Saturday, September 17, 2016

The executive branch: A single president subject to impeachment and removal

"The Executive power shall be vested in a President of the United States of America. He shall hold office during the term of four years ... "

Article 2, Section 1 of the Constitution

The White House, where every president of the United States has lived (excepting the first)

Unlike the Congress, the executive branch is controlled by a single individual, who is usually referred to in the masculine in the linguistic style of that time; although there are no prohibitions on a feminine president anywhere in the Constitution, so it is possible to have a female president (although I should note that at the time I write this, it has not happened yet). With this gender clarification in mind, I will give the portion of the Constitution establishing the executive branch: "The Executive power shall be vested in a President of the United States of America. He shall hold office during the term of four years" (Source: Article 2, Section 1) There is usually also a Vice President of the United States, who is first in line to become president (more about that subject here). The Constitution says that "The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided." (Source: Article 1, Section 3, Paragraph 4) However, the Senate does have some power to elect its own leaders, because the Constitution says that "The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of the President of the United States." (Source: Article 1, Section 3, Paragraph 5)

Franklin Delano Roosevelt, the only man to be elected to more than two terms as president

Limits to how often the president can be re-elected

A later constitutional amendment set term limits upon the office of the presidency. In the words of this particular amendment, "No person shall be elected to the office of President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once." (Source: Twenty-Second Amendment, Section 1 [ratified 1951]) This is one of the most important changes to what the original Constitution said about executive power, which is so important that I cannot leave it out here. I will now return to my discussion of the original Constitution.

King George III, the British king that the American Revolution had been partially fought against,
and who was seen by eighteenth-century Americans as the very symbol of executive power "run amok"

The controversy over executive power at the Constitutional Convention

The important issue of executive power was one of the greatest controversies of the Constitutional Convention, and eighteenth-century Americans strongly suspected that executive power was "royal" and "monarchical" by its very nature. So great was their distrust of executive power, in fact, that the Constitution's predecessor, the "Articles of Confederation," had not even included an executive branch at all; but just a Congress with limited power. Moreover, even amongst delegates who favored having an executive branch of some kind, there were some who thought that it should actually be a plural executive (rather than a branch headed by a single individual); and so the kind of presidency advocated by the "proposed Constitution" was seen as a major threat to the people's liberties. After all, they pointed out, hadn't the colonies just fought a protracted war against a British king - the potent symbol of executive power "run amok"? The supporters of the Constitution were quick to point out that the president was subject to being voted out of office after his (or her) term of four years expired, and could also be removed through impeachment before then if he (or she) committed a crime. But even if one accepted this argument that the president wasn't just some "new way" of crowning a king (as its opponents claimed it was); still, why was it necessary to have a single executive instead of a plural executive?

Headquarters of the United States Department of Justice (or "DOJ")

Why have a single executive? Partly, because it responds to emergencies faster!

The most powerful answer that the supporters of the Constitution could offer here may have been their answer that a hierarchy, led by one person, could move faster than any committee composed of rival equals, who could seldom agree amongst themselves fast enough to get anything of substance done. Debate is fine and good when you need to have word-perfect laws (as with the Congress), they argued; but in an emergency especially, there just isn't time to debate about every detail of what needs to be done. Thus, so at least one branch of the government needs to be able to respond quickly. This would seem properly the purview of the executive branch (which is charged with "carrying out" and enforcing the laws), and the comparatively slow deliberations of the Congress - so often the source of jokes (sometimes even well-deserved ones) about legislative "inaction" - could well be more appropriately applied to the making of laws, which is (of course) the proper purview of the legislative branch. Some things (like this) require slow deliberation, these supporters of the Constitution argued; but others require fast action, and can't wait around for some committee to debate them thoroughly (or even minimally) - circumstances can require a more rapid response than that.

The Pentagon, headquarters of the United States Department of Defense

Another reason for a single executive: Higher visibility means easier accountability

Another interesting argument is one that Alexander Hamilton actually put forward in the Federalist Papers, when he said that the president, "from the very circumstance of his being alone, will be more narrowly watched and more readily suspected" (Source: Federalist No. 70, with an alternate version saying "from the entire circumstance of his being alone"). The visibility that comes from their being the only one with the final executive power, in other words, is a powerful incentive not to mess things up; and prevents much - although not all - abuses of executive power. An individual serving as part of a committee, in other words, can "pass the buck" and evade responsibility through relative anonymity easier than an individual who has final say in the matter. This may be part of the reason that the legislature sometimes seems able to get away with more scandals than a powerful executive like the president does - they can count on nobody taking sufficient notice of them individually to hold them accountable for their actions. (Which is not a sufficient reason for applying this same principle of "one leader" to other branches, I should note here - like the legislative branch, for example, where this would be inappropriate - but it is instead an incidental benefit of having the executive power ultimately rest in one individual's very visible hands.)

Harry Truman, with his famous sign "The Buck Stops Here" (a potent symbol of accountability)

The comparative anonymity of individual members of the legislature (and the solution for it)

Although this is my executive branch post, it might be appropriate to mention here (by way of a brief digression) that the Constitution does include one notable (and important) protection against the evasion of responsibility by individual members of Congress; which is to force them (at times) to have their votes entered on a record that is publicly visible (Source: Article 1, Section 5, Paragraph 3) - something that reduces much (although not all) evasion of responsibility on these legislators' part. Ultimately, though, the responsibility still rests with the people to keep a watchful eye on the individual legislators, and hold those who do disreputable things strictly accountable for their actions as much as possible.

The White House from the northern side

Powers of the executive

Back to the executive branch: As far as executive power goes, the Constitution says that the president "shall take care that the laws be faithfully executed" (Source: Article 2, Section 3); and says that "The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States" (Source: Article 2, Section 2, Paragraph 1). These may be the two most important powers of the president. The Constitution also says that the president "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur" (Source: Article 2, Section 2, Paragraph 2) - thus specifying an important check upon this diplomatic power. The Constitution also says that the president "may receive ambassadors, and other public ministers" (Source: Article 2, Section 3), which is another important diplomatic power. The president also "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices" (Source: Article 2, Section 2, Paragraph 1) This mention of "executive departments" here is one of the clearest references to a Cabinet in the Constitution, which is the collective name for all of the different departments of government that report to the president, and depend upon him for their continuance in office. The president has the power to nominate these Cabinet officers, although he (or she) may not appoint them without the "advice and consent of the Senate"; since there is a difference between nominating and appointing, which makes the president dependent upon the Senate for his Cabinet choices.

Headquarters of the United States Department of State (or "State Department"),
the part of the government most responsible for handling foreign diplomacy (an important function, to say the least)

Executive checks on other branches

The president also has the power to nominate judges at the federal level, which may be the most important check he (or she) has on the judicial branch. Again, the "advice and consent of the Senate" is required to turn these nominations into appointments, so this portion of the legislature also has a check on the judicial branch. (I will go into this later in my post about the judicial branch.) As far as presidential checks on Congress go, the president can veto laws passed by Congress (as I describe elsewhere), although this veto can be overridden in certain circumstances. (Specifically, the president's veto can actually increase the number of votes required to pass a law by roughly one-sixth of each house, which is often enough to stop a bill from actually becoming law.) Since the president is thus involved in the legislative process, the Constitution says that the president "shall from time to time give to the Congress information on the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient" (Source: Article 2, Section 3). This is the origin of the "State of the Union" address which is given annually, no matter who is president; and it is one of the major events of the American political year, whether it deserves to be so or not.

FDR addresses joint session of Congress after Pearl Harbor, 1941

How the president is elected

I should note that the president is not elected directly by popular vote, but by the "electoral college" - a system the Founding Fathers created, which gives each state a certain number of electors equal to the total of its Senators and Representatives; often (but not always) with "winner-take-all" rules within the individual states, which cause the winner of that state to get all of that state's electors for the presidency. (That part is left up to the states.) The difficult part for the "electoral college" is determining how many votes each state gets, which is partially (and perhaps even largely) dependent upon the population counts from the national census every ten years. (For more on the details of how this process works, see my other post on the census, which also gives the original quotes about the electoral college.)

Andrew Johnson, the first president to be impeached, but who was not removed

Impeachment and removal from office

The Constitution has no provision to remove a president from office in cases where they follow the law; but they do have a provision to remove the president in cases where he (or she) has committed a crime. This power is popularly known as "impeachment," although the word "impeach" merely means "to bring charges against," and (contrary to popular perception) does not mean an automatic removal from office (which is voted on in a separate proceeding). The Constitution says that "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." (Source: Article 2, Section 4) Thus the Constitution clarifies a difference between "impeachment for" and "conviction of" these high crimes.

Bill Clinton, the second (and last) president to be impeached, but who was also not removed

Difference between impeachment and conviction

The difference is further clarified by the different powers of the two houses of Congress, in regards to prosecutions against the president. The Constitution says that "The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment" (Source: Article 1, Section 2, Paragraph 5); but also says that "The Senate shall have the sole power to try all impeachments" (Source: Article 1, Section 3, Paragraph 6), thus specifying that "try[ing] impeachments" is different from the impeachments themselves. The Constitution further clarifies that if the Senators are "sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present." (Source: Article 1, Section 3, Paragraph 6) Finally, the Constitution clarifies further that "Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law." (Source: Article 1, Section 3, Paragraph 7)

Richard Nixon (the only president ever to resign from office),
who resigned under threat of certain impeachment and removal

President may grant reprieves and pardons, "except in cases of impeachment"

The Constitution also contains one other reference to impeachment, which it may be appropriate to mention here. It says that the president "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." (Source: Article 2, Section 2, Paragraph 1)

Impeachment is an important check even when it's just threatened

Thus the Constitution specifies important checks on the executive power, which make it subject to the laws passed by Congress - with penalties provided for the breaking of these laws. Even when it's just threatened, impeachment would seem to be an important check, as I argue in this blog post here.

Footnote to this blog post:

In the Federalist Papers, Alexander Hamilton wrote that "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." (Source: Federalist No. 70)

If you liked this post, you might also like:

How elections for the president work

Impeachment is an important check even when it's not used

The legislative branch: Two houses of Congress limited by a presidential veto

The judicial branch: The power of the courts (and its limits)

The Constitution: The "supreme law of the land" (which is difficult to amend)

Part of a series about
The Constitution

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
Preamble: The Constitution's mission statement, with some thoughts about separation of powers
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Powers of Congress: A few reasons why the Congressional elections are so important
Elected officials: A few ways that the Constitution keeps our politicians under control
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Powers of the executive, and their being subject to impeachment
Threats of impeachment: The power of Congress to keep presidents in line
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Who is "Publius"?: The secret pen name of the men who wrote the Federalist Papers
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The First Amendment: Debates over freedom of religion, and public "establishment" of religion
The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies
Rights to fair trial: Judicial restraints on the power of the police and the president
Rights of the accused: The balance between individual protections and criminal justice
Congressional pay: The amendment that never made it into the Bill of Rights
Abolishing slavery: The things that led up to the famous antislavery amendment
Backup plans: Vacancy, disability, and presidential elections without a clear majority
The Constitution today: Some thoughts about civics education

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