Article II, Section 3, Clause 1

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 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.

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” Lord Acton, 1887

Mitch Ohnstad (reporter): “Why do you rob banks, Willie?”
Willie Sutton (bank robber): “Because that’s where the money is.”

In Worcester v. Georgia (1832) The United States Supreme Court vacated the conviction of Samuel Worcester, holding that the Georgia statute prohibiting non-Indians from being present on Indian lands without a license from the state was unconstitutional:
Response of President Andrew Jackson: “John Marshall has made his decision; now let him enforce it!”

The above quotations constitute the texts for today’s essay. Readers will understand their relevance for a new century in which the United States President exercises unprecedented personal power, controls unprecedented national wealth and bestrides the separation of powers like a mighty colossus. Such a situation, unconceivable to the Founding Fathers in 1787, places the seemingly innocuous words that I here address into a significantly more worrying perspective.

So let me begin with state of the union addresses. The Founders naturally were concerned to protect the United States from the abuses associated with European monarchs, most especially, of course, King George III. One perceived abuse was the British monarch’s ritual of addressing the opening of each new Parliament with a list of policy ‘mandates’ rather than ‘recommendations. So the word ‘recommendations’ is truly significant as written into the Constitution, as are the words ‘from time to time’. Both insertions are designed to downplay the importance of the occasion.

The first president, George Washington, defined the meaning of ‘from time to time’. Since 1790, the state of the union message has been delivered regularly at an approximately one year interval. Whether such messages would be delivered orally or in writing, however, would depend, until FDR, on each president’s perceived role. The Federalists, Washington and Adams, personally addressed the Congress. The Republican, Jefferson strongly objected to this ritual and initiated the written address. This was continued until 1913 when America’s first Imperial President, Woodrow Wilson, reverted to the oral address, an approach followed by Harding and by Coolidge in his first address. Thereafter Coolidge and Hoover, as strict constructionists, reverted to the written model.

From FDR onwards, U.S. presidents have strutted across the stage making expansive oral addresses designed to project an image of presidential authority across an increasingly credulous national audience. Fortunately, the United States Congress has not (yet) abandoned its legislative authority. Many a presidential state of the union aspiration turns out to be dead-on-arrival once it enters the doors of the Capitol.

Section 3, Clause 1 – which imposes a duty rather than confers a power – is the formal basis of the President’s legislative leadership, which has attained enormous proportions since 1900. This development owes a lot to the rise of political parties, and to an accompanying recognition of the President as party leader, and to the introduction of the spoils system as a means of exerting presidential influence over Congress. Presidents frequently summon both Houses of Congress into special sessions for legislative purposes, and the Senate alone, for consideration of nominations and treatises. The power to adjourn the Houses has never been exercised.

The ‘right of reception’ has been interpreted to reinforce presidential authority most especially in the area of foreign affairs. The term ‘Ambassadors and other public ministers’ embraces not only any possible diplomatic agent that any foreign power may accredit to the United States, but also all foreign consular agents, who, therefore, may not exercise their functions in the United States without an exequatur from the President. The power to receive includes the right not to receive, to request their recall, to dismiss them and to determine their eligibility. These powers have the unfortunate consequence of making the President the predominant mouthpiece of the nation in its dealings with other nations, surely not something that the Founders (Hamilton was an exception) ever anticipated.

The President must ‘take care that the laws be faithfully executed.’ This duty has been used as an ‘open sesame’ opportunity for unscrupulous presidents to transgress the separation of powers. Some presidents have claimed an authority under this provision to impound monies appropriated by Congress. President Jefferson, for example, delayed for over a year the expenditure of monies appropriated for the purchase of U.S. gunboats. FDR and several of his successors from time to time refused outright to expend appropriated monies. In response to such an attempt by President Nixon, the United States Supreme Court finally ruled that such attempts are unconstitutional.

Presidents have also asserted, from time to time, that ‘faithful execution of the laws’ empowers them to suspend the writ of habeas corpus – that most precious legal protection of individual liberty against the state. Article I provides that this privilege may not be suspended except during times of rebellion or invasion. The Supreme Court has determined that such suspensions fall within the jurisdiction of Congress. Yet President Lincoln regularly suspended the privilege during the civil war, albeit eventually and reluctantly succumbing to union-opposition pressures to seek congressional approval.

The Supreme Court subsequently would specifically weaken its own supervisory role in this regard. In Mississippi v Johnson 1867, the Supreme Court ruled that the judiciary may not restrain the President in the execution of laws. In so doing, the Court denied an injunction preventing President Andrew Johnson from executing the Reconstruction Acts, which were claimed to be unconstitutional. Executive acts, when performed, remain subject to judicial scrutiny.

The President’s right to commission ‘all the Officers of the United States’ is also open to serious abuse by unscrupulous incumbents. One of the most famous legal cases in early United States history was induced by such abusive behavior. John Adams, the outgoing Federalist President signed many commissions to the judiciary on his final day in office, hoping as incoming Republican President Thomas Jefferson put it ‘to retire into the judiciary as a stronghold.’ Fortunately, in his haste to complete the coup d’etat, Adams neglected to have all the commissions delivered. President Jefferson and his Secretary of State, James Madison – who knew more than a little about the nature of the Constitution – refused to deliver the remaining commissions.

William Marbury had been appointed by Adams as Justice of the Peace in the District of Columbia; but his commission had not been delivered. So, Marbury petitioned the Supreme Court to force Secretary of State Madison to deliver the documents. However, in its famous 1803 Marbury v Madison judgment, the Supreme Court, with John Marshall as Chief Justice, denied Marbury’s petition, holding that the part of the statute upon which he based his claim – the Judiciary Act of 1789 – was unconstitutional.

It is good to end this essay with an early example where a serious abuse of presidential discretion was reined in. Unfortunately, this would be a rare victory in the battle to constrain America’s increasingly imperial presidency, as the executive branch fairly systematically elbowed its way through the separation of powers in order to impose its own brand of absolutism on the American Republic.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). All books are available at www.amazon.com. See also www.thelockeinstitute.org and www.charlesrowley.wordpress.com.

Article II, Section 2, Clause 3

3: 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.

The National Labor Relations Board is a federal agency established under Franklin Roosevelt whose assigned duty it is to protect employees, while balancing the rights of unions and management. In an unprecedented move, it has recently moved to bar Boeing from opening a second aircraft assembly line in South Carolina rather than Washington state. In a second unprecedented move, the agency is about to reverse decades-old policy and allow unions to organize small groups of employees to gain a toehold in the company, rather than the entire company workforce at once (a more difficult project).

The agency currently is dominated by union lawyers, and one of the main advocates for these changes is Craig Becker, a controversial former lawyer for the SEIU, who has written that management should have no say whatever in unionizing activities. After his nomination was rejected by the Senate (on the failure of a cloture vote), President Obama nevertheless appointed Mr. Becker to the board a month later, while the Senate was in recess.

Recess appointments have been practiced since the Constitution went into effect. Initially, Congress was very much a part-time legislature, so there was an obvious need to allow the President to appoint officers to posts that might become vacant while the Senate was not in session. Indeed, that was precisely the early understanding. Vacancies might “happen” (in the terminology of Article II, Section 2, cl. 3) if they arise during the recess.

It may be asked why there is any need for recess appointments now that the Senate meets regularly during the course of the year. Surely, there is no need to have recess appointments just because the Senate is on a brief Easter recess or President’s Day long weekend. Even if the recess is longer, say during the month of August, it is unlikely that the President would even be able to gear up for an appointment until the recess is almost over. In the unlikely event of a government crisis, the Congress almost certainly would reconvene quickly. That said, recess appointments are useful for lower-level appointments on which the Senate has failed to act for some time. Moreover, they can protect the President’s constitutional prerogatives, if the Senate purposely seeks to weaken the President by failing to act on his nominations made while the Senate is in session.

Presidents have long interpreted the clause to give them a writ to make recess appointments for vacancies as long as those vacancies exist during the recess, even if they arose earlier. This interpretation has been upheld judicially. But even though it may be constitutionally justifiable, it raises serious political issues. Presidential appointments for vacancies that arise while the Senate is in session, but are not filled until the President can do so unilaterally when the Senate is in recess are delicate matters. Such appointments can easily be seen as end-runs around the constitutional blending and overlapping of functions.

Now add to that if the recess appointment is of an individual who was previously rejected by the Senate. The politics of such a move clearly invite Senatorial rebuke, and President Obama’s appointment of Craig Becker was lambasted by a number of Republican Senators.

As early as 1863, Congress tried to rein in recess appointments, by prohibiting payment of salary to anyone appointed during the Senate’s recess, until the Senate confirms. Today, the Pay Act, 5 U.S.C. 5503, prohibits such payments only if the vacancy already existed while the Senate was in session. The act also provides certain exceptions. For example, it does not restrict salaries of recess appointees if the nomination was pending when the Senate recessed. Neither does the salary restriction apply if the Senate, within 30 days before the end of a session, rejected a nominee of the President to the office. However, that exception, in turn, does not apply if the President during the recess appoints the rejected nominee. It should be noted that the end of a “session” is the end of the annual term. Thus, when Congress adjourns this December, it will be the end of the first session of the 112th Congress. Merely rejecting a nominee before a holiday recess is not the end of a session.

One wonders, therefore, whether President Obama’s NLRB man, Craig Becker, is entitled to payment of salary. One argument he might make is that the nomination technically was not formally rejected because it was filibustered and never came up for a vote on the merits. Since it was not withdrawn, the nomination technically was still pending when the recess occurred.

By statute, if a recess appointment is made, the appointee’s name must be submitted to the Senate soon after its next session begins. President Obama has done so with Mr. Becker. If the appointment is not confirmed, the officer may continue to serve, but must step down at the end of that next session. Thus, Mr. Becker’s term will end in December of this year, as he was appointed by the President in March, 2010. If Mr. Becker is rejected, he will not be permitted to draw a salary, if a routine provision to that effect in funding bills continues to be used.

Finally, the political virtuosity of the recess appointment device is shown by the fact that, even if the Senate rejects Mr. Becker, there will be new vacancies on the NLRB, and the President can wait for the next recess to appoint his ideological fellow to the agency once more. Mr. Becker could then serve until the end of 2012, again without Senate confirmation.

Unlike appointments to administrative or executive positions, recess appointments of judges are uncommon. Bill Clinton made one; George W. Bush made two; Barack Obama has made none so far. No President has made a recess appointment to the Supreme Court since Dwight Eisenhower, who appointed Chief Justice Warren, Justice Brennan, and Justice Stewart in that manner.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Article 2, Section 2, Clause 2

2: 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.

As Publius reminded his readers in the forty-seventh Federalist, Montesquieu called the Constitution of England “the mirror of liberty”—so esteemed for its separation of governmental powers. So long as no one person or set of persons can exercise legislative, executive and judicial powers, neither king nor aristocrats nor commoners can dominate the country. In the United States, where everyone is a commoner, separation of powers remains relevant to the sustenance of liberty. If “the accumulation of all powers” in “the same hands” can “justly be pronounced the very definition of tyranny,” then even a cabal of commoners might so empower themselves, serving as lawgivers, judges, jurors and executioners over their fellow citizens.

But if separation of powers serves as an indispensable bulwark of political liberty (Publius continues), one must understand it rightly, as Montesquieu did. Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” He only meant that no one department may “possess the whole power of another department.” To make the three branches of government entirely independent of one another would amount to making three distinct governments—uncoordinated, ineffective, hardly able to govern at all. No person or persons could be held responsible for government action or, more likely, inaction.

The president’s power to make treaties and nominations exemplifies these principles of liberty and responsibility. Under the Articles of Confederation, Congress negotiated treaties. This required the dispatch of one or more delegates, thus depriving one or more states of representation. On the other hand, a treaty, once ratified, is a law—indeed, a supreme law. The executive branch must not legislate. Further, if treaties are laws disputes will arise requiring judicial attention—the province of neither legislature nor executive. If neither the Congress nor the president alone can assume the responsibility of treaty making, the only remedy can be to divide treaty-making into two parts, assigning each part to a different branch.

Then there is the matter of federalism. Treaties are the nation’s business, but do the states not want their interests represented, as well?

The Framers’ solution: the executive branch will negotiate treaties; the Senate will ratify them; the Supreme Court will adjudicate case arising under them. But this separation of powers and duties does not and cannot imply isolation of powers and duties. Senators can advise the president on the treaty (before and after negotiations); although negotiations themselves ought to be confidential; they can then consent or ratify the treaty resulting from those negotiations. Thus both branches exercise mutual control over treaties without interfering with or encroaching upon one another.

The same goes for presidential appointments. Who will control the apparatus, the administration, of the American national state? Not Congress directly: as James Wilson argued at the Convention, “a principal reason for unity in the Executive was that officers might be appointed by a single, responsible person,” thus avoiding “intrigue, partiality, and concealment.” At the same time, complete presidential control over appointments could allow a president to create offices and fill them with his favorites—the very definition of “corruption” as the term was used in the eighteenth century, and one of the most frequent complaints against monarchy. (Recall the words of the Declaration of Independence: King George “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.”) Again, the solution was to divide and correlate two powers, giving nomination to the president and appointment to the Senate. The sovereign people can clearly observe both of these governing actions and finally hold their representatives responsible for them.

The construction of the presidential powers of treaty-making and of nomination thus addresses the crucial issues of the character of the American regime and the structure of the American state. The people retain their sovereignty through their elected representatives. No one set of representatives governs without restraint from other sets of representatives. Through the Senate, the states have a decisive `say’ in both international lawmaking and the composition of the national administration. Both republicanism and federalism are preserved.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

Article II, Section 2, Clause 1

1: 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.

The President of the United States may choose to be addressed merely as “Mr. President,” but another title more accurately conveys the tremendous power and prestige associated with the modern position; that of “Commander in Chief.” This fact might have surprised the nation’s founders. They did not intend for the position of military leader to be the most important function of the chief executive. The title itself is grouped in a clause which also instructs the President to form a cabinet and issue pardons. Congress, not the President, received the more substantial powers of declaring war and raising an army. Yet in modern times, it is the President who firmly controls the strongest standing military in the world, with the ability to act on a global scale without consulting the legislative branch of government. Congress has not declared war since the 1940s, but U.S. Presidents have deployed millions of soldiers into dozens of military engagements. The meaning of Article II, Section 2, Clause 1 has not changed, but its broad mandate and the increased military might of the United States has resulted in the development of a powerful executive that the framers of the Constitution could scarcely have envisioned.

During the drafting of the Constitution, few objected to giving the President supreme command over the military, especially once the principle of creating a unitary executive had been agreed upon. The bloody struggle for independence from Britain and the problems involved in coordinating the efforts of independent-minded States had taught America’s founders the importance of having at times a single decision-maker, able to marshal the resources of the entire country in its common defense. Many of the existing State constitutions already placed their governor or chief executive in charge of the militia. John Jay, writing in Federalist No. 4, argued that the separate armies of the States, “in a proper line of subordination to the Chief Magistrate,” would perform far more effectively than a divided military. However, in keeping with the principle of checks and balances, the unquestioned military authority of the executive branch was mitigated by legislature. Crucially, the Commander in Chief only performed his duties “when called into the actual Service of the United States.” Alexander Hamilton believed that this provision, coupled with the lack of any significant standing army or navy, meant the President would serve merely as “first General and Admiral of the confederacy.” Except in cases of national defense, Congress would have to declare war and provide funds in order for the President to effectively exercise his authority as Commander in Chief. Civilian control of the military was thus firmly established and divided between the executive and the legislature, while also establishing a clear chain of command. The President would have very strong powers as Commander in Chief during wartime, but otherwise would depend on the approval and cooperation of Congress.

In upholding the Constitution, the President of the United States, in his capacity as Commander in Chief, swears to provide for the “common defense.” While it would appear at first glance that the framers intended for the President to act in this capacity only when the United States was attacked or when authorized by Congress, the intricacies of international conflict and diplomacy often complicated which branch of government held the edge in war powers. When pirates attacked American merchant ships in the early 1800s, President Jefferson responded by arming merchant ships and invading Tripoli. Congress authorized the measure, but did not declare war. Hamilton insisted that “when a foreign nation declares…war upon the United States…any declaration on the part of Congress is nugatory; it is at least unnecessary.” Such an interpretation suggested that the Commander in Chief could deploy the military in any way he saw fit, if America had been attacked first. Nearly fifty years later, the creation of a standing army allowed President Polk to initiate the Mexican-American War. American forces ordered close to the disputed boundary with Mexico fought a border skirmish, and Congress was forced to support the actions of United States troops already committed to battle. The position of Commander in Chief proved to be the decisive foreign policy tool for a President willing to wield it.

The balance of power would continue to shift back and forth between Congress and the President, until decidedly moving in favor of the executive branch during the Cold War. In order to compete with the Soviet Union, Congress approved huge increases in military spending while simultaneously differing to a series of strong Presidents on foreign and military policy. The United States, now with military commitments around the world, needed a Commander in Chief willing to exercise American power swiftly, without constant consultation with Congress. During the Korean War, President Truman created a precedent by specifically citing his position as Commander in Chief as sufficient authority for deploying troops to the Korean peninsula. By further classifying the deployment as a “police action,” Truman avoided seeking the permission of Congress. Like the Congress of Polk’s day, the legislature was thus faced with the uncomfortable decision of either supporting the President or cutting funding for troops already in combat. In most subsequent military actions, including Vietnam and the wars in Iraq and Afghanistan, Congress has passed bills authorizing the use of military force. Other times, such as President Reagan’s invasion of Lebanon or President Obama’s bombing of Libya, the executive branch has relied solely on the Commander and Chief clause. Under this interpretation, which continues to hold sway, the President can unilaterally use the military as he or she sees fit when American interests are at stake.

The framers rightly predicted that the country would need an executive strong enough to respond to the volatile emergencies of war, but they could not have foreseen the future success and growth of their fragile republic. The powers of the President thus expanded exponentially along with America’s military and international commitments. At the same time, Congress diminished its own war making powers, first by creating a standing military force and then by passing resolutions authorizing indefinite and nearly unlimited military action. The American people should be grateful that the framers designed a flexible system which allowed for a strong Commander in Chief in times of crisis, but they should also be mindful of the restrictions originally placed on the President, and the vital war-time responsibilities given to Congress.

Andrew Baskin is a researcher at the Constitutional Sources Project (www.ConSource.org). His past projects have focused on the evolving nature of war powers in the United States. He graduated with a B.A. in history from Washington University in St. Louis.

Article II, Section 1, Clause 8

8: 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.”

When a new duke was installed in the old Republic of Venice, he took a prescribed oath of office that included a list of limitations on his power. Just in case his memory conveniently weakened as his fondness for office grew, the oath and its limitations were read to him in a formal ceremony every two months. Remembering the horrified reaction in some quarters in Congress when the new leadership read the Constitution at just the opening of this session, one is inclined to believe the Venetians were on to something.

Although the Constitution requires other officials to take an oath of office, the President’s is the only one expressly prescribed. One question that arose is whether the oath is a precondition to the assumption of office. George Washington took office March 4, 1792, yet did not take the oath until April 30 of that year. Similarly, the practice of the British constitution, with which the Framers were intimately familiar, was that the coronation oath might not be administered until some time after the heir’s succession to the vacant throne. The President assumes his office when the constitutionally-designated day, January 20, arrives. However, before the President can execute the functions of his office, he must take the oath. Under the current practice of inauguration (which increasingly does resemble a coronation) and the demands of office, the matter has ceased to have practical significance.

Of more continuing relevance is the question of the scope of independent power the oath gives the President. Just as the effectiveness of the periodic recitation of the Venetian oath on restraining executive excess depended largely on the confluence of political events and the duke’s personality, the use of the oath as a source of executive power by the President has been similarly shaped. President Lincoln cited his duty to “preserve, protect, and defend” the Constitution as ample authority for his initial steps to combat organized secession, though he sometimes also referred to the three other sources of broad implied executive powers, the “executive power” clause, the commander-in-chief clause, and the clause that requires him to “take care that the laws be faithfully executed.” In a defense of his actions made to Congress in July, 1861, Lincoln declared that he was acting under his oath to “preserve the Constitution” and the Union, when he called forth the militia to suppress the rebellion, proclaimed a blockade of Southern ports (an act of war), directed large increases of the Army and Navy, ordered $2 million (yes, that was a lot of money then) of unappropriated funds paid out of the Treasury, pledged the unprecedented and astronomical sum of $250 million of the government’s credit, and ordered the military detention and suspension of the writ of habeas corpus for those engaged in or “contemplating” “treasonable practices.”

Laying aside the emergency of the Civil War, the oath has been used by Presidents in more pedestrian ways to assert independent authority. The issue has come up in disputes between the Supreme Court and the President, and the Congress and the President. Early in our history, the “departmental theory” of judicial review dominated. That theory held that each branch was the final and independent interpreter of the powers entrusted to it under the Constitution. Jefferson wrote in 1801 that each of the branches of the federal government “must have a right in cases which arise within the line of its proper functions, where, equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment, and uncontrolled by the opinions of any other department.” Chief Justice Marshall in the Marbury Case used the oath he took as providing constitutional legitimacy for judicial review.

Madison echoed Jefferson. So did Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and others. The attorneys representing President Andrew Johnson during his Senate trial in 1868 on impeachment charges relied on the President’s independent constitutional position, validated by his oath of office, to defy the Tenure of Office Act of 1867. Johnson claimed that the act, adopted over his veto, deprived him of his constitutional powers to remove executive department officers by requiring him to obtain Senatorial consent before firing Secretary of War Edwin Stanton.

The issue continues to resonate. The President’s first duty, as so many incumbents have argued, is to the Constitution as the Supreme Law. Moreover, the President is an independent actor in that regard. Hence, the President can veto a bill from Congress if he believes it to be unconstitutional, even if the Congress and an existing Supreme Court precedent point to its constitutionality. Questions of greater constitutional difficulty and shadowiness arise about Presidential signing statements and the President’s refusal to enforce a law that has been duly enacted, the latter of which also implicates the President’s Article II duty of faithful execution of the laws.

Both issues are live political matters. Just as his predecessors did, President Obama has resorted to the very signing statements whose use by George W. Bush he vocally decried. The latest is a statement that he would continue to employ “czars” (presidential policy directors not subject to Senatorial confirmation) despite the fact that the budget he was signing after the deal reached with Congress prohibited funding for 4 such officials (out of 39). The President has claimed that the budget restriction violates his constitutional authority. Such statements are not given legal significance by the courts when interpreting the constitutionality of a statute, in part because they tend to be rather vague and thin on constitutional analysis. But they certainly are a measure of the President’s willingness to claim that his constitutional powers are not subject to Congressional limitation. At the same time, the statute is now the law of the land, and the President’s proper choice should have been to veto the bill, not to refuse to enforce parts, in effect signing a bill into law that was not the same as presented to him.

Not enforcing an already-existing and properly enacted law is the most troubling. For instance, the Obama administration has announced that it will not defend the constitutionality of the federal Defense of Marriage Act (DOMA), because the President believes the law to be unconstitutional. Yet, the law was adopted by a Congress and signed by a President (Bill Clinton) who must have believed the law to be constitutional. Moreover, there is no Supreme Court opinion that the law is unconstitutional, and there has been no great change in social conditions or political composition of the voters. While a President’s oath to support the Constitution gives him some leeway in administering law, and while a predecessor’s acts cannot inflexibly bind a President, in this matter the President’s position is at odds with the actions of Congress and two Presidents, of different parties. There is a tension between the President’s claim that the oath directs his first duty to the Constitution, and the Constitution’s own command that he faithfully enforce the laws.

These issues are not easily resolved. It is clear, however, that the oath is far more than mere formality. History has shown it to be another factor in the Constitution’s separation of powers and blending and overlapping of functions, swirling in the murky vortex where constitutional law and politics lose their distinctness.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Article II, Section 1, Clause

6:  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,9  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.

 This clause is the presidential succession clause, establishing procedures for dealing with the death, disability, resignation or removal of the President.   

At first the clause appears rather straightforward.  It declares that the Vice President is next in the line of succession, and that Congress can, by law, establish the remaining line of succession.  However, upon further inspection, there are a few important issues that are not clearly resolved. 

The Convention originally provided that the president of the Senate (which had not yet been determined to be the Vice President) would replace the President in the case of death, disability, resignation or removal.  In late August Gouvernor Morris suggested replacing the president of the Senate with the Chief Justice.  In early September the Convention settled on the Vice President. 

The first issue is whether the Vice President becomes the President in such cases, or whether the Vice President merely becomes the acting President.  This issue is important because if the VP merely becomes the acting President, he would be a temporary placeholder while a new President is selected.  In fact, the clause suggests that a special election for President be called in the case of the President’s death, disability, resignation or removal, rather than the automatic ascension of the VP to the office.  James Madison actually insisted upon the possibility of a special election for the President at the Convention. 

The other ambiguity of the clause had to do with the issue of the President’s “disability.”  As John Dickinson noted at the Constitutional Convention, “what is the extent of the term ‘disability’ & who is to be the judge of it?”  If the Congress can declare the President to be disabled, the Constitution’s separation of powers would be subverted by basically giving the Congress the power to choose the President.   

Both ambiguities were resolved by the Twenty-Fifth amendment, with an assist from John Tyler.  When President William Henry Harrison passed away in 1841, Tyler boldly claimed that he was not merely the VP acting as President, but was the President for the remainder of Harrison’s elected term.  By doing so he prevented the possibility that an election would be called to establish a new President (Harrison passed away very early in his term, a result of contracting pneumonia at his unusually long Inaugural Address.) 

Tyler was criticized for this action, but his precedent has stood the test of time.  The Twenty-Fifth Amendment, passed in 1967, codifies the Tyler precedent by stating that “the Vice President shall become President” if the President is removed from office, resigns, or passes away.  However, in the case of presidential disability (formally communicated to the Speaker of the House and the President pro tempore of the Senate), the Vice President merely becomes “Acting President.”

Amendment XXV also cleared up the issue of presidential disability by creating a procedure for establishing the president’s disability.  While the Tyler precedent helped ease the transition of power from President to VP in cases of death, resignation, or removal of the President, it also made VPs hesitate before assuming the presidency in the case of disability.  This is because the Tyler precedent suggested that whenever a VP assumed the presidency, he became President in full, not just Acting President.  Thus, if the President’s disability were cured, there would be a question whether the VP needed to revert back to his earlier position. 

After President Garfield was shot in 1881, for example, he was incapacitated for eighty days, while his VP hesitated to assume the office in case Garfield would recover.  The same issue occurred following Woodrow Wilson’s stroke in 1919. 

The Twenty-Fifth Amendment established a protocol for determining whether a disability existed, and how the President could be restored to power after the disability is gone.  It allows the President to declare himself disabled, and to resume the office when he formally declares that the disability has ended. 

In situations where the President is unable (or unwilling) to declare himself disabled, the Vice President, along with a majority of the cabinet, is authorized to declare the disability.  If the President disagrees with the decision of the VP and the cabinet, Congress has to resolve the disagreement. 

The succession of the chief executive of the country is, thankfully, an issue that has not caused great discord in American politics.  But the Framers were well aware that succession to the chief executive power, which was usually the throne, was an issue that had fractured societies for centuries.  As with so many other important constitutional questions, the Framers refused to allow these issues to be settled by appeals to the sword.  Rather, they established a framework for such contentious issues to be resolved by law, rather than arbitrary force or will. 

Article II, Section 1, Clause 5

5:  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.

The president of the United States must meet three eligibility requirements. He or she must be a natural born citizen, be at least thirty-five years old, and have resided within the United States for fourteen years.

The first eligibility requirement is that the president be a natural born citizen.

There is an obsolete way to meet the citizenship requirement. The office seeker could have achieved citizenship before nine states ratified the Constitution. With this proviso, the eight foreign-born delegates to the Federal Convention would be eligible. Before ratification could become a possibility, the Constitution had to make it out of the statehouse, so it was tactful to make every delegate eligible for the executive position.

If a modern candidate is less than two-hundred and twenty years old, he must be a natural born citizen. Someone born inside the United States is a natural born citizen. Although some disagree, persons born outside the United States to United States citizens are considered natural born citizens. The first Congress in 1790 declared that “the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” The only reason this did not close the argument is that a Congressional statute cannot alter or clarify the supreme law of the land, but it certainly can be used to determine intent of the framers.

What was the intent of the framers? It actually varied by individual, as it did on many issues. When they debated this clause, Benjamin Franklin said, “When foreigners after looking about for some other country in which they can obtain more happiness, give a preference to ours it is a proof of attachment which ought to excite our confidence and affection.”¹

Gouverneur Morris disagreed. “As for those philosophical ‘citizens of the world,’ I don’t want them in public councils. I do not trust them. A man who shakes off attachment to his country can never love any other.”¹

(The debates can enlighten on original intent, but in the end, it was the votes that determined what the Constitution meant.)

The president must also be at least thirty-five years old upon taking the oath of office. Today, thirty-five seems young. Theodore Roosevelt was the youngest president at forty-two, and John F. Kennedy was the youngest elected president at forty-three. In 1787, thirty-five was not young. Alexander Hamilton was still five years away from eligibility. His fellow delegates Jonathon Dayton, John Mercer, Richard Dobbs Spaight, and Charles Pinckney were all younger. Even the Father of the Constitution, James Madison, was only thirty-six.

The last eligibility requirement is that the president must have resided within the United States for fourteen years. Justice Story opined that “residence in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States.” Due to draft wording of this clause and the precedent-setting election of Herbert Hoover, it is generally accepted that the fourteen years can be cumulative.

It is also interesting what is not included in this clause. There are no religious, property, hereditary, or military service requirements. Also, Fifty-five men framed a constitution that requires no amendment for a woman president.

¹ The Franklin and Morris quotes have been changed to first person from the third person used by James Madison in his notes.

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

Article II, Section 1, Clause 4

4:  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.

“Chusing the Electors,” or “Interstices and the Constitution”

“Interstice” is a word that has long bemused me for some long-forgotten reason.  Interstice refers to the space between things; usually small gaps within a larger framework.  You can’t escape interstices—you will find interstices even between the most precisely machined and measured surfaces.

The language of our Constitution might be thought of as being precisely machined—each part fits “just so” with the next part, and the whole has worked so well that it has been amended just 17 times since the it and the Bill of Rights became effective over 200 years ago.  Having so few gaps that have had to be plugged by amendments over the years suggests that the Constitution’s interstices are pretty darn small.

The clause of which I speak today reinforces that notion, as it exemplifies the Founders’ attention to detail in their drafting.  It reads, “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.”

This was originally numbered as Clause 4 of Article II, Section I, but, well, an excessively large interstitial gap showed up in the original Clause 3, which dealt with how votes were counted in the Electoral College.  The election of 1796 revealed that under the original Clause 3 vote-counting scheme, the nation could wind up with a president from one party and a vice-president from the opposition party.  And the election of 1800 further exposed the flaw, as it became evident then that a straight party-line vote by the electors would result in just that scenario:  a president and vice-president from different parties.  That was scarcely a recipe for smooth government.

So the 12^th amendment was enacted to solve that problem; the original Clause 3 was thus superseded, and voilá, the original Clause 4 was renumbered to Clause 3 with its original text unchanged.

Of course, this short Clause does not stand alone in the great legal scheme of things; Congress had to act to set the date, and it did; 3 U.S.C. § 7 reads, “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”  So despite the great hullabaloo about the popular elections in November, the “real” election takes place in December, when the Electoral College votes.

By deferring to Congress to set the exact date for the electors to vote, the Framers built flexibility into the Constitutional system so that minor procedural adjustments could be made without invoking the cumbersome amendment process.  That approach reflects great wisdom, when you consider that these men who drafted with quill pens created a document that functions effectively in an age of near-instantaneous communication.  So even a humble, small procedural clause in the end demonstrates just how finely crafted this document is…!

Gary McCaleb serves as senior counsel for the Alliance Defense Fund at its Team Resource Center in Scottsdale, Arizona, where he leads a litigation team comprised of attorneys and support staff at offices in District of Colombia, Arizona, Kansas, California, Louisiana, Georgia, and Tennessee. He has litigated religious liberty and free speech cases in federal and state trial and appellate courts throughout the United States. McCaleb graduated with honors from Regent University School of Law in 1997 and is admitted to the Arizona state bar.

Article II, Section 1, Clause 3

3:  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.

When determining the mode for selecting the President, the Framers were faced with a conundrum.  The President was to be a leader who could act with energy and dispatch.  Yet he was to maintain his constitutional pedigree as a republican, and he must exercise wisdom and judgment.  It was hoped that the President would be, as Henry Lee said in his eulogy of George Washington, “first in war, first in peace, and first in the hearts of his countrymen.”  But the president was not to gain that position as an American Caesar, a man whose immense talents and genius also proved to be fatal to that ancient republic that Revolutionary War-era Americans so admired.

Perhaps even worse, because so much more likely in the ordinary case, would be the man who, lacking the genius of a Caesar, would gain office through “talents for low intrigue, and the little arts of popularity,” as Hamilton sneered in Federalist 68.  To Americans of the time, “popular” suggested a certain cravenness and lack of principle.  Such a person would do what advanced his political standing, rather than what was best for the country.  As Plato long ago warned in his description of the demagogue (Greek for “leader of the people”), this was a particular flaw of democracy.  Such a man was most likely to emerge in a system that placed no electoral barrier between the mass of the people and him.

Hamilton’s response during the Philadelphia Convention was a complex multi-layered proposal of election by electors selected by regional electors themselves elected by some class of voters.  Such a convoluted system resembles an electoral Rube Goldberg-contraption. However, the historically well-read Framers had the experience of other republics from which to draw, and Hamilton’s system was a simplified (if that can be imagined) variant of the election of the Doge of Venice.  A system of electors avoids the democratic pitfalls of election of unqualified flatterers by a people corrupted by promises of favors or bedazzled by a façade of handsome features and soaring, but empty, rhetoric.  But, without more, election by a council of the few does not avoid the oligarchic pitfalls and factionalism inherent in any cohesive and organized group, characteristics Madison warned against in The Federalist.  Hamilton’s proposal would increase the number of participants and disperse their decisions.  This made it more difficult for a candidate to gain office by corruption and intrigue through a small and cohesive faction.

The Framers did not go along with the particulars of Hamilton’s proposal.  But, after making the easy call against direct popular election and rejecting, as well, election by Congress or by the state legislatures, they settled on a system similar to the one proposed by Hamilton. In the process, they resolved several practical problems.  Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. In effect, the Electoral College would nominate the candidates.  The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.  The winner of the House vote would be President, the runner-up would be Vice-President.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than an immediate vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

Hamilton and others assured Americans that corruption and the influence of faction would be avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they would meet in separate states at the same time rather than in one grand national body. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

The system never quite worked as intended.  After Washington’s election, the nomination of Presidents was informally taken over by factions in Congress, in a process dubbed the Congressional caucus system.  That system immediately caused the untenable situation of a President (Adams) and a Vice-President (Jefferson) from opposing factions.  The debacle of the House-controlled election of 1800 brought about by the intra-factional rivalry of Jefferson and Burr placed the young American experiment in self-government in mortal danger. That, in turn, brought limited reform through the 12^th Amendment.

Though the constitutional shell remains, much of the system operates differently than the Framers thought. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions (political groups that focus on a particular issue or coalesce around a charismatic leader) in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums.  Read more from Professor Knipprath at: http://www.tokenconservative.com/ .