Article II of the Constitution | US Government and Politics | Khan Academy
Articles,  Blog

Article II of the Constitution | US Government and Politics | Khan Academy

– [Kim] Hi, this is Kim from Khan Academy and today I’m investigating
Article Two of the Constitution which establishes the
executive branch of government. It’s Article Two that establishes the office of president
of the United States, tells us who’s eligible for
that role, how they get elected, and what powers they have. Now today, it seems very natural to us that the executive branch
of the US government should be led by a president
but at the time of the founding it wasn’t at all certain
that that would be the case. After all, the Founders had just rebelled against a monarchy where power was placed in the hands of one individual. They’d been so nervous
about executive power that the first governmental
system of the United States, the Articles of Confederation, didn’t have an executive branch at all. So to learn more about Article Two I sought out the help of some experts. Professor Sai Prakash is an expert in the separation of powers,
particularly executive powers and teaches constitutional law, foreign relations law,
and presidential powers at the University of
Virginia School of Law. For more on the debate about
what an executive branch should look like, I talked to
Professor Michael Gerhardt. He’s a leading constitutional scholar whose specialties include
civil rights, civil liberties, and separation of powers. So Professor Prakash, why did the framers choose to invest power in a president? Were there any other options
for an executive branch? – [Professor Prakash] They
thought about creating an executive council, which
would have been composed of three or more executives that would have jointly exercised whatever executive power
they vested in the executive. And so you might have had a triumvirate like they had in Rome,
or an executive council like they had in some states. And they also thought
about doing something slightly different, which is
to have a single president, but then require the
president to go to a separate executive council before he
made several important decisions but in the end they decided
we like to concentrate executive authority in
the hands of one person thinking that that would be
better for law execution, better for assigning responsibility, would bring energy to the executive branch and the executive branch wouldn’t be riven with dissent and dissension. – [Kim] I asked Professor Gerhardt how long it took the framers to decide on the form the
executive branch would take. – [Professor Gerhardt] It was
something on which the framers came to an agreement pretty quickly. They came into Philadelphia
and almost at the very outset there was a proposal that
came forward from Virginia, part of the Virginia Plan,
and the Virginia Plan proposed a single executive
who would serve for seven years and not be eligible for reelection. The delegates would eventually
agree on certain features which are now encapsulated or
can be found in Article Two. – [Kim] I think one of the tensions we see in the Constitution and the Bill of Rights is trying to create a
structure for government that’s strong enough to
do what it needs to do, but also one that doesn’t
have too much power so that it doesn’t become a tyranny as the framers had seen in Europe. So were they nervous about
having an executive branch in the first place? – [Professor Prakash] That’s
a great question, Kim. You know, we had a confederation
before the Constitution. It was called the Articles
of Confederation and in that system we had Congress
acting as a plural executive. And Congress and the observers of Congress thought that Congress
wasn’t really well suited to playing the role of executive, to supervising foreign affairs, and to supervising executive officers both military and civilian. And so by the eve of the
Philadelphia Convention where they wrote the Constitution there were quite a few people saying we need to have a separate executive. We need to invigorate it with authority because if we do that we will then have a successful new government
under the new Constitution. – [Professor Gerhardt]
Alexander Hamilton, for example, wanted an executive who would
basically serve for life. He didn’t get it. You can imagine that for many delegates an executive who could serve for life would sound an awful lot like a king, and that’s exactly what they
had just rebelled against. – [Professor Prakash] Other people said if you create a unitary executive, if you create this single
executive, chief executive you’re gonna have a monarchy. You’re gonna have someone who
is intent upon seizing powers of various sorts, who’s
going to want to install maybe a hereditary monarchy
somehow and that was the tension between those who wanted to
have a stronger executive, a stronger single executive thinking that that would be the best
thing for the government and those who thought
that a single executive would descend into a monarchy. – [Kim] So I imagine it was pretty tricky for the Framers to think
how they could have an executive branch
that was powerful enough to get things done, but not so powerful that it took on that tyrannical cast that they were really eager to avoid. So what powers did the president
eventually end up having? – [Professor Prakash]
You know, the president is made commander in chief
of the army and the navy. He has the power to pardon. – [Professor Gerhardt] The
president has the authority to nominate people to
certain high-ranking offices subject to the advice and
consent of the Senate. Among those offices are
included Supreme Court justices. The president has the authority to be able to negotiate treaties. – [Professor Prakash] So he’s
got a host of authorities, and then there’s the central
question that’s disputed, Kim, which is does the first
sentence of Article Two, which says the executive
power shall be vested in a President of the United States, does that also give the
president any authority beyond what’s listed in Article
Two sections two and three? So for instance, does the
Vesting Clause of Article Two give the president authority
over law execution? Is he able to direct the
execution of federal laws by subordinate executive officers? Does the president have
the power to remove executive officers by virtue
of the Vesting Clause? And then significantly, does he have foreign affairs authorities by
virtue of the Vesting Clause to speak to other nations to
direct US ambassadors, etc? And that’s a dispute that’s
been ongoing for 200 years whether the Vesting Clause really grants additional authorities to the president. – [Professor Gerhardt] So
all those different powers we now more or less take for granted that are common to US
presidents are all set forth, for the most part, expressed
in the Constitution. There are a few implicit powers the president will take on over time. – [Kim] As I understand
it, the president’s powers have grown fairly significantly over time. Do you think the Framers
would be surprised by how much power the president has today? – [Professor Gerhardt] Yes,
it’s grown, I think to be perhaps more powerful
than many of the Framers initially thought it might be. There were some authorities, for example, the power to remove people
in the executive branch that are not spelled out
explicitly in the Constitution. Over time, the presidency
would acquire that power and ultimately the Supreme
Court of the United States would ratify that, or
affirm that authority. That’s one big area, removal power, over executive branch officials that gets clarified and
sharpened over time. – [Professor Prakash] Over
time the president has cited, president and his assistants
have cited the Vesting Clause as a source of a great amount of authority and some of those claims you might think are consistent with the Constitution and others you might
think are inconsistent. So what are the things that
presidents have claimed? They’ve claimed the authority to direct the execution of federal statutes. I think that’s consistent
with the original design. They’ve claimed some limited
authority over foreign affairs. I think that, too, is consistent
with the original design. They’ve also claimed authority
to exercise certain powers in emergencies, that’s more
contested and more debatable whether they have some
sort of emergency power either temporary or otherwise. – [Professor Gerhardt] When
Abraham Lincoln comes into power Congress is not in session
and Lincoln’s gotta respond in real time to an invasion
on federal territory and to try to begin the
protection of the United States and he does that
initially without Congress being a part of it because
he has to move very quickly. – [Professor Prakash] They’ve
also claimed the authority to wage war and that’s also contested because of course Congress
has the power to declare war and many people believe that that text means that Congress gets to
decide whether to wage war. Modern presidents take the position, or often take the position that
they can use military force overseas without getting
a declaration of war or more precisely, without
getting congressional approval for the use of force overseas. So yes, the president’s
powers have changed over time and that’s a source of deep controversy. – [Kim] So what checks can
the executive branch use on the legislative or judicial
branches of government? – [Professor Prakash] Kim,
the executive has a veto. And the veto permits the president to reject legislation sent
to his desk by Congress. So under the Constitution,
congress has to present all legislation to the president and he can either sign it
and thereby make it law, or he can veto it, and if he vetoes it and he sends back his
objections to Congress they then have the option
of overriding the veto by a two-thirds vote in both chambers. And so the veto gives the
president great leverage over Congress ’cause they know
that if he vehemently opposes a particular piece of legislation
they can only pass it if there are rather sizable
supermajorities in both chambers. – [Professor Gerhardt] He has a power to be able to pardon people
for federal offenses. So again, that’s a unique
presidential authority. The presidency, in a sense, is
taking more of the limelight away from Congress, which
might be making the law, but administering the law is
gonna require a lot more time and put the president in the position of also exercising discretion
over how to enforce the law. So that becomes another
important authority of the presidency, how do
you go about enforcing it? What kind of discretion do you
have when you do enforce it? – [Professor Prakash]
He also has the power to recommend measures to
them under the Constitution. That is to say he can suggest
that they pass legislation on a particular subject thereby making sort of a vague suggestion, or
he can actually present them a bill and say I’d like
you to consider this. They don’t have to act on the bill, but he has that authority. And you know, he can also tell them about the state of the union, right? That’s the State of the Union Clause. So those are the checks
he sort of has on Congress and those are significant checks. The members of Congress don’t get paid unless the president signs the bill that passes the appropriation for them or they override his veto. So those are significant checks. And then with respect
to the judiciary, Kim, there aren’t as many
checks in the Constitution. The Constitution never
says the executive branch has to execute judgements
issued by the courts, but that’s been our practice, and I think it’s an implicit
feature of the Constitution that when courts issue judgements the executive will honor
them and enforce them. Because that’s an implicit
feature of the Constitution presidents don’t really have
much leverage over the courts, right, because the president
does get to nominate then and goes get to appoint
them and that gives him some sort of say over who becomes a judge, but once they’re judges
he doesn’t have any say over what they decide and
he typically, as I said, enforces their judgment. So the check on the judiciary is, who gets into the federal courts, who gets to serve as a federal judge. Once they’re judges the
president doesn’t have the same kind of check
that he has on Congress. There’s no veto on judicial
decisions, for instance. – [Professor Gerhardt] The
president can unilaterally or on his own issue what
are called executive orders, which are essentially mandates that govern the operations within
the executive branch. One president can set
the priorities one way, but another president can
reshape them a different way. – [Kim] Interesting,
’cause executive orders can do very positive things
like Truman’s executive order that the armed services be integrated, but they can also do very
negative things, for example, interning Japanese Americans
during World War Two. – [Professor Gerhardt] That is correct. And so the executive orders oftentimes might reflect a particular
president’s values, but it can also particular
president’s priorities. The challenge with an executive order is that it only lasts longer than a particular president’s term if other presidents are willing
to sign off on them as well. And so for example, you
can see how President Trump has decided not to continue
certain executive orders that President Obama put into place just as President Obama
chose not to extend certain executive orders
President George W. Bush put into place. – [Professor Prakash]
Lots of rules and laws are not made by Congress
in the modern era. They’re made by executive
and independent agencies and so a lot of the rules
that we have to follow about the environment or about
labor or about securities, they come from agencies and
not directly from Congress. And when the agency is
an executive agency, the president not only appoints the people that run that agency, the
president or his assistants in the White House are often involved in crafting the rules and shaping
the rules in various ways. And so if we think the mass
of rules and legislation comes from the government, the executive and not the Congress, then the president has a great role in that. – [Kim] So our first president
was George Washington. In what ways did Washington
set important precedents that are still with us today? – [Professor Gerhardt]
There are a lot of people, a lot of scholars who think that things would’ve been quite different
had it not been Washington. And the fact that George Washington would become the first president helped put a lot of people at ease because he was widely
viewed as trustworthy and somebody who wouldn’t
be naturally disposed to become tyrannical. And Washington himself understood from the very outset of his administration that nearly everything he
did would create a precedent for other presidents to
follow, and so Washington ends up becoming quite influential, not just in helping to define things, but also in reassuring
people that this system can get off the ground and the presidency wouldn’t necessarily
be a tyrannical office and that the president, in fact, could be an effective
part of a new government. – [Professor Prakash] If
Washington’s not there and they can’t see an honest
man taking over as president, you might very well have
had an executive council. You know, they might have been wary of who would be a unitary executive and wanted to have a plural executive in order to make sure that no one person became too powerful, and another
way of thinking about this is if you create a new Constitution in the wake of President Nixon, you’re gonna have a different Constitution because people are more
distrustful of executive authority. If you have a new Constitution after a really honest and noble
and successful presidency, people are gonna write
an executive article that’s more favorable to the president. And the situation for Washington couldn’t have been more favorable. They had seen the problems
with weak execution under the articles and in the states. They thought that weak
executives were a problem. They saw this person who
could be a strong executive and be a responsible and wise executive and those two things conspired to create an executive that was one of
the most powerful in the world. – [Professor Gerhardt] So
Washington is trying to signal, look, we don’t want to
create tyrants here. We’re not kings, we’re
not presidents for life. We’ll serve at most for a couple terms and then we will willingly
lay down our authority and let other people follow us. That’s actually a critical
precedent, but again, every president until
Franklin Roosevelt follows and it’s one that reflects
Washington’s special values that the most important
office, ultimately, is not the office of the presidency, it’s actually the office, so to speak, the position of being a
citizen of this country. – [Kim] So we’ve learned
that thanks to the example set by George Washington, the
Framers of the Constitution felt confident that
they could invest power in a president to have an
energetic executive branch. But as Sai Prakash noted, the
Framers might be surprised at the way the president’s
powers have grown over time through executive orders and
the use of military force. However, Michael Gerhardt
brings up an important point that in the United States the president is first and
foremost a citizen, not a ruler. To learn more about Article Two, visit the National Constitution
Center’s Interactive Constitution and Khan Academy’s resources
on US government and politics.


Leave a Reply

Your email address will not be published. Required fields are marked *