Unit 4 - Article II, Sections 2, 3 and 4: The Executive Power (the Powers of the President)

What about the executive power in the Article of Confederation (1781) ?

-It wasn’t independent, it was given to Congress along with legislative responsibilities

-No President because it was too close to having a king

What does the order of the Articles of the Constitution suggest about the theoretical hierarchy of powers in the U.S. ?

Article I is about Congress, Article II is about the executive branch : therefore Congress was supposed to be dominant, not the presidency

What is the paradox of the presidency ?

It’s a branch of government that, when it was created, wasn’t supposed to be the leading force in its own country, but it’s now the most powerful political institution in the entire world, and yet, the articles of the Constitution regarding the presidency haven’t evolved…

How can the same Constitution have produced the weak presidents of the 19th century and the leaders of the free world of the 20th and 21st centuries ?

- The emergence of the United States as the world’s dominant superpower, which greatly increased the importance of the President’s roles as Commander in Chief and as the representative of the country on the international stage.

- The inability of the other powers (Congress and the Judiciary) to defend their constitutional prerogatives and even their willingness, sometimes, to defer to the President and help him increase his power.

- The capacity of the presidency, more than any other branch of the federal government, to use some parts of the Constitution’s lack of clarity and precision to its advantage. As American political scientist Richard Pious famously said, "the President claims the silences of the Constitution".

Powers of the President according to Article II, Section 2 of the U.S. Constitution

-War powers
-Treaties
-Nominations
-Right to pardon people

Why is the President "Commander in Chief of the Army and the Navy of the United States" ?

Because the Founding Fathers wanted this role to be fulfilled by a civilian rather than a member of the military

War powers of the President

-Technically : can only decide how to conduct the war once it’s been declared by the legislature (cannot declare it himself !!!)

-In reality : he’s most of the time decided to declare war, made possible by the necessity for quickness (ex: the Civil War)

What did Congress do in reaction to the President often declaring war himself ?

It adopted the War Powers Act in 1973, making an obligation for the President to notify Congress within 48 hours of deciding a military action, and limiting any military action decided by the President to 60 or 90 days

→ Confesses Congress’s weakness regarding war

How can treaties become official in the U.S.?

The President makes treaties, but they must also be approved by a 2/3 supermajority in the Senate

Exception to treaties, in favour of the President’s power

-The “executive agreements”
-They are basically treaties that the President can make without the approval of the legislature

% of international agreements that were executive agreements in 2009

94%

What are the value of executive agreements?

They have the same value as treaties since the SCOTUS decision United States v. Belmont (1937)

What officialised the President’s role in foreign policies ?

-The SCOTUS decision United States v. Curtiss-Wright (1936) described the President as he "sole organ" of American foreign policy

-Reaffimed in Zivotofsky v. Kerry (2015) : he has the constitutional authority to recognise foreign states

→ Goes against the original view of the Constitution, in which foreign policy was to be shared between Congress and the presidency

What is nomination and what does it require to be valid ?

It’s one of the most important powers of the President :

All federal judges, including Supreme Court justices, are nominated by him and have to be confirmed by a simple majority of the Senate

SCOTUS Justices nominated by Trump

-Neil Gorsuch (2017)
-Brett Kavanaugh (2018)
-Amy Coney Barrett (2020)

What are the stakes around nominations of federal officers by the President ?

Especially regarding SCOTUS justices : it may have a direct influence on issues like free speech, abortion rights or religious freedom

What about pardon ?

The President can pardon anyone no matter the crime they committed (except in case of impeachment)

Paradox of presidential pardon + how is it “solved”

-It was a royal prerogative : it’s therefore strange to have kept it as it should be something the Framers would’ve wanted to avoid
-But it’s considered as a check on the judiciary

Content of Article II, Section 3 of the U.S. Constitution

-Take Care Clause
-State of the Union
-Recommendations Clause
-Right to convene Congress in exceptional circumstances
-Right to receive Ambassadors and other public Ministers

What is the Take Care Clause about ?

The President must make sure that the laws adopted by Congress become a reality (pure executive power)

What is checks and balances ?

It’s the fact that each of the three branches is responsible for its own powers, but all of them have to be able to control one another.

What about the State of the Union ?

-The President can go the Congress to make an informing speech regarding the State of the Union once a year (“State of the Union Address”)

Evolution of the State of the Union Address

Since the 20th century, it’s an opportunity for the President to propose his own legislative agenda (including regarding the federal budget !)

What is the Recommendations Clause about ?

It’s another element allowing the President to give Congress a legislative agenda (along with the State of the Union Address)

Ways for the President to influence the legislative process

-State of the Union Address
-Recommendations Clause
-Veto

% of vetoed laws that ended up not being adopted

90%

What is Article II, Section 4 about ?

Impeachment (as the ultimate safeguard against the President becoming a dictator)

What are the inherent powers of the President ?

The powers of the President that are not written in the Constitution (just like implied powers of Congress)
-Bully pulpit
-Unilateral powers
-Executive privilege

What is the bully pulpit ?

Inhrent power of the President that enables him to communicate directly with the American people and use the prestige of his office in order to obtain their support

What are the unilateral powers ?

Inherent power of the President which are administrative tools created by the presidency in order to shape public policy without going through Congress

They include : executive orders, executive agreements, statements of administration policy or signing statements…

What is the executive privilege + when was it recognised ?

-Inherent power of the President which allows him the right to keep some information secret, even from Congress and the courts in order to do his job efficiently

-Recognised in the SCOTUS decision United States v. Nixon (1974)

How does checks and balances apply to the President (amongst others) ?

-Control of Congress through veto, that can still be overriden with a 2/3 majority in each house
-Control of the Judiciary through nomination, but the constitutionality of his decisions is reviewed by Federal courts

Where does the Constitution talk about presidential immunity ?

Nowhere, it doesn’t.

For what crime can you be impeached ?

“treason, bribery, or other high crimes and misdemeanors”

With whom has the question of presidential immunity re-emerged ?

Donald Trump, regarding the events of January 6th, 2021

What about presidential immunity currently ?

Since Trump v. US (2024), with a 6-3 decision :

The president enjoys immunity from criminal prosectuion for actions undertaken during his time in office. More specifically :
-Absolute immunity for actions within the scope of his constitutional authority
-Presumtive immunity for his official acts as president
-No immunity for unofficial acts