The US Constitution
The Constitution’s second article establishes the executive powers of the federal government, focusing on the office of President. Its implementation has arguably given rise to more controversy than that of any other part of the original Constitution.
Difference of opinion is perhaps invited by the wording at the beginning of the article: “The executive power shall be vested in a President of the United States of America,” omitting the phrase “herein granted” found in Article I’s grant of legislative power. Many have seen in this wording an undefined—and potentially large—grant of executive authority. Others have argued that the very notion of “executive” implies that the President’s authority is limited to executing the laws made by Congress, and that the President’s intended secondary role is further underlined by the numbering of the articles.
Such widely divergent interpretations reflect the Constitutional Convention’s divisions over how best to constitute the executive branch and how to select the chief executive. Experience of British colonial rule disposed many to regard strong executive authority as a threat to liberty and to fear that a powerful chief executive would become—as Edmund Randolph put it—“the foetus of monarchy.” Some even favored a plural executive. The experience with weak executives in the majority of the newly-independent states, however, caused others, such as James Wilson (who more than any other framer helped to craft Article II) to view a president of some strength as a needed bulwark against possible legislative tyranny. Eventually the framers created, here as elsewhere, a compromise: a President with substantial powers as chief magistrate, commander-in-chief, conductor of foreign policy, and possessor of substantial appointive powers, but one who to some extent shared power with the Senate (which would provide “advice and consent” in the making of treaties and which would confirm Supreme Court justices and other important appointees) or with Congress as a whole, which retained the power to declare war. (The President’s formal role in the legislative process—primarily the exercise of a limited veto—was already defined in Article I.) The President and other executive officials were to be removable by Congress through the impeachment process.
Choosing a method of selecting the President proved even more contentious and was one of the last major points settled by the Convention. After an extensive flirtation with election by Congress, it settled on an indirect system of election through the Electoral College, leaving the selection of electors to the states (which gradually opted to have them popularly elected). Whether this method remains wise statesmanship that upholds the federal character of the union or is a bizarre anachronism in an increasingly democratic polity is a question that still engenders hot debate. On four occasions (1824, 1876, 1888, and 2000), the presidency has been won by a candidate with fewer popular votes than his main opponent.
Though the process has been an uneven one, over the past 220 years Presidents have wrested from Congress the initiative in government and have moved beyond the letter of Article II to assert—and set precedents for—powers that are not explicitly granted. In general, Presidents have come close to realizing Theodore Roosevelt’s belief that Presidents could take any action in the national interest not expressly forbidden by the Constitution.
Among the many areas of controversy is “executive privilege,” the idea that communications within the executive branch are privileged and beyond the scrutiny of Congress. Such claims go back to the Washington administration, While the courts have generally recognized a limited executive privilege, they have not found it to be absolute.
Especially controversial has been the Presidents’ exercise of powers derived from the role of commander-in-chief. Lincoln launched the greatest single social reform in American history—the end of slavery—by issuing the Emancipation Proclamation on such basis (though he later pressed successfully for a constitutional amendment to extend and secure the process). Since World War II, our last declared war, the USA has waged a series of undeclared wars largely on presidential initiative. Reacting to the Vietnam experience, Watergate, and concerns about an “imperial presidency” in 1973, Congress passed the War Powers Resolution, seeking to reassert its authority. While subsequent commitments of U. S. forces have all carried some sort of congressional approval, no subsequent President has formally acknowledged the measure’s constraints.
Many of the framers would doubtlessly be surprised at the extent to which Presidents have come to dominate American government. The controversy that has accompanied this development, however, would probably be much less surprising.
William C. Lowe, PhD
Dean and Professor of History
published September 2008