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Lecture A: “A Guided Tour of Article II of the U.S. Constitution”

Article. II.

Section. 1.

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

The first sentence of Article II states: “The executive Power shall be vested in a President of the United States of America.” On initial reading this seems to be a fairly straightforward and obvious sentence. However compare it to the first sentence of Article I regarding the powers of the Federal Congress.

The first sentence of Article I states: “All legislative Powers herein granted shall be vested in a Congress of the United States … .”

Do you see a difference?

Article I says that the Federal Congress only has the powers that are specifically granted within the text of the U.S. Constitution. This why nearly all of our U.S. Constitutional Amendments include the clause, “The Congress shall have power to enforce this article by appropriate legislation.” For congress to be able to make laws regarding a subject, the Constitution must give specific authority for Congress to act.

Never in the Constitution is there is a line that states: “The Federal Executive shall have the authority to enforce a law once Congress has passed it … ,“ because it is not necessary as Article II simply grants that all executive Power, even if not expressly stated in the Constitution, is vested in the President of the United States.

This demonstrates that the framers of the U.S. Constitution conceived of a limited Congress but a broad and powerful central President with great power to enforce and execute all federal legislation. Note that both Article II (The Executive) and Article III (The Judicial) are significantly shorter than Article I of the Constitution. The founders clearly spent more time invested more words in limiting the power of Congress and the legislative branch of government.

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 Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be 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.

The Electoral College is one of the most unique yet often misunderstood aspects of our political system. It is rather en vogue, or commonplace, to criticize the Electoral College as an undemocratic relic of our past. However, the Electoral College serves as a very important protection of our liberty.

First, the founders were very concerned about the perils of direct democracy. Ever since Plato termed democracy a tyrannical form of government, the fear is that democracy tends to devolve into mob rule and that majority rule is simply a nice way of saying mob rule. Our founders were intent on designing a system where the rights of individuals in a political minority could not be trampled by those in the political majority. Human history shows us that mobs tend to do very terrible things to other humans whether those be the atrocities of Nazi Germany or, as a more current example, much of the viral behavior we see online in social media. Simply, humans in mobs tend to do really terrible things to other humans, and majority rule is simply mob rule.

Second, we must also reconsider why our founders created a bicameral, or two house, federal legislature? As we learned last week, this was the product of “The Great Compromise” which was an effort to balance out population based representation and geographic or regional based representation.

What constitutes “fair” representation? Some of the founders argued that having one representative elected for a consistent number of people was the most “fair” – in other words, the number of representatives for a state would be based entirely on the population of a particular state. However, is this truly “fair”? Think about the state of New York versus the state of Georgia. Even at the time of our founding, these states were very different. These two states had very different economies, different cultural and demographic groups, and different climates (it doesn’t snow much in Georgia). Population based representation ignores these differences that make each state unique. Especially noteworthy is that rural states with less population tend to have more agricultural industry, which is important to producing the food we all eat. Should agricultural interests be ignored simply because they don’t have the same population density as a major urban center? However, in a purely population based system of representation, the interests of more populated states would always win. In order to balance this out, the founders created one house of legislature, The House of Representatives, in which representation was based on population. States would have a number of representatives based on their population. However, in the Senate, every state would get two (2) Senators. This was to balance out population based interests against regional or geographic interests. This compromise also was related to the founder’s distrust of direct democracy as well slavery which was concentrated in the Southern states.

However, how do you capture the “Great Compromise” within the single person of the President? In the multitude of representatives that made up Congress, two houses were created. The answer was the Electoral College. For each state, one Elector would be assigned for each member of Congress combined (both the House and Senate) and these Electors, selected at the state level (as the state legislature determined) would determine who the President would be. Unless a tie or in the matter of impeachment, veto override, Congress had little control over who would become president - a huge check on the power of the Congress.

Is the Electoral College un-democratic? Absolutely! Democracy does not mean liberty. Liberty means protecting the rights of all individuals, especially political minorities, against the whims of the political majority. Democracy does not necessarily protect individual rights because democracy means the majority gets its way. Simply because you have the most people on your team doesn’t mean that your larger team is always supporting the most benevolent, moral, or just causes. What if the majority, as we saw in the pre-Civil War American South, wanted to enslave an entire race of people - should the majority get its way because that is democracy? What if the majority of Germans want to follow evil and exterminate all Jewish individuals - should the majority get its way? Mob rule (which is pure democracy) is not liberty.

It is important to note that originally the Vice President was the person who came in second in the Electoral College voting. Imagine if this had been the case in recent elections - in 2012, Barack Obama (a Democrat) would be the President and Mitt Romney (a Republican) would have been elected the Vice President. Many might think that this system would be an excellent compromise to bring about partisan cooperation in our political system; however, it only caused more partisan squabbling and even contributed to a gun duel between Aaron Burr and Alexander Hamilton that eventually left Hamilton dead (suddenly our current political discourse looks quite a bit more civil). By 1804 (not even 2 decades after the Constitution was ratified) the situation was such a mess that this was changed in the 12th Amendment to allow the President and Vice President to be elected in separate elections and thus allowing the two to be from the same party.

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 power to determine when Election day is left up to Congress. This is a huge check on the power of the President. In the context of world history, where kings could fake elections or call an election at a time and date to their own advantage, in our nation, Congress determines the day the Presidential election is held.

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.

To be President you have to have been a American citizen at the time of your birth, have lived in the United States for 14 years, and have to be at least 35 years old.

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.

Since we have regular elections, what happens when something tragic happens to the President? In this case, the Vice President becomes president. This section of the Constitution and additional Congressional action made the matter of presidential succession very sloppy and complicated. Presidential succession was finally cleared up in 1967 by the 25th amendment.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased 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.

A president is paid for their work. His or her pay cannot be changed while they are serving as President. This is an important check on the power of the legislature as Congress cannot punish a president politically by threatening his or her pay.

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."

This is the oath that a person takes when they become president. This speaks to the idea that the office and power of the Presidency is bigger than any one man or woman.

Section. 2.

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 Offences against the United States, except in Cases of Impeachment.

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.

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.

Article II, Section II spells out several important powers that the president has including the president’s power of appointment, power over the bureaucracy, and power to pardon. The power to pardon is important because it gives the president great autonomy over deciding how to enforce laws - in other words, a president can choose to not enforce a law by pardoning someone who has violated a law. (Note that a President cannot pardon in the case of Impeachment. If a President could pardon someone from impeachment, then a President would be able to deny Congress their Article I power to impeach a political official.)

One very notable power is that the president can federalize or take control of a state’s national guard. This is an important check the President has on the power of the states. In 1957, the state of Arkansas refused to follow a Supreme Court order to desegregate schools and President Eisenhower federalized the Arkansas National Guard and forced Arkansas to comply with the Supreme Court ruling of Brown v. Board of Education and end school segregation.

Section. 3.

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.

Consistent with this text, every year the President addresses Congress on what is called the State of the Union. Interestingly, from President Jefferson until Woodrow Wilson in 1913, the State of the Union was just a written address delivered to Congress. As new mass media technology developed, the State of the Union has become a more powerful political tool of the president. In this speech that is now televised live and streamed online, the the President has the unique opportunity to address both houses of Congress as well as also an entire nation. This is a unique opportunity available only to the President to present his or her agenda to Congress and communicate directly to voters. The power of the Presidency has grown thru the State of the Union as new mass media technology been developed.

Section. 4.

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.

This text restates that Congress does has the power impeach and remove the President, Vice President, or any administration official. This is a huge and historically unprecedented check on the power of the executive branch of government.

Lecture B: “Thematic Analysis of the Executive Branch”

To help you focus in reading the week 3 material, including the written lecture, case study, and Article II of the U.S. Constitution, consider the following themes and questions:

Federalism

After reading Article II of the United States Constitution, which outlines the powers of President, take some time to reflect on how our founders addressed the issue of federalism in Article II and the executive branch of government. Recall, that federalism is the unique competition over political powers between the states and our federal government.

In what ways were the powers of the states preserved by Article II? In particular, what role do the states play in electing the president? What part of Article II outlines this?

In what ways were the powers of individual states limited by Article II? In particular, what specific powers does the President have over the states? What does it mean when the President federalizes the state’s national guard and how does that limit the state’s power? What is a key historical example when this actually occurred?

Separation of Powers

Our founders were afraid of power being concentrated in the hands of too few people. Therefore, the power of governing in our nation was split between the legislative, executive, and judicial branches of government.

Reflect on Article II of the U.S. Constitution. In what specific ways was the President given power over the legislative and judicial branches of government? In what ways did you see Presidential power limited by the legislative or judicial branches of government? What powers are the executive branch given? In what ways were the executive powers of the president limited (consider even the first few paragraphs of Article II)?

How has the power of the presidency grown over time? How has America’s role in the world and foreign policy impacted this? How has the new globalized world economy impacted this? How has new technology, including the internet, mass media, weapons of mass destruction, and nuclear war, impacted this power?

The Will of the People: Democracy versus Republicanism

After reading Article II and the related guided tour, in what ways were the people empowered to directly participate in our government and the presidency? In what ways were the founders’ mistrust of direct political participation of the people, or democracy, reflected? How does the creation of the Electoral College relate to the founder’s mistrust of democracy?

Individual Rights & Slavery

What features of Article II worked to preserve individual liberties? What features of Article II were created because of the institution of slavery? How was the power of the presidency used to end slavery and push for civil rights?

Case Study: “10 Key Executive Orders”

As we learned this week, Article II of the U.S. Constitution creates and empowers the president with quite vague but all necessary executive powers to execute and enforce the laws of the land. The vague nature of Article II has led to the expanding their use of executive actions and orders by presidents. Critics, often for partisan reasons, (for example, Democrats will be quick to accuse Republican presidents and vice versa) will charge that these are unconstitutional acts of an executive legislating or adjudicating law. Supporters, often for partisan reasons, will say this a president taking leadership to carry out complex and vague laws that were written by Congress.

Here are the 10 key executive actions taken by a U.S. President that you should be aware of. Each of these, in many ways, still impact all of our lives.

Number 1: Emancipation Proclamation

Lincoln declares free all slaves held by states that had seceded from the Union.

Number 2: Works Progress Administration

The great depression hit and Franklin D. Roosevelt hires 8.5 million people for public projects for everything from roads to art.

Number 3: Desegregation of the Armed Forces

In 1948, President Truman desegregates the U.S. Armed Forces.

Number 4: Japanese-American Internment

In 1942, after the attack on Pearl Harbor, Japanese-Americans are forcibly held in military camps.

Number 5: Indian Reservations

In 1851, President Ulysses S. Grant begins creating Indian reservations as Native Americans are continued to be forced from their homelands

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Number 6: Equal Employment Opportunity

In 1961, President Kennedy begins an examination of discrimination federal employment and hiring practices. In 1965, Kennedy’s successor, President Lyndon B. Johnson orders an end to discrimination in federal employment and hiring.

Number 7: Desegregation of Schools

In 1954 the Supreme Court ends schools segregation in the landmark ruling Brown vs. Board of Education. The Arkansas Governor refuses to comply. President Eisenhower federalized the Arkansas National Guard and orders it to enforce the Supreme Court ruling to end school segregation in Arkansas.

Number 8: Lincoln Suspends Habeas Corpus

President Lincoln suspends the key individual Constitutional right habeas corpus, or the right to trial when arrested, during the Civil War.

Number 9: Carter Creates the Federal Emergency Management Agency

President Jimmy Carter creates the Federal Emergency Management Agency (FEMA) in 1979.

Number 10: George W. Bush Creates the Department of Homeland Security

President George W. Bush creates the Department of Homeland Security in 2001.

Honorable Mention: Thanksgiving Day

As a respite from the horrors of the Civil War, in 1863 Lincoln creates the national holiday of Thanksgiving to be held annually the last Thursday in November.