prev | next
ArtII.1 Overview of Article II, Executive Branch

Article II of the U.S. Constitution establishes the Executive Branch of the federal government. The Executive Vesting Clause, in Section 1, Clause 1, provides that the federal executive power is vested in the President. Section 3 of Article II further requires the President to “take Care that the Laws be faithfully executed.” 1 The executive power thus consists of the authority to enforce laws and to “appoint the agents charged with the duty of such enforcement.” 2 The President also has distinct authority over foreign affairs, and “alone has the power to speak or listen as a representative of the nation.” 3 As a general matter, the Supreme Court has recognized that the Constitution vests the President not only with the authorities expressly delineated therein, but also with certain implied authorities,4 such as the ability to supervise (and generally to remove) executive officials5 and the power to recognize foreign governments.6 At the same time, the Court has said that by granting the President the power of faithfully executing the laws, the Constitution “refutes the idea” that the President was intended “to be a lawmaker.” 7 Nonetheless, the Court has recognized that officials appointed by the President—even those located within the Executive Branch—may exercise regulatory or adjudicative powers that are quasi-legislative or quasi-judicial.8 Broadly, the Court has recognized that Executive Officers exercise authority to enforce and administer the laws, including rulemaking, administrative determinations, and the filing of lawsuits.9

The remaining provisions of Article II’s Section 1 primarily outline the election of the President, including the establishment of the electoral college. Relatedly, Section 1 sets out the qualifications of the President, the oath of office, and compensation. Section 1 also creates succession provisions in the event of a President’s removal or other inability to act, although the relatively sparse language in Clause 6 was later supplemented by the Twenty-Fifth Amendment and the Presidential Succession Act.10

Sections 2 and 3 define specific presidential powers and duties. Section 2, Clause 1 describes exclusive presidential powers: namely, the Commander in Chief authority, the power to require written opinions from the heads of executive departments, and the pardon power. Clause 2 defines the powers that the President shares with Congress, outlining the treaty-making power and the appointment power. Clause 3 expands on appointments by granting the President the power to unilaterally make temporary appointments during Senate recess. Section 3 requires the President to give Congress information on the state of the union. It also authorizes the President to recommend legislative measures and in extraordinary circumstances convene or adjourn Congress. Section 3 further grants the President the power to receive ambassadors and other public ministers. And as previously mentioned, Section 3 contains the Take Care Clause, requiring the President to ensure that the laws are faithfully executed.

Section 4 provides that the President—and all other “civil Officers of the United States” —may be removed from office if impeached and convicted on charges of “Treason, Bribery, or other high Crimes and Misdemeanors.” 11 Article I contains further provisions bearing on impeachment procedures and judgments.12

As discussed elsewhere, Article I also contains some provisions bearing on presidential authority, perhaps most notably the President’s authority to approve or veto legislation.13

U.S. Const. art. II, § 3. back
Springer v. Government of Philippine Islands, 277 U.S. 189, 202 (1928). back
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). back
See generally ArtII.S1.C1.1 Overview of Executive Vesting Clause. back
Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 22 (U.S. June 29, 2020). back
Zivotofsky v. Kerry, 576 US. 1, 17 (2015). Cf., e.g., United States ex rel. Knauff v. Snaughnessy, 338 U.S. 537, 543 (1950) (stating that the right to exclude aliens “is inherent in the executive power to control the foreign affairs of the nation,” and when Congress legislates in this area, it “is implementing an inherent executive power” ). back
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). back
See Buckley v. Valeo, 424 U.S. 1, 132–33 (1976). back
See id. at 138–41. back
U.S. Const. amend. XXV; 3 U.S.C. § 19. back
U.S. Const. art. II, § 4. back
Id. art. I, § 2, cl. 5; id. art. I, § 3, cls. 6–7. back
See ArtI.S7.C2.1 Overview of Presidential Approval or Veto of Bills; ArtI.S7.C3.1 Presentation of Senate or House Resolutions. back