Article II of the Constitution | US Government and Politics | Khan Academy

Hi, this is Kim from Khan Academy, and today I'm investigating Article 2 of the Constitution, which establishes the executive branch of government. It's Article 2 that establishes the office of the President of the United States, tells us who's eligible for that role, how they get elected, and what powers they have. Now, today it seems very natural to us that the executive branch of the U.S. government should be led by a President, but at the time of the founding, it wasn't at all certain that that would be the case.

After all, the founders had just rebelled against a monarchy, where power was placed in the hands of one individual. They'd been so nervous about executive power that the first governmental system of the United States, the Articles of Confederation, didn't have an executive branch at all. So, to learn more about Article 2, I sought out the help of some experts.

Professor Tsai Prakash is an expert in the separation of powers, particularly executive powers, and teaches constitutional law, foreign relations law, and presidential powers at the University of Virginia School of Law. For more on the debate about what an executive branch should look like, I talked to Professor Michael Gerhart, a leading constitutional scholar whose specialties include civil rights, civil liberties, and separation of powers.

So, Professor Prakash, why did the framers choose to invest power in a President? Were there any other options for an executive branch?

They thought about creating an executive council, which would have been composed of three or more executives that would have jointly exercised whatever executive power they vested in the executive. You might have had a triumvirate like they had in Rome, or an executive council like they had in some states. They also thought about doing something slightly different, which is to have a single President but then require the President to go to a separate executive council before making several important decisions.

But in the end, they decided, "We like to concentrate executive authority in the hands of one person," thinking that that would be better for law execution, better for assigning responsibility; it would bring energy to the executive branch, and you know, the executive branch wouldn't be riven with dissent and dissension.

I asked Professor Gerhart how long it took the framers to decide on the form the executive branch would take.

It was something on which the framers came to an agreement pretty quickly. They came into Philadelphia, and almost at the very outset, there was a proposal that came forward from Virginia, part of the Virginia Plan. The Virginia Plan proposed a single executive who would serve for seven years and not be eligible for reelection. The delegates would eventually agree on certain features, which are now encapsulated or can be found in Article 2.

I think one of the tensions we see in the Constitution and the Bill of Rights is trying to create a structure for government that's strong enough to do what it needs to do, but also one that doesn't have too much power so that it doesn't become a tyranny, as you know, the framers had seen in Europe. So, were they nervous about having an executive branch in the first place?

That's a great question, Kim. You know, we had a confederation before the Constitution that was called the Articles of Confederation, and in that system, we had Congress acting as a plural executive. Congress and its observers thought that Congress wasn't really well suited to play the role of executive, to supervise foreign affairs, and to supervise executive officers, both military and civilian.

By the eve of the Philadelphia Convention where they wrote the Constitution, there were quite a few people saying, "We need to have a separate executive. We need to invigorate it with authority because if we do that, we will then have a successful new government under the new Constitution." Alexander Hamilton, for example, wanted an executive who basically served for life. He didn't get it. You can imagine that for many delegates, an executive who could serve for life would sound an awful lot like a king, and that's exactly what they had just rebelled against.

Other people said if you create a unitary executive, if you create a single chief executive, you're going to have a monarchy; you're going to have someone who is intent upon seizing powers of various sorts, who’s going to want to install maybe a hereditary monarchy somehow. That was the tension between those who wanted a stronger executive, a stronger single executive, thinking that that would be the best thing for the government, and those who thought that a single executive would descend into a monarchy.

So, I imagine it was pretty tricky for the framers to think how they could have an executive branch that was powerful enough to get things done but not so powerful that it took on that tyrannical cast that they were really eager to avoid. So, what powers did the President eventually end up having?

The president is made commander in chief of the Army and the Navy. He has the power to pardon. The president has the authority to nominate people to certain high-ranking offices, subject to the advice and consent of the Senate. Among those offices are included Supreme Court justices. The president has the authority to negotiate treaties, so he's got a host of authorities.

Then, there's the central question that's disputed, Kim, which is: does the first sentence of Article 2, which says, "The executive power shall be vested in the President United States," does that also give the president any authority beyond what's listed in Articles 2, Sections 2 and 3? For instance, does the vesting clause of Article 2 give the president authority over law execution? Right. Is he able to direct the execution of federal laws by subordinate executive officers? Does the president have the power to remove executive officers by virtue of the vesting clause? And then, significantly, does he have foreign affairs authorities by virtue of the vesting clause to speak to other nations, to direct U.S. ambassadors, etc.

And that’s a dispute that's been ongoing for 200 years: whether the vesting clause really grants additional authorities to the president. So, all those different powers we now more or less take for granted that are common to U.S. presidents are all set forth, for the most part, expressing the Constitution. There are a few implicit powers the president will take on over time.

As I understand it, the president's powers have grown fairly significantly over time. Do you think the framers would be surprised by how much power the president has today?

Yes, it's grown. I think to be perhaps more powerful than many of the framers initially thought it might be. There were some authorities, for example, the power to remove people in the executive branch, that are not spelled out explicitly in the Constitution. Over time, the presidency would acquire that power, and ultimately, the Supreme Court of the United States would ratify that or affirm that authority. That's one big area: removal power over executive branch officials gets clarified and sharpened over time.

Over time, the president has cited, and his assistants have cited, the vesting clause as a source of a great amount of authority, and some of those claims you might think are consistent with the Constitution, and others you might think are inconsistent. So, what are the things that presidents have claimed? They've claimed the authority to direct the execution of federal statutes. I think that's consistent with the original design. They've claimed some limited authority over foreign affairs. I think that too is consistent with the original design.

They've also claimed authority to exercise certain powers in emergencies. That's more contested and more debatable: whether they have some sort of emergency power, either temporary or otherwise. When Abraham Lincoln comes into power, Congress is not in session, and Lincoln's got to respond in real time to an invasion on federal territory and to try to begin the protection of the United States. He does that initially without Congress being a part of it because he has to move very quickly.

They've also claimed the authority to wage war, and that's also contested because, of course, Congress has the power to declare war. Many people believe that that text means that Congress gets to decide whether to wage war. Modern presidents often take the position that they can use military force overseas without getting a declaration of war, or more precisely, without getting congressional approval for the use of force overseas.

So yes, the president's powers have changed over time, and that's a source of deep controversy. So, what checks can the executive branch use on the legislative or judicial branches of government?

Kim, the executive has a veto, and the veto permits the president to reject legislation sent to his desk by Congress. Under the Constitution, Congress has to present all legislation to the president, and he can either sign it and thereby make it law, or he can veto it. If he vetoes it and sends back his objections to Congress, they then have the option of overriding the veto by a two-thirds vote in both chambers.

So, the veto gives the president great leverage over Congress because they know that if he vehemently opposes a particular piece of legislation, they can only pass it if there are rather sizable supermajorities in both chambers. He has the power to be able to pardon people for federal offenses. So again, that's a unique presidential authority.

The presidency, in a sense, has taken more of the limelight away from Congress, which might be making the law, but administering the law is going to require a lot more time and put the president in the position of also exercising discretion over how to enforce the law. So that becomes another important authority of the presidency: how do you go about enforcing it? What kind of discretion do you have when you do enforce it?

He also has the power to recommend measures to them under the Constitution. Let's say he can suggest that they pass legislation on a particular subject, thereby making sort of a vague suggestion, or he can actually present them a bill and say, "I'd like you to consider this." They don't have to act on the bill, but he has that authority.

And you know, he can also tell them about the state of the union, right? That's the state of the union clause. So those are the checks he sort of has on Congress, and those are significant checks, right? You know, the members of Congress don't get paid unless the president signs the bill that passes the appropriation for them, or they override his veto.

So those are significant checks. With respect to the judiciary, Kim, there aren't as many checks in the Constitution. The Constitution never says the executive branch has to execute judgments issued by the courts, but that's been our practice. I think it's an implicit feature of the Constitution that when courts issue judgments, the executive will honor them and enforce them because that's an implicit feature of the Constitution.

Presidents don't really have much leverage over the courts, right? Because the president does get to nominate them and does get to appoint them, and that gives him some sort of say over who becomes a judge. But once they're judges, he doesn't have any say over what they decide, and he typically, as I said, enforces their judgment.

So the check on the judiciary is who gets into the federal courts; who gets to serve as a federal judge. Once they're judges, the president doesn't have the same kind of check that he has on Congress. There's no veto on judicial decisions. For instance, a president can unilaterally or on his own issue what are called executive orders, which are essentially mandates that govern the operations within the executive branch.

One president can set the priorities one way, but another president can reshape them a different way. Interesting because executive orders can do very positive things, like Truman's executive order that the armed services be integrated. But they can also do very negative things, for example, in turning Japanese Americans during World War II.

That is correct. The executive orders oftentimes might reflect a particular president's values, but again, also a particular president's priorities. The challenge with an executive order is that it only lasts longer than a particular president's term if other presidents are willing to sign off on them as well.

So, for example, you can see how President Trump has decided not to continue certain executive orders that President Obama put into place, just as President Obama chose not to extend certain executive orders President George W. Bush put into place. Lots of rules and laws are not made by Congress in the modern era; they're made by executive and independent agencies.

So, you know, a lot of the rules that we have to follow about the environment or about labor or about securities come from agencies and not directly from Congress. When the agency is an executive agency, the president not only appoints the people that run that agency, but the president or his assistants in the White House are often involved in crafting the rules and shaping the rules in various ways.

So, you know, if we think the mass of rules and legislation comes from the government, the executive and not Congress, then the president has a great role in that. So, our first president was George Washington. In what ways did Washington set important precedents that are still with us today?

There are a lot of scholars who think that things would have been quite different had it not been for Washington. The fact that George Washington would become the first president helped put a lot of people at ease because he was widely viewed as trustworthy and somebody who wouldn't be naturally disposed to become tyrannical. Washington himself understood from the very outset of his administration that nearly everything he did would create a precedent for other presidents to follow.

So, Washington ends up becoming quite influential, not just helping to define things, but also in reassuring people that this system can get off the ground and the presidency wouldn't necessarily be a tyrannical office, and that the president, in fact, could be an effective part of a new government.

If Washington's not there and they can't see an honest man taking over as president, you might very well have had an executive council. They might not have been wary of who would be a unitary executive and wanted to have a plural executive in order to make sure that no one person became too powerful.

Another way of thinking about this is, you know, if you create a new constitution in the wake of President Nixon, you're going to have a different constitution because people are more distrustful of executive authority. If you have a new constitution after a really honest, noble, and successful presidency, people are going to write an executive article that's more favorable to the president.

The situation for Washington couldn't have been more favorable. They had seen the problems with weak execution under the Articles and in the states; they thought that weak executives were a problem. They saw this person who could be a strong executive and be responsible and wise executive, and those two things conspired to create an executive that was one of the most powerful in the world.

So, Washington is trying to signal, "Look, we don't want to create tyrants here. We're not kings. We're not presidents for life. We'll serve at most for a couple of terms, and then we will willingly lay down our authority and let other people follow us." That's actually a critical precedent that, again, every president until Franklin Roosevelt follows. It's one that reflects Washington's special values: that the most important office, ultimately, is not the office of the presidency; it's actually the office, so to speak, the position of being a citizen of this country.

So, we've learned that, thanks to the example set by George Washington, the framers of the Constitution felt confident that they could invest power in a president to have an energetic executive branch. But as Prakash noted, the framers might be surprised at the way the president's powers have grown over time through executive orders and the use of military force.

However, Michael Gerhart brings up an important point: that in the United States, the president is first and foremost a citizen, not a ruler. To learn more about Article 2, visit the National Constitution Center's interactive constitution and Khan Academy's resources on U.S. government and politics.