ARTICLE II

Executive Vesting Clause

           The executive Power shall be vested in a President of the United States of America.

(ARTICLE II, SECTION 1, CLAUSE 1)

The Executive Vesting Clause (or “Vesting Clause”) grants the president the executive power traditionally associated with chief executives, subject to the many clarifications and constraints listed elsewhere in Article II. The Vesting Clause is best read as granting authority to direct and remove executive officers, a power to control the execution of federal law, and an interstitial power over foreign affairs.

The Articles of Confederation lacked an independent chief executive. Instead, the Continental Congress exercised the executive power, appointing and dominating the secretaries of the executive departments. Execution of the laws by a distracted, plural executive was hardly vigorous. Congress likewise proved a poor steward of foreign affairs, with American diplomats complaining that Congress could not act with the requisite speed or secrecy. Similar problems plagued the states. Though state constitutions formally created separate executives, most were nearly as weak as their federal counterparts. Some executive powers, such as appointments and pardons, were granted to the legislatures. Other constitutions subjected executive authority to statutory limitation, meaning that constitutional allocations of power were default rules. Finally, executive powers occasionally were shared with, or checked by, a council.

Resolving to avoid the problems plaguing state and national executives, the Founders rejected both a triumvirate and a powerful executive council. Instead, they crafted an energetic, responsible, and (largely) unified executive. A single executive could act with vigor and speed and avoid the dissension that might plague a plural executive. A unitary executive also would conduce towards responsibility, because all eyes would be drawn to the chief executive rather than to a plural executive, where each executive would claim credit and shift blame.

In discussing the need for a unitary executive, the Founders repeatedly confirmed the chief executive’s law-enforcement power. James Wilson captured the spirit of the reform when he remarked that a “single magistrate” would supply the “most energy, dispatch, and responsibility” to the execution of the laws, a view echoed by Alexander Hamilton in The Federalist No. 70. Likewise, some Founders spoke of the president’s significant role in foreign affairs, discussing the Senate’s check on treaty-making as an exception to the grant of executive power. Early practices confirmed these readings of the Executive Vesting Clause. President George Washington took many actions not traceable to any specific foreign affairs clause in Article II, including issuing the Neutrality Proclamation, asking for the recall of French emissary, Citizen Genêt, and directing United States diplomats posted overseas. Similarly the first president directed federal law execution and executive officers of various sorts—soldiers, customs officials, the U.S. attorneys, and departmental secretaries, among others.

The Vesting Clause’s rule that the president enjoys those powers traditionally vested with chief executives admits of two limitations. First, the president lacks executive authority explicitly granted to Congress. Hence he cannot declare war, grant letters of marque and reprisal, or regulate commerce, even though some chief executives had such authority. In these instances, Congress retained portions of the executive power that the Continental Congress had wielded under the Articles of Confederation. Second, specific constitutional provisions check customary executive authority. Despite his executive power, the president cannot make treaties or appointments without the Senate’s advice and consent. In this regard, the Senate acts as a limited executive council. Likewise, the president cannot pardon impeachments or violations of state law.

From the Constitution’s inception, some have doubted whether the Vesting Clause grants any power at all. Some have asserted that the “executive Power” merely refers to those specific powers enumerated elsewhere in Article II. Others have argued that the Vesting Clause does no more than designate the title and number of the apex of the executive. To claim more for the Vesting Clause supposedly would make the rest of Article II redundant. There are reasons to reject such claims. First, these arguments shunt aside the eighteenth-century understanding of executive power. The phrase “executive Power” was not an empty catchall encompassing any and all authority granted by a constitution to an executive. The phrase encompassed, at a minimum, control of the execution of laws, foreign affairs, and executive officers.

Second, traditional rules of interpretation require us to take seriously the differences across the three vesting clauses. Article I, Section 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States . . .”) makes clear that it vests no powers apart from those enumerated in the rest of Article I. In contrast, Article III, Section 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish.”) clearly vests the federal courts with judicial authority. The Executive Vesting Clause reads like its Article III counterpart, in sharp contrast to the Article I introductory clause.

Third, although the title and number theory seeks to avoid redundant readings, it fails on its own terms. Because the rest of Article II makes clear that there would be only one executive styled the “president” (provisions in Article II repeatedly mention a “president” and use the singular pronoun “he”), the title and number theory would render the Executive Vesting Clause redundant. If every reading of the clause yields some redundancy, then arguments about redundancy cannot supply a reason for preferring one reading over another.

While the Vesting Clause is most often associated with execution of the laws, foreign affairs, and direction of executive officers, some imagine that it grants additional authority. For instance, many believe that the clause supports an executive privilege that enables the president to shield executive communications from Congress and the judiciary. Others contend that the clause grants the president certain immunities in court, such as immunity from suits challenging his official actions. Perhaps the clause conveys certain “emergency powers” to take extraordinary actions during exigencies, of the sort that Abraham Lincoln took during the Civil War.

The Vesting Clause has played a limited role in constitutional litigation. With some exceptions—including Justice Robert H. Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952)—the Supreme Court has accepted that the clause grants powers beyond those specifically enumerated in Article II. In Myers v. United States (1926), the Court cited the Executive Vesting Clause as the source of removal and supervisory powers over executive officers. Nixon v. Fitzgerald (1982) cited the clause as a source of three powers (law enforcement, foreign affairs, and a supervisory power over the executive branch). In a 2003 case touching upon foreign affairs, the judiciary affirmed that the Vesting Clause grants foreign affairs authority. See American Insurance Ass’n v. Garamendi (2003). This marks a departure from prior case law, which had grounded the executive’s foreign affairs powers in necessity and sovereignty. See United States v. Curtiss-Wright Export Corp. (1936). In a rather recent case, the Supreme Court repeatedly declared that multi-layered removal protections were inconsistent with the grant of executive power, thereby grounding the president’s removal power in the Vesting Clause. See Free Enterprise Fund v. Public Company Accounting Oversight Board (2010). Yet the Court did not disturb the existing scheme of “for cause” removal restrictions that help grant the independent agencies their autonomy.

Indeed, despite the willingness to read the clause as granting power, judicial decisions have consistently limited its reach. Post-Myers, the Supreme Court essentially sanctioned the creation of a fourth branch of government in the form of numerous independent agencies that simultaneously exercise legislative, executive, and judicial powers. The most notable such case, Morrison v. Olson (1988), acknowledged that the Executive Vesting Clause granted the president control over prosecutions even as it upheld the constitutionality of the Independent Counsel Act. The Morrison Court concluded that the good-cause removal restriction protecting Independent Counsels did not “unduly trammel on executive authority.” That framework well describes the Supreme Court’s case law on the Vesting Clause: while the clause grants the president substantive power not found elsewhere in the Constitution, those powers are often subject to congressional regulation and modification.

Saikrishna Prakash

See Also

Article I, Section 1 (Legislative Vesting Clause)

Article II, Section 2, Clause 1 (Commander in Chief)

Article II, Section 2, Clause 2 (Treaty Clause; Appointments Clause)

Article II, Section 3 (Take Care Clause)

Article III, Section 1 (Judicial Vesting Clause)

Suggestions for Further Research

Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995)

Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541 (1994)

Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992)

HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR (1990)

Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 4 (1994)

H. Jefferson Powell, The Founders and the President’s Authority over Foreign Affairs, 40 WM. & MARY L. REV. 1471 (1999)

Saikrishna B. Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701 (2003)

Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001)

ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS, AND CONSTITUTIONAL POWER (1984)

Significant Cases

Myers v. United States, 272 U.S. 52 (1926)

Humphrey’s Executor v. United States, 295 U.S. 602 (1935)

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

United States v. Nixon, 418 U.S. 683 (1974)

Nixon v. Fitzgerald, 457 U.S. 731 (1982)

Morrison v. Olson, 487 U.S. 654 (1988)

Clinton v. Jones, 520 U.S. 681 (1997)

American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003)

Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010)

Presidential Term

           [The President] shall hold his Office during the Term of four Years . . .

(ARTICLE II, SECTION 1, CLAUSE 1)

Before deciding on the length of the term of office for the president, the Framers of the Constitution debated whether, after a first term, the president was to be reappointed by the legislature or by the people. James Madison vehemently opposed reappointment by the legislature, arguing that the separation of powers was essential to the preservation of liberty: “The Executive could not be independent of the Legislature, if dependent on the pleasure of that branch for a re-appointment.” If the president were thus beholden to the legislature, “tyrannical laws may be made that they may be executed in a tyrannical manner.”

On the other hand, the proposal to allow “re-appointment by Legislature for good-behavior” struck George Mason as allowing for too long a tenure. The phrase “good behavior” indicated protected life tenure for judges. Thus, Mason worried, “An Executive during good behavior [is] a softer name only for an executive for life.”

While debating whether the president should be reappointed by the Legislature, the Framers also discussed whether a president should be eligible for a second term at all. George Mason wanted a single term of seven years in order to avoid “a temptation on the side of the executive to intrigue with the Legislature for a re-appointment.” Some feared foreign intrigue in the reappointment of a president. But other Framers supported eligibility for more than one term. As Roger Sherman reasoned, there was no need of “throwing out of office the men best qualified to execute its duties.” Gouverneur Morris argued that eligibility for more than one term would incite a president to merit public esteem with the hopes of reelection and would eliminate the risk of having a president use his short time in office to garner wealth and provide for friends. Alexander Hamilton adamantly argued that one of the keys to a successful executive is administrative stability, which would be best supported by a longer duration in office and would encourage a president to “act his part well.”

After removing the exclusion from more than a single term, the Framers turned to determine how many years a given term would be (proposals ranged from three to twenty). Eventually, the Framers settled on four years. According to Justice Joseph Story in his Commentaries on the Constitution of the United States (1833), the period of four years is not long enough to risk any harm to the public safety. Although some Anti-Federalists thought that four years was sufficient time for a president “to ruin his country,” Hamilton wrote in The Federalist No. 71 that duration in office is “requisite to the energy of the executive authority” and that a four-year term struck the proper balance, giving a president enough time “to make the community sensible of the propriety of the measures he might incline to pursue” and to not “justify any alarm for the public liberty.”

It should be noted that the four-year limitation is absolute, and every president (no matter how disputed the election results may have been) has always turned the office over to his successor on the appointed day (January 20, after the ratification of the Twentieth Amendment). Nor has any president sought to have the election postponed because of a crisis. The election of 1864 went forward despite the Civil War, as did the election of 1944 despite World War II.

David F. Forte

See Also

Article II, Section 1, Clause 3 (Electoral College)

Amendment XII (Electoral College)

Amendment XX (Presidential Terms)

Amendment XXII (Presidential Term Limit)

Suggestion for Further Research

Jack M. Beerman & William P. Marshall, The Constitutional Law of Presidential Transitions, 84 N.C. L. REV. 1253 (2006)

Vice President

           . . . and, together with the Vice President, chosen for the same Term. . . .

(ARTICLE II, SECTION 1, CLAUSE 1)

In early September 1787, after the Constitutional Convention had received and debated the draft from the Committee of Detail, the delegates appointed a Committee of Eleven to resolve a number of issues that continued to stymie the convention. Among the committee’s felicitous innovations was the office of vice president, derived from the model of the lieutenant governor in the New York state constitution of 1777. In this brief phrase, later approved by the convention, the Committee of Eleven accomplished two signal results. First, the vice president would be elected at the same time, for the same term, and by the same constituency as the president. The intent was to preserve the independence of the executive should the person who was vice president succeed to the duties of the presidency. Second, by separating this phrase from the previous sentence, the Framers made it clear that the vice president was not vested with any part of the constitutionally mandated executive power. There would be no plural executive.

The primary constitutional role of the vice president was to be available to become president (or acting president) should the office become vacant, or should a contingent election of a president fail in the House of Representatives. This is underscored by the original arrangement whereby presidential electors voted for two candidates; the one with the most votes (provided he carried a majority of the electors) would be president and the individual with the next greatest number of votes would be vice president. (Article II, Section 1, Clause 3.) Even when the Twelfth Amendment modified the method of electing a president and vice president, the purpose of the Framers remained: the person who was to hold the office of president or vice president should be chosen free of legislative control. Of course, should it happen that there was no person so chosen available to fill the presidency, the Constitution provides that Congress may by law provide for an officer to “act as President” until a president is elected. That contingency, however, has never occurred, and its need has been further obviated by the operation of the Twenty-fifth Amendment.

The other constitutional duty of the vice president (see Article I, Section 3, Clause 4), to be president of the Senate, had implications for succession as well. George Mason objected to the mixing of executive and legislative powers; he preferred that an executive council be established, the president of which would serve as vice president of the United States. But the Framers were opposed to an executive council. Further, were the Senate to have elected its own president, that person would almost certainly have been in line for succession. As James Madison stated, the question centered “on the appointment of the vice President [as] president of the Senate instead of making the President of the Senate the vice president, which seemed to be the alternative.”

As it occurred, for 140 years, the primary role of the vice president was legislative though without much influence. John Nance Garner, former Speaker of the House and vice president to Franklin D. Roosevelt, famously described the office (in a bowdlerized quote) as “not worth a bucket of warm spit.” The vice president did not begin to have executive responsibilities until the twentieth century. Vice President Thomas R. Marshall chaired some of Woodrow Wilson’s Cabinet meetings when the president was absent. President Warren G. Harding had his vice president, Calvin Coolidge, attend all Cabinet meetings, a practice that became institutionalized under Franklin D. Roosevelt, though Garner still felt excluded from any effective voice on policy. Harry Truman, through the National Security Act of 1947, made the vice president an ex officio member of the National Security Council. It was not until the 1950s, under President Dwight D. Eisenhower, that the vice president, Richard M. Nixon, became a fully functioning executive official, attending 193 cabinet meetings, 217 National Security Council sessions, and chairing important executive committees. In 1961, the offices of the vice president moved from Capitol Hill to executive offices nearer to the White House, and then in 1977 to the West Wing itself, completing the position’s transformation into an integral part of executive governance.

The extent of the executive role of the vice president depends upon his relationship with the president. Similarly, since the middle of the twentieth century, candidates for vice president have been selected by the person running for president, rather than in and by the convention as had previously been the case. Recently, however, New Hampshire has instituted a separate vice-presidential primary.

Nine vice presidents have filled the presidency upon the death or resignation of the President: John Tyler, Millard Fillmore, Andrew Johnson, Chester A. Arthur, Theodore Roosevelt, Calvin Coolidge, Harry S. Truman, Lyndon B. Johnson, and Gerald R. Ford (Roosevelt, Coolidge, Truman, and Lyndon Johnson were subsequently re-elected as president). Five other vice presidents have attained the presidency by election in their own right: John Adams, Thomas Jefferson, Martin Van Buren, Richard M. Nixon, and George H.W. Bush. Thus, although a candidate for president often chooses a running mate for electoral reasons, the person elected as vice president has a significant chance to become president.

David F. Forte

See Also

Article I, Section 3, Clause 4 (Vice President as Presiding Officer)

Article II, Section 1, Clause 3 (Electoral College)

Article II, Section 1, Clause 6 (Presidential Succession)

Amendment XXII (Presidential Term Limit)

Amendment XXV (Presidential Succession)

Suggestions for Further Research

Richard Albert, The Evolving Vice Presidency, 78 TEMP. L. REV. 811 (2005)

JOEL K. GOLDSTEIN, THE MODERN AMERICAN VICE PRESIDENCY: THE TRANSFORMATION OF A POLITICAL INSTITUTION (1982)

Joel K. Goldstein, The New Constitutional Vice Presidency, 30 Wake Forest L. Rev. 505 (1995)

MARK O. HATFIELD, VICE PRESIDENTS OF THE UNITED STATES, 1789–1993 (1997)

PAUL C. LIGHT, VICE-PRESIDENTIAL POWER: ADVICE AND INFLUENCE IN THE WHITE HOUSE (1984)

HAROLD C. RELYEA, THE VICE-PRESIDENCY: EVOLUTION OF THE MODERN OFFICE, 1933–2001, Congressional Research Service (2001)

VICE PRESIDENTS: A BIOGRAPHICAL DICTIONARY (L. Edward Purcell ed., 4th ed., 2010)

Presidential Electors

           [The President] shall . . . 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.

(ARTICLE II, SECTION 1, CLAUSE 2)

After struggling with numerous proposals on the election of the president, the delegates to the Constitutional Convention settled on establishing a college of electors and apportioning the number according to the total of representatives and senators from each state. This method permitted the smaller states to have a somewhat greater proportionate share in the choosing of the president, though not as large an advantage as they had in the Senate. The Framers not only rejected the direct popular election of the president, but also left it to the state legislatures to determine how the states’ electors were to be appointed.

This language in fact paralleled the provisions for state legislative appointment of congressional delegates in the Articles of Confederation and of U.S. Senators under Article I of the Constitution. With political parties widely disdained, this process was designed to pick not the candidate from the most popular political faction, but the wisest and most virtuous leader. The Framers rejected direct popular election of the president (and of senators) both because they believed that the populace would be ill-informed about national figures and because the Framers wanted to avoid interfering with state authority and depreciating the influence of small states. The Framers also rejected having Congress select the president because they feared that would make the president dependent on Congress. They hoped that the Electoral College would obviate these problems and would form a truly deliberative body on this single issue. The delegates to the Convention disagreed about whether electors should be popularly elected or appointed by state legislatures. They resolved that question by leaving the matter up to each state legislature.

Developments since then have changed much of the expected practice, but cases have confirmed the original understanding regarding electoral powers absent constitutional alteration. Our democratic ethos increasingly embraced popular elections, leading all state legislatures by 1880 to provide for popular election of presidential electors, and the Seventeenth Amendment in 1913 mandated the same for senators. This development, and the growing view that political party politics reflected rather than undermined democratic choice, made the notion of electors exercising their own independent judgment seem dubious by the early 1800s. Current case law such as Ray v. Blair (1952) allows the states to present voters with ballots that list only the presidential candidates (even though the votes for a candidate are really for his party’s slate of electors), and also permits the states to pass laws requiring electors to pledge that, if chosen, they will vote for their party’s candidate. Electors rarely do otherwise, though the enforceability of those pledges against a wayward elector remains unsettled.

Because these ballot and pledge requirements were directed by state legislatures, they came within those legislatures’ federal constitutional power to direct the manner of selecting presidential electors. Although the Framers appear not to have considered whether this state legislative power could be constricted by state constitutions, subsequent cases adjudicating the question held that it could not because the federal Constitution’s text vests this authority directly in the state legislatures rather than in the states. Indeed, although what a state legislature “is” might reasonably be thought to be determined by state constitutional procedures, McPherson v. Blacker (1892) stated that state legislatures need not (though they usually did) even follow normal state constitutional procedural requirements that legislatures vote bicamerally or present their decisions to the executive for possible veto. The Supreme Court’s initial unanimous decision in the 2000 election dispute vacated the Florida supreme court’s first decision for failing to take into account this doctrine prohibiting state constitutions from constricting state legislative directions about the appointment of presidential electors. Bush v. Palm Beach County Canvassing Board (2000).

State legislatures must, however, exercise their federal constitutional power to direct the manner of selecting presidential electors consistent with other provisions of the federal Constitution, including the First and Fourteenth Amendments. So have held a series of cases, from McPherson, Williams v. Rhodes (1968), and Anderson v. Celebrezze (1983), to the Bush v. Gore (2000) decision that invalidated a manual recount process for unconstitutionally allowing election officials’ standardless discretion over how to count certain ballots. McPherson and Williams explicitly rejected the argument, sometimes cited by critics of Bush v. Gore, that the selection of presidential electors is a political question beyond any judicial review to assure compliance with the federal Constitution.

An unresolved question is whether a state legislature’s determination that a state court deviated from state legislative directions would be judicially reviewable. This issue would have arisen had the Supreme Court not decided Bush v. Gore on December 12, 2000, because the Florida legislature was poised to complete its direct appointment of electors on December 13, citing its concern that the state supreme court had deviated from the state legislature’s preelection directions and allowed the contest to exceed the federal statutory deadline for making contest determinations binding when Congress counted electoral votes. Had the Florida legislature proceeded with such a direct appointment, the courts might have concluded that such a state legislative decision was an unreviewable political question (as are state legislative ratifications of constitutional amendments) or that only Congress (when exercising its Twelfth Amendment counting powers) could review the validity of such state legislative action.

There has been a constant flow of attempts to change the Electoral College system. Prompted by the 2000 presidential election, in which George W. Bush won the presidency through the Electoral College despite Al Gore’s having received a plurality of popular votes, several academics and reformers proposed the “National Popular Vote Compact” (NPVC), an attempt to nationalize the vote for president without a constitutional amendment. Each state entering the compact agrees to award its electoral votes to the person who received the most popular votes nationwide. The compact would not go into effect until states with a total of 270 electoral votes have joined the compact. In this way at least 270 electors would vote for the winner of the national popular vote, regardless of who won the popular vote in the electors’ individual states. A number of states have approved the agreement but not enough to put it into effect, and there is a question whether Congress under the Compact Clause (Article I, Section 10, Clause 3) would have to approve the agreement.

Einer Elhauge

See Also

Article I, Section 3, Clause 1 (Senate)

Article V

Amendment XII (Electoral College)

Amendment XVII (Popular Election of Senators)

Significant Cases

McPherson v. Blacker, 146 U.S. 1 (1892)

Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916)

Hawke v. Smith, 253 U.S. 221 (1920)

Burroughs v. United States, 290 U.S. 534 (1934)

Ray v. Blair, 343 U.S. 214 (1952)

Williams v. Rhodes, 393 U.S. 23 (1968)

Anderson v. Celebrezze, 460 U.S. 780 (1983)

Bush v. Palm Beach Cnty. Canvassing Bd., 531 U.S. 70 (2000)

Bush v. Gore, 531 U.S. 98 (2000)

Electoral College

           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.

(ARTICLE II, SECTION 1, CLAUSE 3)

At the Constitutional Convention in 1787, delegates had expressed concern that a meeting of a single body in the nation’s capital to elect a president opened the door to intrigue and undue influence by special interests, foreign governments, and political factions. Meeting in their home states, electors would find it difficult to collude or buy and sell votes.

A more difficult problem was how to structure the voting within the Electoral College. During the debates at the Constitutional Convention, some delegates argued that the diversity and dispersal of the people over an expansive territory militated against direct popular election, for voters would be unable to form a majority behind any one candidate. In response, James Madison proposed that every individual voter cast three votes for president, at least two for persons from a state other than his own. Madison’s idea later resurfaced, and the convention applied it in modified form to the presidential electors of the Electoral College. Requiring each elector to cast two votes for president increased the chances that electors could form a majority. Indeed, under the arithmetic, it was possible that as many as three candidates could have a majority of the votes of the electors. The provision did not prevent a New York elector from voting for two Virginians, but prohibited a Virginia elector from doing so. The Framers also accepted Madison’s small but significant amendment to add the word “appointed” after the original text requiring a “Majority of the whole Number of Electors” for election. Thus the basis of what constitutes a majority changes if a state fails to appoint electors. As it turned out, in the first presidential election, New York failed to appoint electors, and George Washington won by the unanimous vote of the electors appointed.

If two or three persons received a majority vote and an equal vote, the House of Representatives must choose one of them for president. In deference to a suggestion by George Washington, the convention gave this responsibility to the popularly elected House, not the Senate, but representatives had to vote as state delegations, each state having one vote. If no candidate received a majority of the electoral vote, the House would choose from among the top five candidates. Because each state had one vote, regardless of population, the procedure gave proportionately more influence to the smaller states. The choice of five also gave to smaller states a greater chance of having one of their residents elected by the House, a concession to them that balanced the advantage that large states had in the electoral vote. The contingency election process also reassured delegates who had favored congressional election of the president in the first instance. The Twelfth Amendment modified these provisions, following a crisis in 1800, when Thomas Jefferson and Aaron Burr each received an equal number of electoral votes.

The creation of the office of vice president appears to have been directly related to the mode of choosing the president. The Constitution gives to the vice president only two specific constitutional responsibilities: to act as president of the Senate and to receive and open the electoral votes. In 1789, the Senate elected John Langdon as president of the Senate “for the sole purpose of opening and counting the votes for President of the United States” (there being no sitting vice president). In 1793, the vice president, John Adams, “opened, read, and delivered” the certificates and votes of the electors to the tellers appointed by the respective houses. The tellers “ascertained the votes.” By 1797, Vice President Adams only opened and delivered the certificates and reports of the electors to the tellers who counted the votes. Practice has generally followed that precedent. The issue of who counts the votes was particularly sensitive in 1876, during the contested election between Rutherford B. Hayes and Samuel Tilden. There were disputes in South Carolina, Louisiana, and Florida about which electors had been appointed (and one elector from Oregon was disqualified for being a government employee). The president of the Senate, Thomas W. Ferry, was a Republican; the Democratic Party controlled the House and the Republicans controlled the Senate. The Congress invented a novel solution to the problem of who would count the votes by creating an electoral commission, composed of five senators, five representatives, and five Supreme Court justices, to determine the results.

Finally, under this clause, whoever was runner-up in the electoral vote, with or without a majority vote, presumably a national figure competent to serve as president, became vice president. Clearly, the Founders did not anticipate rival national political parties whose top candidates could be the top two vote recipients. In the 1796 election, Federalist John Adams became president and Republican Thomas Jefferson (Adams’s bitter political opponent) became vice president. Four years later, both Jefferson and his vice-presidential running mate, Aaron Burr, received an equal number of votes. The House ultimately voted in favor of Jefferson, but only after thirty-six ballots. Hence, the Twelfth Amendment, ratified in 1804, also changed this method of choosing the vice president. In the contingency election for vice president, the Senate makes the choice. Senators do not vote as state delegations; thus, disagreements between the two senators from a state do not lead to a stalemate. Only one time in U.S. history, in the 1836 election, did the Senate choose the vice president, Richard M. Johnson, who served under Martin Van Buren.

Tadahisa Kuroda

See Also

Article II, Section 1, Clause 2 (Presidential Electors)

Article II, Section 1, Clause 4 (Presidential Vote)

Amendment XII (Electoral College)

Amendment XXV, Section 2 (Presidential Succession)

Suggestions for Further Research

JOSEPH JACKSON, SURVEY OF THE ELECTORAL COLLEGE IN THE POLITICAL SYSTEM OF THE UNITED STATES (1945)

TADAHISA KURODA, THE ORIGINS OF THE TWELFTH AMENDMENT: THE ELECTORAL COLLEGE IN THE EARLY REPUBLIC, 1787–1804 (1994)

DAVID A. MCKNIGHT, THE ELECTORAL SYSTEM OF THE UNITED STATES (1878)

JACK N. RAKOVE, ORIGINAL MEANINGS, POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996)

Shlomo Slonim, The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for the Selection of a President, 73 J. Am. Hist. 35 (1986)

Presidential Vote

           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.

(ARTICLE II, SECTION 1, CLAUSE 4)

This clause requires that all electors vote on the same “Day” but allows Congress to set a multiday range of “Time” for when states choose their electors. Congress has exercised this authority to set a uniform day (the Tuesday after the first Monday in November) for states to appoint electors. But Congress has also provided in the same statute that, if a state’s election “has failed to make a choice” on that day, then the state legislature can afterward appoint electors in any manner it deems fit, thus effectively extending the “Time” for choosing electors.

Unfortunately, the statutory text exercising this constitutional authority provides no criteria for deciding when an election “fails to make a choice” or who gets to decide when no choice was made. The historical record indicates that Congress thought this statutory language included cases where floods or inclement weather prevented “any considerable number” of voters from reaching the polls and that, in such cases, Congress wanted to confirm the power of the state’s “legislature to authorize the continuance of the elections” past the congressionally prescribed election day. This legislative history indicates that an election might “fail to make a choice” even though there had been an election with a certifiable result, at least when that result was distorted by flooding or bad weather. It also makes clear that, at least in that circumstance, Congress contemplated that the state legislature was the entity that would decide whether the election had failed to make a choice. Unfortunately, the legislative history does not indicate what other circumstances Congress thought might mean an election failed to make a choice.

One interpretation is that Congress contemplated that each state legislature would have the power to decide when in its judgment other problems (including perhaps a state judicial failure to follow legislative directions or resolve election contests by congressional deadlines) meant the election failed to make a choice or was distorted. Alternatively, one might narrowly interpret the “failure to make a choice” language to prevent state legislatures from using dubious pretexts to reverse whatever presidentialelection outcomes they disliked. Arguing against the alternative interpretation is the fact that state legislative decisions (unlike judicial decisions) are political actions ultimately reviewable by the state electorate, which would be displeased if a state legislature tried to alter that electorate’s presidential choice on mere pretext. Further, allowing state legislatures to make such judgments could be coupled with (possibly deferential) federal judicial review as to whether the state legislatures acted on mere pretext or with congressional review when it exercises its constitutional power to decide which electoral votes to count or both.

Another unresolved issue is whether Congress’s Twelfth Amendment power to “count” electoral votes gives it discretion to refuse to count the votes of electors whom the state legislature has properly appointed. Such congressional refusal would seem to violate the Presidential Electors Clause (Article II, Section1, Clause 2). But the action might not be judicially reviewable, in which case only the national electorate would (at the next congressional election) be able to review any such congressional decision to exceed the proper scope of its counting power.

Einer Elhauge

See Also

Article I, Section 3, Clause 1 (Senate)

Article I, Section 4, Clause 1 (Election Regulations)

Article II, Section 1, Clause 2 (Presidential Electors)

Article V

Amendment XII (Electoral College)

Amendment XVII (Popular Election of Senators)

Presidential Eligibility

           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.

(ARTICLE II, SECTION 1, CLAUSE 5)

The Constitution imposes three eligibility requirements on the presidency—based on the officeholder’s age, residency, and citizenship—that must be satisfied at the time of taking office. By virtue of the Twelfth Amendment, the qualifications for vice president are the same. The Framers established these qualifications in order to increase the chances of electing a person of patriotism, judgment, and civic virtue.

First, presidents must be thirty-five years of age or older. In contrast, senators must be at least thirty years old, and representatives no less than twenty-five years old. As Justice Joseph Story has noted in his Commentaries on the Constitution of the United States (1833), the “character and talents” of a man in the middle age of life are “fully developed,” and he has had the opportunity “for public service and for experience in the public councils.”

Second, the president must have been a “resident” of the United States for fourteen years. By contrast, to be a member of Congress, one must be an “inhabitant” of the state one is representing. During the Constitutional Convention, James Madison contended that “both [terms] were vague, but the latter [‘Inhabitant’] least so in common acceptation, and would not exclude persons absent occasionally for a considerable time on public or private business.” Then as now, inhabitant meant being a legal domiciliary, but resident could mean either a domiciliary or a physical presence. Perhaps the Framers desired a person as president who had actually been present in the United States for the required period and had developed an attachment to and understanding of the country, rather than one who was legally an inhabitant, but who may have lived abroad for most of his life. On the other hand, the distinction may have been one of style rather than substance. As Justice Story later noted, “[b]y ‘residence,’ in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States.”

There is some evidence that the Framers believed the fourteen-year residency requirement could be satisfied cumulatively, rather than consecutively. An earlier version of the clause excluded individuals who have “not been in the whole, at least fourteen years a resident within” the United States, and historical evidence suggests that deletion of the phrase “in the whole” was not intended to alter the provision’s meaning. This might explain the election of Herbert Hoover, whose successful 1928 campaign for president came less than fourteen years after his return to the United States in 1917. Others may argue that Hoover had simply maintained a United States domicile throughout his tenure abroad.

The third qualification to be president is that one must be a “natural born Citizen” (or a citizen at the time of the adoption of the Constitution). Although any citizen may become a member of Congress so long as he has held citizenship for the requisite time period, to be president, one must be “a natural born Citizen.” Undivided loyalty to the United States was a prime concern. During the Constitutional Convention, John Jay wrote to George Washington, urging “a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.” Justice Story later noted that the natural born citizenship requirement “cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office.”

Under the longstanding English common law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, persons born within the United States are plainly “natural born citizens” eligible to be president.

Being born on U.S. soil is not the only way for a person to be entitled to U.S. citizenship at birth, however. A person can be a citizen from birth based on the citizenship of one or both parents—under a British doctrine known as jus sanguinis. The First Congress codified that doctrine into U.S. law, declaring that “the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” 1 Stat. 104 (1790).

For decades, constitutional scholars have debated whether a person is a natural born citizen eligible to serve as president, so long as he is a U.S. citizen at birth, regardless of the location of his birth. That debate ended as a practical matter in 2008, when the United States Senate unanimously approved a resolution deeming Senator John McCain eligible for the presidency. The resolution noted that “previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President.” S. Res. 511, 110th Cong. (2008). The resolution also added that any other view would be “inconsistent with the purpose and intent of the ‘natural born Citizen’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘natural born Citizen.’”

The Presidential Eligibility Clause does not explicitly cover those who serve merely as acting president (see Twenty-fifth Amendment), a constitutionally distinct office. Although Congress has imposed by statute, 3 U.S.C. § 19(e), the same eligibility requirements for service as acting president, that provision may not be required as a constitutional matter.

James C. Ho

See Also

Article I, Section 2, Clause 2 (Qualifications for Representatives)

Article I, Section 3, Clause 3 (Qualifications for Senators)

Article II, Section 1, Clause 6 (Presidential Succession)

Amendment XII (Electoral College)

Amendment XIV, Section 1 (Citizenship)

Amendment XXV (Presidential Succession)

Suggestions for Further Research

Charles Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 MD. L. REV. 1 (1968)

James C. Ho, President Schwarzenegger—Or At Least Hughes?, 7 GREEN BAG 2d 108 (2004)

James C. Ho, Unnatural Born Citizens and Acting Presidents, 17 CONST. COMMENT. 575 (2000)

Randall Kennedy, A Natural Aristocracy?, 12 CONST. COMMENT. 175 (1995)

Jordan Steiker, Sanford Levinson & J. M. Balkin, Taking Text and Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential Eligibility, 74 TEX. L. REV. 237 (1995)

Significant Cases

United States v. Wong Kim Ark, 169 U.S. 649 (1898)

United States ex rel. Guest v. Perkins, 17 F. Supp. 177 (D.D.C. 1936)

Presidential Succession

           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.

(ARTICLE II, SECTION 1, CLAUSE 6)

This provision, side by side with the Twentieth and Twenty-fifth Amendments, is a major anchor for presidential succession in the United States. It provides, as supplemented by the Twenty-fifth Amendment, for the vice president to take over in the event of the removal, death, resignation, or inability of the president. It also authorizes Congress to establish a line of succession beyond the vice presidency. Left unclear by the clause was whether the vice president became president or simply acted as president in a case of succession.

Other ambiguities in the provision were noted at the Constitutional Convention by John Dickinson of Delaware, who asked, “[W]hat is the extent of the term ‘disability’ & who is to be the judge of it?” James Madison expressed concern that the provision would prevent the filling of a presidential vacancy by a special election, and he therefore successfully inserted the expression “until the Disability be removed, or a President shall be elected.” It is not clear whether this change was intended to apply when the vice president succeeded or only when an officer designated by Congress was called upon to serve in the case of a double vacancy. Nor is it clear whether after a special election the winner(s) serves a full four-year term. In any event, there has never been a special election for president, although the provision allowing for its possibility was included in the country’s early presidential succession laws.

A related question is whether “officers” when called on to serve were constitutionally required to retain their position during a period of service as acting president, as both James Madison and some current scholars opine. The 1792 statute seemed to indicate that when an “officer” became acting president, that officer retained his current position until a successor filled the presidential office. The current succession law of July 18, 1947, as amended, contemplates a resignation by statutory successors once they assume the powers of the presidency as acting president. That provision creates an issue as to whether in a case of presidential inability, it is appropriate to have an acting president who does not retain his or her existing office, and, in turn, whether legislative officers in line would violate the Incompatibility Clause of Article I, Section 6, Clause 2, which forbids a member of either House “during his Continuance in Office” from holding an “Office under the United States.”

In addition, serious constitutional questions remain regarding the “bumping” provision of the succession statute, which requires a statutory successor, in the case of cabinet members, to step down once a Speaker or president pro tempore becomes available. The “bumping” provision may run afoul of the requirement of the Presidential Succession Clause that “such Officer shall act accordingly [as acting president], until the Disability be removed, or a President shall be elected.”

Another ambiguity may be what kind of “officer” Congress can designate in a statute of presidential succession. The drafting history of Article II, Clause 1, Section 6 indicates that the Framers intended “officers of the United States” as the eligible category, but less clear is whether legislative leaders or legislators are included. Debate surrounding that issue has been a constant since the first succession law, with many scholars contending that neither the Speaker of the House of Representatives nor president pro tempore of the Senate is an officer in the sense contemplated by the Constitution. Proponents and opponents of this view cite provisions of the Constitution for support, such as Article I, Section 2, Clause 5 (Impeachment) and Article I, Section 6, Clause 2 (Sinecure Clause).

Both the First and Second Congresses debated who should be in the line of succession. The secretary of state, the chief justice, the president pro tempore of the senate, and the Speaker of the House of Representatives were all mentioned. On March 1, 1792, Congress resolved the issue by choosing the president pro tempore and the Speaker, respectively, prompting criticism from Madison and others that the congressional officers were not within the contemplation of the succession provision. No occasion called for the law to be implemented. Interestingly, at one point in history—when Chester A. Arthur succeeded to the presidency—there was no Speaker or president pro tempore, and therefore there was no one at all in the line of succession under the law of 1792. From 1886 until 1947, Congress included only cabinet members and not legislators in the line of succession, largely because of doubts whether legislators qualified as “officers.” The current succession statute, however, contains the legislative offices, with the Speaker first and the president pro tem next, followed by a line of cabinet officers in the order in which the executive departments were created.

In 1841, when President William Henry Harrison died in office, Vice President John Tyler assumed the presidency for the rest of the term. His claim to president, not simply vice president acting as president, drew criticism. The precedent he set, however, took and became the operating principle when other presidents died in office. These presidents were Zachary Taylor, Abraham Lincoln, James Garfield, William McKinley, Warren Harding, Franklin Roosevelt, and John Kennedy. On the other hand, Tyler’s example became a major obstacle for situations involving the temporary inability of a president because, under the wording of this clause, the status of a vice president in a case of death would appear to be the same as in a case of inability or resignation or removal. As a consequence, on a number of occasions vice presidents declined to consider relieving a disabled president because of the Tyler precedent and also because of the ambiguities first raised by John Dickinson. This was the case in 1881 when President James A. Garfield lay dying and some suggested that Vice President Chester A. Arthur take charge, and again in 1919 after President Woodrow Wilson’s stroke, when Vice President Thomas R. Marshall was urged to do the same. In 1967, the adoption of the Twenty-fifth Amendment eliminated much of the remaining uncertainties regarding presidential succession.

John Feerick

See Also

Article I, Section 2, Clause 5 (Impeachment)

Article I, Section 6, Clause 2 (Sinecure Clause)

Article I, Section 6, Clause 2 (Incompatibility Clause)

Amendment XXV (Presidential Succession)

Suggestions for Further Research

Akhil R. Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 STAN. L. REV. 113 (1995)

CONTINUITY OF GOV’T COMM’N, PRESERVING OUR INSTITUTIONS: THE CONTINUITY OF THE PRESIDENCY (Second Report 2009)

Steven G. Calabresi, The Political Question of Presidential Succession, 48 Stan. L. Rev. 155 (1995)

JOHN D. FEERICK, FROM FAILING HANDS: THE STORY OF PRESIDENTIAL SUCCESSION (1965)

Joel K. Goldstein, Akhil Reed Amar and Presidential Continuity, 47 HOUSTON L. REV. 67 (2010)

Joel K. Goldstein, Taking from the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 FORDHAM L. REV. 959 (2010)

John F. Manning, Response, Not Proved: Some Lingering Questions About Legislative Succession to the Presidency, 48 STAN. L. REV. 141 (1995)

RUTH C. SILVA, PRESIDENTIAL SUCCESSION (1968)

Symposium, The Adequacy of the Presidential Succession System in the 21st Century: Filling the Gaps and Clarifying the Ambiguities in Constitutional and Extraconstitutional Arrangements, 79 FORDHAM L. REV. 775 (2010)

SETH BARRETT TILLMAN, THE ANNALS OF CONGRESS, THE ORIGINAL PUBLIC MEANING OF THE SUCCESSION CLAUSE, AND THE PROBLEM OF CONSTITUTIONAL MEMORY (2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1524008

Compensation

           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.

(ARTICLE II, SECTION 1, CLAUSE 7)

This clause accomplishes two things: it establishes that the president is to receive a “compensation” that is unalterable during the period “for which he shall have been elected,” and it prohibits him within that period from receiving “any other emolument” from either the federal government or the states.

The proposition that the president was to receive a fixed compensation for his service in office seems to have been derived from the Massachusetts constitution of 1780, which served as a model for the Framers in other respects as well. The Constitutional Convention hardly debated the issue, except to reject, politely but decisively, the elderly Benjamin Franklin’s proposal that the president should receive no monetary compensation. Perhaps the Framers feared that if Franklin’s proposal were accepted, only persons of great wealth would accept presidential office.

As Alexander Hamilton explained in The Federalist No. 73, the primary purpose of requiring that the president’s compensation be fixed in advance of his service was to fortify the independence of the presidency, and thus to reinforce the larger constitutional design of separation of powers. “The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might in most cases either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations.” For similar separation of powers reasons, Article III, Section 1, provides that federal judges “shall, at stated Times, receive for their Services, a Compensation,” although that provision only forbids Congress from diminishing the judges’ compensation, not from increasing it. The distinction, as Hamilton noted in The Federalist No. 79, “probably arose from the difference in the duration of the respective offices.”

The prohibition on presidential “emoluments” is one of several constitutional provisions addressed to potential conflicts of interest. Further, the Compensation Clause eliminated one possible means of circumventing the requirement that the president’s compensation be fixed: without this provision Congress might seek to augment the president’s “compensation” by providing him with (what would purportedly differ) additional “emoluments.” Significantly, the prohibition on presidential emoluments also extends to the states. That requirement helps to ensure presidential impartiality among particular members or regions of the Union.

A modern problem arose when President Ronald Reagan continued to receive retirement benefits as a retired governor of California while he was in the White House. He had been receiving benefits since the expiration of his second term in 1975. In a 1981 opinion, the Justice Department’s Office of Legal Counsel focused on the purpose of the Compensation Clause, which was in its view “to prevent Congress or any of the states from attempting to influence the President through financial rewards or penalties.” Given that President Reagan’s retirement benefits were a vested right under California law rather than a gratuity that the state could withhold, the purpose of the clause would not be furthered by preventing him from receiving them.

The meaning of the Compensation Clause also arose in the context of President Richard M. Nixon’s papers. As authorized by the Presidential Recordings and Materials Preservation Act of 1974, the government had taken or seized President Nixon’s papers after he had left office. President Nixon (succeeded by his estate) sued for compensation for the taking of what he alleged to be his property under the Takings Clause of the Fifth Amendment. The government argued that the Compensation Clause precluded payment of compensation on the theory that the presidential materials were the product of President Nixon’s exercise of powers conferred on him by the United States, and that therefore he could not sell them for his personal profit, even after his presidency, without impermissibly receiving an “Emolument” over and above the fixed compensation to which he was entitled. The district court rejected the government’s argument, relying in part on a prior appellate determination that President Nixon was the owner of the materials in question. It found that President Nixon’s entitlement to just compensation had vested when the government took his property (i.e., after he had left office), and therefore that “the plain language of the Emoluments Clause would not be violated because Mr. Nixon would receive compensation subsequent to the expiration of his term of office.” The government argued that such a finding necessarily implied that a sitting president could sell his papers for profit during his tenure of office—to which the court demurred that “those are not the facts in this case.” The court also found, however, that the papers “were not transferred to [President Nixon] by the government as compensation for his service in office,” perhaps implying that a president could indeed sell his papers during his term. Griffin v. United States (1995). Under the Presidential Records Act of 1978, however, presidents no longer have title to their papers, 44 U.S.C. § 2202, and so cannot sell them, thus obviating the issue of whether such sales would be emoluments.

Robert Delahunty

See Also

Article I, Section 9, Clause 8 (Emoluments Clause)

Article III, Section 1 (Judicial Compensation Clause)

Suggestions for Further Research

The President and the Judges—Tax on Salaries of, 13 Op. Att’y Gen. 161 (1869)

President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187 (1981)

Adrian Vermeule, The Constitutional Law of Official Compensation, 102 COLUM. L. REV. 501 (2002)

Significant Case

Griffin v. United States, 935 F. Supp. 1 (D.D.C. 1995)

Presidential Oath of Office

           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.”

(ARTICLE II, SECTION 1, CLAUSE 8)

The Framers fittingly placed the Oath of Office Clause between preceding clauses that set forth the organization of the executive department and succeeding clauses that specify the contours of the president’s executive power. The president takes the oath after he is to assume the office, but importantly before he executes it. The location and phrasing of the clause strongly suggest that it is not empowering, but that it is limiting—the clause limits how the president’s “executive power” is to be exercised.

The clause is one of several that employ the oath concept, but it is the only clause that specifies the actual oath language for a constitutional actor. The clause does not specify who shall administer the oath, though it has been the common, but not universal, practice for the chief justice to do so. While Article VI’s Oaths Clause simply requires the persons specified therein to “be bound by Oath or Affirmation, to support this Constitution,” the Presidential Oath of Office Clause requires much more than this general oath of allegiance and fidelity. The clause, in notable part, enjoins the president to swear or affirm that he “will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.”

The Framers undoubtedly drew upon similar provisions in a number of early state constitutions in drafting the clause, but they plainly believed that a special oath for the president was indispensable. At the Constitutional Convention, when George Mason and James Madison moved to add the “preserve, protect and defend” language, only James Wilson objected, on the ground that “the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary.” The prospect of George Washington’s becoming president cannot be discounted. The Framers perhaps desired an oath that would replicate the public values of the man who was presiding over the Convention. More significantly, because the presidency was unitary, there were no available internal checks, as there were in the other branches with their multiple members. A specially phrased internal check was therefore necessary, one that tied the president’s duty to “preserve, protect and defend” to his obligations to God, which is how the Founders understood what was meant by an oath or affirmation. As Justice Joseph Story noted in his A Familiar Exposition of the Constitution of the United States (1842):

           A President, who shall dare to violate the obligations of his solemn oath or affirmation of office, may escape human censure, nay, may even receive applause from the giddy multitude. But he will be compelled to learn, that there is a watchful Providence, that cannot be deceived; and a righteous Being, the searcher of all hearts, who will render unto all men according to their deserts. Considerations of this sort will necessarily make a conscientious man more scrupulous in the discharge of his duty; and will even make a man of looser principles pause, when he is about to enter upon a deliberate violation of his official oath.

Presidents have traditionally sworn the oath on a Bible (Washington kissed the Bible at his inaugural) and have ended with “So help me God,” though the Constitution requires none of these gestures. A suit requesting a court order to prohibit the chief justice from prompting the “So help me God” phrase was dismissed for lack of standing. Newdow v. Roberts (2010).

The clause is tightly linked with Article II’s Take Care Clause, which requires that the President “shall take Care that the Laws be faithfully executed.” The duty faithfully to execute the laws under the Constitution might be thought to presuppose a power to interpret what is to be executed: “to say what the law is,” to borrow a famous phrase from Chief Justice John Marshall. Indeed, some scholars—and presidents—have seized upon the clause as the font of the president’s power of “executive review,” the president’s coordinate power to interpret the Constitution and what is to be “preserved, protected, and defended,” even against conflicting interpretations by the legislative or judicial departments. The penultimate draft of the clause, referred by the Framers to the Committee of Style and Arrangement and reported by that committee, provides some support for this reading. That draft provided that the president act to the best of his “judgment and power,” instead of to the best of his “ability.” However, the Ninth Circuit has declared that the Presidential Oath of Office Clause does not allow the president to suspend the operation of laws that he believes are unconstitutional. Lear Siegler, Inc. v. Lehman (1988).

Finally, the “preserve, protect and defend” language of the Presidential Oath of Office Clause might be thought to place a special constitutional duty on the president to fight for the nation’s survival, whether Congress has declared war or not. So thought President Abraham Lincoln during the Civil War.

Vasan Kesavan

See Also

Article II, Section 3 (Take Care Clause)

Article VI, Clause 3 (Oaths Clause)

Suggestions for Further Research

Robert F. Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, 73 UMKC L. REV. 1 (2004)

Scott E. Gant & Bruce G. Peabody, Musings on a Constitutional Mystery: Missing Presidents and “Headless Monsters”?, 14 CONST. COMMENT. 83 (1997)

Joel K. Goldstein, The Presidency and the Rule of Law: Some Preliminary Explorations, 43 ST. LOUIS U. L.J. 791 (1999)

Paul Horwitz, Honor’s Constitutional Moment: The Oath and Presidential Transitions, 103 NW. U. L. REV. 1067 (2009)

Frederick B. Jonassen, Kiss the Book . . . You’re President . . . : “So Help Me God” and Kissing the Book in the Presidential Oath of Office, 20 WM. & MARY BILL RTS. J. 853 (2012)

Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1 (1993)

Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994)

Saikrishna Bangalore Prakash, The Executive’s Duty to Disregard Unconstitutional Laws, 96 GEO. L.J. 1613 (2008)

Significant Cases

Lear Siegler, Inc. v. Lehman, 842 F.2d. 1102 (9^th Cir. 1988)

Newdow v. Roberts, 603 F. 3d1002 (D.C. Cir. 2010)

Commander in Chief

           The President shall be Commander in Chief of the Army and Navy of the United States. . . .

(ARTICLE II, SECTION 2, CLAUSE 1)

The Commander in Chief Clause assures that there can be no military force beyond the president’s control. The military cannot be made an independent force (thus guaranteeing civilian authority over it), and it cannot be made to report to an entity other than the president (such as Congress, as under the Articles of Confederation). Further, as commander in chief, the president has authority over the deployment and operations of the military in peacetime, and over the conduct of military strategy, tactics and objectives once war has begun. In his discussion of the president’s powers in The Federalist No. 72, Hamilton observed that the “administration of government” falls “peculiarly within the province of the executive department.” That power includes the conduct of foreign affairs, the preparation of the budget, the expenditure of appropriated funds, and the direction of the military and “the operations of war.” As the Framers understood, success in the conduct of war demands the unique qualities of the president—unity, decisiveness, speed, secrecy, and energy.

Two substantial constitutional debates involve the Commander in Chief Clause. The first is whether the clause permits the president to initiate war without Congress’s approval. As discussed in connection with the Declare War Clause (Article I, Section 8, Clause 11), some scholars believe the president does have this independent power, while others believe that the Declare War Clause gives war-initiation power exclusively to Congress. As further noted in connection with the Declare War Clause, almost all scholars believe that the Commander in Chief Clause gives the president power to respond to attacks on the United States.

The second debate is the extent to which Congress can by statute or appropriations direct the way that the president controls the military. For example, Congress enacted or considered enacting statutes or restrictions on appropriations directing the president to take or refrain from taking specific actions in the War on Terrorism and in the conflict in Iraq. Congress of course has authority over the creation and supply of the military under Article I, Section 8—the legislature has no constitutional obligation to provide the weapons that the president wants to carry out his chosen war plans. It is less clear, however, whether and when Congress can intervene to compel the president to take particular actions regarding military operations. To some scholars, the president’s power under the Commander in Chief Clause is plenary, allowing no congressional intervention. Others believe that Congress’s various powers over war and the military allow a full range of congressional interventions—thus finding the president’s authority as commander in chief to be only residual, to be exercised in the absence of specific statutory direction. A third view holds that Congress has authority to restrict and direct the authority of the commander in chief in certain areas but not others.

Traditionally the courts treated decisions made by the president as commander in chief with great deference. Recent cases involving the War on Terrorism raised questions about the relationship between the commander in chief power and the courts. In Hamdi v. Rumsfeld (2004), the Supreme Court held that the writ of habeas corpus extended to the president’s decision to declare a U.S.-born detainee in the War on Terrorism an “enemy combatant.” Hamdan v. Rumsfeld (2006) found that the president’s unilateral creation of military commissions (specialized war crimes tribunals used in most major American wars) violated the Uniform Code of Military Justice enacted by Congress. In 2008, in Boumediene v. Bush, the Court held that habeas corpus extended even to non-citizen detainees held outside the United States at Guantanamo Bay, Cuba. In each case, strong dissents argued that the Court was interfering with the president’s traditional power as commander in chief.

John Yoo and Michael D. Ramsey

See Also

Article I, Section 8, Clause 11 (Marque and Reprisal)

Article I, Section 8, Clause 12 (Army Clause)

Article I, Section 8, Clause 13 (Navy Clause)

Article I, Section 8, Clause 15 (Militia Clause)

Article I, Section 8, Clause 16 (Organizing the Militia)

Article II, Section 2, Clause 1 (Commander of Militia)

Suggestions for Further Research

David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689 (2008)

David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 HARV. L. REV. 941 (2008)

Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047 (2005)

Robert J. Delahunty and John C. Yoo, Making War, 93 CORNELL L. REV. 123 (2007)

LOUIS FISHER, PRESIDENTIAL WAR POWER (2d ed. 2004)

LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION (2d ed. 1996)

H. JEFFERSON POWELL, THE PRESIDENT’S AUTHORITY OVER FOREIGN AFFAIRS: AN ESSAY IN CONSTITUTIONAL INTERPRETATION (2002)

Saikrishna Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV. 299 (2008)

Michael D. Ramsey, Response: Directing Military Operations, 87 TEX. L. REV. SEE ALSO 29 (2009)

John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167 (1996)

JOHN C. YOO, CRISIS AND COMMAND: A HISTORY OF EXECUTIVE POWER FROM GEORGE WASHINGTON TO GEORGE W. BUSH (2010)

JOHN C. YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005)

Significant Cases

The Prize Cases, 67 U.S. (2 Black) 635 (1863)

Johnson v. Eisentrager, 339 U.S. 763 (1950)

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

Boumediene v. Bush, 553 U.S. 723 (2008)

Commander of Militia

           The President shall be Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States. . . .

(ARTICLE II, SECTION 2, CLAUSE 1)

The Framers of the Constitution crafted a complex network of provisions dealing with the militia. They believed that there should be a national army, but that resources and politics dictated that the militia would provide the bulk of the forces needed to defend the country. Although they were sensitive to the fear of a standing army and the political concerns of the states, there was one principle on which they agreed: when the states’ militias were needed to defend the country, the President, and not the governors, would be in charge. The phrasing of the President’s power changed over the months in Philadelphia, but the exclusivity of the President’s power was never questioned. The most significant change came from Roger Sherman, who moved the addition “and of the Militia of the several States, when called into the actual service of the US.” This assured that the president could not take the militia away from the states except when properly called forth by Congress under Article I, Section 8, Clause 15.

Yet there remained the question of what the president could do with the militia. William Blackstone, in his influential Commentaries on the Laws of England (1765–1769), declared that the militia could not be deployed overseas. (The militia “are not compellable to march out of their counties, unless in case of invasion or actual rebellion within the realm, nor in any case compellable to march out of the kingdom.”) A possible inference is that, in the context of the American Constitution, any tendency of the executive to wage aggressive war (as the English kings were wont to do) is stymied—not only, it is agued by some, by the Declare War Clause—but also by the fact that the principal land force, the militia, could not be sent to fight on foreign soil. For that purpose, the president would need an army; and Congress firmly held the reins over the army, if only by virtue of the need for a recurring appropriation in every congressional election cycle. Whether that was the original understanding has not yet been conclusively determined. In any event, modern practice has allowed the militia (in its form as the National Guard) to be deployed overseas.

In 1792, Congress passed the Uniform Militia Act, also known as the “Calling Forth” act, permitting the president to call out the militia to put down insurrections or rebellions. This power was initially limited to those events that could not be handled by judicial proceedings or by marshals in the exercise of their duties. The act also required a district judge to certify that circumstances were beyond the control of lawful authority and required the president to alert the insurrectionists to end their activities before the militia could be called out. In the meantime, the government launched three major campaigns against the Indians in the Ohio Territory in 1790, 1791, and 1794. In each case, federal forces were supplemented by large numbers of militia volunteers. But it was the Whiskey Rebellion in the summer of 1794 that impelled George Washington to issue the first formal call for the militia to put down the threatened insurrection. Washington took personal command of the force of 12,950 militiamen from Pennsylvania, New Jersey, Virginia, and Maryland. No president since Washington has taken personal control of the militia when called into the active service of the federal government.

In 1795, Congress passed another militia act, aimed at giving the president the power to call out the state forces in the event of insurrection. This law did away with the certification requirements (but retained the requirement of alerting the insurrectionists to disperse) of the 1792 law and granted the president the authority to call forth the militia when the nation was invaded, in imminent danger of invasion, or when faced with “combinations” against the nation. The key provision of that law was: “That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth. . . .”

During the War of 1812, when President James Madison called up the militias, the New England states, opposed to the war and threatening secession, objected to the president’s powers. In response to a request by the governor of Massachusetts, the Supreme Judicial Court of Massachusetts issued an advisory opinion declaring that the governors or commanders in chief of the several states had the exclusive right to determine whether exigent circumstances existed for the militia to be called out. This decision effectively recognized a veto power of governors over the use of their respective state’s militia. It also stood the Constitution’s enumerated powers on their head. Article I, Section 8, Clause 15 and Article II, Section 2, Clause 1 specifically granted to Congress and the president, respectively, the power to call out and command the militia when needed in active service to the United States.

In response to the argument for state control of the militia, Secretary of State James Monroe argued that when the militia is called into the actual service of the United States, all state authority over that militia ends. The militia assumes a position within the regular standing army and is paid by the federal government. Its members become, effectively, United States soldiers. They are subject to the same control as regular army personnel, including command by regular army officers.

In 1827 the U.S. Supreme Court supported the Monroe position. In Martin v. Mott, Justice Joseph Story stated, “We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.” To cement further the right of the president to determine when to call forth the militia, Chief Justice Roger B. Taney declared in Luther v. Borden (1849) that not only is a decision by a president to call out the militia in response to an exigency not subject to state executive approval, but the decision is not subject to judicial review either.

Gubernatorial resistance to the president’s call for the militia reemerged during the Civil War. On April 15, 1861, President Abraham Lincoln called for seventy-five thousand militiamen for three-month terms. The governors of Maryland, Kentucky, Missouri, Tennessee, Arkansas, and North Carolina (the last three of which states eventually seceded) refused, although volunteer units from all those states ultimately fought for the Union. As the war progressed, the bulk of the army came from requisitions from the states and the draft. The militias, relatively small and often not well trained, were marginal.

After the Civil War, the militia fell into desuetude (except for a brief and unsuccessful attempt to constitute a militia, based mostly on the freedmen in the reconstructed South) until it began a slow transition into the National Guard. The National Defense Act of 1916 made the National Guard a component of the regular army. During World War I, President Woodrow Wilson drafted members of the National Guard into the regular army.

In 1957, resisting a federal court order, Governor Orval Faubus ordered portions of the Arkansas National Guard to prevent the entrance of black students into Little Rock Central High School. In the first use of the guard to maintain internal order since the Civil War, President Dwight Eisenhower placed the entire Arkansas National Guard under presidential control and ordered the guard to obey the president and not the governor. The Arkansas National Guard complied.

In the 1980s, governors again resisted a presidential call for the militia (National Guard). Some of them objected to the deployment of their states’ National Guard troops to Central America. Led by Minnesota governor Rudy Perpich, these governors withheld their consent to federally ordered National Guard active duty training, as was their prerogative under then current federal law. In response, Congress enacted the Montgomery Amendment to the National Defense Authorization Act for Fiscal Year 1987, which prohibited governors from withholding consent for National Guard active duty service outside the United States. Perpich filed suit against the Department of Defense, arguing that the Montgomery Amendment was unconstitutional because it infringed on the militia training authority granted to the states under Article I, Section 8, Clause 16. Perpich also sought to enjoin the use of Minnesota National Guard troops in any training outside the United States that did not have the governor’s consent. Ultimately, the Supreme Court upheld the supremacy of presidential control over the operations of the militia when called into actual service of the United States, even abroad, the example of Blackstone notwithstanding. Like James Monroe and Justice Joseph Story, the Court held that a state governor could not veto the use of a state militia when called upon by the nation in accordance with Congress’s constitutional power and the president’s constitutional authority.

Recent presidents have made more use of the National Guard as a reserve, calling units up for long periods of duty abroad in actions in the two Gulf Wars, Bosnia, and Afghanistan.

David F. Forte

See Also

Article I, Section 8, Clause 11 (Declare War)

Article I, Section 8, Clause 12 (Army Clause)

Article I, Section 8, Clause 14 (Military Regulations)

Article I, Section 8, Clause 15 (Militia Clause)

Article I, Section 8, Clause 16 (Organizing the Militia)

Article II, Section 2, Clause 1 (Commander in Chief)

Amendment II (To Keep and Bear Arms)

Suggestions for Further Research

JERRY COOPER, THE MILITIA AND THE NATIONAL GUARD IN AMERICA SINCE COLONIAL TIMES: A RESEARCH GUIDE (1993)

LAWRENCE DELBERT CRESS, CITIZENS IN ARMS: THE ARMY AND MILITIA IN AMERICAN SOCIETY TO THE WAR OF 1812 (1982)

JOHN K. MAHON, HISTORY OF THE MILITIA AND THE NATIONAL GUARD (1983)

WILLIAM H. RIKER, SOLDIERS OF THE STATES: THE ROLE OF THE NATIONAL GUARD IN AMERICAN DEMOCRACY (1957)

OTIS A. SINGLETARY, NEGRO MILITIA AND RECONSTRUCTION (1957)

C. EDWARD SKEEN, CITIZEN SOLDIERS IN THE WAR OF 1812 (1999)

Significant Cases

Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827)

Luther v. Borden, 48 U.S. (7 How.) 1 (1849)

Dukakis v. U.S. Dep’t of Defense, 686 F. Supp. 30 (D. Mass. 1988), aff’d 859 F.2d 1066 (1st Cir. 1988)

Perpich v. Dep’t of Defense, 496 U.S. 334 (1990)

Opinion Clause

           The President . . . 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. . . .

(ARTICLE II, SECTION 2, CLAUSE 1)

The Opinion Clause arose out of the debates at the Constitutional Convention regarding whether the president would exercise executive authority singly or in concert with other officials or privy councilors. A brief review of English custom illuminates the choices made by the Framers. Formally, parliamentary “ministers” were ministers to the king. In addition, all British citizens were “subjects” of the king, and the king could require any nobleman, judge, or member of Parliament to serve in his privy council and provide him with personal or official advice. By the end of the eighteenth century, however, the ministerial offices had assumed such practical and administrative power that it diminished the king’s responsibility for actions taken by the government. The king was increasingly expected to defer to his ministers’ decisions. The state of the English executive at the time of the framing was this: legally, the king could do no wrong; politically, the king was responsible for no administrative wrong.

At various stages during the convention, the Framers rejected proposals to divide or condition executive power. Their intent from contemporary records is clear: they wanted “[e]nergy in the executive,” as Alexander Hamilton put it in The Federalist No. 70; and they wanted to maximize presidential responsibility for executive decisions. Some of the Framers, including James Madison, desired a single executive but supported a Council of Revision—composed of the president and judges—to exercise the veto power. Rufus King explained why the proposal was rejected: “If the Unity of the Executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary [i.e., the veto] as to the Executive power.” Yet vesting all executive power in one person was enough of a break with English tradition to cause unease. Several delegates supported a constitutional “Privy Council” or “Council of State,” which could not bind the president but would provide him with advice.

One argument advanced against a privy council was that the department head most responsible for the matter that had been put to the council might evade his special share of responsibility for the decision. The Opinion Clause was born of this concern. The original version assumed the president would have a privy council but that he could “require the written opinions of any one or more of the [relevant] members [of the council] . . . [and] every officer abovementioned shall be responsible for his opinion on the affairs relating to his particular Department.” But the Framers rejected even a weak advisory council. Charles Pinckney concluded that: “The President shd. be authorized to call for advice or not as he might chuse. Give him an able Council and it will thwart him; a weak one and he will shelter himself under their sanction.” Later, a committee headed by Gouverneur Morris was told to consider the matter further. The committee also rejected the idea. Morris explained: “The Presidt. by persuading his Council to concur in his wrong measures, would acquire their protection for them.”

Instead, Morris proposed language that formed the basis of the current Opinion Clause, merely authorizing the president “to call for the opinions of the Heads of Departments, in writing.” To distinguish this proposal even further from that of a collegial council, the clause was later revised to specify that written opinions could be obtained “upon any Subject relating to the Duties of their respective Offices.” Thus modified, the clause does not encourage the president to seek a consensus from all department heads on any matter.

The resulting Opinion Clause prompted Alexander Hamilton to opine in The Federalist No. 74 that the clause added nothing to the president’s executive power: “This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.” Some scholars think, however, that the Opinion Clause is not redundant, but rather an example of an enumerated executive power demonstrating that the president does not possess unenumerated powers through the Executive Vesting Clause (Article II, Section 1, Clause 1). Others assert that that the president’s power in the Opinion Clause is limited to purely “executive departments” such as the early Departments of Foreign Affairs and War, and not to other congressionally created departments, such as Treasury, nor to so-called “independent” agencies. Although there is some evidence from congressional practice supporting the latter two interpretations, they conflict with drafting history that strongly reinforces the notion of a unitary executive, for there is more meaning in what the Framers rejected (i.e., limitations on the executive) than in what they settled on in the end.

The final version of the Opinion Clause adopted by the Convention, and confirmed through constitutional practice, reinforces the authority and accountability of an executive who is bound by law. The Framers’ rejection of a formal cabinet independent of the president prevents department heads from exercising an independent sphere of influence over policy and denies them a forum in which to enlist others in debates over the president’s policies. Instead, it was made explicit that the president possessed the typical management authority to require even department heads to prepare written reports for him on the performance of their official duties. In addition, the Opinion Clause contains a negative inference concerning a principal officer’s independence, reinforced by the Recommendations Clause of Article II, Section 3, which allows the president to recommend to Congress such measures “as he shall judge necessary and expedient.” The two clauses reflect the Constitution’s separation of powers structure by preventing Congress from requiring presidential appointees to report directly to Congress rather than to the president. As Chief Justice John Marshall noted in Marbury v. Madison (1803), “[t]o aid [the president] in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.” Congress can require reports from the respective departments, but Congress cannot interfere with prior presidential review of those reports and presidential control over what is transmitted to Congress.

As a result of the debates over the Opinion Clause and a privy council, the Constitution nowhere requires a formal cabinet. President George Washington found it prudent to organize his principal officers into a cabinet, and it has been part of the executive branch structure ever since. Nevertheless, no “prime minister” deflects the political accountability of the president. Presidents have used cabinet meetings of selected principal officers but to widely differing extents and for different purposes. Secretary of State William H. Seward and then-Professor Woodrow Wilson advocated use of a parliamentary-style cabinet government. But President Abraham Lincoln rebuffed Seward, and Woodrow Wilson would have none of it in his administration. Several twentieth-century presidents made pledges to use their “cabinets” as deliberative bodies, but Eisenhower was one of the few who did so.

Recent cabinets have grown unwieldy for effective deliberations, with up to twenty-five members including key White House staff, in addition to department and agency heads. President Ronald Reagan formed seven sub-cabinet councils to review many policy issues, and subsequent presidents have followed that practice. But most recent presidents have met infrequently with their entire cabinets. In an age when the president relies heavily on White House staff for immediate advice and assistance, presidents often use cabinet meetings to make the cabinet members feel more a part of the president’s inner circle or to increase their loyalty to the administration.

A cabinet that has no constitutional blessing may actually make it a more valuable tool than one constrained by constitutional design. There is more flexibility in the president’s choice of which officers and councilors should be included. Moreover, a cabinet that meets at the pleasure of the president will naturally be more mindful to serve his interests rather than their own or those of their departments. Thus, the Framers increased the likelihood that the president will obtain useful advice from his principal officers by leaving the advice structure entirely to his discretion.

Todd Gaziano

See Also

Article I, Section 7, Clause 3 (Presentment of Resolutions)

Article II, Section 1, Clause 1 (Executive Vesting Clause)

Article II, Section 2, Clause 2 (Appointments Clause)

Article II, Section 2 (A Note on Administrative Agencies)

Article II, Section 3 (Recommendations Clause; Take Care Clause)

Suggestions for Further Research

Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 VA. L. REV. 647 (1996)

Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004)

Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992)

Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994)

JAMES P. PFIFFNER, THE MODERN PRESIDENCY (3d ed. 2000)

Significant Cases

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

United States v. Germaine, 99 U.S. 508 (1879)

Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991)

Pardon Power

           The President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

(ARTICLE II, SECTION 2, CLAUSE 1)

The power to pardon is one of the least limited powers granted to the president in the Constitution. It includes the power to commute sentences to a lesser penalty. The only limits mentioned in the Constitution are that pardons are limited to offenses against the United States (i.e., not civil or state cases) and that they cannot affect an impeachment process. A reprieve is the commutation or lessening of a sentence already imposed; it does not affect the legal guilt of a person. A pardon, however, completely wipes out the legal effects of a conviction. A pardon can be issued from the time an offense is committed, and can even be issued after the full sentence has been served. It cannot, however, be granted before an offense has been committed, which would give the president the power to waive the laws.

The presidential power to pardon was derived from the prerogative of the English king, which dated from before the Norman Conquest. The royal power was absolute, and the king often granted a pardon in exchange for money or military service. Parliament tried unsuccessfully to limit the king’s pardon power, and it finally succeeded to some degree in 1701 when it passed the Act of Settlement, which exempted impeachment from the royal pardon power.

During the period of the Articles of Confederation, the state constitutions conferred pardon powers of varying scopes on their governors, but neither the New Jersey Plan nor the Virginia Plan presented at the Constitutional Convention included a pardon power for the chief executive. On May 29, 1787, Charles Pinckney introduced a proposal to give the chief executive the same pardon power as enjoyed by English monarchs, that is, complete power with the exception of impeachment. Some delegates argued that treason should be excluded from the pardon power. George Mason argued that the president’s pardon power “may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.” James Wilson answered that pardons for treason should be available and successfully argued that the power would be best used by the president. Impeachment was available if the president himself were involved in the treason. A proposal for Senate approval of presidential pardons was also defeated.

The development of the use of the pardon power reflects its several purposes. One purpose is to temper justice with mercy in appropriate cases; another is to do justice if new or mitigating evidence comes to bear on a person who may have been wrongfully convicted. Alexander Hamilton reflects this in The Federalist No. 74, in which he argues that “[h]umanity and good policy” require that “the benign prerogative of pardoning” be available to mitigate the harsh justice of the criminal code. The pardon power would provide for “exceptions in favor of unfortunate guilt.”

Chief Justice John Marshall in United States v. Wilson (1833) also commented on the benign aspects of the pardon power: “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate . . .” Another purpose of the pardon power focuses not on obtaining justice for the person pardoned, but rather on the public policy purposes of the government. For instance, James Wilson argued during the convention that “pardon before conviction might be necessary, in order to obtain the testimony of accomplices.” The public policy purposes of the pardon were echoed by Justice Oliver Wendell Holmes in Biddle v. Perovich (1927): “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme.”

Pardons have also been used for the broader public policy purpose of ensuring peace and tranquility in the case of uprisings and to bring peace after internal conflicts. Its use might be needed in such cases. As Alexander Hamilton argued in The Federalist No. 74, “in seasons of insurrection or rebellion there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Presidents have sought to use the pardon power to overcome or mitigate the effects of major crises that afflicted the polity. President George Washington granted an amnesty to those who participated in the Whiskey Rebellion; Presidents Abraham Lincoln and Andrew Johnson issued amnesties to those involved with the Confederates during the Civil War; and Presidents Gerald R. Ford and James Earl Carter granted amnesties to Vietnam-era draft evaders.

The scope of the pardon power remains broad, if not plenary. As Justice Stephen Field wrote in Ex parte Garland (1867),

           If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching [thereto]; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. . . . A pardon reaches both the punishment prescribed for the offence and the guilt of the offender . . . so that in the eye of the law the offender is as innocent as if he had never committed the offence.

Because its purposes are primarily public, a pardon is valid whether accepted or not, unless the president places conditions on the pardon or commutation. But a recipient of a pardon or commutation necessarily accepts the conditions if he accepts the pardon or commutation itself. Schick v. Reed (1974).

A pardon is an official executive act. According to United States v. Klein (1871), Congress cannot limit the president’s grant of an amnesty or pardon, but it can grant other or further amnesties itself. Though pardons have been litigated, the Court has consistently refused to limit the president’s discretion, so long as the president has attached “conditions which do not in themselves offend the Constitution.” Schick v. Reed.

The possibility of a president’s pardoning himself for a crime is not precluded by the explicit language of the Constitution, and during the summer of 1974, some of President Richard M. Nixon’s lawyers argued that it was constitutionally permissible. But a broader reading of the Constitution and the general principles of the traditions of United States law might lead to the conclusion that a self-pardon is constitutionally impermissible. It would seem to violate the principles that a man should not be a judge in his own case; that the rule of law is supreme and the United States is a nation of laws, not men; and that the president is not above the law.

The pardon power has been and will remain a powerful constitutional tool of the president. It can be an occasion for corruption. Yet, not only is the pardon power free of the normal checks and balances of the constitutional order, but even the political checks on the president in awarding pardons are limited. President Ford did pay a political price in pardoning Richard Nixon, but Presidents William J. Clinton and George W. Bush issued their most controversial pardons as they were leaving office, when they were immune from political accountability.

Only the wisdom and moral sense of the president can ensure its appropriate use.

James Pfiffner

See Also

Article I, Section 2, Clause 5 (Impeachment)

Suggestions for Further Research

David Gray Adler, The President’s Pardon Power, in INVENTING THE AMERICAN PRESIDENCY (Thomas E. Cronin ed., 1989)

EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787–1957 (5th ed. 1984)

William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 WM. & MARY L. REV. 475 (1977)

Brian C. Kalt, Pardon Me? The Constitutional Case Against Presidential Self-Pardons, 106 YALE L.J. 779 (1996)

Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. CRIM. L. & CRIMINOLOGY 593 (2012)

Significant Cases

United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833)

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867)

United States v. Klein, 80 U.S. (13 Wall.) 128 (1871)

Biddle v. Perovich, 274 U.S. 480 (1927)

Schick v. Reed, 419 U.S. 256 (1974)

Treaty Clause

           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. . . .

(ARTICLE II, SECTION 2, CLAUSE 2)

The Treaty Clause has a number of striking features. It gives the Senate, in James Madison’s terms, a “partial agency” in the president’s foreign-relations power. The clause requires a supermajority (two-thirds) of the Senate for approval of a treaty, but it gives the House of Representatives, representing the “people,” no role in the process.

Midway through the Constitutional Convention, a working draft had assigned the treaty-making power to the Senate, but the Framers, apparently considering the traditional role of a nation-state’s executive in making treaties, changed direction and gave the power to the president, with the proviso of the Senate’s “advice and consent.” In a formal sense, then, treaty-making became a mixture of executive and legislative power. Most people of the time recognized the actual conduct of diplomacy as an executive function, but under Article VI treaties were, like statutes, part of the “supreme Law of the Land.” Thus, as Alexander Hamilton explained in The Federalist No. 75, the two branches were appropriately combined:

           The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.

Another reason for involving both president and Senate was that the Framers thought American interests might be undermined by treaties entered into without proper reflection. The Framers believed that treaties should be strictly honored, both as a matter of the law of nations and as a practical matter, because the United States could not afford to give the great powers any cause for war. But this meant that the nation should be doubly cautious in accepting treaty obligations. As James Wilson said, “Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.”

The fear of disadvantageous treaties also underlay the Framers’ insistence on approval by a two-thirds majority of the Senate. In particular, the Framers worried that one region or interest within the nation, constituting a bare majority, would make a treaty advantageous to it but prejudicial to other parts of the country and to the national interest. An important episode under the Articles of Confederation had highlighted the problem. The United States desired a trade treaty with Spain and sought free access to the Mississippi River through Spanish-controlled New Orleans. Spain offered favorable trade terms, but only if the United States would give up its demands on the Mississippi. The Northern states, which would have benefited most from the trade treaty and cared little about New Orleans, had a majority, but not a supermajority, in the Continental Congress. Under the Articles of Confederation, treaties required assent of a supermajority (nine out of thirteen) of the states, and the South was able to block the treaty. It was undoubtedly that experience that impelled the Framers to carry over the supermajority principle from the Articles of Confederation, as the Southern states (and many people in the North) concluded that the supermajority requirement had prevented an unwise treaty.

At the Convention, several prominent Framers argued unsuccessfully to have the House of Representatives included. But most delegates thought that the House had substantial disadvantages when it came to treaty-making. For example, as a large body, the House would have difficulty keeping secrets or acting quickly. The small states, wary of being disadvantaged, also preferred to keep the treaty-making power in the Senate, where they had proportionally greater power.

The ultimate purpose, then, of the Treaty Clause was to ensure that treaties would not be adopted unless most of the country stood to gain. True, treaties would be more difficult to adopt than statutes, but the Framers realized that an unwise statute could simply be repealed, while an unwise treaty remained a binding international commitment that would not be so easy to unwind.

Other questions, however, remained. First, are the provisions of the clause exclusive—that is, does it provide the only way that the United States may enter into international obligations?

While the clause does not say, in so many words, that it is exclusive, its very purpose—not to have any treaty disadvantage one part of the nation by a bare majority’s approval—suggests that no other route is possible, whether through the president’s acting alone or through ordinary legislation with the popularly elected House’s having a role. Further, the drafting and ratifying debates reflect a broad consensus that the clause was the only constitutional avenue for treaty-making. Nonetheless, while it appears that the Treaty Clause was, in the original understanding, the exclusive way to make treaties, the Framers also apparently recognized a class of less-important international agreements, not rising to the level of “treaties,” which could be approved in some other way. Article I, Section 10, in describing restrictions upon the states, speaks of “Treat[ies]” and “Agreement[s]. . .with a foreign Power” as two distinct categories. Some scholars believe this shows that not all international agreements are treaties, and that these other agreements would not need to go through the procedures of the Treaty Clause. Instead, the president, in the exercise of his executive power, could conclude such agreements on his own. This exception for lesser agreements would have to be limited to “agreements” of minor importance, or else it would provide too great an avenue for evasion of the protections the Framers placed in the Treaty Clause.

A second question is how the president and Senate should interact in their joint exercise of the treaty power. Many Framers apparently thought that the president would oversee the actual conduct of diplomacy, but that the Senate would be involved from the outset as a sort of executive council advising the president. This was likely a reason that the Framers thought the smaller Senate was more suited than the House to play a key role in treaty-making. In the first effort at treaty-making under the Constitution, President George Washington attempted to operate in just this fashion. He went to the Senate in person to discuss a proposed treaty before he began negotiations. What is less clear, however, is whether the Constitution actually requires this process, or whether it is only what the Framers assumed would happen. The Senate, of course, is constitutionally authorized to offer “advice” to the president at any stage of the treaty-making process, but the president is not directed (in so many words) as to when advice must be solicited. The Appointments Clause, which appears in the same sentence of Article II, Section 2, as the Treaty Clause, also requires the “advice and consent of the Senate,” but it seems evident (and post-ratification practice confirms) that this is satisfied by a Senate vote on a finalized presidential proposal and does not require the Senate’s “advice” throughout the selection process. As we shall see, this uncertainty has led, in modern practice, to a very different procedure than some Framers envisioned. It seems clear, however, that the Framers expected that the Senate’s “advice and consent” would be a close review and not a mere formality, as they thought of it as an important check upon presidential power.

A third difficult question is whether the Treaty Clause implies a Senate power or role in treaty termination. Scholarly opinion is divided, and few Framers appear to have discussed the question directly. One view sees the power to make a treaty as distinct from the power of termination, with the latter being more akin to a power of implementation. Since the Constitution does not directly address the termination power, this view would give it to the president as part of the president’s executive powers to conduct foreign affairs and to execute the laws. When the termination question first arose in 1793, Washington and his cabinet, which included Hamilton and Thomas Jefferson, embraced this view. All of them thought Washington could, on his own authority, terminate the treaty with France if necessary to keep the United States neutral.

An alternative view holds that, as a matter of the general eighteenth-century understanding of the legal process, the power to take an action (such as passing a statute or making a treaty) implies the power to undo the action. This view would require the consent of the president and a supermajority of the Senate to undo a treaty. There is, however, not much historical evidence that many Framers actually held this view of treaty termination, and it is inconsistent with the common interpretation of the Appointments Clause (under which Senate approval is required to appoint but not to remove executive officers).

A third view is that Congress as a whole has the power to terminate treaties, based on an analogy between treaties and federal laws. When the United States first terminated a treaty in 1798 under President John Adams, this procedure was adopted, but there was little discussion of the constitutional ramifications. Moreover, when there is a conflict between a statute and a treaty, the Supreme Court has concluded that for purposes of U.S. law the last expression of the sovereign will controls, so that a later-enacted statute overrides an earlier-enacted treaty and vice versa. The Cherokee Tobacco (1870).

Finally, there is a question of the limits of the treaty power. A treaty presumably cannot alter the constitutional structure of government, and the Supreme Court has said that executive agreements—and so apparently treaties—are subject to the limits of the Bill of Rights just as ordinary laws are. Reid v. Covert (1957). In Geofroy v. Riggs (1890), the Court also declared that the treaty power extends only to topics that are “properly the subject of negotiation with a foreign country.” However, at least in the modern world, one would think that few topics are so local that they could not, under some circumstances, be reached as part of the foreign-affairs interests of the nation. Some scholars have argued that treaties are limited by the federalism interests of the states. The Supreme Court rejected a version of that argument in Missouri v. Holland (1920), holding that the subject matter of treaties is not limited to the enumerated powers of Congress. The revival of interest in federalism limits on Congress in such areas as state sovereign immunity, see Seminole Tribe of Florida v. Florida (1996), and the Tenth Amendment, see Printz v. United States (1997), raises the question whether these limits also apply to the treaty power, but the Court has not yet taken up these matters.

Turning to modern practice, the Framers’ vision of treaty-making has in some ways prevailed and in some ways been altered. First, it is not true—and has not been true since George Washington’s administration—that the Senate serves as an executive council to advise the president in all stages of treaty-making. Rather, the usual modern course is that the president negotiates and signs treaties independently and then presents the proposed treaty to the Senate for its approval or disapproval. Washington himself found personal consultation with the Senate to be so awkward and unproductive that he abandoned it, and subsequent presidents have followed his example.

Moreover, the Senate frequently approves treaties with conditions and has done so beginning with the Washington administration. If the president makes clear to foreign nations that his signature on a treaty is only a preliminary commitment subject to serious Senate scrutiny, and if the Senate takes seriously its constitutional role of reviewing treaties (rather than merely deferring to the president), the check that the Framers sought to create remains in place. By going beyond a simple “up-or-down” vote, the Senate retains some of its power of “advice”: the Senate not only disapproves the treaty proposed by the president but suggests how the president might craft a better treaty. As a practical matter, there is often consultation between the executive and members of the Senate before treaties are crafted and signed.

A more substantial departure from the Framers’ vision may arise from the practice of executive agreements. Presidents have made minor agreements on their own authority since soon after ratification, and some scholars find this practice consistent with the original meaning of the Constitution. Article I, Section 10 indicates that the Framers recognized a category of “agreements” that did not rise to the level of “treaties,” because individual states in the Union are prohibited from making the latter but can make the former with the consent of Congress. The president’s Article II, Section 1, “executive power” thus might be understood to encompass the power to make agreements that are not treaties (although other scholars doubt that the grant of “executive power” was intended to convey this or any other substantive power).

Although initially a minor diplomatic tool, executive agreements increased enormously in their frequency and importance during the New Deal and World War II. After the Second World War, a number of important agreements were concluded by the president and approved by a majority of both houses of Congress without being submitted for the Senate’s supermajority approval. According to the Restatement (Third) of the Foreign Relations Law of the United States, Section 303 (1987), the president may validly conclude executive agreements that: (1) cover matters that are solely within his executive power, or (2) are made pursuant to a treaty, or (3) are made pursuant to a legitimate act of Congress. Section 303 further states that treaties and congressional-executive agreements are generally regarded as fully interchangeable as constitutional methods of agreement making, and many scholars continue to find this statement an accurate assessment.

When the president acts pursuant to a prior treaty, there seems to be little tension with the Framers’ vision, as Senate approval has, in effect, been secured in advance. The modern practice of congressional-executive agreements, by which some international agreements have been made by the president and approved (either in advance or after the fact) by a simple majority of both houses of Congress, rather than two-thirds of the Senate, is more troubling. In modern times, post-signature approval by Congress has been especially common for trade agreements, such as the North American Free Trade Agreement (NAFTA), the agreement establishing the World Trade Organization, and other bilateral and regional free trade agreements. International trade, especially tariffs, is an area of Congress’s particular constitutional interest, and congressional-executive agreements, at least with respect to trade matters, are now well established. Some scholars regard two cases from the late nineteenth and early twentieth centuries as indirectly approving congressional-executive agreements in the trade area, although the Court did not elaborate its rationale. Field v. Clark (1892); B. Altman & Co. v. United States (1912). More recently, one court of appeals found a prominent court challenge to NAFTA to be a non-justiciable “political question.” Made in the USA Foundation v. United States (2001). The practice now appears so settled that it is unlikely to be overturned or even substantially questioned.

On the other hand, arguments for “complete interchangeability”—that is, claims that anything that can be done by treaty can be done by congressional-executive agreement—seem counter to the Framers’ intent and unconfirmed by modern practice. The Framers carefully considered the supermajority rule for treaties and adopted it in response to specific threats to the Union; finding a complete alternative to the Treaty Clause would in effect eliminate the supermajority rule and make important international agreements easier to adopt than the Framers wished. Despite the rise of congressional-executive agreements, Article II, Section 2, treaties remain an important part of U.S. international agreement-making. Outside the trade area, in recent years the most important international agreements—including in critical areas such as arms control, human rights, the environment, tax, and extradition—have been submitted for the Senate’s advice and consent under the Treaty Clause. The Senate has refused to approve several key high-profile agreements, including the Comprehensive Nuclear Test Ban Treaty and the Law of the Sea Treaty, and it has not been thought that these refusals could be avoided through an alternative means of agreement-making. At the same time, agreements made by the president on the basis of prior congressional approval (often indirect or implicit approval) remain the most numerous type of U.S. international agreement, although typically they involve less important matters. Recent scholarship has challenged the Restatement’s claim of complete equivalence between treaties and congressional-executive agreements, but there has not been consensus upon the appropriate constitutional roles of the two forms of agreement-making.

The third type of executive agreement is one adopted by the president without formal approval by either the Senate or Congress as a whole. The Supreme Court and modern practice embrace the idea that the president may under some circumstances make these so-called sole executive agreements. United States v. Belmont (1937); United States v. Pink (1942). But the scope of this independent presidential power remains a serious question. The Pink and Belmont cases involved agreements relating to the recognition of a foreign government, a power closely tied to the president’s textual power to receive ambassadors (Article II, Section 3). The courts have consistently permitted the president to settle foreign claims by sole executive agreement, but at the same time have emphasized that Congress has acquiesced in the practice. Dames & Moore v. Regan (1981); American Insurance Ass’n v. Garamendi (2003); Medellin v. Texas (2008).

The president is also widely believed to have some executive agreement-making power in military affairs flowing from his power as commander in chief. Beyond this, the modern limits of the president’s ability to act independently in making international agreements have not been explored by the courts, although modern scholarship tends to be critical of an expansive presidential power to make sole executive agreements, and the Court in the Medellin case seemed to read it narrowly, at least where it would have implications for domestic U.S. law.

With respect to treaty termination, modern practice allows the president to terminate treaties on his own, at least where termination is permitted by a treaty’s terms. In noteworthy episodes, President James Earl Carter terminated the Mutual Defense Treaty between the United States and the Republic of China (Taiwan) in 1980, and President George W. Bush terminated the Anti-Ballistic Missile Treaty with the Soviet Union in 2002, six months after announcing that the United States would withdraw from that treaty. Some senators objected to President Carter’s actions, but the Supreme Court rebuffed their challenge in Goldwater v. Carter (1979), albeit without a clear explanation of its holding. President Bush’s action was criticized by some scholars but received general acquiescence and some academic defense. In light of the consensus early in George Washington’s administration, it is probably fair to say that this sort of presidential treaty termination does not obviously depart from the original understanding, inasmuch as the Framers were much more concerned about checks upon entering into treaties than they were about checks upon terminating them. On the other hand, the president’s constitutional ability to terminate or suspend treaties in violation of their terms remains more contested because of the president’s textual obligation to faithfully execute the laws (as treaties are declared to be laws by Article VI). A proposal early in the George W. Bush administration to “suspend” the Geneva Conventions on the treatment of prisoners of war, as applied to terrorism suspects determined to be “unlawful combatants” in the war on terror, was sharply criticized on this ground and ultimately not adopted by the president. Some scholars would say, however, that the president’s treaty termination power extends even to violating treaties, especially treaties in core areas of presidential power such as the military and national defense.

Michael D. Ramsey

See Also

Article I, Section 10 (Compact Clause)

Article II, Section 1, Clause 1 (Executive Vesting Clause)

Article II, Section 2, Clause 2 (Appointments Clause)

Article VI, Clause 2 (Supremacy Clause)

Suggestions for Further Research

Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995)

DAVID GRAY ADLER, THE CONSTITUTION AND THE TERMINATION OF TREATIES (1986)

Arthur Bestor, Respective Roles of the Senate and President in the Making and Abrogation of Treaties: The Original Intent of the Framers of the Constitution Historically Examined, 55 WASH. L. REV. 1 (1979)

Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390 (1998)

Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. PA. L. REV. 399 (2000)

Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573 (2007)

Brannon P. Denning & Michael D. Ramsey, American Insurance Association v. Garamendi and Executive Preemption in Foreign Affairs, 46 WM. & MARY L. REV. 825 (2004)

David F. Forte, The Foreign Affairs Power: The Dames & Moore Case, 31 CLEVELAND ST. L. REV. 43 (1982)

David Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075 (2000)

Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 YALE L.J. 1236 (2008)

Duncan B. Hollis & Joshua J. Newcomer, “Political” Commitments and the Constitution, 49 VA. J. INT’L L. 507 (2009)

Andrew T. Hyman, The Unconstitutionality of Long-Term Nuclear Pacts that are Rejected by Over One-Third of the Senate, 23 DENV. J. INT’L L. & Pol’y 313 (1995)

Derek Jinks and David Sloss, Is the President Bound by the Geneva Conventions?, 90 CORNELL L. REV. 97 (2004)

Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. ILL. L. REV. 1 (2006)

Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy, 54 YALE L.J. 181 [Part I], & 534 [Part II] (1945)

John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 TEX. L. REV. 703 (2002)

Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001)

Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, 1 PERSP. AM. HIST. (n.s.), 233–81 (1984)

MICHAEL D. RAMSEY, THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS, Chs. 8–10 & 15 (2007)

Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. REV. 133 (1999)

Michael D. Ramsey, Missouri v. Holland and Historical Textualism, 73 MISSOURI L . REV. 969 (2008)

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, Section 303 (1987)

1 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE & PROCEDURE §6.7 (5th ed. 2012)

Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 TEX. L. REV. 961 (2001)

Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 COLUM. L. REV. 403 (2003)

Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995)

John C. Yoo, Laws as Treaties? The Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757 (2001)

John C. Yoo, Rational Treaties: Article II, Congressional-Executive Agreements, and International Bargaining, 97 CORNELL L. REV. 1 (2011)

Significant Cases

The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870)

De Geofroy v. Riggs, 133 U.S. 258 (1890)

Field v. Clark, 143 U.S. 649 (1892)