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ARTICLE II
EXECUTIVE DEPARTMENT

Section 1. 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:

NATURE AND SCOPE OF PRESIDENTIAL POWER

Creation of the Presidency

Of all the issues confronting the members of the Philadelphia Convention, the nature of the presidency ranks among the most important and the resolution of the question one of the most significant steps taken.1 The immediate source of Article II was the New York constitution in which the governor was elective by the people and thus independent of the legislature, his term was three years and he was indefinitely re–eligible, his decisions except with regard to appointments and vetoes were unencumbered with a council, he was in charge of the militia, he possessed the pardoning power, and he was charged to take care that the laws were faithfully executed.2 But when the Convention assembled and almost to its closing days, there was no assurance that the executive department would not be headed by plural administrators, would not be unalterably tied to the legislature, and would not be devoid of many of the powers normally associated with an executive.

Debate in the Convention proceeded against a background of many things, but most certainly uppermost in the delegates’ minds was the experience of the States and of the national government under the Articles of Confederation. Reacting to the exercise of powers by the royal governors, the framers of the state constitutions had generally created weak executives and strong legislatures, though not in all instances. The Articles of Confederation[p.414]vested all powers in a unicameral congress. Experience had demonstrated that harm was to be feared as much from an unfettered legislature as from an uncurbed executive and that many advantages of a reasonably strong executive could not be conferred on the legislative body.3

Nonetheless, the Virginia Plan, which formed the basis of discussion, offered in somewhat vague language a weak executive. Selection was to be by the legislature, and that body was to determine the major part of executive competency. The executive’s salary was, however, to be fixed and not subject to change by the legislative branch during the term of the executive, and he was ineligible for re–election so that he need not defer overly to the legislature. A council of revision was provided of which the executive was a part with power to negative national and state legislation. The executive power was said to be the power to “execute the national laws” and to “enjoy the Executive rights vested in Congress by the Confederation.” The Plan did not provide for a single or plural executive, leaving that issue open.4

When the executive portion of the Plan was taken up on June 1, James Wilson immediately moved that the executive should consist of a single person.5 In the course of his remarks, Wilson demonstrated his belief in a strong executive, advocating election by the people, which would free the executive of dependence on the national legislature and on the States, proposing indefinite re–eligibility, and preferring an absolute negative though in concurrence with a council of revision.6 The vote on Wilson’s motion was put over until the questions of method of selection, term, mode of removal, and powers to be conferred had been considered; subsequently, the motion carried,7 and the possibility of the development of a strong President was made real.

Only slightly less important was the decision finally arrived at not to provide for an executive council, which would participate not only in the executive’s exercise of the veto power but also in the exercise of all his executive duties, notably appointments and treaty making. Despite strong support for such a council, the Convention ultimately rejected the proposal and adopted language vesting[p.415]in the Senate the power to “advise and consent” with regard to these matters.8

Finally, the designation of the executive as the “President of the United States” was made in a tentative draft reported by the Committee on Detail9 and accepted by the Convention without discussion.10 The same clause had provided that the President’s title was to be “His Excellency,”11 and, while this language was also accepted without discussion,12 it was subsequently omitted by the Committee on Style and Arrangement13 with no statement of the reason and no comment in the Convention.

Executive Power: Theory of the Presidential Office

The most obvious meaning of the language of Article II, Sec. 1, is to confirm that the executive power is vested in a single person, but almost from the beginning it has been contended that the words mean much more than this simple designation of locus. Indeed, contention with regard to this language reflects the much larger debate about the nature of the Presidency. With Justice Jackson, we “may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.”14 At the least, it is no doubt true that the “loose and general expressions” by which the powers and duties of the executive branch are denominated15 place the President in a position in which he, as Professor Woodrow Wilson noted, “has the right, in law and conscience, to be as big a man as he can” and in which “only his capacity will set the limit.”16

[p.416]

Hamilton and Madison.—In Hamilton’s defense of President Washington’s issuance of a neutrality proclamation upon the outbreak of war between France and Great Britain may be found not only the lines but most of the content of the argument that Article II vests significant powers in the President as possessor of executive powers not enumerated in subsequent sections of Article II.17 Said Hamilton: “The second article of the Constitution of the United States, section first, establishes this general proposition, that ‘the Executive Power shall be vested in a President of the United States of America.’ The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that 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; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co–operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties.

“The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, ‘All legislative powers herein granted shall be vested in a congress of the United States.’ In that which grants the executive power, the expressions are, ‘The executive power shall be vested in a President of the United States.’ The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free gov[p.417]ernment. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.”18

Madison’s reply to Hamilton, in five closely reasoned articles,19 was almost exclusively directed to Hamilton’s development of the contention from the quoted language that the conduct of foreign relations was in its nature an executive function and that the powers vested in Congress which bore on this function, such as the power to declare war, did not diminish the discretion of the President in the exercise of his powers. Madison’s principal reliance was on the vesting of the power to declare war in Congress, thus making it a legislative function rather than an executive one, combined with the argument that possession of the exclusive power carried with it the exclusive right to judgment about the obligations to go to war or to stay at peace, negating the power of the President to proclaim the nation’s neutrality. Implicit in the argument was the rejection of the view that the first section of Article II bestowed powers not vested in subsequent sections. “Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.”20 The arguments are today pursued with as great fervor, as great learning, and with two hundred years experience, but the constitutional part of the[p.418]contentiousness still settles upon the reading of the vesting clauses of Articles I, II, and III.21


Footnotes

1 The background and the action of the Convention is comprehensively examined in C. Thach, The Creation of the Presidency 1775–1789 (Baltimore: 1923). A review of the Constitution’s provisions being put into operation is J. Hart, The American Presidency in Action 1789 (New York: 1948).
2 Hamilton observed the similarities and differences between the President and the New York Governor in The Federalist, No. 69 (J. Cooke ed. 1961), 462–470. On the text, see New York Constitution of 1777, Articles XVII–XIX, in 5 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d sess. (Washington: 1909), 2632–2633.
3 C. Thach, The Creation of the Presidency 1775–1789 (Baltimore: 1923), chs. 1–3.
4 The plans offered and the debate is reviewed in C. Thach, The Creation of the Presidency 1775–1789 (Baltimore: 1923), ch. 4. The text of the Virginia Plan may be found in 1 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 21.
5 Id., 65.
6 Id., 65, 66, 68, 69, 70, 71, 73.
7 Id., 93.
8 The last proposal for a council was voted down on September 7. 2 id., 542.
9 Id., 185.
10 Id., 401.
11 Id., 185.
12 Id., 401.
13 Id., 597.
14 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–635 (1952) (concurring opinion).
15 A. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (Petersburg, Va.: 1840), 116.
16 W. Wilson, Constitutional Government in the United States (New York: 1908), 202, 205.
17 32 Writings of George Washington, J. Fitzpatrick ed. (Washington: 1939), 430. See C. Thomas, American Neutrality in 1793: A Study in Cabinet Government (New York: 1931).
18 7 Works of Alexander Hamilton, J. C. Hamilton ed. (New York: 1851), 76, 80–81 (emphasis in original).
19 1 Letters and Other Writings of James Madison (Philadelphia: 1865), 611–654.
20 Id., 621. In the congressional debates on the President’s power to remove executive officeholders, cf. C. Thach, The Creation of the Presidency 1775–1789 (Baltimore: 1923), ch. 6, Madison had urged contentions quite similar to Hamilton’s, finding in the first section of Article II and in the obligation to execute the laws a vesting of executive powers sufficient to contain the power solely on his behalf to remove subordinates. 1 Annals of Congress 496–497. Madison’s language here was to be heavily relied on by Chief Justice Taft on this point in Myers v. United States, 272 U.S. 52, 115–126 (1926), but compare, Corwin, The President’s Removal Power Under the Constitution, in 4 Selected Essays on Constitutional Law (Chicago: 1938), 1467, 1474–1483, 1485–1486.
21 Compare Calabresi & Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 L. Rev.1155 (1992), with Froomkin, The Imperial Presidency’s New Vestments, 88 U. L. Rev.1346 (1994), and responses by Calabresi, Rhodes and Froomkin, in id., 1377, 1406, 1420.
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