The Politics of Shared Power: Congress and the Executive

By Louis Fisher | Go to book overview

Separation Doctrine: Theory and Practice

The record of the Continental Congress convinced the framers of the Constitution that they needed a separate branch of government to promote administrative efficiency. From 1774 to 1781, Congress had to perform all the functions of government: legislative, administrative, and adjudicative. There was no executive or judicial branch.

In an effort to allow more time for legislative duties, members of Congress experimented with various makeshift arrangements to handle administrative matters. First they relied on committees, then on boards staffed by men recruited from outside the legislature, and finally, in 1781, decided on single executives to administer four areas: foreign affairs, finance, war, and marine affairs. Although these executives were agents of Congress and totally dependent on the legislative body for their existence, a measure of independence and autonomy evolved.3

Between 1781 and 1787, the framers concluded that it was essential to vest administrative responsibilities and permanency in a separate executive branch. At the Philadelphia Convention, however, no one knew how much separation should exist between the legislative and executive branches. James Madison had decided neither the manner in which the executive should be constituted nor "the authorities with which it ought to be clothed."4 The Virginia Plan, presented to the convention on May 29, 1787, authorized the legislature to select the executive. Many "prerogatives" we now associate with the president were initially assigned to Congress. For example, the Virginia Plan called on the legislature to choose members of a national judiciary. Two months later the delegates voted to have judges appointed solely by the Senate.5 In a later draft of the Constitution, the Senate retained sole power to make treaties and appoint ambassadors.6

As the convention progressed, these features of congressional government were replaced by the constitutional provisions familiar to us today. The Senate and the president share the appointment and treaty powers. The president is chosen by electors rather than by the legislature (unless a tie vote or three-candidate race throws the election into the House of Representatives). The presi-

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The Politics of Shared Power: Congress and the Executive
Table of contents

Table of contents

  • Title Page v
  • Contents ix
  • Preface XI
  • Chapter 1 - Constitutional Underpinnings 3
  • Chapter 2 - President as Legislator 23
  • Chapter 3 - Congress as Administrator 68
  • Chapter 4 - Bureaucracy: Agent of Congress or the President? 106
  • Chapter 5 - The Independent Regulatory Commission: Mahomet's Coffin 146
  • Chapter 6 - War Powers and Foreign Affairs 177
  • Chapter 7 - Budgetary Control 218
  • Notes 257
  • Selected Bibliography 293
  • Index of Cases 299
  • Index 303
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