Recapping the executive branch

We have now completed our initial brief annotation of Article II of the Constitution, which establishes the executive branch with the President at its head. In this post, we will recapitulate our understanding of this branch before moving on to the judiciary.

The experience of the Framers with monarchs left them predisposed to avoid anything like a strong executive, and the early post-Revolution state governments carried legislative supremacy to considerable extremes. Governors were little more than figureheads, and in place of courts answerable to a monarch, the  courts were answerable to the legislature. The Framers’ generation seemed to hope that legislatures of sufficient gravity could eliminate the need for an independent executive.

This did not work out particularly well, and the Framers found themselves faced with a dilemma. How could an executive be structured so that it had the necessary  “energy, dispatch, and responsibility” (in the words of James Wilson of Pennsylvania) to see that the laws were executed, while ensuring that the executive did not provide a route for an ambitious man to become a dictator? The Framers had considerable experience with both legislatures and courts of law. It was in their design of the executive that they were most clearly breaking new ground, and we believe this shows in the history of the Presidency.

The Framers shrouded their deliberations at Philadelphia in secrecy, and James Madison’s notes on the Constitutional Convention were not published for fifty years and are necessarily incomplete. However, the Framers likely considered the Roman model of the consulship, long the highest executive office of Rome, which was held by two men at a time who were elected annually by the citizens of Rome. Each consul could veto the actions of the other. The Framers also considered a triumvirate, an executive body of three men, where agreement of any two carried the day. In the end, the Framers concluded that  only a unitary executive, a President, would do. Otherwise, responsibility would be too diffused to be exercised with energy and dispatch. The Founders likely considered the example of the stadtholder of the Dutch Republic, who was essentially an elected monarch. The office had degenerated into a hereditary office, and then, inevitably, reverted to a straightforward monarchy. The Framers nonetheless seem to have taken this as their starting point. The question then was how to structure the election, powers, and term in office of the President to avoid his becoming a monarch or dictator.

We consider the Presidency by examining, first, the duties of the President, and then the powers granted him with which to carry out his duties, together with the checks on that power put in place by the Framers.

The duties of the President

Our starting point is the oath of office (II.1.8):

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 principle duty of the President is to do his utmost to sustain the Constitution of the United States. We see three elements in this: First, to preserve the Constitution; that is, to prevent it from being corroded from within. Second, to protect the Constitution; that is, to prevent it from being destroyed from without. Third, to defend the Constitution; that is, to be its strong advocate. We do not suppose that this is precisely what the Framers were thinking, nor can we find any commentary that treats “preserve, protect, and defend” as anything but a single duty. It may be that the use of three close synonyms was merely for emphasis. We will nonetheless break these out as three distinct, if closely related, duties.

Article II, Section 3, lays out more specific duties.

• It is his duty to keep Congress informed regarding the condition of the nation.
• It is his duty to recommend legislative measures to Congress.
• It is his duty to act as head of state by receiving foreign emissaries (ambassadors and ministers).
• It is his duty to see that the laws of the Republic are faithfully executed.
• It is his duty to deliver commissions to all officers of the United States.

Since the President is sworn to preserve, protect, and defend the Constitution generally, and these duties are outlined in the Constitution, he may be construed to have sworn to carry out these specific duties to the best of his ability as well.

We find it striking how different this is from the British Coronation Oath, as last sworn by Elizabeth II in 1953:

Archbishop: Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?

Queen: I solemnly promise so to do.

Archbishop: Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgements?

Queen: I will.

Archbishop: Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?

Queen: All this I promise to do.

Then the Queen arising out of her Chair, supported as before, the Sword of State being carried before her, shall go to the Altar, and make her solemn Oath in the sight of all the people to observe the premisses: laying her right hand upon the Holy Gospel in the great Bible (which was before carried in the procession and is now brought from the Altar by the Arch-bishop, and tendered to her as she kneels upon the steps), and saying these words:

The things which I have here before promised, I will perform and keep. So help me God.

There are two elements here. The second element is with respect to the established Church of England, which is utterly foreign to our constitutional law and need not be considered further here. But the first element is to “govern … according to … laws and customs.” British constitutional law is customary; there is no written constitution. Nevertheless, the Crown is sworn to govern according to this customary constitutional order. That the Crown is little more than a figurehead in the modern Commonwealth is cheerfully acknowledged by us.

The powers of the President

The legislative veto

The powers granted to the President to permit him to carry out his duties begin with the veto power, defined in Article I, Section 7, Clause 2. The President has a veto power over all legislation passed by Congress, which must be exercised within ten days of the legislation being delivered to him for his signature. If he signs, indicating his assent, the legislation becomes binding law. If he returns the legislation to Congress unsigned, with his objections, it does not become a law. There is a check on this power, outlined in Clause 3: If Congress votes again on the legislation, and passes it by two-thirds majority in both Houses, the legislation becomes law without the President’s assent.

Historically, three rationales have been offered for the veto power.

In their deliberations, the Framers considered the idea of a Council of Revision, consisting of the President and the Supreme Court, which would have power to reject ill-considered legislation. The Framers evidently considered the enactment of bad legislation a greater threat to liberty than the failure to enact good legislation. Thus they placed numerous barriers in the way of enacting any law. The requirement that both Houses pass a given act is in this spirit, as is the traditional filibuster in the Senate, though the latter is part of the Senate rules of order rather than mandated by the Constitution, as the former is. The Council of Revision was to be a final barrier to the enactment of ill-considered law. Ultimately, the Framers decided that the Supreme Court should be as apolitical as possible, and its inclusion in the Council of Revision was dropped in favor of the President alone having power to reject legislation. To avoid tyranny through refusal to assent to needful laws (one of the complaints against George III in the Declaration of Independence), Congress was given power to override a veto if it could muster a significant supermajority in favor of a law.

However, Washington vetoed just two bills, and in one case his reason was that he questioned its constitutionality. The other veto was on the advice of his Secretary of War. The next two Presidents vetoed no bills at all. Madison pocket vetoed two bills and thus did not explain his objections; on the other five he vetoed, most were for violations of the Establishment Clause. Thereafter an increasing number of vetoes were of such things as appropriations to improve harbors or waterways, for which no Constitutional objection was offered. Nowadays we largely accept that vetoes are mostly over policy disagreements.

The third rationale for the veto (beyond blocking ill-considered or unconstitutional laws) was to protect the prerogatives of the President. This was first a serious issue with the Tenure in Office Act under Andrew Johnson, which infringed on his power to dismiss officers of the Executive Branch without the consent of the Senate. Johnson’s veto was overridden, and he dismissed Stanton anyway, expecting to have the Supreme Court hear the case and possibly strike down the Act. Instead, Johnson was impeached, escaping conviction by a single vote. It is the opinion of most legal scholars that such an Act would be ruled unconstitutional by the Supreme Court in our time.

The veto exercised because a bill seems unconstitutional falls under the President’s duty to preserve and defend the Constitution. The other two are less clear, but in the case of an ill-considered bill, the Presidential veto helps to avoid putting the President in the position of being duty-bound to faithfully execute a law he considers bad policy. Of course, if  his veto is overridden, that remains his sworn duty. A President who vetoes a bill that he believe infringes on his prerogatives is arguably seeking to preserve and defend the checks and balances of the Constitution.

Commander-in-Chief

Article II, Section 1, Clause 1 make the President the commander-in-chief of the armed forces of the United States, include the state militia when called into federal service. This obviously falls under the duty to protect the Constitution (from outside threat.) However, this is a dangerous power if the military feels sufficient loyalty to the President to stage an autocoup on his behalf. Checks on his power include the power of the Senate to reject the President’s nomination for senior military officers under Clause 2, allowing the Senate to thwart an attempt by the President to build a cult of personality in the military; the control of the budget by Congress under Article I, which can be used to restrict funding of the military; and the power of Congress to enact the regulations governing the armed forces.

Of particular importance is the fact that the Congress, and not the President, has the power to declare war. It is no surprise that the war powers have been a serious subject of contention between Congress and the President and a lively area of constitutional law. On the one hand, the President must be able to respond vigorously and promptly to sudden attack. On the other hand, the President must not be allowed to stir up a war as a means of augmenting his own powers. In a dangerous world, in which we believe the U.S., by virtue of its economic and military power, is obligated to play a major role policing the international order, the command of the military by the President will continue to be fraught.

Another, informal, check on the President as Commander-in-Chief is the culture of the military, who swear their allegiance to the Constitution rather than to the President, and who are trained that it is their duty to disobey an illegal order. A military officer who supported an autocoup would be violating both his training and his oath.

Answerability

Article II, Section 1, Clause 1 also specifies that all department heads in the executive branch report to the President. This has two important aspects. First, there is the explicit aspect, which is that department heads may be required to report in writing. In other words, the President can compel his department heads to go on record, with the record held by the President. The second aspect comes from what is not in the Constitution: The department heads do not report to Congress.

This is the legal basis for executive privilege. The theoretical and practical basis is that the President must be able to get candid advice from his department heads, and candor requires that their communications with the President be privileged, just as those between attorney and client are privileged. This deliberative privilege has significant limitations, likely including an equivalent of the crime-fraud exception to the attorney-client privilege. In other words, a department head who witnesses the President instigating an illegal act would not be privileged from testifying about it in court or (in certain circumstances) before Congress.

Executive clemency

Article II, Section 1, Clause 1 also grants the president a blanket power of pardon and reprieve, including commutation of sentence and amnesty, for offenses against the United States. This does not include any power to pardon state offenses or to reverse the effects of a Senate conviction. It is also generally held by legal scholars that the President cannot pardon himself, though this is not explicit in the Constitution.

How does the pardon power “preserve, protect, and defend the Constitution” or square with “seeing that the laws are faithfully executed”? In some cases, of course, pardons have been granted when something about the original trial was fishy and the President wishes to avoid a lengthy legal process to retry the case. Pardoning a convict when evidence comes to light that his constitutional rights were substantially violated tends to preserve the Constitution. There are also rare cases where a person is technically guilty of violating the law, but the specifics of the case are unusual enough that justice was not served by the conviction. For example, if a jury actually convicted someone for reckless driving because he was racing to a hospital with someone bleeding to death on his back seat, a pardon would be a powerful statement of justice. But most pardons are for persons whose guilt is not in serious question and who have already served their sentence, and their chief practical effect is to restore civil rights. Here the benefit to the constitutional order is to inject an element of grace and mercy into the process of law, which actually helps sustain the legitimacy of the law.

Promulgating treaties

The President is given power to negotiate treaties in Article II, Section 1, Clause 2. A carefully negotiated treaty should increase the security of the United States, thereby protecting the Constitution from external threats. Treaties also often give the President the opportunity to be an advocate of constitutional principles in the public arena. The chief check on this awesome power to contractually bind the U.S. is the requirement that the Senate ratify all such treaties by 2/3 majority.

Appointments

The President appoints all senior diplomatic, executive, and judicial officers of the United States. The Senate must confirm all such appointments, though Congress may vote to permit the President, the courts, or department heads to appoint certain inferior officers without reference to the Senate. At present, all commissioned military officers require Senate approval, but those below general or flag rank are customarily approved by a blanket motion.

Temporary recess appointments (Clause 3) are also authorized, though they must be confirmed as soon as the Senate is back from recess.

Sessions of Congress

The President can call one or both houses of Congress into session “on extraordinary Occasions”; this presumably means something on the order of a surprise military attack. If the House and Senate cannot agree on adjournment, the President can resolve the dispute (Clause 3).

General checks on the President

A limited term in office

The President was restricted to a term is 4 years in office in Article II, Section 1, Clause 1. Though hardly extraordinary (members of Congress are also elected for fixed terms, though not federal judges) it must be considered an important check on the President. The 22nd Amendment further strengthened this by restricting a President to two terms, ensuring that “President for life” would not be a concept in American politics.

Impeachment

The ultimate check on a President with whom Congress is deeply unhappy is impeachment and removal from office. Impeachment requires a bare majority of the House, but conviction requires two-thirds of the Senate, and it is no surprise that there have been four impeachments and no convictions. We may adjust this for the resignation of Richard Nixon, who if he had not resigned would almost certainly have been impeached and removed, changing the record to five impeachments and one conviction.

In our next post, we will consider how well the Presidency has worked out in practice.