Constitutional powers of the president
- [Sal] This is Sal, here, I'm here with Jeffrey Rosen, head of the National Constitution Center and we're gonna talk about Article Two of the United States Constitution. So, Jeffrey, what does the Article Two, what does Article Two deal with? - [Jeffrey] It deals with the executive power, the powers of presidency and it lays them out and it starts by saying the executive power shall be vested in a President of the United States of America. - [Sal] And today that seems somewhat commonsense, the the executive power is invested in the President of the United States of America. Why did they, what's special about that? - [Jeffrey] Well, when the Constitution was drafted, it wasn't obvious we'd have a single executive under the Articles of Confederation, all the state governors, some of them had plural executives. Alexander Hamilton at the Constitutional Convention was proposing a kind of monarchy, a President for Life, so the idea of setting out limited powers for the presidency and specifying what they were, creating a President that was energetic enough to achieve common purposes but restrained enough not to be a tyrant was a huge achievement for the Constitution. - [Sal] That under the Articles of Confederation there wasn't a proper executive branch, it was really the President presided, so to speak, over Congress. - [Jeffrey] That's right and each, you needed unanimous consent to get anything done, which is why the Confederate Congress couldn't raise money to support the war efforts and couldn't raise taxes. So the framers came to Philadelphia to create an energetic executive but one that was also restrained and that's why the vesting power is so important. It basically says that the, all executive power is vested in the President but that power is not unlimited. Now, people have disagreed about how much power the vesting power grants. Theodore Roosevelt had this stewardship theory that the President can do anything that's not forbidden by the Constitution and Article Two. William Howard Taft, who came after Roosevelt, had the opposite theory, a kind of judicial theory of the President. He said the President can only do what isn't forbidden. So the question of whether Article Two is the exclusive series of presidential powers or whether there are other implicit powers is a debate that continues to this day. - [Sal] This will be fascinating. We'll go into much more depth in future videos. And just going through the rest of Section One, it looks like there's a lot of the mechanics of what does it mean to have a term of office. What the, how you become President. Is that essentially Section One? You see this first part, he shall hold his office during the term of four years and together with the Vice President, chose for the same term, be elected as follows. And then they kind of go into the electoral college system. - [Jeffrey] Exactly, and then there are a couple other requirements. No person except a natural born citizen can be President and we know that term was subject to some debate during the recent presidential election. And then there's the provision that says that Presidents have to 35 years old, it's the most explicit part of the Constitution and the point was to prevent aristocratic scions without a lot of experience from taking office. The framers were really concerned about having new monarchies and they wanted to make sure that Presidents were seasoned enough so that's why you can't be President unless you're 35. - [Sal] Fascinating. And as we go further, and I've copied this text from your website, from the National Constitution Center and why did you all highlight some of this text of Article Two in this yellow-orange color? - [Jeffrey] Well, we're really thrilled by this website, we're excited to be doing a series of videos with you, Sal, and it's the interactive Constitution, folks can find it at constitutioncenter.org. These are the main clauses where we commission the top liberal and conservative scholars to write about what they agreed and disagreed about these clauses. So in Section One of Article Two, the main clause is the vesting clause and that's the one to focus on. The other stuff, as you said, is basically just requirements of what you have to be in order to be President. And then we highlighted other important provisions in Sections Two, Three, and Four. - [Sal] Yep and in particular this section on the electoral college system, this was superseded, I saw, I learned from your website, by the 12th Amendment. Is that because of what happened with Aaron Burr and Thomas Jefferson? - [Jeffrey] Yes, we know that from the musical Hamilton, the election of 1800 did not end well. There was actually a tie in the House and so it went into the electoral college and Aaron, rather a tie in the electoral college, it went to the House and Alexander Hamilton cast his support for Jefferson over Burr and Burr was so furious about that that he challenged Hamilton to the duel that ultimately killed him. But the peculiarity of having the original system where the first place winner in the electoral college became President and the second place winner became Vice President was so unwieldy that provision of the Constitution was amended and now, as we know, Presidents and vice Presidents run on a single ticket. - [Sal] Yup, yup. And the rest of Section One, it kind of finishes off with, in the case of the removal of the President, his death, resignation, or inability to discharge the powers, it talks about how Congress can provide for who should be President next. - [Jeffrey] Exactly, so, and there are statutes that provide that and Congress has an elaborate rule of succession that it's created as empowered by this part of the Constitution. - [Sal] Yep, and then the last two pieces here, it talks about just the compensation of the President, cannot be increased or diminished during the period for which he shall be elected, maybe to prevent him from giving himself a raise or herself from giving herself a raise and then the last is just the famous oath of office. I do solemnly swear or affirm that I will faithfully execute the office of the President of the United States and will do to the best of my ability, preserve, protect and defend the Constitution of the United States. - [Jeffrey] Sal, you did a great job, although there was an extra do in there and I'm pointing that out because you remember when Chief Justice Roberts administered the oath to President Obama. The fact that he slightly bungled it led Roberts, just to be safe, to re-administer the oath. So, if you want, I can do it again and maybe you'll be President. - [Sal] Sounds good. So then we get into Section Two which is, I think, maybe, gets a little bit more involved. This first paragraph here, it says the President shall be the Commander in Chief of the Army and Navy of the United States and clearly they don't say all of the different forces of the United States because we didn't have an Air Force then. - [Jeffrey] Yes. - [Sal] Or Marines. - [Jeffrey] We sure didn't, but there was a concern about the king controlling the military, so the two main purposes of this Commander in Chief clause are, first, total civilian control of the military and second, the idea that there's just a single leader. So the military is subordinate to civilian and democratically accountable control and unlike the Articles of Confederation, a single person gets to control all of this power so that you can have a coordinated military force. - [Sal] And as simple and as clean as this statement seems to be, in future videos we'll discuss more of how this may or may not be in contention with the power given to Congress in Article One around the right to declare war. - [Jeffrey] Exactly right, we know that the President in Section Two has the power to, Congress has the power to declare war and the question of what the President can do is contested, as you said. We'll talk about it more later but everyone agrees that the President has the ability to repel sudden attacks. At the same time, we haven't had a declared war since World War Two, although there's been lots of military actions and the question of how much independent power the President has to initiate military action is very hotly contested. - [Sal] Yep, and in this next section, this talks about the power of the President to make treaties but with the advice and consent of the Senate and it has to be approved, provided two thirds of the senators present concur. - [Jeffrey] Yes, so the treaty power is shared between the President and the Senate, and generally people think that the Senate can approve or disapprove or maybe attach conditions or reservations to the treaty but the President, alone, has the power to negotiate treaties and that was a precedent set by George Washington. So the treaty power is shared. - [Sal] And there's a lot here cause it also talks about the power of the President to appoint ambassadors, other public ministers, consuls, judges of the Supreme Court, and other officers of the United States. So this is a pretty important sentence there. - [Jeffrey] It sure is. We know now from the controversy over Supreme Court nominations that the so-called advice and consent clause is really important. The advice and consent clause is limited to high officers as opposed to inferior officers. Because the clause says for inferior officers, Congress can vest the appointment in the President alone, in the courts of law or the heads of the department. But for high ranking officials like Supreme Court judges, the President can nominate, the Senate exercises advice and consent and this is a shared power between the President and Congress. - [Sal] Yes, and just to make people familiar with the language, when they're talking about inferior officers, they're not making any judgment about those peoples capability, they're more talking about a more junior, less senior officials in the government. - [Jeffrey] That's an excellent point but although it is a term of art, it's hugely important and people have disputed about who counts as an inferior officer cause a lot hangs on it. If the officer isn't inferior then the President alone doesn't get to appoint them. - [Sal] And then they-- - [Jeffrey] Sorry, and also the question of who the President can remove or fire without Congressional approval is important and may hinge on that question as well. - [Sal] Right, and we'll talk more about it, but it seems like, you need Senate consent for more of the getting people into their jobs but being able to remove them is oftentimes, there's more power there for the President. - [Jeffrey] Absolutely, although again, like most of these powers, they're contested, there are arguments on both sides throughout history and the Supreme Court has both recognized the President's unitary authority to fire executive branch officials but in other cases have said that Congress can impose certain conditions on when the President can fire someone. - [Sal] And somewhere we'll talk about it more but this next sentence, really, is also a really interesting one is that look, when the Senate is in recess, the power shall have the President, the President shall have the power to fill up all vacancies and it seems like it's a temporary filling of positions by granting commissions which shall expire at the end of their next session. - [Jeffrey] That's exactly right and the President's power to make recess appointments was just litigated before the Supreme Court and the Supreme Court unanimously that President Obama could not make certain appointments because Congress wasn't technically out of session, so the question of when the Senate is in recess is very contested and the scope of that power is really important as well. - [Sal] And Section Three, it kind of just says, hey, the President can get Congress together for the State of the Union, can address Congress, can kind of tell Congress what's on his or her mind. - [Jeffrey] Yes. It does say that and the State of the Union power is really important. You know, there's one other clause in Section Two that just might want to flag and that's the take care clause. Sorry, that's in Section Three and I know you're about to get to it. So we start with this ability to give Congress information about the State of the Union, the ability to convene both Houses of Congress in cases of disagreement among them. Then you get to this really core power, that he shall take care of the laws we faithfully executed. - [Sal] And why is that so important that he takes care of the laws? I mean, isn't that what the executive should be doing? - [Jeffrey] Absolutely, but there's a serious question, what happens if the President believe a law is unconstitutional, then is it the kind of law that he has to execute? And President Thomas Jefferson said no, he refused to enforce the Sedition Acts which basically allowed the government to punish people who criticized the President on the grounds that Jefferson believed that it was unconstitutional. More recently, we've had a big controversy over this clause when opponents of President Obama's executive orders about immigration have said that they're a violation of his power to take care that the laws are faithfully executed because, according to opponents, Congress reached a different immigration policy. The Supreme Court ultimately refused to cleanly decide that because of the four four split and it didn't clearly rule on the question of the take care clause and the immigration policy. - [Sal] Fascinating. And just to finish up here and we'll go deeper in future videos as we go into Section Four, this really just talks about how the President or the Vice President and all civil officers of the United States, how they might be removed from office. - [Jeffrey] That's right and we know from not so distant history that the only way the President can be removed from office is by impeachment. A President is impeached by the House and has to be convicted by Senate. Two Presidents have been impeached in American history, Andrew Johnson and Bill Clinton. Neither has been convicted so we've never actually had a President who's been removed from office under the impeachment clause. - [Sal] And a lot of times in popular language, impeachment, to be clear, impeachment is the accusation and then you have to be held at, no you actually did, those crimes happened and that's what you're saying, the Senate is responsible for it. - [Jeffrey] That's right, you can be impeached but acquitted and that's what happened to both Bill Clinton and Andrew Johnson so it's like being indicted but then you go to trial and you're later acquitted, you get to keep your office. - [Sal] Well thanks so much, Jeffrey, this is a super valuable overview. - [Jeffrey] Thanks, it's been great to talk.