Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701.pdf

The virtues of discretionary presidential impoundment

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the virtues of discretionary presidential impoundment which it unsuccessfully sought to restore through a limited item veto (see above). 104 The growth of executive and judicial powers, often at the expense of Congress, can be attributed in large measure to emergence of political parties. Madison, it should be remembered, counted on “opposite and rival interests” to preserve the constitutional division of powers; that is, more specifically, a union or merger of the interest of the office holder with “the constitutional rights of the place.” Thus, he anticipated that a congressional intrusion into what the executive felt to be his legitimate domain would be met by a veto. Similarly, Congress could be expected to take measures to nullify or repel actions by the president or courts that it perceived to be an invasion of the legislative realm. Yet, with the emergence of political parties and their quest for the control of government -- which, with its enormous growth in the Twentieth Century, involves the allocation of resources of a magnitude scarcely imaginable at the time of founding – partisan considerations, not institutional interests, have come to dominate. This means that Senators and Representatives of the president’s political party, short of gross malfeasance or criminal conduct, will support their president’s action even those which do intrude upon legislative authority. 105 To do otherwise, to act upon institutional interest, would be to undermine the party and its chances of retaining the presidency, the only national office and the prize for which both parties vie. Partisanship, albeit in a different way, is also an important factor when it come to Congress’s reaction to the Court’s expansion of power. Quite aside from the esteem it enjoys as institution, the Court is unlikely to issue any controversial decision matter that will not find sufficient political backing in Congress to forestall retaliation. It may be set down as a general proposition that in the halls of Congress any issue involving disputes over the separation of powers, no matter how genuine it may be, will soon or late be reduced to a partisan controversy. Partisanship, however, has not completely eclipsed institutional interests. 104. Although the Court declared the first effort in this direction unconstitutional, congressional efforts continue to formulate a process that would pass constitutional muster and give the president this authority. 105. Nixon was clearly going to be impeached and removed from office when he resigned. But the entire affair took months and the loss of party support in the Congress due to the evidences of indictable actions. In the absence of such evidence, the party will stick with its president as evidenced in the Clinton impeachment and trial.
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