The Limits of Presidential Power

Article II of the Constitution defining (and limiting) the presidential powers

from Jon Roland's Constitution site

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:

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 [Modified by Amendment XII].

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.

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.

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 [Modified by Amendment XXV].

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

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."

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.

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.

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.

Thanks to Jon Roland and his excellent, well documented site on our Constitution and related documents.

You should visit him at http://www.constitution.org/

It appears that County Sheriffs have jurisdiction over agents from the Executive Branch.

Amendment X states that powers not given to the President are reserved to states or the people, if not denied.

This excerpt distributed by Forest Glen Durland

Web site: http://www.uhuh.com Email: forest@uhuh.com

Constitutional Limitations of Presidential Power

Following the signing of the Treaty of Paris in 1783, the Founding Fathers of the United States of America met to create a constitution which was to serve as the fledgling nation’s backbone. Though previously unified under the Articles of Confederation, the thirteen articles failed to effectively facilitate cooperation between the individual states; the creation of a new governing document was essential if the newly-independent United States was to succeed as a sovereign country. Though the revolution had been fought to free the colonies from the misrule of a king and the tyranny of a centralized monarchy, the drafters of the Constitution recognized that successful unification of the thirteen states would require that some of their sovereignty be relinquished to a centralized governing body with sufficient power to influence state actions. However, the organization of the national state apparatus and the extent of its powers would have to be re-envisioned in order to prevent the US government from mirroring the body which it was to replace. It was decided that the national government would be split into three separate branches: one legislative, one judicial, and one executive. The US Constitution put forth a system of checks and balances intended to ensure the rights of individual states and to set the limitations of the powers that would be granted to the three branches of the federal government. This essay will focus on those powers granted to the executive by the Constitution, the rational behind their formation, and the theories of presidential power that attempt to explain the significant expansion of presidential powers that has taken place since the documents creation.

Section one of Article II of the US Constitution sets presidential and vice-presidential term limits at four years and states the manner through which they are to be elected. It also requires a fixed presidential salary which cannot be changed during a presidential term (Library of Congress). As James Wilson argued in the Pennsylvania ratifying debates, an income free from congressional influence would make it so that, “the President of the United States could shield himself, and refuse to carry into effect an act that violates the constitution” (Amar 181). In other words, the President’s decision making process would be free from the influence of potential increases or decreases to their salary imposed by Congress. It was also argued that the creation of a presidential salary would make every male US citizen eligible for election to the presidency; without the provision of a salary, only the wealthy would have the means to assume office (Amar 181). Thus, the stipulation of a presidential salary in the US Constitution also served as an effort to prevent aristocratic control of the nation.

Section seven of Article I stipulates that all bills, once passed by both Houses, be presented to the president for consideration. The President can then sign the bill into law, return the bill to House in which it originated, or allow the bill to pass without their signature (Library of Congress). Though presidents prior to the Civil War tended to exercise their veto-power solely to raise constitutional objections to questionable bills, the Constitution itself does not expressly obligate the President to veto any bill deemed unconstitutional. If an unconstitutional provision was merely a small detail in a large piece of legislation, a President could simply choose to allow the bill to pass without their signature; they might also sign their name to a generally sound and desperately needed bill which contained only a minor constitutional flaw. However, “as an officer oath-bound to champion the constitution, the president would also be free to take up his veto pen in defense of the document, in an effort to appeal directly to the American public and to induce Congress to re-pass the bill without the offending details” (Amar 184).

Section two of Article II establishes the President as the “Commander and Chief” of the army and navy, as well as the militias of the original thirteen states, though only when they are called into service of the United States. They are given the right to ask for the opinion, in writing, of the principal officer of each of executive department, on anything pertaining to that department’s specific duties. The President is also given the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment (Library of Congress). Though section two granted the President with significant powers, it also placed restrictions upon the position so as to ensure that the US executive would not come to mirror the British Monarchy. Unlike the king, who maintained control over all of Britain’s military forces, the president could only exert control over state militias in order to “execute the Laws of the Union, suppress Insurrections, and repel Invasions” (Amar 187). While the British monarch could pardon whoever he wished, the US president could only pardon federal offenses, and was restricted from the ability to use their pardoning power to negate impeachment charges.

Section two goes on to describe several areas in which the president is to share power with Congress. Though the president is granted the ability to make treaties and to nominate members to the executive branch, Supreme Court, and other offices not expressly provided for in the Constitution, agreement and consent of two thirds of the Senate is necessary for any treaty or nomination to become effective. This broke the US Constitution from the British Model of unilateral control under the king by “giving the Senate a portion of traditionally executive authority—- much as Article I gave the president some legislative power via the veto clause” (Amar 190).

Section 3 of Article II obligates the president to inform Congress of the state of the union and to recommend measures which they feel are necessary and expedient; “to convene Congress in emergencies; to receive foreign diplomats; to ‘take care that laws are faithfully executed;’ and to commission all executive and judicial officers” (Amar 195).

The final section of Article II provides the most significant check to presidential power, “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” (Library of Congress). While British law lacked any mechanisms to oust a bad king, American-style impeachment made the president, as well as his cabinet members, responsible for any personal misconduct while serving as the nation’s leaders. Though entrusted with great powers, the president “would nonetheless be checked by the House and Senate, as the American people looked on, poised to render ultimate political judgment on all concerned” (Amar 204).

Since the creation and ratification of the United States Constitution, the scope of presidential powers has changed dramatically. Not surprisingly, considering the brevity of Article II of the US Constitution. Though rather precise limits are set on legislative and judicial power, no such limits govern the executive. It is within this vague constitutional description that “lay the seeds of a far more powerful position, one that has grown through elaboration of its explicit enumerated powers as well as the interpretation of its implied and inherent powers” (Pika Maltese 3). The Constitution’s ambiguity concerning the limitations of presidential action has led to several contrasting theories of presidential power: the constitutional theory, they stewardship theory, and the prerogative theory.

Proponents of the constitutional theory of presidential power argue that presidential power is strictly limited. They believe the powers of the executive to consist only of those specifically enumerated in the constitution or granted through an act of Congress. According to William Howard Taft, “there is no undefined residuum of power that he can exercise because it seems to him to be in the public interest…[presidential power] must be justified and vindicated by affirmative constitutional …provision” (Pika Maltese 13). The actions of US presidents up to the Civil War convey a shared desire to uphold such a literal interpretation of presidential power as stipulated by the Constitution.

Teddy Roosevelt serves as a fine example of someone who subscribed to the stewardship theory. He maintained the belief that a president of the US could do anything that was not expressly forbidden in the Constitution or by laws passed by Congress working within its constitutional authority. As Roosevelt stated in his autobiography, “I did and caused to be done many things not previously done by the President…I did not usurp power, but I did greatly broaden the use of executive power” (Pika Maltese 14). As these words suggest, the intent of a presidential steward is to leave the office in a better condition than when they assumed power.

It is the prerogative theory however, which extends the broadest range of powers to the president. In his essay “The Second Treatise of Government,” John Locke defines the concept of prerogative power as the power “to act according to discretion for the public good, without the prescription of the law, and sometimes even against it.” (Pika Maltese 14). The prerogative theory increases presidential powers to include the ability to carry out actions which are explicitly forbidden, should they be deemed to be in the national interest. Such power was exercised by Abraham Lincoln during the Civil War, “he appealed to military necessity, asserting that the Constitution’s Commander-in-Chief Clause…and its Take-Care Clause…combined to create a ‘war power’ for the president that was virtually unlimited;” and taken even further a century later when Richard Nixon claimed “[W]hen the President does it, that means that it is not illegal” (Pika Maltese 15).

The ambiguity of Article II of the US Constitution made possible such reinterpretations of presidential power; reinterpretations which have lead to a substantially expanded modern presidency. As the responsibilities of the president have increased significantly since the birth of the nation, some reinterpretation of the Constitutional limitations placed on the office’s power has been necessary. However, like Nixon, various presidents have taken their “reinterpretation” beyond what might be considered legitimate. It is these individuals which force one to question whether it was wise to leave the parameters of the presidential role so open to interpretation. Though the Constitution was created with the goal of uniting the nation while preventing the national government from coming to resemble that of the British Empire, the continuous expansion of the presidency and presidential powers, especially of late, pushes the United States ever closer to becoming like the despotic empire its forefathers fought so valiantly to be freed from.

References

The Library of Congress (1787). The United States Constitution. April 21st, 2008.

< http://memory.loc.gov/cgi-bin/query/r?ammem/bdsdcc:@field(DOCID+@lit(bdsdccc0802))>

Amar, Akhil Reed. America’s Constitution: A Biography. New York: Random House Trade Paperbacks 2005.

Pika, Joseph A. Maltese, John Anthony. The Politics of the Presidency. Washington D.C.: CQ Press 2006.Possibly related posts: (automatically generated)

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What are 3 limitations to presidential power?

1)The judicial branch has power in oversight, and to overrule the president.
2)The president is bound to uphold and defend the constitution.
3) Presidential powers are limited by statute and constitutional ammendment (no dictators for life)

The Limits of Presidential Power

by William Rusher

Whenever a new president is inaugurated, there is always a tremendous amount of speculation over what he (or she) is going to "do." And there's no denying that the new chief executive does have a great deal of discretionary power. But it swiftly becomes apparent that there are strict limits on that power.

In the first place, there are the limits that the new president imposes on himself. He may have pledged to do all sorts of things "on Day One" in the Oval Office, but a lot of them end up being postponed or severely modified, and some, for one reason or another, never get done at all. This is often all to the good: They were promised on the basis of information that turns out to have been inaccurate or incomplete, and on further consideration they may seem downright inadvisable.

Far larger are the restrictions imposed on the president by the Constitution, and by the statutes under which he is compelled to act. The Constitution is famously designed to limit the powers of the president (and, for that matter, of the Congress as well). A president cannot even appoint an ambassador to Nepal, let alone a Cabinet member or a justice of the Supreme Court, without the consent of two-thirds of the Senate. All sorts of presidential actions require the consent of the Senate, and a good many require the approval of both Houses of Congress.

Finally, there are the limitations imposed on presidential power by the political process itself. Even if a president possesses the indisputable power to take a particular step, it may be simply too unpopular with the public at large for him to take it. Franklin D. Roosevelt was, without much question, the most popular president of the 20th century. But when the Supreme Court blocked some of his efforts, and he tried to change its mind by proposing to enlarge it with justices sympathetic to his proposals, the public outcry forced Congress (which had previously been almost slavishly obedient to Roosevelt) to reject the "reform." Even if the consent of Congress had not been required, Roosevelt would have had to abandon his effort.

So we ought not to be surprised if President Obama fails to implement some of the pledges he made in the heat of the campaign. There are plenty of ways he can do this without seeming to betray his promises. Probably the easiest is to insist that he wants to keep a particular promise, but quietly let the Democratic leaders in Congress know that it won't break his heart if they manage to prevent him from having his way.

Meanwhile, I owe it to my readers to acknowledge that I was simply wrong recently, when I ventured that President-elect Obama would not name Hillary Clinton as his secretary of state. My estimate was that to do so would just give her a superb platform from which to pursue her own ambitions for the presidency in 2012 or 2016, while creating the potential for all sorts of public disagreements between the two during the Obama administration.

Obama's decision makes it clear that he's not all that upset by the prospect of Hillary running to succeed him (even if his own choice might be Vice President Biden), and that he doesn't anticipate -- or calculates that he can win -- any public disagreements between the two of them in the meantime.

These are legitimate political calculations, though either or both of them may prove to have been unwise.

Sumber:

www.uhuh.com/constitution/article2.htm

www.answers.com

www.townhall.com

www.thepoliticsofempire.wordpress.com