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Article Two of the United States Constitution creates the executive branch of the government, consisting of the president and other executive officers.
Contents |
Clause one is a "vesting clause," similar to other clauses in Articles One and Three, but it vests the power to execute the instructions of Congress, which has the exclusive power to make laws; "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The important distinction between the vesting clause in Article I and this Vesting Clause is that this one is Plenary (i.e., it implies the power the executive to fall in line with what other "executives" around the world at the time could do) whereas the power vested in Article I is subject to limits to be outlined in later sections.
The head of the Executive Branch is the President of the United States. The President and the Vice President are elected every four years.
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Under the U.S. Constitution the President and Vice President are chosen by Electors, under a constitutional grant of authority delegated to the legislatures of the several states and the District of Columbia (see Bush v. Gore). The constitution reserves the choice of the precise manner for creating Electors to the will of the state legislatures. It does not define or delimit what process a state legislature may use to create its state college of Electors. In practice, the state legislatures have generally chosen to create Electors through an indirect popular vote, since the 1820s.
In an indirect popular vote, it is the names of the electors who are on the ballot to be elected. Typically, their names are aligned under the name of the candidate for President and Vice President, that they, the Elector, have pledged they will support. It is fully understood by the voters and the Electors themselves that they are the representative "stand-ins" for the individuals to whom they have pledged to cast their electoral college ballots to be President and Vice President. In some states, in past years, this pledge was informal, and an Elector could still legally cast their electoral ballot for whomever they chose. More recently, state legislatures (exercising their constitutional authority to do so) have mandated in law that Electors shall cast their electoral college ballot for the Presidential Candidate to whom they are pledged.
Each state chooses as many Electors as it has Representatives and Senators representing it in Congress. Under the Twenty-third Amendment, the District of Columbia may choose no more electors than the state with the lowest amount of electoral votes. No Senators, Representatives or federal officers may become Electors.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse [sic] by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse [sic] the President. But in chusing [sic] the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse [sic] from them by Ballot the Vice President.
(Note: This procedure was changed by the Twelfth Amendment in 1804.)
In modern practice, each state chooses its electors in popular elections. Once chosen, the electors meet in their respective states to cast ballots for the President and Vice President. Originally, each elector cast two votes for President; at least one of the individuals voted for had to be from a state different from the elector's. The individual with the majority of votes became President, and the runner-up became Vice President. In case of a tie, the House of Representatives could choose one of the tied candidates; if no person received a majority, then the House could again choose one of the five with the greatest number of votes. When the House voted, each state delegation cast one vote, and the vote of a majority of states was necessary to choose a President. If second-place candidates were tied, then the Senate broke the tie. A quorum of two-thirds applied in both Houses: at least one member from each of two-thirds of the states in the House of Representatives, and at least two-thirds of the Senators in the Senate. This procedure was followed in 1801 after the electoral vote produced a tie, and nearly resulted in a deadlock in the House.
The Twelfth Amendment introduced a number of important changes to the procedure. Now, Electors do not cast two votes for President; rather, they cast one vote for President and another for Vice President. In case no Presidential candidate receives a majority, the House chooses from the top three (not five, as with Vice Presidential candidates). The Amendment also requires the Senate to choose the Vice President from those with the two highest figures if no Vice Presidential candidate receives a majority of electoral votes (rather than only if there's a tie for second for President). It also stipulates that to be the Vice President, a person must be qualified to be the President.
The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Congress sets a national Election Day. Currently, Electors are chosen on the Tuesday following the first Monday in November, in the year before the President's term is to expire. The Electors cast their votes on the Monday following the second Wednesday in December of that year. Thereafter, the votes are opened and counted by the Vice President, as President of the Senate, in a joint session of Congress.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
By the time of their inauguration, the President and Vice President must be:
Eligibility for holding the office of President and Vice-President were modified by subsequent amendments:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The wording of this clause caused much controversy at the time it was first used. When William Henry Harrison died in office, a debate arose over whether the Vice President would become President, or if he would just inherit the powers, thus becoming an Acting President. Harrison's Vice President, John Tyler, believed that he had the right to become President. However, many Senators argued that he only had the right to assume the powers of the presidency long enough to call for a new election. Because the wording of the clause is so vague, it was impossible for either side to prove its point. Tyler ended up taking the Oath of Office and became President, setting a precedent that is followed to this day. Tyler's precedent made it possible for Vice Presidents Millard Fillmore, Andrew Johnson, Chester Arthur, Theodore Roosevelt, Calvin Coolidge, Harry Truman, and Lyndon Johnson to ascend to the presidency (Gerald Ford took office after the passage of the Twenty-fifth Amendment).
Tyler's precedent established that if the President's office becomes vacant due to death, resignation or disqualification, the Vice President becomes President. The Congress may provide for a line of succession beyond the Vice President. The Presidential Succession Act establishes the order as: the Speaker of the House of Representatives, the President pro tempore of the Senate and then the fifteen Cabinet Secretaries in order of that Department's establishment.
The Twenty-fifth Amendment explicitly states that when the Presidency is vacant, then the Vice President becomes President. This provision applied at the time Gerald Ford succeeded to the Presidency. In case of a Vice Presidential vacancy, the Amendment permits the President to appoint, with the approval of both Houses of Congress, a new Vice President. Furthermore, the Amendment provides that the President, or the Vice President and Cabinet, can declare the President unable to discharge his duties, in which case the Vice President becomes Acting President. If the declaration is done by the Vice President and Cabinet, the Amendment permits the President to take control back, unless the Vice President and Cabinet challenge the President and two-thirds of both Houses vote to sustain the findings of the Vice President and Cabinet. If the declaration is done by the President, he may take control back without risk of being overridden by the Congress.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
The President's salary, currently $400,000 a year, must remain constant throughout the President's term. The President may not receive other compensation from either the federal or any state government.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) 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."
According to the Joint Congressional Committee on Presidential Inaugurations, George Washington added the words "So help me God" during his first inaugural,[2] though this has been disputed. There are no contemporaneous sources for this fact, and no eyewitness sources to Washington's first inaugural mention the phrase at all—including those that transcribed what he said for his oath.
Also, the President-elect's name is typically added after the "I", for example, "I, George Washington, do...." Normally, the Chief Justice of the United States administers the oath. It is sometimes asserted that the oath bestows upon the President the power to do whatever is necessary to "preserve, protect and defend the Constitution." Andrew Jackson, while vetoing an Act for the renewal of the charter of the national bank, implied that the President could refuse to execute statutes that he felt were unconstitutional. In suspending the privilege of the writ of habeas corpus, President Abraham Lincoln claimed that he acted according to the oath. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. Finally, Andrew Johnson's counsel referred to the theory during his impeachment trial. Otherwise, few have seriously asserted that the oath augments the President's powers.
The Vice President also has an oath of office, but it is not mandated by the Constitution and is prescribed by statute. Currently, the Vice Presidential oath is the same as that for Members of Congress.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
The President is the military's commander-in-chief; however Article One gives Congress and not the President the authority to declare war. Presidents have often deployed troops with Congressional authorization, but without an explicit declaration of war. According to historian Thomas Woods, "Ever since the Korean War, Article II, Section 2 of the Constitution — which refers to the president as the 'Commander in Chief of the Army and Navy of the United States' — has been interpreted to mean that the president may act with an essentially free hand in foreign affairs, or at the very least that he may send men into battle without consulting Congress."[4] Since World War II, every major military action has been technically a U.S. military operation or a U.N. "police action", which are deemed legally legitimate by Congress, and various United Nations Resolutions because of decisions such as the Gulf of Tonkin Resolution, Authorization for Use of Force.
The President may require the "principal officer" of any executive department to tender his advice in writing. Thus, implicitly, the Constitution creates a Cabinet that includes the principal officers of the various departments.
The President, furthermore, may grant pardon or reprieves, except in cases of impeachment. Originally, as ruled by the Supreme Court in United States v. Wilson (1833), the pardon could be rejected by the convict. In Biddle v. Perovich, 274 U.S. 480 (1927), however, the Supreme Court reversed the doctrine, ruling that "[a] pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."[5]
The President exercises the powers in the Advice and Consent Clause with the advice and consent of the Senate.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President may enter the United States into treaties, but they are not effective until ratified by a two-thirds vote in the Senate. In Article II however, the Constitution is not very explicit about the termination of treaties. The first abrogation of a treaty occurred in 1798, when Congress passed a law terminating a 1788 treaty with France. In the nineteenth century, several Presidents terminated treaties after Congress passed resolutions requesting the same. In 1854, however, President Franklin Pierce terminated a treaty with Denmark with the consent of the Senate alone. A Senate committee ruled that it was correct procedure for the President to terminate treaties after being authorized by the Senate alone, and not the entire Congress. President Pierce's successors, however, returned to the former procedure of obtaining authorization from both Houses. Some Presidents have claimed to themselves the exclusive power of terminating treaties. Abraham Lincoln, for instance, terminated a treaty without prior Congressional authorization, but Congress retroactively approved his decision at a later point. The first unambiguous case of a President terminating a treaty without authorization, granted prior to or after the termination, occurred when Jimmy Carter terminated a treaty with the Republic of China.[6] For the first time, judicial determination was sought, but the effort proved futile: the Supreme Court could not find a majority agreeing on any particular principle, and therefore instructed the trial court to dismiss the case.
The President may also appoint judges, ambassadors, consuls, ministers and other officers with the advice and consent of the Senate. By law, however, Congress may allow the President, heads of executive departments, or the courts to appoint inferior officials.
The Senate has a long-standing practice of permitting motions to reconsider previous decisions. In 1931, the Senate granted advice and consent to the President on the appointment of a member of the Federal Power Commission. The officer in question was sworn in, but the Senate, under the guise of a motion to reconsider, rescinded the advice and consent. In the writ of quo warranto proceedings that followed, the Supreme Court ruled that the Senate was not permitted to rescind advice and consent after the officer had been installed.
After the Senate grants advice and consent, however, the President is under no compulsion to commission the officer. It has not been settled whether the President has the prerogative to withhold a commission after having signed it. This issue played a large part in the famous court case Marbury v. Madison.
At times the President has asserted the power to remove individuals from office. Congress has often explicitly limited the President's power to remove; during the Reconstruction Era, Congress passed the Tenure of Office Act, purportedly preventing Andrew Johnson from removing, without the advice and consent of the Senate, anyone appointed with the advice and consent of the Senate. President Johnson ignored the Act, and was later impeached and acquitted. The constitutionality of the Act was not immediately settled. In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court held that Congress could not limit the President's power to remove an executive officer (the Postmaster General), but in Humphrey's Executor v. United States, 295 U.S. 602 (1935) it upheld Congress's authority to restrict the President's power to remove officers of the Federal Trade Commission, an "administrative body [that] cannot in any proper sense be characterized as an arm or eye of the executive."
Congress may repeal the legislation that authorizes the appointment of an executive officer. But it "cannot reserve for itself the power of an officer charged with the execution of the laws except by impeachment."[7] Congress has from time to time changed the number of justices in the Supreme Court.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
During recesses of the Senate, the President may appoint officers, but their commissions expire at the conclusion of the Senate's next session. For example, see George W. Bush's 2005 appointment of John Bolton as U.N. Ambassador.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The President must give the Congress information on the "State of the Union" "from time to time." Originally, Presidents personally delivered annual addresses to Congress. Thomas Jefferson, who felt that the procedure resembled the Speech from the Throne delivered by British monarchs, chose instead to send written messages to Congress for reading by clerks. Jefferson's procedure was followed by future Presidents until Woodrow Wilson reverted to the former procedure of personally addressing Congress, which has continued to this day[update].
The President may call extraordinary sessions of one or both Houses of Congress. If the two Houses cannot agree on a date for adjournment, the President may adjourn both Houses to such a time as he or she thinks fit. The last time this power was exercised was in 1948, when President Harry S. Truman called a special session of Congress. That was the twenty-seventh time in American history when a president convened such a session.[8]
The President receives all foreign Ambassadors. This clause of the Constitution, among others, has been interpreted to imply that the President has broad power over all matters of foreign policy.[9]
The President must "take care that the laws be faithfully executed." Some Presidents have claimed the authority under this provision to impound money appropriated by Congress. President Jefferson, for example, delayed the expenditure of money appropriated for the purchase of gunboats for over a year. President Franklin D. Roosevelt and his successors sometimes refused outright to expend appropriated money. The Supreme Court, however, has held that impoundments without Congressional authorization are unconstitutional.
It has also been asserted that the President's responsibility in the "faithful" execution of the laws entitles him to suspend the privilege of the writ of habeas corpus. Article One provides that the privilege may not be suspended save during times of rebellion or invasion, but it does not specify who may suspend the privilege. Congress, the Supreme Court has ruled, may suspend the privilege if it deems it necessary. During the Civil War, President Abraham Lincoln suspended the privilege, but, due to the vehement opposition he faced, obtained congressional authorization for the same. Since then, the privilege of the writ has only been suspended upon the express authorization of Congress.
In Mississippi v. Johnson, 71 U.S. 475 (1867), the Supreme Court ruled that the judiciary may not restrain the President in the execution of laws. In the case, the Supreme Court refused to entertain a request for an injunction preventing President Andrew Johnson from executing the Reconstruction Acts, which were claimed to be unconstitutional. The Court found that "[t]he Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance."[10] Thus, the courts cannot bar the passage of a law by Congress, though it may strike down such a law as unconstitutional. A similar construction applies to the executive branch.
The President commissions "all the Officers of the United States." These include officers in both military and foreign service. (Under Article I, Section 8, the States have authority for "the Appointment of the Officers . . . of the [State] Militia . . ..")
The presidential authority to commission officers would have a large impact on the 1803 case Marbury v. Madison, where outgoing Federalist President John Adams feverishly signed many commissions to the judiciary on his final day in office, hoping to, as incoming Democratic-Republican President Thomas Jefferson put it, "[retire] into the judiciary as a stronghold." However, in his haste, Adams' Secretary of State neglected to have all the commissions delivered. Incoming President Thomas Jefferson was enraged with Adams, and ordered his Secretary of State, James Madison, not to deliver the remaining commissions. William Marbury took the matter to the Supreme Court, where the famous Marbury was decided.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and Misdemeanors.
The Constitution also allows for involuntary removal from office. The President, Vice-President, Cabinet Secretaries, and other executive officers, as well as judges, may be impeached by the House of Representatives and tried in the Senate.
Any convicted by impeachment is immediately removed from office. The Senate may also choose to bar the removed official from holding any federal office in the future.[11] No other punishments may be inflicted pursuant to the impeachment proceeding, but the convicted party remains liable to trial and punishment in the courts for civil and criminal charges.[12]