Chapter XLI: 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 Nature and Scope of Presidential Power

CONTEMPORARY SOURCE OF THE PRESIDENCY

The immediate source of article II was the New York constitution of 1777,[1] of which the relevant provisions are the following: "Art. XVIII. * * * The governor * * * shall by virtue of his office, be general and commander in chief of all the militia, and admiral of the navy of this state; * * * he shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them from time to time, provided such prorogations shall not exceed sixty days in the space of any one year; and, at his discretion, to grant reprieves and pardons to persons convicted of crimes, other than treason and murder, in which he may suspend the execution of the sentence, until it shall be reported to the legislature at their subsequent meeting; and they shall either pardon or direct the execution of the criminal, or grant a further reprieve.

"Art. XIX. * * * It shall be the duty of the governor to inform the legislature at every session of the condition of the State so far as may concern his department; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare, and prosperity; to correspond with the Continental Congress and other States; to transact all necessary business with the officers of government, civil and military; to take care that the laws are executed to the best of his ability; and to expedite all such measures as may be resolved upon by the legislature.

"To these, of course, are to be added the important powers of qualified appointment and qualified veto. It is to be observed also that there is no question of the interposition of the law of the land to regulate these powers. They are the governor's, by direct grant of the people, and his alone. Another distinguishing characteristic, equally important, is the fact that the governor was to be chosen by a constitutionally defined electorate, not by the legislature. He was also to have a three-year term, and there were to be no limitations on his re-eligibility to office. In short, all the isolated principles of executive strength in other constitutions were here brought into a new whole. Alone they were of slight importance; gathered together they gain new meaning. And, in addition, we have new elements of strength utilized for the first time on the American continent."[2] The appellation "President" appears to have been suggested to the Federal Convention by Charles Pinckney,[3] to whom it may have been suggested by the title at that date of the chief magistrate of Delaware.

THE PRESIDENCY IN THE FEDERAL CONVENTION

The relevant clause in the Report from the Committee of Detail of August 6, 1787 to the Federal Convention read as follows: "The Executive Power of the United States shall be vested in a single person. His stile shall be 'The President of the United States of America'; and his title shall be 'His Excellency.'"[4] This language recorded the decision of the Convention, sitting in committee of the whole, that the national executive power should be vested in a single person, not a body. For the rest, it is a simple designation of office. The final form of the clause came from the Committee of Style,[5] and was never separately acted on by the Convention.

"EXECUTIVE POWER"; HAMILTON'S CONTRIBUTION

Is this term a summary description merely of the powers which are granted in more specific terms in succeeding provisions of article II, or is it also a grant of powers; and if the latter, what powers specifically does it comprise? In the debate on the location of the removal power in the House of Representatives in 1789[6] Madison and others urged that this was "in its nature" an "executive power";[7] and their view prevailed so far as executive officers appointed without stated term by the President, with the advice and consent of the Senate, were concerned. Four years later Hamilton, in defending President Washington's course in issuing a Proclamation of Impartiality upon the outbreak of war between France and Great Britain, developed the following argument: "The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.' The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that 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; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, _and to take care that the laws be faithfully executed._ It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, 'All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expressions are, 'The _executive power_ shall be vested in a President of the United States.' The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then is, that the _executive power_ of the nation is vested in the President; subject only to the _exceptions_ and _qualifications_, which are expressed in the instrument."[8]

THE MYERS CASE

These enlarged conceptions of the executive power clause have been ratified by the Supreme Court within recent times. In the Myers case,[9] decided in 1926, not only was Madison's contention as to the location of the removal power adopted, and indeed extended, but Hamilton's general theory as to the proper mode of construing the clause was unqualifiedly endorsed. Said Chief Justice Taft, speaking for the Court: "The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, * * *"[10]

THE CURTISS-WRIGHT CASE

Ten years later Justice Sutherland, speaking for the Court in United States _v._ Curtiss-Wright Corporation,[11] joined Hamilton's conception of the President's role in the foreign relations field to the conception that in this field the National Government is not one of enumerated but of inherent powers;[12] and the practical conclusion he drew was that the constitutional objection to delegation of legislative power does not apply to a delegation by Congress to the President of its "cognate" powers in this field; that, in short, the merged powers of the two departments may be put at the President's disposal whenever Congress so desires.[13]

Nor is it alone in the field of foreign relations that the opening clause of article II has promoted latitudinarian conceptions of Presidential power. Especially has his role as "Commander in Chief in wartime" drawn nourishment from the same source, in recent years. The matter is treated in later pages.[14]

THEORY OF THE PRESIDENTIAL OFFICE

The looseness of the grants of power to the President has been more than once the subject of animadversion.[15] This and the unity of the office furnished a text for opponents of the Constitution while its ratification was pending. "Here," according to Hamilton, writing in The Federalist, "the writers against the Constitution, seem to have taken pains to signalize their talent of misrepresentation."[16] Once the Constitution was adopted, however, the tables were turned, and some members of the first Congress, including certain former members of the Federal Convention, sought to elaborate the monarchical aspects of the office. They would fain give him a title, _His Excellency_ (already applied in several States to the governors thereof), _Highness_, _Elective Majesty_, being suggestions. Ellsworth of Connecticut wished to see his _name or place_ inserted in the enacting clause of statutes. They contrived to make a ceremony of the President's appearances before Congress, his annual address to which, given in person, was answered by a reply equally formal.[17] They sought to enact that "all writs and processes, issuing out of the Supreme or circuit courts shall be in the name of the President of the United States." Although the attempt failed, owing to opposition in the House, the idea was adopted by the Supreme Court itself in its first term, that of February 1790, when it "_ordered_, That (unless, and until, it shall be otherwise provided by law) all process of this court shall be in the name of 'the President of the United States,'"[18] and it has never been otherwise provided by law. Meantime, on October 3, 1789, President Washington had, at the request of a joint committee of "both Houses of Congress," issued the first Thanksgiving Proclamation.[19]

The "revolution of 1800" was, in the opinion of its principal author, a revolution against monarchical tendencies, and making a virtue of the fact that he was a bad public speaker, Jefferson, in a symbolic gesture, substituted the written message for the presidential address. But the claims of the presidential office to power Jefferson in no wise abated,[20] although Marshall had predicted that he would;[21] to the contrary he in some respects enlarged upon them. After his day, however, the office passed into temporary eclipse behind its own creature, the Cabinet,[22] an ignominy from which Andrew Jackson rescued it. As "the People's Choice," as all by himself "one of the three _equal_ departments of government,"[23] as the leader of his party, as the embodiment of the unity of the country,[24] Jackson stamped upon the Presidency the outstanding features of its final character, thereby reviving, in the opinion of Henry Jones Ford, "the oldest political institution of the race, the elective Kingship."[25] The modern theory of Presidential power was the contribution primarily of Alexander Hamilton; the modern conception of the Presidential office was the contribution primarily of Andrew Jackson and his times.

"THE TERM OF FOUR YEARS"

Formerly the term of four years during which the President "shall hold office" was reckoned from March 4 of the alternate odd years beginning with 1789. This came about from the circumstance that under the act of September 13, 1788, of "the Old Congress," the first Wednesday in March, which was March 4, 1789, was fixed as the time for commencing proceedings under the said Constitution. Although as a matter of fact Washington was not inaugurated until April 30 of that year, by an act approved March 1, 1792, it was provided that the presidential term should be reckoned from the fourth day of March next succeeding the date of election. And so things stood until the adoption of the Twentieth Amendment by which the terms of the President and Vice President end at noon on the 20th of January.[26]

THE ANTI-THIRD TERM TRADITION

The prevailing sentiment of the Philadelphia Convention favored the indefinite eligibility of the President. It was Jefferson who raised the objection that indefinite eligibility would in fact be for life and degenerate into an inheritance. Prior to 1940 the idea that no President should hold for more than two terms was generally thought to be a fixed tradition, although some quibbles had been raised as to the meaning of the word "term". President Franklin D. Roosevelt's violation of the tradition led to the proposal by Congress on March 24, 1947, of an amendment to the Constitution to rescue the tradition by embodying it in the Constitutional Document. The proposal became a part of the Constitution on February 27, 1951, in consequence of its adoption by the necessary thirty-sixth State, which was Minnesota. _See_ pp. 54, 1236.[Transcriber's Note: Page 1236 is blank.][27]

Clause 2. 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.

Clause 3. 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 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.

Clause 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.

Clause 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.

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, 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.

Clause 7. 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.

Clause 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."

Maintenance of the Office of President

"THE ELECTORAL COLLEGE"

The word "appoint" is used in clause 2 "as conveying the broadest power of determination."[28] This power has been used. "Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable."[29] In the Federal Convention James Wilson had proposed that the Electors be "taken by lot from the national Legislature," but the suggestion failed to come to a vote.[30]

CONSTITUTIONAL STATUS OF ELECTORS

Dealing with the question of the constitutional status of the Electors, the Court said in 1890: "The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the State legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress. * * * In accord with the provisions of the Constitution, Congress has determined the time as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the States, and on which their votes shall be counted in Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them."[31] The truth of the matter is that the Electors are not "officers" at all, by the usual tests of office.[32] They have neither tenure nor salary, and having performed their single function they cease to exist as Electors. This function is, moreover, "a federal function,"[33] their capacity to perform which results from no power which was originally resident in the States, but springs directly from the Constitution of the United States.[34] In the face, therefore, of the proposition that Electors are State officers, the Court has upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a Presidential Elector;[35] and more recently its power to protect the choice of Electors from fraud or corruption.[36] "'If this government,' said the Court, 'is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.'"[37] The conception of Electors as State officers is still, nevertheless, of some importance, as was shown in the recent case of Ray _v._ Blair,[38] which is dealt with in connection with Amendment XII.[39]

"NATURAL-BORN" CITIZEN

Clause 3 of this section, while requiring that the Electors each vote for two persons, did not require them to distinguish their choices for President and Vice President, the assumption being that the Vice President would be the runner-up of the successful candidate for President. As a result of this arrangement the election of 1800 produced a dangerous tie between Jefferson and Burr, the candidates of the Republican-Democrat Party for President and Vice President respectively. Amendment XII, which was adopted in 1803 and replaces clause 3, makes a recurrence of the 1800 contretemps impossible. _See_ pp. 941-942. Clause 4 testifies still further to the national character of Presidential Electors. Clause 5 is today chiefly of historical interest, all Presidents since, and including Martin Van Buren, except his immediate successor, William Henry Harrison, having been born in the United States subsequently to the Declaration of Independence. The question, however, has been frequently mooted, whether a child born abroad of American parents is "a natural-born citizen" in the sense of this clause. The answer depends upon whether the definition of "citizens of the United States" in section I of Amendment XIV is to be given an exclusive or inclusive interpretation. _See_ pp. 963-964.

PRESIDENTIAL SUCCESSION

Was it the thought of the Constitution that a Vice President, in succeeding to "the powers and duties" of the office of President, should succeed also to the title? In answering this question in the affirmative in 1841, John Tyler established a precedent which has been followed ever since; but inasmuch as all successions have taken place in consequence of the death in office of a President, the precedent would not necessarily hold in the case of a succession on account of the temporary inability of the incumbent President. Nor has any procedure been established for determining the question of inability, with the result that in the two instances of disability which have occurred, those of Presidents Garfield and Wilson, the former continued in office until his death and the other, after his partial recovery, till the end of his term.

The Act of 1792

In pursuance of its power to provide for the disappearance, whether permanently or temporarily, from the scene of both President and Vice President, Congress has passed three Presidential Succession Acts. A law enacted March 1, 1792[40] provided for the succession first of the President _pro tempore_ of the Senate and then of the Speaker; but in the event that both of these offices were vacant, then the Secretary of State was to inform the executive of each State of the fact and at the same time give public notice that Electors will be appointed in each State to elect a President and Vice President, unless the regular time of such election was so near at hand as to render the step unnecessary. It is unlikely that Congress ever passed a more ill-considered law. As Madison pointed out at the time, it violated the principle of the Separation of Powers and flouted the probability that neither the President _pro tempore_ nor the Speaker is an "officer" in the sense of this paragraph of the Constitution. It thus contemplated the possibility of there being nobody to exercise the powers of the President for an indefinite period, and at the same time set at naught, by the provision made for an interim presidential election, the synchrony evidently contemplated by the Constitution in the choice of a President with a new House of Representatives and a new one-third of the Senate. Yet this inadequate enactment remained on the statute book for nearly one hundred years, becoming all the time more and more unworkable from obsolescence. One provision of it, moreover, still survives, that which ordains that the only evidence of refusal to accept, or of resignation from the office of President or Vice President, shall be an instrument in writing declaring the same and subscribed by the person refusing to accept, or resigning, as the case may be, and delivered into the office of the Secretary of State.[41]

The Acts of 1886 and 1947

By the Presidential Succession Act of January 19, 1886,[42] recently repealed, Congress provided that, in case of the disqualification of both President and Vice President, the Secretary of State should act as President provided he possessed the qualifications laid down in clause 5, above; if not, then the Secretary of the Treasury, etc. The act apparently assumed that while a member of the Cabinet acted as President he would retain his Cabinet post. The Succession Act now in force was urged by President Truman, who argued that it was "undemocratic" for a Vice President who had succeeded to the Presidency to be able to appoint his own successor. By the act of July 18, 1947[43] the Speaker of the House and the President _pro tempore_ of the Senate are put ahead of the members of the Cabinet in the order of succession, but when either succeeds he must resign both his post and his seat in Congress; and a member of the Cabinet must in the like situation resign his Cabinet post. The new act also implements Amendment XX by providing for vacancies due to failure to qualify of both a newly elected President and Vice President.

COMPENSATION AND EMOLUMENTS

Clause 7 may be advantageously considered in the light of what has been determined as to the application of the parallel provision regarding judicial salaries. _See_ pp. 530-531.[44]

OATH OF OFFICE

What is the time relationship between a President's assumption of office and his taking the oath? Apparently the former comes first. This answer seems to be required by the language of the clause itself, and is further supported by the fact that, while the act of March 1, 1792 assumes that Washington became President March 4, 1789, he did not take the oath till April 30th. Also, in the parallel case of the coronation oath of the British Monarch, its taking has been at times postponed for years after the heir's succession.

Effect of the Oath

Does the oath add anything to the President's powers? Again to judge from its English-British antecedent, its informing purpose is to restrain rather than to aggrandize power. Jackson, it is true, appealed to the oath in his Bank Veto Message of July 10, 1832; and Lincoln did so in his Message of July 4, 1861; as did Johnson's counsel in his impeachment trial; but in each of these instances the Presidential exercise of power involved rested primarily on other grounds.