Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, comprising the President and other executive officers.
President and Vice President
Section One provides that the executive power is vested in the President, who may be chosen for a four-year term. The President and Vice President must be thirty-five years of age, natural born citizens (or citizens at the time of the Constitution’s adoption) and inhabitants for at least fourteen years of the United States. Additionally, the Twenty-second Amendment prevents a President from being elected more than twice.
The President and Vice President are chosen by Electors chosen as the state legislatures direct. Each state legislature may choose as many Electors as Representatives and Senators represented it in Congress. (Under the Twenty-third Amendment, the District of Columbia may also choose Electors.) No Senators, Representatives or federal officers may become Electors. After they are appointed (in modern practice, by popular election), they meet in their respective states to cast ballots for the President and Vice President. Originally, the Electors each 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 greatest number of votes (if such a number represented a majority of electors) became President, and the runner-up became Vice President. In case of a tie, the House of Representatives could choose one of the candidates; if no person received a majority, then the House could again choose from amongst 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.
The Twelfth Amendment introduced a number of key 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 amongst the top three (not five, as was earlier the case). The Senate still chooses from those with the two highest figures in case Vice Presidential candidates have equal numbers of electoral votes.
The Congress may determine the time of the choosing of Electors and the day they give their votes. Currently, Electors are chosen on the Tuesday following the first Monday in November and cast their votes on the Monday following the second Wednesday in December. Thereafter, the votes are opened and counted by the Vice President, as President of the Senate, in the presence of both Houses of Congress.
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; currently, it includes the Speaker of the House of Representatives, the President pro tempore of the Senate and Cabinet Secretaries. The Twenty-fifth Amendment permits the President to appoint, with the approval of both Houses of Congress, a Vice President when there is a vacancy in that office. Furthermore, the Amendment provides that when the Vice President and Cabinet declare the President unable to discharge his duties, the Vice President becomes Acting President. The Amendment permits the President to take control back unless two-thirds of both Houses vote to sustain the findings of the Vice President and Cabinet.
The President must receive an emolument that may not be varied during his term in office. During his service, the President may not receive compensation for any other services from either the United States or any state.
The President must take, before taking office, 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.” By convention established by George Washington, the President adds the words “so help me God” at the conclusion of the oath. Normally, the Chief Justice 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 in accordance with the oath. 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.
=Commander in Chief
The President is Commander-in-Chief of the United States Armed Forces, and of the state militias when called into service. Article One, however, provides that Congress, not the President, may declare war. Often, the President has deployed troops with Congressional authorization, but in the absence of an explicit declaration of war.
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 pardons or reprieves. Originally, the pardon could be rejected by the convict. In , 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.” Pardons may not be granted in cases of impeachment.
The President may exercise several powers with the advice and consent of the Senate. If two-thirds of Senators concur, he may ratify treaties. The Constitution, however, is silent on 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. 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 alone, the heads of executive departments or the courts to appoint inferior officials. During recesses of the Senate, the President may appoint officers, but their commissions expire at the conclusion of the Senate’s next session.
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 thus 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. Once the actual commission is made out, the responsible officer (the Secretary of State) is required to deliver it; if he does not, he may be compelled to do so by a writ of mandamus. It has been argued, but not decided in the courts, that it is within the President’s prerogative to withhold a commission after having signed it.
The President also has the power to remove individuals from office. Congress has often sought to limit the President’s power; 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 (1926), however, the Supreme Court held that Congress could not thus limit the President’s power to remove executive officers. Congress, however, may remove an officer “who occupies no place in the executive department and who exercises no part of the executive power.” On the basis of this principle, the Supreme Court permitted Congress to remove officers of the Federal Trade Commission, which was adjudged to be an “administrative body [that] cannot in any proper sense be characterized as an arm or eye of the executive.” But if Congress by statute retains for itself the power to remove an officer, it may not clothe him with executive powers, for if it does so the individual in question becomes a part of the executive branch removable at the whim of the President.
The President must make regular addresses on the “State of the Union” to Congress. 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 idea was followed by future Presidents until Woodrow Wilson, an Anglophile, reverted to the former procedure of personally addressing Congress.
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 thinks fit. The President receives all foreign Ambassadors.
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 Delano Roosevelt and his successors sometimes refused outright to expend appropriated money. The Supreme Court, however, has held impoundments without Congressional authorization 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 (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 “the 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.” 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 question of what information the President may withhold from the courts or Congress is contentious and undetermined. The Supreme Court has ruled that presidential communications are protected by a privilege that is “fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.” Executive privilege, however, is not absolute. In criminal cases, for example, the defendant can demand the revelation of exculpatory information in the possession of the government, but the government may choose to dismiss the charges instead of revealing the information. (Vide executive privilege for more information.)
The President and other executive officers may be impeached by the House of Representatives and tried in the Senate. What exactly constitutes a “high” crime or misdemeanor is up to the House of Representatives. Upon conviction for treason, bribery or other high crimes and misdemeanors, the President, Vice President or civil officer automatically leaves office. Furthermore, the Senate may choose to impose an additional penalty by barring the convict from ever holding an office under the United States.
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