Executive Dynamism in Healthcare: A Rich History of the Executive Branch and Its Use of Power in Public Health and Access to Care Initiatives

By Balasubramanian, Sai | Faulkner Law Review, Fall 2017 | Go to article overview

Executive Dynamism in Healthcare: A Rich History of the Executive Branch and Its Use of Power in Public Health and Access to Care Initiatives


Balasubramanian, Sai, Faulkner Law Review


I. INTRODUCTION

Famous philosopher and political thinker John Locke articulated one of the fundamental theories upon which all successful, modern democracies have thrived. In his second treatise, Locke proposed: "The Legislative Power is that which has a right to direct how the Force of the Commonwealth shall be [employed] for preserving the Community and the Members of it." (1) Locke continued:

For the Legislators not being able to foresee, and provide, by Laws,
for all, that may be useful to the Community, the Executor of the Laws,
having the power in his hands, has by the common Law of Nature, a right
to make use of it, for the good of the Society, in many Cases, where
the municipal Law has given no direction, till the Legislative can
conveniently be Assembled to provide for it. (2)

Locke's philosophy is a straightforward treatise on the requirements of a functioning government; while the legislature dictates the laws of the land, often retroactively, a need exists for a specific office dedicated to creating viable change in the nation and enforcing the laws already in place, thereby ultimately preserving the rights and welfare of the people.

The American legal tradition delegates this power to the Executive Office, an entity which not only proposes and enumerates specific laws and changes to be made, but is also responsible for the oversight, governance, and execution of the laws of the land. (3) Agencies or ministries, acting as extensions of the Executive Office, typically execute and enforce the laws. (4) Created solely for this enforcement purpose, these administrative agencies typically answer directly to the executive. (5) In the larger scheme of government, these agencies, and the executive branch as a whole, work in conjunction with the legislative and judicial branches. The most significant aspect of this form of government is that it functions "to prevent the concentration of power and provide for checks and balances." (6) As it has been repeatedly noted, "[a]rguably no political principle has been more central than the separation of powers to the evolution of constitutional governance in Western democracies." (7)

The United States has long been a global beacon for embracing a powerful yet balanced democratic system, with an especially robust and dynamic executive branch. In the United States, the executive branch derives its authority from Article II of the Constitution, which enumerates that "[t]he executive power shall be vested in a President of the United States of America." (8) Broadly speaking, the Constitution provides the executive branch with a variety of powers and privileges, including some that infiltrate the powers enumerated to the other branches. These powers include: (1) legislative powers that arise from the Executive Officer's ability to create legislative agendas, veto legislative actions, and promulgate executive orders which may act as enforceable laws themselves; and (2) judicial powers that include the ability to appoint officers and officials and to pardon individuals for crimes. Inherent executive powers include acting as Commander in Chief, giving the President the ultimate authority for the country's armed forces and troops; conducting foreign affairs by ratifying and enforcing treaties and other binding international agreements, both through the diplomatic process and through work with the legislature; and appointing senior officials, cabinet members, and heads of the Executive Offices and departments who enforce the nation's laws and regulations. (9)

Often, the Executive Officer will bring specific agendas with them when they first take the helm of power; that is, most executives aim to enact or promulgate specific policies they deem beneficial for the country and the people. Thus, Executive Officers will cultivate and foster a specific political environment and relationship with the legislative branch in an attempt to promote this vision. …

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