Guest Essayist: James C. Clinger


The American Constitution was crafted in a deliberate way to prevent the failures of the government under the Articles of Confederation and to stop the harmful events that the Founders could see abroad and throughout history. Of particular concern was the need to empower the president to execute the law in a faithful manner. At the same time, the United States Constitution would limit executive power in order to prevent the rise of a dictator. Such safeguards have not always been found in the constitutions or governmental structures of other nations, and ambitious political figures, such as Napoleon Bonaparte, have taken advantage of every opportunity to amass more and more power, often at great cost to their own countries and also to the detriment of neighboring states.

The Articles of Confederation provided for virtually no executive authority. The American Constitution took another approach, both authorizing executive power but also constraining its exercise with a combination of institutional checks and balances. With the exception of the power to veto bills passed by Congress, which appears in Article I, the bulk of the presidential powers listed in the Constitution are found in Article II. This article is much more brief than the text of Article I, which applies to legislative powers, and approximately half of the text of Article II deals with qualifications for office and the manner of election, rather than powers and duties of the office. Some observers may infer from the small amount of verbiage in Article II compared to Article I that the legislature holds far greater power than the executive. In fact, James Madison wrote in Federalist #51, “In republican government, the legislative authority necessarily predominates.”[1] Other observers believe that while the actual text of Article II is terse, the specifically listed powers are broad, and additional powers may be implied from those that are explicitly stated. Within Article II, the president of the United States is “vested” with executive power. There has been considerable debate on whether that vesting refers to holding the explicit powers that are later listed, or whether this provides authority to carry out general powers that are deemed to be executive. What “executive” action actually entails is not completely clear. The word “executive” is derived from the Latin words ex sequi, which in English means to follow or to carry out.[2] This suggests that an executive, including a president, is primarily a follower acting on behalf of someone or something else. Nevertheless, many Americans think of the modern president as more of a leader than a follower.

The first powers listed in the first clause of Article II authorize the president to be commander-in-chief of the armed forces of the United States. It also indicates that the president “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.”   Notably, the Constitution does not say that the president can tell principal officers what to do. The president is also given the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The president is not given clemency powers for state offenses.

The second clause of Article II authorizes the president “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.” By law, the Congress may “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.”

These provisions, commonly known as the advice and consent clause, have been at the center of various controversies during American history. The clause indicates that the president may appoint “officers” of the United States, but it does not define what an officer is. Furthermore, while the clause explicitly provides for presidential appointment, it nowhere authorizes the president to remove the appointees that he has appointed.[3] As a practical matter, the federal courts have concluded that the president has at least some removal power implied by the executive powers vested in Article II,[4] but there have been a number of disputes about this question resolved somewhat inconsistently by the Supreme Court in cases such as Myers v. United States,[5] Humphrey’s Executor v. United States,[6] and Seila Law, LLC v. Consumer Financial Protection Bureau.[7]

The Constitution also gives the president the power to “make” treaties, subject to the approval of two-thirds of the senate, but it is not specific about the enforcement of treaties or their termination. During the War of Independence, the United States entered into a treaty allying itself with France. A few years later, after the French Revolution had become brutal and bloody, President George Washington issued a proclamation of neutrality, effectively voiding the treaty. This was controversial in its time, since the Constitution did not seem to authorize that sort of unilateral action, and also because there were many prominent figures in government, such as Thomas Jefferson, who were at least initially sympathetic to the French Revolution. In support of Washington’s action, Alexander Hamilton penned seven letters for publication making the case for the neutrality proclamation. Using the pen name, Pacificus, Hamilton sparred with James Madison, with whom he had written many of the Federalist Papers. Madison, writing under the name Helvidius, was recruited to oppose Washington’s position by Jefferson, who was then serving as secretary of state.[8]

Article II also imposes obligations upon presidents, as well as confers powers. Presidents are required to inform Congress “from time to time” of the State of the Union. The chief executive is also obliged to recommend, for the consideration of Congress, such measures which the president deems as “necessary and expedient.” When Congress is not in session, the president is authorized to call a special session of one or both houses of Congress. The president is also empowered to receive all foreign ambassadors. This has been construed to mean that the president has exclusive authority to recognize foreign governments.

Finally, Article II also demands that the president “take care that the laws be faithfully executed.” This appears to be a broad, encompassing authority and responsibility to carry out federal law, even those that are not supported by the president. While there is some inherent discretion in all enforcement, the president does not have any general authority to dispense with laws enacted by the legislature, as was the case in some monarchical systems.

The Constitution also constrains the chief executive and all other officers by providing for their impeachment and removal for the offenses of “Treason, Bribery, and other High Crimes and Misdemeanors.” This suggests that no executive can flout the law without consequences. It also provides for a means of removing an officer without resorting to a coup or assassination.

Many countries do not so carefully curb the powers of their executives, or they lack the will or the ability to enforce these constraints. In France in 1799, the newly established government, called the Directory, fell to a coup which was encouraged from within. The plural executive body was joined by a bicameral legislature made up of a Council of Five Hundred and a Council of Elders. One director, Abbe Emmanuel Sieyes, plotted a coup that would force out most of the directors and lead to the creation of a consulate, headed by a military leader as first consulate while he exerted actual control. Although not Sieyes’ first choice, the popular and successful General Napoleon Bonaparte was selected to serve as first consul. The general’s brother, Lucien Bonaparte, served as president of the Council of Five hundred, as expected to assist the coup. The coup succeeded in sweeping away the Directory, but Napoleon was not content to serve Sieyes’ interests. Very quickly, Napoleon rather than Sieyes was firmly in control, with no internal dissent permitted.[9]

Napoleon was not curbed by constitutional constraints upon his executive power. He suppressed the critical press and created his own propaganda machine.[10] The emperor was able to use his military to crush internal dissent, stop brigandage, and thwart foreign invasions.[11] Unconstrained by prior legal limitations on his conduct, the emperor designed his own legal system, the Code Napoleon, and imposed it upon his own nation. Ultimately, Napoleon’s own limitless ambition led to his undoing, but not until thousands had died in his pursuit of conquest. Of course, the United States has also had its own constitutional crises, most notably in the Civil War, which also cost much in blood and treasure. But under the Constitution, the United States has been freed of the folly of a dictatorship led by a single tyrant. The Constitution’s limits on the executive have thus far staved off that calamity.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also a member of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky.

[1] The Federalist Papers, Number 51

[2] Rohr, John A. 1997. “Public Administration, Executive Power, and Constitutional Confusion.” International Journal of Public Administration 20 (4/5): 887

[3] Tillman, Seth Barrett. 2010. “The Puzzle of Hamilton’s Federalist No. 77.” Harvard Journal of Law & Public Policy 33 (1): 149–67.

[4]  Prakash, Saikrishna.  2006.   “New Light on the Decision of 1789,”    Cornell Law Review. 91:1021-1078.

[5] 272 U.S. 52

[6] 295 U.S. 602,

[7] 140 S. Ct. 2183

[8] Young, Christopher J . 2011. “Connecting the President and the People: Washington’s Neutrality, Genet’s Challenge, and Hamilton’s Fight for Public Support.” Journal of the Early Republic 31 (3): 435–66.

[9] Rapport, Michael. 1998. “Napoleon’s Rise to Power. (Cover Story).” History Today 48 (1): 12–19.

[10] Dwyer, Philip G. 2004. “Napoleon Bonaparte as Hero and Saviour: Image, Rhetoric and Behaviour in the Construction of a Legend.” French History 18 (4): 379–403.  See also Forrest, Alan. 2004. “Propaganda and the Legitimation of Power in Napoleonic France.” French History 18 (4): 426–45.

[11] Devlin, Jonathan D.  1990.  “The Directory and the Politics of Military Command: The Army of the Interior in South-East France.”  French History,  4 (2):, 199–223.   See also Brown, Howard G. 1997. “From Organic Society to Security State: The War on Brigandage in France, 1797-1802.” Journal of Modern History 69 (4): 661-695.

 

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