Guest Essayist: Andrew Langer, President of the Institute for Liberty

While much attention has been focused on Congress and Article One’s legislative powers, the Constitution provides for three branches of government and Article Two  of the U.S. Constitution outlines powers for the executive branch i.e., the office of the President and those who serve under him. In addition to enumerations of the powers to nominate appointees (with the advice and consent of Congress), the power to make treaties (which have to be ratified by the Senate),  and his executive or enforcement authority Article 2 also discusses the wholly unique system of electing a president, known as the electoral college.

In this particular post, we will focus on two aspects of Article Two: the enforcement of laws passed by Congress, as well as the issue of the Electoral College.

As is clear through the structure of the Constitution itself, power flows from the people to the government via the legal structure called the Constitution.  In its opening statement, Article 2 reaffirms this concept, making it clear that power “vests” in an “executive” branch of government—meaning that it administers, oversees, and “executes” what is the legislative “will” of the people.

Because the system is one of checks, balances, and diffusion of power (the founders were skeptical of concentrated government power), powers enumerated to the federal executive are undercut by powers enumerated to Congress under Article 1 (and vice-versa).  The President is  Commander-in-Chief of the military under Article 1, but it is only Congress that can declare war.  On the other hand, while Congress passes laws, Article Two vests with the Executive Branch the requirement that those laws are “faithfully executed”.  In the modern executive branch many of these tasks are carried out under what is called “administrative law” via the federal regulatory state.

Issues have arisen when the agencies carrying out the execution of Congressional laws appear to exceed their statutory mandate and often challenges arise charging that an agency has effectively undermined Congress’ power to make the law.  While there may be an inevitable tension between the executive and the legislative branch in terms of the scope of their power, Article Two contemplates that the Executive branch engage in enforcement and execution of laws with little to no lawmaking like behavior occurring.

Critics charge that as Congress grows more unwilling to take proper care in writing laws that are clear and limited in scope, they have invited the Executive Branch to assume far more authority in the interpretation and execution of those laws leading to a greatly convoluted regulatory state.    However as the writers of the Constitution make clear the powers of the executive are to be checked by those of the other two branches such that a significant deviation from the Constitution could be subject to challenge in Court or by Congress through its powers to tax and appropriate etc.

Now let us turn to the electoral college.

When envisioning the Republic, the founders recognized that competing interests would require that the demands of a majority group be weighed against the impact of those demands against the rights of minority groups (political or otherwise).  Thus, we are not a pure democracy, but a representative republic—and, the American Electoral College was born out of those notion.

One of the challenges to the Republic, the founders knew, would be the inherent conflict between the interests of rural Americans and those who lived in cities.  Different things are important to people living in farming communities than to those who live within urban centers—there are different public policy priorities, at the very least, and possibly different sets of values and societal mores.  But in a pure democracy, regions with the highest populations would drive the public policy agenda, potentially sacrificing the interests of those in rural or desolate regions on the altar of the regions with the most people.

The founders didn’t want the selection of the President to be by “urban center fiat”, so they devised a mechanism to level the playing field.  It is akin to how the World Series is played:  it isn’t decided in one single game, or which team scored the most runs in a series of different games.  It is broken down into a “best of seven” contest, leveling the playing field by allowing each time numerous chances to score incremental victories.

As initially envisioned, each state gets a number of votes equal to the sum of the number of House members plus the number of Senators.  That way, even the states with the smallest population have a minimum of three votes, and are thus equalized.  Moreover, when combined, the electoral votes of these smaller or less populous states could challenge or overcome the electoral votes of larger and more populated ones.  Thus, the common interests of more rural states could be effectively aggregated, and their rights protected.

Unlike many other systems which rely on simple majorities our system ensures that the President actually presides over “united” states and has a built in constituency that is broad and enduring.   The end result is the President of our nation ultimately chosen by the electoral college far more broadly represents the interests of the nation as a whole.

April 22, 2010

Posted in Article II of the United States Constitution, Constitutional Scholar Essays | Edit | 73 Comments »

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