Executive Branch

The White House, seen in the video above, is the official residence of the U.S. president, head of the executive branch of America’s federal government.

The Executive Vesting Clause (Art. II, § 1, cl. 1)

  • This clause of the U.S. Constitution states that “executive power shall be vested in a President of the United States of America.”

  • Presidents have wielded this executive power by issuing executive orders and presidential memoranda.

What Executive Orders Can’t Do

  • Executive orders do not create new laws or change existing ones.

  • Under Article 1 of the U.S. Constitution, only Congress has the authority to create new laws.

  • Likewise, executive orders do not appropriate new money from the U.S. Treasury; only Congress may do so.

What Executive Orders Can Do

  • What Executive orders can do is detail how the federal agencies the president oversees are to use their resources.

  • Executive orders instruct the executive branch to take a specific action.

  • And they do not require congressional approval.

  • This is because the ability to issue executive orders is an implied authority derived from the executive vesting clause.

What Have Executive Orders Been Used For?

  • Executive orders have covered a broad range of issues ranging from simple, uncontentious matters to complex and contested ones.

  • For example, on December 11, 2015 President Obama issued an uncontentious executive order which ordered that executive branch departments and agencies would take a half day on Christmas Eve. 

  • On the other end of the spectrum, in 1942 President Roosevelt signed Executive Order 9066 which resulted in the internment of Japanese Americans on the west coast of the United States.  

  • Presidents have also used the power granted to them by the executive vesting clause to issue executive branch ethics pledges, which are executive orders that prescribe regulations for the conduct of executive branch employees.

Why Do Presidents Use Them?

  • Executive orders do not require congressional assent.

  • They may therefore be used by a president whose agenda is stalled in Congress.

  • They may also be used out of necessity to avert crises or during wartime.

  • A less controversial use may be to clarify the details of a newly passed law.

Why Are They So Controversial?

  • Precisely for the same reason presidents use them: because they do no require congressional assent.

  • They are sometimes pejoratively referred to as “rule by executive fiat.”

  • And presidents have at times been accused of overstepping their authority and using their executive orders to change the law rather than merely work within it.

Can They Be Challenged?

  • Yes, they can.

  • Executive orders are sometimes challenged in the judiciary, where opponents of a particular order may argue that it has overstepped constitutional limits.

  • For example, in 1952 President Truman issued an Executive Order directing the Secretary of Commerce to take possession of and operate the plants and facilities of certain steel companies, in the name of national defense.

  • The steel companies challenged the legality of this executive order and the Supreme Court ultimately declared it unconstitutional on the grounds that it was an attempt by the president to take a legislative act (i.e. to create new law) rather than an executive action.

  • Additionally, a new president may undo executive actions taken by previous presidents.

  • Alternatively, Congress may pass legislation which overrides an executive order if the order deals with an area in which the Executive and the Legislator share power.

  • However, this approach may require the support of a veto-proof supermajority in Congress because a President is unlikely to sign legislation undoing his/her executive actions.

How We Cite An Executive Order

The Vice President (Art II., §1, cl. 1; Art. II, §1, cl. 6)

  • A vice president is also elected on the same ballot as the president, to 4-year terms.

  • In the event of the president’s death or removal from office, the vice president shall serve out the remainder of the president’s term.

Term Length (Art. II, § 1, cl. 1; Amendment XXII)

  • Presidents are elected to 4-year terms.

  • They may sit for a maximum of 2 terms (8 years)

Eligibility (Art. II, § 1, cl. 5)

  • To be eligible to run for president, a person must have been born in the United States and be at least 35 years of age.

Election (Art. II, § 1, cl. 2; Art. II, § 1, cl. 3; Amendment XII, Amendment XXIII)

  • Voters in U.S. presidential elections do not vote directly for the president.

  • Instead, every state is allocated electors equal to the number of senators plus representatives it has in Congress. (You can learn about how senators and representatives are allocated to states here.)

  • For example, California, like every state, has two senators. And it has 53 representatives in the House. So California is allocated 55 electors for the purposes of presidential elections.

  • On election day, voters cast a ballot for their preferred candidate.

  • The candidate that receives the most votes in a particular state gets all the electoral college votes from that state. For example, in the 2008 election, Barack Obama received more votes than John McCain in California, and therefore, received all 55 of California’s electoral votes.

  • The candidate that receives 270 or more electoral votes wins the election.

  • This electoral college system makes it possible for a candidate to win a presidential election despite receiving less votes than their opponent (i.e. lose the popular vote but win the electoral college).

  • There have been two instances in the 21st century when the candidate receiving less votes won the election: George W. Bush in 2000 and Donald Trump in 2016.

  • Let’s consider the case of the 2000 presidential election. Al Gore received a total of 543,895 more votes nationally than his opponent George W. Bush. However, because of the heavy concentration of Gore’s votes in states with large urban cities such as New York, Chicago and San Francisco, he won only 20 states plus the District of Columbia compared to Bush’s 30 states. And the sum total of the electoral votes of Bush’s 30 states got him over the required 270 electoral vote threshold.

  • The 2016 presidential election resulted in an even larger discrepancy between the popular and electoral votes. Hillary Clinton won the popular vote by more than 2.8 million votes. However, again because of the concentration of her votes in large urban population centers, her opponent, Donald Trump, was able to win the electoral college.

  • The electoral college system also means that some people’s votes hold more weight than others.

  • For example, consider the value of a Californian’s vote relative to that of a Wyoming voter.

  • California had 55 electoral votes for its estimated 2017 population of 39,536,653 people. So in California there was one electoral vote for every 718,848 people.

  • On the other hand, rural Wyoming had 3 electoral votes for an estimated 2017 population of 579,315. So in Wyoming, there was one electoral vote for every 193,105 people.

  • The result is that the votes of Californians, New Yorkers, and residents of other states with large urban cities count less than those of more sparsely populated rural states like Wyoming and North Dakota.

  • Moreover, the electoral college contributes to a depression of voter turnout in so called “safe states.”

  • For example, the state of New York, with the reliably Democratic metropolis of New York City, is often considered a safe Democratic Party state: the city of New York with its population north of 8 million that is majority democratic will likely mean the state is going to give all its electoral votes to the democratic candidate.

  • This feeling of pre-determination can reduce the incentive for voters to show up on election day.

  • Likewise, Kentucky is considered a reliable Republican Party state, which can lead voters to stay home.

  • Other states like Ohio and Florida which sometimes vote Republican and other times votes Democrat, so-called “swing states,” do not create such disincentive because voters may feel their vote could make a difference in which candidate gets all of that state’s electoral votes.

  • This depression in voter turnout in “safe states” creates a distortion of the democratic process: if there were no electoral college would more voters have turned out and shrunk the gap between Trump and Clinton in the popular voter? Or would more people have shown up to vote for Clinton in 2016 and stretch her popular vote lead further? The vote tally says that 48% of voters who turned up on election day preferred Clinton and 45.9% preferred Trump. Did these figures accurately reflect actual preferences across the entire electorate?

  • Many have called for the electoral college system to be eliminated, for these very reasons: it allows a candidate receiving less votes to win the election, makes some votes count more than others, and disincentivizes voter turnout in “safe states.”

  • But such a change would be difficult to attain because it would require an amendment to the constitution.

  • However, there is currently a push on the state level to work around the electoral college.

  • Eleven states plus the District of Columbia have agreed to pool all their electoral college votes for the candidate that wins the popular vote.

  • However, for the pact to work, states with a combined total of 270 of more electoral votes would have to agree to it. Currently the electoral vote total of the 12 jurisdictions that have joined is 172.

  • A major obstacle to reaching the 270 mark is the likely unwillingness of majority Republican states to join the pact; after all it has been Republican candidates that were ushered into office via the electoral college despite losing the popular vote.

  • Also relevant to U.S. presidential elections is the 12th amendment to the Constitution.

  • Prior to the ratification of this amendment, the electors that made up the electoral college voted for two people – both candidates on the ticket that won a state – without specifying which person on the ticket should hold the presidency and which should hold the vice presidency.

  • This led to controversy over who had actually won the 1800 presidential election: presidential candidate Thomas Jefferson or his running mate Aaron Burr.

  • It was presidential candidate Jefferson who had chosen Burr as his vice-presidential candidate, but both men technically tied in the electoral college.

  • Congress ultimately determined that Jefferson would become the third President of the United States and Burr the vice president.

  • But the affair created animosity between the two men and culminated in Aaron Burr standing trial for treason in the Virginia State Capital Building in the city of Richmond and President Jefferson misusing the powers of the presidency to try and ensure a guilty verdict (although Burr was ultimately acquitted).

  • And it would serve as the impetus for the ratification of the 12th amendment in 1804.

  • The amendment requires separate votes to be cast for presidential and vice-presidential candidates and has prevented a recurrence of the 1800 election debacle.

  • The 23rd amendment to the Constitution, ratified in 1961, is also relevant to U.S. presidential elections. It decrees that the District of Columbia, which is not a state, shall have as many electors as it would receive if it were a state, but no more electors than the least populous state. At present, D.C. is allocated 3 electors.

International Treaties (Art II, § 2, cl. 2; Art 2, § 1(a) of the Vienna Convention)

The Treaty Clause

  • The “treaty clause” of the U.S. Constitution gives the president the authority to negotiate international treaties.

  • For a treaty negotiated by the president to go into effect, 2/3 of the Senate must approve it.

  • The Senate may approve a treaty negotiated by the president without conditions, approve the treaty with conditions, or reject the treaty.

  • However, the Congressional Research Service (CRS) has reported that there have only been a few instances in which the Senate outright rejected a treaty negotiated by the president.

  • (You can learn about what the Congressional Research Service is and does here.)

  • And in scenarios where the Senate has approved a treaty subject to conditions, presidents and the other party with whom the treaty has been negotiated have generally accepted the attached conditions; rarely have agreed treaties been terminated because of the Senate’s attached conditions.

  • Even after 2/3 of the Senate has approved a treaty, some treaties may require further steps by Congress (i.e. the passage of “implementing legislation”) before going into force.

  • For example, if the treaty involves a transfer of money from the United States to the other party in the treaty, Congress would need to pass legislation authorizing this transfer because only Congress, and not the president, has the authority to tax, borrow, and spend. In this case, the bill allowing the transfer of funds is “implementing legislation.” The implementing legislation would need to go through the standard Congressional legislative process.

  • An example of an important treaty concluded via this Article II procedure is the 1949 North Atlantic Treaty which created the North Atlantic Treaty Organization (NATO).

Executive Agreements

  • However, not all the international agreements the U.S. has entered have followed the procedure for approval outlined in the treaty clause.

  • International agreements have also been concluded via what are known as “executive agreements,” which have not been submitted to the Senate for its advice and consent.

  • These executive agreements, like treaties, are binding under international law.

  • Article 2, Section 1(a) of the Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

  • Its definition makes no distinction between U.S. executive agreements and treaties negotiated via Article II procedures as outlined in the U.S. constitution; the distinction exists only in American domestic law.

  • There are three types of executive agreements:

  1. Congressional-executive agreements - executive agreements that Congress authorizes prior to their conclusion or retroactively after their conclusion.

    • Such agreements require a majority vote in both chambers of Congress.

    • And undoing congressional-executive agreements also requires the consent of Congress.

    • The North American Free Trade Agreement (NAFTA) is an example of a congressional-executive agreement: the agreement was negotiated by President George H.W. Bush and then a bill enacting the agreement - the North American Free Trade Agreement Implementation Act - was passed by both chambers of Congress (and signed into law by President Bill Clinton).

    • An increasingly important type of congressional-executive agreement in today’s era of multi-national trade deals are those that grant the president “trade promotion authority,” also known as “fast-track trade authority.”

    • Here Congress passes legislation in advance of the president negotiating a trade deal which declares that Congress will grant a yes or no vote on the final deal without seeking to insert amendments and will do so within a short period of time (e.g. 90 days).

    • This is done to strengthen the president’s negotiating position in trade talks by signaling to the other nations involved that the president has the backing of Congress to carry out these negotiations and that a final Congressional decision on the trade agreement will come quickly.

  2. Sole-executive agreements – agreements made by the president without the authorization of Congress.

  3. Executive agreements based on an already existing treaty – a treaty negotiated via the Article II procedure may include authorization for the president to conclude executive agreements that flush out the details of the treaty.

    • The CRS has reported that since World War II executive agreements concluded by the U.S. have greatly outnumbered treaties: from 1939 to 2009 the U.S. agreed approximately 16,500 executive agreements compared to only about 1,100 treaties.

Pardon Powers (Art 2, § 2, cl. 1)

  • The president has the power to pardon individuals convicted of committing a federal crime (the president may not pardon those found guilty of state crimes).

  • The Constitution does not explicitly place any limitations on the power of the president to pardon federal crimes, only stating that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

  • This has led to questions about whether a president may pardon himself should he be found guilty of having committed a federal crime.

  • President Trump and his surrogates have claimed that he does.

  • However, this reading of the Constitution would place the president above the law allowing him to act with impunity: he could violate any law he chooses and then simply issue himself a pardon.

  • Because a president has (so far) never attempted to pardon himself, the courts have not issued a ruling on the matter.

  • So for now, it remains an open question whether presidents may pardon themselves.

  • The pardon power has also often been abused, with presidents issuing pardons to campaign supporters and donors that have been found guilty of serious crimes rather than to individuals who could rightfully claim to be victims of an imperfect criminal justice system.

  • For example, in 2001 President Clinton pardoned fugitive financier Marc Rich who was indicted on charges of racketeering, trading with the enemy, evading $48 million in income taxes, and over 50 counts of wire fraud. The pardon was granted on Clinton’s last day in office and came after Rich’s ex-wife Denise, who lobbied aggressively for a pardon, donated $450,000 to Clinton’s Presidential Library Foundation and $100,000 to his wife Hillary’s Senate campaign.

War Powers (Art. 1, § 8, cl. 11; Article II, § 2, cl. 1; The War Powers Act)

Declarations of War

  • The Constitution divides war powers between Congress and the president

  • The War Powers Clause of the Constitution (Art. 1, § 8, cl. 11) gives Congress the power to declare war.

  • Congress has used its power to declare war 11 times for five different wars.

  • The first instance was its declaration of war against the British Empire in 1812 which marked the start of the War of 1812.

  • The last time Congress formally declared war was during World War II.

  • On December 8, 1941, Congress resolved to declare war on Japan in response to its attack on Pearl Harbor the day before. This marked America's entry into World War II. You can view the joint resolution declaring war on Japan here.

  • Three days later, Congress would declare war on Germany and Italy. You can view the joint resolution declaring war on Germany here.

  • Then on June 3, 1942, Congress declared war on Bulgaria, Hungary, and Rumania.

  • Congress has not declared war since, despite America's involvement in numerous subsequent conflicts.

  • As discussed by the Congressional Research Service, Congress has instead opted to authorize the use of military force by the president without formally declaring war.

  • Some of these authorizations allowed for the use of force in a specific country while others authorized the use of force in a particular region.

  • Congress has passed legislation authorizing the use of military force in Formosa in 1955, the Middle East in 1957, Lebanon in 1983, Iraq in 1991, and Iraq again in 2002.

  • In the wake of the 9/11 attacks, one particular authorization used more nebulous language targeting "nations, organizations, or persons."

  • On September 18, 2001, Congress authorized the use of military force "against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks."

Conflicts Between Congress and The Presidency

  • Though only Congress can formally declare war, it actually shares war powers with the president.

  • This is because the Commander-in-Chief clause of the U.S. Constitution (Article II, § 2, cl. 1) states that the president is the commander-in-chief of the armed forces.

  • This division of war powers between the two branches has often led to tensions over to the president's ability to deploy military forces without congressional assent. 

The War Powers Act

  • In the wake of the Kennedy, Johnson, and Nixon administrations successively deploying troops to participate in the Vietnam War without Congressional assent, Congress overrode a veto by President Nixon to pass the 1973 War Powers Act.

  • This Act sought to place limits on the president's authority to deploy troops without approval from Congress.

  • It requires the president to inform Congress of any decision to deploy troops within 48 hours of doing so if such deployment occurs in the absence of a Congressional declaration of war and the troops are deployed into hostilities, a situation in which hostilities appear imminent, in a foreign nation while equipped for combat (except if the deployment is for logistical or training purposes), or in numbers which "substantially enlarge" the number of troops already deployed in a foreign nation that are equipped for combat.

  • It also requires the president to withdraw troops deployed into hostilities or a situation in which hostilities appear imminent within 60 days if the deployment occurred in the absence of a Congressional declaration of war unless Congress authorizes an extension, has since declared war, or is physically unable to meet because of an attack on the United States.

  • Presidents that have held office since the passage of this Act have simply disregarded it, arguing that it is an unconstitutional attempt by Congress to limit the war powers granted to the president by the Commander-in-Chief clause.

Ongoing Debate Over War Powers

  • The division of war powers between the two branches continues to be the subject of debate.

  • For example, in late 2017 and early 2018 Congress debated America's role in an ongoing conflict in Yemen in which the U.S. provides intelligence and refueling to a Saudi-led bombing campaign despite the absence of Congressional approval to do so.

  • The Obama and Trump administrations argued that they had the authority to allow such indirect involvement in the war without Congressional approval.

  • Some Members of Congress disagreed.

  • So in February 2018 several senators presented a war powers resolution that would have required troops in or "affecting" Yemen to withdraw within 30 days. However, the resolution was voted down in March of 2018.

The State of the Union Address (Art. II, § 3)

  • The president is required to periodically provide Congress with information about the state of the country and recommend to it measures he/she deems necessary.

  • According to the National Archives, on January 8th, 1790, first President of the United States George Washington gave his first annual address to Congress in New York City’s Federal Hall (New York City served as the nation’s temporary capital at the time).

  • Today these annual addresses to Congress take the form of a State of the Union Address given by the president once a year on Capital Hill.

The Foreign Emoluments Clause (Art. 1, § 9, cl. 8)

  • The "foreign emoluments clause" states that members of the national government shall not receive gifts or payments from a foreign government without the permission of Congress.

  • The architects of the Constitution included this clause because of their concern that foreign states and monarchs could try to bribe American policymakers, particularly diplomats stationed overseas.

  • However uncertainty remains over exactly who it applies to and what counts as an “emolument.”

  • For example, does the clause apply only to payments and gifts given to a public official or does it also apply to payments made to a business owned by a public official?

  • One could certainly argue that payments by a foreign state to a business owned an American public official may sway her/his decision-making. However, the clause makes no explicit mention of payments to businesses being forbidden, leaving the question unanswered.

  • Several lawsuits have recently been filed against Pres. Trump alleging that he is currently in violation of the clause for accepting such payments to his businesses.

  • The outcomes of these suits may clarify the scope of the foreign emoluments clause.

The Domestic Emoluments Clause (Art II, § 1, cl. 7)

Impeachment (Art. I, § 2, cl. 5; Art. I, § 3, cl. 6; Art. I, § 3, cl. 7; Art. II, § 2; Art. II, § 4)

  • The House of Representatives has the power to impeach the president (or the vice president or a supreme court justice).

  • If the House chooses to impeach the president, the Senate then tries the president and can, with the support of 2/3 of the senators present, remove the president from office.

  • The president and vice president can be impeached for treason, bribery, or "other high crimes and misdemeanors."

  • The inclusion of the imprecise phrase "other high crimes and misdemeanors" gives the House significant latitude to determine what constitutes an impeachable offense.

The Cabinet

What is the Cabinet?

  • The cabinet is a group of government officials that advises the president.

  • It consists of the heads of the 15 executive departments: The Secretaries of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, State, Transportation, Treasury, and Veterans Affairs.

  • Though not formally a cabinet member, it has also been precedent for the vice president to participate in cabinet meetings since the Roosevelt administration.

  • Additionally, a president may choose to designate other government officials as having cabinet-level status. Conferring such a designation on other officials does not change the powers or responsibilities they hold and is merely a symbolic gesture.  

  • For example, the U.S. ambassador to the United Nations has moved in and out of the cabinet with Ronald Reagan and Bill Clinton including their U.N. ambassadors in their cabinets and George H.W. Bush and George W. Bush opting not to.

  • Pres. Trump’s cabinet consists of the heads of 15 the executive departments who formally comprise the cabinet plus the Vice President, the Attorney General, the White House Chief of Staff, and the heads of the Environmental Protection Agency, the Office of Management and Budget, the U.S. Trade Representative, the U.S. Ambassador to the U.N, the Council of Economic Advisors, and Small Business Administration who have been conferred cabinet status in this administration.

When Does the Cabinet Meet?

  • The cabinet meets whenever the president wants, though it is uncommon for a president to call a meeting of the entire cabinet. Generally, presidents convene meetings that deal with a particular issue and the meetings consist of individuals who work on the issue in question.

What are the Origins of the Cabinet?

  • President Washington set the precedent of U.S. presidents assembling a cabinet and James Madison was the first president to refer to this group of advisors as “the cabinet.”

  • The U.S. Constitution makes no reference to a cabinet and does not require that one exist but the precedent has carried on since President Washington first assembled his.

Are the Positions That Formally Comprise the Cabinet Subject to Change?

  • Yes, if new federal departments are created or existing ones are eliminated.

  • For example, prior to 2003 there was no Department of Homeland Security and the cabinet formally consisted of the heads of the then 14 federal departments. The department was created in the wake of 9/11 and its head – the Secretary of Homeland Security – became the 15th member of the cabinet.

How are Members of the Cabinet Selected?

  • Article II, Section 2 of the U.S. Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … public ministers and consuls … all other officers of the United States, whose appointments are not herein otherwise provided for …”

  • This means that the 15 formal members of the cabinet – the heads of federal departments – are nominated by the president and must then be approved by the Senate. Approval requires a simple majority (the support of 51 out of 100 senators).

  • Some of the other officials presidents have sometimes chosen to confer cabinet-level designation upon (e.g. the Attorney General, the U.S. ambassador to the U.N.) are also nominated by the president and approved to their respective positions by the Senate while others are simply selected by the president and do not require Senate approval (e.g. the White House Chief of Staff).

  • The vice president is elected on the same ticket as the president.

The Vice President and a Majority of the Cabinet May Remove a President from Office (Amendment XXV, § 4)

  • If (1) the vice president and a majority of the heads of the executive departments or (2) a body appointed by Congress to examine the president’s fitness for office decide that the president is “unable to discharge the powers and duties of his office,” (e.g. is temporarily incapacitated, insanity) they may remove the president from office by informing the president pro tempore of the Senate and the speaker of the House of Representatives of their judgement in writing.

  • At that point, the vice president becomes the acting president.

  • Thereafter, if the president deems himself fit to carry out the duties of the presidency, he may inform Congress of this judgement in writing, at which time the president will resume his responsibilities, unless the vice president and a majority of the cabinet or the body appointed by Congress again write to Congress, within four days, informing it that they disagree with the president’s judgement.

  • If the vice president and a majority of the heads of the executive departments or the body appointed by Congress do write to inform Congress that they disagree with the president’s judgement that he is ready to resume his duties, Congress must then decide the matter.

  • If 2/3 of both chambers of Congress decide that the president is unable to discharge the duties of the office, the vice president shall serve out the remainder of the president’s term.

  • Otherwise, the president shall resume the office.

  • This section of the constitution has, to date, never been used to remove a president from office.

Appointment of Cabinet Officers, Ambassadors, and Judges of the Supreme Court (Art II, § 2,  cl. 2)

  • The President is responsible for nominating ambassadors, cabinet officers, and federal judges (including Supreme Court justices).

  • The nominees must then be approved by the Senate. Approval requires a simple majority (the support of 51 out of 100 senators).

  • There have been instances where presidents have abused this authority to appoint unqualified campaign donors to prestigious ambassadorships (see for example President Obama’s nomination of George James Tsunis, who had never visited Norway in his life, as America’s ambassador to Norway).

  • There have also been instances where presidents have used this authority to actively facilitate the regulatory capture of federal agencies (see for example President Trump’s nomination of Scott Pruitt to lead the Environmental Protection Agency).

  • In some instances, such nominees have been thwarted by the Senate; in others, the Senate has not fulfilled its duty to properly vet individuals nominated to such posts.

 

Written By: Aiden Singh Published: July 15, 2020