Article Two of the United States Constitution

"'wikisource|Constitution of the United States of America#Article II|Article Two of the United States Constitution

Article Two of the United States Constitution creates the executive branch of the government, comprising the President and other executive officers.

: President and Vice President

Clause 1: Executive power

:"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:"

Clause one is a "vesting clause," similar to other clauses in Articles One and Three.

The head of the Executive Branch is the President of the United States. The President, along with the Vice President, is elected every four years.

Clause 2: Method of choosing electors

:"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."

The President and Vice President are chosen by Electors chosen as the state legislatures direct. The Constitution does not limit how a state may choose its electors, but in practice, states have chosen electors by popular vote since the 1820s. Each state may choose as many Electors as it has Representatives and Senators representing it in Congress. Under the Twenty-third Amendment, the District of Columbia may also choose as many electors as the state with the lowest amount of electoral votes. No Senators, Representatives or federal officers may become Electors.

Clause 3: Electors

:"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 choose from them by Ballot the Vice-President."

"(Note: This procedure was changed by the Twelfth Amendment in 1804.)"

In modern practice, each state chooses its electors in popular elections. After they are chosen, the electors meet in their respective states to cast ballots for the President and Vice President. Originally, each elector cast two votes for President; at least one of the individuals voted for had to be from a state different from the elector's. The individual with the majority of votes became President, and the runner-up became Vice President. In case of a tie, the House of Representatives could choose one of the tied candidates; if no person received a majority, then the House could again choose one of the five with the greatest number of votes. When the House voted, each state delegation cast one vote, and the vote of a majority of states was necessary to choose a President. If second-place candidates were tied, then the Senate broke the tie. A quorum of two-thirds applied in both Houses: at least one member from each of two-thirds of the states in the House of Representatives, and at least two-thirds of the Senators in the Senate. This procedure was followed in 1801 after the electoral vote produced a tie, and nearly resulted in a deadlock in the House

The Twelfth Amendment introduced a number of important changes to the procedure. Now, Electors do not cast two votes for President; rather, they cast one vote for President and another for Vice President. In case no Presidential candidate receives a majority, the House chooses from among the top three (not five, as was earlier the case). The Amendment also requires the Senate to choose the Vice President from those with the two highest figures if no Vice Presidential candidate receives a majority of electoral votes (rather than only if there's a tie for second for President). It also stipulates that in order to be the Vice President, a person must be qualified to be the President.

Clause 4: Election day

:"The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."

Congress sets a national Election Day. Currently, Electors are chosen on the Tuesday following the first Monday in November, in the year before the President's term is to expire. The Electors cast their votes on the Monday following the second Wednesday in December of that same year. Thereafter, the votes are opened and counted by the Vice President, as President of the Senate, in a joint session of Congress.

Clause 5: Qualifications for office

:"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."

By the time of their inauguration, the President and Vice President must be:
* natural born citizens (or citizens at the time of the Constitution's adoption)
* at least thirty-five years old
* inhabitants for at least fourteen years of the United States.

The Twenty-second Amendment also prevents a President from being elected more than twice. However, it is unclear whether a former two-term President can become Vice President, though modern political thought suggests that a former two-term President cannot. [ [http://www.factcheck.org/askfactcheck/could_former_president_bill_clinton_be_vice.html FactCheck.org: Could former President Bill Clinton be vice president? ] ]

Clause 6: Vacancy and Disability

:"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."

The wording of this clause caused much controversy at the time it was first used. When William Henry Harrison died in office, a debate arose as to whether or not the Vice President actually becomes President, or if he would just inherit the powers, thus becoming an Acting President. Harrison's Vice President, John Tyler, believed that he had the right to become President. However, many Senators argued that he only had the right to assume the powers of the presidency long enough to call for a new election. Because the wording of the clause is so vague, it was impossible for either side to prove their point. Tyler ended up taking the Oath of Office and became President, setting a precedent that would be followed until the ratification of the Twenty-fifth Amendment, which affirmed Tyler's action. Tyler's precedent made it possible for Vice Presidents Millard Fillmore, Andrew Johnson, Chester Arthur, Theodore Roosevelt, Calvin Coolidge, Harry Truman, and Lyndon B. Johnson to ascend to the presidency. Tyler's precedent established that if the President's office becomes vacant due to death, resignation or disqualification, the Vice President becomes President. The Congress may provide for a line of succession beyond the Vice President. The Presidential Succession Act establishes the order as: the Speaker of the House of Representatives, the President "pro tempore" of the Senate and then the fifteen Cabinet Secretaries in order of that Department's establishment.

The Twenty-fifth Amendment explicitly states that when the Presidency is vacant, then the Vice President becomes President. This provision applied at the time Gerald Ford succeeded to the Presidency. In case of a Vice Presidential vacancy, the Amendment permits the President to appoint, with the approval of both Houses of Congress a new Vice President. Furthermore, the Amendment provides that when the Vice President and Cabinet declare the President unable to discharge his duties, the Vice President becomes Acting President. The Amendment permits the President to take control back unless two-thirds of both Houses vote to sustain the findings of the Vice President and Cabinet.

Clause 7: Salary

:"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.

The President's salary, currently $400,000 a year, must remain constant throughout the President's term. The President may not receive other compensation from either the federal or any state government.

Clause 8: Oath or Affirmation

:"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."

According to the Joint Congressional Committee on Presidential Inaugurations, George Washington added the words "So help me God" during his first inaugural, [cite web | last = | first = | authorlink = | coauthors = | year = | url = http://inaugural.senate.gov/history/factsandfirsts/| title = Joint Congressional Committee on Presidential Inaugurations| format = | work = | publisher = | accessdate = 2006-11-10] though this has been disputed. [cite web | last = Goldstein| first = Matthew| authorlink = | coauthors = | year = | url = http://www.wash.org/wlmay06_3_1.html| title = "Myths of the Oath of Office"| format = | work = | publisher = | accessdate = 2006-11-10] [cite web | last = | first = | authorlink = | coauthors = | year = | url = http://www.nonbeliever.org/commentary/inaugural_shmG.html| title = "So help me God in Presidential Oaths"| format = | work = | publisher = | accessdate = 2006-11-10] There are no contemporaneous sources for this fact, and no eyewitness sources to Washington's first inaugural mention the phrase at all--including those that transcribed what he said for his oath.

Also, the President-elect's name is typically added after the "I", for example, "I, George Washington, do...." Normally, the Chief Justice of the United States administers the oath. It is sometimes asserted that the oath bestows upon the President the power to do whatever is necessary to "preserve, protect and defend the Constitution." Andrew Jackson, while vetoing an Act for the renewal of the charter of the national bank, implied that the President could refuse to execute statutes that he felt were unconstitutional. In suspending the privilege of the writ of habeas corpus, President Abraham Lincoln claimed that he acted in accordance with the oath. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Chief Justice Roger B. Taney) in "Ex Parte Merryman", 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. Finally, Andrew Johnson's counsel referred to the theory during his impeachment trial. Otherwise, few have seriously asserted that the oath augments the President's powers.

The Vice President also has an oath of office, but it is not mandated by the Constitution and is prescribed by statute. Currently, the Vice Presidential oath is the same as that for Members of Congress.

: Presidential Powers

Clause 1: Command of military; Opinions of cabinet secretaries; Pardons

:"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."

The President is the military's commander-in-chief; however Article One gives Congress and not the President the authority to declare war. Presidents have often deployed troops with Congressional authorization, but without an explicit declaration of war. (Since WW II, every major military action has been technically a U.S. military operation or a U.N. "police action", which are deemed legally legitimate because of decisions such as the Gulf of Tonkin Resolution, Authorization for Use of Force by Congress, and various U.N. Resolutions. This is also true in the case of the Korean War, which was only retroactively deemed a war -- 50 years to the day, after the fact -- by a ceremonial Act of Congress.)

The President may require the "principal officer" of any executive department to tender his advice in writing. Thus, implicitly, the Constitution creates a Cabinet that includes the principal officers of the various departments.

The President, furthermore, may grant pardon or reprieves, except in cases of impeachment. Originally, the pardon could be rejected by the convict. In "Biddle v. Perovich", however, the Supreme Court reversed the doctrine, ruling that "a pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."

Clause 2: Advice and Consent Clause

The President may exercise several powers with the advice and consent of the Senate.

:"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."

Treaties

"If two-thirds of Senators concur, the President may ratify treaties".

In Article II however, the Constitution is not very explicit about the termination of treaties. The first abrogation of a treaty occurred in 1798, when Congress passed a law terminating a 1788 treaty with France. In the nineteenth century, several Presidents terminated treaties after Congress passed resolutions requesting the same. In 1854, however, President Franklin Pierce terminated a treaty with Denmark with the consent of the Senate alone. A Senate committee ruled that it was correct procedure for the President to terminate treaties after being authorized by the Senate alone, and not the entire Congress. President Pierce's successors, however, returned to the former procedure of obtaining authorization from both Houses. Some Presidents have claimed to themselves the exclusive power of terminating treaties. Abraham Lincoln, for instance, terminated a treaty without prior Congressional authorization, but Congress retroactively approved his decision at a later point. The first unambiguous case of a President terminating a treaty without authorization, granted prior to or after the termination, occurred when Jimmy Carter terminated a treaty with the Republic of China ("Goldwater v. Carter"). For the first time, judicial determination was sought, but the effort proved futile: the Supreme Court could not find a majority agreeing on any particular principle, and therefore instructed the trial court to dismiss the case.

Appointments

"The President may also appoint judges, ambassadors, consuls, ministers and other officers with the advice and consent of the Senate. By law, however, Congress may allow the President, heads of executive departments, or the courts to appoint inferior officials."

The Senate has a long-standing practice of permitting motions to reconsider previous decisions. In 1931, the Senate granted advice and consent to the President on the appointment of a member of the Federal Power Commission. The officer in question was sworn in, but the Senate, under the guise of a motion to reconsider, rescinded the advice and consent. In the writ of quo warranto proceedings that followed, the Supreme Court ruled that the Senate was not permitted to thus rescind advice and consent after the officer had been installed.

After the Senate grants advice and consent, however, the President is under no compulsion to commission the officer. It has not settled in the courts if the President has the prerogative to withhold a commission after having signed it. This issue played a large part in the famous court case Marbury v. Madison

The President also has the power to remove individuals from office. Congress has often sought to limit the President's power; during the Reconstruction Era, Congress passed the Tenure of Office Act, purportedly preventing Andrew Johnson from removing, without the advice and consent of the Senate, anyone appointed with the advice and consent of the Senate. President Johnson ignored the Act, and was later impeached and acquitted. The constitutionality of the Act was not immediately settled. In "Myers v. United States" (1926), however, the Supreme Court held that Congress could not thus limit the President's power to remove executive officers. Congress, however, may remove an officer "who occupies no place in the executive department and who exercises no part of the executive power." On the basis of this principle, the Supreme Court permitted Congress to remove officers of the Federal Trade Commission, which was adjudged to be an "administrative body [that] cannot in any proper sense be characterized as an arm or eye of the executive." But if Congress by statute retains for itself the power to remove an officer, it may not clothe him with executive powers, for if it does so the individual in question becomes a part of the executive branch removable at the whim of the President.

Clause 3: Recess appointments

:"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."

During recesses of the Senate, the President may appoint officers, but their commissions expire at the conclusion of the Senate's next session. For example, see George W. Bush's 2005 appointment of John Bolton as U.N. Ambassador.

: Presidential responsibilities

* "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."

Clause 1: State of the Union

The President must make regular addresses on the "State of the Union" to Congress. Originally, Presidents personally delivered annual addresses to Congress. Thomas Jefferson, who felt that the procedure resembled the Speech from the Throne delivered by British monarchs, chose instead to send written messages to Congress for reading by clerks. Jefferson's procedure was followed by future Presidents until Woodrow Wilson reverted to the former procedure of personally addressing Congress, which has continued to this day.

Clause 2: Calling Congress into extraordinary session; adjourning them

The President may call extraordinary sessions of one or both Houses of Congress. If the two Houses cannot agree on a date for adjournment, the President may adjourn both Houses to such a time as he or she thinks fit. The last time this power was exercised was in 1948, when President Harry Truman called a special session of Congress. That was the twenty-seventh time in American history when a president convened such a session. [ [http://www.c-span.org/questions/weekly67.asp C-Span’s Capitol Questions] (2000-05-03).]

Clause 3: Receiving foreign representatives

The President receives all foreign Ambassadors. This clause of the Constitution, among others, has been interpreted to imply that the President has broad power over all matters of foreign policy. ["United States v. Curtiss-Wright Export Corp.", 299 U.S. 304 (1936), characterized the President as the "sole organ of the nation in its external relations," an interpretation [http://www.fas.org/sgp/eprint/fisher.pdf criticized] by Louis Fisher of the Library of Congress.]

Clause 4: Caring for the faithful execution of the law

The President must "take care that the laws be faithfully executed." Some Presidents have claimed the authority under this provision to impound money appropriated by Congress. President Jefferson, for example, delayed the expenditure of money appropriated for the purchase of gunboats for over a year. President Franklin D. Roosevelt and his successors sometimes refused outright to expend appropriated money. The Supreme Court, however, has held impoundments without Congressional authorization unconstitutional.

It has also been asserted that the President's responsibility in the "faithful" execution of the laws entitles him to suspend the privilege of the writ of habeas corpus. Article One provides that the privilege may not be suspended save during times of rebellion or invasion, but it does not specify who may suspend the privilege. Congress, the Supreme Court has ruled, may suspend the privilege if it deems it necessary. During the Civil War, President Abraham Lincoln suspended the privilege, but, due to the vehement opposition he faced, obtained congressional authorization for the same.Fact|date=February 2008 Since then, the privilege of the writ has only been suspended upon the express authorization of Congress.

In "Mississippi v. Johnson" (1867), the Supreme Court ruled that the judiciary may not restrain the President in the execution of laws. In the case, the Supreme Court refused to entertain a request for an injunction preventing President Andrew Johnson from executing the Reconstruction Acts, which were claimed to be unconstitutional. The Court found that "the Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance." Thus, the courts cannot bar the passage of a law by Congress, though it may strike down such a law as unconstitutional. A similar construction applies to the executive branch.

Clause 5: Officers' Commission

The President is obligated to commission "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." These include officers in both military and foreign service.

This obligation would have a large impact on the 1803 Case Marbury v. Madison, where outgoing Federalist President John Adams feverishly signed many commissions to the judiciary on his final day in office, hoping to, as incoming Democratic-Republican President Thomas Jefferson put it, " [retire] into the judiciary as a stronghold." However, in his haste, Adams neglected to have all of the commissions delivered. Incoming President Thomas Jefferson was enraged with Adams, and ordered his Secretary of State, James Madison, not to deliver the remaining commissions. William Marbury took the matter to the Supreme Court, where the famous case Marbury v. Madison was decided.

Executive Privilege: A missing clause?

Presidents have claimed the power to withhold information from the courts and Congress, but no clause of the Constitution speaks of such a power, and questions regarding this are contentious and undetermined. The Supreme Court has ruled that presidential communications are protected by a privilege that is "fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution."Fact|date=April 2008 Executive privilege, however, is not absolute. In criminal cases, for example, the defendant can demand the revelation of exculpatory information in the possession of the government, but the government may choose to dismiss the charges instead of revealing the information.

One possible textual justification is that executive privilege is necessary and proper to the power of the President to receive opinions from the Heads of Departments, per Article II, section 2, cl. 1.

: Impeachment

:"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."

The Constitution also allows for involuntary removal from office. The President, Vice-President, Cabinet Secretaries, and other executive officers, as well as judges, may be impeached by the House of Representatives and tried in the Senate. If any officer is convicted after being impeached, he or she is immediately removed from office. Along with removal from office, the Senate may choose to bar the removed official from holding any federal office in the future. [An example of this is Alcee Hastings who was removed from a federal judgeship, but was not barred from serving in another federal office. He was later elected to, and currently serves in, the House of Representatives.] No other punishments may be inflicted pursuant to the impeachment proceeding, but the convicted party remains liable to trial and punishment in the courts for civil and criminal charges. ["Cf. Ritter v. United States", 84 Ct. Cl. 293, 300 (Ct. Cl. 1936) ("While the Senate in one sense acts as a court on the trial of an impeachment, it is essentially a political body and in its actions is influenced by the views of its members on the public welfare."); STAFF OF H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT 24 (Comm. Print 1974) ("The purpose of impeachment is not personal punishment; its function is primarily to maintain constitutional government.") (citation omitted), "reprinted in" 3 LEWIS DESCHLER, DESCHLER'S PRECEDENTS OF THE UNITED STATES HOUSE OF REPRESENTATIVES, H.R. DOC. NO. 94‒661 ch. 14, app. at 2269 (1977).]

References

External links

* [http://www.gpoaccess.gov/constitution/browse.html Kilman, Johnny and George Costello (Eds). (2000). "The Constitution of the United States of America: Analysis and Interpretation."]
* [http://www.law.cornell.edu/anncon/html/art2toc_user.html CRS Annotated Constitution: Article 2]
* [http://www.usconstitution.net/consttop_pard.html Mount, Steve. (2003). "Presidential Pardons."]