Article II Executive Branch

Signed in convention September 17, 1787. Ratified June 21, 1788. Portions of Article II, Section 1, were changed by the 12th Amendment and the 25th Amendment

The 12th amendment superseded this clause, after the election of 1800 in which Thomas Jefferson and his running mate, Aaron Burr, received identical votes and both claimed the office. After many votes, the House of Representatives chose Jefferson, and soon thereafter the amendment was speedily approved.

The 25th amendment superseded this clause regarding presidential disability, vacancy of the office, and methods of succession

Section 1

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:

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.

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.

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.

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.

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.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased 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.

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

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 Offenses against the United States, except in Cases of Impeachment.

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.

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

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

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.

Common Interpretation

Article II. The Executive Branch, Annenberg Classroom

Article II. The Executive Branch, Annenberg Classroom

By Annenberg Classroom

Article II, Section 1 establishes that the president and vice president are to be elected at the same time and serve the same four-year term. Until 1951, presidents could serve for as many four-year terms as they could win. But after President Franklin D. Roosevelt was elected for four terms, Congress passed and the states ratified Amendment XXII, which limits a president to two terms (eight years) in office. In the rare case that a vice president (or other official) takes over for a president who has stepped down or died in office and serves more than two years of the remaining term, he or she is limited to one new term.

Rather than being elected directly by the people, the president is elected by members of the Electoral College, which is created by Article II, Section 1. It is not really a “college,” but a group of people who are elected by the states. Each state is entitled to the number of electors equal to the combined number of their representatives and senators in Congress.

Neither members of Congress nor other federal officials may serve as electors. Each state legislature decides how members of the Electoral College are to be selected and how they are to vote. For example, some states select electors at primary elections or at caucuses. In most states, electors vote for the presidential candidate who won the vote in their state. But in a few states, state law specifies that electors cast their votes according to the percentage of votes received by each candidate. If the Republican candidate receives 55 percent of the vote, he or she receives the votes of 55 percent of the electors. The creation of the Electoral College gives more power to the smaller states, rather than letting the people in the most populous states control who becomes president.

Additional rules were added in 1804, when Amendment XII was adopted. For example, the amendment creates the way a president is selected when neither candidate obtains a majority of votes in the Electoral College.

There are three minimum requirements to be elected president: one must be a natural-born citizen of the United States, must have lived in the United States for at least 14 years, and must be at least 35 years old.

Although Article II, Section 1 originally provided who should become president if the president dies, resigns, or is removed from office, Amendment XXV, added in 1967, modified the line of succession.

The president’s salary is set by Congress. To avoid allowing Congress to punish or reward the president while he or she is in office, the Constitution prohibits any change in salary during the president’s term. The president also is prohibited from receiving any other type of compensation or perks while in office.

Before assuming office, the president must swear or affirm to do his or her best to serve as the nation’s leader and to uphold the United States Constitution as the law of the land.

Article II, Section 2 – What It Means

The president serves not only as the head of the executive branch of government, but also as the commander in chief of the armed forces (including state national guards when they are called on to serve with the federal armed forces).

As chief executive, the president runs the different executive agencies, such as the Department of the Treasury or the Department of Health and Human Services.
The president has the power to pardon (let free) any person who has committed a federal crime, except in cases of impeachment.

With permission from two-thirds of the senators present, the president can make treaties (agreements) with other countries. With the approval of a majority of senators, the president makes a number of key appointments. These include U.S. ambassadors and foreign consuls, Supreme Court justices and federal judges, U.S. attorneys, U.S. marshals, Cabinet officers, independent agency heads, and members of regulatory commissions. To ensure that the president can fill vacancies when the Senate is not in session, the president can make any of these appointments without Senate approval, but these “recess appointments” end at the end of the next Senate session.

Congress may choose to require Senate approval of other presidential appointments or let the president, courts or department heads appoint staff and agency employees without approval by the Senate.

Article II, Section 3 – What It Means

During his or her term, the president must report to Congress about how things are going in the country. Every president from Jefferson to Taft fulfilled this duty with a written statement submitted to Congress. But in 1913, Woodrow Wilson resumed George Washington’s practice of directly addressing a joint session of Congress. This “State of the Union” speech, a tradition that continues to this day, usually occurs in January or February each year.

The president also has the power, in extreme cases, to call both the House of Representatives and the Senate together for a special session. The president is given the power to meet with representatives from other nations on behalf of the United States and to otherwise run the country by enforcing the laws and directing officers and staff.

Article II, Section 4 – What It Means

The Constitution provides that the president, vice president, and other federal officers can be removed from office upon impeachment by the House and conviction by the Senate of treason, bribery, or other serious crimes. The process was begun only three times in U.S. history against a president — against Andrew Johnson, Richard Nixon (although he resigned before Congress could formally act) and Bill Clinton.

The impeachment process begins in the House of Representatives with a vote to impeach. Then the president (or other accused government official) stands trial for the accusations in the Senate. The Chief Justice of the United States presides at an impeachment trial of the president.

In all impeachment trials, members of the House serve as prosecutors and the full Senate sits as the jury. The accused official must be convicted by a two-thirds vote of the Senate to be removed from office.

Common Interpretation

Commander in Chief Clause

Commander in Chief Clause

By Michael D. Ramsey and Stephen I. Vladeck

The Commander in Chief Clause of Article II, Section 2 provides that “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.” As Justice Jackson put it in the Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer (1952)), “These cryptic words have given rise to some of the most persistent controversies in our constitutional history,” with Presidents at various points claiming that it “vests power to do anything, anywhere, that can be done with an army or navy.”

At a minimum, all agree that the Clause has two separate but related purposes: First, in response to the charge in the Declaration of Independence that the King had “affected to render the Military independent of and superior to the Civil Power,” it ensures civilian superintendence over the military—and, as such, the subordination of the military to civilian (and democratically accountable) control. Second, and in contrast to the experience under the Articles of Confederation, it places such civilian superintendence in the hands of a single person. As David Barron and Martin Lederman’s definitive academic study of the Clause explains, “the textual designation of the President as the Commander in Chief was intended to ensure that that officer, and no other, would be ultimately responsible for performing that role, whatever it was to entail.” To that end, they continue, the Clause “suggests that, at least with respect to certain functions, Congress may not (by statute or otherwise) delegate the ultimate command of the army and navy . . . to anyone other than the President.”

Although that principle, read narrowly, would only prohibit Congress from literally placing someone other than the President atop the U.S. military hierarchy, it presumably also means that Congress cannot insulate parts of the military from the President’s superintendence or interfere with the President’s supervisory role, lest Congress have the power to effectively undermine the President’s command authority—and, in Justice Jackson’s words, convert the Clause into an “empty title.”

Thus, as a case in point, Congress likely violated the Clause in an 1867 appropriations rider that sought to insulate Ulysses S. Grant—then the commanding general of the U.S. Army—from President Andrew Johnson by, among other things, requiring all orders to go through Grant (and voiding all orders that didn’t); precluding Grant’s removal by Johnson without Senate approval; and fixing Grant’s headquarters in Washington (where, presumably, he would be closer to Congress).

As a result of this superintendence principle, when Congress authorizes military operations (such as through a declaration of war), it necessarily puts the President in charge of them. Thus, as Chief Justice Chase explained in his concurring opinion in Ex parte Milligan (1866), the Commander in Chief Clause enshrines the President’s authority not just over “the command of the forces,” but also over “the conduct of campaigns.” And as Barron and Lederman explain, “more than 200 years of usage and court precedents reflect the view that the Commander in Chief Clause does confer broad substantive war powers on the President.”

A more difficult question is how much authority the Clause gives the President beyond operations approved by Congress. In the debates at Philadelphia, James Madison said that giving Congress the power to declare war would leave the President with power to repel sudden attacks. Presumably this power arises from the Commander in Chief Clause, read to convey independent substantive power to the President to direct the military on matters not related to war initiation. On this basis, Presidents have claimed authority over a range of military actions, including attacking pirates, rescuing U.S. citizens abroad, and making military deployments, although this authority is presumably circumscribed by other provisions of the Constitution and perhaps, some have argued, by international law.

In the Steel Seizure case, the Court rejected the President’s argument that the Clause empowered the President to seize steel mills in the United States to support the Korean War, and in Milligan, the Court rejected the argument that the Clause allowed the President to use military commissions to try civilians in areas where civilian courts were still operating. These cases indicate that the independent authority conveyed to the President by the Clause generally does not extend to interference with the rights and duties of U.S. civilians, at least outside the battlefield.

The most controversial aspect of the Clause is whether it limits Congress’s ability to enact statutes directing how military operations are conducted. For example, multiple Presidents have claimed that the War Powers Resolution, which limits the President’s ability to deploy troops into hostilities without Congress’s approval, is unconstitutional on this ground. After the terrorist attacks of September 11, 2001, the Executive Branch argued that, because of the Commander in Chief Clause, various statutory limits on the President’s authority were unconstitutional insofar as they, among other things, forbade the torture of detainees, warrantless surveillance, or the detention of U.S. citizens as enemy combatants. As a controversial 2002 government memorandum argued,

Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.

In Hamdan v. Rumsfeld (2006), the Supreme Court appeared to reject this argument in invalidating military tribunals created by President Bush to try non-citizen terrorism suspects. As Justice Stevens wrote for the majority, “[w]hether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” However, the scope of Hamdan remains unclear, and in 2015 President Obama suggested that a statute completely limiting his ability to transfer detainees from the military prison at Guantánamo might unconstitutionally infringe his Commander in Chief powers.

In sum, the Commander in Chief Clause gives the President the exclusive power to command the military in operations approved by Congress; it probably gives the President substantial independent power to direct military operations so long has the President does not infringe exclusive powers of Congress or other provisions of the Constitution; and it may (but may not) limit Congress’ power to pass statutes directing or prohibiting particular military activities.

Matters of Debate

Michael D. Ramsey Michael D. Ramsey Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law

The President's Exclusive Power to Direct Military Operations by Michael D. Ramsey

If the United States undertakes military operations, either by authorization from Congress or under the President’s independent powers, the Constitution makes the President Commander in Chief of all U.S. military forces, and Congress cannot give command to any other person.

Full Text

Stephen I. Vladeck Stephen I. Vladeck Professor of Law, University of Texas School of Law

How the Militia Clauses Inform the Scope of the Commander in Chief’s Inherent Power by Stephen I. Vladeck

Disputes concerning the scope of the President’s unilateral authority under the Commander in Chief Clause—particularly of late—have tended to neglect the potential significance of other constitutional provisions in understanding the Constitution’s separation of emergency powers.

Full Text

Matters of Debate

The President's Exclusive Power to Direct Military Operations by Michael D. Ramsey

The President's Exclusive Power to Direct Military Operations

By Michael D. Ramsey

If the United States undertakes military operations, either by authorization from Congress or under the President’s independent powers, the Constitution makes the President Commander in Chief of all U.S. military forces, and Congress cannot give command to any other person. But can Congress itself direct how the President exercises that command by requiring or prohibiting certain military actions?

Scholarly opinion is sharply divided on this question. One view, principally associated with Professor John Yoo, holds that attempts by Congress to control the military contrary to the President’s desires infringe the Commander in Chief Clause by in effect depriving the President of the full ability to give commands. An opposing view, developed by Professor Saikrishna Prakash in a series of articles and an important 2015 book on executive power, sees Congress as having complete power over the military through various clauses of Article I, Section 8, with the President’s substantive command authority operating only where Congress has not provided specific direction.

Both views seem to overstate. Contrary to the first view, the Constitution expressly gives Congress significant power over the military. Most notably, Congress has power to “make Rules for the Government and Regulation of the land and naval Forces.” Nothing in the Constitution requires these “Rules” to be consistent with the President’s desires (although of course the President can resist them using the veto power). Further, Congress has a long history of regulating the military, including the articles of war (precursor of the modern Uniform Code of Military Justice) enacted in the immediate post-ratification period. Thus, for example, rules regarding how prisoners are to be treated, whether civilians may be targeted and how intelligence may be gathered by the military seem fully within Congress’s enumerated power. If the President’s Commander in Chief power overrode these rules, the Government-and-Regulation Clause would seem almost meaningless. In addition, Congress’s power to declare war likely includes power to set wartime goals and to limit a war’s scope. Prior to the Constitution, other nations routinely issued goal-setting declarations and fought limited wars. And Congress’s power to define the scope of a war seems confirmed by Congress’s statutory limits on the 1798 Quasi-War with France and by the Supreme Court’s approval of those limits in Bas v. Tingy (1800) and Little v. Barreme (1804).

However, contrary to the second view, the Constitution’s enumeration of Congress’s specific military powers indicates that Congress does not have plenary authority over military operations. In particular, although Congress can make general rules regarding military conduct and can define wartime objectives, it lacks enumerated power to direct battlefield operations—a point demonstrated by examining Congress’s powers under the Articles of Confederation.

In contrast to the Constitution, the Articles gave Congress the powers of “making rules for the government and regulation of the said land and naval forces, and of directing their operations” (emphasis added). The former power is carried over directly into the Constitution’s list of congressional powers, but the latter is not. This strongly suggests that Congress’s Government-and-Regulation power does not include power to “direct [military] operations.”

Another Perspective

This essay is part of a discussion about the Commander-In-Chief Clause with Stephen I. Vladeck, Professor of Law, American University Washington College of Law. Read the full discussion here.

The brief war powers debate at the Philadelphia Convention confirms that this omission was intentional and substantive. As is well known, the Convention’s draft at one point gave Congress the power to “make” war. James Madison proposed changing this to “declare” war— principally, he said, to leave the President with power to repel sudden attacks. Rufus King of Massachusetts then made a related point: “that ‘make’ war might be understood to ‘conduct’ it which was an Executive function.” The Convention adopted the proposed change, suggesting that the delegates did not want Congress to have the power to “conduct” war.

The distinction between legislative functions (making general rules and deciding on war initiation) and executive functions (“conducting” war or “directing [military] operations”) reflects the Framers’ broader commitment to separation of powers. As Alexander Hamilton explained in Federalist No. 74,

[T]he direction of war peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority. 

Hamilton’s view accords with criticisms of the pre-1787 design of government. The national government prior to the Constitution lacked separation of powers, combining legislative and executive power in a single multi-member entity, and it was thought defective on that ground. Among other perceived problems, Congress meddled in the tactical direction of the Revolutionary War. For example, when George Washington’s forces retreated from New York City in 1776, Washington wanted to burn the city to deny shelter to the British; Congress directed that “no damage” be done in the retreat—an order Washington resented but followed (although shortly afterward a fire of unknown origin destroyed most of the city). Federalist No, 74 likely had this problem in mind in calling for “directing . . .  the common strength” by a single person.

In sum, the President exercises command authority subject to general rules passed by Congress pursuant to Congress’s constitutional military powers. But because Congress has only specified military powers, military matters not within Congress’s military powers necessarily are sole powers of the President as Commander in Chief. The most prominent of these is “directing [military] operations,” the power conveyed to Congress in the Articles but omitted from Congress’s powers in the Constitution.

To be sure, it may often be difficult to draw a clear line between legislative “Rules” for the conduct of the military, on one hand, and executive “direction” of military operations on the other. But in general, the former power encompasses creating standing directions and punishments that broadly control behavior of the military (such as the articles of war, the Uniform Code of Military Justice, or statutes such as the War Crimes Act); the latter power refers to contingent orders made in response to developments in battles and campaigns. Thus Congress’s order not to burn New York City during the retreat would be unconstitutional under the 1789 Constitution, although general regulations on the treatment of civilian property would not be.

Michael D. Ramsey Michael D. Ramsey Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law

Matters of Debate

How the Militia Clauses Inform the Scope of the Commander in Chief’s Inherent Power by Stephen I. Vladeck

How the Militia Clauses Inform the Scope of the Commander in Chief’s Inherent Power

By Stephen I. Vladeck

Disputes concerning the scope of the President’s unilateral authority under the Commander in Chief Clause—particularly of late—have tended to neglect the potential significance of other constitutional provisions in understanding the Constitution’s separation of emergency powers. Perhaps no provision has been more neglected in this discourse than the so-called “Calling Forth” Clause of Article I, which empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” As Justice Jackson explained in his Steel Seizure concurrence,  

Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.

And yet, except as it pertains to debates over the original understanding of the Second Amendment and the authority to deploy National Guard units overseas, Congress’s constitutional power to provide for the use of the militia during these three types of domestic crises has been overlooked in almost every contemporary assessment of the President’s inherent war powers, to the point where scholars too numerous to count have accepted without qualification the argument that the President possesses at least some independent authority to use military force in domestic emergencies—assuming that such power derives, most naturally, from the Commander in Chief Clause.

In fact, since 1792, Congress has provided specific statutory authorization for military deployments in the cases contemplated by the Calling Forth Clause, first through the militia (which President Washington called forth to help put down the Whiskey Rebellion) and subsequently through the “regular” federal army (as the unreliability of the militia became increasingly clear). And even in the Prize Cases (1863), in which the Supreme Court famously recognized the President’s power to repel sudden attacks, it attributed at least some of that authority not to the Commander in Chief Clause, but to these statutes, by which “he is authorized to call[] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.” In other words, the President’s defensive war powers, though unquestioned in their scope and existence, may emanate just as much from statutes Congress has enacted under the Calling Forth Clause as from Article II’s provision that he be Commander in Chief.

Another Perspective

This essay is part of a discussion about the Commander-In-Chief Clause with Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law. Read the full discussion here.

The more interesting question is why the Calling Forth Clause has disappeared from our modern view of how the Constitution separates war powers. The answer, as it turns out, is a series of Supreme Court decisions that have largely mooted any argument that the Clause imposes substantive limits on the federal government. Thus, in a pair of 1918 Supreme Court rulings—the Selective Draft Law Cases and Cox v. Wood—the Justices concluded that the Calling Forth Clause does not in fact limit the circumstances in which the government may call out the militia, upholding the constitutionality of a draft designed to recruit soldiers to fight in World War I, a purely foreign conflict. Thus, although the Framers may well have intended the Calling Forth Clause both to cement the militia’s exclusive role in responding to domestic emergencies and to prevent their federalization for other purposes, the 1918 decisions largely vitiated that structural reading by concluding that the militia could also be called forth to fight in foreign wars.

More recently, in Perpich v. Department of Defense (1990), the Supreme Court held that members of the National Guard are, for constitutional purposes, federal regulars when called into the active service of the United States—and, like the militia in the 1918 cases, may therefore be deployed for purposes other than those outlined in the Calling Forth Clause. Perpich therefore suggests that, at least under the Guard’s dual enlistment system, the Calling Forth Clause is effectively a non-starter; the constitutional text simply doesn’t matter because there is virtually no situation today when the “militia,” at least as the Supreme Court has interpreted the term, is actually being “called forth,” and federal regulars may be called forth even in those contexts in which the Calling Forth Clause might otherwise have been read to require utilization of the militia.

But whereas the Supreme Court has largely vitiated the Calling Forth Clause’s potential role as a structural check on other uses of military power, the Clause remains relevant today in helping to cement Congress’s constitutional authority to circumscribe the President’s domestic war powers—authority it has exercised in a number of circumstances, including through the Posse Comitatus Act of 1878, which requires express authorization from Congress before the military may be utilized in a domestic law enforcement capacity. After all, if the militia was initially intended to be the primary (if not exclusive) response force for a domestic emergency, and if Congress was given the power to provide for their calling forth (and, through the other Militia Clause, their regulation), then the Constitution appears to resolve in Congress’s favor any argument that such statutory limitations unconstitutionally infringe upon the President's constitutional authority as Commander in Chief.

So construed, the Calling Forth Clause undermines the ever-more-visible arguments in favor of strong and unilateral domestic presidential war powers. Of course, there can simply be no question that the Constitution empowers the federal government, acting in concert, to act decisively—and expeditiously—during domestic emergencies; the Constitution, after all, “is not a suicide pact.” But it is not nearly as straight a line from accepting that point to accepting a sweeping and potentially preclusive domestic Commander in Chief power. To the contrary, the reality is that the Constitution expressly envisions a role for Congress to play in providing for governmental responses to even the most existential crises at home, however lost to modern eyes. This dramatically undermines arguments evoking a broad and unilateral authority for the Commander in Chief in the circumstances contemplated by the Calling Forth Clause, i.e., “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

Stephen I. Vladeck Stephen I. Vladeck Professor of Law, University of Texas School of Law

Common Interpretation

Article II, Section 2: Treaty Power and Appointments

Article II, Section 2: Treaty Power and Appointments

By John O. McGinnis and Peter M. Shane

I. Treaty Power

The Constitution provides, in the second paragraph of Article II, Section 2, that “the President shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur.” Thus, treaty making is a power shared between the President and the Senate. In general, the weight of practice has been to confine the Senate’s authority to that of disapproval or approval, with approval including the power to attach conditions or reservations to the treaty.  

For instance, the authority to negotiate treaties has been assigned to the President alone as part of a general authority to control diplomatic communications.  Thus, since the early Republic, the Clause has not been interpreted to give the Senate a constitutionally mandated role in advising the President before the conclusion of the treaty.

Also of substantial vintage is the practice by which the Senate puts reservations on treaties, in which it modifies or excludes the legal effect of the treaty. The President then has the choice, as with all treaties to which the Senate has assented, to ratify the treaty or not, as he sees fit.

The question of whether the President may terminate treaties without Senate consent is more contested. In 1978, President Carter gave notice to Taiwan of the termination of our mutual defense treaty. The U.S. Court of Appeals for the District of Columbia held that the President did have authority to terminate the treaty, but the Supreme Court in Goldwater v. Carter (1979), vacated the judgment without reaching the merits. The treaty termination in Goldwater accorded with the terms of the treaty itself. A presidential decision to terminate a treaty in violation of its terms would raise additional questions under the Supremacy Clause, which makes treaties, along with statutes and the Constitution itself, the “supreme Law of the Land.”

There remains the question of how the Treaty Clause comports with the rest of the system of enumerated and separated powers. Missouri v. Holland (1920) suggests that the Treaty Clause permits treaties to be made on subjects that would go beyond the powers otherwise enumerated for the federal government in the Constitution. In Reid v. Covert (1957), however, the Court held that treaties may not violate the individual rights provisions of the Constitution.  

A still-debated question is the extent to which the Treaty Clause is the sole permissible mechanism for making substantial agreements with other nations. In fact, the majority of U.S. pacts with other nations are not formal “treaties,” but are sometimes adopted pursuant to statutory authority and sometimes by the President acting unilaterally. The Supreme Court has endorsed unilateral executive agreements by the President in some limited circumstances. For instance, in United States v. Belmont (1937), the Court upheld an agreement to settle property claims of the government and U.S. citizens in the context of diplomatic recognition of the Soviet Union. In Dames & Moore v. Regan (1981), the Court upheld President Carter’s agreement with Iran, again concerning property claims of citizens, in the context of releasing U.S. diplomats held hostage by Iran. The Court has never made clear the exact scope of executive agreements, but permissible ones appear to include one-shot claim settlements and agreements attendant to diplomatic recognition.  

With so-called congressional-executive agreements, Congress has also on occasion enacted legislation that authorizes agreements with other nations. For instance, trade agreements, like the North America Free Trade Agreement (NAFTA), have often been enacted by statute. In contrast, the Senate objected strenuously when President Jimmy Carter appeared intent on seeking statutory approval, rather than Senate concurrence (which would have required a two-thirds vote) for the Strategic Arms Limitation Talks II (SALT II) treaty. It is sometimes argued in favor of the substantial interchangeability of treaties with so-called congressional-executive agreements that Congress enjoys enumerated powers that touch on foreign affairs, like the authority to regulate commerce with foreign nations. But, unlike legislation, international agreements establish binding agreements with foreign nations, potentially setting up entanglements that mere legislation does not.

Since Chief Justice John Marshall’s opinion in Foster & Elam v. Neilson (1829), the Supreme Court has distinguished between treaties that are now called self-executing and treaties that are non-self-executing. Self-executing treaties have domestic force in U.S. courts without further legislation. Non-self-executing treaties require additional legislation before the treaty has such domestic force. In Medellín v. Texas (2008), the Court suggested there may be a presumption against finding treaties self-executing unless the treaty text in which the Senate concurred clearly indicated its self-executing status.

II. Appointments

The remainder of Paragraphs 2 and 3 of Article II deals with the subject of official appointments. With regard to diplomatic officials, judges and other officers of the United States, Article II lays out four modes of appointment. The default option allows appointment following nomination by the President and the Senate’s “advice and consent.” With regard to “inferior officers,” Congress may, within its discretion, vest their appointment “in the President alone, in the courts of law, or in the heads of departments.” The Supreme Court has not drawn a bright line distinguishing between inferior officers who might be appointed within the executive branch and inferior officers Congress may allow courts to appoint, provided only that, for judicial appointees, there be no “‘incongruity’ between the functions normally performed by the courts and the performance of their duty to appoint.” Morrison v. Olson (1988). 

Buckley v. Valeo (1976) confirms that the Article II variations are Congress’s sole options in providing for the appointment of officers of the United States. The text, however, raises the questions: Who counts as an “officer” of the United States, as opposed to a mere employee? And what characterizes an officer’s status as “inferior,” as opposed to “superior” or “principal?” 

The Court’s definition of “officer” in Buckley entails a degree of circularity. In general, “any appointee exercising significant authority pursuant to the laws of the United States” is an “officer of the United States.” By contrast, a federal employee is not an “officer” if performing “duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not ‘Officers of the United States.’” A later case, INS v. Chadha (1983), may implicitly have given the Buckley formulation more substance. Chadha held that the enactment of legislation is Congress’s only permissible means of taking action that has the “purposes and effect of altering the legal rights, duties and relations of persons . . . outside the legislative branch.” Importing Chadha’s holding into the Buckley holding implies that, at a minimum, any administrator Congress vests with authority to alter the legal rights, duties and relations of persons outside the legislative branch would have to be an “officer,” and not an employee, of the United States because that officer would be performing a function forbidden to Congress acting alone. 

Distinguishing inferior from principal officers has also sometimes proved puzzling. Morrison v. Olson, which upheld the judicial appointment of independent counsel under the Ethics in Government Act of 1978, applied a balancing test focused on the breadth of the officer’s mandate, length of tenure, and limited independent policymaking. A later decision, however, provided an additional or perhaps substitute bright-line test, defining “inferior officers” as “officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Edmond v. United States (1997). 

Perhaps the greatest source of controversy regarding the Appointments Clause, however, surrounds its implications, if any, for the removal of federal officers. The Supreme Court has held that Congress may not condition the removal of a federal official on Senate “advice and consent,” Myers v. United States (1926), and, indeed, may not reserve for itself any direct role in the removal of officers other than through impeachment, Bowsher v. Synar  (1986). 

Those cases do not determine, however, whether Congress may limit the President’s own removal power, for example, by conditioning an officer’s removal on some level of “good cause.” The Supreme Court first gave an affirmative answer to that question in Humphrey’s Executor v. United States (1935), which limited the President’s discretion in discharging members of the Federal Trade Commission to cases of “inefficiency, neglect of duty, or malfeasance in office.” Morrison v. Olson reaffirmed the permissibility of creating federal administrators protected from at-will presidential discharge, so long any restrictions on removal do “not impermissibly interfere with the President’s exercise of his constitutionally appointed functions.” Although this formulation falls short of a bright-line test for identifying those officers for whom presidents must have at-will removal authority, the doctrine at least implies that presidents must have some degree of removal power for all officers. That is, presidents must be able at least to secure an officer’s discharge for good cause, lest the President not be able to take care that the laws be faithfully executed. The Court has since held, in that vein, that officers of the United States may not be shielded from presidential removal by multiple layers of restrictions on removal. Thus, inferior officers appointed by heads of departments who are not themselves removable at will by the President must be removable at will by the officers who appoint them. Free Enterprise Fund v. Public Co. Accounting Oversight Board (2010). 

The Recess Appointments Clause was included in Article II in the apparent anticipation that government must operate year-round, but Congress would typically be away from the capital for months at a time. Over the ensuing decades—and extending to modern times when Congress itself sits nearly year-round—the somewhat awkward wording of the Clause seemed to pose two issues that the Supreme Court decided for the first time in 2014. First, does the power of recess appointments extend to vacancies that initially occurred while the Senate was not in recess? Second, may a period of Senate adjournment trigger the President’s recess appointment power even if that period of adjournment occurs during a Senate session, rather than between the adjournment of one session sine die and the convening of the next? Finding the text ambiguous, the Court answered both questions affirmatively, provided that the relevant “intra-session” recess lasted ten days or longer. (As a result, in the particular case, the Court ruled against the President, because the relevant recess was too short.) The majority rested its analysis on what it took to be a relatively consistent pattern of behavior by Congress and the executive branch, effectively ratifying the President’s power as thus construed. NLRB v. Noel Canning (2014).

Matters of Debate

John O. McGinnis John O. McGinnis George C. Dix Professor in Constitutional Law, Northwestern University School of Law

An Originalist Reading of Article II, Section 2 by John O. McGinnis

The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. 

Full Text

Peter M. Shane Peter M. Shane Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law

Delphic Article II by Peter M. Shane

Article II of the U.S. Constitution is plainly critical to establishing two fundamental institutional relationships: the President's relationship with Congress and the President's relationship to the remainder of the executive establishment, which we would now call "the bureaucracy."

Full Text

Matters of Debate

An Originalist Reading of Article II, Section 2 by John O. McGinnis

An Originalist Reading of Article II, Section 2

By John O. McGinnis

The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing. Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context. Courts are obligated to use the interpretive methods at the time of enactment to find the better-supported meaning, even if an ambiguous text can yield more than one meaning.

The results of an originalist reading of these Clauses would at times favor the President, but at other times disfavor him, but they would more generally promote accountability. They would also create more bright line rules and limit the discretion of the Supreme Court to make decisions according to opaque balancing tests that maximize its own power.

Appointments Clause. The Appointments Clause must be read against the background of "the executive power" granted to the President. That authority included the traditional powers of an executive, not simply enumerated powers as those specified in Article I. Article II then qualifies that understanding by expressly giving some of the executive's traditional powers to Congress. In the Appointments Clause, the Senate is given the power to advise and consent to nominations. Because the Constitution does not change the executive's power to dismiss subordinate officers, the President retains that unqualified power, as it was part of the traditional executive authority. This view reflects the majority view of the First Congress after a deliberate debate when they did insulate the President's authority over the Secretary of State. See Saikrishnah Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1012 (2006).

Another Perspective

This essay is part of a discussion about the Treaty and Appointments Clauses with Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law. Read the full discussion here.

The contrary decisions of the Court are both wrong and unclear. In Morrison v. Olson (1988), for instance, the Court did not offer a rule for determining when Congress could insulate the President's power, but made instead the question depend on such factors as the scope and authority of the office at issue. This aggrandized the Court's power and unsettled an established framework for government.

Similarly, the Court is wrong to permit courts to appoint executive officials so long as there is no "'incongruity' between the functions normally performed by the courts and the performance of their duty to appoint." Morrison v. Olson (1988). It is true that the Appointments Clause allows "courts of law" to appoint "inferior officers." But just as the President's authority under the Appointments Clause must read against the background of Article II, so the courts' authority must be read against the background of Article III that defines their own powers. There the judicial power is defined as "extending to cases." The authority of courts of law in appointments matters is thus more naturally read as ancillary to their defined powers. Accordingly, courts of law can appoint the officers ancillary to their own work of deciding cases, like law clerks and bailiffs, but not executive officials. Once again, the Supreme Court has replaced a relatively clear line with a murky test that exalts the judiciary's own powers.

Similarly, Morrison's balancing test for what is an inferior officer wrongly focused on the breadth of the officer's mandate, length of tenure, and limited independent policy making. The appropriate test for inferior officer flows directly from the term's obvious meaning: such an officer must be subordinate to a principal officer; one who has been confirmed by the Senate. It also provides a bright line rule. Happily, the Court may be moving to embrace this test. See Edmond v. United States (1997).

The Court has also failed to follow the original meaning of the Recess Appointments Clause. (For an excellent discussion of the original meaning, see Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2004)). First, the power of recess appointments extends only to vacancies that initially arose while the Senate was not in recess. This "arise interpretation" is much better supported than an interpretation that makes the Clause applicable to vacancies that exist whenever there is a recess. The phrase "happen during the recess" naturally implies an event that occurred during the recess, not a state of affairs. Indeed, not reading the Clause in this way deprives the word "happened" of any independent function. The "arise" interpretation was also the meaning of the Clause embraced even by the executive in the early Republic.

Second, the term "recess" applies only to intrasession recesses. That conclusion flows from the use of the terms adjournment and recess, the former of which in the Constitution seems to be used to refer to intrasession and the latter of which to intersession recesses. In contrast, the Supreme Court's functional rule of ten days cannot be found or inferred anywhere from the text. Moreover, the Court's suggestion in NLRB v. Noel Canning (2014) that its judge-made rule may not even apply in extraordinary circumstances, once again arrogates power to itself.

The Treaty Clause. Just as the President can fire executive officials pursuant to executive power that was not limited by the Appointments Clause, the President can terminate treaties according to their terms, because that traditional executive power was not limited by the Treaty Clause. However, he cannot terminate treaties in violation of their terms, because the Supremacy Clause makes treaties the supreme law of the land.

The Supreme Court is correct that President and the Senate can make treaties beyond the enumerated powers. The Treaty Clause is an executive power in Article II, and does not come with the limitations of Article I. Moreover, as Alexander Hamilton noted, its abuse is carefully guarded by a substantial supermajority rulemdash;one that does not apply to legislation.

While the Court's decisions upholding executive agreements are not incorrect, the practice of executive agreements needs to be more clearly circumscribed. The high hurdle posed by advice and consent under a supermajority rule was meant to prevent foreign entanglements. Thus, purely executive agreements should be permitted only when they are one-shot agreements, like prisoner exchanges or claim settlements, or when they are based solely on independent presidential authority, like the authority to recognize foreign nation states. See Michael B. Ramsey, The Constitution's Text in Foreign Affairs 191-217 (2007).

For similar reasons, the notion that Congress and the President together can strike international deals so long as they make a congressional-executive agreement is wrong, and would deprive the Treaty Clause of much of its force. Perhaps the practice in some areas of congressional-executive agreements, like trade agreements, is so settled that it should not be reversed. But practice has never embraced the complete interchangeability of treaties and executive agreements, and such interchangeability cannot be squared with the Constitution's express requirements for making treaties.

John O. McGinnis John O. McGinnis George C. Dix Professor in Constitutional Law, Northwestern University School of Law

Matters of Debate

Delphic Article II by Peter M. Shane

Delphic Article II by Peter M. Shane

By Peter M. Shane

Article II of the U.S. Constitution is plainly critical to establishing two fundamental institutional relationships: the President's relationship with Congress and the President's relationship to the remainder of the executive establishment, which we would now call "the bureaucracy." Despite the text's seeming specificity on some key points -- e.g., the President's role in the appointments process -- the Constitution's silences and the ambiguity of the text in other respects have fueled spirited arguments through the centuries for very different concepts of the American presidency. To paraphrase Justice Robert Jackson, Americans may "be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Youngstown Sheet & Tube Co. v. Sawyer (1952).

With regard to the legislative-executive relationship, the Washington Administration set institutional precedents that have been followed with such consistency over the centuries that they now dominate our understanding of Article II. To the uninitiated reader, the Treaty Clause might be thought to imply that treaties represent the sole permissible instrument for formalizing the nation's international obligations, or that the Senate, because of its "advice and consent" role, would be a full partner with presidents in the negotiation of treaties. Neither is the case. The Washington and Adams Administrations used executive agreements, without Senate consent, both in arranging for the international delivery of mail and in settling claims arising from the seizure of a U.S. ship by a Dutch privateer. Such agreements, sometimes pursued unilaterally and sometimes with statutory authority, now far outnumber treaties as instruments of international commitment. As for actual treaties, when the Senate failed to provide Washington prompt advice concerning the negotiation of peace between Georgia and the Creek Indians, he established the now-uniform practice of presenting to the Senate for its consent only treaties that have already been completed.

The first Congress and the Washington Administration also began filling in some of the constitutional silences regarding their respective powers. Congress first asserted its unstated power to investigate the executive branch by establishing a special committee to look into the bloody defeat of the U.S. Army by a confederation of Indian tribes in the Northwest Territory. Washington, for his part, provided the committee with those executive branch documents it sought to inform its investigation, but only after determining with his cabinet that the disclosure decision was discretionary on his part and that presidents might constitutionally withhold information that ought, in the public interest, not be disclosed. He later implemented his view by withholding from the House of Representatives documents it sought in connection with negotiations over the Jay Treaty. This laid a foundation for future claims of executive privilege, a phrase nowhere found in Article II.

Text, even aided by history, however, shines less light on constitutional requirements for the President's relationship to those other instrumentalities of government that Congress creates but which are not part of the federal judiciary -- that is, to the plethora of "departments," "agencies," "administrations," "boards," and "commissions" comprised within the executive branch. Recent decades have seen much ardent advocacy on behalf of the so- called "unitary executive" idea -- specifically, the view that Article II, by vesting law execution power in the President, forbids Congress from extending any such authority to individuals or entities not subject to presidential control. Adherents to this unitary executive reading of Article II insist that the Constitution guarantees the President plenary powers, which Congress may not limit, both to discharge unelected executive administrators at will and to direct how those officials shall exercise any and all discretionary authority that they possess under law. To take but one quotidian example, a Justice Department opinion from the Reagan Administration argued that a statute requiring the Director of the Centers for Disease Control to arrange for the mass mailing of AIDS information fliers, free from any executive branch supervision, violated separation of powers by "unconstitutionally infringing upon the President's authority to supervise the executive branch." Statute Limiting the President's Auth. to Supervise the Dir. of the Centers for Disease Control in the Distribution of an AIDS Pamphlet, 12 U.S. Op. Off. Legal Counsel 47 (1988).

Another Perspective

This essay is part of a discussion about the Treaty and Appointments Clauses with John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law. Read the full discussion here.

With regard to most of what the executive branch does -- namely, implementing domestic statutes with no close connection to foreign affairs or military command -- this interpretation is not persuasive. The clauses that supposedly ground unitary executive theory are the Executive Power Vesting Clause, the Faithful Execution (or "Take Care") Clause, and the Written Opinions Clause. Independently or all together, these clauses are thought to create two constitutional imperatives. The first is that the President is entitled to execute the laws personally and may take upon himself or herself the prerogative of making any administrative decision that Congress has assigned to any officer within the executive branch. The second is that the President is entitled to remove at will any officer of the United States who serves in the executive branch.

The first problem with this interpretation is that the relevant clauses viewed either independently or together did not originally have the semantic implications that unitary executive theorists imagine. These kinds of clauses were prevalent in early state constitutions that also established relationships between governors, as chief executives of the states, and state agencies. Rather than giving governors unitary executive control over state administration, they nearly all split supervision of the bureaucracy among the different branches of government -- the governor, the legislature, and, in some states, the courts. Originalist defenders of a unitary executive reading of the federal Constitution often dismiss the interpretive significance of pre-1787 state constitutions on the ground that these early texts paid only lip service to separation of powers principles, while presenting the Framers chiefly with examples of government structure to avoid. The problem with this stance is that state constitutions written in the first decades after 1789 persisted in using the same clauses, by that time found also in Article II, to describe state governments in which governors continued to lack unitary control. Close study of the state constitutions and state administrative practice under them thus belie any "unitary executive" reading of Article II that purports to be based on contemporary understandings of the text alone.

Nor is the argument borne out by a history of institutional practice. The First Congress's handiwork regarding the structure of the initial administrative departments is inconsistent with the idea that the Framers intended a unitary executive. Congress accommodated presidential control at different levels, from seemingly complete, as with the Department of State, to essentially non-existent, as with the boards and commissions authorized to oversee the Mint, to buy back debt of the United States, and to rule on patent applications. Unitary executive advocates may point to a variety of presidential statements over the years asserting the existence of a comprehensive presidential supervisory authority. But again to quote Justice Jackson, who wrote in 1952 about constitutional debates on the scope of presidential power: "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 Tube v. Sawyer (1952). Unitarian arguments based on presidential statements simply cannot overcome Congress's conspicuous eclecticism from its first session forward in fashioning different administrative structures with different lines of accountability to different sources of supervision.

Finally, the argument for the unitary presidency makes the mistake of anachronism. The managerial presidency extolled in the late eighteenth century was just not conceptualized in the policy terms now understood by modern presidentialists. Even if the original presidential office had been intended to be unitary in some administrative sense, the President's originally designed managerial powers cannot logically add up to the contemporary version of unitary power urged upon us by twenty-first century presidentialists, who interpret the Constitution as putting the President personally in charge of the exercise of any or all policy making discretion that Congress may delegate to anyone within the executive branch.

A better view is fully reconcilable with the text and truer to both relevant Supreme Court opinions and our institutional history. It holds that outside those particular subjects that are independently within the President's inherent powers, such as issuing pardons or making treaties, the degree of policy control the President may exercise over subordinate officers is up to Congress. Congress is limited, in turn, only by the Constitution's constraints on the scope of national legislative authority and the President's entitlement to dismiss officers of the United States who are breaking the law or negligent in the execution of their duties.

For this reason, there is an intimate connection between the President's relationship with Congress and the President's relationship to the remainder of the executive establishment. Specifically, the latter is significantly determined by the former. The Constitution gives Congress the political discretion to defer substantially to the pleas of the executive for highly centralized control over administrative agencies, but only if Congress chooses to do so. The bare framework of Article II leaves presidents with the task of persuading Congress that authorizing such control over any particular agency is in the public interest -- a judgment of policy, not constitutional interpretation.

Peter M. Shane Peter M. Shane Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law