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Archive for the ‘head of state’ Category

on the US political and social system in crisis: 2 – the head of state and the constitution

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Canto: So, as we’ve said, the most substantial difference between the US political system and the Westminster system adopted with slight variations by other English-speaking democracies is the position of Head of State. Here in Australia, as in Canada, New Zealand and Britain, Queen Elizabeth II holds that position, and she’s represented locally, outside Britain, by Governors-General. There are differences in each country, with their state and provincial governments and legislatures, but essentially all of these countries are constitutional monarchies in which the head of state and her representatives have extremely limited powers. The USA by contrast has a Republican government in which power and authority is supposed to rest in the people through their elected representatives.

Jacinta: But as you’ve said, the monarch’s power within the Westminster system has been eroded over time by legislation, and essentially given over to the people through their elected reps.

Canto: Yes, as discussed in a previous post, the liberal political philosophy of John Locke was utilised both in the draughting of legislation limiting the monarch’s power in 1689 (and subsequently), and in the draughting of the US Constitution in 1787. That constitution instituted three separate arms of power, legislative, executive and judicial.

Jacinta: It’s said to be the oldest continually operating constitution in the world, which may be an object of pride, but it may also be an obstacle to reform. Just saying.

Canto: What we’re most interested in here is the executive power, defined largely in Article II of the Constitution. The US President has Constitutional powers regarding the vetoing of Congressional bills and the pardoning of convicted persons. These powers are clearly controversial, never more than in the present situation.

Jacinta: And how do they compare with Prime Ministerial powers under the Westminster system?

Canto: Well you never really hear of them, much. The pardoning power, though, isn’t invested in the Prime Minister, it’s delegated to the member of government most responsible for legal matters, in Australia’s case the Attorney-General, and in England the Lord Chancellor. It’s signed off by the monarch or her representative. It’s rarely used, and never controversially as far as I can tell.

Jacinta: But that seems a definite improvement on the US system, spreading the power load, so to speak. And they don’t trade in politically charged pardons, as that would be political suicide.

Canto: As you might think it would be in the US, but often their President pardons people just as he’s about to leave office, when he can’t be re-elected anyway. And that’s another difference. There’s no time limit on the Prime Minister’s tenure, and his length of time in office is just as often dependent on his party’s shifting allegiance as it is on the electorate. So pardoning, when it happens, would tend to be a more consultative process than in the US. And of course there’s no Westminster equivalent to the US President’s veto powers – another limit to placing power in the hands of one person.

Jacinta: So now to the principal difference between the US system and the Westminster system, the fact that the US President is directly elected, albeit through the Electoral College.

Canto: Yes, and he selects his running mate, the potential Vice President, who goes through no electoral process at all. And then appoints a whole host of executive officers – Secretary of State, Secretary of Defence and so on, and on. This is disastrous when you have a populist but obviously politically naive and ignorant candidate, who unsurprisingly selects an equally moronic running mate. Again, compare the Westminster system, where elections are about parties, so that voters, if they’re informed, consider a number of factors which militate against pure populism. These include the policy of the party, the local member in their electorate, and the leader of their party of choice – a leader who is chosen by her peers on the basis of ability, style, popularity, party loyalty and other factors. You’re much less likely to get a witless outsider as your Prime Minister in such circumstances.

Jacinta: And what about an incompetent or criminal head of state? How do you get rid of him in the USA?

Canto: Well of course under the Westminster system the PM is essentially the captain of the party team, but there’s no problem with the team dumping their captain if they feel he’s letting the side down. This doesn’t have to mean an election, though of course it may lead to popular disaffection with the ruling party – but then again it could lead to a swing in the other direction. But the situation of a dud head of state in the US system is far less clear. The whole nation can apparently be held hostage by a President who refuses to recognise any curb on a power that’s already far greater than that of any other leader of a modern democracy.

Jacinta: Well, the serious problem the US finds itself in is highlighted by the confusion about Presidential power, with many pundits claiming in all seriousness that their President can’t be charged with a crime while in office. The absurdity of such putative immunity should be obvious to any sensible person.

Canto: And the President can’t be removed from office it seems, for example through losing the support of his party.

Jacinta: No, because the structure of government is so different there, with the President surrounding himself with his own personal appointees, who will naturally support him. Of course our PM personally selects his cabinet, but these are all elected representatives, members of the party elected to government. Their allegiance is above all to the team, not just to the captain. So what does the US Constitution actually say about removing a dud Prez?

Canto: Well not surprisingly, Article II also describes the conditions for removal of the President:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. The Constitution also allows for involuntary removal from office…

Jacinta: Wow, so it might be constitutionally possible to get rid of the whole gang in one fell swoop? Conspiracy with Russian (enemy) agents to win an election, doesn’t that sound like treason? But then there’s this shabby-sounding, very un-Westminster process called impeachment, an inherently doubtful political instrument, surely. Isn’t conviction enough?

Canto: Well, of course impeachment and the rules around it have become hot topics in recent times. We know for example that impeachment doesn’t necessarily mean removal from office, so again the ability of the US Head of State to worm his way out of almost every attempt to remove him remains a serious problem, and a pretty egregious failure of the system. But yes, impeachment is a chimeric blend of legal and political judgement/justice. In most democracies, or at least many, being charged with a crime would be sufficient for removal from office. But the reason, it seems, that this is such a problem in the US is that the head of the state’s ‘executive’ staff are appointed by him, unelected, and therefore none of them really have a mandate from the people to govern.

Jacinta: Well, despite all the problems, the US is headed for almost certain impeachment in this case…

Canto: Well, hopefully the Mueller charges will be comprehensive and wide-ranging, leaving little room for doubt among the majority. Currently, just about everything hangs on the Mueller findings, and we haven’t heard too much from the enquiry recently.

Jacinta: One problem seems to be that that new avenues for enquiry keep opening up almost on a daily basis. It’s like they’re sitting at a table covered in dishes of rich food, and the waiters keep coming out with new dishes before they’ve properly digested what they’ve got. At some point they might just shut the doors and say ‘stop, we’re full up and we’re hurting!’

Canto: But another problem is that the Head of State may choose not to resign after being impeached, claiming that everybody’s being treasonous except himself. What then?

Jacinta: Well we seem to be constantly entering new territory – because nobody has sufficiently considered the prospect of a demagogic but completely lawless head of state. What the USA needs to face, once this crisis is over – and it’s surely set to worsen over the next year or so – is that their system needs a drastic overhaul, with power being more distributed, less concentrated in one individual. That’s the screamingly obvious lesson that virtually no American pundits seem to have learned – so prevalent is the jingoistic disease over there. And currently it’s almost impossible to change their beloved constitution.

Canto: Yes I think we need to look more closely at their constitution and their future. Changing the constitution requires passing an amendment through both houses of Congress with a two thirds majority. But so many changes are needed, regarding Presidential powers (for example the appointment of White House officials and their staff), regarding the financial affairs of the head of state, regarding prosecution of the head of state, regarding the conducting of elections for the head of state. It’s really hard to know where to start, but they have to make their system more flexible, so that the adults can take over when absolutely necessary. I’m happy to stick with my prediction that the present incumbent will be out of office by year’s end, but I’m far less sanguine about it being a non-violent transition. And who will be the replacement? For the rest of the world it’s an embarrassment (and for some, merely a joke), but for the USA it’s a tragedy. Hopefully, though, some vital, if humiliating, lessons will be learned.

 

Written by stewart henderson

July 8, 2018 at 9:57 pm

Posted in head of state

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