CONSTITUTIONAL CHECKS AND BALANCES
G. E. Gorfu


A constitution is much like a contract between two or more parties coming together to form a company or an organization. It is meant to spell out the purpose of the organization, the terms and conditions of service, and the powers and limitations assigned to the organization officials. Some contracts fail to do that properly and become bones of contention and causes for the failure and ultimate dissolution of many companies. The only difference being that it is not a company involved here but a nation, and so, a constitution is known as a social contract.

One of the most important articles in the US Constitution on keeping Presidential power in check is: "...no money can be paid out of the Treasury unless appropriated by an act of Congress." Regardless of the nature of the payment- salaries, payments promised under a contract, payments ordered by a court, or other source- no federal agency has any power to make a payment from the US Treasury unless Congress has expressly authorized it, and made the funds available. As the Supreme Court stated well over a century ago: "However much money there may be in the Treasury at any one time, not a dollar of it can be used in the payment of anything unless previously sanctioned (by a Congressional appropriation)."

Congress guards this power jealously even though the Executive Branch hasn't always been cooperative with what Congress might set as a limit on its expenditures and obligations. Especially early in US history, the executive would obligate funds without an appropriation, or in advance of an appropriation. Executive agencies would also commingle funds- i.e., they would take funds appropriated for one purpose and transfer them into other accounts to raise or increase another appropriation, which the Executive agency might believe to be insufficient for its purposes. Many of these loopholes have been tightened over the years by laws of Congress.

Congressional "power of the purse" is the single most fundamental proposition, which makes the Executive branch subordinate to Congress for funding. At its most basic level, this means that it is up to Congress to decide whether or not to authorize and provide funds for a particular program or activity, and to set the level of that funding. In exercising its appropriations power, however, Congress is not limited to these elementary functions. It ha also been well established that Congress can, within Constitutional limits, determine the terms and conditions under which an appropriation may be used. Thus, Congress can decree, either in the appropriations bill itself or by making other separate statutory provisions, as to what will be required to make that appropriation "legally available" for the specific expenditure. It can, for example, describe: the purpose, the manner, the grand total, the length of time, etc. in which these funds can be used, or become unusable.

Even though the president has the power to initiate an activity by "Executive Order," and commit the nation even to war, he/she needs to give a full report to Congress within sixty days and receive an authorization from Congress to proceed or be ready to order an immediate halt. Unless Congress agrees to fund the war, the president cannot continue without the funds to sustain the troops. In this manner, Congress may, and often does, use its appropriations power to accomplish policy objectives and/or establish priorities among various federal programs. Congress can also use its appropriations power for other measures. For example, Congress can include a provision in an appropriations act prohibiting the use of the funds for a particular program. Thus without "amending the original program legislation", Congress effectively suspends the operation of a program for budgetary or policy reasons, or perhaps simply to defer further consideration and discussion of the merits or demerits of the program or the war.

Furthermore, Congress, and only Congress, has the power to amend the Constitution, giving new powers, or curbing any powers the president exercises. Here we have a fundamental condition under which Executive power is "played" between Congress and the president. The president has no power except those given him by Congress, which represents the will of the American people. Sometimes presidents may come into office with a "mandate" from the people. Usually, this is in the form of a slogan or an issue on which they run to get elected into office. Once in office, however, a president needs to turn the slogan into effect by an "Executive Order" or have it drafted into law and endorsed by Congress in order to be implemented.

And what of the relationship between the Executive and the Legislative? Judges are appointed by the Executive, not only to the Supreme Court, but also to many positions in the nations? circuit courts. Every appointee has to pass a careful scrutiny by the Judicial Committee of Congress. If Congress does not deem a judge worthy of the position to which he/she has been nominated, it rejects it, and the Executive is then "forced" to withdraw the nomination. If there is a 'serious disagreement' between the Executive and Congress, this sometimes results in the ugly spectacle witnessed in the nominations of Judge Bork and Judge Thomas. Sometimes the Executive has its way and wins as in the case of Judge Thomas, and at other times Congress might win, as in the case of judge Bork. These fights are meant to publicly humiliate one side or the other, and directly appeal to the American public for a clear and visible sway in opinion.

Once seated however, Supreme Court judges serve for life, unless they willingly resign for health or other personal reasons, and so, have no obligation to any party, or to political affiliations. They then can call the shots as they see them. Judges appointed by Republican presidents have been known to vote against critical initiatives of the party that put them in office. And though not so many, similar incidences can be cited where judges appointed by Democratic presidents voted against initiatives put forward by the Democratic party. The function of the Supreme Court is rather curious, in that it neither makes nor passes any laws. Congress alone passes laws. But, the Supreme Court can make precedence and "landmark decisions" on "specific and contentious" issues and cases by interpreting existing laws in the light of the Constitution. Brown Vs. Board of Education, and many other Jim Crow laws, as well as the most recent "Law of Sodomy", were ruled "unconstitutional" by the Supreme Court.

This then is the Trinity base of the United States of America that withstood the test of two hundred years, which is rather brief in the span of world history. But it appears to be pretty strong and rigid, while at the same time proving to have the flexibility necessary to accommodate many changes that came along so far. Only time will tell.

This delicate balancing arrangement is the main thing one needs to learn from the US system of government. We need to make sure similar clauses are inserted, and adopted into our constitution. In its present form, the Ethiopian Constitution leaves much to be desired, and has much that needs to be modified and amended. Chief among these might be the article giving nations and/or nationalities the right to secede. Even the US, which claims to be one of the most democratic nations on earth, fought a bloody civil war to prevent the secession of the south from the rest of the Union. Is Ethiopia, perhaps trying to claim that it is more democratic than the US? Endorsing the right to secede in a constitution is nothing short of listing the terms and conditions of divorce at the sacred moment of oath taking during a wedding ceremony. Marriage is entered into with an oath: "until death do us part..." though it is fully understood that either party can resort to divorce unless the marriage results in mutual benefit. So, what is the purpose of this article? It is the only one of its kind in the world, and should be struck out immediately.

Unless the present Federal Parliament assumes the power it draws from being an elected body, representing the Peoples of Ethiopia, and moves on to amend all such shortcomings in the constitution step by step, and in every way, including the limitation of power of all government officials, it will soon turn into a simple rubber-stamp parliament, little better than parliaments that went before it. And it will soon go the way that the previous parliaments did.

Ultimately, however, any Constitution or Parliament can only be the reflection of the underlying power structures and the material realities on the ground in any nation. Otherwise, it is nothing more than words written on a pieced of paper, which have no substance or ?spirit?. It is unrealistic to expect a fully functional democratic structure with checks and balances in the Ethiopia of today, when it is clearly known that the brunt of the sacrifices and the elephants share of the burden carried in fighting the Derg, were sustained by the TPLF. As in any private or public institution, it is more realistic to expect for the party that made the greatest sacrifice, or made the largest portion of investment, to have a greater say in the way things are run in that organization. The TPLF in the present EPRDF government seem to have made some inroads to give a semblance of democracy in Ethiopia, but only a semblance. These appear to be little more than seedlings sown, which we hope will grow and flourish in the not too distant future.

G. E. Gorfu
June 30, 2003

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