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

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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.

Understanding the Constitution of the United States: Article 1 Section 9-10 Limiting the Powers of Congress and the Individual States

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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/

These final two sections limit both the powers of the congress in passing laws as well as the powers of individual states as they construct their state constitution and legal systems.

Section 9:

The first clause of section 9 is now obsolete but it prevented the congress from interfering with the slave trade until 1808 but did allow for the taxation of the slave trade. The constitution is not a perfect document nor were the founders perfect. This is one of the places where we see the necessity of being able to amend the constitution.

The writ of habeas corpus prevents unlawful detention or imprisonment except in cases of rebellion or invasion.  President George W. Bush’s administration attempted to argue that this provision allowed for the detainees at Guantanamo Bay outside the jurisdiction of habeas corpus but the Supreme Court overturned this action in the case of Boumediene vs. Bush.

The congress cannot pass a bill of attainder where a person or group can be declared guilty of some crime and punished without a trial.

The congress cannot establish a uniform tax on individuals based only on their count within the census, taxes can be based upon income and other factors but there is no tax merely for being within the United States.

No tax can be passed on commerce between states.

No preference shall be given to imports entering in one state’s ports over another’s and vessels traveling from one state to another must not be made to pay duties or tariffs to another.

No money may be withdrawn from the treasury except through the sequence of appropriations and laws and an accounting of the receipts and expenditures of the U.S. government must be published.

No title or nobility shall be granted by the United States and no person in office shall accept any gift, salary, office or title from a foreign government without the consent of congress.

Section 10: Limiting the Power of Individual States

States may not:

– enter into treaties, alliances or confederations

-print their own coin

– pass any bill of attainder (see section 9)

-pass any law that makes something that was legal when it occurred punished as illegal after a new law has been passed

-grant any titles of nobility

-impose duties on imports or exports (except to provide for the execution of the state’s inspection laws)

-Lay a duty of tonnage (a fee for being able to use a port)

-keep troops or ships of war

– Enter into agreements or compacts with other states or foreign powers or engage in war.

 

Understanding the Constitution of the United States: Article 1, Section 8: The Powers of the Congress

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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/

Section 8: Powers of the Legislative Branch

People often blame the President of the United States for the national debt, and while there are some places where the executive branch does influence and in some cases (war for example) cause spending it is the legislative branch that is responsible for taxation, borrowing money and establishing the budget. The first several of the enumerated powers of the legislative branch deal explicitly with this:

The congress is to:

-To Collect Taxes, duties, imposts and excises to provide income for the federal government

-To borrow money on the credit of the United States

-To regulate commerce with foreign nations and internally

The congress establishes the tax code, sets any fees and duties for goods imported into the country as well as fees for the use of federal resources. Congress is responsible for borrowing money, and this has been an issue recently when the congress has shut down the government by refusing to borrow money or to pass a budget. When these actions have downgraded the credit rating of the U.S. government it also is the congress’ responsibility. Congress is responsible for trade within the United States and across the borders and the states are heavily limited in their ability to impact interstate or international trade in ways that would be an impediment for other states (see section 10).

The next enumerated power deals with how a person becomes a citizen of the United States. The executive branch can, for example, make a case for comprehensive immigration reform but ultimately it is the House of Representatives and Senate who is empowered to set the rules for how a person can legally become a citizen. The system as we have it today, with all of its flaws, is a result of the decisions of the legislative branch.

The next set of enumerated powers deals with the currency of the United States which also falls under the responsibilities of the congress. As enumerated in the constitution:

-The congress establishes laws on the subject of bankruptcies

-The congress has the power to coin money, or to determine how much money is printed in the United States and the value of that currency as well as establishing the standards for weights and measurements used in trade and commerce

-The congress is also responsible for protecting the integrity of the currency of the U.S. by providing for the punishment of counterfeiting the securities and coin of the U.S.

Bankruptcy came into the United States system from its precursor in the English code of law, although as it developed in the United States it moved from being a quasi-criminal act to being a system to allow businesses and individuals to focus on repaying the debts after suffering a heavy loss. U.S. bankruptcy code has been amended several times, most recently with the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act. The congress also determines how much money the U.S. Mint will print and what the value of that currency is. The value of U.S. currency is based upon the trust of the people for the government, not on any gold or silver or other standard. Even without a gold standard the U.S. currency has traditionally been viewed as a safe commodity and a standard currency for trade throughout the world. The congress also is responsible for ensuring that the weights and measures used for trade throughout the country are consistent so that a bushel in Texas is the same as a bushel in Wisconsin for example. Finally they are responsible for ensuring that the currency of the United States is not counterfeited. This is done in multiple ways, through the elaborate design of U.S. currency and through law enforcement agencies like the Secret Service.

The next two enumerated powers also are related to the promoting commerce, communications and providing a place where intellectual property is protected

-They are responsible for establishing the postal system and the roads that the postal system will use.

-They are to promote the progress of science and the arts by providing a trademark and copyright system to protect the investment of scientists and artists in their writings and discoveries.

In creating a postal system and a network of roads for inexpensive communication helped to facilitate the nations expansion westward. The establishment of trademark and copyright law also was instrumental in the ability of intellectual property to be protected. Trademark law, mainly defined under the Lanham act, prevented the use of source-identifying mark by another to utilize that brand’s name or popularity. For example, if you purchase a pair of shoes with the Nike swoosh on it you are anticipating that it was designed, manufactured and marketed by Nike and is not an imitation. Copyright law protects the intellectual property and is defined in the Copyright act of 1976.

-They constitute tribunals (courts) lower than the supreme court. In recent years this has become an area of struggle between the two parties and between the executive branch. Congress has frequently held lower courts vacant rather than hold hearings on candidates that the executive branch recommended that they didn’t want to act upon. Yet, the constitution of the lower courts is an important part of the ideal of establishing justice and insuring domestic tranquility as outlined in the preamble of the constitution.

Most of the remaining enumerated powers relate to providing for the common defence:

-They define and punish piracy and felonies committed at sea

-They have the power to declare war, approve treaties and penalties after a war and establish the rules concerning prisoners captured in war

-They provide for the funding of the U.S. military (both Army and Navy are established in the constitution)

-They also create the laws that the military forces operate under (the Uniform Code of Military Justice)

-They also provide for the calling forth of a militia (the original military of the United States had a very small professional army/navy very different than the U.S. Military’s current structure but this is where the National Guard/Reserve components of the military come from). The congress is also responsible for organizing, equipping and disciplining the militia.

-They are responsible for setting aside (with the cooperation of the states) federal properties to be used as military installations, dock yards, and other needed buildings.

The final enumerated power was included to make space for unforeseen legislation that the congress would need to enact. It was a controversial addition to the constitution but ultimately the necessary and proper clause, as it is known, because some, like Patrick Henry, believed it would lead to limitless appropriation of power by the federal government, but it was included over these arguments giving congress the power to make any laws which are necessary for the execution of the above powers.

Understanding the Constitution of the United States: Article 1 the Legislative Branch Sections 1-6

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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/

Even though most people in the United States at some point took a government class where the basics of the constitution and the U.S. form of government were taught, I am aware that often things learned in high school or college are easily forgotten. I often find myself in conversations with individuals, even those who may speak emphatically about defending the constitution, who speak in ways that show they do not understand the U.S. Constitution and the form of government it establishes. This has not been helped by the proliferation of opinions put out across multiple media seem either unaware or who willfully deceive those following them on how the U.S. system of government and legal system works.

I am not a constitutional scholar but I am a person who does have a profound respect for the work of the original crafters of the constitution as well as the long process of amending the constitution. This is both a refresher for me as I re-examine these foundational documents of our republic and an attempt to make the constitution itself easier to understand for those who read it. Also for those who want to effect change within our society it is essential to understand how at a basic level how our government and legal system is structured. If you would like to look at the text of the constitution it can be found at http://constitutioncenter.org/media/files/constitution.pdf.

Article 1 of the U.S. Constitution in summary

Section 1: The first branch of the U.S. government laid out in the constitution is the legislative branch, which is responsible for the establishing of laws to govern the country. The formation of the bicameral (two house) legislative branch was a compromise to address the concerns of both the smaller states who feared that they would not be fairly heard if population was the only means of representation and larger states who wanted greater representation based upon their larger populations.

Section 2: The House of Representatives, the larger of the two parts of the legislative branch where the representation is based upon the population.

Qualifications to be eligible to be elected to the House of Representatives: 25 years of age, citizen of the United States for seven years and an inhabitant of the state where they have been chosen. The Representatives serve two year terms, elected on even number years, and do not have a limit on the number of times they can be re-elected.

The number of members in the House of Representatives is fixed at 435. This number was fixed in the Apportionment Act of 1911 and then tied to the U.S. census in the Reapportionment Act of 1929. Originally within the constitution Native Americans were not counted and African Americans (primarily slaves when the constitution was written) were counted as 3/5 of a person. The constitution was not a perfect document and so individual pieces, like this, had to be amended later. (In this case Ammendment 14 in 1866 readjusted the method for counting for representation, several ammendments to the constitution are specifically working to expand the right to vote and participate in the legal system due to discriminatory practices).

The House of Representatives has the sole Power of Impeachment, the ability to bring charges against a civil officer or government and can do this by a majority vote of the House of Representatives. The House of Representatives does not try the Impeachment, that is outlined in section 3 with respect to the Senate. The division of power within the legislative branch for impeachment proceedings is one of the checks and balances built into the system of government we have inherited.

Section 3: The Senate, the smaller of the two parts of the legislative branch where each state is entitled to two representatives.

Qualifications to be eligible to be elected as a Senator: 30 years of age, a citizen of the United States for nine years and an inhabitant of the state where they are elected.  Senators serve for a six year term (1/3 of the senate is up for re-election at each even number year and do not have a limit on the number of times they can be re-elected).

Since there are two senators for each state the senate has 100 members. The Vice President of the United States serves as the President of the Senate but has no vote except in the case of a tie.

If articles of impeachment are brought from the House of Representative the Senate will try the impeachment proceedings. If the President is tried then the Chief Justice of the United States will preside and it takes 2/3 of the Senate to vote in favor of conviction for the impeached individual to be convicted. Andrew Jackson and Bill Clinton were both impeached but were acquitted in the Senate and therefore had no action taken against them. Richard Nixon technically was never impeached because he resigned before the House could vote on impeachment. The maximum penalty that impeachment proceedings can lead to is removal from office and disqualification for hold any high office in the United States. Impeachment does not remove the possibility of civil or legal proceedings after impeachment, but except in rare cases legal proceedings can’t be brought against a person in and Office of Honor (Representative, Senator, Judge, President, etc. see for example Section 6 below).

Section 4:  Refers to the election of Senators and Representatives which is primarily left to the states to determine the time, place and manner of the elections and it requires the congress to assemble at least once a year. In the seventeenth amendment the treatment of senators and representatives is fixed to occur in the same manner (now a part of our national elections). The Twentieth amendment will fix the time of initial assembly of the congress for the year as January 3rd at noon.

Section 5: Sets the quorum for each house at a majority of its membership and allows for the houses to compel the attendance of absent members. Each house determines its own rules of meeting, can punish members who act disorderly and even expel a member with a 2/3 vote (censure and lesser punishments require only a majority vote). Each house is required to keep a journal of its proceedings that will be published, but may exempt parts that require secrecy. It also requires both houses to not break for longer than three days while congress is in session (so that one house doesn’t by inaction delay the action of the other house).

Section 6: Requires that Senators and Representatives are compensated for their services. Since 2009 the basic salary for a Senator or Representative has been $174,000. It also exempts Senators and Representatives from arrest except in cases of Treason, Felony and Breach of Peace while attending at session of their house, returning to or from their respective house, and they may not be arrested for any speech or debate in those houses. This is also an important concept within the balances of power because it prevents the Executive branch or state or federal authorities from threatening members of the legislative branch with imprisonment for dissenting. Senators and Representatives to preserve the separation of powers cannot at the same time as they serve in the House or Senate assume a role within the executive or judicial branch.

The first six articles provide the foundation for the senators and representatives to do the primary work they are appointed for: the process of making laws and raising and appropriating funds for the functioning of the republic. The process of creating laws, the responsibilities and limits of the legislative authority and the limiting of the authority of the states closes out this article but these topics are detailed enough that they will constitute their own post in this series.