Constitution 5: The Executive Branch

Article 2 of the Constitution begins with one simple phrase that says it all, but within which there is a long story to be told. Here is the phrase: “The executive Power shall be vested in a President of the United States of America.”

The Executive Branch

The Executive branch manages the day-to-day operations of the United States government through federal departments and agencies, such as the Departments of State, Treasury, Defense, Justice, and the like. At the head of this branch is the nationally elected President of the United States, who is also Commander in Chief of the Armed Forces and shares with the Congress by veto certain legislative powers and with the Judiciary certain judicial powers involving appointment. [1] The President’s powers include making treaties with other nations, appointing federal judges, department heads and Ambassadors, and determining how to best run the country and run military operations. Unlike European parliamentary systems, the President is also the Head of State, making him a powerful figure in American political life.

The Need for a Strong Executive

The Constitutional Convention believed the new nation needed a strong executive function. This was lacking under the Articles of Confederation. Under the Articles, there was no single individual possessing executive power sufficient to provide energy and direction to the national government. In particular, it was recognized that in times of danger there was no clear authority to defend the nation. As mentioned in an earlier blog, the Articles of Confederation, provided for a “Committee of the States” made up of a representative of each state, which had limited executive authority. [2] There was no effective central executive function with a clear and unambiguous authority to execute government policy. Obviously, this made coordinated public administration, international diplomacy, and defense nearly impossible.

The Need for an Energetic Executive

As mentioned above, the Constitutional Convention united in the view that a strong executive function was needed to remedy the defects of the Articles of Confederation. Not all members agreed as to how strong the executive function needed to be, and there was much debate over the exact powers to be given the President and the limitations on those powers. Nevertheless, it was recognized that an energetic and effective executive was needed. Here is how Hamilton put it in Federalist 70:

Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high handed combinations that sometimes interrupt the ordinary course of justice; to the security of liberty against the assaults of ambition, of faction, and of anarchy. [3]

Therefore, the first goal of the Convention was that the executive had to have the powers necessary for the effective conduct of the office. It was also recognized that a weak executive function was a danger both to the execution of the laws and to the security and well-being of the nation. [4] In order that there be an energetic executive, Article 2 provides that the President is the commander in chief of the armed forces, has the power to negotiate and enter into treaties, appoints ambassadors, public officials, judges and all other officers of the United States that Congress does not otherwise provide for. [5] Somewhat less important powers include the power to recommend to Congress various courses of action, a power that has become institutionalized in the annual state of the Union message that often includes a list of legislative proposals that the President feels necessary for the well-being of the nation. Presidents also routinely recommend legislation through other avenues.

The Need for a Responsible Executive

Naturally, having only recently won independence from a monarchy, and having a reasonable fear of the recurrence of the kinds of usurpations that monarchy can create, it was desired that there be limitations on the activities of the executive. The most important of these limitations is the need for the Senate to concur with presidential appointments by a two thirds majority of the Senators present. [6]

A second limitation is the power of the House of Representatives to impeach the President and the senate to try such impeachments, a provision that has been used three times in my lifetime and is increasingly being misused by Congress to the detriment of the nation. Article II, Section 4 provides 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.

The first two offenses are clear on the face of the Constitution, treason and bribery undermine the very foundation of the government. It is likely, therefore that the terms “other high crimes and misdemeanors” was intended by the founders to include similar offenses. It would seem that the nature of the offenses intended to be covered are those that would undermine the government the founders were creating. Madison saw impeachment as against “incapacity, negligence or perfidy of the chief Magistrate.” [7] This indicates that impeachment is to be used only against a president who is unable or unwilling to perform his or her duties or is corruptly conducting those duties.

Despite the necessity of some form of impeachment, the founders were concerned that the power of impeachment not render the executive incapable of independence from the legislative function. The power of impeachment was not to be a “rod” to be used against a public official. [8]

George Washington

The debate and discussion of the scope of executive power under the Constitution and the powers and limitations of the President took place in the most unusual circumstances: Sitting at the head of the Convention was the person nearly everyone believed would be that executive officer. General George Washington was clearly the person to be chosen as first President. The most famous American alive, with the possible exception of Benjamin Franklin, who was too old to serve, the former commander of the Continental Army, was a successful Virginia planter, citizen one of the most populist states, and a person trusted and admired by nearly everyone, and especially by nearly everyone at the Convention. His leadership was known to be careful, thoughtful and steady.

Had Washington wanted to be a king, it would have been hard to deny him the role—and had he desired, it is likely he could have raised the army to make it so. Fortunately for the nation, George Washington was not a “man who would be king.” His public career began in 1752, when he became a commander of the Virginia militia during the French and Indian War. In that war he earned a reputation for bravery under fire and skill as a leader of men. He was also considered extremely lucky in battle. In 1759, Washington was elected to the Virginia House of Burgesses, where he served until 1774—just two years before the American Revolution. As a result of his business experience, he felt that the American Colonies needed to be independent of the harmful tax policies of the British Government. [9] Washington served as a delegate to the first Continental Congress and was appointed Commander of the Continental Army at the beginning of the war. As Commander of the Army, he had experienced first-hand the defects of the Articles of Confederation. His tenacity as commander of the Continental Army through defeat, disaster, and want made him a legend.

At the Constitutional Convention, Washington seldom spoke, but he was an impressive figure and gave wise and sound leadership to the Convention. His steady hand was felt by all participants, and his leadership was calm and direct. He worked to dispel anger when the debate became too heated, and created an atmosphere in which debate could reach a consensus. Although he had opinions, including about the powers of the executive branch, he largely kept them to himself, allowing the delegates to reach their own conclusions. By the end of the Convention, he was the clear choice to be the First President, a position to which he was elected once the new Constitution was ratified and an election held.

Conclusion

In some ways, the debate over the powers and prerogatives of the President were the most important of the Convention. At various points in American history the actual implementation of these powers has differed, and different Presidents have interpreted and used their powers differently. Since the Presidency of Ronald Regan, we seem to have been exiting the period of the Imperial Presidency that began with Roosevelt, which may be a good thing over time, if the Legislature and Judiciary act wisely in upholding their own constitutional responsibilities.

Copyright, G. Christopher Scruggs, All Rights Reserved

[1] The president swears an oath to ‘faithfully execute’ the responsibilities as President and to ‘preserve, protect and defend the Constitution of the United States’. While this goes beyond his role as Commander in Chief, it includes a commitment to faithfully defend the nation.

[2] Articles of Confederation, Article IX.

[3] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 70 (Hamilton). All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.

[4] Id, at 423.

[5] United States Constitution, Article IV, Section 2.

[6] Article IV, Section 2.

[7] Madison’s Notes, July 20, 1787.

[8] Id.

[9]  See the prior blog on Edmund Burke and Declaration of Independence for additional information about the role of British tax policies on the American Revolution.

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