Article II of the United States Constitution lays the foundation for the American presidency. Compared to the relative precision of Article I, which sets forth both the structure and authorities of Congress, Article II stands as “a cryptic, incomplete text” ( Epps 2013, 33 ). It continues to elicit legal as well as political debate, even as to the most fundamental issues of presidential authority.
Section 1 commences by vesting “[t]he executive power in a President of the United States of America.” It gives the president a four-year term and sets minimum requirements of age, citizenship, and residency. It prescribes an oath of office and guarantees a salary that Congress may neither increase nor diminish while the president serves. It prescribes a method for choosing presidents through a system of electors—a method later amended and not imitated by any other nation.
Article II, however, does not provide any Article I–like organization chart for an executive branch of government. Section 2 of Article II entitles the president to “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.” This language signals the Framers' understanding that executive departments of some sort would exist. The precise makeup of the executive establishment, however—both the organizations it comprises and the organizational forms they take—is implicitly left to Congress.
Article II does mention the vice president, who is to have the same term of office as the president and is to be likewise subject to impeachment. The Constitution is silent, however, regarding the president's relationship to the vice president. There is no reference to any vice presidential function within the executive branch, except that the powers and duties of the president are to “devolve” on the vice president should the president die, resign, or become incapacitated. It was thus unclear, when William Henry Harrison ( 1773–1841 1790–1862 ), on the former status settled the question as a matter of custom ( Epps 2013, 42 ), since ratified in the Twenty-Fifth Amendment.
Sections 2 and 3 confer on the president a dozen specific powers or duties. The relationship between these specifics and the general vesting of “executive power” is puzzling. Almost any theory of “executive power” would seem to imply some of the specific provisions that follow. For example, the vesting of “executive power” appears sufficient by itself to entitle the president to demand the formal opinions of the heads of executive departments, as Section 2 contemplates. Likewise, by definition, “executive power” would seem to include the responsibility to carry out the law—a duty reinforced by Section 3's requirement that a president “take care that the laws be faithfully executed.” On the other hand, it is not really plausible that the “executive power” to which Section 1 refers amounts to nothing other than the authorities spelled out in later sections. The collection of specific powers is too modest to meet what the Framers undoubtedly anticipated as the needs of a fledging nation.
The content of what “executive power” conveys by implication remains controversial. Historical inquiry is often inconclusive because the founding generation had no single, widely understood theory of what “executive power” would mean in a nonmonarchical national government. Justice Robert Jackson ( 1892–1954 ) famously wrote:
Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question ( Youngstown Sheet er Tube Co. v. Sawyer, 343 U.S. 579, 635  ).
Article II's puzzles are evident even in the presidential oath. The Constitution commands a presidential commitment to “preserve, protect and defend the Constitution.” Yet the president is given no specific national security powers. Champions of a strong presidency insist that “the executive power” implicitly conveys robust national security powers on the president—powers arguably even beyond Congress's power to regulate. Scholars more concerned with constitutional checks and balances argue that such powers are limited, especially as they may affect US citizens, and that the powers presidents enjoy are nonetheless subject to congressional control. No Supreme Court opinion comprehensively addresses this question, although the Court's post–September 11 decisions, such as Hamdi v. Rumsfeld, 542 U.S. 507 ( 2004 ), and Hamdan v. Rumsfeld, 548 U.S. 557 ( 2006 ), do indicate that the president's treatment of so-called enemy combatants must comply with congressional statutes relevant to their interrogation and trial—a result consistent with the “checks and balances” view.
The president's relationship to subordinate officials is equally puzzling. Section 2 gives the president the power to nominate and, with Senate concurrence, appoint principal federal officials, including federal judges. Article II is nonetheless silent about any presidential removal authority over officers he appoints to the executive branch. So-called “unitary executive” theorists argue that the “executive power”—coupled with the president's explicit appointment powers—implies presidential authority to remove any subordinate official. The Supreme Court appeared to support this view in Myers v. United States, 272 U.S. 52 ( 1926 ), which overturned a law requiring presidents to seek Senate consent in order to dismiss any officer whose appointment had also needed Senate confirmation. Writing for the majority, Chief Justice and former president William Howard Taft ( 1857–1930 ) wrote in strong terms about the necessity of presidential control over the bureaucracy in order to fulfill the president's constitutional law enforcement obligations. Subsequent cases, however—most notably, Humphrey's Executor v. United States, 295 U.S. 602 ( 1935 ), and Morrison v. Olson, 487 U.S. 654 ( 1988 )— upheld Congress's authority to limit the president's removal power over many officials. For officials whose functions do not impinge on powers vested expressly in the president by the Constitution, Congress may limit the president's removal power to discharges based on good cause and not mere policy disagreement. The Supreme Court's now-repeated approval of the constitutionality of so-called independent agencies that enjoy such protection from presidential removal makes it highly unlikely that the judiciary will ever endorse unitary executive theory in its most comprehensive form.
In a similarly elliptical fashion, Section 2 authorizes the president to make treaties with the concurrence of two-thirds of the Senate. But it says nothing about socalled “executive agreements” with other nations that presidents since George Washington have entered into without a Senate vote. Nor does it say when presidents may abrogate treaties previously adopted. The Supreme Court has upheld the executive agreement power, at least when an agreement has implicit congressional approval or is part and parcel of a presidential determination to recognize the government of another nation ( Dames & Moore v. [Treasury Secretary Don] Regan, 453 U.S. 654  ). (Presidents have long claimed that their authority over recognition and diplomatic relations is implied by their Section 2 authority to receive ambassadors and other public ministers.) When presented with the issue of treaty abrogation, the Supreme Court declined to rule, declaring that the allocation of power to abandon treaties is an issue for the president and Congress to work out primarily between themselves ( Goldwater v. Carter, 444 U.S. 996  ).
Other specific powers conferred by Article II include the power to make temporary appointments during recesses of the Senate, to grant reprieves and pardons for federal crimes (but not in cases of impeachment), to commission federal officers, to inform Congress as to the state of the union and recommend legislation, to convene Congress “on extraordinary occasions” and to adjourn Congress when the two houses cannot agree on an adjournment date, and to commission officers of the United States. These hardly explain the presidents' obvious effectiveness in checking and balancing Congress, which presumably depends less on these authorities than on the power he is given by Article I to veto legislation, unless overridden by a two-thirds vote of both Houses.
THE YOUNGSTOWN CASE
The Supreme Court's single most frequently cited guidance for assessing the legality of presidential initiatives is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 ( 1952 ), in which the Court enjoined President Harry S. Truman's order to the secretary of commerce to take control of the nation's steel mills. President Truman assertedly acted in order to prevent a threatened steel strike from interrupting military procurement for the Korean War. The Court held the takeover to be beyond Truman's commander-in-chief authorities because Congress had not declared war and the territorial United States was not within a theater of war. Nor had Congress otherwise authorized what amounted to a taking of the steel mill's property.
Yet each of the five justices joining or agreeing with Justice Hugo Black's “opinion of the Court” in a 6–3 vote wrote a separate concurring opinion. Justice Jackson's concurrence, setting forth a general framework for the legal analysis of presidential initiatives, has been the most influential. He offered what he called a “somewhat oversimplified” tripartite “grouping of practical situations in which a president may doubt, or others may challenge, his powers” (343 U.S. at 645 [Jackson, J., concurring]). When presidents act pursuant to express or implied statutory authority, their authority is at its utmost. Presidential action would be upheld in these situations if the Constitution vested power either in the president to act as he had or in Congress to authorize the challenged initiative. Conversely, presidential action could contradict Congress's express or implied policy. In such a circumstance, the president's claim of authority would be weakest. The action would be lawful only if based on a constitutional grant of exclusive power to the president that was beyond Congress's power to limit or regulate. Finally, Jackson observed, there is a middle ground in which the president may act “in absence of either a congressional grant or denial of authority” (343 U.S. at 637). The president in such a case “can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility” (343 U.S. at 637). The obvious ambiguity in this formulation is that, although presidential claims of authority in the second and third of Justice Jackson's categories require authority be grounded in Article II, Youngstown itself offers little guidance—except on its peculiar facts—as to how Article II should be interpreted.
A related point of textual ambiguity is whether congressional sanctions short of removal from office are permissible on charges against a president that fall short of the “high crimes and misdemeanors” standard. History suggests a negative answer. The one such attempt was a censure the Senate voted against President Andrew Jackson ( 1767–1845 ) in 1833 because of his withdrawals of US funds from the controversial Bank of the United States. His formal protest went unheeded until 1837, when the Senate voted to expunge the censure from its record.
“Executive privilege” poses another Article II puzzle. Unlike Article I, which explicitly allows Congress to keep parts of its journals secret, Article II says nothing about presidential power to withhold executive branch documents from disclosure either to the other branches of government or to the public more generally. In United States v. Nixon, 418 U.S. 683 ( 1974 ), however, the Supreme Court held that such a privilege is implicit in the Constitution because of the executive's status as a coequal branch. In the subsequent decades, federal courts have had to work out on their own the scope of material that the privilege covers and the circumstances under which the privilege is absolute or, instead, merely “qualified,” in the sense that another branch's need for the executive branch documents may overcome the president's entitlement to confidentiality.
Recent decades have witnessed intense debates over the scope of the president's implied national security powers. The Supreme Court ruled in 1972 that, in investigating national security threats that are wholly domestic, the executive branch's surveillance powers are limited by the Fourth Amendment ( United States v. United States District Court, 407 U.S. 297  ). Responding to the Court's decision, Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA), which provided special warrant procedures for national security surveillance involving “United States persons,” even if they were acting in concert with other countries. Controversies arose, however, when leaks between 2005 and 2014 revealed that the George W. Bush administration's foreign intelligence surveillance programs went beyond the scope of FISA—an assertion of presidential authority that the Bush administration sought to defend on highly debatable grounds. Although Congress subsequently amended FISA in ways that would have permitted much of what the Bush administration did without statutory authority, questions remain about the constitutionality of the program, even as it was continued under the Barack Obama administration.
On the domestic front, Article II's elliptical prose has engendered controversy regarding the president's administrative authority. It is conventional understanding, for example, that the president's obligation to “take Care that the Laws be faithfully executed” does not preclude the president from setting implementation priorities, even when they result in the conspicuous underenforcement of certain statutes. It is not controversial, for example, that the Justice Department routinely avoids prosecuting people for the unlawful possession of marijuana when the amounts involved are small. It was quite controversial, however, when President Obama's secretary of homeland security announced in 2012 that her department would not deport individuals potentially removable from the United States if they were under eighteen when they entered the United States; were currently in school, a high school graduate, or an honorably discharged service member; and had no serious criminal convictions. Although the policy was defended as a conventional exercise of executive branch law enforcement discretion, critics insisted that the move was in violation of the president's law enforcement obligations.
Yet another significant controversy involves so-called presidential signing statements—formal statements in which a president, while signing an enacted bill into law, nonetheless indicates doubts about the constitutionality of particular provisions of the statutes he or she is signing. In such cases, presidents typically assert that they will implement or interpret the statutory provisions in question to minimize the perceived constitutional difficulties. In some instances, presidents even say they will simply ignore the statutory provisions they take to be unconstitutional. One scholar numbered the total number of statutory provisions to which presidents objected on constitutional grounds between the administration of James Monroe ( in office 1817–1825 ) and the beginning of the first Ronald Reagan ( in office 1981–1989 ) administration at 101 ( May 1998, 76 ). The practice, however, dramatically accelerated from the second Reagan administration through the second George W. Bush administration. Between 2001 and 2009, President Bush objected to approximately 1,070 provisions embodied in 127 statutes ( Shane 2014, 210
It seems unlikely that, over time, controversies over the scope of Article II will either dissipate or become less intense. Presidents will always have political incentives to appear energetic in undertaking initiatives designed to further their conception of the public interest. The institutional competition between presidents and Congress, often exacerbated during periods of divided government, insures that such initiatives will frequently be challenged. Especially when the president acts without any plausible claim that Congress has authorized executive initiative, these debates will be framed routinely in constitutional terms, notwithstanding—or perhaps because of—the ambiguities of Article II.
SEE ALSO Checks and Balances ; Constitution ; Executive Powers ; Presidency, The ; Presidency in the Policy Process ; Presidential Signing Statements ; Separation of Powers ; Unitary Executive ; Youngstown Sheet & Tube Company v. Sawyer .
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Peter M. Shane
Moritz College of Law Ohio State University