Constitution of the United States/Art. II

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article II Executive Branch

Overview[edit | edit source]

Article II of the U.S. Constitution establishes the Executive Branch of the federal government. The Executive Vesting Clause, in Section 1, Clause 1, provides that the federal executive power is vested in the President. Section 3 of Article II further requires the President to "take Care that the Laws be faithfully executed."[1] The executive power thus consists of the authority to enforce laws and to "appoint the agents charged with the duty of such enforcement."[2] The President also has distinct authority over foreign affairs, and "alone has the power to speak or listen as a representative of the nation."[3] As a general matter, the Supreme Court has recognized that the Constitution vests the President not only with the authorities expressly delineated therein, but also with certain implied authorities,[4] such as the ability to supervise (and generally to remove) executive officials[5] and the power to recognize foreign governments.[6] At the same time, the Court has said that by granting the President the power of faithfully executing the laws, the Constitution "refutes the idea" that the President was intended "to be a lawmaker."[7] Nonetheless, the Court has recognized that officials appointed by the President--even those located within the Executive Branch--may exercise regulatory or adjudicative powers that are quasi-legislative or quasi-judicial.[8] Broadly, the Court has recognized that Executive Officers exercise authority to enforce and administer the laws, including rulemaking, administrative determinations, and the filing of lawsuits.[9]

The remaining provisions of Article II's Section 1 primarily outline the election of the President, including the establishment of the electoral college. Relatedly, Section 1 sets out the qualifications of the President, the oath of office, and compensation. Section 1 also creates succession provisions in the event of a President's removal or other inability to act, although the relatively sparse language in Clause 6 was later supplemented by the Twenty-Fifth Amendment and the Presidential Succession Act.[10]

Sections 2 and 3 define specific presidential powers and duties. Section 2, Clause 1 describes exclusive presidential powers: namely, the Commander in Chief authority, the power to require written opinions from the heads of executive departments, and the pardon power. Clause 2 defines the powers that the President shares with Congress, outlining the treaty-making power and the appointment power. Clause 3 expands on appointments by granting the President the power to unilaterally make temporary appointments during Senate recess. Section 3 requires the President to give Congress information on the state of the union. It also authorizes the President to recommend legislative measures and in extraordinary circumstances convene or adjourn Congress. Section 3 further grants the President the power to receive ambassadors and other public ministers. And as previously mentioned, Section 3 contains the Take Care Clause, requiring the President to ensure that the laws are faithfully executed.

Section 4 provides that the President--and all other "civil Officers of the United States"--may be removed from office if impeached and convicted on charges of "Treason, Bribery, or other high Crimes and Misdemeanors."[11] Article I contains further provisions bearing on impeachment procedures and judgments.[12]

As discussed elsewhere, Article I also contains some provisions bearing on presidential authority, perhaps most notably the President's authority to approve or veto legislation.[13]

Section 1 Function and Selection[edit | edit source]

Clause 1 President's Role[edit | edit source]

Main Article
Clause Text
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

Clause 2 Electors[edit | edit source]

Main Article
Clause Text
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.

Clause 3 Electoral College Count[edit | edit source]

Main Article
Clause Text
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

Clause 4 Electoral Votes[edit | edit source]

Main Article
Clause Text
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.

Clause 5 Qualifications[edit | edit source]

Main Article
Clause Text
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.

Clause 6 Succession[edit | edit source]

Main Article
Clause Text
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.

Clause 7 Compensation and Emoluments[edit | edit source]

Main Article
Clause Text
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased 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.

Clause 8 Presidential Oath of Office[edit | edit source]

Main Article
Clause Text
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.

Section 2 Powers[edit | edit source]

Clause 1 Military, Administrative, and Clemency[edit | edit source]

Main Article
Clause Text
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 Offences against the United States, except in Cases of Impeachment.

Clause 2 Advice and Consent[edit | edit source]

Main Article
Clause Text
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.

Clause 3 Senate Recess[edit | edit source]

Main Article
Clause Text
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 Duties[edit | edit source]

Main Article
Clause Text
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.

Section 4 Impeachment[edit | edit source]

Main Article
Clause Text
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.
  1. Art. II, Section 3 Duties.
  2. Springer v. Government of Philippine Islands, 277 U.S. 189, 202 (1928).
  3. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
  4. See generally Art. II, Sec. 1, Cl. 1: Overview of Executive Vesting Clause.
  5. Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 22 (U.S. June 29, 2020).
  6. Zivotofsky v. Kerry, 576 US. 1, 17 (2015). Cf., e.g., United States ex rel. Knauff v. Snaughnessy, 338 U.S. 537, 543 (1950) (stating that the right to exclude aliens "is inherent in the executive power to control the foreign affairs of the nation," and when Congress legislates in this area, it "is implementing an inherent executive power").
  7. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
  8. See Buckley v. Valeo, 424 U.S. 1, 132-33 (1976).
  9. See id. at 138-41.
  10. Twenty-Fifth Amendment Presidential Vacancy; 3 U.S.C. § 19.
  11. Art. II, Section 4 Impeachment.
  12. Id. art. I, § 2, cl. 5; id. art. I, § 3, cls. 6-7.
  13. See Art. I, Sec. 7, Cl. 2: Overview of Presidential Approval or Veto of Bills; Art. I, Sec. 7, Cl. 3: Presentation of Senate or House Resolutions.