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.

Section 1: President and Vice President

Clause 1: Vesting and term

Section One provides that the executive power is vested in the President who may be chosen for a four-year term.

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 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. Each state legislature may choose as many Electors as Representatives and Senators represented it in Congress. (Under the Twenty-third Amendment, the District of Columbia may also choose Electors.) No Senators, Representatives or federal officers may become Electors.

Clause 3: Electoral college voting

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 chuse from them by Ballot the Vice-President.

(Note: This entire clause was replaced (albeit implicitly) by the Twelfth Amendment in 1804.)

After they are appointed (in modern practice, by popular election), the electors meet in their respective states to cast ballots for the President and Vice President. Originally, the Electors each 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 greatest number of votes (if such a number represented a majority of electors) became President, and the runner-up became Vice President. In case of a tie, the House of Representatives could choose one of the candidates; if no person received a majority, then the House could again choose from amongst 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.

The Twelfth Amendment introduced a number of key 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 amongst the top three (not five, as was earlier the case). The Senate still chooses from those with the two highest figures in case Vice Presidential candidates have equal numbers of electoral votes.

Clause 4: Election day

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

The 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) and
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.

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 or she 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. Tyler's precedent made it possible for Vice Presidents Andrew Johnson, Chester Arthur, Teddy Roosevelt, Calvin Coolidge, Harry Truman, and Lyndon 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; currently, it includes the Speaker of the House of Representatives, the President pro tempore of the Senate and then Cabinet Secretaries.

The Twenty-fifth Amendment explicitly states that when the Presidency is vacant, then the Vice President becomes President. 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 must be constant during his term and he cannot receive other compensation. Presumably, this also applies to the Vice President.

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."

By convention established by George Washington, the President adds the words "so help me God" at the conclusion of the oath. 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 Supreme Court 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 it is prescribed by statute.

Section 2: 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. Article One, however, provides that Congress, not the President, may declare war. Often, the President has deployed troops with Congressional authorization, but in the absence of an explicit declaration of war.

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 pardons or reprieves. Pardons may not be granted 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: Treaties; Senior-level and Judicial nominations

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, he may ratify treaties.

The Constitution is silent, however, on 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. Once the actual commission is made out, the responsible officer (the Secretary of State) is required to deliver it; if he does not, he may be compelled to do so by a writ of mandamus. (See Marbury v. Madison) It has not settled in the courts if President has the prerogative to withhold a commission after having signed it.

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 ^* 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. See, for example, the 2005 appointment of John Bolton as U.N. Ambassador.

Section 3: 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.

added.

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 idea was followed by future Presidents until Woodrow Wilson reverted to the former procedure of personally addressing Congress.

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 thinks fit.

Clause 3: Receiving foreign representatives

The President receives all foreign Ambassadors.

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. 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 commissions all United States officers, including those of the Military and Foreign Service.

The missing clause: Executive Privilege

The question of what information the President may withhold from the courts or Congress is 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." 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.

Section 4: Impeachment

The last section of Article Two allows for involuntary removal from office.

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 President, Vice-President, Cabinet Secretaries, and other executive officers may be impeached by the House of Representatives and tried in the Senate.

"High" crime or misdemeanor

What exactly constitutes a "high" crime or misdemeanor is up to the House of Representatives.

Result

Upon conviction for treason, bribery or other high crimes and misdemeanors, the President, Vice President or civil officer automatically leaves office. Furthermore, the Senate may choose to impose an additional penalty by barring the convict from ever holding an office under the United States.

External links

United States Constitution | Executive branch of the United States government

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