Constitution of United States of America

The article describing the divisions and duties of the legislative branch is, relatively speaking, detailed by comparison with Article 2 on the executive. This reflects, in part, uncertainty about the role of the executive. The Framers both saw the need for an executive authority and were wary about that authority.

A good approach to this uncertainty is to compare the initial sections of Article 1 and Article 2—the opening declarations of each. Article 1 announces that “All legislative Powers herein granted shall be vested in a Congress…” [emphasis added]. By contrast, Article 2, Section 1 begins: “The executive Power shall be vested in a President” This is called the Vesting Clause. The absence in Article 2 of the phrase “herein granted” might seem trivial, either meaningless or an oversight, but it has been a topic of interest at least since Alexander Hamilton noted the distinction in 1793 (“Pacificus No. 1.” Founders Archives). For Hamilton, a proponent of the powers of the executive, the Vesting Clause referred to something amounting to pre-existing powers that were vested by the Constitution in the president. The enumerations that follow in the rest of Article 2 cannot, he argued, be the totality of executive power but rather are an enumeration of the “exceptions and qualifications” to which the Constitution subjects an “executive power” that exists. The legislative powers, by contrast, are granted by the Constitution—they flow from it and don’t exist prior. This line of interpretation was nothing new for Hamilton; in the Federalist Papers, he had already argued on behalf of something he called the “energy” of the executive, and he also wrote about the “unity in the executive,” which is the basis for a theory now called the “unitary executive theory.”

James Madison responded that Hamilton’s conception of executive power was too much like that which defined the sovereignty of a monarch, only channeled into the form of an elected president. For Madison, this violated the principle of popular sovereignty that the Constitution is based on. In this understanding, the power of the executive is only granted by the constituting power of the Constitution.

Many modern arguments about the boundaries of power of the executive rely on contextual discussions between the Founders—whether the president can make war without the Congress, for example—and this context is also important for understanding authority over the many vast agencies and bureaus of the executive branch, an area of government almost unmentioned in the Constitution which has grown enormously since the 18th century. Hamilton’s unitary power of the executive was an important element in the legal architecture underpinning the United States War on Terror as it was defined by the administration of George W. Bush, including the use of torture (Bailey, Jeremy D. “The New Unitary Executive and Democratic Theory: The Problem of Alexander Hamilton.” Cambridge University Press, 1 Nov. 2008).

The Constitution devotes a fair amount of space to describing the complicated system for electing a president through what is now called the electoral college, although that term doesn’t appear in the Constitution. The college reflects the Framers’ interest in balancing democratic values with limitations on democratic impulses. The Constitution creates a college of unpledged electors who are chosen by a state’s voters and who vote for president and vice president. The Framers did not anticipate the creation of political parties and the problems that such a system could create once electors began to pledge their votes to specific candidates along ideological lines.

Before the passage of the 12th Amendment in 1804, the presidency went to the individual with the most votes and the vice presidency to the second ranked. However, this method created conflict when, for example, John Adams was elected to the presidency in 1796 while Thomas Jefferson, former Secretary of State, became vice president. Though the two men had a cordial relationship, they belonged to newly formed and distinct political parties so that their political differences undermined their time in office. The 12th Amendment allows for electors to vote separately for the president and vice president. Today when voters elect a president and vice president running on a ticket, they are also selecting state electors pledged to those candidates who then cast votes in the electoral college.

This Article also explains how elections for the presidency are certified: The President of the Senate, who according to Article 2 is also the current Vice President of the US, oversees the certification under the observance of the Senate and House of Representatives. Conflicting interpretations of this Constitutional process were central to the 2020 presidential election, as President Donald Trump suggested that Vice President Mike Pence could refuse to certify the election of President Joe Biden.

The Framers anticipated that a president and/or vice president might be unable to fulfill the duties of their respective offices under certain conditions, like removal from office, death, or disability. If the president is unable to continue to serve, the vice president takes on their duties; however, the Constitution uses unclear language, for it does not state that the vice president becomes acting president, nor does it establish whether the vice president returns to his office should the president resume his duties. The passage of the 25th Amendment in 1967 provided a resolution to this ambiguity and formally established as practice what had already occurred several times throughout the nation’s history. The 25th Amendment states, “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” This Amendment also allows for the vice president, in conjunction with most of the Cabinet, to allocate executive authority to the vice president on a temporary basis.

Article 2 also details how a president (and other officials, like federal judges) can be impeached and removed from office, including for treason or “high crimes and misdemeanors,” provide a check to the executive and judicial branches of the US government and is derived from the English legal tradition. The impeachment clause also emphasizes the fact that officials cannot be impeached based on perceived ineffectiveness or political disagreements. The House of Representatives issues articles of impeachment and votes to impeach while the Senate conducts the trial. Only three presidents have been impeached: Andrew Johnson (1868), Bill Clinton (1998), and Donald Trump (2019 and 2021). None were removed from office. President Richard Nixon resigned in 1974 after the House issued articles of impeachment in response to the Watergate scandal but before the proceedings could advance.