We have consistently heard both parties decry the power of the President in recent years. So, other than the fact that I'd argue that the blatant and willful ignorance of the constitution over the past 100 or so years means that both parties now have exactly what they wanted and exactly what they deserve, let's look at what the constitution actually says about the Executive Branch of the government. What powers does the President actually have?
Article II - The Executive Branch Note
Section 1 - The President
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:
This is simple, it just tells us the President serves, along with the Vice President for four years.
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
So the state determines the method by which electors are chosen? Based on modern practice, you could have fooled me. It seems to me that the two parties control the entire process. In other words, I think the states have voluntarily allowed their power to establish electors to be supplanted by the political parties.
(The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.) (This clause in parentheses was superseded by the 12th Amendment.)
This was of course superseded by the 12th Amendment because it was so fraught with problems that came to light so quickly that the founders themselves had to fix this one. I'll discuss the 12th Amendment later, but this section caused virtual chaos with a President and Vice President of different parties and with a tie vote that had to be decided by the House because of pure politics.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
While the states set the method for choosing the electors, it is Congress that determines the time and day that those electors must come together and cast their votes.
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
There has been a lot of focus on this particular section of the constitution recently because of our current President. Many people are satisfied with the "evidence" of citizenship provided by the President and many others are equally convinced that he does not qualify as "natural born" because of his father's British citizenship. The Supreme Court weighed in on this and basically decided not to decide. In other words, they didn't want to overturn the election or even define the term "natural born" for us. I think this is probably the wisest course for the court but very unsatisfying. The fact remains that a person must be 35 years old, been living in the country for at least 14 years and that they must be "natural born". The exception to natural born no longer exists since all persons who would have qualified under the exception are now dead. Is Obama natural born? Decide for yourself, there are plenty of people arguing both ways. Even if he isn't, it is likely that he is not the first President who technically doesn't qualify under this requirement (see Chester A. Arthur).
(In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.) (This clause in parentheses has been modified by the 20th and 25th Amendments.)
The 20th and 25th Amendments were passed to clarify various inadequacies in this article. In fact, they were passed to deal with specific types of succession issues not addressed clearly above. This is how the process is supposed to work. You want to change the power or abilities in the constitution, you amend it. Period.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
You can't raise the President's salary during the 4 year term of his election. No problems here, seems straight forward.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
"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."
The famous oath of office that got messed up in the past inaugural. Both men were nervous and doing it for the first time, so I guess that isn't really surprising.
Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
Section 2 is the meat of Presidential power. He is Commander in Chief of the Army and Navy, so he is the sole authority over them. Congress approves their funding, but the President commands them. It also includes the militias of the states if called into service. Technically, we also have an Air Force. So, we should have technically had a constitutional amendment to add the air force into this article. It just sort of got overlooked, I'm sure. Also, the President can grant reprieves and pardons except in cases of impeachment. Cool, convince a President you don't belong in jail and he can get you out. I may disagree with a President about who he pardons, but I've never questioned his authority to do so. Sure, this can be and has been abused, but it is still within his authority. Now, if he's caught giving a pardon in exchange for a bribe, well, then we come back to him being impeached for bribery.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President makes treaties, but must get a 2/3 vote from the Senate to approve it. This is the real reason why the states elected Senators in the past. States must change their laws to account for treaties signed into law and approved by the Senate. Therefore, in a federalist system, the only way states have of protecting their interests is to make sure they have Senators who will follow the instructions of the states. We don't have this anymore since the Senators are elected by the people now. Finally, the President appoints ambassadors and judges and cabinet members, etc. Interestingly, note that this is with the advice and consent of the Senate. That's why the Senate has to vote on all of these nominations. They can give advice through their votes, but they must also give their consent. Political appointments of the President are not blank checks. However, I don't think this is meant to prevent a qualified candidate from taking office. In addition, I don't think it was meant that we crucify candidates who are qualified for the job but we don't happen to like their politics. I think the Senate is supposed to determine if the person can do the job. If so, they should be approved, if not, they should not be confirmed. This is not to be based on beliefs or personal attributes, but can be based on whether a person has broken the law or if they are qualified and capable of doing the job. I'd say a treasury secretary who can't figure out how to pay his taxes should not have been approved since he obviously isn't qualified.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
This just means that the President can appoint someone to a position without Senate consent for a period of time that ends when the Senate's next session expires (assuming they don't confirm the candidate during that session). This basically means he can hire whomever he wants, but does eventually have to seek the Senate's consent or the person will have to leave office by the time the Senate session ends.
Section 3 - State of the Union, Convening Congress
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The President must give a state of the Union address (this was simply written in the past but has now become the huge television event we have today) and can recommend measures to the Congress. He may call special sessions of Congress or even adjourn them as well. He can receive ambassadors and other public ministers. Notice that this is a sole power of the President, not one given to Congress, thus the issues I have with Congressmen and Senators making trips to foreign countries as official representatives. They don't have this constitutional authority, only the President does. He "takes care" that the laws are faithfully executed so he should be law abiding himself and finally, he commission all the officers of the United States.
Section 4 - Disqualification
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Treason, bribery or high Crimes and Misdemeanors. This pretty much means that a President or any member of the government can be impeached for breaking the law. Any law.
I want to point out that there is a glaring issue that does not appear in the constitution which we've allowed and overlooked for a long time now. Executive orders is not a stated power of the President. Therefore, they should not be allowed. They have grown over the years into a force that circumvents the legislature. Considering they aren't even in the constitution, that is astounding. We want the President to have this power? Okay, fine, pass an amendment! Otherwise, they must be done away with. Presidents have also expanded executive power in regards to war powers. Sure, the President commands the troops, but the constitution says Congress declares war. So, one could argue that troops should never been sent into harms way without a declaration of war. This one has been argued and Congress even tried to reign in Presidential abuses in this area with the war powers act, but we still see Presidents do pretty much whatever they want militarily around the world. Is this in the above stated powers of the President? I'm not sure it is. Nonetheless, there are entire books written on the expansion of Presidential power and you really should read some of those to truly understand this issue, but what is important to take away from this is that the President we have today has far more power to create and circumvent law than any President before him. I don't see how continuing to expand this power is anything close to "take care that the laws are faithfully executed", but instead that it is closer to do what you want as long as nobody has the will or the power to stop you.
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