Its Sources and Its Application
Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, 75
75 In Woodrow Wilson's "History of the American People" (Vol.3, p.71) it is pointed out that the laws of the new government were to be imperative instead of advisory; "It was provided with the Executive the Confederation had lacked; a person in whose authority should be concentrated the whole administrative force of its government."
In Green's "History of the English People" it is stated that Cromwell's experience with the Long Parliament (1640-1660) confirmed his belief in the need of an executive power, entirely apart from the legislature, "as a condition of civil liberty."
In the examination of Article 1, relating to the Legislative Department of the government, it has been seen that the President has a great power in that department as well as in his own, in approving or vetoing bills passed by the Senate and the House of Representatives. He has an influence in the Judicial Department, too, for he appoints 89 the judges; but, of course, only with the approval of the Senate.
He is as much a creation of the Constitution as the Legislative Department (Congress) or the Judicial Department (the supreme Court and inferior courts), and he is therefore as independent of both as they are of each other and of him. But for misconduct he may be impeached by the House and tried by the Senate, The Chief Justice presiding 17 at the trial.
It was the intention of the Founders of the Republic that the Executive (President) should be a strong branch of the government. While the Colonies had had more than enough of a kingly executive wielding great and arbitrary power in a stubborn way, they had later learned from experience with governors of the States under the Articles of Confederation (1781-1789) that an executive with defined and limited powers is essential to good government. In those days the legislature was most feared as possible usurper of power. The lawless record of the Long Parliament of England was only a century and a half away, while many acts of later Parliament were believed to be transgressions of both constitutional and natural rights. James Otis and other colonial leaders declared that Parliament enacted laws against the Colonies "which neither God nor man ever empowered them to make." Hence the check of the President's veto, and the numerous definite limitations upon the power of Congress.
When the work of framing Article II had been done some thought that a monarch had been set up in the President; but, of course, that was unreasonable, as the Constitution provides for his election by popular vote, as he cannot raise a dollar for an army or for any other purpose, as he cannot declare war, as he is subject to removal by impeachment, and as he can do but very little beyond executing the laws of the Legislative Department (Congress). But within his sphere he is powerful and independent. "Abraham Lincoln," wrote James Bryce, "wielded more authority than any single Englishmen has done since Oliver Cromwell." But much of Lincoln's war power, and particularly that for the use of which he was most criticized, the suspension of the privilege of the writ of habeas corpus was given to him by Congress for the term of the war only. So in 1917 Congress gave to President Wilson extraordinary powers for prosecuting the war against Germany.
In the Constitutional Convention many favored a plural Executive, consisting of two or more men. Jefferson, who was not in the Convention, favored a one man Executive, pointing out that "A Committee of the States" provided for in the Articles of Confederation to act during recess of Congress "quarreled very soon, split into two parties, abandoned their post, and left the Government without any visible head until the next meeting of Congress." In the "Federalist" a single executive was advocated by Hamilton because of "decision, activity, secrecy, and dispatch" and because plurality "tends to conceal faults and destroy responsibility."
The length of the term and whether there should be more than one term were much debated. A resolution was passed by the Convention that the President be not eligible for reelection, Washington voting against it. Jefferson wrote strongly for one term, but he lived to change his mind and serve two terms. Later, he wrote that the example of four Presidents retiring at the end of eight years would have "the force of precedent and usage" against any man who might seek a third term. President Grant sought a third term in 1880, but he was defeated in the Republican nominating convention. Theodore Roosevelt, who served three years of the second term of McKinley and a four year term thereafter, sought a third in 1912. Failing to secure the nomination in the Republican convention, he ran on a third party ticket and lost. Franklin D. Roosevelt was the first president to be elected for a third term, when he ran for a third time in 1940.
Although the Constitutional Convention passed a resolution for one term, the committee to which it was finally referred never reported it back. Terms were proposed ranging in length from during good behavior down to three years. The Convention fixed the term at seven years, but the report came back from the committee showing four years, not disclosing, however, the reason for the change.
In the first Congress under the new order (1789) consideration was given to choosing titles for the President and Vice President. "His Excellency" and "His Highness" and other titles were suggested, but as the House of Representatives had already addressed him simply as The President, it was finally resolved to adhere to his constitutional title, "President of the United States of America."
to be elected, as follows 76
76 Over and over the Constitutional Convention debated the question of how the President should be elected. It was proposed that he be chosen by Congress; by "electors chosen by the people in election districts"; by the governors of the States; by the Senate; and by the votes of all the people. The suggestion that the people could choose the President was described as "vicious", while Mr. Wilson of Pennsylvania stood staunchly for the popular vote. James Madison said that "if it is a fundamental principle of free government that the legislative, executive and judiciary powers shall be separately exercised, it is equally so that they be independently exercised"; and he declared that there is even greater reason why the Executive should be independent of the Legislative branch than why the Judiciary should be. Although at first the Convention voted that Congress should elect the President, it was, after full discussion of a question "the most difficult of all which we have had to decide", concluded to choose by the electors mentioned in the next paragraph, probably following the provision of the Constitution of Maryland for the election of State senators.
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: 77
77 This is the "electoral vote" of a State. Those of all the States together make the vote of the so-called "electoral college." the vote of a State consists of one vote for each of the two senators and one vote for each representative. When the number of members in the National House of Representatives is changed by the growth of population, this necessarily increases the number of votes in the "electoral college." When Washington was first elected (1788) there was a total of sixty-nine electoral votes, that being the number of senators and representatives of the States participating, New York having failed to choose electors and Rhode Island and North Carolina not yet having ratified the Constitution. In 1996 there are 535 electoral votes in all the United States, the number of senators being 100 and the House of Representatives membership has remained fixed since 1921 at 435.
It was the intention of the Constitutional Convention that the electors, chosen as each State might think the best way, should meet and vote their individual preferences, thus excluding the influence of Congress, and also the influence of the voters at large, who were thought incompetent to chose a President; and that is the way Washington was elected twice and Adams once. But during the administration of Adams, friends of Jefferson in Congress held a conference or caucus and announced him as their candidate. This became the settled method of announcement. Later the caucus was superseded by the party convention, which adopted a platform and nominated candidates, a method which still prevails.
In the beginning some of the States chose their electors by their legislatures, some according to districts, and some otherwise. Now they are chosen by ballot of the whole people. On the same ballot are the names of the presidential and vice-presidential candidates of the party, for whom the electors are expected (though not obliged by the Constitution) to vote.
but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. [The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.]" 78
78 This paragraph in brackets was superseded on September 25, 1804, when the Twelfth Amendment was promulgated. The paragraph is retained here for its historic value. The electors then voted for persons, not for a President and a Vice President. Of the persons voted for they could not designate the one they preferred for the chief office and the one for second place. The candidate receiving the highest number of votes became President. The next highest number made the Vice President regardless of political belief. Thus all the electors voted for George Washington. The next number in size voted for John Adams. That made Washington President and Adams Vice President. By that method John Adams of the Federalist (or National) party later (1797) became President, receiving seventy-one electoral votes, and Thomas Jefferson, an intense anti-Federalist, Vice President, sixty-eight votes being the next highest number. The anti-Federalists were, in addition to being opposed to a strong National (as distinguished from State) government, in favor of intimate relations with the new Republic of France, while the Federalists declared that all foreign alliances must be avoided. In his Farewell Address (September 17, 1796) Washington spoke repeatedly and powerfully against implicating ourselves in European affairs. Such conflict of opinion and the consequent want of harmony within the administration made an amendment to the Constitution necessary. In the presidential election of 1800 Thomas Jefferson and Aaron Burr received seventy- three electoral votes each. The election therefore went to the House of Representatives, in which, after thirty-five ballotings, Jefferson was chosen. That made Burr Vice President, for "in every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be Vice President." The changes made will be considered in the study of the Twelfth Amendment. 165
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. 79
79 As elections in different States were held at different times, Congress acted (1872) under this clause and directed that the electors be appointed in each State "on the Tuesday next after the first Monday in November in every fourth year"; and the electors are required to "meet and give their votes on the second Monday in January next following their appointment at such place in each State as the legislature of such State shall direct", usually the capital being by the State legislature designated as the place.
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. 80
80 Many of foreign birth who had helped to create the United States would have been rendered ineligible had not the provision been inserted making eligible those of foreign birth who at the time of the adoption of the Constitution were citizens of the United States. The lapse of time long since removed that class and left the excepting clause the mere record of an interesting historic fact.
Seven of the signers of the Constitution were foreign born: James Wilson, Robert Morris and Thomas Fitzsimons of Pennsylvania, Alexander Hamilton of New York, William Paterson of New Jersey, James McHenry of Maryland, and Pierce Butler of South Carolina.
Some members of the Constitutional Convention argued for a financial qualification also. It was suggested that the President should be worth in property at least $100,000. The proposal was rejected. The first President was a man of large means. Most of the Presidents have been poor in property.
It is an interesting fact that the one-House Congress sitting under the Articles of Confederation passed, while the Constitutional Convention was in session (July I3, 1787), "an ordinance for the government of the territory northwest of the river Ohio" (now Ohio, Indiana, Illinois, Michigan, and Wisconsin) in which it was provided that the governor to be appointed by Congress should, besides being a resident of the district, "have a freehold estate therein in 500 acres of land while in the exercise of his office." The judges of the court created were each required to own a like area. The belief then was common that ownership of property added to stability of character and citizenship.
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." 81
81 Congress has made no provision, evidently believing it unnecessary under the foregoing language, for the performance of the duties of the President in time of his inability alone.
For nearly three months after being shot (July , 2 1881) President Garfield was unable to perform the duties of his place, but Vice President Arthur did not because of that "inability" assume "the powers or duties of the said office." After the President's death (September 19, 1881) Mr. Arthur succeeded to the post. In 1919 - 1920 President Wilson's sickness caused such "inability" for several months that not even Cabinet officers or representatives of foreign nations were permitted to see him. The language of the Constitution clearly expresses the intent that in case of such inability, even when temporary, the Vice President shall discharge the duties of the office. The supreme Court of New Hampshire held under a similar provision in the constitution of that State that the governor's office was "vacant," when his temporary inability from sickness and the needs of public service required the duties to be performed by a substitute, and that in such circumstances the President of the State Senate could be compelled by writ of mandamus from court to assume and discharge the duties. In 1948 Congress enacted that if for reason of death, resignation, removal, inability, or failure to qualify, there is neither President nor Vice President to discharge the office, the Speaker of the House shall resign and act as President; if there be no Speaker, the President pro tempore of the Senate shall resign and act: in either case to the end of the term. On failure of both President-elect and Vice President-elect to qualify, any officer named shall serve only until a President or a Vice President qualifies. Should there be no President pro tempore to act, a member of the Cabinet shall serve, beginning with the Secretary of State.
The Constitution of the United States of Brazil (1890) is more clear than ours and provides that the Vice President shall take the place of the President "in case of temporary disability and succeed him in case of vacancy.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, 82
82 The first Congress, by an Act of September 24, 1789, fixed the salary of the President at $25,000 a year.
The Act of March 3, 1873, doubled President Grant's salary the day before his second term began and increased those of the Vice President, the members of the Cabinet, the Justices of the supreme Court, and the members of Congress themselves. It was made retroactive as to Congressmen. This was contrary to popular opinion and also to the practice of legislators in the States not to increase their compensation during the term for which they were elected. Owing to public disapproval, one of the first steps of the next Congress was to reduce (January 20, 1874) all of the advances of salaries except those of the President and the Justices of the supreme Court, the Constitution forbidding 98 Congress to diminish those. In 1909 the salary of the President was advanced to $75,000, with an allowance from time to time for traveling expenses such as Congress may deem necessary and not exceeding $25,000 a year. President Washington declined a salary.
See Note 33 for advances of Congressional salaries.
and he shall not receive within that Period any other Emolument from the United States, or any of them. 83
83 Of the provisions of this paragraph Alexander Hamilton wrote in the "Federalist" (No. LXXIII): "They [Congress] can neither weaken his fortitude by operating upon his necessities, nor corrupt his integrity by appealing to his avarice...., Nor will he be at liberty to receive any other emolument than that which may have been determined by the first act. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution."
Before he enter on the Execution of his Office, he shall take the following Oath 84 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."
84 The oath is usually administered at the Capitol by the Chief Justice of the United State "before" the President-elect takes office on Jan. 20. But it may be taken elsewhere and before any officer empowered by law to administer oaths. Prior to the ratification of Amendment XX, the president's term of office began on March 4th. President Grant's second term expired on Sunday, March 4, 1877 and Rutherford B. Hayes took the oath at the White House on Saturday and again at the Capitol on Monday. Upon the death of President Garfield (September 19, 1881) the oath was taken by Vice President Arthur in New York City and later he took it again in Washington.
An interesting note, John Gaillard, a Senator from South Carolina, served as President for one day when President James Monroe refused to take the oath of office beginning his second term on March 4, 1821, a Sunday, taking the oath on Monday, March 5.
Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called, into the actual Service of the United States; 85
85 This is a constitutional right which Congress has no power to diminish. In the Convention it was proposed that he be not permitted to head an army in the field, but the proposal was rejected. In practice, however; no President has led an army or commanded a navy. The Secretary of War and the Secretary of the Navy carry out the wishes of the commander in chief. The experience of General Washington during the Revolution with the dilatory methods of Congress probably brought the Convention to the idea that there should be no divided authority when troops are "called into the actual service of the United States." Some of the early Constitutions of the States made the governors commanders; and the ordinance creating Northwest Territory (1787) made the governor "commander in chief of the militia", with authority to "appoint and commission officers in the same below the rank of general officers."
Formerly some of the States thought that they should determine whether the militia should be sent to the service of the Nation, but the supreme Court of the United States held that "the authority to decide whether the exigency has arisen belongs exclusively to the President and his decision is conclusive upon all other persons." If many States were to come to many conclusions upon such a subject the Nation might in the meanwhile be destroyed.
c68 In time of war much of the power exercised by the President is delegated to him by Congress for the time being. During the Civil War Congress so aided the President that it was described as "a giant committee of ways and means." In 1862 it authorized President Lincoln to take possession of railroads when necessary for public safety. In World War I Congress authorized the President to take over and (operate the railroads as an instrumentality of war, which he did. It passed many acts giving him extraordinary powers, such as the Conservation of Food Act, the War Finance Corporation Act, the Trading with the Enemy Act, and many others. Such authority expires either by a time limit in the act itself or by subsequent repeal by Congress.
he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, 86
86 The "principal officer" is a member of the President's Cabinet. At least twice the Constitutional Convention refused to hamper the President by an advisory council which might influence his conclusions. In Colonial times the royal governor had a council with a considerable power. But in the course of events there has grown up a cabinet somewhat resembling the council which the Convention rejected. However, it is not a Constitutional body, and the President is in no way bound by the opinion of his cabinet, nor is he obliged to consult it at all. Some Presidents, knowing that the majority of the members of the cabinet were not in sympathy with a particular policy, have gone forward without consulting them. Others have listened to suggestions and then acted at pleasure. Jefferson called for a vote in cabinet meetings, his vote counting one with the others. But he believed that he had the right to independent action. Lincoln wrote the Emancipation Proclamation without consulting his cabinet; but he read it during a meeting for suggestions and amendments.
The first "principal officer" created under this clause was the Secretary of State, brought into being by an act of the first Congress, July 27, 1789. His department was then called the Department of Foreign Affairs. Next came the Secretary of War (August 7, 1789), the Secretary of the Treasury (September 2, 1789), the Attorney-General (September 24, 1789), the Postmaster General (May 8, 1794), the Secretary of the Navy (April 30, 1798), the Secretary of the Interior (March 3, 1849), the Secretary of Agriculture (May 15, 1862), the Secretary of Commerce (February 14,1903), and the Secretary of Labor (March 4, 1913). In Chile there is a Council of State resembling our President's cabinet, made up of three persons chosen by the Senate, three by the House of Deputies, and five by the President. Its duties are advisory, except in some cases in which the Constitution requires submission to the Council. Thus to a degree the President is restricted.
and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. 87
87 With one exception the power to pardon is absolute. The judgment of the United States Senate in an impeachment trial 25 is beyond the reach of executive clemency. Otherwise an appointee of the President who might be convicted in an impeachment trial could be pardoned and reappointed to the office for which he had been adjudged unfit. Such was the method of the sovereign of England in protecting his favorites from punishment. In the Act of Settlement (1701) providing for a successor to Queen Anne, the Parliament declared that no pardon by the King could be used to exculpate one who had been impeached "by the Commons in Parliament."
On Christmas day, 1868, President Johnson issued a general proclamation granting full pardon "unconditionally and without reservation" to those who had acted against the Union in the Civil War. The judiciary committee of the Senate questioned his power, but the Senate took no action. The supreme Court has said that the President's pardoning power is beyond control or limitation by Congress. c80
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; 88
88 A treaty is a written contract between two governments respecting matters of mutual welfare, such as peace, the acquisition of territory, the defining of boundaries, the needs of trade, the rights of citizenship, the ownership or inheritance of property, the benefits of copyrights and patents, or any other subject.
During the time of the Continental Congress (1774-1781) many treaties were made by it on behalf of the States by name. The Congress was then the only governmental authority. While the Articles of Confederation were in effect (1781 - 1789) the one-House Congress, even after creating a Department of Foreign Affairs (1781), retained supervisory power over treaties and some other international matters; and it was by this method that the Treaty of Paris (1783), by which England recognized the independence of the United States, was negotiated. Twelve other treaties were entered into by Congress. But when the present Constitution was framed, creating a President and a Congress of two Houses, it was determined to let the President, the executive head of the Nation, negotiate treaties with other governments and to empower the Senate to ratify or reject them.
In the Constitutional Convention a committee's report gave to the Senate the full power to make treaties. One delegate favored giving the power to the two Houses of Congress. Probably as a compromise the method stated in the Constitution was adopted. The subject received no more than ordinary consideration. It was pointed out in the "Federalist" by Alexander Hamilton that treaty making is neither legislative nor executive, but that it appeared that the executive is "the more fit agent in those transactions, while the vast importance of the trust and the operation of the treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them." The Senate must finally approve a treaty by a two-thirds majority before it can become effective. The reason for this given by Alexander Hamilton was that a man raised from humble station to the height and power of the Presidency might be unable to withstand the temptation of avarice or ambition by aiding a foreign power to the detriment of the United States.
A precedent for thus abrogating a treaty made by the President and approved by the Senate may be found as far back as July 7, 1789, when Congress passed "An Act to Declare the Treaties heretofore Concluded with France no longer Obligatory on the United States" because they "have been repeatedly violated on the part of the French government." As a law of Congress may thus supersede a treaty, so a treaty may supplant an act of Congress, the latest expression of the National will being controlling.
While in this clause the Constitution names the President and the Senate as the makers of a treaty, other provisions sometimes require the concurrence of the House of Representatives; for as all money bills must originate in that House 37, it may refuse to provide the means for effectuating the treaty. Of course, many treaties need no such aid from the House; but the House may constitutionally render null a treaty in which it disbelieves and which cannot be effectual without the expenditure of money.
The Reverdy Johnson-Lord Clarendon Treaty of 1869, which attempted to settle all difference with England from 1853 down, was rejected by the Senate by a vote of 54 to 1, largely because it was felt that Johnson should have exacted an apology for acts done by England during the Civil War in claimed violation of neutrality.
On February 16, 1893, just before the expiration of his term, President Harrison sent a treaty to the Senate for the annexation of Hawaii. When President Cleveland took office he withdrew the treaty, as he questioned the validity of the revolutionary provisional government which had been set up under the protection of marines from a man-of-war of the United States lying in the harbor of Honolulu.
In Cleveland's administration (1897) the Senate declined to approve a treaty made with England because it proposed to submit American "interests in all cases to the decisions of an outside tribunal." The treaty was drawn after a very serious dispute with England regarding the boundary between British Guiana and Venezuela, our government interposing under the Monroe Doctrine for the protection of the last-named State.
President Washington consulted with the Senate respecting treaties which he intended to negotiate. The practice has not been generally followed by his successors, though from time to time it has been adopted. In 1846, in the midst of a threatening controversy with great Britain respecting the northwest boundary of the United States from the Rocky Mountains to the Pacific Coast, which negotiations in 1818, in 1824, in 1826, and in 1844 had failed to settle, President Polk transmitted to the Senate a proposal "of Her Britannic Majesty for the adjustment of the Oregon question" and asked for its advice. Referring to Washington's practice as "rarely resorted to in later times", he said that it "was, in my judgment, eminently wise and may on occasion of great importance be properly revived."
These were his reasons:
"The Senate are a branch of the treaty-making power, and by consulting them in advance of his own action upon important measures of foreign policy which may ultimately come before them for their consideration, the President secures harmony of action between that body and himself. The Senate are, moreover, a branch of the war-making power, and it may be eminently proper for the Executive to take the opinion and advice of that body in advance upon any great question which may involve in its decision the issue of peace or war."
President Polk concluded the message by saying that if the majority of the Senate necessary to ratify (two thirds) should "advise the acceptance of this proposition... I shall conform my action to their advice." But he said that should the Senate by a two-thirds vote decline to give advice or express an opinion, then he would "consider it my duty to reject the offer." On June 12, 1846, two days later, the Senate passed a resolution that "the President of the United States be, and he is hereby, advised to accept the proposal of the British Government... for a convention to settle boundaries."
After the Spanish War President McKinley sent three senators to the peace conference at Paris. A resolution of disapproval was introduced in the Senate, but it was not passed. One objection was that such a course would tend to give the President an undue influence over the Senate, probably because senators serving with the President in the negotiation of a treaty might be less inclined to independent judgment when the treaty should come up in the Senate for ratification.
At the close of the War of 1812 with England two members of Congress were appointed by President Madison to attend the peace conference at Ghent, the Speaker of the House, Henry Clay, and Senator James A. Bayard of Delaware. Believing that they could not serve in two capacities, they resigned from Congress.
President Harding appointed two senators as delegates to the Washington Conference (November 12, 1921 - February 6, 1922), in which nine nations drafted treaties, some for the reduction of armaments and others respecting the general peace of the world.
The Senate may (1) approve, (2) reject, (3) approve with amendments, (4) approve upon condition that specified changes will be made, and (5) approve with reservations or interpretations. In some instances it has failed to act at all. In 1795 the Senate approved the Jay Treaty with Great Britain "on condition" that certain changes be made to our commercial advantage; and the British Government accepted the conditions.
The rejection of a treaty by the Senate "can be the subject of no complaint", said our State Department to Great Britain when the treaty of 1869 regarding the Alabama Claims was not approved, "and can give no occasion for dissatisfaction or criticism." In 1804 Secretary of State Madison had occasion to give Spain a like hint. "When peculiarities of this sort in the structure of a government are sufficiently known to other governments", said he, "they have no right to take exception at the inevitable effect of them."
Many treaties have been approved by the Senate and many disapproved. Treaties suggesting any modification of or departure from our Constitutional system have been rejected. Thus in President Roosevelt's administration a number of arbitration treaties negotiated by Secretary of State Hay with various countries provided for referring to The Hague Tribunal questions of a Constitutional nature and also disputes respecting the interpretation of treaties themselves. As the reference to the Tribunal would be by the President, the Senate would be shorn, it believed, of part of its Constitutional duties in treaty-making matters. When the Senate amended the treaties so as to retain what it conceived to be its Constitutional jurisdiction of the subject, the President refused to go further.
The Hague Tribunal arose out of conferences in 1899 and 1907 held at the capital of Holland upon the suggestion of Nicholas II of Russia, who recommended an "understanding not to increase for a fixed period the present effectives of the armed military and naval forces and at the same time not to increase the budgets pertaining thereto, and a preliminary examination of the means by which even a reduction may be effected in the future in the forces and budgets above mentioned." The first conference was attended by representatives of twenty-six nations. Forty-four nations were represented in the conference of 1907. Owing to the opposition of Germany, the subject of excessive armaments was abandoned. But many plans for the improvement of international practices were put in motion. The first question to be decided by The Hague Tribunal was submitted by the United States, relating to a fund owing to Californians by Mexico. Many questions of the kind formerly settled by war have been disposed of at The Hague.
The most notable disagreement of this kind arose in 1919, when the treaty negotiated by President Wilson at Paris (June 28, 1919) closing the World War and constructing a League of Nations was laid before the Senate. It was believed by the Senate that the proposals to submit to an international tribunal certain questions would change our Constitutional form of government -- would require the United States to go to war without a declaration by Congress 55; would commit the Nation to the expenditure of money which Congress might not wish to appropriate 37; and would turn over to the balloting of nations the disposition of many of our most important Constitutional affairs. The Senate therefore proposed to ratify the treaty "with reservations and understandings."
The Senate reserved to Congress the right to withdraw from the League and to be the sole judge as to whether its obligations had been fulfilled; declined to assume any obligation to preserve the territorial integrity or political independence of any other country, or to use the military or naval forces except as Congress might desire to do; declined to accept any mandate or guardianship over another nation except as Congress night determine; reserved to the Government of the United States exclusively the determination of domestic and political questions; declined to submit to arbitration or to the Council of the League of Nations the "long established policy commonly known as the Monroe Doctrine"; withheld its assent to the article of the treaty giving the Chinese province of Shantung to Japan; and declined to be limited in armament except as Congress might direct. Some other reservations were made. When the treaty with the reservations came to final vote in the Senate on March 19, 1920, it received forty-nine yeas and thirty-five nays, or seven votes fewer than the necessary two thirds to make a ratification. President Wilson declined to offer any concessions to the views of the Senate.
and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 89
89 In the Constitutional Convention serious objection was taken to this provision, as the President might refuse his assent to necessary measures of Congress until appointments objectionable to the Senate had been confirmed. It was argued that this authority to appoint would invest him with power leading toward monarchy. Benjamin Franklin was of this belief. However, in practice the plan has worked very well. It is probably true that some Presidents have to some extent used their appointing power to influence Congress, refusing to fill offices within the control of members until a bill favored by him had been passed. On the other hand, it is believed that the Senate has sometimes used its power to approve appointments to influence the President to conform to its wishes. In a message dated March 1, 1886, President Cleveland declined to inform the Senate why he had removed a United States attorney from office without its consent, declaring that it. had no Constitutional authority in the matter; and he referred to "the threat proposed in the resolutions now before the Senate that no confirmation will be made unless the demands of that body be complied with" as insufficient to deter him from his duty to maintain the Chief Magistracy "unimpaired in all its dignity and vigor."
For removing, in disregard of the Tenure of Office Act, Edwin M. Stanton, a hostile Secretary of War, President Johnson was impeached by the House, but the Senate failed to convict. The Tenure of Office Act was repealed on March 3, 1887, a year after the spirited message of President Cleveland just before mentioned, in which he spoke of the Act as by a Congress "overwhelmingly and bitterly opposed politically to the President" and "determined upon the subjugation of the Executive to legislative will." He considered the passage of the Act as an admission by Congress that it had no Constitutional basis for its claim. The first appointment to the cabinet to be denied confirmation by the Senate was that of Roger B. Taney (later Chief Justice of the United States) to the Secretaryship of the Treasury in F834. He had helped Jackson undo the United States Bank.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. 90
90 Like many another clause of the Constitution, this one was copied from a State. The Constitution of North Carolina had such a provision. When the Senate is not in session to confirm appointments, the President may nevertheless meet the needs of the public service. But should the Senate during its next session not confirm a recess appointment (as it is called) the appointment will expire with that session. This is to prevent the President from building up the executive power by putting in office men not deemed suitable by the Senate.
Section 3. He shall from time to time give to the Congress Information of the State of the Union, 91
91 This mandate has been carried out by the annual and the special messages of the Presidents, the annual message at the opening of Congress in December and the special message when a matter of unusual importance comes up, such as a disagreement with a foreign government, or a disaster calling for the granting of relief, or the conservation of the forests and minerals, and the like. Washington and Adams delivered their messages orally. Jefferson, who was not a ready speaker, asked leave to submit his in writing, saying that Congress might then consider a message at its convenience. The written message remained the practice until 1913, when President Wilson revived the oral address to Congress.
Because the President is required by the Constitution to give information to Congress from time to time, Congress from the beginning has claimed, conversely, the right to ask the President for information. Washington was called upon by the House of Representatives for papers regarding the defeat of General St. Clair's forces in 1791 by the Miami Indians. After a three-day consideration of the question by Washington and his cabinet, which was regarded as of the greatest importance as a precedent, it was decided that the House had a right to copies of the papers. In 1909 President Roosevelt refused to permit the Attorney-General to make answer to a resolution of the Senate asking why no legal proceedings had been begun against a corporation named for violation of the Sherman Anti-Trust law.
and recommend to their Consideration such Measures as he shall judge necessary and expedient; 92
92 In England the Parliament is supreme, and the King must sign any bill submitted to him, even his own death warrant, as one writer on English law expressed it. Therefore, English authorities have been astonished by the activity of our President in legislation, which often amounts (in the opinion of some) to domination. But it was the intention of the Fathers of the Republic that the President should be an active power. In addition to conferring upon him unqualified authority to sign or veto bills passed by Congress 38, they command him in this clause to recommend to the consideration of Congress such legislation as he should judge necessary and expedient. Through the reports of the members of his cabinet his information on the state of the country is complete, and he is therefore probably better equipped to make recommendations than any other man. At any rate, he is made by the Constitution an important part of the legislative mechanism of our government.
he may, on extraordinary Occasions, convene both Houses, or either of them, 93
93 The Senate convenes in extra session immediately after the new President has taken the oath, to confirm his appointments, especially those of his cabinet officials. The House of Representatives never has been called in session alone. Both Houses have been called in special session, but not often. The first special session was called by President John Adams (1787) because of violations by France of the law of neutrality with respect to American commerce during a war with England. President Madison (1809) called a special session because of violations of neutrality by England, and later (1813) he called a special session regarding peace with England after the War of 1812. President Van Buren (1837) called a special session on account of financial troubles following the suspension, in Jackson's term, of the National Bank. Eighteen days after calling (1841) for financial reasons a special session President Harrison died. A special session was called by President Pierce because of the failure of the previous session "to make provision for the support of the Army" and on account of many troubles with the Indians. The great special session was that called by President Lincoln for July 4, 1861, preparatory to conducting the Civil War. President Hayes (1877) called a special session because the previous one had failed to support the Army, and later (1879) he called another because the preceding Congress had failed to make an appropriation for the Legislative, the Judicial, and the Executive departments of the Government. President Cleveland called a special session (1893) on account of "the existence of an alarming and extraordinary business situation", which was caused by the act requiring the Government to purchase a fixed quantity of silver each year. President McKinley called a special session (1897) for the reason that "for more than three years" current expenditures had been greater than receipts, and he advocated a tariff law to raise the necessary revenue.
and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; 94
94 It never has been necessary for the President to exercise this authority. The working of a written constitution furnishes many like illustrations of the potency of the mere existence of a clearly defined power. Having in mind the very serious dissensions between the King of England and Parliament, and between the two Houses of Parliament themselves, respecting convening and adjourning, and the length of sessions, and the legal rights of one another, the framers of our Constitution provided that Congress shall assemble at least once a year 27; that neither House shall adjourn for more than three days without the consent of the other, nor to any other place than that in which the two Houses shall be sitting 31; and that, finally if they cannot agree upon adjournment (but only when there is disagreement), the President may adjourn them.
Charles I was determined that his ministers should not be responsible to Parliament. Remember," he said, "that Parliaments are altogether in my power for their calling, sitting, and dissolution; and, therefore, as I find the fruits of them to be good or evil they are to continue or not to be." When in March, 1629, Charles sent orders for the dissolution of Parliament, the Speaker of the House of Commons was forcibly prevented from leaving the chair until the House had voted resolutions in condemnation of the King's illegal practices. "None have gone about to break Parliaments," declared John Eliot, in words which proved to be prophetic of the beheading of Charles, "but in the end Parliaments have broken them."
he shall, receive Ambassadors and other public Ministers; 95
95 This merely makes definite a matter of formality in international relations. Each government has some one to deal with the representatives of other nations, and the Constitution makes the President that one in this country. The Secretary of State acts for him in most affairs, He may refuse to receive a representative deemed objectionable. He may also dismiss an ambassador by giving him passports to leave the country, as has happened where the conduct of a representative has been openly offensive. President Cleveland (1888) gave the ambassador from England his passports because he wrote a letter during the presidential political campaign which was widely published and which made comments adverse to the Cleveland administration. The ambassador from Austria was so dismissed by President rence in our affairs before we entered the World War. An objectionable minister who has not vagrantly offended may be quietly recalled by his government upon the request of the President.
Almonte, the Mexican minister at Washington, demanded his passports and went home when (1845) Congress passed a resolution to accept the proposal of the Republic of Texas to come into the Union as a State.
When the Department of State (first called Foreign Affairs) was established by Congress the law provided that the principal officer of the Department, now the Secretary of State, should carry on correspondence with other governments "in such manner that the President of the United States shall from time to time order or instruct." President Grant felt, that his prerogative in this respect had been invaded by a joint resolution of Congress directing the Secretary of State "to acknowledge a dispatch of congratulation from the Argentine Republic and the high appreciation of Congress of the compliment thus conveyed." The President vetoed the resolution and said that the "adoption has inadvertently involved the exercise of a power which infringes upon the Constitutional rights of the executive."
he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. 96
96 This Constitution and the laws of Congress made in pursuance of it, and the treaties, are declared to be 133 "the supreme law of the land,. . . anything in the constitution or laws of any State to the contrary notwithstanding." These National laws are over all. The courts in every State are "bound thereby." It is made the duty of the President to "take care" that these laws are observed and fully executed.
Contrasting the Constitution with the Articles of Confederation in this respect, Woodrow Wilson's "History of the American People" (Vol. 3, p. 71) says: "It conferred upon the Federal Government powers which would make it at once strong and independent.... Its Laws were to be, not advisory, but imperative, and were to operate, not upon the States, but directly upon individuals, like the laws of any sovereign."
Ruling that a United States marshal who had killed a man in the act of assaulting a Federal judge traveling in the performance of his duty could not be tried on a charge of murder under the laws of California, where the deed was done, the supreme Court of the United States said (1890): "We hold it to be an incontrovertible principle that the Government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it."
When physical force is not necessary the United States executes the Constitution and its laws and treaties through its judicial tribunals and its marshals. Thus where the supreme Court of a State undertook to release by habeas corpus a man in the custody of a United States officer on a charge of having violated an Act of Congress, its action was reversed (1858) by the supreme Court of the United States, Chief Justice Taney saying: "For no one will suppose that a government which has now lasted nearly seventy years, enforcing its laws by its own tribunals and preserving the union of the States, could have lasted a single year or fulfilled the high trusts committed to it if offenses against its laws could not have been punished without the consent of the State in which the culprit was found . . . And the powers of the General Government, and of the States, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge or a State court as if the line of division was traced by landmarks and monuments visible to the eye." c75, c102
The duty of the President "to take care that the laws be faithfully executed" cannot be interfered with by the Judicial Department. In 1867 the supreme Court of the United States held that it had no jurisdiction to entertain a bill for injunction presented by the State of Mississippi to prevent President Johnson and General Ord from executing two laws of Congress passed on March 2 and March 23 of that year over the President's veto and known as the Reconstruction Acts. The first of those acts recited that no legal government or adequate protection for life and property existed in Mississippi and some other southern States and that it was necessary that peace and good order be enforced until a loyal republican State government could be established, and it accordingly divided the States into five military districts and made it the duty of the President to assign an officer of the army to each district with a sufficient military force to maintain order and punish offenders. c59
The second act provided machinery for registering voters and forming new constitutions in the States, "But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties," said Chief Justice Taney in denying the application. c87
In 1864 a citizen of Indiana was arrested by the military authorities, tried by a military court on the charge of disloyal acts, when the civil courts were "open and in the proper and unobstructed exercise of their judicial functions", and sentenced to be hanged. He was not a resident of a seceded State, nor a prisoner of war, nor a person in the military or naval service. The sentence had been under consideration by President Lincoln before his death, and it was finally approved by President Johnson as commander in chief 85 of the military forces. Holding that the prisoner should be discharged by writ of habeas corpus because the military tribunal had no legal existence, that "it is the birthright of every American citizen when charged with crime to be tried and punished according to law", and that "if in Indiana he conspired with bad men to assist the enemy he is punishable for it in the courts of Indiana", the supreme Court of the United States made (1866) this comment upon the contention that the approval of the sentence by the President gave it legal value: "He is controlled by law and has his appropriate sphere of duty, which is to execute, not to make, the laws." c87
Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. 96a
Treason and bribery were the worst offences in the public life of England at that time. By a later provision of the Constitution 113 the many and vague treasons in English law were reduced in this country to two definite faults: (1) waging war against the United States, or (2) adhering to its enemies. In 1787, while the Constitutional Convention was in session, Warren Hastings, the first Governor General of Bengal, was by the House of Commons impeached "of high crimes and misdemeanors." Hence, probably, the same words in our Constitution. As the charges against Hastings were of confiscation of property and oppressiveness in government, the English definition of the words may be inferred from the accusation. The managers of the impeachment of President Johnson contended that "an impeachable crime or misdemeanor... may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by abuse of discretionary powers from improper motives, or from any improper purpose."
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