No. 23 deals with the Executive Branch. This refers to the powers and tasks of the President, the Cabinet and the public administration. Klinkers and Tombeur deviate from some clauses of the American Constitution, in particular where the election of the President is concerned. Besides that, they present an interesting proposal for the composition of the President’s Cabinet of the European Federation. They also adopt some essential aspects of the Swiss direct democracy.
European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013
In this Paper we continue drafting the Constitution for the European Federation. The following Articles stem partly from the original American Constitution, partly added to and improved by us from Amendments supplemented to the American Constitution after 1789. Again we allow ourselves to improve the readability of the structure of the American Constitution; this time by separating the organization of the executive power from the duration and vacancy of the (Vice) Presidency.
Explanation of Section 1
Clause 2 differs considerably from the American Constitution. That Constitution determines that Congress sets the date for the Presidential elections. For the USA this is adequate. But with respect to the extreme importance of a Federal Europe to reposition itself rapidly and effectively within the game of globalizing powers (see Paper no. 9) it seems wise to parallel the terms of the American and the European President – from the beginning. Thus, these two leaders can get adjusted to each other’s way of working and, when necessary, cooperate without a breach of continuity which could well happen should the terms not coincide. Before those two remember each other’s telephone number valuable time will be lost. Their cooperation is even more necessary since it appeared in 2013 that the USA and the EU wish to embark on a completely new trade relationship. Aside: in the USA the day of the Presidential elections takes place on the Tuesday after the first Monday in November. Generally that is between 2nd and 8th November. In 2012 it was on 6th November. Taking into account European electoral traditions and festivities in the month of November, we opt for the third Friday in October, as of the year 2016.
Contrary to the American Constitution our Clause 2 states that the European Congress appoints – from among its midst – an acting President for the period between the ratification of the European Federation and the first Presidential election. He or she may not run in the forthcoming first Presidential election, for the reason that the candidates for the first Presidential election should have a level playing field on which to do battle. Allowing the acting President to be electable could influence negatively the chances of other candidates. Furthermore, it seems wise to appoint someone in the months or even years before the first Presidential election without a personal interest in being elected. In that period a businesslike and professional approach to the young Federation is necessary.
Clause 3 rules that a candidate is only electable if he or she has a strong bond with the European Federation, namely by having the nationality of a State of the Federation or having lived (registered) for a substantial number of years in one of the States.
Clause 4 secures the yearly salary of the President (in the USA at present $ 400.000,-, later in Europe € 400.000,-) for the complete term of his or her office. Next to that salary he/she is not allowed to accept other incomes or payment in kind from public or from private institutions or people, other than incomes from capital that he/she had acquired prior to taking office.
Clause 5 deals with the Presidential oath or affirmation, to be declared in front of the Chairperson of the Court of Justice of the European Federation. We copy here the American procedure. In the USA this is, with a hand on the Bible, a four-yearly event, organized in the form of a huge celebration. In January 2013 the world was able to enjoy this twice; once in a small gathering in the White House, the following day officially in front of the Capitol. Moreover, the words ‘So help me God’, are not to be found in the American Constitution. These are added to the oath on his own authority – or so is generally assumed – by the first President George Washington.
Explanation of Section 2
The first sentence of Clause 1 is the impeachment clause, used previously – in the context of the Watergate affair – to put Richard Nixon under such pressure that he resigned, after which his successor Gerald Ford granted him amnesty. This first Clause solves a problem that has been troubling America for a long time. Namely the question: if the Vice President takes over office from the President is he then ‘Acting President’ – thus only possessing Presidential powers – or is he full President? Well, the latter has been the case since 1967: the Vice President becomes President. On this basis Gerald Ford became President following Nixon’s resignation.
Clause 2 guarantees the continuity of the Federal government. A Vice President can be appointed by the President – provided consent is given by the European Congress – if due to whatever reason a Vice President is unavailable. Should this be the case the Vice President’s election by the people is not required.
Clauses 3-5, dealing with the President’s inability to govern, may speak for themselves. Clauses 6-7 stem from the American Amendment XX as ratified in January 1933.
Explanation of Section 1
Clause 1 makes the President Commander in Chief of the armed forces, security agencies and the militia. The right to declare war remains the power of the Congress of the European Federation. How is this dealt with in the USA? Since the Korean war, in the 1950s, it is generally accepted that the American President has a considerable say in deciding whether to send armed forces to war. Thus without previously requesting the explicit consent of Congress. Furthermore, the specific execution of that task has evolved since the United Nations, in the sense that the USA only participate in wars (named policing actions) under a UN-mandate. Except for the second war in Iraq. It is assumed that operating under a UN-mandate implies the tacit consent by Congress. We understand this broad interpretation in the USA of the Presidential power with respect to military issues, because critical situations often require quick decisions. This will be no different for the European Federation.
Some military details aside. The Americans spend twice as much on defense as the Europeans. Moreover the ratio – roughly speaking – between investments (25%, personnel (50%) and exploitation (25%) is far more balanced. In Europe countries like Belgium, Italy and Greece spend more than 70% of the defense budget on personnel. That results in less investments. Besides this, the 27 EU-member states suffer from fragmentation. There are in Europe, to give one example, over twenty different combat vehicles; decisions on military issues are taken on the basis of national interests without taking into account surpluses and shortages within the NATO and the EU as a whole. Of the almost two million European troops the EU can make only 70.000 operational.
Clause 2 give the President the right to appoint offices of the executive branch. He/she appoints Cabinet Ministers, the diplomatic personnel and other government officials whose appointment is not regulated otherwise. In America the appointment of these people – thus also of Ministers – goes via the advice and consent of the Senate. The House of Representatives does not have a say in this. The fact that the Senate has a say in appointing the Cabinet's Ministers makes the legislative power co-responsible for the operating of the executive branch. We find this strange in the context of the Presidential American system. It seems to us an universal rule that the person who has to perform a difficult job should have the autonomous power to decide with which team he or she wants to face the challenges. Therefore we find that it should be the autonomous decision of the President of the European Federation to nominate and appoint the members of the Presidential Cabinet, the public officials of all federal departments and agencies and the federal diplomats: they all are, under his or her leadership, responsible for the executive governance of the Federation, including the execution of federal laws, made by Congress. We leave, though, in Clause 6 a role for Congress with respect to appointing members of the judicial branch.
In the American Constitution our Clause 3 is part of the previous Clause 1. We think it better to separate this from the commandership because the power to ask the opinion of the Ministers does not refer particularly to military matters, but to all aspects of their work. Important, though, is the fact that the European Constitution herewith confirms that the President will have a Presidential Cabinet. We deal with this element later.
Clause 4, the Presidential power to grant amnesty and grace, is a fixed part of any Constitution. We have also separated this sentence from Clause 1.
Clause 5 grants the President the right to create treaties. However, this requires the advice and consent of two thirds of the Senate. This implies – as is the case in the USA – that the Senate may speak about this subject each time it wishes to do so, before and after treaty negotiations. This Clause does not prevent the member States of the Federation from retaining the power to make treaties, provided that these treaties fall within the context of their specific policy domains. This is an aspect of the vertical division of powers we have addressed in Article III. Therefore, both levels of government have a diplomatic and consular corps. This is already the case in the EU with respect to treaties and diplomats. It is possible to divide tasks between consuls of both levels. For instance by giving federal consuls the exclusive power to assist (commercial) corporations. In our vision each State keeps the power with respect to its own national legislation and thus grants assistance, abroad, to natural persons with the nationality of that State. The nationality of a State will be combined with the citizenship of the Federation. We will discuss this in the following Paper.
This might be a good moment to make an observation about the concept of ‘proportionality’. This is an important issue within the present intergovernmental EU-system. It deals, formulated simply, with the question as to what extent the EU – or a national EU-State – may execute the same power. This concept is directly related to the fact that the EU-treaties cover so-called ‘shared powers’; implying that the same power may be executed by both the EU and an EU-State. This evokes the question: how far can either party go in executing that shared power? This has proved to be unworkable in practice, because the effective application of the principle of proportionality is measured against the principle of subsidiarity: leave to the States what the States themselves can do best. Due to the hierarchical decision making of the European Council the already severely crumbling subsidiarity has invalidated the concept of subsidiarity completely; the interpretation problems are insoluble. A federal system, however, does not have this problem at all. In a Federation ‘shared powers’ is unthinkable, because of the vertical division of powers, the essence of a federal organization. A Federation has only ‘shared sovereignty’: the States are 100% (thus not partly) sovereign in all powers that have not been transferred to the Federation. And the Federation is in its turn 100% (thus not partly) sovereign in all of the limitatively enumerated powers that have been transferred to the Federation once again: a Federation resembles absolute subsidiarity, and therefore this concept is not to be found in our draft Constitution. Nor the nonsense of proportionality.
Clause 6 deviates from the American Constitution in the sense that the Presidential power to appoint judges in the Court of Justice and in the Federal Courts of the European Federation not only depends on the Senate’s consent, but on that of the whole Congress, thus on the consent of the House of the Citizens as well. By Federal Courts we mean the courts, established by law by the Congress and which in the hierarchy fall directly under the Court of Justice. We wish – following the Swiss example of composing federal courts – to attribute this important power to both Houses of the Federal Congress. Yet with one difference, in the sense that the President also plays a role by nominating the candidates, as is the case in the USA. Due to the fact that the federal courts and possible other federal courts should enforce the uniform execution of federal laws throughout the Federation we think that in this way their independent operation is better secured, especially with respect to the States whose laws have to give way to federal laws. Furthermore, the federal courts should get the fullest trust of those who have made and will make federal laws, together with the people who have to execute them, the President and his/her Cabinet; and thus can assess if the candidates for such courts have sufficient expertise.
Clauses 7, 8 and 9 are not to be found in the American Constitution. By referring to Paper no. 20, where Tombeur elaborates on examples of direct democracy in Switzerland, we introduce three kinds of referenda which must or may be organized by the President and in which all Citizens with the right to vote in the Federation can participate.
We realize that Europe does not have good experiences with regard to referenda about itself. Until now they have been characterized by resistance against the intergovernmental system. In this respect we refer to the detailed analysis by Wim Voermans in his contribution ‘Van Europa voor de burger naar Europa door de burger’ (‘From Europe for the citizen towards Europe by the citizen’) in the Dutch Jaarboek Parlementaire Geschiedenis 2012 (Yearbook Parliamentary History 2012) with the evocative title ‘De Verenigde Staten van Europa’ (‘The United States of Europe’). Voermans gives an accurate description of the occurrence and proceedings of the referendum in which the Dutch people in 2005 rejected the draft of a European Constitution. As did France. The ensuing administrative vacuum was filled by the monster, named the Treaty of Lisbon.
In Paper no. 14 Klinkers explained how difficult it was – before and during the Convention of Philadelphia – to deal with the Aristotelian concept of ‘democracy’. They considered the literal application of that concept – in the sense of every citizen may co-decide about everything – organizationally impossible. They were also afraid that due to stupid or misguided citizens the decision making would be bad. Once more some sentences that clarifies their point of view: ”Equally discredited was ‘mere democracy’ which still meant, as Aristotle had taught, rule by the passionate, ignorant, demagogue-dominated ‘voice of the people’. This was sure to produce first injustice, then anarchy, and finally tyranny.” That is why they decided, after extended debates, to opt for the concept of representative democracy, in their words ‘a republican type of government’. The Swiss, however, in the midst of the 19th century dared to enrich their version of the American Constitution with forms of direct democracy. Up until today. Apparently this works perfectly. We want to see this also included in our draft federal Constitution. That is why we introduce three types of referenda. Thus we wish to eliminate the negative connotations regarding European referenda, taking into account that since 1950 the Citizens could hardly voice their opinion officially, let alone decide about the do’s and don’ts of intergovernmental Europe. EU-governance since then rather resembles the enlightened despotism of the Ancient Regime – governing for the Citizens, not by the Citizens. We find that there is no rational reason to account for this democratic deficit. Never in Europe’s history have there been, since World War II, so many, so well-educated and well-informed people. Nevertheless they are – referring to the American author Noam Chomsky – treated as under-aged children. We find that in 2013 it is more than ever necessary – especially in this year of the European Citizen – to propose the referenda in the Clauses 7, 8 and 9 of this Section.
In Clause 7 we propose that the President of the European Federation must organize once per year a consultative referendum about the quality of the federal government. Herewith he asks the Citizen’s opinion about the performance of the policy domains of the federal body. The result does not bind the President, nor Congress or any other federal institutions. However, with the help of this obligatory consultation of the people regarding the Federation, governmental shortcomings can be identified and taken care of rapidly and effectively. This is a powerful instrument for European nation building. The Euro Commissioner who momentarily has the task of carrying out the Digital Agenda for Europe, Neelie Kroes, could already now, in the context of the design of a European-wide digital infrastructure, consider establishing such facilities to make the organization of an electronic referendum feasible.
In order to create a European public space we propose in Clause 8 that the President organizes a referendum among the Citizens and the States to decide upon the question as to whether the Federation Europe should join or co-establish an international organization with regulatory powers. Due to the fact that such regulations may influence the powers of the States – global negotiations have their own specific dynamics and global organizations have their own specific finality outside the realm of European powers – we would like to have them participate in this decision making. In this we are inspired by the Swiss Constitution. With the World Trade Organization as an example, the creation of such international organizations may be necessary to deal with, for instance the problem of climate change. Whenever a decision on this subject is required, the President is obliged to organize a referendum. The required advice – in advance – by the Senate to the Citizens and the States resembles the Senate’s role with respect to making treaties, as described in Clause 5.
The third kind of referenda under presidential powers in Clause 9 – again stemming from the Swiss Constitution – gives the President the option to organize a decisive referendum when the Houses of Congress, after objections by the President to a draft law of one of the Houses, continue to disagree on that draft. This is called an ‘arbitration referendum’. It is optional. The President decides whether such a referendum will be presented to the Citizens. However, their decision is binding. Even though the European Constitution contains the possibility of final decision making by Congress, the system of checks and balances can lead to a deadlock when the parties involved obstinately refuse to compromise. When these deadlock continue it is necessary – as an ultimum remedium – to put the ultimate decision makers at work: the Citizens. The Citizens precede the Federation, the Federation is the possession of the Citizens, not the other way around. The Citizens are the alpha and the omega: constituting the Federation is vested in the Citizens, thus is vested in them the solving of problems created by the institutions of the Federation. If functionaries of the Federation use the stately system to organize non-decision making we have to fall back on the people who established the Federation, the Citizens. If the USA had a referendum like this, the deadlock of the ‘fiscal cliff’ would have been solved quickly.
Explanation of Section 2
Clause 1 resembles the US ‘State of the Union’. Until Woodrow Wilson’s government (1913-1921, creator of the League of Nations) this declaration came in written form. Since Wilson it is presented by appearing personally before Congress. This is an executive task explicitly attributed to the President by the Constitution. He/she has to bring forward all he/she deems appropriate as Head of the Nation, as Leader of the Government, as Commander in Chief, as Chief Diplomat etc. Besides this it is the President’s duty to put forward measures for Congress’ consideration he/she thinks necessary and expedient. This is the so-called ‘Recommendation Clause’. We wish to adopt this way of proceeding in our draft federal Constitution.
Clause 2 gives the President the right to convene both (or one of the) Houses in extraordinary circumstances. The American Constitution does not clarify how we should interpret ‘extraordinary’. It has happened 27 times. The last time under Harry Truman, Franklin D. Roosevelt’s successor, at the end of World War II.
Clause 3 entails among others the stipulation that all foreign Ambassadors present their credentials in a meeting with the President personally.
Clause 4 is called in the USA the ‘Take Care Clause’ or the ‘Faithful Execution Clause’. It is in essence an assignment for the President to execute laws carefully even if he/she disagrees with them. This does not only concern the execution itself, but also the realization of the intrinsic goals of Congress: that is where the word ‘faithful’ comes in. In the USA this clause is highly esteemed and therefore the basis of a strong teleological attitude among dignitaries and citizens. An attitude that expresses itself in a strong curiosity as to “What would the founding fathers of the Constitution have meant by this or that? What goals does Congress want to achieve with this legal clause?” It is recognized, however, that the President possesses ample powers to interpret the goals of the laws maker. However, always with the Supreme Court as a watch dog to declare Presidential measures unconstitutional: “The Constitution is what the judges say it is.”
In the context of Clause 4 we would like to stress again that not only the American Congress possesses so-called ‘implied powers’, but the President as well, including the ‘Presidential Executive Orders’. This has been dealt with in Paper no. 14, so we leave this aside. But not without mentioning that President Obama’s measures in January 2013 under the name of ‘gun control’ belong to the domain of these ‘Presidential Executive Orders’.
Clause 5 gives the President the power and duty to take care of clarifying what kind of work has to be undertaken by each public official of the federal Government.
Special explanation of Article V, Sections 1, Clauses 2 and 5
The question we need to face is: “How many Ministers should the President of the European Federation have?” To answer this question we could – looking at Article III, Section 2 (the list of limitatively enumerated powers of European Congress) – weigh the dominating policy domains. However, we are afraid to do so. Such weighing would probably lead to endless debates, drifting away from the principles of good governance. Especially because it should be ruled out, in our view, that each participating State by definition receives a representative in the executive government, as is the case in the present European Commission. Ministries of the Government of the European Federation should not be divided per country (as is at present the case with one Commissioner per State in the European Commission) but on the basis of content, i.e. Traffic or Defense.
We propose to solve this issue in a simple way: we follow (with two exceptions) the policy domains of the Cabinet of the American President. The same reasoning applies to our proposal of organizing the election of the European Federation’s President around the time of the US President’s election: create as much homogeneity as possible between both Federations in order to be able to do business with each other quickly and effectively.
These thirteen Ministers of European Federation have an American colleague:
Two Ministers of the American Cabinet seem inappropriate within the European Federation:
Instead we propose:
See here the fifteen federal Ministers as the members of the Cabinet of the President of the European Federation. Thus, no 27 or more Commissioners to satisfy the national interest or the national honor of each member state of the European Union. Next to this Cabinet the American President possesses a certain number of offices within and outside of the White House. We leave this aside for now.