美國 大統領의 立法에 관한 權限 (President's Power over Legislation)

서지정보

· 발행기관 : 미국헌법학회
· 수록지 정보 : 미국헌법연구 / 19권 / 1호 / 1 ~ 34페이지
· 저자명 : 윤명선

초록

Under the governmental structure of the Federal Constitution, legislative power is assigned to the Congress only and the president has veto power to check over the legislative power. Article one section one confers the legislative power with the words, "All legislative powers herein granted shall be vested in a Congress of the United States." The executive has no direct legislative power; nowhere is the President given law-making authority. But the President's duties are not all purely executive in nature. The President is also associated by Constitution or practice with the legislative process in any form. The executive does in fact have a law-making power since the beginning of the Republic. Beginning with Presidents Theodore Roosevelt and Woodrow Wilson, there has been an exponential growth in the Presidential legislative powers not in the sense of formal authority but by way of effective control over Congressional legislation. Today the Executive is so dominant in the legislative process that the President may be considered to be the "chief legislator."
The President as chief legislator operates in at least four discrete, yet overlapping ways: ① through formal and informal interactions with Congress; ② through the issuance of executive orders and other directives; ③ through his power to interpret statutes, whether or not in formal rule-making, and ④ through appointment of Justices of the Supreme Court. The second and third of these methods of presidential legislation are entirely executive, but the first and last involve formal action by Congress. Executive law-making takes two direct forms of executive orders and other directives which outnumber by far the statutes passed by the Congress each year. The President has also the duty to take care that the law be faithfully executed; this duty can be fulfilled through interpreting statutes. The President can and does influence the course of constitutional construction by exercising the power to appoint Justices of the Supreme Court and other federal judges, even though the Senate must approve nominees. He thus is an influential lawmaker, a participant in the continuing process of updating the Constitution.
The legislative veto power places the President directly into the legislative process. Every bill which shall have passed two houses of Congress shall, before it becomes a law, be presented th the President: if he approves he shall sign, but if not he shall return it with his objections to the house in which it shall have originated to reconsider it. If both Houses repass the bill by a two third vote, the bill then becomes law over the veto. The importance of this veto power is not its actual use, but the threat of its use. At any rate, this veto power has played in securing the constitutional order and in protecting individual constitutional rights and minority's interests. And if any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law; this is called pocket veto. One of the shortcoming of the Constitution is that the President dos not have an 'item veto'. Today, however, item veto is recognized as an useful tool for the efficiency of legislation.
The President's formal power over legislation is the first one which is formed through interactions with Congress. The Constitution authorizes the President to undertake policy initiatives. First, the President is required from time to time to inform Congress as to the "State of the Union." Second, the President may make legislative proposals to the Congress for its consideration as he shall judge necessary and expedient. Third, the President used to send messages, annual or special, to inform the Congress the direction of executive policy over legislation. And the President may convene both houses of Congress, or either of them on "extraordinary occasions." This power might be used to legislate special rules to overcome crises. These mechanisms are indirect methods to participate in the legislative process; nevertheless, playing the bridge role between the President and Congress. Through this role, the President has exercised a critical role in legislation, resulting in the presence of the imperial presidency. We should remember that the most important factor of successful legislation in fact lies in a political leadership.

영어초록

Under the governmental structure of the Federal Constitution, legislative power is assigned to the Congress only and the president has veto power to check over the legislative power. Article one section one confers the legislative power with the words, "All legislative powers herein granted shall be vested in a Congress of the United States." The executive has no direct legislative power; nowhere is the President given law-making authority. But the President's duties are not all purely executive in nature. The President is also associated by Constitution or practice with the legislative process in any form. The executive does in fact have a law-making power since the beginning of the Republic. Beginning with Presidents Theodore Roosevelt and Woodrow Wilson, there has been an exponential growth in the Presidential legislative powers not in the sense of formal authority but by way of effective control over Congressional legislation. Today the Executive is so dominant in the legislative process that the President may be considered to be the "chief legislator."
The President as chief legislator operates in at least four discrete, yet overlapping ways: ① through formal and informal interactions with Congress; ② through the issuance of executive orders and other directives; ③ through his power to interpret statutes, whether or not in formal rule-making, and ④ through appointment of Justices of the Supreme Court. The second and third of these methods of presidential legislation are entirely executive, but the first and last involve formal action by Congress. Executive law-making takes two direct forms of executive orders and other directives which outnumber by far the statutes passed by the Congress each year. The President has also the duty to take care that the law be faithfully executed; this duty can be fulfilled through interpreting statutes. The President can and does influence the course of constitutional construction by exercising the power to appoint Justices of the Supreme Court and other federal judges, even though the Senate must approve nominees. He thus is an influential lawmaker, a participant in the continuing process of updating the Constitution.
The legislative veto power places the President directly into the legislative process. Every bill which shall have passed two houses of Congress shall, before it becomes a law, be presented th the President: if he approves he shall sign, but if not he shall return it with his objections to the house in which it shall have originated to reconsider it. If both Houses repass the bill by a two third vote, the bill then becomes law over the veto. The importance of this veto power is not its actual use, but the threat of its use. At any rate, this veto power has played in securing the constitutional order and in protecting individual constitutional rights and minority's interests. And if any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law; this is called pocket veto. One of the shortcoming of the Constitution is that the President dos not have an 'item veto'. Today, however, item veto is recognized as an useful tool for the efficiency of legislation.
The President's formal power over legislation is the first one which is formed through interactions with Congress. The Constitution authorizes the President to undertake policy initiatives. First, the President is required from time to time to inform Congress as to the "State of the Union." Second, the President may make legislative proposals to the Congress for its consideration as he shall judge necessary and expedient. Third, the President used to send messages, annual or special, to inform the Congress the direction of executive policy over legislation. And the President may convene both houses of Congress, or either of them on "extraordinary occasions." This power might be used to legislate special rules to overcome crises. These mechanisms are indirect methods to participate in the legislative process; nevertheless, playing the bridge role between the President and Congress. Through this role, the President has exercised a critical role in legislation, resulting in the presence of the imperial presidency. We should remember that the most important factor of successful legislation in fact lies in a political leadership.

참고자료

· 없음