement on such conflicts mostly to favor the party with the majority members in the house. This is against the law as issues of the law are not supposed to be addressed in such a manner. Hence, the scope of the privilege vested to the executive have to be solved in the courts so as to ensure that the powers of the President are not impaired in the event that the political wind favors the President. The most desired outcome of the conflicts arising between the government branches is always when the executive branch supported by the political wind reaches a settlement. However, this is not always reached at or at times not desired. This is normally desirable if such outcomes will in some way degrade the role of the other government branches. In case any of the government branches demands for anything that is unconstitutional and which has been fully vested in the different branches by the Constitution, then the branch in question should not be expected to negotiate on the matter in question. References Elliot E. Richard, ‘The Place of Judicial Review in the American Tradition.’ Judicature. 68-78 John L. (2007). Mantel M. Miller, Congressional Investigations: A Bibliography, 100 Law. J. 323, 324 n. 8 (2008) Medellin v. Texas, 552 U.S. 526, 621 (2008) Nixon v. Sirica, 487 F.2d 700, 717 (D.C. Cir 1973) United States v. Nixon, 418 U.S 683,821 (1974) Watkins v. United States, 354 U.S. 178, 192 (1997). Wilson W., Congressional Government: A study in America in American Politics, 32 B. C. L. 297, 321 (2004). Worrall, W., Criminal Procedure: From First Contact to Appeal, 45 B.C. L 453, 477 (4th ed. 2012). Read More