Constitutional powers of the president | American civics | US government and civics | Khan Academy

So this is here, um, I'm here with Jeffrey Rosen, head of the National Constitution Center, and we're going to talk about Article Two of the United States Constitution.

So, Jeffrey, what does Article Two deal with?

It deals with the executive power, the powers of the presidency, and it lays them out. It starts by saying the executive power shall be vested in a President of the United States of America. Today that seems somewhat common sense that the executive power is invested in the President of the United States of America. Why did they have to? What's special about that?

Well, when the Constitution was drafted, it wasn't obvious that we'd have a single executive. Under the Articles of Confederation, all the state governors, some of them had plural executives. Alexander Hamilton at the Constitutional Convention was proposing a kind of monarchy, a President for life.

So the idea of setting out limited powers for the presidency and specifying what they were—creating a president that was energetic enough to achieve common purposes but restrained enough not to be a tyrant—was a huge achievement of the Constitution. Under the Articles of Confederation, there wasn't a proper executive branch; it was really the president presided, so to speak, over Congress.

That's right. And you needed unanimous consent to get anything done, which is why the Confederate Congress couldn't raise money to support the war efforts and couldn't raise taxes. So the framers came to Philadelphia to create an energetic executive but one that was also restrained. That's why the vesting power is so important. It basically says that all executive power is vested in the president, but that power is not unlimited.

Now, people have disagreed about how much power the vesting power grants. Theodore Roosevelt had this stewardship theory that said the President can do anything that's not forbidden by the Constitution. In Article Two, William Howard Taft, who came after Roosevelt, had the opposite theory, a kind of judicial theory of the president. He said the President can only do what isn't forbidden. So the question of whether Article 2 is the exclusive series of presidential powers or whether there are other implicit powers is a debate that continues to this day.

No, this will be fascinating. We'll go into much more depth in future videos, and just going through the rest of Section One, it looks like there's a lot of the mechanics of what it means to have a term of office.

What how you become president? Is that essentially Section One?

Yes, this first part says 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. Then they kind of go into the Electoral College system.

Exactly. And then there are a couple other requirements: no person except a natural born citizen can be president. We know that that term was subject to some debate during the recent presidential election. And then there's the provision that says that presidents have to be 35 years old. It's the most explicit part of the Constitution, and the point was to prevent aristocratic sons without a lot of experience from taking office. The framers were really concerned about having new monarchies and wanted to make sure that presidents were seasoned enough. So that's why you can't be president unless you're 35.

Fascinating. And as we go further, I've copied this text from your website from the National Constitution Center. Why did you all highlight some of this text of Article Two in this yellow-orange color?

Well, we're really thrilled by this website. We're excited to be doing a series with you. It's the interactive Constitution; folks can find it at constitutioncenter.org. These are the main clauses where we commissioned the top liberal and conservative scholars to write about what they agreed and disagreed about these clauses.

So in Section One of Article Two, the main clause is the vesting clause, and that's the one to focus on. The other stuff, as you said, is basically just requirements of what you have to be in order to be president, and then we highlighted other important provisions in Sections Two, Three, and Four.

Yeah, and in particular, this section on the Electoral College system. This was superseded, I saw, I learned from your website, by the 12th Amendment because of what happened with Aaron Burr and Thomas Jefferson.

Yes, we know that from the musical Hamilton that the election of 1800 did not end well. It was actually a tie in the House. So it went into the Electoral College, and Aaron—rather, a tie in the Electoral College—it went to the House, and Alexander Hamilton cast his support for Jefferson over Burr, and Burr was so furious about that that he challenged Hamilton to a duel that ultimately killed him.

But the peculiarity of having the original system where the first-place winner in the Electoral College became president and the second-place winner became vice president was so unwieldy that that provision of the Constitution was amended, and now, as we know, presidents and vice presidents run on a single ticket.

Yep. And then the rest of Section One kind of finishes off with, in the case of the removal of the president—his death, resignation, or inability to discharge the power. So this talks about how Congress can provide for who should be president next.

Exactly. So, and there are statutes that provide that, and Congress has an elaborate rule of secession that it's created as empowered by this part of the Constitution.

Yeah, and then the last two pieces here talk about just the compensation of the president—cannot be increased or diminished during the period for which he shall be elected—maybe to prevent him from giving himself a raise or herself from giving herself a raise. And then the last is just the famous oath of office: "I do solemnly swear or affirm that I will faithfully execute the Office of the President of the United States and will do to the best of my ability preserve, protect, and defend the Constitution of the United States."

So you did a great job, although there was an extra "do" in there, and I'm pointing that out because you remember when Chief Justice Roberts administered the oath to President Obama, the fact that he slightly bungled it led Roberts just to be safe to re-administer the oath. So I think so, if you want, I can do it again and maybe you'll be president.

Sounds, sounds, sounds, sounds good.

So then we get into Section Two, which I think maybe it gets a little bit more involved. This first paragraph here says, "The president shall be the Commander-in-Chief of the Army and Navy of the United States." And clearly, they don't say all of the different forces of the United States because we didn't have an Air Force then.

Yes, or Marines.

We sure didn't, but there was a concern about the king controlling the military. So the two main purposes of this Commander-in-Chief clause are first, total civilian control of the military and second, the idea that there's just a single leader—so this military is subordinate to civilian and democratically accountable control. And unlike the Articles of Confederation, a single person gets to control all of this power so that you can have coordinated military force.

As simple and as clean as this statement seems to be, in future videos we'll discuss more of how this may or may not be in contention with the power given to Congress in Article One around the right to declare war.

Exactly right. We know that the president in Section Two has the power to—Congress has the power to declare war, and the question of what the president can do is contested. As you said, we'll talk about it more later, but everyone agrees that the president has the ability to repel sudden attacks.

At the same time, we haven't had a declared war since World War II, although there have been lots of military actions, and the question of how much independent power the president has to initiate military action is very hotly contested.

Yeah. And then this next section talks about the power of the president to make treaties, but with the advice and consent of the Senate, and it has to be approved provided two-thirds of the senators present concur.

Yes, so the treaty power is shared between the president and the Senate. Generally, people think that the Senate can approve or disapprove or maybe attach conditions or reservations to the treaty, but the president alone has the power to negotiate treaties, and that was a precedent set by George Washington.

So the treaty power is shared, and there's a lot here because it also talks about the power of the president to appoint ambassadors, other public ministers, counselors, judges of the Supreme Court, and other officers of the United States.

So this is a pretty important sentence there.

It sure is. We know now from the controversy over Supreme Court nominations that the so-called advice and consent clause is really important. The advice and consent clause is limited to high officers as opposed to inferior officers because the clause says for inferior officers, Congress can set the appointment in the president alone in the courts of law or the heads of the department. But for high-ranking officials, like Supreme Court judges, the president can nominate, the Senate exercises advice and consent, and this is a shared power between the president and Congress.

Yes, and just to make people familiar with the language, when they're talking about inferior officers, they're not making any judgment about those people's capability. It's more they're talking about more junior, less senior officials in the government.

That's an excellent point, but although it is a term of art, it's hugely important, and people have disputed who counts as an inferior officer because a lot hangs on it. If the officer is inferior, then the president alone doesn't get to appoint them, and there's—

And then they—

Sorry, and also the question of who the president can remove or fire without congressional approval is important and may hinge on that question as well.

Right, and we'll talk more about it, but it seems like you need Senate consent for more of the getting people into their jobs, but being able to remove them, there's often more power there for the president.

Absolutely, although again, like most of these powers, they're contested. There are arguments on both sides throughout history, and the Supreme Court has both recognized the president's unitary authority to fire executive branch officials, but in other cases has said that Congress can impose certain conditions on when the president could fire someone.

And then this next sentence really is also a really interesting one is that look when the Senate is in recess, the power shall have the president—the president shall have the power to fill up all vacancies. And it seems like it's a temporary filling of positions by granting commissions which shall expire at the end of their next session.

That's exactly right. The president's power to make recess appointments was just litigated before the Supreme Court, and the Supreme Court unanimously said that President Obama could not make certain appointments because Congress wasn't technically out of session. So the question of when the Senate is in recess is very contested, and the scope of that power is really important as well.

Yeah, and Section Three, it kind of just says, "Hey, the president can get Congress together for the State of the Union," can address Congress, can kind of tell Congress what's on his or her mind.

Yes, it does say that, and the State of the Union power is really important. You know, there's one other clause in Section Two that we just might want to flag, and that's the Take Care clause.

Sorry, that's in Section Three, and I know you're about to get to it.

So we start with this ability to give Congress information about the State of the Union, the ability to convene both houses of Congress in cases of disagreement among them. But then you get to this really core power that he shall take care that the laws be faithfully executed.

And why is that so important that he takes care of the laws? I mean, isn't that what the executive should be doing?

Absolutely, but there's a serious question. What happens if the president believes a law is unconstitutional? Then, is it the kind of law that he has to execute?

President Thomas Jefferson said no. He refused to enforce the Sedition Acts, which basically allowed the government to punish people who criticize the president on the grounds that he believed it was unconstitutional. More recently, we've had a big controversy over this clause when opponents of President Obama's executive orders about immigration have said that they're a violation of his power to take care that the laws are faithfully executed because, according to opponents, Congress reached a different immigration policy. The Supreme Court ultimately refused to cleanly decide that because of the 4-4 split, and it didn't clearly rule on the question of the Take Care clause and the immigration policy.

Fascinating. And just to finish up here, and we'll go deeper in future videos, as we go into Section Four, this really just talks about how the president or the vice president and all civil officers of the United States, how they might be removed from office.

That's right. And we know from not-so-distant history that the only way that the president can be removed from office is by impeachment. A president is impeached by the House and has to be convicted by the Senate. Two presidents have been impeached in American history: Andrew Johnson and Bill Clinton; neither has been convicted. So we've never actually had a president who's been removed from office through the impeachment clause.

And a lot of times in popular language—impeachment, to be clear, impeachment is the accusation, and then you have to be held that no, you actually did commit those crimes happen, and that's what you're saying—that the Senate is responsible for.

That's right. You can be impeached but acquitted, and that's what happened to both Bill Clinton and Andrew Johnson. So it's like being indicted, but then you go to trial and you're later acquitted. You get to keep your office.

Well, thanks so much, Jeffrey. This is a super valuable overview.

Thanks; it's been great to talk.