Aidan Flynn, Senior Lecturer in the Law Department, looks at some similarities and differences between the office of US President and the office of UK Prime Minister
Joe Biden, of the Democratic Party, is now the 46th President. At his inauguration ceremony he took the oath that is set out in the Constitution of the USA 1789, “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” In his inauguration speech, President Biden quoted the 16th President, Abraham Lincoln (1861 to 1865), of the Republican Party, “in another January on New Year’s Day in 1863 Abraham Lincoln signed the Emancipation Proclamation. When he put pen to paper the president said, and I quote, ‘if my name ever goes down in history, it’ll be for this act, and my whole soul is in it.’” Mr Lincoln led his country in very difficult times with the years of the American Civil War coinciding with his period in office. Referring to the present day, President Biden continued “here we stand just days after a riotous mob thought they could use violence to silence the will of the people, to stop the work of our democracy, to drive us from this sacred ground. It did not happen, it will never happen, not today, not tomorrow, not ever. Not ever.” Like Lincoln, President Biden has a very difficult path in front of him, he faces a “pile of crises.” Like ‘Honest Abe’ he is confronted by a series of stark challenges. His long years of experience as an elected representative will stand him in good stead as he fulfils his oath to preserve, protect and defend the Constitution.
Head of what?
In the USA the President is both the head of state and head of government of the United States of America. In the United Kingdom these roles are separate, the monarch being head of state and the Prime Minister being head of government. Graubard states that “simplicity, the theme of the nineteenth-century American republic, made the president the first citizen amongst equals, but these practices gave way in the twentieth century to a new kind of presidential office that vaunted itself on its simplicity, but showed unmistakable signs of having assumed the trappings traditionally bestowed on European heads of state.” The British monarchy is a constitutional monarchy, this means that while the Queen is head of state it is the UK Parliament that makes legislation. The website of the monarchy tells readers that the Queen “undertakes constitutional and representational duties which have developed over one thousand years of history.” The monarch has no political or executive role, it is the Prime Minister who is “the most important politician in the UK.”
Presidential elections in the USA take place every four years and are held in November. Every state in the USA has a different number of what are known as electoral college members. The number of members per state is apportioned according to its population and representation in Congress. The candidate who wins the most votes in a state controls all that state’s electoral college members. The electoral college members cast the votes for President and the votes are formally counted at a joint session of Congress in January. The figure needed to win is 270 and in 2020 Joe Biden received 306 to Donald Trump’s 232. Sometimes the winning candidate will not have also won the biggest number of votes in the national popular vote. For example, in November 2000, in the national popular vote Al Gore received over 540,000 more votes than George W. Bush. What is crucial is to win in the electoral college process and George W. Bush became President in January 2001 having done that, receiving 271 votes to Mr Gore’s 266.
In the UK the Prime Minister is appointed by the monarch either after a general election has taken place or when a sitting Prime Minister has departed the office at some point during the term of Parliament. By convention, the Prime Minister must be an MP, that is a member of the House of Commons. This contrasts with the position in the USA where the President is not a sitting member of either house of the legislature.
When the result of a general election gives one political party a clear overall majority in the House of Commons, the position is straightforward. The leader of that party will, as in December 2019, be invited by the monarch to become Prime Minister and form the government. When there is a hung Parliament, in which no one party has an overall majority, the position may not be as straightforward. Le Sueur comments that “there is academic disagreement about the extent to which the monarch has discretion” in relation to a decision about who to appoint should the party leaders in the Commons be struggling to strike any kind of deal on government formation.
Timeline when entering office
In the USA there is always a gap of time between November’s election and the moment when a new President assumes office. The 20th Amendment, to the Constitution of the USA, states that “the terms of the President and Vice President shall end at noon on the 20th day of January.” By contrast, in the UK the timeline between a general election and the appointment of the new Prime Minister is usually a matter of hours rather than weeks. This is illustrated by the transfer of power that occurred in May 1997 when the party led by the incumbent Prime Minister, John Major, was defeated in a general election. The general election was held on the 1st of May and John Major left 10 Downing Street on the 2nd of May. Having first travelled to Buckingham Palace and been appointed by the Queen as new Prime Minister, Tony Blair arrived in 10 Downing Street in the early afternoon, Mr Major having “walked out only moments before I had come in.” If a general election produces a hung Parliament, the timeline will be different. For example, in 2010 the general election took place on the 6th of May, but it was on the 11th of May that the incumbent, Gordon Brown, resigned and was succeeded by David Cameron. Mr Brown recalls that once it was clear that the election result was a hung Parliament, “the senior civil servants at the cabinet office, primed for this situation and armed with their Cabinet Manual, now moved into action to host what they knew would follow – inter-party negotiations.” He resigned five days after the election when he formed the view that those negotiations were not going to yield an outcome that would see his party remain in government.
As head of government in the UK, the Prime Minister leads the executive, one of the three branches of government, the other branches being the legislature and the judiciary. Government ministers are formally appointed by the monarch, but it is the Prime Minister who makes the decisions on who becomes a minister. Similarly, it is the Prime Minister who has the power to make a decision as to when a minister must leave the government. It is a convention that a minister must be a member of one of the houses of Parliament, most ministers are members of the House of Commons. Senior ministers sit in the Cabinet, a body that holds regular meetings chaired by the Prime Minister. Most of these senior ministers head up a government department, examples being the Secretary of State for Education, the Secretary of State for Transport. Barnett outlines how it is the Cabinet that represents “the nucleus of government” adding that it is “the Cabinet as a whole which, at least in theoretical terms, formulates, initiates and implements the policy of the government.” In the USA the Cabinet is also an important aspect of the executive branch of government. The Cabinet is made up of the fifteen heads of the executive departments. They are appointed by the President and confirmed by the Senate.
The requirement for there to be confirmation hearings, in the upper house of Congress, has no equivalent in the UK. Persons picked by the Prime Minister to serve in Cabinet do not face confirmation hearings in Parliament, the legislature of the UK. In the USA members of the Cabinet will not also be serving in either house of Congress, unlike the convention in the UK that a Cabinet minister must be a sitting member of the legislature. This is a notable difference between the systems of the two countries, it means that in the UK members of the Cabinet have a role in two of the three branches of government. They are simultaneously members of the executive and legislative branches whereas in the USA Cabinet ministers only serve in the executive branch. Another difference in the two systems relates to the Attorney General. In the USA the Attorney General is a member of the Cabinet and is head of the Justice Department. In the UK the Attorney General is a member of the government and attends Cabinet meetings but she is not a member of the Cabinet.
Length of term
In the USA the President is, under the 22nd Amendment to the Constitution, limited to two four-year terms. The 22nd Amendment was ratified in 1951. Franklin Delano Roosevelt is the only President to have served more than two terms, being elected four times and serving from 1932 until his death in 1945. It is possible for a President to remain in office for ten years. This applies in specific circumstances and can be examined by looking at the presidency of Lyndon Johnson. He was Vice President in November 1963 when President John Kennedy, who had been inaugurated in January 1961, was assassinated. Mr Johnson was sworn in as President on the day that the assassination occurred and then won the November 1964 presidential election. He could have stood as a candidate again in 1968 but opted not to do so. However, had the assassination of Mr Kennedy taken place at a point during the first two years of his term, Mr Johnson would not have been eligible to enter the 1968 contest.
In the UK there is no limit on the length of time that someone can serve as Prime Minister. Since 1940, there have been three Prime Ministers who held office for longer than eight years, Winston Churchill (1940 to 1945 and 1951 to 1955), Margaret Thatcher (1979 to 1990) and Tony Blair (1997 to 2007).
A president’s time in office will end when he has completed two terms or if he is defeated in the election that occurs at the end of the first term. Of the last seven presidents, four left office after eight years, these are Reagan (1989), Clinton (2001), GW Bush (43)(2009), and Obama (2017). The other three, who were unsuccessful candidates when they campaigned for a second term, are Carter (1980), GHW Bush (41)(1992), and Trump (2020). Eight presidents have died in office, four of whom were assassinated, Abraham Lincoln (1865), James Garfield (1881), William McKinley (1901) and John Kennedy (1963).
The 25th Amendment to the Constitution, adopted in 1967, sets out some circumstances in which it is possible for the Vice President to take over the powers and duties of the President, and operate in the capacity of Acting President. This Amendment is relevant where the President is “unable to discharge the powers and duties of his office.” In January 2021 Vice President Mike Pence rejected calls for him to invoke provisions of the 25th Amendment in relation to President Donald Trump.
Impeachment of a President is covered by Article 2, Section 4 of the Constitution. It provides for removal from office on “Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” In 1974 Richard Nixon resigned before he could be impeached, he is the only president to ever resign the office. Andrew Johnson (1868) and Bill Clinton (1998) were both impeached by the House of Representatives but acquitted after a trial in the Senate. In December 2019 Donald Trump became the third president to be impeached when the House of Representatives voted to adopt articles of impeachment. Like Johnson and Clinton, he was acquitted after a trial in the Senate. The Senate voted to acquit him 52-48 on charges of abuse of power and 53-47 on obstruction of Congress. On the 13th of January 2021 President Trump became the first president to be impeached twice when the House of Representatives voted to adopt articles of impeachment.
Seven prime ministers have died in office, one of whom was assassinated, Spencer Perceval (1812). The most recent instance of death in office was Lord Palmerston (1865). In certain circumstances a prime minister could be dismissed by the monarch. This happened in 1834 when King William IV dismissed William Lamb. On departure through dismissal, it is also relevant to recall what occurred in Australia, a member of the Commonwealth, in 1975. The Prime Minister, Gough Whitlam, was dismissed by the Governor-General, the Queen’s representative in Australia.
The departure of most prime ministers is brought about by resignation. A prime minister will resign upon being defeated at a general election, the most recent example being Gordon Brown in 2010. An exit by way of resignation can also occur where a prime minister faces a leadership challenge in her party. In 1990 Margaret Thatcher resigned amidst substantial internal divisions, about her leadership, within the Conservative Party. Describing how what he calls “the most striking ‘boss’ prime ministership of the post-war period” came to an end, Hennessy relates that nearly two-thirds of her Cabinet told her she could not go on. He adds that “this was the crucial moment when she realized that her pyrotechnic command premiership was finished.” Another reason for resignation can be the rejection, in a national referendum, of a major policy position advocated by the Prime Minister. The departure of David Cameron, in 2016, illustrates this and he records that “Britain was leaving the EU and I was leaving the job I loved.”
There is a convention that if a government loses a vote of confidence in the House of Commons, the Prime Minister should resign, and a general election take place. This occurred in 1979 when the government of Prime Minister James Callaghan lost a vote of confidence, by one vote 311 to 310. The Fixed-term Parliaments Act 2011 modified the position where a government loses a vote of confidence in the Commons. This Act provides that an election is only triggered if, within fourteen days of the vote, neither the previous administration nor an alternative government has secured the confidence of the House of Commons.
The most significant similarity between the US President and UK Prime Minister is that both are world leaders elected in countries with a democratic system of government, the USA a republic and the UK a constitutional monarchy. Abraham Lincoln summed up the nature of democracy in his famous address at Gettysburg, “that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.” The first President, George Washington, entered into office in 1789 and the Constitution that came into effect that year is still the fundamental document underpinning the governance system.
The year 2021 is the 300th anniversary of prime ministers. The period in office of Robert Walpole, who is listed as the first Prime Minister, was 1721 to 1742. Hennessy states that “each new arrival in No. 10 experiences it and manages it afresh, which is why transitions of governing and prime ministerial power repay especially close study.”
Close study of the last five years shows very vividly that the ability to command a parliamentary majority is a key element in determining how a premiership will go. A Prime Minister with a good-sized majority in the House of Commons has greater authority than one who lacks this.
Barnett comments that “whatever the personal power of the Prime Minister, he or she is ultimately dependent upon the support of Cabinet, party and Parliament; and, in turn, that support is dependent upon the support of the electorate expressed not just through the vote at a general election, but continually expressed in that amorphous concept ‘the mood of the people.’” Power rests with ‘the people’, every aspiring Prime Minister knows that, and every Prime Minister knows that he must never forget that.