The People's U.S. Constitution: Ariticle II, The Executive Branch

Article II is about one-third the length of Article I. Why? Well, some may say to give the president more power or flexibility. Meaning, less said about what you can and cannot do the more you can do. But it also may have to do with the fact that the president is only the enforcer of laws. "Only?" you say. Well, consider that Congress creates the laws, herein lies greater power thus more are controls required or the reason for a lengthier Article I. And of course the president can veto, but that veto can be overridden after the bill has been sent back to Congress and each house passes it into law with a two-thirds majority vote. But even though there is much less copy to Article II than Article I, the Executive Branch is greater in size by a considerable amount. The executive contains the president and his vice president and cabinet members, but there are also some three million civilian and military employees.

Section 1: The President

"The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:"

OK, so the colonists were a bit touchy about the executive position. Remember that they were just coming out from under the rule of a very much hated monarch in King George III. But at the same time, the Articles of Confederation was opposed because it lacked a strong executive. But then again, some delegates were so afraid of a single executive that they considered two. Could you imagine that? Two people at the helm of the executive branch? Maybe something like an Abigail / John or Nancy / Ronald president? Nah, that would never happen.

Some have felt that the president doesn't have all that much power, our president being kind of like the Queen of England today, just prettier. For instance, Ike Eisenhower felt much more control as a general than president. But because Congress has the big "check and balance" on creating laws, the president, as enforcer, is allowed greater leeway than Congress. Article II gives the president all executive power. Even the Supreme Court has helped the president in this regard by advocating more times than not that there are certain inherent powers in the presidency not specifically mentioned in the Constitution.

But maybe he needs all the help he can get, yes? Here's what political pundent George Will has to say about the presidency: "Congressional supremacy is . . . a constitutional fact: there is little the president can do if a determined congressional majority opposes it." So maybe the members of the Constitutional Convention knew this and felt for the president by seemingly putting more restrictions on Congress. But we know better, don't we? Then again . . .

In recent history, some say that the power of the presidency has gotten out of hand, specifically with Nixon's disregard for protocol in the Watergate scandal, or maybe even the more atrocious ignoring of the majority-public, cabinet, committee-who desired Bush to get out of Iraq, to many an obviously unwinnable war (Former secretary of state James Baker, head of the bipartisan Iraq Study Group, reported in 2006 that "the situation in Iraq is grave and deteriorating" and "U.S. forces seem to be caught in a mission that has no foreseeable end"). But even with these power mongering oversights of the greater good's opinion, the president really has little opportunity to screw up, for term limits and impeachment are neigh at hand.

But let's take a look at the responsibility of the president in waging war, raising tariffs, enacting sanctions and so on. Have you ever thought about how responsible the president could or should be in regards to the acts he performs while in office? According to the Supreme Court, the president has "absolute immunity from damages liability" for his presidential acts. But even though there appears to be great power in the presidency, term limits, impeachment, and the mere fact that even the president's desires have often been ignored by Congress and the American people, leads one to believe otherwise. But let's move on.

Of course we now know that the president serves a four-year term and, according to the Twenty-second Amendment, can get re-elected to a second term. However, the framers of the Constitution at one time believed that the president should serve a single term from seven to twenty years!

Could you imagine that? What if we got stuck with George W. for twenty years? My gosh, we'd be in a heap of trouble educationally as over the years he would subconsciously set the standard for levels of diction, recall, and exactness. Hell, just the rephrasing of alleged standard phrases could put the sanity of our country at risk as we try to remember if the saying "Fool me once, shame on you; fool me twice, shame on me" originally came from Texas, or if it actually does state "Fool me once, shame on you; fool me twice, we don't get fooled again. No! No! Yeaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaahhhhhhhh!"

OK, now onto the sacrosanct and revered office of Vice President. From the dawn of time, man and women (see Nancy Pelosi) have sought this office with great vigor . . .

OK, I lie. Here's what Franklin Roosevelt's VP John Garner said about the office: "[it] isn't worth a bucket of spit." OK, so John was a little over the top there. I know he'd rather have been VP than head burger flipper at any greasy joint.

But the VP actually doesn't get to do much. The framers of the Constitution didn't put much thought into the role. I guess they didn't think much about assassination. If they'd known one of the greatest presidents of all time was going to be shot in the head by an actor while watching a play, they may have reconsidered.

So what does the VP do? He is the president of the Senate, and if you've watched Congress, you'll see him--or her someday--sitting behind whoever is speaking at the podium. But don't get excited, the real power of Congress lies in the majority leader. The VP is, after all, to the greatest degree just a figurehead, much to the chagrin of Garner and other VPs (Read about Lyndon Johnson's view of the post, and you'll see he was quite in agreement with Garner).

But it's up to the candidate running for president to select a vice president. So what does that mean? Well, think about it. If you were president, would you want someone who's overly ambitious or who outshines you as VP? Maybe someone on the ball, sure, but at least someone of a little duller bulb, shall we say.

Here's an experiment you can run to test this theory. Look at the personalities, intellect, and temperament of former VPs to see if this is true. As a case in point, let me say two words: Nancy Pelosi.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

OK, out of all the articles, this section is one of the most complicated. Here we're dealing with the Electoral College. When dealing with this issue, some may simply say, "Good luck."

Consider that those at the Constitutional Convention were some of our best and brightest. They were attempting to put together a "law of the land" that was good for the many not the few. However, these few were smart, privileged, and of the minority, actually, those spoken of as "men" in Jefferson's statement "All men are created equal; . . . endowed by their Creator with certain unalienable rights; . . . life, liberty, and the pursuit of happiness. . ." Here he was talking about white-male landowners, not women, minorities or even most white men.

And there's always a problem when smart guys get together to determine the welfare of the majority. That's right the problem entails the human weaknesses of pride and control. The same problem Plato encountered in his Republic; here he made an attempt at conjuring the ideal society. He felt that this  society should consist of three parties: "producers (craftsmen, farmers, artisans, etc.), auxiliaries (warriors), and guardians (rulers). Rulers must rule, auxiliaries must uphold rulers' convictions, and producers must limit themselves to exercising whatever skills nature granted them" (Spark Notes).

Now, don't think that these Founding Smart Guys weren't aware of Plato or John Lock or other smart guys throughout history who spoke of sociopolitical issues, for they were. Why do I bring this up now? Well, consider that the Constitution doesn't speak of the general populace's right to vote. The Constitutional delegates didn't even define a national standard for voter eligibility or participation in presidential elections nor did they trust the "auxiliaries" and "producers." They felt that the general populace would not make an informed choice. I see many of you nodding your heads in the affirmative.

But there were some smart guys-thank heavens!-who felt for the people, thus the Electoral College, a compromise. But even though the college exists, the power of the vote still resides in the state not the people.

For example, the 2000 debacle . . . err, presidential election, or Hanging Chad fiasco, points out the power of the states in determining the presidential election. Now you remember all that hand counting in Florida, yes? Well, after the Florida Supreme Court ordered the hand re-count, the U.S. Supreme Court played its trump card and said that according to the Constitution the state could step in at any time (legislatures) and choose the electors even though the state had initially allowed the people to do so. But according to the U.S. Supreme court all that hand counting ended up treating voters differently (remember that?) and that doing so violated the 14^th Amendment.

So even though most states let the popular vote-the people-elect the electors (remember, you're not directly electing the president), the legislature (Senate and House of Representatives) could usurp that power and elect the president if any state decides to do so.

Shocking? For some, I'm sure. But that's why you're reading this. And remember, if you don't learn this stuff and learn it well, you'll be asked to leave the country. OK, my rule, but I think something close to this should be endorsed so that more make better informed decisions. Amen.

But how does the Electoral College work?

Now that's a loaded question. Let's take a look while applying the Hey-Jeff-I-Don't-Have-All-Day-Nor-Do-I-Need-All-The-Boring-Details philosophy. Alright, you've got it! Here we go.

Bottom line, you as average Joe or Jane citizen have no Constitutional right to vote. Contrary to all those celebrities who tell you otherwise. It's really a big shame, isn't it? Well, I'm sorry but you're just gonna have to open your eyes and smell the bureaucracy. Hey! a mixed metaphor. But who cares? What? I'm suppossed to say "open your nostrils and smell the bureaucracy"? Right.

So anyway, the framers never got the Electoral College to work as they envisioned. They were hoping that these electors (none allowed to be from Congress) would make the best decisions and when elected do so. But how do they get elected? Well, that's a loaded question, Joe and Jane citizen.

But before we get into that, just who or how many does an electoral vote represent? For example, at this time New York has 31 electoral votes. But what number of citizens does that actually represent? Well, in New York, one electoral vote represents 550,000 citizens; however, that same single vote in South Dakota, a much smaller state population, represents 232,000 people. Ah ha! You say. Now you see why a candidate can win more states than his opponent and still loose, as my daughter pointed out in the 2008 election. "But Dad, McCain has more states!" she exclaimed. "Yes, dear," said dad, "but they're all in the Mid-West where most of the people in the U.S. don't live." Or even win the popular vote but lose in the Electoral College because the candidate won in states with low electoral votes.

Now this creates another issue. Do you as a candidate just campaign in states like, say, New York, Texas, and California ignoring the smaller states? No, generally not a good policy overall. Why? Well, because the Electoral College exists states are a priority, and if a candidate focusing only on large states and loses in those states, his chance for election will be over quickly. But even if the Electoral College didn't exist, people don't live in isolation, and regardless of the size of the state, people talk. Word would quickly circulate regarding a disingenuous candidate. But some say that no Electoral College means candidates would ignore regional and focus on national issues. But it's all speculation. We'll know better when or if changes are made.

This clause was changed by the Twelfth Amendment because the Constitution was written before the prominence of political parties. There was no safe guard against you winning the presidency and your vice president, the general runner up, ends up being your adversary, like when Jefferson won the presidency while his rival, John Adams, became vice president. Just imagine a Obama / McCain ticket? An interesting predicament.

But with the passage of the Twelfth Amendment, the president and vice president are provided separate balloting procedures. If a candidate did not receive a majority of electoral votes, the House of Representatives would select the president and the Senate the vice president.

Initially, the Electoral College was used as a nominating device. After some time, parties became prominent and the nominating of candidates is now done by individual parties electing respective candidates. But originally, if there were a tie, the election of the president went to the House, which only happened two times early in the 19^th century.

So with the growth of parties, the framer's concept of an independent group of electors came to an end. But it was built to fail for the collective never did meet as a single group but rather electors in their individual states. But if electors now represent their respective parties, what's the point? Why do we still have the Electoral College? For the original meaning was for electors to vote independent of parties. Now electors are to pledge, at the behest of the Supreme Court even, their votes to their party. Rarely has there been a renegade elector.

Now you can see the complexity and, some say, the uselessness of the Electoral College. It does seem odd that electors aren't really making a choice being beholden or pledged to their party. And it is also odd that a candidate can win the popular vote (it happened five times) but lose in the Electoral College and on and on. Regardless, there's much more to say about this issue, but I did promise not to get into "boring detail," so I'll keep my promise.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

OK, have you ever thought it odd that we always vote on a Tuesday in November every four years? Coincidence? I think not. By federal statute, we vote the first Tuesday after the first Monday in November every four years, like clockwork. But you have to remember that you and I are not electing the president. There is no such thing as the popular vote. OK, it exists but that's not what gets a president into office.

Now here's something that is "stamp-like" in nature-meaning, it's really just a formality. Once again, according to federal law, electors must cast their vote on the first Monday after the second Wednesday in December. And according to Congress, on January 6^th those votes are counted at a joint session (Senate and House) in Congress. And then after the president elect wins again, for remember the Supreme Court has firmly suggested party elegance, the new president is sworn in on January 20^th, according to the Twentieth Amendment.

Enough with this Electoral College, on to some new stuff.

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

OK, so no matter how much you love Antonio Banderas, Selma Hyack, Jacki Chan, et al, no, they can't be elected U.S. President. You have to be at least thirty-five years old and fourteen non-consecutive years as a U.S. resident. Enough said.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected (This clause has been modified by the twenty-fifth Amendment).

The Twenty-fifth Amendment makes it clear that if the president dies in office the vice president shall become the president. If the president and vice president cannot fill the office, by federal statute the succession moves to Speaker of the House, president pro tempore of the Senate, and then secretary of state, followed by cabinet members based on chronological date of hire.

Let's move on.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Don't expect to get rich on a president's salary alone. Of course, now you can make a pretty penny, some $400,000, but now-a-days that will pay the bills nicely not set you up as a jet setter. The real money comes later when you write books and make speeches. Former President Clinton has made some $40 million dollars giving speeches since leaving office. "I never had a nickel to my name until I got out of the White House, and now I'm a millionaire, the most favored person for the Washington Republicans" (The Washington Post, February 23, 2007).

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

This is one of a president-elect's shinning moments. You are the center of attention, people gather to see just you. The ceremony! The atmosphere! Poets writing poems on your behalf. You haven't done anything to merit a negative review so far. Ahhh, the pageantry! The honor! The glory! But don't get too excite, you'll get bad press soon enough. Hell, you're the president.

Section 2: Civilian Power over Military, Cabinet, Pardon Power, Appointments

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; he 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, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

On occasion, I'm sure you've seen other leaders of countries or presidents wearing a general's uniform. This is something that those of the Constitutional Convention strongly opposed. The Commander-in- Chief of the United States military is to be a civilian, for a purpose. Checks and balances at work again.

What does this mean?

It means that the president is commander-in-chief of the armed forces, but Congress has Constitutionally been given the power to declare war-to raise and support armies. However, in recent history, as you are probably aware, presidents have sent soldiers into war without the consent or involvement of Congress. Because of this, and mostly due to the lengthy Korea and Vietnam campaigns, Congress established the War Powers Act. Basically, the president can't deploy troops for more than sixty days without Congressional approval. But there's an inherent problem here too. What of the time and expense, never mind the emotional drain, of sending troops for two months who then have to be withdrawn because of Congressional say so.

And even though there is Constitutional law, it is not always adhered to. For example, here's what George H. W. Bush had to say about Congressional approval in sending troops into the Persian Gulf: "I didn't have to get permission from some old goat in the United States Congress to kick Saddam Hussein out of Kuwait." Here we have certainly discovered one important point. In retrospect, regarding all that George H. has done, we can see that the apple doesn't fall far from the tree. Cowboy-up little doggie. Yaaaaaaahoooooooooooooooooooooooooooooooooo!

Oh, let's not forget the executive departments or the president's cabinet. The big four being Secretary of State, of the Treasury, of Defense, and the Attorney General. The importance of the Cabinet has varied by president and over the years. In recent years, the president has acted through the Executive Office of the President or the National Security Council rather than through the Cabinet. This has brought previously less important cabinet members to greater prominence. But I go into too much detail.

Let's move on.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The president negotiates treaties with other countries; however, these treaties do not become binding until ratified by a two-thirds vote in the Senate. But once again there are grey areas. Presidents have used "executive agreements" much to the chagrin of the Senate, who's left out of the process; however, how these agreements differ from treaties is not clear. Another problem concerns the presidential interpretation or refusal to enforce a treaty. Once again, points lending themselves to the fact that the Constitution is not cast in stone and is interpretive and depends a great deal on individual (president) and collective (Congress) interpretation.

According to the Constitution, the president makes appointments which are subject to the consent of the Senate. Kind of. In choosing his cabinet, the president may be left unto his own. However, when choosing judges, who serve for life, it might behoove all parties involved that others-the Senate-get involved.

Some judges have been disallowed from judgeship because of political differences; but having the Senate step in here is not all bad, considering that judges serve for life. You might want a second, third, fourth . . . one-hundredth opinion in such a case, yes?

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3: State of the Union, Convening Congress

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he 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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Traditionally, the president gives his state of the union address each January before Congress begins a joint session that highlights his legislative program for the year to come.

As stated before, the president is the sole representative of the United States when dealing with other countries. No one can usurp this power.

This clause also reveals the president's power as enforcer of the laws laid out by Congress: "he shall take Care that the Laws be faithfully executed."  He has at his command not only the military but "executive order" which are law-like in nature until rescinded by Congress, the courts, or a future president. Some examples of this power are the sending of the National Guard in times of internal unrest or the banning of segregation in the military. How often have presidents used the executive order? Since 1789, over 15,000 times.

Section 4 - Disqualification

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 House of Representatives has the power to impeach while the Senate tries the accused. However, impeachment is not, contrary to popular misinterpretation, the conviction of an individual but merely the charge of an offense.

Impeachment, which is not subject to judicial review, applies to the executive branch and judicial but not to Congress. It is not a criminal proceeding and is restricted to the removal from office.

The majority of those impeached over the years have been judges (13). Only three presidents have been impeached. Two presidents, Andrew Johnson and Bill Clinton, were acquitted, meaning that Congress did not reach a two-thirds majority for removal from office. One president, Richard Nixon, avoided impeachment by resigning. Enough said.