미국대통령의 권한과 그 한계

• 영문명: The Limit and the Authority of the U.S.A
• 발행기관: 세계헌법학회 한국학회
• 저자명: 이헌환(Heon Hwan Lee)
• 간행물 정보: 『세계헌법연구』세계헌법연구 제9호, 131~174쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.06.01

영문 초록

The Presidency is invented at the Constitutional Convention of 1787 of U.S.A.. But the roots of the office run deep in history. To understand the adaptive and flexible nature of this office, it is necessary to demonstrate how the institution came into being and the type of leadership the framers of U.S. Constitution expected of this unique office. When the Americas were first colonized, the age of the Divine Right of the Kings was giving way to more limited and representative forms of power. Then, the Divine Right of the King was slowly replaced by the Divine Right of the People through their representatives. The American Revolution took place in the middle of this transformation. At the time of the colonists break with Great Britain, antimonarchical and anti-executive sentiments were strong. Overtime, however, the absence of an executive proved unworkable, and slowly and quite grudgingly an acceptance of the inevitability of an executive became more commonly accepted. The framers assembled in Philadelphia, after many debates, invented the presidency. But they left many areas vague and ambiguous. They left gaping silences through Article Ⅱ of the American Constitution. The reason why they left the presidency unfinished and incomplete was that George Washington, they thought, would be its first officeholder. They would leave it to Washington to fill in the gaps and set the proper precedents. Thus Washington, the first president, ventured into largely uncharted territory. The presidency is an office made in practice as much as one drafted in Philadelphia. In an effort to understand the presidential power of U.S.A., the Constitution is the starting point. But it provides few definitive answers. The Constitution, as it relates to powers of the president, raises more questions than it answers. The skeleton-like provisions of Article Ⅱ have left the words open to definition and redefinition by courts and presidents. This skeleton-like wording leaves it up to an aggressive chief executive and a willing Supreme Court to shape the actual parameters of such powers. The power of the american presidency exists in two forms ; formal and informal powers. The formal powers of the president are derived essentially from the Constitution. Those powers include constitutionally enumerated powers, implied powers inferred from enumerated power, resulting powers, and inherent powers. Informal powers are the powers that are either not spelled out in the Constitution, or those that are missing from the Constitution. Generally, the president of U.S.A. has powers as follows ; 1) those of Chief of State 2) those of Chief Executive 3) those concerning foreign affairs 4) those of Commander in Chief 5) those concerning legislation 6) privileges and immunities. As Chief of State, the american president is the ceremonial head of the government of the U.S.. As Chief Executive, the American president has powers of appointment and removal of federal officers, powers of prosecution and pardon, power to interpret the law, power to spend or not to spend. The president has the constitutional responsibilities with respect to foreign affairs. Foreign policy choices and their implementation are fully constrained by the Constitution s protections for individuals. The U.S. president has also the power to make treaties and executive agreements. Recent practice has unquestionably favored the congressional-executive agreement. As Commander in Chief, the U.S. president has the power to wage the war. The U.S. Supreme Court recognized an inherent executive power to repel an invasion or rebellion without first seeking legislative approval. Particular uses of this power were found to pose political question. The president may disapprove of legislation and veto it, returning it to the house of origin without his signature and with statement of his objection ; the veto power. If the president does not sign the bill and Congress has adjourned, the bill

목차

Ⅰ. 서언

Ⅱ. 미국 대통령제의 기원과 헌법규정

Ⅲ. 미국 대통령의 권한 일반

Ⅳ. 국가원수로서의 권한

Ⅴ. 행정부 수반으로서의 권한과 그 한계

Ⅵ. 대통령의 대외관계에 관한 권한과 그 한계

Ⅶ. 군통수권자로서의 권한과 그 한계

Ⅷ. 대통령의 입법에 관한 권한과 그 한계

Ⅸ. 대통령의 특권과 면책

Ⅹ. 맺음말

ABSTRACT