Research On Expansion Of American Executive Power

Based on the investigation in the substance, status as well as the function of American executive power in modern society, this dissertation aims at establishing a new constitutionalism model that would be up to date, through the pursuit to the regulation of contemporary executive power as well as related surveys of the historical clue during its expansion. As the most typical representative of decentralized power, the United States has kept social stability for more than two hundred years, which could be considered as the most stable country that is ruled by law strictly in the modern world, not to mention the unceasing promotion and optimization of social structure day by day. From this standpoint, this research takes the development and historical tendency of American executive power as the subject of experiential analysis, which also indicates plenty of precious values and experiences for other countries to learn, particularly the ones like China.Generally speaking, the expansion of American executive power could be regarded as a historical necessity, resting on specific historical circumstance and explicit public basis of realistic appeals. The increasing complexity of the social and economic aspects of daily life, together with the development of national welfare demand eagerly to establish a completely perfect and powerful government, which is full-functioned and service-oriented. Essentially speaking, as a country of democratic constitutionalism, any changes in the government power of the United States ought to be determined by public will and agreement. Holding the theory of democratic constitutionalism that was put forward by The Enlightenment Movement and founders of the nation as the guiding principle of the country, both the democratic camp led by Jefferson and the liberal camp led by Madison regarded the national will, freedom and benefit as the foundation of the validity of government authority. Therefore, generalizing the expansion of American executive power simply as the nature of authority and the defects of traditional constitutionalism model cannot efficiently interpret this issue, since the theoretical controversies in American history with regards to administrative models serve only as a metaphysical annotation for the causes of this problem, which did not deny the classic model of constitutionalism to some substantial extent, whereas looking for its rational form in the new circumstance instead. Consequently, we need to seek a more practical theoretical model of constitutionalism, being aware of the harms of public power and meanwhile recognizing the constitutional values of the separation and control of powers. As seeking for a new constitutionalism model which is much more effective and efficient, we had better take a rational form of constitutionalism up to date as the final goal instead of simply denying the values of it. As a consequence, to construct a new balanced relationship between power and welfare as well as the connection among the executive power, legislative power and judicial power on premise of the necessity of executive power expansion would be the crux of the new administrative reform, which is in fact the main perspective of the new constitutionalism presented in this dissertation.Chapter One focuses on analyzing and describing the historical process of American executive power expansion since the foundation of the United States, which consists of five phases as follows. The first phase lasts from the foundation of the United States to the Civil War. In this phase, constitutionalism mainly needed to solve the problem of power division among the national government and the states. With the aid of constitutionalism, the American founders established a federal country with a powerful central government, which replaced the loosely-bound confederation of the states. Thereby the system of the separation of powers with checks and balances gradually took shape. The second phase, lasting from the post-war Reconstruction to the industrialization period, witnessed the central executive power expanding in its struggle against the legislative power, starting to become the symbol of the country and the concentrated representation of the national power. In the third phase, which stood between the First World War and the end of the Second World War, American administration turned to be an "intervening government" with active performance owing to Roosevelt New Deal, the power of whose executive branch was able to expand dramatically. In the fourth phase, from the postwar period to the end of the 20th century, executive power continued to enlarge in the waves of Civil Rights Movements, which made American government converted from "a parliamentary government" to "a presidential government". The fifth phase is from the 9.11 events to the present day. The neo-conservative Bush Administration enlarged and strengthened executive powers in the name of anti-terrorism, so that imbalance emerged between the state and the civil society, between the executive branch and the judicial branch and between the government institutions and non-governmental institutions. To some considerable degree, Bush restored the authority of "imperial presidency" of Richard Nixon, which had far-reaching influences on the American constitutionalism. The expansion of American executive power demonstrates the following features:co-existence of power expansion and power limitation, complex and interwoven power struggles, enlargement of administrative boundaries, the mode of a country with minimum limit being replaced by that of a modern administrative state, increasing prominent features of an administrative state, multi-functionality of the executive power with functions of three branches of power integrated, checks and balances within the executive power itself.Chapter Two analyzes the influential factors of American executive power expansion in the following five aspects:ideological factors, institutional foundations, nature of power in itself, the developmental needs of human rights and well-beings, and the withering of civil society as a limiting factor. First, bureaucratic administration theory played the leading role and formed the ideological foundations of American executive power expansion, while the challenge of democratic administration theory to the mainstream administration theories confronted America with contradictory choices throughout its executive power expansion. Second, the institutional foundations of American executive power expansion resulted from the clash and integration of two kinds of rule of law-the positive rule of law and the negative one; in the process of historical development, the positive kind gained finally the leading role and constituted the institutional foundations of American executive power. Third, the expansion was a manifestation of the nature of power. Power is self-inflating by its substance. Though it may help safeguard the people's rights and increase their interests, at the meantime it may threat the constitutionalism of a democratic law-ruled country and the rights of the people. The complicated mixture of benefits and harms in the nature of power affected the social effects of executive power expansion, acting as a key factor that made the management of American executive power a common conundrum. Besides, the development of people's rights and welfare facilitated the expansion of executive power. The state as "a visible hand" was used to alleviate the negative influences of market failure on citizens' rights and freedom, to enhance the ownership of private interests by facilitating and satisfying public interest, and thus to meet the objectively developmental needs of economic society. finally, the withering of civil society was another contributing factor to the expansion of executive power. In the present American society, the extreme development of liberalism and the over inflation of individualism caused citizens unable to be untied as one against the powerful country, so that executive power gradually inflated since its exterior restrictions got weaken. As can be seen above, the expansion of American executive power involved considerable complexity in its developmental history, which ought to be regarded as necessity for the development of social and historical circumstance in terms of entirety. The expansion of American executive power also brought some negative effects, including the erosion to the present model of the separation system and balance among the executive power, legislative power and judicial power, which threatened the institution of constitutionalism. Moreover, the expansion not only threatened the existence of democracy, freedom and human rights, but also resulted in the abuse of power, bureaucracy, low efficiency and corruption, even the waste of material resources as well as intellectual property. As a consequence, to achieve an effective solution, we have to figure out another methodology, since the problems cannot be solved through the traditional method that simply relies on the present one.Chapter Three concentrates on analyzing the reasonable foundations of executive power expansion in modern society. The foundations are mainly comprised of three aspects as follows. First, the defects of market in itself and the consequent cyclical economic crises make it an urgent need for the government to conduct constant macro adjustment of the civil economy according to the objectives and requirements of the economic society. There is a primary defect in the free market economy long pursued by the modern western society, namely the process of economic growth is continuously broken by cyclical economic crises, so that the fruits of economic growth are often ruined overnight, and the capitalistic system itself receives serious threats. As a result, governmental intervention to economy is unavoidable, and "economy under administrative management" has become a common situation in civil economic life. Second, active governmental performance is the most reliable method to realize the people's basic rights. It is not only because a government has the responsibility and capacity of facilitating the rights realization, but also because the realization of any important rights needs cost-all rights hence are not natural, but are granted by the government. Without active governmental performance, there would be no rights. Third, "welfare country" is a prominent feature of the contemporary capitalism, the system of which with the precondition of active governmental performance is an integration of the forms and systems that could solve the conflicts among classes in western society. As stated above, the expansion of executive power enjoys solid reasonable foundations. But this kind of reasonable existence should not be an excuse of denying control over governmental power; instead, administrative power expansion must conform to a reasonable limit.Chapter Four conducts an analysis of the urgency, theoretical resources and basic procedures of "governance reform" under a constitutional system. American reform in executive power originated in "a constitutional crisis", which occurred due to American government's executive power expansion. That crisis was a double one, combined by the feebleness of a government with parliamentary sovereignty resulting from modern national capacity inflation and national authority expansion, and by the corresponding inflation of individualism along with the consequent social separation. This kind of constitutional crisis manifests itself in various aspects, such as in the political system, in the relationship between a state and a society, in authority and freedom, etc. The nature of the crisis is a legal one triggered by the contradiction between the over-expansion of national administrative power and the insufficiency of political economic functions. In this case, "governance reform" under the constitutional system must be conducted. The related researches of some western scholars represented by Habermas, Charles Taylor and Ostrom, contribute a series of important theoretical resources for us to solve the abovementioned problems. "Governance reform" requires "reform in administrative paradigm"- "the paradigm of democratic administration scheme" from the perspective of the new constitutionalism. Though social developmental needs grant administrative bodies with stronger power, they also require increasingly strict supervision over their ever-increasing expansion of executive power. Hence a democratic administration paradigm with a spirit of balance would be an inevitable choice for developing a new constitutionalism.The Conclusion points out that the true way of governance should cope well with to achieve a balance in the relationship between the use of power and its limitation, and the relationship between constitutionalism and democratic rights. In light of interior factors, constitutionalism is a balance among various conflicting concepts. Its connotation is constituted by many mutually contradictory and conflicting factors as well as plenty of complex and intertwining relationships. An ideal constitutionalism strikes a dynamic balance between the two extremes of the spectrum. It is the coexistence of opposition and unity between the ideal of freedom, equality and the strength of authority that determines the constantly shifting connotation of freedom under a democratic constitutional system. Accordingly, the key to constitutionalism is a dynamic balance between power and limitation. Concentration in the administrative field is not widespread flood; instead, it relies on the dams of precaution. So long as a balance could be achieved or maintained between the two, constitutionalism would be still wholesome. Therefore, "democratic administration paradigm" from the perspective of new constitutionalism would certainly be strategies of power control with great combining capacity, namely it could combine, with the precondition of meeting the realistic needs of the people's rights and interests, the various modern and contemporary approaches and systems of power limitation, separation, checks and balances, hence building an ideal political system structure to embody characteristics of the present age.The significances of this dissertation reflect in two main aspects as below. First, the analysis of American executive power expansion could provide a worthwhile lens for China in its establishment of the rule of law, facilitating its governance reform of converting from a concentrated administration mode to a democratic administration one, so that the prospect of a law-ruled country could be realized sooner and with lower costs. Second, constitutionalism not only represents a type of system, but also reflects a kind of spirit. To educate citizens with awareness of rights and the spirit of constitutionalism is the inherent obligation of constitutionalism, and an important prerequisite for constitutionalism to be evergreen and for a law-ruled society to exist and develop.