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CON‑4.A.1 (EK)

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hi this is Kim from Khan Academy and today I'm investigating article 2 of the Constitution which establishes the executive branch of government it's Article 2 that establishes the office of the 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 2 I sought out the help of some experts professors Tsai 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 Gerhart 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 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 like 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 it would bring energy to the executive branch and you know we the executive branch wouldn't be Riven with dissent and dissension I asked professor Gerhardt how long it took the framers to decide on the form the executive branch would take it was something on which the framers came to an agreement pretty quickly they came in to 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 re-election the delegates would eventually agree on certain features which are now encapsulated or can be found in article two 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 you know the the framers had seen in Europe so were they nervous about having an executive branch in the first place that's a great question Kim you know we had a confederation before the Constitution was called the Articles of Confederation and in that system we had Congress acting as a plural executive and Congress and the it's observers of Congress thought that Congress wasn't really well suited to 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 Alexander Hamilton for example wanted an executive who basically served for life he didn't get it you can imagine that for many delegates a an executive who could serve for life would sound awful lot like a king and that's exactly what they had just rebelled against other people said if you create a unitary executive if you create the 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 you know 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 you know that a single executive would descend into a monarchy 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 you know the presidents made commander-in-chief of the army in the Navy he has the power to pardon the president has the authority to nominate people to certain high-ranking office is 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 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 2 which says the executive power shall be vested in the president United States does that also give the president any authority beyond what's listed in articles article 2 sections 2 & 3 so for instance does the vesting clause of article 2 give the president authority over law execution right 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 best in clause to speak to other nations to direct US ambassadors etc and that's it that's that's a dispute that's been ongoing for 200 years whether the vesting clause really grants additional authorities to the president so all those different powers we now more or less take for granted that are common to u.s. presidents are all set forth for the most part expressing in the Constitution there are few implicit powers the president will take on over time 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 yes it's 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 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 over time the president has cited president and his assistants have cited the vesting clause is 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 and emergencies that's more contested and more debatable whether they have some sort of emergency power either temporary or otherwise so an Abraham Lincoln comes into power Congress is not in session and Lincoln's got to respond in real time to an invasion on federal territory and to try to begin to 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 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 the source of deep controversy so what checks can the executive branch use on the legislative or judicial branches of government Kim the executive has a veto and the veto permits the president to reject legislation sent to his desk by Congress 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 you know the president great leverage over Congress because they know that if he vehemently opposes a particular piece of legislation they can only pass it if there are rather sizable super majorities in both chambers 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 has taken more of the limelight away from Congress which might be making the law but administering the law is going to 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 he also has the power to recommend measures to them under the Constitution that is say you 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 though those are the checks he sort of has on Congress and those are significant checks right the you know 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 isn't as many there aren't as many checks in the Constitution the Constitution never says the executive branch has to execute judgments issued by the courts but that's been our practice and I think it's an implicit feature of the Constitution that when courts issued judgments 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 court the president does get to a point it does get to nominate them and does get to appoint them and that gives him some sort of you know 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 judgments so the check on the judiciary is who who gets who gets into the federal courts who who gets to serve as a federal judge once their 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 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 interesting because 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 in turning Japanese Americans during World War two that is correct and so the executive orders oftentimes might reflect a particular president's values but again 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 for example you can see 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 enterprise in into place lots of rules and laws are not made by congress in the modern era they're made by executive and independent agencies and so you know a lot of the rules that we have to follow about the environment or about labor or about you know 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's often 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 you know if we think the mass of rules and legislation comes from the from the government the executive and not the Congress and the president has a great role in that so our first president was George Washington in what ways did Washington set important precedents that are still with us today there are a lot of people a lot of scholars and things who think that things that have been quite different headed not in Washington and the fact that George Washington would 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 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 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 counsel they might not they might but it might have been wary of who would be a unitary executive and wanted to have plural executive in order to make sure that no one person became too powerful and you know another way of thinking about this is you know if you have a 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 young you know honest and Noble and you know successful presidency people are gonna write an article to an executive article that's more favorable to the president and the situation for Washington couldn't have been more favorable they 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 responsible and why is executive and those two things conspire to create an executive that was one of the most powerful in the world so Washington is trying to signal look we we don't want to create tyrants here we're not kings we're not presidents for life well 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 wrote 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 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 sigh 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 2 visit the National Constitution Center's interactive Constitution and Khan Academy's resources on US government and politics