The Constitution – Article II Presidential Powers

Thoughts from the Middle

The Constitution

Article II

Presidential Powers

By

Robert J. Fischer

Introduction

According to the news during the last few days, the lawyers for the President seem to be saying that the Chief Executive has almost unlimited powers—pardoning, immunity from prosecution, control of our jurisprudence, etc.  They claim that he may even have the authority to pardon himself.  What does the Constitution actually say about Presidential power?

The Constitution

It is important to remember that the writers of the Constitution wanted balance among the three branches of government.  Balance meant that each area had certain responsibilities which included monitoring the other two branches.

Section 1 simply spells out the terms of office and the electoral process.  The language was changed by the 12^th Amendment which established our current electoral system.  This section also established the requirements for the Office.  Today, only a natural born citizen can be President.  He/she must be 35 years of age and have been a resident of the United States for at least 14 years.  This section also sets out the procedure for replacing the President should she/he be unable to complete the elected term.  The salary of the President is discussed.  In addition, it states that the President cannot receive any other Emolument. Finally, it sets out the Oath of Office.

Section 2 sets of the powers of the President.  (1) The President is the Commander in Chief of the military, including the Militia when called into actual service of the United States.  (2) The President may require each Executive Department Head to provide opinions on requested topics relating to their respective offices.  (3) The President may also grant reprieves and pardons for offenses against the United States, except for Impeachment.  (4) The President also has the power to enter into treaties with the consent of 2/3 of the Senate.  (5) The President nominates ambassadors, public ministers and consuls, judges for the Supreme Court, and other officers of the United States as established by law.  These appointments must be approved by the Senate.  The President also has the power to fill vacancies without the consent of Congress when they are not in session.  These appointments expire at the end of the Senate’s next session.

Section 3 provides that the President shall give the Congress information through a State of the Union message and recommend policy.  The President has the power to call Congress into session at extraordinary times and may adjourn them when he/she thinks proper.  The President will receive Ambassadors and other public Ministers.  The President will also make sure that the Laws are faithfully executed.  Lastly, the President shall commission all Officers of the United States.

Section 4 provides for the removal of the President, Vice President and all civil Officers of the United States through the Impeachment process for the following reasons:  treason, bribery, or other high crimes and misdemeanors.

Power from Executive Responsibilities

As the head of the Executive Branch, the President has broad powers that allow for the conduct of government business.  The President can issue rules, regulations and other orders (executive orders).  As a routine these orders do not require Congressional Approval, but are subject to Judicial Review.

The President has also been granted budget power by the Budget and Accounting Act of 1921.  While the President prepares the budget, Congress must approve it.

The President also has the power to veto Congressional legislation.  All legislation must be signed by the President before it becomes law.

The President is also the leader of the Party and while not true power, the position holds great power over public opinion.

The President may also have Emergency Powers if granted by the Congress.

While Executive Privilege was not given to the President in the Constitution, President George Washington claimed the privilege during his presidency.  Washington created the precedent for executive privilege.    President Nixon claimed executive privilege during the Watergate scandal.  The Supreme Court did not agree with his claim, saying that the “fair administration of justice” outweighed the President’s interest.  The Supreme Court affirmed its position when President Bill Clinton attempted to use the privilege during the Lewinski affair.

Claims of Presidential Power by President Trump’s Administration

Although the powers given to the President are broad, they are also defined (as noted above) in our Constitution or through legislation passed over the years.  The various claims of power to fire Special Counsels do not seem to have much support in our Constitution.  While the President does have the power of appointment of cabinet positions, tradition does not support the President’s reach beyond the Agency Heads.  The President may order an agency head to terminate an employee.  However, the termination is completed by the agency head.

Can the President pardon himself?  I suppose in an absurd way he could pardon himself for criminal behavior, but he has no authority to pardon himself if he is impeached.

It appears that the current President has been “stretching” the limits of the Constitutional powers .  While other presidents have claimed greater powers (Abraham Lincoln, Franklin Roosevelt, and Harry Truman) these men were presidents during times of great national and world conflicts.  This time of Trump’s presidency is not one of those times.