Following the signing of the Treaty of Paris in 1783, the Founding Fathers of the United States of America met to create a constitution which was to serve as the fledgling nation’s backbone. Though previously unified under the Articles of Confederation, the thirteen articles failed to effectively facilitate cooperation between the individual states; the creation of a new governing document was essential if the newly-independent United States was to succeed as a sovereign country. Though the revolution had been fought to free the colonies from the misrule of a king and the tyranny of a centralized monarchy, the drafters of the Constitution recognized that successful unification of the thirteen states would require that some of their sovereignty be relinquished to a centralized governing body with sufficient power to influence state actions. However, the organization of the national state apparatus and the extent of its powers would have to be re-envisioned in order to prevent the US government from mirroring the body which it was to replace. It was decided that the national government would be split into three separate branches: one legislative, one judicial, and one executive. The US Constitution put forth a system of checks and balances intended to ensure the rights of individual states and to set the limitations of the powers that would be granted to the three branches of the federal government. This essay will focus on those powers granted to the executive by the Constitution, the rational behind their formation, and the theories of presidential power that attempt to explain the significant expansion of presidential powers that has taken place since the documents creation.
Section one of Article II of the US Constitution sets presidential and vice-presidential term limits at four years and states the manner through which they are to be elected. It also requires a fixed presidential salary which cannot be changed during a presidential term (Library of Congress). As James Wilson argued in the Pennsylvania ratifying debates, an income free from congressional influence would make it so that, “the President of the United States could shield himself, and refuse to carry into effect an act that violates the constitution” (Amar 181). In other words, the President’s decision making process would be free from the influence of potential increases or decreases to their salary imposed by Congress. It was also argued that the creation of a presidential salary would make every male US citizen eligible for election to the presidency; without the provision of a salary, only the wealthy would have the means to assume office (Amar 181). Thus, the stipulation of a presidential salary in the US Constitution also served as an effort to prevent aristocratic control of the nation.
Section seven of Article I stipulates that all bills, once passed by both Houses, be presented to the president for consideration. The President can then sign the bill into law, return the bill to House in which it originated, or allow the bill to pass without their signature (Library of Congress). Though presidents prior to the Civil War tended to exercise their veto-power solely to raise constitutional objections to questionable bills, the Constitution itself does not expressly obligate the President to veto any bill deemed unconstitutional. If an unconstitutional provision was merely a small detail in a large piece of legislation, a President could simply choose to allow the bill to pass without their signature; they might also sign their name to a generally sound and desperately needed bill which contained only a minor constitutional flaw. However, “as an officer oath-bound to champion the constitution, the president would also be free to take up his veto pen in defense of the document, in an effort to appeal directly to the American public and to induce Congress to re-pass the bill without the offending details” (Amar 184).
Section two of Article II establishes the President as the “Commander and Chief” of the army and navy, as well as the militias of the original thirteen states, though only when they are called into service of the United States. They are given the right to ask for the opinion, in writing, of the principal officer of each of executive department, on anything pertaining to that department’s specific duties. The President is also given the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment (Library of Congress). Though section two granted the President with significant powers, it also placed restrictions upon the position so as to ensure that the US executive would not come to mirror the British Monarchy. Unlike the king, who maintained control over all of Britain’s military forces, the president could only exert control over state militias in order to “execute the Laws of the Union, suppress Insurrections, and repel Invasions” (Amar 187). While the British monarch could pardon whoever he wished, the US president could only pardon federal offenses, and was restricted from the ability to use their pardoning power to negate impeachment charges.
Section two goes on to describe several areas in which the president is to share power with Congress. Though the president is granted the ability to make treaties and to nominate members to the executive branch, Supreme Court, and other offices not expressly provided for in the Constitution, agreement and consent of two thirds of the Senate is necessary for any treaty or nomination to become effective. This broke the US Constitution from the British Model of unilateral control under the king by “giving the Senate a portion of traditionally executive authority—- much as Article I gave the president some legislative power via the veto clause” (Amar 190).
Section 3 of Article II obligates the president to inform Congress of the state of the union and to recommend measures which they feel are necessary and expedient; “to convene Congress in emergencies; to receive foreign diplomats; to ‘take care that laws are faithfully executed;’ and to commission all executive and judicial officers” (Amar 195).
The final section of Article II provides the most significant check to presidential power, “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” (Library of Congress). While British law lacked any mechanisms to oust a bad king, American-style impeachment made the president, as well as his cabinet members, responsible for any personal misconduct while serving as the nation’s leaders. Though entrusted with great powers, the president “would nonetheless be checked by the House and Senate, as the American people looked on, poised to render ultimate political judgment on all concerned” (Amar 204).
Since the creation and ratification of the United States Constitution, the scope of presidential powers has changed dramatically. Not surprisingly, considering the brevity of Article II of the US Constitution. Though rather precise limits are set on legislative and judicial power, no such limits govern the executive. It is within this vague constitutional description that “lay the seeds of a far more powerful position, one that has grown through elaboration of its explicit enumerated powers as well as the interpretation of its implied and inherent powers” (Pika Maltese 3). The Constitution’s ambiguity concerning the limitations of presidential action has led to several contrasting theories of presidential power: the constitutional theory, they stewardship theory, and the prerogative theory.
Proponents of the constitutional theory of presidential power argue that presidential power is strictly limited. They believe the powers of the executive to consist only of those specifically enumerated in the constitution or granted through an act of Congress. According to William Howard Taft, “there is no undefined residuum of power that he can exercise because it seems to him to be in the public interest…[presidential power] must be justified and vindicated by affirmative constitutional …provision” (Pika Maltese 13). The actions of US presidents up to the Civil War convey a shared desire to uphold such a literal interpretation of presidential power as stipulated by the Constitution.
Teddy Roosevelt serves as a fine example of someone who subscribed to the stewardship theory. He maintained the belief that a president of the US could do anything that was not expressly forbidden in the Constitution or by laws passed by Congress working within its constitutional authority. As Roosevelt stated in his autobiography, “I did and caused to be done many things not previously done by the President…I did not usurp power, but I did greatly broaden the use of executive power” (Pika Maltese 14). As these words suggest, the intent of a presidential steward is to leave the office in a better condition than when they assumed power.
It is the prerogative theory however, which extends the broadest range of powers to the president. In his essay “The Second Treatise of Government,” John Locke defines the concept of prerogative power as the power “to act according to discretion for the public good, without the prescription of the law, and sometimes even against it.” (Pika Maltese 14). The prerogative theory increases presidential powers to include the ability to carry out actions which are explicitly forbidden, should they be deemed to be in the national interest. Such power was exercised by Abraham Lincoln during the Civil War, “he appealed to military necessity, asserting that the Constitution’s Commander-in-Chief Clause…and its Take-Care Clause…combined to create a ‘war power’ for the president that was virtually unlimited;” and taken even further a century later when Richard Nixon claimed “[W]hen the President does it, that means that it is not illegal” (Pika Maltese 15).
The ambiguity of Article II of the US Constitution made possible such reinterpretations of presidential power; reinterpretations which have lead to a substantially expanded modern presidency. As the responsibilities of the president have increased significantly since the birth of the nation, some reinterpretation of the Constitutional limitations placed on the office’s power has been necessary. However, like Nixon, various presidents have taken their “reinterpretation” beyond what might be considered legitimate. It is these individuals which force one to question whether it was wise to leave the parameters of the presidential role so open to interpretation. Though the Constitution was created with the goal of uniting the nation while preventing the national government from coming to resemble that of the British Empire, the continuous expansion of the presidency and presidential powers, especially of late, pushes the United States ever closer to becoming like the despotic empire its forefathers fought so valiantly to be freed from.
The Library of Congress (1787). The United States Constitution. April 21st, 2008.
Amar, Akhil Reed. America’s Constitution: A Biography. New York: Random House Trade Paperbacks 2005.
Pika, Joseph A. Maltese, John Anthony. The Politics of the Presidency. Washington D.C.: CQ Press 2006.