The Executive Branch
Article II of the United States Constitution vests executive power in the President of the United States. As head of the executive branch, the President is charged with enforcing the laws written by the legislative branch (see “Congress”) and is empowered in various ways to fulfill this duty. The President additionally exercises a check on Congress’s power to write laws through the veto power (see “Congress”; “Separation of Powers”; and Article I, § 7 of the United States Constitution). Article II also creates the office of Vice President of the United States, who is elected alongside the President (for more detail on the presidential election, see “Electoral College” and Amendment XII of the United States Constitution) and is first in the line of succession to the Presidency in the event that the President dies, leaves office, or somehow becomes unable to serve during the term of office. Additionally, the Vice President serves in a legislative capacity as President of the Senate (see “Congress”). Apart from these official duties, Vice Presidents historically have served unofficial roles, which vary from presidency to presidency.
Serving immediately beneath the president is the Cabinet of the United States, which is comprised of the senior-most officers in the executive branch. In addition to their official duties as heads of the various executive branch departments, Cabinet-members advise the President on various matters. The Cabinet-members are as follows:
- Vice President
- Secretary of State
- Secretary of the Treasury
- Secretary of Defense
- Attorney General
- Secretary of the Interior
- Secretary of Agriculture
- Secretary of Commerce
- Secretary of Labor
- Secretary of Health and Human Services
- Secretary of Housing and Urban Development
- Secretary of Transportation
- Secretary of Energy
- Secretary of Education
- Secretary of Veterans Affairs
- Secretary of Homeland Security
In addition, there are several officers that have Cabinet-rank:
- White House Chief of Staff
- Administrator of the Environmental Protection Agency
- Director of the Office of Management & Budget
- United States Trade Representative
- Ambassador of the United States to the United Nations
- Chairman of the Council of Economic Advisers
- Administrator of the Small Business Administration
Unlike the President and Vice President, Cabinet-members are not elected; rather, they are appointed through nomination by the President and subsequent confirmation by the Senate. The rest of the executive branch is made up of the various departments and independent federal agencies, which aid the President in carrying out the duties of the executive branch.
The “Vesting Clause”
“The executive power shall be vested in a President of the United States of America.” Article II, § 1.
The first clause of Article II, appropriately called the “Vesting Clause,” places executive power in the President. Unlike the other two branches of government (see “Congress” and “Judicial Branch”), power in the executive branch is placed in a single individual. In Federalist No. 70, Alexander Hamilton noted the importance of an “energetic Executive” and argued that such energy, in the form of “[d]ecision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.”
“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.” Article II, § 2.
The Constitution confers command of the military onto the President. One reason cited by commentators for placing military power in the hands of a civilian, as opposed to a military officer, is to prevent abuse of military power. To further protect against abuse, there are various checks on the President’s commander-in-chief power. Congress is given the power to declare war (see “Congress”), and the War Powers Resolution restricts the President’s use of the Armed Forces to three situations—(1) a “declaration of war” by Congress, (2) where the President is given “specific statutory authorization” by Congress, or (3) when there is “a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.”
Reprieve and Pardon Power
“[The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Article II, § 2.
Chief Justice John Marshall noted that the executive reprieve and pardon power is rooted in English history and is “an act of grace, proceeding from the power entrusted with the execution of the laws,” serving as “a constituent part of the judicial system that the judge sees only with judicial eyes, and knows nothing respecting any particular case of which he is not informed judicially.”1 Justice Oliver Wendell Holmes further observed that the executive reprieve and pardon, as “a part of the Constitutional scheme,” was “the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”2
“[The president] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators presently concur.” Article II, § 2.
The President’s power to make treaties is conditioned on the approval of a two-thirds supermajority of the Senate. The purpose for this requirement—as opposed to a simple majority as is required for passing domestic laws—is to “ensure that treaties would not be adopted unless most of the country stood to gain,” and because unlike statues, which “could simply be repealed, . . . an unwise treaty remained a binding international commitment, which would not be so easy to unwind.”
The supermajority vote requirement does not apply to two other types of international agreements—sole-executive agreements and congressional-executive agreements. While these agreements are regarded as “treaties” internationally, they are not given the same status as “treaties” within the United States because they have not been made “with the advice and consent of the Senate.” Sole-executive agreements are international agreements made by the President alone, while Congressional-executive agreements are executive international agreements that backed by legislation passed by Congress, which only requires a simple majority of both houses, not a supermajority of the Senate.
“[The president] 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.” Article II, § 2.
Much like the treaty-making power, the President’s power to appoint various public officers within and without the executive branch is contingent upon the “advice and consent of the Senate.” Unlike in the treaty-making context, however, only a simple majority vote is required, not a supermajority. Furthermore, for “inferior officers,” no vote is required. “‘[I]nferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”3 They are generally characterized by being “subject to removal by a higher Executive Branch official”, by being “empowered . . . to perform only certain, limited duties”, and by occupying an “office [that] is limited in jurisdiction . . . [and] limited in tenure.”4
Take Care Clause
“[The president] shall take care that the laws be faithfully executed.” Article II, § 3.
Above all, the President, in exercising these executive powers, is still subject to the law. The Supreme Court has observed that “[t]he duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.”5
- 1. United States v. Wilson, 32 U.S. 150, 160−61 (1833).
- 2. Biddle v. Perovich, 274 U.S. 480, 486 (1927).
- 3. United States v. Edmond, 520 U.S. 651, 663 (1997).
- 4. Morrison v. Olson, 487 U.S. 654, 671–72 (1988).
- 5. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (emphasis added) (quoting Myers v. United States, 272 U.S. 52, 177 (Holmes, J. dissenting)).