Constitutional powers of the president

- [Sal] This is Sal, here,
I'm here with Jeffrey Rosen,

head of the National Constitution Center

and we're gonna talk about Article Two

of the United States Constitution.

So, Jeffrey, what does the Article Two,

what does Article Two deal with?

- [Jeffrey] It deals
with the executive power,

the powers of presidency
and it lays them out

and it starts by saying
the executive power shall

be vested in a President of
the United States of America.

- [Sal] And today that
seems somewhat commonsense,

the the executive power is invested in the

President of the United States of America.

Why did they, what's special about that?

- [Jeffrey] Well, when the
Constitution was drafted,

it wasn't obvious we'd have
a single executive under the

Articles of Confederation,
all the state governors,

some of them had plural executives.

Alexander Hamilton at the
Constitutional Convention

was proposing a kind of
monarchy, a President for Life,

so the idea of setting out
limited powers for the presidency

and specifying what they
were, creating a President

that was energetic enough
to achieve common purposes

but restrained enough not to be a tyrant

was a huge achievement
for the Constitution.

- [Sal] That under the
Articles of Confederation

there wasn't a proper
executive branch, it was really

the President presided, so
to speak, over Congress.

- [Jeffrey] That's right
and each, you needed

unanimous consent to get
anything done, which is why

the Confederate Congress
couldn't raise money

to support the war efforts
and couldn't raise taxes.

So the framers came to
Philadelphia to create an

energetic executive but one
that was also restrained

and that's why the vesting
power is so important.

It basically says that the,
all executive power is vested

in the President

but that power is not unlimited.

Now, people have disagreed
about how much power

the vesting power grants.

Theodore Roosevelt had
this stewardship theory

that the President can do
anything that's not forbidden

by the Constitution and Article Two.

William Howard Taft, who
came after Roosevelt,

had the opposite theory,
a kind of judicial

theory of the President.

He said the President can
only do what isn't forbidden.

So the question of whether
Article Two is the exclusive

series of presidential
powers or whether there

are other implicit powers
is a debate that continues

to this day.

- [Sal] This will be fascinating.

We'll go into much more
depth in future videos.

And just going through
the rest of Section One,

it looks like there's
a lot of the mechanics

of what does it mean to
have a term of office.

What the, how you become President.

Is that essentially Section One?

You see this first part, he
shall hold his office during

the term of four years and
together with the Vice President,

chose for the same term,
be elected as follows.

And then they kind of go into
the electoral college system.

- [Jeffrey] Exactly, and then there are

a couple other requirements.

No person except a natural born citizen

can be President and we
know that term was subject

to some debate during the
recent presidential election.

And then there's the provision
that says that Presidents

have to 35 years old,
it's the most explicit

part of the Constitution
and the point was to prevent

aristocratic scions
without a lot of experience

from taking office.

The framers were really
concerned about having

new monarchies and they wanted
to make sure that Presidents

were seasoned enough
so that's why you can't

be President unless you're 35.

- [Sal] Fascinating.

And as we go further,
and I've copied this text

from your website, from the
National Constitution Center

and why did you all
highlight some of this text

of Article Two in this
yellow-orange color?

- [Jeffrey] Well, we're really
thrilled by this website,

we're excited to be doing a
series of videos with you,

Sal, and it's the
interactive Constitution,

folks can find it at
constitutioncenter.org.

These are the main clauses
where we commission the top

liberal and conservative
scholars to write about

what they agreed and
disagreed about these clauses.

So in Section One of
Article Two, the main clause

is the vesting clause and
that's the one to focus on.

The other stuff, as you
said, is basically just

requirements of what you have to

be in order to be President.

And then we highlighted
other important provisions

in Sections Two, Three, and Four.

- [Sal] Yep and in
particular this section on

the electoral college
system, this was superseded,

I saw, I learned from your
website, by the 12th Amendment.

Is that because of what happened with

Aaron Burr and Thomas Jefferson?

- [Jeffrey] Yes, we know that
from the musical Hamilton,

the election of 1800 did not end well.

There was actually a tie in the House

and so it went into the

electoral college and Aaron,

rather a tie in the electoral
college, it went to the House

and Alexander Hamilton cast
his support for Jefferson

over Burr and Burr was
so furious about that

that he challenged Hamilton to the duel

that ultimately killed him.

But the peculiarity of
having the original system

where the first place winner
in the electoral college

became President and
the second place winner

became Vice President was
so unwieldy that provision

of the Constitution was
amended and now, as we know,

Presidents and vice Presidents
run on a single ticket.

- [Sal] Yup, yup.

And the rest of Section
One, it kind of finishes

off with, in the case of the
removal of the President,

his death, resignation,
or inability to discharge

the powers, it talks
about how Congress can

provide for who should be President next.

- [Jeffrey] Exactly, so,
and there are statutes

that provide that and
Congress has an elaborate

rule of succession that
it's created as empowered

by this part of the Constitution.

- [Sal] Yep, and then
the last two pieces here,

it talks about just the
compensation of the President,

cannot be increased or
diminished during the period

for which he shall be
elected, maybe to prevent him

from giving himself a raise
or herself from giving

herself a raise and then
the last is just the famous

oath of office.

I do solemnly swear or
affirm that I will faithfully

execute the office of the
President of the United States

and will do to the best
of my ability, preserve,

protect and defend the
Constitution of the United States.

- [Jeffrey] Sal, you did a
great job, although there was

an extra do in there and
I'm pointing that out

because you remember when
Chief Justice Roberts

administered the oath to President Obama.

The fact that he slightly
bungled it led Roberts,

just to be safe, to
re-administer the oath.

So, if you want, I can
do it again and maybe

you'll be President.

- [Sal] Sounds good.

So then we get into Section
Two which is, I think, maybe,

gets a little bit more involved.

This first paragraph here,

it says the President shall
be the Commander in Chief

of the Army and Navy of the
United States and clearly

they don't say all of the
different forces of the

United States because we
didn't have an Air Force then.

- [Jeffrey] Yes.

- [Sal] Or Marines.

- [Jeffrey] We sure didn't,
but there was a concern about

the king controlling the
military, so the two main

purposes of this Commander
in Chief clause are, first,

total civilian control of
the military and second,

the idea that there's
just a single leader.

So the military is
subordinate to civilian and

democratically accountable
control and unlike the

Articles of Confederation, a
single person gets to control

all of this power so that you can have a

coordinated military force.

- [Sal] And as simple and
as clean as this statement

seems to be, in future
videos we'll discuss more

of how this may or may
not be in contention with

the power given to Congress in Article One

around the right to declare war.

- [Jeffrey] Exactly right,
we know that the President

in Section Two has the power to,

Congress has the power to
declare war and the question

of what the President can do
is contested, as you said.

We'll talk about it more
later but everyone agrees

that the President has the
ability to repel sudden attacks.

At the same time, we
haven't had a declared war

since World War Two,
although there's been lots of

military actions and
the question of how much

independent power the
President has to initiate

military action is very hotly contested.

- [Sal] Yep, and in this next
section, this talks about

the power of the
President to make treaties

but with the advice and
consent of the Senate and

it has to be approved,
provided two thirds of

the senators present concur.

- [Jeffrey] Yes, so the
treaty power is shared between

the President and the Senate,
and generally people think

that the Senate can approve
or disapprove or maybe

attach conditions or
reservations to the treaty

but the President, alone,
has the power to negotiate

treaties and that was a precedent
set by George Washington.

So the treaty power is shared.

- [Sal] And there's a lot
here cause it also talks

about the power of the President
to appoint ambassadors,

other public ministers,
consuls, judges of the

Supreme Court, and other
officers of the United States.

So this is a pretty
important sentence there.

- [Jeffrey] It sure is.

We know now from the controversy over

Supreme Court nominations
that the so-called advice

and consent clause is really important.

The advice and consent
clause is limited to

high officers as opposed
to inferior officers.

Because the clause says
for inferior officers,

Congress can vest the
appointment in the President

alone, in the courts of law or
the heads of the department.

But for high ranking officials
like Supreme Court judges,

the President can nominate,
the Senate exercises advice

and consent and this is a
shared power between the

President and Congress.

- [Sal] Yes, and just
to make people familiar

with the language, when
they're talking about inferior

officers, they're not
making any judgment about

those peoples capability,
they're more talking about

a more junior, less senior
officials in the government.

- [Jeffrey] That's an
excellent point but although

it is a term of art, it's
hugely important and people

have disputed about who
counts as an inferior officer

cause a lot hangs on it.

If the officer isn't inferior
then the President alone

doesn't get to appoint them.

- [Sal] And then they--

- [Jeffrey] Sorry, and
also the question of who

the President can remove or
fire without Congressional

approval is important
and may hinge on that

question as well.

- [Sal] Right, and we'll talk
more about it, but it seems

like, you need Senate consent
for more of the getting

people into their jobs but being able to

remove them is oftentimes,
there's more power there

for the President.

- [Jeffrey] Absolutely,
although again, like most of

these powers, they're
contested, there are arguments

on both sides throughout
history and the Supreme

Court has both recognized
the President's unitary

authority to fire
executive branch officials

but in other cases have said
that Congress can impose

certain conditions on when the
President can fire someone.

- [Sal] And somewhere we'll
talk about it more but

this next sentence, really,
is also a really interesting

one is that look, when
the Senate is in recess,

the power shall have the
President, the President

shall have the power to
fill up all vacancies

and it seems like it's
a temporary filling of

positions by granting
commissions which shall expire

at the end of their next session.

- [Jeffrey] That's exactly
right and the President's

power to make recess
appointments was just litigated

before the Supreme Court
and the Supreme Court

unanimously that President
Obama could not make

certain appointments because
Congress wasn't technically

out of session, so the
question of when the Senate

is in recess is very
contested and the scope

of that power is really important as well.

- [Sal] And Section Three,
it kind of just says,

hey, the President can
get Congress together for

the State of the Union,
can address Congress,

can kind of tell Congress
what's on his or her mind.

- [Jeffrey] Yes.

It does say that and
the State of the Union

power is really important.

You know, there's one
other clause in Section Two

that just might want to flag and that's

the take care clause.

Sorry, that's in Section
Three and I know you're about

to get to it.

So we start with this ability to

give Congress information
about the State of the Union,

the ability to convene
both Houses of Congress

in cases of disagreement among them.

Then you get to this really
core power, that he shall

take care of the laws
we faithfully executed.

- [Sal] And why is that
so important that he takes

care of the laws?

I mean, isn't that what the
executive should be doing?

- [Jeffrey] Absolutely, but
there's a serious question,

what happens if the
President believe a law

is unconstitutional, then
is it the kind of law

that he has to execute?

And President Thomas Jefferson
said no, he refused to

enforce the Sedition Acts
which basically allowed

the government to punish
people who criticized

the President on the
grounds that Jefferson

believed that it was unconstitutional.

More recently, we've had a big
controversy over this clause

when opponents of President
Obama's executive orders

about immigration have said
that they're a violation

of his power to take
care that the laws are

faithfully executed because,
according to opponents,

Congress reached a different
immigration policy.

The Supreme Court ultimately

refused to cleanly decide
that because of the four four

split and it didn't clearly
rule on the question

of the take care clause
and the immigration policy.

- [Sal] Fascinating.

And just to finish up
here and we'll go deeper

in future videos as we
go into Section Four,

this really just talks
about how the President

or the Vice President
and all civil officers

of the United States, how they
might be removed from office.

- [Jeffrey] That's right
and we know from not so

distant history that the
only way the President

can be removed from
office is by impeachment.

A President is impeached
by the House and has to be

convicted by Senate.

Two Presidents have been
impeached in American history,

Andrew Johnson and Bill Clinton.

Neither has been convicted
so we've never actually

had a President who's
been removed from office

under the impeachment clause.

- [Sal] And a lot of
times in popular language,

impeachment, to be clear,
impeachment is the accusation

and then you have to be held
at, no you actually did,

those crimes happened and
that's what you're saying,

the Senate is responsible for it.

- [Jeffrey] That's right,
you can be impeached but

acquitted and that's what
happened to both Bill Clinton

and Andrew Johnson so it's
like being indicted but

then you go to trial and
you're later acquitted,

you get to keep your office.

- [Sal] Well thanks so much, Jeffrey,

this is a super valuable overview.

- [Jeffrey] Thanks,
it's been great to talk.