Sparks Commentary: 5 limits on presidential power that you never heard of

"For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."

- Thomas Paine's "Common Sense" (1776), Chapter III

Impeachment is not the only limit on the president's power

"What's the difference between a president and a king?" This is a question that Americans sometimes ask themselves, and we usually conclude that there are major differences between the two (or at least ought to be). But if you had asked this question at the time of the Constitutional Convention, many Americans would have feared that there wouldn't be much difference between the two under the new Constitution. They might have said that it was too much power to give to one man (like the president), and that powers might be best confined to a larger body like the Congress. They eventually came around to see the presidency as a necessary institution despite these potential hazards, but they still worried greatly about executive power. Moreover, they were wondering how the Congress could check (or stop) the power of the presidency. The most obvious example of a legislative check on the president is the Congress's power to impeach the members of the executive branch - and, most importantly, the president himself or herself. But this is far from their only check on the president's power, since there are a number of others to be found in the Constitution, if you know where to look for them. I will be spending this post discussing just five of them.

King George the Third, the monarch that the American Revolution was (partially) fought against

Can presidents prevent the Congress from meeting for years on end?

Some of these checks are responses to the abuses of the monarchy back in Great Britain - most notably, by King Charles the First, who had prevented Parliament from meeting for years on end. They were dependent upon his will for their ability to meet, you see, and so when he didn't like what they were doing, he would refuse to call them into session, and adjourn them for years at a stretch with no end in sight. The Founding Fathers feared that a similar thing could happen with the president if they weren't careful, so they instituted a few important safeguards on this subject into the Constitution. Most importantly, the Constitution instituted regular meetings for Congress, by saying that the Congress should meet at least once in every year. The specific date and time of this mandatory meeting was later changed by a constitutional amendment, I should note here, so it may be appropriate to start out by quoting this amendment. The Constitution says that "The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day." (Source: Twentieth Amendment, Section 2)

King Charles the First, who prevented the Parliament of England from meeting for years on end

Can presidents adjourn Congress indefinitely, when both houses agree on times to adjourn to?

Adjourning Congress is another area that requires special protection for the legislature's meeting rights, because a president with unlimited power to adjourn the Congress could do so indefinitely, effectively cutting them out of the loop for years on end. (Again, prior experience back in Britain was enormously influential here.) Thus, the Constitution said that "Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting." (Source: Article 1, Section 5, Paragraph 4) The Constitution also contains another mention of adjournments that I should note briefly here before moving on, which is that the president "may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper" (Source: Article 2, Section 3). I should acknowledge that the president has some checks of his (or her) own back on Congress, such as the ability to veto laws; but these vetoes can actually be overridden in certain circumstances. And even in the parts of the Constitution giving the president this veto power, there is an explicit exception made for adjournment. Specifically, it says that "Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be re-passed by two-thirds of the Senate and House of Representatives according to the rules and limitations prescribed in the case of a bill." (Source: Article 1, Section 7, Paragraph 3) Any "question of adjournment" is thus exempted from this entire process; and most especially, from the two-thirds of both houses needed to override a veto. (A presidential veto may not be used at all here, as these clauses make clear.) Congress may thus adjourn itself to any time it likes, even without the president's approval; except "in case of disagreement between them with respect to the time of adjournment" (in the words of the quote whose citation I gave earlier). These adjournment rules were thus a protection of the Congress from the undue influence of the president.

Capitol Dome

Can members of Congress hold other political offices that report to the president?

One paragraph protecting Congress from undue executive influence is the following: "No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have increased during such time; and no person holding any office under the United States, shall be a member of either House during his continuance in office." (Source: Article 1, Section 6, Paragraph 2) This was a reaction to how, in earlier times, members of Parliament had been able to hold concurrent offices paid for by the King; which gave the King an enormous influence over these members of Parliament. Thus these "double offices" were prohibited here, and prevented the President from doing a similar thing with Congress. These were more than just protections against the increased power of people with "double offices," although they certainly prevented that as well, and kept the powers separate by so doing.

Capitol Dome at night

Can presidents arrest members of Congress at the times when the legislature is in session?

One interesting provision comes from a clause saying that the Senators and Representatives "shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place." (Source: Article 1, Section 6, Paragraph 1) This is a way of preventing Congressional business from being interrupted by undue interference from the executive branch, which could thus prevent people from voting against the president when they have not committed a crime at all, but are merely accused of one. This provision also prevents the Congress from being used as a place for political grandstanding from the highly public arrests of the president's enemies - something that would be highly disruptive of the Congress's official business, if it were allowed to happen. Notable exceptions are made at times for "treason, felony, and breach of the peace," which the president could presumably back up in subsequent prosecution if he (or she) was willing to make these charges in the first place. (Otherwise, they would look like idiots when they were proven wrong, which would be a powerful motive not to undertake prosecutions that are baseless and frivolous.)

United States Capitol building

Can presidents hold titles of nobility (like "king" or "queen")?

Finally, the Constitution says that "No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." (Source: Article 1, Section 9, Paragraph 8) The "title of nobility" part was a reaction to abuses under the British monarchy, and the part about bribes from foreign powers is an important protection against the influence of foreign governments over the members of our own (or at least, the improper extent of such influence).

White House

The answer to all of these questions is "no"

The Constitution thus prevents the president from getting too much power, and prevents the president from becoming a king (or queen) with an undue influence over the Congress. A president whose power is not checked in these ways could become a tyrant, and we would all have reason to fear such a tyranny. The Constitution thus gives Congress several means to defend itself against executive encroachments, and keeps the liberties of all of us (not just the Congress) safe by so doing. The most dramatic of these checks is, of course, impeachment; which gives Congress the power to remove bad presidents from office. (I describe impeachment in a later post in this series, if you're interested in that subject.) But this is far from the only such check that Congress has in its possession under the Constitution; since there are a number of others, like the five detailed above.

Footnote to this blog post:

Montesquieu once wrote that "When the legislative and executive powers are united in the same person or body," he said, "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner." (Source: "The Spirit of Laws," Book XI, Chapter 6, as quoted and translated by James Madison in Federalist No. 47)

If you liked this post, you might also like:

Other legislative checks: The power to tax, and the power to declare war

The president enforces the laws, commands the military, and conducts foreign diplomacy

Impeachment and removal: The most dramatic checks upon the power of presidents

The tyrannical police state: The worst nightmare of the Founding Fathers

Actually, the death penalty is constitutional (as the Fifth Amendment makes clear)

Part of a series about

The Constitution