Article Two of the United States Constitution establishes the executive branch of the federal government, 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, lays out the procedures for electing and removing/impeaching 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 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 among the three branches of government. Section 1 also establishes the Electoral College, 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. Section 1 lays out the procedures of the Electoral College and requires the House of Representatives to hold a contingent election 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.
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. This section gives the president the power to grant pardons. Section 2 also requires the "principal officer" of any executive department to tender advice.
Though not required by Article Two, President George Washington organized the principal officers of the executive departments into the Cabinet, a practice that subsequent presidents have followed. The Treaty Clause grants the president the power to enter into treaties with the approval of two-thirds of the Senate. The Appointments Clause grants the president the power to appoint judges and public officials subject to the advice and consent 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 appointments 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 Recommendation Clause requires the president to recommend measures deemed "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 gives directives on impeachment. The directive states, "The President, Vice President and all civil Officers of the United States shall be removed from office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
Section 1: President and vice president<span class="anchor" id="Section 1"></span>
Clause 1: Executive power and term of office
thumb|right|upright=1.2|alt=George Washington, inaugurated as President, April 30, 1789|[[George Washington's inauguration as the first U.S. president, April 30, 1789, by Ramon de Elorriaga (1889)]]
Section 1 begins with a vesting clause that confers federal executive power upon the president. Similar clauses are found in Article I and Article III; the former bestows federal legislative power exclusively to Congress, and the latter grants judicial power solely to the Supreme Court, and other federal courts established by law. These three articles together secure a separation of powers among the three branches of the federal government, and individually, each one entrenches checks and balances 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.
The President may 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". The President must notify Congress within 48 hours after the beginning of military operations, giving the source of his authority for the action. Once legal notification is given to 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."
<!--Treaties are official agreements with foreign governments. They are made by the President, but must be approved by a two-thirds majority in the Senate in order to enter into force into U.S. law. The President also shapes and determines U.S. foreign policy initiatives, can enter into discussions and give conditional approval to agreements reached with foreign governments subject to Senate approval.
Conventional legal wisdom says that the president, in their capacity as head of state and individual representative of the United States, has the authority to withdraw the United States from treaties and interpret the terms of treaties outside of domestic law.-->
Clause 2: Method of choosing electors<span class="anchor" id="Section 1, Clause 2"></span><span class="anchor" id="Choosing electors"></span>
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 each 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.
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 question of "the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority under Art. II, § 1, cl. 2". In Williams v. Rhodes (1968), the Court struck down as a violation of the Equal Protection Clause 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). 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 by the president of the Senate, and then counted by Congress in a joint session.
Clause 5: Qualifications for office<span class="anchor" id="Section 1, Clause 5"></span>
thumb|upright=2.2|center|Beginning of the clause in the 1787 document
Section 1 of Article Two of the United States Constitution sets forth the eligibility requirements for serving as president of the United States:
thumb|In this [[1944 United States presidential election|1944 poster, Franklin Roosevelt (left) successfully campaigned for a fourth term. He was the only president who served more than two terms.]]
At the time of taking office, the President must be:
- a natural-born citizen, or a person recognized as 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 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<span class="anchor" id="Section 1, Clause 6"></span>
thumb|alt=An illustration: Tyler stands on his porch in Virginia, approached by a man with an envelope. Caption reads "Tyler receiving the news of Harrison's death."|1888 illustration of new [[President of the United States|President John Tyler receiving the news of President William H. Harrison's death from Chief Clerk of the State Department Fletcher Webster]]
(Note: This clause was partially superseded by the 25th Amendment in 1967.)
The wording of this clause caused much controversy at the time it was first used. When 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, 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 beyond the vice president. The current Presidential Succession Act 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 States" may be designated as a presidential successor. Constitutional scholars from James Madison to the present day have argued that the term "officer" excludes members of Congress.
The 25th Amendment 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, the president may take control back without risk of being overridden by the Congress.
Clause 7: Salary<span class="anchor" id="Section 1, Clause 7"></span>
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<span class="anchor" id="Section 1, Clause 8"></span>
thumb|President [[Barack Obama being administered the oath of office by Chief Justice John Roberts for the second time at his first inauguration, on January 21, 2009]]
According to the Joint Congressional Committee on Presidential Inaugurations, 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.
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, 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 claimed that he acted according to the oath. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Chief Justice Roger B. Taney) in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. Finally, Andrew Johnson's counsel referred to the theory during his impeachment trial. Otherwise, few have seriously asserted that the oath augments the president's powers.
Traditionally, the chief justice of the United States administers the presidential oath of office, a practice that began with the inauguration of John Adams in 1797, though this is not mandated by the Constitution. Any person with legal authority to administer oaths, such as a judge or a notary public, may swear in a new president. On eight occasions, a person other than the chief justice has administered the oath of office. The most recent president to be sworn in by a non-chief justice was Lyndon B. Johnson, who was swiftly inaugurated as the 36th president in 1963 by district federal judge Sarah T. Hughes, immediately after the assassination of John F. Kennedy.
The vice president also has an oath of office, but it is taken under the Oath or Affirmation Clause of Article VI that provides that "all ... Officers ... of the United States ... shall be bound by Oath or Affirmation, to support this Constitution". Pursuant to Article VI, the 1st United States Congress passed the Oath Administration Act (that remains in effect) which provides that "...the oath or affirmation required by the sixth article of the Constitution of the United States ... shall be administered to [the President of the Senate]". Currently, the vice presidential oath is the same as that for members of Congress and members of the Cabinet, which is as follows:
Section 2: Presidential powers<span class="anchor" id="Section 2"></span>
In the landmark decision Nixon v. General Services Administration (1977), Justice William Rehnquist, afterwards the chief justice, 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. However, according to The Atlantic, some legal scholars believe 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". 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 to observe that "the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power", and ruled that federal courts in the United States must show deference to the executive in assessing threats to the country. The president is the military's commander-in-chief; however, Article One's War Powers Clause gives Congress, and not the president, the exclusive right to declare war. Nevertheless, the power of the president to initiate hostilities has been subject to question. According to historian Thomas Woods, "Ever since the Korean War, 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, major U.S. military engagements, including the Korean War and the Vietnam War, have commenced as "military operations" or under the framework of United Nations "police action". These campaigns or efforts have been justified through Congressional authorizations, such as the Gulf of Tonkin Resolution and the Authorization for Use of Military Force Against Iraq, as well as through United Nations resolutions, providing a basis for their legal legitimacy.
The president may require the "principal officer" of any executive department to tender their advice in writing. While the Constitution nowhere requires a formal Cabinet, it does authorize the president to seek advice from the principal officers of the various departments as they perform 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 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.
Pardons and reprieves may be granted by the president, except in cases of impeachment. 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, "[a] 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<span class="anchor" id="Section 2, Clause 2"></span>
The president exercises the powers in the Advice and Consent Clause with the advice and consent of the Senate.
Treaties
The president shall have the power to make treaties, with approval of two-thirds of the Senate. In Article II however, the Constitution is not explicit about the termination of treaties. The first abrogation of a treaty occurred in 1798, when Congress passed a law terminating the Treaty of Alliance (1778). In 1854, however, President Franklin Pierce terminated a treaty with Denmark with the consent of the Senate. A Senate committee ruled that it was correct procedure for the president to terminate treaties after being authorized by the Senate. 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 terminated a treaty with the Republic of China. 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 federal judges, U.S. ambassadors, consuls, ministers, and other officers of the United States with the advice and consent of the Senate. However, Congress may instead legislate for the appointment of particular inferior officials by the president, heads of executive departments, or the courts.
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 officer in question was sworn in, but the Senate, under the guise of a motion to reconsider, rescinded the advice and consent. In the 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 Supreme Court has ruled that 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.
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, Congress passed the Tenure of Office Act, proscribing, without the advice and consent of the Senate, presidential removal of anyone appointed with the advice and consent of the Senate. President Andrew 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), but in Humphrey's Executor v. United States, it upheld Congress's authority to restrict the president's power to remove officers of the Federal Trade Commission, an "administrative body [that] 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 according to the Supreme Court, it "cannot reserve for itself the power of an officer charged with the execution of the laws except by impeachment."
Clause 3: Recess appointments<span class="anchor" id="Section 2, Clause 3"></span>
The president may fill critical federal executive and judicial branch vacancies unilaterally but temporarily when the Senate is in recess, and thus unavailable to provide advice and consent. Such appointments expire at the end of the next Senate session. To continue to serve thereafter, the appointee must be formally nominated by the president and confirmed by the Senate.
Section 3: Presidential responsibilities<span class="anchor" id="Section 3"></span>
Clause 1: State of the Union<span class="anchor" id="Section 3, Clause 1"></span>
The president must give the Congress information on the "State of the Union" "from time to time". This is called the State of the Union Clause. Originally, presidents personally delivered annual addresses to Congress. Thomas Jefferson, who felt that the procedure resembled the speech from the throne 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 reverted to the former procedure of personally addressing Congress, which has continued .
Kesavan and Sidak explain the purpose of the Recommendation Clause: