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Article Two of the
United States Constitution The Constitution of the United States is the supreme law of the United States of America. This founding document, originally comprising seven articles, delineates the national frame of government. Its first three articles embody the doctrine ...

United States Constitution
establishes the
executive branch The executive is the branch of government exercising authority in and holding responsibility for the governance of a state. The executive executes and enforces law. In political systems based on the principle of separation of powers, authority i ...
of the
federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governing ...
, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the
president of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the executive branch of the federal government and is the commander-in-chief of the United States Ar ...
, lays out the procedures for electing and removing the president, and establishes the president's powers and responsibilities. Section 1 of Article Two establishes the positions of the president and the vice president, and sets the term of both offices at four years. Section 1's
Vesting Clause In United States constitutional law, the Vesting Clauses are three provisions in the United States Constitution which vest the United States' legislative power in the United States Congress, the executive power in the President, and judicial power i ...
declares that the executive power of the federal government is vested in the president and, along with the Vesting Clauses of Article One and Article Three, establishes the
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical ...
among the three branches of government. Section 1 also establishes the
Electoral College An electoral college is a set of electors who are selected to elect a candidate to particular offices. Often these represent different organizations, political parties or entities, with each organization, political party or entity represented by a ...
, the body charged with electing the president and the vice president. Section 1 provides that each state chooses members of the Electoral College in a manner directed by each state's respective legislature, with the states granted electors equal to their combined representation in both houses of
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties or other groups. The term originated in Late Middle English to denote an encounter (meeting of adversa ...
. Section 1 lays out the procedures of the Electoral College and requires the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often calle ...
to hold a
contingent election In the United States, a contingent election is the procedure used to elect the president or vice president in the event that no candidate for one or both of these offices wins an absolute majority of votes in the Electoral College. A presidentia ...
to select the president if no individual wins a majority of the electoral vote. Section 1 also sets forth the eligibility requirements for the office of the president, provides procedures in case of a presidential vacancy, and requires the president to take an
oath of office An oath of office is an oath or affirmation a person takes before assuming the duties of an office, usually a position in government or within a religious body, although such oaths are sometimes required of officers of other organizations. Such oa ...
. Section 2 of Article Two lays out the powers of the presidency, establishing that the president serves as the commander-in-chief of the military, among many other roles. This section gives the president the power to grant
pardons A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the ju ...
. Section 2 also requires the "principal officer" of any executive department to tender advice. Though not required by Article Two, President
George Washington George Washington (February 22, 1732, 1799) was an American political leader, military general, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Previously, he led Patriot forces to vi ...

George Washington
organized the principal officers of the executive departments into the
Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filing c ...
, a practice that subsequent presidents have followed. The
Treaty Clause The Treaty Clause is part of Article II, Section 2, Clause 2 of the United States Constitution that empowers the President of the United States to propose and chiefly negotiate agreements between the United States and other countries, which, upon ...
grants the president the power to enter into treaties with the approval of two-thirds of the
Senate The Curia Julia in the Roman Forum ">Roman_Forum.html" style="text-decoration: none;"class="mw-redirect" title="Curia Julia in the Roman Forum">Curia Julia in the Roman Forum A senate is a deliberative assembly, often the upper hou ...
. The
Appointments Clause The Appointments Clause is part of Article II, Section 2, Clause 2 of the United States Constitution, which empowers the President of the United States to nominate and, with the advice and consent (confirmation) of the United States Senate, appoi ...
grants the president the power to appoint judges and public officials subject to the
advice and consent Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts. It describes either of two situations: where a weak executive branch of a government enacts something previousl ...
of the Senate, which in practice has meant that presidential appointees must be confirmed by a majority vote in the Senate. The Appointments Clause also establishes that Congress can, by law, allow the president, the courts, or the heads of departments to appoint "inferior officers" without requiring the advice and consent of the Senate. The final clause of Section 2 grants the president the power to make
recess appointment In the United States, a recess appointment is an appointment by the president of a federal official when the U.S. Senate is in recess. Under the U.S. Constitution's Appointments Clause, the President is empowered to nominate, and with the advice ...
s to fill vacancies that occur when the Senate is in recess. Section 3 of Article Two lays out the responsibilities of the president, granting the president the power to convene both houses of Congress, receive foreign representatives, and commission all federal officers. Section 3 requires the president to inform Congress of the "state of the union"; since 1913 this has taken the form of a speech referred to as the
State of the Union The State of the Union Address (sometimes abbreviated to SOTU) is an annual message delivered by the president of the United States to the U.S. Congress near the beginning of each calendar year on the current condition of the nation. The messag ...
. The Recommendation Clause requires the president to recommend measures s/he deems "necessary and expedient." The Take Care Clause requires the president to obey and enforce all laws, though the president retains some discretion in interpreting the laws and determining how to enforce them. Section 4 of Article Two establishes that the president and other officers can be removed from office through the
impeachment Impeachment is the process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. Impeachment may be understood as a unique process involving both political and legal element ...
process, which is further described in Article One.


Section 1: President and vice president


Clause 1: Executive Power

Section 1 begins with a
vesting clause In United States constitutional law, the Vesting Clauses are three provisions in the United States Constitution which vest the United States' legislative power in the United States Congress, the executive power in the President, and judicial power i ...
that confers federal
executive Executive may refer to: Role, title, or function * Executive (government), branch of government that has authority and responsibility for the administration of state bureaucracy * Executive, a senior management role in an organization ** Chief exec ...
power upon the president. Similar clauses are found in Article I and Article III; the former bestows federal
legislative A legislature is a deliberative assembly with the authority to make laws for a political entity such as a country or city. Legislatures form important parts of most governments; in the separation of powers model, they are often contrasted with th ...
power exclusively to Congress, and the latter grants
judicial The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes and interprets, defends, and applies the law in legal cases. ...

judicial
power solely to the Supreme Court, and other federal courts established by law. These three articles together secure a
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical ...
among the three branches of the
federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governing ...
, and individually, each one entrenches
checks and balances Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical ...
on the operation and power of the other two branches. Article I grants certain powers to Congress, and the Vesting Clause does not reassign those powers to the President. In fact, because those actions require legislation passed by Congress which must be signed by the president to take effect, those powers are not strictly executive powers granted to or retained by Congress per se. Nor were they retained by the U.S. Congress as leftovers from the Articles of Confederation. The Articles of Confederation, Continental Congress and its powers were abolished at the time the new U.S. Congress was seated and the new federal government formally and officially replaced its interim predecessor. And although the president is implicitly denied the power to unilaterally declare war, a declaration of war is not in and of itself a vehicle of executive power since it is literally just a public declaration that the U.S. government considers itself "at war" with a foreign political entity. Regardless of the inability to declare war, the president does have the power to unilaterally order military action in defense of the United States pursuant to "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces". By U.S. law, this power is limited in that he must notify Congress within 48 hours after the beginning of military operations, explaining the source of his authority for the action. Once proper legal notification is given to the required members of Congress, military action can continue for up to 60 days without further authorization from Congress, or up to 90 days if the president "determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces." As treaties are by U.S. law official agreements with foreign governments recognized as such only after Senate ratification, the president obviously cannot make treaties unilaterally. However, the president does determine and decide U.S. foreign policy, and can enter into non-binding discussions and give conditional approval to agreements reached with foreign governments subject to Senate ratification at a future date. Additionally, since official treaties are specifically created under and by constitutional U.S. law, and are entered into by both government and the people as a whole, in their capacity as head of state and as the single individual representative of the United States and its citizens, the president does have Coauthority and Constitutional duty to unilaterally withdraw the United States from treaties if he or she determines the best interests and well being of the U.S. and its citizens are benefited by doing so. As far as presidential appointments, as with treaties a person is not officially and legally appointed to a position until their appointment is approved by the Senate. Prior to Senate approval and publication of that approval along with an official date and time for their swearing-in and assumption of duties and responsibilities, they are nominees rather than appointees. And again, the president nominates people for specific positions at their pleasure and can do so without or in spite of Senate advice. Senate consent occurs when a majority of senators votes to approve and therefore appoint a nominee. The head of the Executive Branch is the president. Although also named in this first clause, the vice president is not constitutionally vested with any executive power. Nonetheless, the Constitution dictates that the president and vice president are to be elected at the same time, for the same term, and by the same constituency. The framers' intent was to preserve the independence of the executive branch should the person who was vice president succeed to the duties of the presidency.


Clause 2: Method of choosing electors

Under the U.S. Constitution the president and vice president are chosen by electors, under a constitutional grant of authority delegated to the legislatures of the several states. The Constitution reserves the choice of the precise manner for selecting electors to the will of the state legislatures. It does not define or delimit what process a state legislature may use to create its ''state'' college of electors. In practice, the state legislatures have generally chosen to select electors through an indirect popular vote, since the 1820s. Most states use a "winner-take-all" system in which all the state's electors are awarded to the candidate gaining the most popular votes. Maine and Nebraska allow individual congressional districts to elect one elector. In an indirect popular vote, it is the names of the candidates who are on the ballot to be elected. Most states do not put the names of the electors on the ballot. It is generally understood by the voters and the electors themselves that they are the representative "stand-ins" for the candidates and are expected to cast their electoral college ballots for the president and vice president who appeared on the ballot. The actual electors being voted for are usually selected by the candidate's party. There have been a few cases where some electors have refused to vote for the designated candidate, termed a
faithless elector In the United States Electoral College, a faithless elector is an elector who does not vote for the candidates for U.S. President and U.S. Vice President for whom the elector had pledged to vote and instead votes for another person for one or bot ...
. Many states have mandated in law that electors ''shall'' cast their electoral college ballot for the designated presidential candidate. The constitutionality of such mandates was established by the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States of America. It has ultimate (and largely discretionary) appellate jurisdiction over all federal and state court cases that invo ...

Supreme Court of the United States
in '' Chiafalo v. Washington'' (2020). Each state chooses as many electors as it has representatives and senators representing it in Congress. Under the 23rd Amendment, the
District of Columbia ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Washington Metro, Air and Space Museum, White House, ...
may choose no more electors than the state with the lowest number of electoral votes (in effect, three electors), although since that amendment's ratification the District's population has never reached the threshold that would otherwise entitle it to choose four or more electors. U.S. senators, representatives and federal government officials are barred from becoming electors; in practice, the two major federal parties frequently select senior state party and government officials (up to and including governors) to serve as electors. All states other than Maine (including the District of Columbia) use a
first past the post In a first-past-the-post (FPTP or FPP; sometimes formally called single-member plurality voting or SMP) electoral system, voters cast their vote for a candidate of their choice, and the candidate who receives the most votes wins (irrespective ...
system in their presidential elections. In 2020, Maine switched from first past the post to ranked choice. In '' McPherson v. Blacker'' (1892), the Supreme Court affirmed the ability of a state to appoint its electors based on electoral districts rather than a statewide popular vote, describing the power of state legislatures to determine the method of appointment of electors as "plenary", and suggesting that it was not limited even by state constitutions. In '' Bush v. Palm Beach County Canvassing Board'' (2000), the Supreme Court remanded to the
Supreme Court of Florida The Supreme Court of Florida is the highest court in the U.S. state of Florida. It consists of seven members—the chief justice and six justices. Five members are chosen from five districts around the state to foster geographic diversity and two ...
the question of "the extent to which the Florida Supreme Court saw the
Florida Constitution Florida has been governed by six different constitutions since acceding to the United States. Before 1838, only the Spanish Constitution of 1812 was briefly enacted in Florida. A monument commemorating ''La Constitución de Cádiz'' still stands in ...
as circumscribing the legislature's authority under Art. II, § 1, cl. 2". In ''
Williams v. Rhodes ''Williams v. Rhodes'', 393 U.S. 23 (1968), was a case before the United States Supreme Court. Background Facts Separate suits were brought by the American Independent Party and the Socialist Labor Party, challenging the validity of Ohio election ...
'' (1968), the Court struck down as a violation of the
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal pro ...
an Ohio law which placed heavy burdens on minor parties seeking to be placed on the ballot for presidential electors. The Supreme Court upheld the power of Congress to regulate political contributions intended to influence the appointment of electors in '' Burroughs v. United States'' (1934).


Clause 3: Electors

In modern practice, parties nominate their electors through various methods, see Elector Nominations. Then, each state chooses its electors in popular elections. In most states, the party with the plurality of the popular vote gets all of its electors chosen. Once chosen, the electors meet in their respective states to cast ballots for the president and vice president. Originally, each elector cast two votes for president; at least one of the individuals voted for had to be from a state different from the elector's. The individual with the majority of votes became president, and the runner-up became vice president. In case of a tie between candidates who received votes from a majority of electors, the House of Representatives would choose one of the tied candidates; if no person received a majority, then the House could again choose one of the five with the greatest number of votes. When the House voted, each state delegation cast one vote, and the vote of a majority of states was necessary to choose a president. If second-place candidates were tied, then the Senate broke the tie. A quorum in the House consisted of at least one member from two-thirds of the state delegations; there was no special quorum for the Senate. This procedure was followed in 1801 after the electoral vote produced a tie, and nearly resulted in a deadlock in the House. While the Constitution reflects the framers' clear preference for the president to be elected by a constituency independent of the Congress, one of the most palpable limitations created by the stipulation that electors meet in their respective states as opposed to a single venue was that given the constraints of eighteenth-century technology there was no practical means for that constituency to resolve deadlocked elections in a timely manner, thus necessitating the involvement of Congress in resolving deadlocked elections. Obviously, having the electors meet in the national capital or some other single venue could have permitted the electors to choose a president by means of an
exhaustive ballot The exhaustive ballot is a voting system used to elect a single winner. Under the exhaustive ballot the elector casts a single vote for their chosen candidate. However, if no candidate is supported by an overall majority of votes then the candidat ...
without Congressional involvement, but the framers were dissuaded from such an arrangement by two major considerations. First, it would have been quite burdensome for electors from distant states to travel to the national capital using eighteenth century means for the sole purpose of electing the president – since they were to be barred from simultaneously serving in the federal government in any other capacity, electors would likely have no other reason to go there. But probably even more importantly, many framers genuinely feared that if the electors met in a single venue, especially under the initial assumption that they would act independently as opposed to being bound to vote for particular candidates, they would be vulnerable to the influence of mobs who might try to ensure a particular result by means of threats and intimidation – this had been a fairly common occurrence in European elections for powerful officials by relatively small constituencies (for example, and perhaps in particular, in
papal election A papal conclave is a gathering of the College of Cardinals convened to elect a bishop of Rome, also known as the pope. The pope is considered by Catholics to be the apostolic successor of Saint Peter and earthly head of the Catholic Church. ...
s) from the Middle Ages up to the Constitution's creation. The 12th Amendment introduced a number of important changes to the procedure. Now, electors do not cast two votes for president; rather, they cast one vote for president and another for vice president. In case no presidential candidate receives a majority, the House chooses from the top three (not five, as before the 12th Amendment). The Amendment also requires the Senate to choose the vice president from those with the two highest figures if no vice presidential candidate receives a majority of electoral votes (rather than only if there's a tie for second for president). It also stipulates that to be the vice president, a person must be qualified to be the president.


Clause 4: Election day

Congress sets a national
Election Day Election day or polling day is the day on which general elections are held. In many countries, general elections are always held on a Saturday or Sunday, to enable as many voters as possible to participate; while in other countries elections are ...
. Currently, electors are chosen on the Tuesday following the first Monday in November (the first Tuesday after November 1), in the year before the president's term is to expire. The electors cast their votes on the Monday following the second Wednesday in December (the first Monday after December 12) of that year. Thereafter, the votes are opened and counted by the vice president, as
president of the Senate President of the Senate is a title often given to the presiding officer of a senate. It corresponds to the speaker in some other assemblies. The senate president often ranks high in a jurisdiction's succession for its top executive office: for exam ...
, in a
joint session of Congress A joint session of the United States Congress is a gathering of members of the two chambers of the bicameral legislature of the federal government of the United States: the Senate and the House of Representatives. Joint sessions can be held on an ...
.


Clause 5: Qualifications for office

Section 1 of Article Two of the United States Constitution sets forth the eligibility requirements for serving as president of the United States: At the time of taking office, the President must be: * a natural born citizen (or they became a citizen before September 17, 1787) * at least 35 years of age * an inhabitant of the United States for at least fourteen years. A person who meets the above qualifications, however, may still be constitutionally barred from holding the office of president under any of the following conditions: * Article I, Section 3, Clause 7, gives the U.S. Senate the option of forever disqualifying anyone convicted in an impeachment case from holding any federal office. * Section 3 of the 14th Amendment prohibits anyone who swore an oath to support the Constitution, and later rebelled against the United States, from becoming president. However, this disqualification can be lifted by a two-thirds vote of each house of Congress. * The
22nd Amendment The Twenty-second Amendment (Amendment XXII) to the United States Constitution limits the number of times a person is eligible for election to the office of President of the United States to two, and sets additional eligibility conditions for p ...
prohibits anyone from being elected to the presidency more than twice (or once if the person serves as president or acting president for more than two years of a presidential term to which someone else was originally elected).


Clause 6: Vacancy and disability

The wording of this clause caused much controversy at the time it was first used. When
William Henry Harrison William Henry Harrison (February 9, 1773April 4, 1841) was an American military officer and politician who served as the ninth president of the United States for 31 days in 1841, becoming the first president to die in office and the shortest ...

William Henry Harrison
died in office, a debate arose over whether the vice president would become president, or if he would just inherit the powers, thus becoming an acting president. Harrison's vice president,
John Tyler John Tyler (March 29, 1790January 18, 1862) was the tenth president of the United States, holding office from 1841 to 1845 after briefly serving as the tenth vice president in 1841; he was elected vice president on the 1840 Whig ticket with ...

John Tyler
, believed that he had the right to become president. However, many senators argued that he only had the right to assume the powers of the presidency long enough to call for a new election. Because the wording of the clause is so vague, it was impossible for either side to prove its point. Tyler took the Oath of Office as president, setting a precedent that made it possible for later vice presidents to ascend to the presidency unchallenged following the president's death. The "Tyler Precedent" established that if the president dies, resigns or is removed from office, the vice president becomes president. The Congress may provide for a
line of succession An order of succession or right of succession is the line of individuals entitled to hold a high office when it becomes vacated such as head of state or an honour such as a title of nobility.Presidential Succession Act The United States Presidential Succession Act is a federal statute establishing the presidential line of succession. Article II, Section 1, Clause 6 of the United States Constitution authorizes Congress to enact such a statute: Congress has ena ...
establishes the order as the speaker of the House of Representatives, the president ''pro tempore'' of the Senate and then the fifteen Cabinet secretaries in order of each department's establishment. There are concerns regarding the constitutionality of having members of Congress in the line of succession, however, as this clause specifies that only an "
officer of the United StatesAn officer of the United States is a functionary of the executive or judicial branches of the federal government of the United States to whom is delegated some part of the country's sovereign power. The term "officer of the United States" is not a ti ...
" may be designated as a presidential successor. Constitutional scholars from
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, expansionist, philosopher, and Founding Father who served as the fourth president of the United States from 1809 to 1817. He is hailed as the "Father of the ...

James Madison
to the present day have argued that the term "officer" excludes members of Congress. The
25th Amendment The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with presidential succession and disability. It clarifies that the vice president becomes president if the president dies, resigns, or is removed from office, and ...
explicitly states that if the president dies, resigns or is removed from office, the vice president becomes president, and also establishes a procedure for filling a vacancy in the office of the vice president. The Amendment further provides that the president, or the vice president and Cabinet, can declare the president unable to discharge his or her duties, in which case the vice president becomes Acting president. If the declaration is done by the vice president and Cabinet, the Amendment permits the president to take control back, unless the vice president and Cabinet challenge the president and two-thirds of both Houses vote to sustain the findings of the vice president and Cabinet. If the declaration is done by the president, he or she may take control back without risk of being overridden by the Congress.


Clause 7: Salary

The president's salary, currently $400,000 a year, must remain constant throughout the president's term. The president may not receive other compensation from either the federal or any state government.


Clause 8: Oath or affirmation

According to the Joint Congressional Committee on Presidential Inaugurations,
George Washington George Washington (February 22, 1732, 1799) was an American political leader, military general, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Previously, he led Patriot forces to vi ...

George Washington
added the words "So help me God" during his first inaugural, though this has been disputed. There are no contemporaneous sources for this fact, and no eyewitness sources to Washington's first inaugural mention the phrase at all—including those that transcribed what he said for his oath. Also, the president-elect's name is typically added after the "I", for example, "I, George Washington, do...." Normally, the
chief justice of the United States The chief justice of the United States is the chief judge of the Supreme Court of the United States and the highest-ranking officer of the U.S. federal judiciary. Article II, Section 2, Clause 2 of the U.S. Constitution grants plenary power to th ...
administers the oath. It is sometimes asserted that the oath bestows upon the president the power to do whatever is necessary to "preserve, protect and defend the Constitution."
Andrew Jackson Andrew Jackson (March 15, 1767 – June 8, 1845) was an American lawyer, soldier, and statesman who served as the seventh president of the United States from 1829 to 1837. Before being elected to the presidency, Jackson gained fame as a ...

Andrew Jackson
, while vetoing an Act for the renewal of the charter of the national bank, implied that the president could refuse to execute statutes that he felt were unconstitutional. In suspending the privilege of the writ of ''habeas corpus'', President
Abraham Lincoln Abraham Lincoln (; February 12, 1809 – April 15, 1865) was an American statesman and lawyer who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation through the American Civil ...
claimed that he acted according to the oath. His action was challenged in court and overturned by the U.S. Circuit Court in
Maryland Maryland ( ) is a state in the Mid-Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware and the Atlantic Ocean to its east. Baltimo ...

Maryland
(led by Chief Justice
Roger B. Taney Roger Brooke Taney (; March 17, 1777 – October 12, 1864) was the fifth Chief Justice of the United States, holding that office from 1836 until his death in 1864. He delivered the majority opinion in ''Dred Scott v. Sandford'' (1856), ruling that ...
) in ''
Ex Parte Merryman ''Ex parte Merryman'', 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487), is a well-known and controversial U.S. federal court case that arose out of the American Civil War. It was a test of the authority of the President to suspend "th ...
'', 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. Finally,
Andrew Johnson Andrew Johnson (December 29, 1808 July 31, 1875) was the 17th president of the United States, serving from 1865 to 1869. He assumed the presidency as he was vice president at the time of the assassination of Abraham Lincoln. Johnson was a Democ ...

Andrew Johnson
's counsel referred to the theory during his
impeachment trial Impeachment is the process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. Impeachment may be understood as a unique process involving both political and legal element ...
. Otherwise, few have seriously asserted that the oath augments the president's powers. The vice president also has an oath of office, but it is not mandated by the Constitution and is prescribed by statute. Currently, the vice presidential oath is the same as that for members of Congress.
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.


Section 2: Presidential powers

In the landmark decision '' Nixon v. General Services Administration'' (1977),
Justice Justice, one of the Madonna of Mercy, Palazzo Altemps, Rome">Virgin of Mercy">Madonna of Mercy, Palazzo Altemps, Rome Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what t ...
William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American lawyer and jurist who served on the Supreme Court of the United States for 33 years, as an associate justice from 1972 to 1986 and as Chief Justice from 1986 unti ...

William Rehnquist
, afterwards the
chief justice#REDIRECT Chief justice {{R from move ...
, declared in his dissent "It would require far more of a discourse than could profitably be included in an opinion such as this to fully describe the preeminent position that the president of the United States occupies with respect to our Republic. Suffice it to say that the president is made the sole repository of the executive powers of the United States, and the powers entrusted to him as well as the duties imposed upon him are awesome indeed." Unlike the modern constitutions of many other countries, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution itself includes no comprehensive separate regime for emergencies. Some legal scholars according to
The Atlantic ''The Atlantic'' is an American magazine and multi-platform publisher. It was founded in 1857 in Boston, Massachusetts, as ''The Atlantic Monthly'', a literary and cultural magazine that published leading writers' commentary on education, the ...
believe however that the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined “executive Power.” Congress has delegated at least 136 distinct statutory emergency powers to the President, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress; the remaining 123 are assumed by an
executive Executive may refer to: Role, title, or function * Executive (government), branch of government that has authority and responsibility for the administration of state bureaucracy * Executive, a senior management role in an organization ** Chief exec ...
declaration with no further Congressional input. Congressionally-authorized emergency presidential powers are sweeping and dramatic and range from seizing control of the internet to declaring martial law. This led the magazine ''
The Atlantic ''The Atlantic'' is an American magazine and multi-platform publisher. It was founded in 1857 in Boston, Massachusetts, as ''The Atlantic Monthly'', a literary and cultural magazine that published leading writers' commentary on education, the ...
'' to observe that "the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power", because, in the words of Justice Robert H. Jackson's dissent in ''
Korematsu v. United States ''Korematsu v. United States'', 323 U.S. 214 (1944), was a landmark United States Supreme Court case upholding the exclusion of Japanese Americans from the West Coast Military Area during World War II. The decision has widely been criticized, with ...
'' (1944), the decision that upheld the internment of Japanese Americans, each emergency power "lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need."


Clause 1: Command of military; Opinions of cabinet secretaries; Pardons

The Constitution vests the president with Executive Power. That power reaches its zenith when wielded to protect national security, and federal courts in the United States must pay proper deference to the Executive in assessing the threats that face the nation. The president is the military's commander-in-chief; however Article One gives Congress and not the president the exclusive right to
declare war ''Declare'' (2000) is a supernatural spy novel by American author Tim Powers. The novel presents a secret history of the Cold War, and earned several major fantasy fiction awards. Plot summary The non-linear plot, shifting back and forth in time ...
. Nevertheless, the power of the president to initiate hostilities has been subject to question. According to historian
Thomas Woods Thomas Ernest Woods Jr. (born August 1, 1972) is an American author, historian, and libertarian who is currently a senior fellow at the Mises Institute.Naji FilaliInterview with Thomas E. Woods, Jr. Harvard Political Review, August 16, 2011. Woods ...
, "Ever since the
Korean War The Korean War (South Korean: ; North Korean: , "Fatherland Liberation War"; 25 June 1950–27 July 1953) was a war between North Korea (with the support of China and the Soviet Union) and South Korea (with the support of the United Nations, ...
, Article II, Section 2 ..has been interpreted 'The president has the power to initiate hostilities without consulting Congress' ...But what the framers actually meant by that clause was that once war has been declared, it was the president's responsibility as commander-in-chief to direct the war. Alexander Hamilton spoke in such terms when he said that the president, although lacking the power to declare war, would have 'the direction of war when authorized or begun.' The president acting alone was authorized only to repel sudden attacks (hence the decision to withhold from him only the power to 'declare' war, not to 'make' war, which was thought to be a necessary emergency power in case of foreign attack)." Since
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a global war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all the great powers—forming two opposing milit ...
, every major military action has been technically a U.S. military operation or a U.N. "
police action In military/security studies and international relations, "police action" is a military action undertaken without a formal declaration of war. Today the term counter-insurgency is more used. Since World War II, formal declarations of war have been ...
", which are deemed legally legitimate by Congress, and various
United Nations Resolution A United Nations resolution (UN resolution) is a formal text adopted by a United Nations (UN) body. Although any UN body can issue resolutions, in practice most resolutions are issued by the Security Council or the General Assembly. Legal statu ...
s because of decisions such as the
Gulf of Tonkin Resolution The Gulf of Tonkin Resolution or the Southeast Asia Resolution, , was a joint resolution that the United States Congress passed on August 7, 1964, in response to the Gulf of Tonkin incident. It is of historic significance because it gave U.S. Presi ...
or the Resolution of The Congress Providing Authorization for Use of Force In Iraq. The president may require the "principal officer" of any executive department to tender his advice in writing. While the Constitution nowhere requires a formal
Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filing c ...
, it does authorize the president to seek advice from the principal officers of the various departments as he (or she) performs their official duties. George Washington found it prudent to organize his principal officers into a Cabinet, and it has been part of the executive branch structure ever since. Presidents have used Cabinet meetings of selected principal officers but to widely differing extents and for different purposes. Secretary of State William H. Seward advocated the use of a parliamentary-style Cabinet government to President Abraham Lincoln, but was rebuffed. Later, Woodrow Wilson advocated use of a parliamentary-style Cabinet while he was a professor, but as president he would have none of it in his administration. In recent administrations, cabinets have grown to include key White House staff in addition to department and agency heads. President Ronald Reagan formed seven subcabinet councils to review many policy issues, and subsequent presidents have followed that practice.
Pardon A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the ju ...
s and reprieves may be granted by the president, except in cases of
impeachment Impeachment is the process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. Impeachment may be understood as a unique process involving both political and legal element ...
. There is currently no universally accepted interpretation of the impeachment exception. Some argue that the president simply cannot use a pardon to stop an officeholder from being impeached, while others suggest that crimes underlying an impeachment cannot be pardoned by the president. As ruled by the Supreme Court in '' United States v. Wilson'' (1833), the pardon could be rejected by the convict. Then, in '' Burdick v. United States'' (1915), the court specifically said, "Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy." Commutations (reduction in prison sentence), unlike pardons (restoration of civil rights after prison sentence had been served) may not be refused. In '' Biddle v. Perovich'' , the subject of the commutation did not want to accept life in prison but wanted the death penalty restored. The Supreme Court said, " pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."


Clause 2: Advice and Consent Clause

The president exercises the powers in the Advice and Consent Clause with the
advice and consent Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts. It describes either of two situations: where a weak executive branch of a government enacts something previousl ...
of the Senate.


Treaties

The president may enter the United States into treaties, but they are not effective until approved by a two-thirds vote in the Senate. In Article II however, the Constitution is not very explicit about the termination of treaties. The first abrogation of a treaty occurred in 1798, when Congress passed a law terminating a
Treaty of Alliance (1778) The Treaty of Alliance, also known as the Franco-American Treaty, was a defensive alliance between the Kingdom of France and the United States of America formed amid the American Revolutionary War with Great Britain. It was signed by delegates of ...
. In 1854, however, President
Franklin Pierce Franklin Pierce (November 23, 1804October 8, 1869) was the 14th president of the United States, serving from 1853 to 1857. A northern Democrat who believed that the abolitionist movement was a fundamental threat to the unity of the nation, he ...
terminated a treaty with
Denmark Denmark ( da, Danmark, ), officially the Kingdom of Denmark, da, Kongeriget Danmark, . See also: The unity of the Realm is a Nordic country in Northern Europe. Denmark proper, which is the southernmost of the Scandinavian countries, consists o ...
with the consent of the Senate alone. A Senate committee ruled that it was correct procedure for the president to terminate treaties after being authorized by the Senate alone, and not the entire Congress. President Pierce's successors, however, returned to the former procedure of obtaining authorization from both Houses. Some presidents have claimed to themselves the exclusive power of terminating treaties. The first unambiguous case of a president terminating a treaty without authorization, granted prior to or after the termination, occurred when
Jimmy Carter James Earl Carter Jr. (born October 1, 1924) is an American politician, businessman, and philanthropist who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party, he previously served as a Geor ...

Jimmy Carter
terminated a treaty with the
Republic of China Taiwan (), officially the Republic of China (ROC), is a country in East Asia. Neighbouring countries include the People's Republic of China (PRC) to the northwest, Japan to the northeast, and the Philippines to the south. The main island of Ta ...
. For the first time, judicial determination was sought, but the effort proved futile: the Supreme Court could not find a majority agreeing on any particular principle, and therefore instructed the trial court to dismiss the case.


Appointments

The president may also appoint judges, ambassadors, consuls, ministers and other officers with the advice and consent of the Senate. By law, however, Congress may allow the president, heads of executive departments, or the courts to appoint inferior officials. The Senate has a long-standing practice of permitting motions to reconsider previous decisions. In 1931, the Senate granted advice and consent to the president on the appointment of a member of the
Federal Power Commission The Federal Power Commission (FPC) was an independent commission of the United States government, originally organized on June 23, 1930, with five members nominated by the president and confirmed by the Senate. The FPC was originally created in 192 ...
. The officer in question was sworn in, but the Senate, under the guise of a motion to reconsider, rescinded the advice and consent. In the writ of quo warranto proceedings that followed, the Supreme Court ruled that the Senate was not permitted to rescind advice and consent after the officer had been installed. After the Senate grants advice and consent, however, the president is under no compulsion to commission the officer. It has not been settled whether the president has the prerogative to withhold a commission after having signed it. This issue played a large part in the seminal court case ''
Marbury v. Madison ''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and s ...
''. At times the president has asserted the power to remove individuals from office. Congress has often explicitly limited the president's power to remove; during the
Reconstruction Era The Reconstruction era, the period in American history that lasted from 1865 to 1877 following the American Civil War (1861–65), marked a significant chapter in the history of civil rights in the United States. Reconstruction ended the remn ...
, Congress passed the Tenure of Office Act, purportedly preventing Andrew Johnson from removing, without the advice and consent of the Senate, anyone appointed with the advice and consent of the Senate. President Johnson ignored the Act, and was later impeached and acquitted. The constitutionality of the Act was not immediately settled. In '' Myers v. United States'', the Supreme Court held that Congress could not limit the president's power to remove an executive officer (the
Postmaster General A Postmaster General, in Anglosphere countries, is the chief executive officer of the postal service of that country, a ministerial office responsible for overseeing all other postmasters. The practice of having a government official responsible fo ...
), but in ''
Humphrey's Executor v. United States ''Humphrey's Executor v. United States'', 295 U.S. 602 (1935), was a US Supreme Court case decided during Franklin Roosevelt's presidency regarding the powers of the US President has to remove executive officials of a quasi-legislative or quasi-jud ...
'', it upheld Congress's authority to restrict the president's power to remove officers of the
Federal Trade Commission The Federal Trade Commission (FTC) is an independent agency of the United States government whose principal mission is the enforcement of civil (non-criminal) U.S. antitrust law and the promotion of consumer protection. The Commission is headed ...
, an "administrative body
hat A collection of 18th and 19th century men's beaver felt hats A hat is a head covering which is worn for various reasons, including protection against weather conditions, ceremonial reasons such as university graduation, religious reasons, safety ...
cannot in any proper sense be characterized as an arm or an eye of the executive." Congress may repeal the legislation that authorizes the appointment of an executive officer. But it "cannot reserve for itself the power of an officer charged with the execution of the laws except by impeachment."


Clause 3: Recess appointments

During recesses of the Senate, the president may appoint officers, but their commissions expire at the conclusion of the Senate's next session.


Section 3: Presidential responsibilities


Clause 1: State of the Union

The president must give the Congress information on the "
State of the Union The State of the Union Address (sometimes abbreviated to SOTU) is an annual message delivered by the president of the United States to the U.S. Congress near the beginning of each calendar year on the current condition of the nation. The messag ...
" "from time to time." This is called the State of the Union Clause. Originally, presidents personally delivered annual addresses to Congress.
Thomas Jefferson Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He had previously served a ...

Thomas Jefferson
, who felt that the procedure resembled the
speech from the throne Speech is human vocal communication using language. Each language uses phonetic combinations of vowel and consonant sounds that form the sound of its words (that is, all English words sound different from all French words, even if they are the s ...
delivered by British monarchs, chose instead to send written messages to Congress for reading by clerks. Jefferson's procedure was followed by future presidents until
Woodrow Wilson Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was an American politician and academic who served as the 28th president of the United States from 1913 to 1921. A member of the Democratic Party, Wilson served as the president of Pri ...
reverted to the former procedure of personally addressing Congress, which has continued . Kesavan and Sidak explain the purpose of the State of the Union clause:
The State of the Union Clause imposes an executive duty on the president. That duty must be discharged periodically. The president's assessment of the State of the Union must be publicized to Congress, and thus to the nation. The publication of the president's assessment conveys information to Congress—information uniquely gleaned from the president's perspective in his various roles as commander-in-chief, chief law enforcer, negotiator with foreign powers, and the like—that shall aid the legislature in public deliberation on matters that may justify the enactment of legislation because of their national importance.


Clause 2: Making recommendations to Congress

The president has the power and duty to recommend, for the consideration of Congress, such measures which the president deems as "necessary and expedient". At his inauguration
George Washington George Washington (February 22, 1732, 1799) was an American political leader, military general, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Previously, he led Patriot forces to vi ...

George Washington
declared in his
Inaugural Address In government and politics, inauguration is the process of swearing a person into office and thus making that person the incumbent. Such an inauguration commonly occurs through a formal ceremony or special event, which may also include an inaugura ...
: "By the article establishing the executive department it is made the duty of the president 'to recommend to your consideration such measures as he shall judge necessary and expedient.'" This is the Recommendation Clause. Kesavan and Sidak explain the purpose of the Recommendation Clause:
The Recommendation Clause also imposes an executive duty on the president. His recommendations respect the equal dignity of Congress and thus embody the anti-royalty sentiment that ignited the American Revolution and subsequently stripped the trappings of monarchy away from the new chief executive. Through his recommendations to Congress, the president speaks collectively for the People as they petition Government for a redress of grievances, and thus his recommendations embody popular sovereignty. The president tailors his recommendations so that their natural implication is the enactment of new legislation, rather than some other action that Congress might undertake. Finally, the president shall have executive discretion to recommend measures of his choosing.
Sidak explained that there is a connection between the Recommendation Clause and the Petition Clause of the 1st Amendment: "Through his performance of the duty to recommend measures to Congress, the president functions as the agent of a diffuse electorate who seek the redress of grievances. To muzzle the president, therefore, is to diminish the effectiveness of this right expressly reserved to the people under the first amendment." Kesavan and Sidak also cited a Professor Bybee who stated in this context: "The Recommendation Clause empowers the president to represent the people before Congress, by recommending measures for the reform of government, for the general welfare, or for the redress of grievances. The Right of Petition Clause prevents Congress from abridging the right of the people to petition for a redress of grievances." The Recommendation clause imposes a duty, but its performance rests solely with the president. Congress possesses no power to compel the president to recommend, as he alone is the "judge" of what is "necessary and expedient." Unlike the
Necessary and Proper Clause The Necessary and Proper Clause, also known as the Elastic Clause, is a clause in Article I, Section 8 of the United States Constitution: Background According to the Articles of Confederation, "each state retains its sovereignty, freedom, and in ...
of Article I, which limits Congress's discretion to carrying out only its delegated powers, the phrase "necessary and expedient" implies a wider range of discretion for the president. Because this is a political question, there has been little judicial involvement with the president's actions under the clause as long as presidents have not tried to extend their legislative powers. In '' Youngstown Sheet & Tube Co. v. Sawyer'' (1952), the Supreme Court noted that the Recommendations Clause serves as a reminder that the president cannot make law by himself: "The power to recommend legislation, granted to the president, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate." The Court made a similar point in striking down the
line-item veto The line-item veto, also called the partial veto, is a special form of veto power that authorizes a chief executive to reject particular provisions of a bill enacted by a legislature without vetoing the entire bill. Many countries have different ...
in '' Clinton v. City of New York'' (1998). When President
Bill Clinton William Jefferson Clinton (''né'' Blythe III; born August 19, 1946) is an American politician and attorney who served as the 42nd president of the United States from 1993 to 2001. Prior to his presidency, he served as governor of Arkansas ...

Bill Clinton
attempted to shield the records of the President's Task Force on Health Care Reform as essential to his functions under the Recommendations Clause, a federal circuit court rejected the argument and noted in ''Ass'n of American Physicians & Surgeons v. Clinton'' (1993): " e Recommendation Clause is less an obligation than a right. The president has the undisputed authority to recommend legislation, but he need not exercise that authority with respect to any particular subject or, for that matter, any subject."


Clause 3: Convening and adjourning of Congress

To allow the government to act quickly in case of a major domestic or international crisis arising when Congress is not in session, the president is empowered to call a
special session In a legislature, a special session (also extraordinary session) is a period when the body convenes outside of the normal legislative session. This most frequently occurs in order to complete unfinished tasks for the year (often delayed by conflic ...
of one or both houses of Congress. Since
John Adams John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Father who served as the second president of the United States from 1797 to 1801. Before his presidency, he was a leader of the ...

John Adams
first did so in 1797, the president has called the full Congress to convene for a special session on 27 occasions.
Harry Truman Harry S. Truman (May 8, 1884 – December 26, 1972) was the 33rd president of the United States, serving from 1945 to 1953, succeeding upon the death of Franklin D. Roosevelt after serving as the 34th vice president. He implemented the Marshall ...
was the most recent to do so in July 1948 (the so called " Turnip Day Session"). Additionally, prior to ratification of the Twentieth Amendment (which brought forward the date on which Congress convenes from December to January) in 1933, newly
inaugurated In government and politics, inauguration is the process of swearing a person into office and thus making that person the incumbent. Such an inauguration commonly occurs through a formal ceremony or special event, which may also include an inaugura ...
presidents would routinely call the Senate to meet to confirm nominations or ratify treaties. Clause 3 also authorizes the president to prorogue Congress if the House and Senate cannot agree on the time of adjournment; no president has ever had to exercise this administrative power. In 2020, President
Donald Trump Donald John Trump (born June 14, 1946) is an American media personality and businessman who served as the 45th president of the United States from 2017 to 2021. Born and raised in Queens, New York City, Trump attended Fordham University ...
threatened to use this clause as a justification to prorogue both houses of Congress in order to make recess appointments during the
COVID-19 pandemic The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing global pandemic of coronavirus disease 2019 (COVID-19) caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The virus was first identified in Dec ...
, although he does not have the authority to do so unless either the Senate or the House of Representatives were to alter their scheduled adjournment dates.


Clause 4: Receiving foreign representatives

The president receives all foreign ambassadors. This clause of the Constitution, known as the Reception Clause, has been interpreted to imply that the president possesses broad power over matters of foreign policy, and to provide support for the president's exclusive authority to grant recognition to a foreign government.


Clause 5: Caring for the faithful execution of the law

The president must "take care that the laws be faithfully executed." This clause in the Constitution imposes a duty on the president to enforce the laws of the United States and is called the Take Care Clause, also known as the Faithful Execution Clause or Faithfully Executed Clause. This clause is meant to ensure that a law is faithfully executed by the president even if he disagrees with the purpose of that law. Addressing the North Carolina ratifying convention, William Maclaine declared that the Faithful Execution Clause was "one of the onstitution'sbest provisions." If the president "takes care to see the laws faithfully executed, it will be more than is done in any government on the continent; for I will venture to say that our government, and those of the other states, are, with respect to the execution of the laws, in many respects mere ciphers." President George Washington interpreted this clause as imposing on him a unique duty to ensure the execution of federal law. Discussing a tax rebellion, Washington observed, "it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to hat duty. According to former United States Assistant Attorney General Walter E. Dellinger III, the Supreme Court and the Attorneys General have long interpreted the Take Care Clause to mean that the president has no inherent constitutional authority to suspend the enforcement of the laws, particularly of statutes. The Take Care Clause demands that the president obey the law, the Supreme Court said in
Humphrey's Executor v. United States ''Humphrey's Executor v. United States'', 295 U.S. 602 (1935), was a US Supreme Court case decided during Franklin Roosevelt's presidency regarding the powers of the US President has to remove executive officials of a quasi-legislative or quasi-jud ...
, and repudiates any notion that he may dispense with the law's execution. In ''Printz v. United States'', the Supreme Court explained how the president executes the law: "The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the president, it says, "shall take Care that the Laws be faithfully executed," Art. II, §3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the "Courts of Law" or by "the Heads of Departments" with other presidential appointees), Art. II, §2." The president may not prevent a member of the executive branch from performing a ministerial duty lawfully imposed upon him by Congress. (See
Marbury v. Madison ''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and s ...
(1803); and Kendall v. United States ex rel. Stokes (1838).) Nor may the president take an action not authorized either by the Constitution or by a lawful statute. (See Youngstown Sheet & Tube Co. v. Sawyer (1952).) Finally, the president may not refuse to enforce a constitutional law, or "cancel" certain appropriations, for that would amount to an extra-constitutional veto or suspension power. Some presidents have claimed the authority under this clause to impound money appropriated by Congress. President Jefferson, for example, delayed the expenditure of money appropriated for the purchase of gunboats for over a year. President Franklin D. Roosevelt and his successors sometimes refused outright to expend appropriated money. The Supreme Court, however, has held that impoundments without Congressional authorization are unconstitutional. It has been asserted that the president's responsibility in the "faithful" execution of the laws entitles him to suspend the privilege of the writ of ''habeas corpus''. Article One provides that the privilege may not be suspended save during times of rebellion or invasion, but it does not specify who may suspend the privilege. The Supreme Court ruled that Congress may suspend the privilege if it deems it necessary. During the American Civil War, President
Abraham Lincoln Abraham Lincoln (; February 12, 1809 – April 15, 1865) was an American statesman and lawyer who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation through the American Civil ...
suspended the privilege, but, owing to the vehement opposition he faced, obtained congressional authorization for the same. Since then, the privilege of the writ has only been suspended upon the express authorization of Congress, except in the case of Mary Surratt, whose writ was suspended by President Andrew Johnson regarding her alleged involvement in the assassination of President Lincoln. In ''Mississippi v. Johnson'', , the Supreme Court ruled that the judiciary may not restrain the president in the execution of the laws. In that case the Supreme Court refused to entertain a request for an injunction preventing President Andrew Johnson from executing the Reconstruction Acts, which were claimed to be unconstitutional. The Court found that "[t]he Congress is the legislative department of the government; the president is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance." Thus, the courts cannot bar the passage of a law by Congress, though it may later strike down such a law as unconstitutional. A similar construction applies to the executive branch.


Clause 6: Officers' commissions

The president commissions "all the Officers of the United States." These include officers in both military and foreign service. (Under Article I, Section 8, the States have authority for "the Appointment of the Officers . . . of the [State] Militia (United States), Militia . . ..") The presidential authority to commission officers had a large impact on the 1803 case ''
Marbury v. Madison ''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and s ...
'', where outgoing Federalist President
John Adams John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Father who served as the second president of the United States from 1797 to 1801. Before his presidency, he was a leader of the ...

John Adams
feverishly signed many commissions to the judiciary on his final day in office, hoping to, as incoming Democratic-Republican President
Thomas Jefferson Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He had previously served a ...

Thomas Jefferson
put it, "[retire] into the judiciary as a stronghold." However, in his haste, Adams' secretary of State neglected to have all the commissions delivered. Incoming President Jefferson was enraged with Adams, and ordered his United States Secretary of State, secretary of State,
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, expansionist, philosopher, and Founding Father who served as the fourth president of the United States from 1809 to 1817. He is hailed as the "Father of the ...

James Madison
, to refrain from delivering the remaining commissions. William Marbury took the matter to the Supreme Court, where the famous ''Marbury'' was decided.


Section 4: Impeachment

The Constitution also allows for involuntary removal from office of the president, vice president, White House Cabinet Secretary, Cabinet secretaries, and other executive officers, as well as judges, who may be Impeachment in the United States, impeached by the House of Representatives and tried in the Senate. Any official convicted by the Senate is immediately removed from office, and to prevent the President's Article II appointment power from being used as a de-facto pardon the Senate may also vote by a simple majority, that the removed official be forever disqualified from holding any future Officer of the United States, office under the United States. Constitutional law expert Senator Matthew H. Carpenter, Matthew Carpenter reported that without the permanent disqualification clause impeachment would have no effect, because the President could simply reinstate his impeached officers "the next morning." While no other punishments may be inflicted pursuant to the impeachment proceeding, the convicted party remains liable to trial and punishment in the courts for civil and criminal charges.''Cf. Ritter v. United States'', 84 Ct. Cl. 293, 300 (Ct. Cl. 1936) ("While the Senate in one sense acts as a court on the trial of an impeachment, it is essentially a political body and in its actions is influenced by the views of its members on the public welfare."); Staff of H. Comm. On The Judiciary, 93D Cong., Constitutional Grounds for Presidential Impeachment 24 (Comm. Print 1974) ("The purpose of impeachment is not personal punishment; its function is primarily to maintain constitutional government.") (citation omitted), ''reprinted in'' 3 Lewis Deschler, Deschler's Precedents of the United States House of Representatives , H.R. DOC. NO. 94‒661 ch. 14, app. at 2269 (1977).


See also

* Unitary executive theory


References


External links


Kilman, Johnny and George Costello (Eds). (2000). ''The Constitution of the United States of America: Analysis and Interpretation.''




{{DEFAULTSORT:Article Two Of The United States Constitution Article Two of the United States Constitution, Articles of the United States Constitution, 2 Executive branch of the government of the United States Presidency of the United States, 2