govt 2305 the executive – definitions and historical background

GOVT 2305

The Executive – Definitions and Historical Background

As with our discussion of the legislature, let’s review a few basic facts about the executive branch

prior to outlining its historical development.

What is the Executive Branch?

Simply put: the branch that – within the system of separated

powers - implements and enforces the laws passed by the legislature.

This means that the executive possesses the “sword,” it has the means to enforce

the law.

Recall that the legislature possesses the “purse.” That is the course of its strength.

When we get to the judiciary we will struggle with what exactly is the source of

their power. Its not obvious.

Article Two of the US Constitution establishes the executive branch

on the national level.

- Here is the Wikipedia entry on Article 2.

The Constitution vests executive power in one person – the

president. This makes the office singular. One person heads the

branch, which makes it autocratic.

It is designed to effectively implement the law.

The singular form on the national level was intended to give to the national level the power lacking

under the Articles of Confederation – which had no

executive authority if you recall.

Not everyone thought such power was necessary.

On the national level, the executive was considered by the

Anti-Federalists to be a potentially dangerous branch since it is given the power of Commander in Chief

and also is in charge of the collection of taxes.

Not surprisingly, a central dispute throughout American history has

been about how expansive the powers of the executive should be.

This is especially true in times of crisis or war.

If you’d like to run through background about the history of the Presidency – or

analysis of it, click on any of the following (there many more sites out there):

- The American Presidency Project.- A Glorious Burden.

- List of Presidents of the United States. - A Visual History of the Presidency.

- Click here for an ambitious list of links related to the presidency.

And as you probably know, the president lives here:

For detail on the building, click here, here, here, and here. And if you feel inclined, you can like the

White House on Facebook.

If you didn’t already know, the current President is Barack Obama,

here is the official website of the White House.

Note: the term “president” was used for the national level rather than “governor”

because “to preside” sounds more passive than “to govern.” Presidents “preside.”

That did not seem powerful or dignified enough for some of the framers. But it sounds less dangerous, so to sooth the

fears of the Constitution’s opponents they went with it.

The President serves four years terms, and due to the 22nd

Amendment, can only serve two terms.

Note that the executive branch contains far more than just the

president. Here’s a brief introduction to two related

institutions.

The AdministrationThe Bureaucracy

To get comfortable with these two institutions, look at the following

graphic. Note the dividing line between the administration and the bureaucracy. Simply put, the

former assist the president in overseeing the implementation of law while the bureaucracy actually

implements it.

One is political, the other is professional.

The Administration

The Bureaucracy

The dividing line matters.

Presidents have far more control over what happens above the line

than below it.

Here’s detail about each:

The Administration

The presidential administration is composed of individuals who are affiliated with the president

and base their positions on the results of elections. Specifically this refers to the circle of

advisers that assist the president. We will discuss these more thoroughly when we look at

the evolution of the office, but I’d like you to become familiar with these three offices.

White House StaffExecutive Office of the President

The Cabinet

Again, note, these institutions are all above the dividing line in the previous slide.

White House Staff

These people work directly for the president and are responsible for

organizing his activities. They include the Chief of Staff, the Press Secretary, personal

legal and policy advisers among many others. Their primary function is political. They are there to make the president look

good.

Executive Office of the President

This office assists the President in developing specific strategies to implement the law (history). This includes the collection and

dissemination of relevant data and presentation of policy options. The National Security Council

and the Council of Economic Advisers are probably the two most important offices within

the EOP. These are policy specialists.

The Cabinet

This is the name given – collectively - to the heads of the executive departments.

They are called secretaries. Each department contains and a large number

of smaller agencies. The secretaries oversee them. These agencies do the

actual implementing of law.

With very few exceptions, these are people that are affiliated with a

particular administration and come and go with that administration. When there is a transition in the office of the

presidency, the top officials in these offices change as well.

This is not true for the bureaucracy.

The Bureaucracy

This term refers to the federal workforce, which is also called the civil service. While

this term also refers to the people who work for the legislative and judicial

branches, by far the largest number of work for the executive. These are the

people who actually implement the law.

The federal workforces is managed by the United States Office of

Personnel Management (wikipedia).

According to the OPM, in 2010, 2.7 million people worked for the federal executive branch, 1.6

million for the armed forces, and 64,000 – combined – for the

legislative and judicial branches.

Click here for historical data back to 1962, and the OPM’s Fact Book here.

Given the number of agencies created over American history, the bureaucracy is vast. Click here for

links that list the number of agencies that exist.

Links to the U.S. ExecutiveLink to the Texas Executive

Members of the civil service are purposely not directly controlled

by the president in order to ensure that they cannot become political

tools. Under the spoils system, jobs were used to entice political

support – this was called the spoils system.

During the 19th century, the civil service was often politicized. The

victor in presidential races saw the jobs available to him and his party

as “spoils” to be handed out as they pleased.

Civil Service reform in the late 19th Century de-politicized the

bureaucracy, made it more likely to be controlled by professionals,

but has led to conflict between the civil servants, who hold their jobs for decades, and the presidential administrations who are in office

for 4 or 8 years.

Since the President has little direct control over the bureaucracy, tension can develop

between the administration and the bureaucracy.

This conflict is enhanced by the fact that there is regular turnover in the Presidency while members of the civil service tend to

hold their jobs for decades.

We will wrestle with the nature of Presidential power soon – and the question about what actual control

the President has over the entire executive branch despite the fact

that the singular design of the office is intended to make the

branch efficient.

Now let’s provide a brief outline of the Texas executive branch.

Article Four of the Texas Constitution establishes a plural

executive.

As with the other branches, the Texas executive branch is designed

to be weak. This is accomplished by establishing that top executive

officials are elected independently. It is difficult to coordinate their

activities.

The independently elected offices are:

The GovernorThe Lieutenant Governor

The Comptroller of Public AccountsThe Commissioner of the General Land Office

The Attorney General

The Governor is, according to the Constitution, the chief executive

officer of the state. Here is background from TSHA on the

governor.

The duties of these and other offices is clearly outlines in different sections in

Article 4 of the Texas Constitution.

The fact that top executive officials are independently elected is hugely important.

On the national level, all of these positions are appointed by the President. This gives the president greater authority over national

departments than the governor has over state departments. The President is better able to

select a “team” that is committed to his goals and objectives.

An independently elected official has a base of power that is not controlled by

the chief executive officer. The governor may have persuasive

abilities, and influence through the party that makes him powerful, but those are individual characteristics,

not powers of the office.

In addition to the offices listed previously, Texas also has two independently elected boards:

Railroad CommissionState Board of Education

The Governor normally lives here (til if got burnt):

For details on this building, click here, here, and here.

If you did not know already, the current Governor of Texas is Rick

Perry. Click here for lists of previous governors.

Here’s the Governor’s official page.

The governors served 2 years terms until an amendment was

passed allowing for 4 year terms beginning in 1974. The governor is

not term limited.

As of February 2012, the other elected office holders are:

David Dewhurst – Lt. GovernorSusan Combs – Comptroller

Jerry Patterson – TX Land ComGreg Abbott – TX Attorney General

Executive branches exist on the local level as well.

Let’s take a quick look at city and county governments, and the people who hold those offices

locally.

First: Cities

Depending on the specific design of the city government, the

executive branch may be headed by a mayor or a city-manager.

Most large cities – Houston included – have strong mayor systems where the mayor is

independently elected and has independent control of the

bureaucracy.

The current mayor of Houston is Anise Parker.

Many smaller cities have either weak mayor systems, or council manager systems. In the former,

the mayor is elected, but lacks any power independent of the city

council. Often these positions are served without pay.

In the council manager form, the city council hires a city manager

who hires a professional city manager to oversee the day to day

administration of the city.

Alvin has a weak mayor – council form and also has a city manager

that runs the city day to day. The powers of the mayor of Alvin are listed in Article II, Section 8 of

the Code of Ordinances. The powers of the City Manager and other administrative officials are

listed in Article V.

The current mayor of Alvin is Gary Appelt. The current City Manager

is Terry Lucas.

The mayor of Manvel is Delores Martin and the city manager is Kyle

Jung.

Pearland has a Council / Manager form of government. The mayor is Tom Reid, the city manager is Bill

Eisen.

Second: Counties

Article 9 of the Texas Constitution provides for the creation of counties and defines

their powers.

The Constitution establishes that the county government will be headed by a

five member commissioners court with a county judge and four commissioners voted from one of four single member

districts drawn in the county.

If you recall from 2301, counties are administrative arms of the state, so they

have little independent policymaking authority apart from what they are

mandated to do by the state. While they have a degree of legislative and judicial

power, their primary function is administrative – meaning executive.

The discretion available in determining how to execute the laws can grant county executive

officials considerable power.

The county judge of Brazoria County is Joe King.

The county judge of Harris County is Ed Emmett.

Hopefully this gives you an understanding of the overall

structure of the executive branch and who holds what positions on

each level of government.

Now for history

As I did with the legislature, I want to trace the development of the modern

executive branch beginning with events that transpired around the time the Magna Carta was signed.

Actually we will begin almost two centuries prior to that event, with the

Norman Invasion.

As with the previous exploration of the legislature, we will note how

the arbitrary power of the monarchy became slowly

contained as legislatures grew in strength and were able to impose constitutional limits on executive

power.

But something else is occurring as well. The administrative state was

developing and this made in it easier for the monarchs to act as they

choose.

This increased power was just as dangerous as arbitrary behavior. Part of the goal here is to trace the nature

of the growth.

And again, we will see how gradually the totality of the powers claimed by the monarchy became limited. The monarchy would lose control, slowly, of legislative and

judicial power.

As suggested above, we’ll begin with a crucial transformative

event; a turning point in Anglo – American history.

The Norman Invasion

King William (William the Conqueror) led an invasion of

England that transformed decentralized feudal Anglo-Saxon

England into a centralized administrative state.

Anglo Saxon rule was feudal and based on custom and

was generally arbitrary. There was no legislation as we would

recognize it. Society was organized by norms and customs.

Rule was decentralized and local, which gave the barons discretion in how law was implemented. But

it also allowed for abuse.

Beginning with William, the power of the monarch increased over the nobility due to the

establishment of an efficient administrative apparatus that bypassed the nobility and

allowed the monarch to connect directly to the population.

Notice how this increases the power of the monarch. An efficient administrative state aids executive power. Keep this point in mind as we

continue.

Example: The Domesday Book

This was an early census which gave William information about the productive capability of the country. This would allow

him to assess taxes when he needed revenue. See a typical page on the next slide – and click here for a translation.

The work was called the Domesday Book because:

"It was written by an observer of the survey that 'there was no single hide nor a yard of land, nor indeed one ox nor one cow nor one pig which was left out.' The grand

and comprehensive scale on which the Domesday survey took place, and the irreversible nature of the

information collected led people to compare it to the Last Judgement, or 'Doomsday', described in the Bible, when the deeds of Christians written in the Book of Life

were to be placed before God for judgement.

Henry I (1100 – 1135) Created an early version of a tax collecting mechanism: The Exchequer. It

managed and collected revenue.

Henry was the monarch we already noted was responsible for the Charter of Liberties ( which was known as the Coronation Charter). The Charter was intended to calm the worried nobility

about his increased power. If you recall he revoked it, but it became a

template for the Magna Carta anyway.

Henry II (1154 – 1189)

Established a permanent bureaucracy with a degree of

independence from the monarch.

“Henry empowered a new social class of government clerks that stabilized procedure . . . would subsequently prove sufficiently

tenacious to survive the reign of incompetent kings” – from

Britannia.

This may as well be considered the birth of the bureaucracy as we

would recognize it.

And notice that it is meant to provide stability in governance as well as strength to the executive.

Judicial developments occurred at this time also. Common law

established and it would replace feudal customs. Royal courts were

also established and jury trials developed.

More on this when we discuss the judiciary.

Henry II is the monarch played by Peter O’Toole in The Lion in

Winter.

You can see the entire movie in You Tube clips. One of his sons

would become the King John who signed Magna Carta.

John I (1199- 1216)

As we already know, he was the king that was made to sign Magna

Carta. If you want to review the text, have at it.

Edward I (1272 – 1307) further refined the administrative state by creating four distinct institutions.

He was called Longshanks, and was the villain in the Mel Gibson movie

Braveheart.

“Edward I added to the bureaucracy initiated by Henry II to increase his

effectiveness as sovereign. He expanded the administration into four principal

parts: the Chancery, the Exchequer, the Household, and the Council. The Chancery researched and created legal documents while the Exchequer received and issued money, scrutinized the accounts of local officials, and kept financial records. . . .

. . . These two departments operated within the king's authority but independently from his personal rule, prompting Edward to follow the practice of earlier

kings in developing the Household, a mobile court of clerks and advisers that traveled with the king. The

King's Council was the most vital segment of the four. It consisted of his principal ministers, trusted judges and clerks, a select group of magnates, and also followed

the king. The Council dealt with matters of great importance to the realm and acted as a court for cases

of national importance. – from Britannia.com

Digging into this text, we can see four distinct types of organizations

develop.

1 - The Chancery

. . . researched and created legal documents . . .

2 - The Exchequer

. . . received and issued money, scrutinized the accounts of local

officials, and kept financial records . . .

3 - The Household

. . . a mobile court of clerks and advisers that traveled with the king

. . .

4 - The Privy Council

. . . principal ministers, trusted judges and clerks, a select group of

magnates, and also followed the king. The Council dealt with

matters of great importance to the realm and acted as a court for

cases of national importance . . .

Henry VIII (1509 – 1547) further expanded the power of the

monarch by making it the Supreme Head of the Church of England, the

officially established church in England. He did so by breaking

with the Catholic Church.

By replacing the Catholic Church with the Church of England, Henry

ensured that the crown would have its own source of funds since

he appropriated by church’s property.

As a consequence, loyalty to the king became especially important

since hostility with the Catholic Church increased. To be Catholic was to be considered a potential

enemy of the monarch and traitor to England.

England moved into an era of "conformity of mind" with the new royal supremacy (much akin to the absolutism of France's Louis XIV):

by 1536, all ecclesiastical and government officials were required

to publicly approve of the break with Rome and take an oath of

loyalty – Britannia.com

Elizabeth I (1558 – 1603) represented the apex of monarchic

power, but she had no heir so power was passed to the

House of Stuarts upon her death.

As we can see from the previous text, the administrative power of

the monarchy had expanded considerably prior to the era of the

Stuarts. The twist added by the Stuarts was their belief in their

divine authority, which relegated the legislature to a secondary

status.

The Era of the Stuarts

James I (1603 – 1625)Charles I (1625 – 1649)

The Commonwealth (1649 – 1660)Charles II (1660 – 1685)James II (1685 – 1689)

James the First

As we know, he was an active proponent of the divine right of the monarch. He was also called “the wisest fool in Christendom” (not to his face). He developed a theory of divine right in his book

The True Law of Free Monarchies.

“ . . . the king owns his realm as a feudal lord owns his fief, because kings arose ‘before any

estates or ranks of men, before any parliaments were holden, or laws made, and by them was the land distributed, which at first was wholly theirs. And so it follows of necessity that kings were the authors and makers of the laws, and

not the laws of the kings.’” – James 1.

As we know, he advised against holding Parliaments except when

necessary to gain revenue.

He ruled without Parliament from 1614 – 1621. Remember that the

monarch at that point could prevent Parliament from meeting.

As with the rest of the Stuarts, he flirted with Catholicism, which

Protestants took as evidence that he favored the establishment of an

absolute monarchy.

Charles I (1625 – 1649)

Also believed in divine rule which allowed for an expansive interpretation of Royal

Prerogative. As was the habit of others as well, he levied taxes without the consent of Parliament. He did not recognize them

as legitimate protectors of the public purse.

Recall that Charles was presented with the Petition of Right, which

was intended to remind him of the ancient rights and liberties

monarchs had granted the nobility and the people (to a lesser extent)

in the Magna Carta.

A reminder of some of the content:

1628: The Petition of Right

- taxes cannot be levied without consent of Parliament.

- martial law cannot be imposed in times of peace

- the writ of habeas corpus must be honored

- soldiers cannot billeted unless authorized by Parliament.

As a consequence Charles forced Parliament to adjourn and ruled without Parliament from 1629 –

1640. The period of Personal Rule.

Even after Parliament was reconvened (in order – not

surprisingly – to pass finance bills to recover finds lost during the Bishop’s Wars) it continued to

investigate the monarch and his advisers. The opposition was

driven by an increasingly vocal Puritan contingent.

January 4, 1642

Charles enters Parliament to arrest five members (Puritans) who were prepared to

impeach some of the king’s advisors – including the queen – for “Catholic plots” -

and who had introduced legislation to remover the army from the king’s control.

Trivia: Isaac Newton was born that day.

This explains why members of Congress are privileged from arrest

when in session.

The English Civil Wars begin around that time. It was a war

between the monarchy and Parliament that ended with the

execution of Charles on charges of high treason.

We covered this already.

When urged to enter a plea at his trial, he stated his objection to

doing so with the words: "I would know by what power I am called

hither, by what lawful authority...?"

The opposition held that:

“The King of England was not a person, but an office whose every

occupant was entrusted with a limited power to govern ‘by and according to the laws of the land

and not otherwise’”

This marks a huge shift in attitudes towards executive authority.

The execution of Charles, and the final defeat of the forces of the

monarchy in the Battle of Worcester, was followed by the

Commonwealth.

Charles was followed by the brief rule of Oliver Cromwell during the

Commonwealth (1649 – 1660).

This was a complicated period of time which included a spell from

1653 – 1659 when Britain was ruled by a Lord Protector, which

was little different than a monarch.

Cromwell, through his army, had disbanded the rest of government,

including Parliament. He would claimed to possess power until he died, and then the power was handed to his son. Which again made this little different than a monarchy.

The idea that defined lengths of service had not been introduced.

Question: during this time was Britain an actual republican

commonwealth ora military dictatorship little different than a monarchy?

Question: By eliminating the monarch, did the legislature

remove a check on its own power?

Is a monarch necessary to restrain Parliament? To keep the peace?

It seems that nothing structurally had been settled by the

Commonwealth.

A proper balance had not been struck between executive and

legislative power.

A resurgence of the power of royalists led to the monarchy being

reestablished by Parliament in 1660 under Charles II, and continued under James II.

Oak Apple Day is celebrated (by some) in Britain to acknowledge

the restoration of the Monarchy.

The new Stuarts repeated the same mistakes as the old. James II, would be removed from office in

the Glorious Revolution and would be replaced with William and

Mary.

Again, as we know, William and Mary became monarchs once they

agreed to sign the British Bill of Rights. By doing so they

recognized, officially and legally, certain limits on their power.

The Kings could not:

- establish their own courts- interfere with Parliament

- rule by prerogative- rule over a peacetime army

- levy taxes without consent of Parliament.

This transformed Britain from an arbitrary monarchy to a

Constitutional Monarchy.

The absolute monarchy is replaced with a constitutional system which

achieves a balance between legislative and executive power.

The relationship of each with the judiciary will be discussed later.

While conflict raged in Britain, colonial governors – appointed by

the crown - ruled the colonies.

For more information about colonial governors click here.

They served as agents of the British monarch.

Their precise roles varied depending on the type of charter

each colony was established under, whether they were

corporate, proprietary, or royal.

During the bulk of colonial history, there was conflict between each colony. Monarchs were seen as

mediators who could resolve disputes between them.

This included a refusal to establish executive authority over the colonies on their own as was suggested in the Albany Plan.

The colonies rejected it.

By the mid 18th Century Britain attempted to either usurp control of the colonies, or more efficiently manage the new lands won due to

the French and Indian Wars.

It depends on one’s point of view what the British were about.

As a result of the victory in the French and Indian Wars, Britain gained new possessions west of the Appalachian Mountains and sent British officials to control

them.

George III imposed executive authority to solve security and

commercial problems

As with the Stuarts, his arrogance, refusal to seek consent, zealous imposition of taxes and use of

military force led to resistance and revolution

These activities led to conflict, which grew increasingly heated.

Consequently, a handful of the grievances listed in the Declaration of

Independence concerned the Kings attempt to usurp colonial executive

power.

Many of these focus on his control of the military

- “he has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance.”

- “he has kept among us, in times of peace, standing armies, without the consent of our legislatures.”

- “he has effected to render the military independent of, and superior to, the civil power.”

- “for quartering large bodies of armed troops among us.”

- “for protecting them [the British troops], by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states.”

- “he is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation, and tyranny already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.”

The colonial experience with central power under a monarch led

to the establishment of a constitutional system with no

national executive: The Articles of Confederation.

Executive power rested with each of the separate states, which allowed for

effective state control, but was very inefficient as a way to coordinate

actions between the states.

The inability of the national government to implement legislation

led to the call for a constitutional convention.

Thus the Constitutional Convention was called with George

Washington as its presiding officer (its president – get it?)

Notice that he is a presiding officer – a president not a governor.

In order to ensure that the endeavor would be supported, or at least a level of trust would exist for the effort, it became vital for

Washington to attend.

He already had earned a degree of trust by not using his position as

general of the revolutionary army as a means of becoming a monarch

himself. His actions in the Newburgh Conspiracy, which

calmed down military frustrated with not being paid for their

services was key.

He was compared to the Roman General Cincinnatus

After given near absolute power in order to address

a threat, he gave it up.

This was taken as a necessary characteristic of the proper

executive official.

Washington became the model for the singular executive in the

Constitution.

The experience of Texas under the constitution of 1869 was different.

The Constitution established considerable power for the

national government, powers which were expanded by the

discretion of E.J. Davis.

One could argued that the expanded power of the United States executive was due to the

trust American had with Washington and the limits on the Texas Executive was due to the distrust Texans had with Davis.

Study Guide:

- What impact did the Magna Carta and the British Bill of Rights have on executive power? Know specifics.- What were the circumstances leading to the signing of each document?- How did British monarchs extend the administrative state, and their powers in general?- What additional problems did the Stuarts cause regarding executive authority? - Be familiar with the Commonwealth and what it did and did not accomplish.

- What factors led to the expansion of British power and influence over the North American colonies? - What specific grievances were made in the Declaration of Independence regarding executive power? - What is executive power exactly? What is the basis of its power? - What are the components of executive power?

- What is the basic design of the executive in Texas and the US? What is the purpose of that design?