Understanding the Constitution of the United States: Article II the Executive Branch

Image of the U.S. Constitution from http://wvconstitutionaladvocates.com/u-s-constitution/

Image of the U.S. Constitution from http://wvconstitutionaladvocates.com/u-s-constitution/

The second article of the Constitution of the United States is significantly shorter than the first article and processes of election and succession (in section 1) were modified by the twelfth and twenty-fifth amendments. The structure of the constitution does not allow for unchecked power by any of the branches of government. The executive branch is limited by the laws passed and their interpretation by the judicial branch. We are seeing this play out in the opening days of the Trump administration where executive orders cannot override existing laws and a federal judge can execute a stay or prevent enforcement of an executive order that contradicts other laws and the legislative branch has the authority to pass a law which would supersede an executive order. The Constitution can be viewed here among several other places. What follows is an explanation of this fairly short article.

Section 1: Vesting, Election and Succession

The Vesting Clause:

This first clause of the article has been viewed differently by different presidents about the amount of Executive Power that has been vested in the President of the United States. Certain privileges are reserved by the Legislature or the Supreme Court in Articles I or III, but ultimately the Executive Branch is charged with the execution and enforcement of the laws that are passed by the Legislative Branch. Each of the branches of government are vested with specified powers as a part of the constitution’s balance of power. The specified powers of the President of the United States are listed in Section 2 below. There is no reading of the U.S. Constitution that could support the statements made by Stephen Miller, an advisor to President Trump, who stated that “the powers of the president…are very substantial and will not be questioned.”

The remainder of Section 1 concerns the practical matters like:

– the process of election of a president (which was modified by the Twelfth Amendment after the 1800 election of Thomas Jefferson where he and his running mate received the same number of votes. The Twelfth Amendment establishes our current system of Electoral College election)

– the qualifications required to be a President: natural born citizen (since no one alive today was alive at the time of the adoption of the constitution, which is how the first Presidents were eligible), at least 35 years old and having lived as a resident of the United States for at least fourteen years.

-What to do in the case of the removal, death, resignation or inability of a president to fulfill their duties (modified by the Twenty Fifth Amendment to increase the specificity on how this process would unfold)

-Compensation for the President, currently $400,000 per year, and while the President serves they are not able to receive any other payment from either a state or the federal government.

-Finally the oath of office is outlined: “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.

Section 2: Powers of the President of the United States

The President is the Commander in Chief of the Armed Forces and has the power to employ the U.S. Military (Active, Reserve and when called into federal service the National Guard which when not federalized is controlled by the state governors). The President does not have the power to declare war, that is specifically reserved to the Legislative Branch (Article 1, Section 8) and the Legislative branch is the only branch that can authorize the funds for military action outside the budget but the President is charged with the execution of any use of the military.

May require (the Opinion) of any of the members of an Executive department. The cabinet, which oversees the various executive department, as well as organizations like the CIA, FBI, ATF, Secret Service, EPA, and many others ultimately report to the President.

May grant reprieves and pardons for federal offenses except in the case of impeachment. With the resignation of Michael Flynn, where he may still face prosecution the President could pardon (although that would raise a number of questions.) President Ford famously pardoned Richard Nixon on September 8, 1974 which he was able to do since Nixon resigned prior to impeachment proceedings.

Power to make treaties, with the advice and consent of the senate. The senate must ratify any treaties but the president and the executive branch negotiate the treaties.

Shall nominate, with advice and consent of the senate, ambassadors, public ministers and consuls, judges of the supreme court and all other officers of the United States. When President Obama nominated Merrick Garland to the supreme court the legislative branch exercised a very strong (and controversial) reading of the advice and consent clause in refusing to hear the nomination in an election year. There are a number of federal judgeships that do go unfilled because the nominees do not clear the senate.

President may fill all vacancies that happen during the recess of the senate by granting commissions that shall expire at the end of the next session.

Section 3: State of the Union and the Power of Recommendation

The first clause of this section is the origin of the annual State of the Union addresses that the President makes to Congress, and by extension to the American people.

The President does not make laws but does recommend to congress measures the president judges necessary, this is why the budget process often begins with the recommendations of the executive branch.

The President may convene both houses or either house in extraordinary occasions (like a declaration of war or the need for emergency legislation) and may, in a case where the congress cannot decide when to adjourn, adjourn the congress (a power no President has ever used).

As the person responsible for negotiating with foreign governments, the President will receive ambassadors and other public ministers.

He shall take care that the laws are faithfully executed. Ultimately this is the heart of the function of the executive branch.

Finally, the President shall commission all officers of the United States.

Section 4: Impeachment

President, Vice President and all civil officers of the U.S. shall be removed from office on impeachment for: Treason, bribery, or other high crimes and misdemeanors. The process of impeachment is laid out in Article I, Section 3.

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