Article II of the Constitution

- [Kim] Hi, this is Kim from Khan Academy and today I'm investigating Article Two of the Constitution which establishes the executive branch of government. It's Article Two that establishes the office of president of the United States, tells us who's eligible for that role, how they get elected, and what powers they have. Now today, it seems very natural to us that the executive branch of the US government should be led by a president but at the time of the founding it wasn't at all certain that that would be the case. After all, the Founders had just rebelled against a monarchy where power was placed in the hands of one individual. They'd been so nervous about executive power that the first governmental system of the United States, the Articles of Confederation, didn't have an executive branch at all. So to learn more about Article Two I sought out the help of some experts. Professor Sai Prakash is an expert in the separation of powers, particularly executive powers and teaches constitutional law, foreign relations law, and presidential powers at the University of Virginia School of Law. For more on the debate about what an executive branch should look like, I talked to Professor Michael Gerhardt. He's a leading constitutional scholar whose specialties include civil rights, civil liberties, and separation of powers. So Professor Prakash, why did the framers choose to invest power in a president? Were there any other options for an executive branch? - [Professor Prakash] They thought about creating an executive council, which would have been composed of three or more executives that would have jointly exercised whatever executive power they vested in the executive. And so you might have had a triumvirate like they had in Rome, or an executive council like they had in some states. And they also thought about doing something slightly different, which is to have a single president, but then require the president to go to a separate executive council before he made several important decisions but in the end they decided we like to concentrate executive authority in the hands of one person thinking that that would be better for law execution, better for assigning responsibility, would bring energy to the executive branch and the executive branch wouldn't be riven with dissent and dissension. - [Kim] I asked Professor Gerhardt how long it took the framers to decide on the form the executive branch would take. - [Professor Gerhardt] It was something on which the framers came to an agreement pretty quickly. They came into Philadelphia and almost at the very outset there was a proposal that came forward from Virginia, part of the Virginia Plan, and the Virginia Plan proposed a single executive who would serve for seven years and not be eligible for reelection. The delegates would eventually agree on certain features which are now encapsulated or can be found in Article Two. - [Kim] I think one of the tensions we see in the Constitution and the Bill of Rights is trying to create a structure for government that's strong enough to do what it needs to do, but also one that doesn't have too much power so that it doesn't become a tyranny as the framers had seen in Europe. So were they nervous about having an executive branch in the first place? - [Professor Prakash] That's a great question, Kim. You know, we had a confederation before the Constitution. It was called the Articles of Confederation and in that system we had Congress acting as a plural executive. And Congress and the observers of Congress thought that Congress wasn't really well suited to playing the role of executive, to supervising foreign affairs, and to supervising executive officers both military and civilian. And so by the eve of the Philadelphia Convention where they wrote the Constitution there were quite a few people saying we need to have a separate executive. We need to invigorate it with authority because if we do that we will then have a successful new government under the new Constitution. - [Professor Gerhardt] Alexander Hamilton, for example, wanted an executive who would basically serve for life. He didn't get it. You can imagine that for many delegates an executive who could serve for life would sound an awful lot like a king, and that's exactly what they had just rebelled against. - [Professor Prakash] Other people said if you create a unitary executive, if you create this single executive, chief executive you're gonna have a monarchy. You're gonna have someone who is intent upon seizing powers of various sorts, who's going to want to install maybe a hereditary monarchy somehow and that was the tension between those who wanted to have a stronger executive, a stronger single executive thinking that that would be the best thing for the government and those who thought that a single executive would descend into a monarchy. - [Kim] So I imagine it was pretty tricky for the Framers to think how they could have an executive branch that was powerful enough to get things done, but not so powerful that it took on that tyrannical cast that they were really eager to avoid. So what powers did the president eventually end up having? - [Professor Prakash] You know, the president is made commander in chief of the army and the navy. He has the power to pardon. - [Professor Gerhardt] The president has the authority to nominate people to certain high-ranking offices subject to the advice and consent of the Senate. Among those offices are included Supreme Court justices. The president has the authority to be able to negotiate treaties. - [Professor Prakash] So he's got a host of authorities, and then there's the central question that's disputed, Kim, which is does the first sentence of Article Two, which says the executive power shall be vested in a President of the United States, does that also give the president any authority beyond what's listed in Article Two sections two and three? So for instance, does the Vesting Clause of Article Two give the president authority over law execution? Is he able to direct the execution of federal laws by subordinate executive officers? Does the president have the power to remove executive officers by virtue of the Vesting Clause? And then significantly, does he have foreign affairs authorities by virtue of the Vesting Clause to speak to other nations to direct US ambassadors, etc? And that's a dispute that's been ongoing for 200 years whether the Vesting Clause really grants additional authorities to the president. - [Professor Gerhardt] So all those different powers we now more or less take for granted that are common to US presidents are all set forth, for the most part, expressed in the Constitution. There are a few implicit powers the president will take on over time. - [Kim] As I understand it, the president's powers have grown fairly significantly over time. Do you think the Framers would be surprised by how much power the president has today? - [Professor Gerhardt] Yes, it's grown, I think to be perhaps more powerful than many of the Framers initially thought it might be. There were some authorities, for example, the power to remove people in the executive branch that are not spelled out explicitly in the Constitution. Over time, the presidency would acquire that power and ultimately the Supreme Court of the United States would ratify that, or affirm that authority. That's one big area, removal power, over executive branch officials that gets clarified and sharpened over time. - [Professor Prakash] Over time the president has cited, president and his assistants have cited the Vesting Clause as a source of a great amount of authority and some of those claims you might think are consistent with the Constitution and others you might think are inconsistent. So what are the things that presidents have claimed? They've claimed the authority to direct the execution of federal statutes. I think that's consistent with the original design. They've claimed some limited authority over foreign affairs. I think that, too, is consistent with the original design. They've also claimed authority to exercise certain powers in emergencies, that's more contested and more debatable whether they have some sort of emergency power either temporary or otherwise. - [Professor Gerhardt] When Abraham Lincoln comes into power Congress is not in session and Lincoln's gotta respond in real time to an invasion on federal territory and to try to begin the protection of the United States and he does that initially without Congress being a part of it because he has to move very quickly. - [Professor Prakash] They've also claimed the authority to wage war and that's also contested because of course Congress has the power to declare war and many people believe that that text means that Congress gets to decide whether to wage war. Modern presidents take the position, or often take the position that they can use military force overseas without getting a declaration of war or more precisely, without getting congressional approval for the use of force overseas. So yes, the president's powers have changed over time and that's a source of deep controversy. - [Kim] So what checks can the executive branch use on the legislative or judicial branches of government? - [Professor Prakash] Kim, the executive has a veto. And the veto permits the president to reject legislation sent to his desk by Congress. So under the Constitution, congress has to present all legislation to the president and he can either sign it and thereby make it law, or he can veto it, and if he vetoes it and he sends back his objections to Congress they then have the option of overriding the veto by a two-thirds vote in both chambers. And so the veto gives the president great leverage over Congress 'cause they know that if he vehemently opposes a particular piece of legislation they can only pass it if there are rather sizable supermajorities in both chambers. - [Professor Gerhardt] He has a power to be able to pardon people for federal offenses. So again, that's a unique presidential authority. The presidency, in a sense, is taking more of the limelight away from Congress, which might be making the law, but administering the law is gonna require a lot more time and put the president in the position of also exercising discretion over how to enforce the law. So that becomes another important authority of the presidency, how do you go about enforcing it? What kind of discretion do you have when you do enforce it? - [Professor Prakash] He also has the power to recommend measures to them under the Constitution. That is to say he can suggest that they pass legislation on a particular subject thereby making sort of a vague suggestion, or he can actually present them a bill and say I'd like you to consider this. They don't have to act on the bill, but he has that authority. And you know, he can also tell them about the state of the union, right? That's the State of the Union Clause. So those are the checks he sort of has on Congress and those are significant checks. The members of Congress don't get paid unless the president signs the bill that passes the appropriation for them or they override his veto. So those are significant checks. And then with respect to the judiciary, Kim, there aren't as many checks in the Constitution. The Constitution never says the executive branch has to execute judgements issued by the courts, but that's been our practice, and I think it's an implicit feature of the Constitution that when courts issue judgements the executive will honor them and enforce them. Because that's an implicit feature of the Constitution presidents don't really have much leverage over the courts, right, because the president does get to nominate then and goes get to appoint them and that gives him some sort of say over who becomes a judge, but once they're judges he doesn't have any say over what they decide and he typically, as I said, enforces their judgment. So the check on the judiciary is, who gets into the federal courts, who gets to serve as a federal judge. Once they're judges the president doesn't have the same kind of check that he has on Congress. There's no veto on judicial decisions, for instance. - [Professor Gerhardt] The president can unilaterally or on his own issue what are called executive orders, which are essentially mandates that govern the operations within the executive branch. One president can set the priorities one way, but another president can reshape them a different way. - [Kim] Interesting, 'cause executive orders can do very positive things like Truman's executive order that the armed services be integrated, but they can also do very negative things, for example, interning Japanese Americans during World War Two. - [Professor Gerhardt] That is correct. And so the executive orders oftentimes might reflect a particular president's values, but it can also particular president's priorities. The challenge with an executive order is that it only lasts longer than a particular president's term if other presidents are willing to sign off on them as well. And so for example, you can see how President Trump has decided not to continue certain executive orders that President Obama put into place just as President Obama chose not to extend certain executive orders President George W. Bush put into place. - [Professor Prakash] Lots of rules and laws are not made by Congress in the modern era. They're made by executive and independent agencies and so a lot of the rules that we have to follow about the environment or about labor or about securities, they come from agencies and not directly from Congress. And when the agency is an executive agency, the president not only appoints the people that run that agency, the president or his assistants in the White House are often involved in crafting the rules and shaping the rules in various ways. And so if we think the mass of rules and legislation comes from the government, the executive and not the Congress, then the president has a great role in that. - [Kim] So our first president was George Washington. In what ways did Washington set important precedents that are still with us today? - [Professor Gerhardt] There are a lot of people, a lot of scholars who think that things would've been quite different had it not been Washington. And the fact that George Washington would become the first president helped put a lot of people at ease because he was widely viewed as trustworthy and somebody who wouldn't be naturally disposed to become tyrannical. And Washington himself understood from the very outset of his administration that nearly everything he did would create a precedent for other presidents to follow, and so Washington ends up becoming quite influential, not just in helping to define things, but also in reassuring people that this system can get off the ground and the presidency wouldn't necessarily be a tyrannical office and that the president, in fact, could be an effective part of a new government. - [Professor Prakash] If Washington's not there and they can't see an honest man taking over as president, you might very well have had an executive council. You know, they might have been wary of who would be a unitary executive and wanted to have a plural executive in order to make sure that no one person became too powerful, and another way of thinking about this is if you create a new Constitution in the wake of President Nixon, you're gonna have a different Constitution because people are more distrustful of executive authority. If you have a new Constitution after a really honest and noble and successful presidency, people are gonna write an executive article that's more favorable to the president. And the situation for Washington couldn't have been more favorable. They had seen the problems with weak execution under the articles and in the states. They thought that weak executives were a problem. They saw this person who could be a strong executive and be a responsible and wise executive and those two things conspired to create an executive that was one of the most powerful in the world. - [Professor Gerhardt] So Washington is trying to signal, look, we don't want to create tyrants here. We're not kings, we're not presidents for life. We'll serve at most for a couple terms and then we will willingly lay down our authority and let other people follow us. That's actually a critical precedent, but again, every president until Franklin Roosevelt follows and it's one that reflects Washington's special values that the most important office, ultimately, is not the office of the presidency, it's actually the office, so to speak, the position of being a citizen of this country. - [Kim] So we've learned that thanks to the example set by George Washington, the Framers of the Constitution felt confident that they could invest power in a president to have an energetic executive branch. But as Sai Prakash noted, the Framers might be surprised at the way the president's powers have grown over time through executive orders and the use of military force. However, Michael Gerhardt brings up an important point that in the United States the president is first and foremost a citizen, not a ruler. To learn more about Article Two, visit the National Constitution Center's Interactive Constitution and Khan Academy's resources on US government and politics.