A 2020 Primer on the US Constitution: Article II, Executive Moments

Bainbridge Island Japanese American Exclusion Memorial

“I have such a bully pulpit.” —President Theodore Roosevelt

(bully: as in “awesome” or “splendid”)

Continuing our series on the U.S. Constitution Jimmy Morgan, MMN columnist of History in the News, explores Article II, which established the powers of the president, including the authority to veto legislation and issue executive orders. 

Eleven years after excoriating King George III for a “long train of abuses” in the Declaration of Independence, delegates at the Constitutional Convention of 1787 debated how the new nation would go about vesting power in a president. Yet, they did so reluctantly, fully cognizant that a singular executive can quickly morph into monarch.

While debates in Philadelphia over Article I centered on representations of the various states in the legislative branch and concluded with a series of extraordinary compromises, the establishment of a chief executive, the subject of Article II, raised entirely novel issues.

Article II of the US Constitution creates the Executive branch providing for a president whose essential duty is to carry out the laws passed by the legislature. The president serves a four-year term, must be a natural born citizen, at least 35 years-old, and must have resided in the United States for 14 years. All those mothers out there were absolutely correct when they told many of you, “You could be president someday,” because there are no other requirements: no experience necessary, English language skills not required, and a sordid past of no constitutional concern.

Contrary to what we may see in our daily lives, one can make a rather strong constitutional argument that the powers of the president are severely limited.

According to Article II, the president has the explicit power to sign or veto legislation only after it is passed by the legislature. The president is Commander-in-Chief of the military yet the “power of the purse” to fund war and the power to declare it reside with the legislature. The president has the power to make treaties provided they receive approval of two-thirds of the Senate. The president can nominate justices to the Supreme Court, appoint other federal judges and ambassadors, and fill the top positions of federal agencies such as the Treasury and State departments but only upon the “advice and consent” of the Senate.

Perhaps the only exclusive power the president has within the text of Article II is the power to “grant Reprieves and Pardons for Offences against the United States.” All other powers held by the president—and they are many—have been granted by the legislature or have arisen out of broad interpretations of the opening line to Article II: “The executive Power shall be vested in a President of the United States of America.”

Of course, Presidents also rise to Teddy Roosevelt’s “bully pulpit”—a platform from which he/she may shape the issues of the day, rally the country in times of crisis, celebrate the virtues of America, shine light upon injustice, and establish the moral foundation of a profoundly diverse people.

Not all of our presidents have ascended to that position with such high ideals; indeed, some have used the bully pulpit to castigate their political opponents, shame and punish critics, manipulate the electorate for personal gain, enrich and promote loyal supporters, and make themselves immune to the responsibilities and limitations of their office.

In short, the power of the presidency, while derived from the language of Article II, is largely dependent upon the basic human decency of those who hold the office. It is an inevitable weakness of the U.S. Constitution and one that the Framers acknowledged; placing their trust in a process that was likely to elevate only the best among us to the pinnacle of American power.

Some of the most trying moments in American history have been shaped by the singular behaviors of a president. In 1863, Abraham Lincoln suspended habeas corpus so that Union soldiers could detain indefinitely those they deemed dangerous. While justified under the emergency of the Civil War, the move represented a major breach of a basic right within our criminal justice system.

Franklin Roosevelt addressed the twin crises of The Great Depression and war to fundamentally change the role of the federal government. While the Supreme Court put the brakes on some of FDR’s more ambitious programs, he countered by attempting to pack the court with six additional justices. He failed, but the attempt illustrates the tenuous nature of executive power, which only heightens the need to select our presidents wisely.

In the case of Lincoln and FDR, history has tended to evaluate their extra-constitutional moves favorably. Other moments have seen presidents use their power in a manner that history judges less kindly. In 1832, President Andrew Jackson refused to enforce a Supreme Court decision prohibiting the state of Georgia from forcibly removing Cherokees from their land. “[Chief Justice] John Marshall has made his decision,” Jackson is reported to have said. “Now let him enforce it.”

The high court has no power whatsoever to enforce their decisions; an observation not lost upon the current president. Indeed, there has been some chatter recently that President Trump may ignore the Supreme Court if it orders him to release his financial records. Revealingly, a large portrait of Andrew Jackson can be found in Trump’s Oval Office.

Perhaps one of the darkest moments in the exercise of presidential power was FDR’s Executive Order 9066; a stain on the record of an otherwise effective and popular leader. Following the attack on Pearl Harbor in 1941, more than 100,000 men, women, and children of Japanese ancestry were incarcerated out of fear that their loyalty to Japan trumped their loyalty to the United States. The vast majority of those sent to internment camps were American citizens. 

Executive orders have become an increasingly powerful option for presidents who are otherwise unable to gain congressional support for their ideas. The first 25 presidents of the United States issued a total of 1,262 executive orders. During Teddy Roosevelt’s administration, he alone issued 1,081, many of them dealing with conservation and anti-trust measures.

TR artfully used his bully pulpit to gain the support of the people for these actions. As much as any president in history, he understood that the implicit power of the presidency could be brought to bear through charisma, public relations, and nurturing his relationship with the press. Indeed, it was TR who set aside a room inside the White House specifically for the press. Part of his success as president was the manner in which he rallied support for his ideas, many of which were eventually codified into law.

More recently, President Obama used his pen to order immigration officials to ignore laws he found distasteful. Given that the president’s primary job is to enforce the law, you’ll understand why his opponents in Congress accused him of overstepping his authority.

President Trump has used executive orders to finance the building of a wall on the southern border and to restrict immigration. While these measures are being challenged within the courts, it has become clear that the president will use whatever means he can muster to animate his agenda.

Given current divisions within our society, it seems that the executive orders of one side will simply be undone when the other wins the White House. History tells us, however, on several occasions, that a divided country can unite in the face of shared adversity. In each of these previous cases, it was the president who used his authority and the bully pulpit to remind us of our shared heritage as Americans. As to the crisis we now face, only time will tell whether the current Commander-in-Chief will rise to the occasion.

I, for one, will not be holding my breath.

 

Jimmy P. Morgan
Jimmy P. Morgan

Jimmy P. Morgan is a semi-retired History teacher who writes about World Affairs, Social Justice, Politics, and Education. He can be reached at JimmyPMorganDayz@gmail.com.

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