Article II of the US Constitution: Executive
Article 2: Executive Branch: Let us first re-state that the Founders intentionally split power amongst three branches of government, in an effort to prevent any one branch from seizing too much power and becoming tyrannical. Article 2 of the US Constitution is the article that addresses the method of choosing the President, and the privileges, duties, powers, and limitations of the executive branch.
Under the Articles of Confederation, all government was in the hands of the Congress (which had only one House). This was itself a reaction against the days of Royal Governors, appointed by the King and ruling harshly in many cases. They found under the Articles that a decentralized executive function was just as harmful – but from the other direction! With no one person in charge (despite a titular "President," elected for a one-year term by the Continental Congress), there were lengthy delays in decision making, finger-pointing when decisions went awry, and general chaos. Still, it took until almost the very end of the Constitutional Convention to decide on one executive with defined areas of jurisdiction separate from that of the legislatures’ areas.
In Article 2, Section 1, the title “President” is set forth, that function is stated to be the Executive function of governance, his term and that of the Vice-President is set to a length of four years – and those are to be the same four years. By setting the term to this length, the President will be in office for 2 sessions of the House, but only 2/3 of one session of the Senate. Recall that the House is the closest to the people; they are chosen most frequently. The President’s term spans House sessions, giving the Executive a longer outlook than the Representatives. The Senators, representing the interests of the States as sovereign entities, stay in office six years – giving the Senate the longest overall view of the state, positions, and needs of the country. This is underscored by the offset elections of Senators, 1/3 every 2 years – leading to a Senate where there are always some old-timers as well as relative “newbies” in office (in theory, at least).
The next clause in this article is one that always engenders confusion: the Electoral College and the election of the President. People ask, “WHY do we have the Electoral College?” This was another in the long list of compromises made in the Constitutional Convention. Twice the Convention voted against election of the President by Congress, and twice they voted against direct election by the people. Instead, they chose a completely different route. The President is NOT elected by the people — but rather by the sovereign States, as guided and recommended by their citizens and legislatures, through the Electoral College. This procedure also helps preserve Federalism; the division and sharing of power between the state and Federal governments. The people elect Representatives; the states elect the President.
The Electoral College (even with the changes brought about from the original by the 12th Amendment) retains another original purpose – to keep Presidential candidates from only looking at high-population states for votes. Perhaps the best way to describe the function of the Electors in the Electoral College is by a series of questions and answers.
How many Electoral votes are there? Each state is assigned a number of Electors equal to the state’s total representation in the Federal government. Minimum is three, for two Senators and one Representative (each state has two Senators and the number of Representatives is assigned by population; the country splits 435 Representatives). The highest currently is California, with 55 Electoral College votes. Washington DC gets three Electoral College votes (per the 23rd Amendment). In total, there are 538 Electoral College votes.
Who is an Elector – and how do the Electors elect the President? An Elector is a person chosen by his/her State’s official procedure, to participate in the election of the President. The Electors, after the state-sanctioned procedure for advising them (=presidential election), meet in their states on the first Monday after the second Wednesday in December. On that day, they hold their votes and list the names of the candidates for President and Vice-President along with the number of votes for each. They sign and certify this list, seal it, and send that list to the President of the Senate. The Senate President opens and counts all the ballots in the presence of the Senators and Representatives. Two hundred seventy Electoral College votes are required to elect a President. There are additional Constitutional provisions to decide the President if a clear majority is not reached (this has not happened since 1825).
How are Electors chosen? The way Electors are chosen still depends on the laws of the individual states. Some of the original intent has been displaced by the development of the two-party system. Originally, electors could be chosen by the states in a number of ways. The state legislature could vote, all at once and together, on a slate of electors. The state legislature could vote in separate houses (but at the same time). There could be a general vote by the citizens. There could be a vote of citizens by districts. There could be a hybrid method of partial legislature/partial citizen votes. Other methods were used as well. Madison held the opinion that the district system was the most equitable.
Are there limits on who can be an Elector? Yes – Electors may NOT be a current Senator, Representative, or any person holding “an office of trust or profit under the United States.” Outside those Constitutional limitations, state law prevails.
How did the two-party system change the College? The two-party system has brought changes not foreseen by the Constitutional Convention. In most states, the political parties each choose an entire slate of electors, pledged to vote for that party’s candidates. Some states have an “all or nothing” election, where party of the winner of the popular vote for President in that state gets to send all their Electors to vote, and none of the other party’s Electors get to vote – even if the popular vote was won by only a handful of votes. Other states apportion Electors by percentage of popular vote, or in other ways.
Can a President be elected who did not win the popular vote? Yes, this has happened four times in the history of the Republic – most recently with George W. Bush in 2000. (The other Presidents so elected were John Quincy Adams in 1824, Rutherford B. Hayes in 1876, and Benjamin Harrison in 1888.) A proposed California law would require the Electors in that state to vote for the winner of the popular vote per national totals. In the 2004 elections, that would have meant California’s Electoral votes would have gone to Bush (wouldn’t they have been thrilled about that!). There is also talk of a “national popular vote” amendment – with the result that most of the country would be IGNORED while candidates campaigned furiously in the high-population centers. (See a fabulous article on the disaster that would be caused by a national popular vote by Publius Huldah.)
Qualifications for holding the office of President are in Clause 4, “No person except a natural born citizen, ...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 35 years, and been 14 years a resident within the United States.” We understand age 35 with no confusion, and we clearly understand residency in years as well – a person age 36 who has lived in the USA 20 years is fully eligible even if that person spent 16 years living, working, studying, travelling, etc. in other countries. The definition of “natural born” has received lots of attention in the last several years. “Natural born” is not defined in the Constitution – rather, it is defined by statute (law), and specifically by the law that was in effect when the person was born. “Natural born” absolutely does not include someone who is a “naturalized” citizen – those who immigrate, stay the prescribed number of years, take the test and then the oath. Congress did follow a long-standing British practice, dating to 1350, of considering someone a “natural born” citizen if that person is born abroad to parents who are both US citizens. Therefore John McCain, born in Panama to US citizen parents (while his father was stationed there in the military) is absolutely and uncontrovertibly a US citizen. Under the provisions of the 14th Amendment, Mitt Romney, born in Michigan, is a natural born US citizen. His father, George, was born in Mexico – but to US citizen parents living in Mexico, who had NOT relinquished their own citizenships; his status is also certain, despite the noise made in some quarters over this fact. As to the controversy surrounding the current holder of the Office of President – no one knows for sure if he is eligible to hold office as he has never proven eligibility. It will make a very interesting Constitutional case if he is proven at some point not to have been eligible – would every bill he signed be invalidated?
The President swears an Oath of Office to “faithfully execute the Office of the President of the United States,” and, to the best of his ability, “preserve, protect, and defend the CONSTITUTION of the United States.” NOT statutes. NOT Executive Orders. NOT agency “regulations.” His sworn duty is to the Constitution alone.
In essence, the President is somewhat like a hired Town Manager; despite modern efforts, it is NOT the function of the President to set the agenda for the Federal government. Congress sets that agenda, passes laws (like the Selectmen or Aldermen of a town) to further that agenda, and the President’s duty (like the Town Manager, except with veto power) is to ensure those laws are properly implemented. He has discretion, though, under the Constitution and under his sworn oath to defend it. If the President believes that a law passed by Congress is not Constitutional (for example, it is outside the scope of the enumerated powers in Article 1, Section 8), it is his sworn duty NOT to implement or enforce that law (either by veto, or by refusal to comply if his veto is over-ridden). We see here yet another proof that the Supreme Court was never intended to be the sole arbiter of Constitutionality. The President’s Constitutional authority to act on his own discretion lies ONLY in his refusal to enforce unConstitutional acts of Congress, and his duty to entertain foreign dignitaries. He may make recommendations to Congress, but they are not required to act on those recommendations.
Executive Orders are not forbidden by the Constitution – they are not specifically mentioned at all. They do come under the restrictions of the oath of office, however, and the President may NOT use “executive orders” to subvert, evade, or avoid the other provisions of the Constitution, nor to establish regulatory agencies who issue rules on their own, not subject to Congressional approval and oversight. Those actions are outside the Constitution, not authorized, and are usurpations; by the words of both Jefferson and Madison, therefore null and void. Congress’ sworn duty to the Constitution requires them to zero-fund ALL such offices and agencies.
The President may use “executive orders” to carry out his duties. For example, if US Attorneys are not prosecuting those who break Federal law (counterfeiters, for example – or those who cross our borders illegally), the President must order those attorneys to prosecute. Executive orders also cover activities within the Executive Branch, such as dress codes, rules for when meetings may and may not be interrupted, the hierarchy of assistants within his administration, and the like.
Now that we’ve been through all that – Let’s look at what else is under the jurisdiction of the Executive Branch.
The President is Commander-In-Chief of the military (including the militia) when those services are lawfully called into actual service by Congress. The President can send troops into action without a formal declaration of War by Congress, but the intention was to permit quick response by the country to an urgent threat either as a one-engagement action, or while (the part-time) Congress was gathering to vote on a declaration of war. One could make the case that our troops in Libya had NO Commander-In-Chief, as they were sent in to an area that did not pose a clear and present danger to the safety of the USA, and were not sent in under a declaration of war by Congress.
The Executive Branch also has jurisdiction over the negotiation of treaties – but no treaty can go into effect without the consent of the Senate (speaking in the interests of the sovereign states). However, just because a President signs, and the Senate (by a 2/3 vote) ratifies, a treaty, that does NOT necessarily make that treaty the “supreme Law of the Land.” The power, in Article 2, Section 2, Clause 2, to make treaties, is LIMITED by Article 6, Clause 2, which states, “...all Treaties made ... under the Authority of the United States, shall be the supreme Law of the Land.” The “Authority of the United States” is the Constitution, which limits the jurisdiction of the Federal government to specific, enumerated areas. Any treaty made in an area outside those enumerated powers is NOT “under the Authority of the United States” – and therefore is null, void, and without effect. In 1871, the Supreme Court stated (in the Cherokee Tobacco case), “It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” Therefore even IF the Senate ratifies the hypothetical UN Small Arms Ban Treaty, that treaty would NOT be the “supreme Law of the Land,” as the Second Amendment assures US citizens of the individual right to keep and bear arms. We must believe ourselves – and be willing to tell others as well – that “they do NOT have authority under the Constitution to DO that!” rather than mindlessly believing the “talking heads” when they tell us these treaties will become our law.
The President has the duty to receive foreign dignitaries.
The President nominates – again with the advice and consent of the Senate – Ambassadors from the US to foreign governments, other public ministers, judges of the Supreme Court, and some lesser categories. It is the job of the Senate to confirm OR reject those appointments. The President is empowered to fill vacancies “that may happen during the Recess of the Senate” – but as this clearly states, the Senate MUST already be IN recess; he cannot force an adjournment and then “pounce” to appoint his previously-rejected nominees. Those recess appointments also EXPIRE at the end of the Senate’s next session.
Except for cases of impeachment, the President may grant pardons; in whole or in part, to individuals or groups, dispensing with fines or not, and can even grant pardons before a conviction of wrongdoing has occurred. That last occurs every year when the Thanksgiving turkey is pardoned, but the recipient of a pardon is not required to be poultry.
The President is required to report to Congress on the State of the Union “from time to time,” and this has become the annual State of the Union Address. All Presidents except for Thomas Jefferson have done this in person (Jefferson wrote and sent a report to be read aloud).
The President, Vice-President, and all Civil Officers can be impeached (put on trial), and removed from office upon conviction of “Treason, Bribery, or other high Crimes and Misdemeanors.” In the time of the Framers, the term “high” did not mean “more serious,” but rather referred to the status of the office, and the obligation to hold those in special offices to a different standard of behavior. For example, a military officer can be tried for failure to follow orders – a standard that does not hold true for civilians. The President swears an oath to “faithfully execute the Office,” and to “Preserve, Protect, and Defend the Constitution of the United States.” He is under oath the entire time of his term of office – morning, noon, night, weekends, and holidays. His failure to uphold that oath at ANY time (or to permit those under his direct control, his “Officers” such as Cabinet members or “czars,” to disregard their own oaths) is, itself, full and complete grounds for impeachment, conviction, and removal from office. That presupposes a Congress with the guts and integrity to take the required steps.
“Good To Be King” Michael Badnarik, 2004, The Writer’s Collective
“The 5,000 Year Leap” W. Cleon Skousen, 1981, National Center for Constitutional Studies
“The Federalist Papers” (available online)
PubliusHuldah.wordpress.com (attorney and Constitutional scholar) (see specifically the articles on National Popular Vote, Vattel & Natural Born Citizen, and Treaty-Making Powers)
“Meaning of ‘High Crimes and Misdemeanors’” Jon Roland, Constitution Society, 2003, www.constitution.org
Justia US Law, Annotated US Constitution, law.justia.com