- [Sal] This is Sal, here, I'm here with Jeffrey Rosen,
head of the National Constitution Center
and we're gonna talk about Article Two
of the United States Constitution.
So, Jeffrey, what does the Article Two,
what does Article Two deal with?
- [Jeffrey] It deals with the executive power,
the powers of presidency and it lays them out
and it starts by saying the executive power shall
be vested in a President of the United States of America.
- [Sal] And today that seems somewhat commonsense,
the the executive power is invested in the
President of the United States of America.
Why did they, what's special about that?
- [Jeffrey] Well, when the Constitution was drafted,
it wasn't obvious we'd have a single executive under the
Articles of Confederation, all the state governors,
some of them had plural executives.
Alexander Hamilton at the Constitutional Convention
was proposing a kind of monarchy, a President for Life,
so the idea of setting out limited powers for the presidency
and specifying what they were, creating a President
that was energetic enough to achieve common purposes
but restrained enough not to be a tyrant
was a huge achievement for the Constitution.
- [Sal] That under the Articles of Confederation
there wasn't a proper executive branch, it was really
the President presided, so to speak, over Congress.
- [Jeffrey] That's right and each, you needed
unanimous consent to get anything done, which is why
the Confederate Congress couldn't raise money
to support the war efforts and couldn't raise taxes.
So the framers came to Philadelphia to create an
energetic executive but one that was also restrained
and that's why the vesting power is so important.
It basically says that the, all executive power is vested
in the President
but that power is not unlimited.
Now, people have disagreed about how much power
the vesting power grants.
Theodore Roosevelt had this stewardship theory
that the President can do anything that's not forbidden
by the Constitution and Article Two.
William Howard Taft, who came after Roosevelt,
had the opposite theory, a kind of judicial
theory of the President.
He said the President can only do what isn't forbidden.
So the question of whether Article Two is the exclusive
series of presidential powers or whether there
are other implicit powers is a debate that continues
to this day.
- [Sal] This will be fascinating.
We'll go into much more depth in future videos.
And just going through the rest of Section One,
it looks like there's a lot of the mechanics
of what does it mean to have a term of office.
What the, how you become President.
Is that essentially Section One?
You see this first part, he shall hold his office during
the term of four years and together with the Vice President,
chose for the same term, be elected as follows.
And then they kind of go into the electoral college system.
- [Jeffrey] Exactly, and then there are
a couple other requirements.
No person except a natural born citizen
can be President and we know that term was subject
to some debate during the recent presidential election.
And then there's the provision that says that Presidents
have to 35 years old, it's the most explicit
part of the Constitution and the point was to prevent
aristocratic scions without a lot of experience
from taking office.
The framers were really concerned about having
new monarchies and they wanted to make sure that Presidents
were seasoned enough so that's why you can't
be President unless you're 35.
- [Sal] Fascinating.
And as we go further, and I've copied this text
from your website, from the National Constitution Center
and why did you all highlight some of this text
of Article Two in this yellow-orange color?
- [Jeffrey] Well, we're really thrilled by this website,
we're excited to be doing a series of videos with you,
Sal, and it's the interactive Constitution,
folks can find it at constitutioncenter.org.
These are the main clauses where we commission the top
liberal and conservative scholars to write about
what they agreed and disagreed about these clauses.
So in Section One of Article Two, the main clause
is the vesting clause and that's the one to focus on.
The other stuff, as you said, is basically just
requirements of what you have to
be in order to be President.
And then we highlighted other important provisions
in Sections Two, Three, and Four.
- [Sal] Yep and in particular this section on
the electoral college system, this was superseded,
I saw, I learned from your website, by the 12th Amendment.
Is that because of what happened with
Aaron Burr and Thomas Jefferson?
- [Jeffrey] Yes, we know that from the musical Hamilton,
the election of 1800 did not end well.
There was actually a tie in the House
and so it went into the
electoral college and Aaron,
rather a tie in the electoral college, it went to the House
and Alexander Hamilton cast his support for Jefferson
over Burr and Burr was so furious about that
that he challenged Hamilton to the duel
that ultimately killed him.
But the peculiarity of having the original system
where the first place winner in the electoral college
became President and the second place winner
became Vice President was so unwieldy that provision
of the Constitution was amended and now, as we know,
Presidents and vice Presidents run on a single ticket.
- [Sal] Yup, yup.
And the rest of Section One, it kind of finishes
off with, in the case of the removal of the President,
his death, resignation, or inability to discharge
the powers, it talks about how Congress can
provide for who should be President next.
- [Jeffrey] Exactly, so, and there are statutes
that provide that and Congress has an elaborate
rule of succession that it's created as empowered
by this part of the Constitution.
- [Sal] Yep, and then the last two pieces here,
it talks about just the compensation of the President,
cannot be increased or diminished during the period
for which he shall be elected, maybe to prevent him
from giving himself a raise or herself from giving
herself a raise and then the last is just the famous
oath of office.
I do solemnly swear or affirm that I will faithfully
execute the office of the President of the United States
and will do to the best of my ability, preserve,
protect and defend the Constitution of the United States.
- [Jeffrey] Sal, you did a great job, although there was
an extra do in there and I'm pointing that out
because you remember when Chief Justice Roberts
administered the oath to President Obama.
The fact that he slightly bungled it led Roberts,
just to be safe, to re-administer the oath.
So, if you want, I can do it again and maybe
you'll be President.
- [Sal] Sounds good.
So then we get into Section Two which is, I think, maybe,
gets a little bit more involved.
This first paragraph here,
it says the President shall be the Commander in Chief
of the Army and Navy of the United States and clearly
they don't say all of the different forces of the
United States because we didn't have an Air Force then.
- [Jeffrey] Yes.
- [Sal] Or Marines.
- [Jeffrey] We sure didn't, but there was a concern about
the king controlling the military, so the two main
purposes of this Commander in Chief clause are, first,
total civilian control of the military and second,
the idea that there's just a single leader.
So the military is subordinate to civilian and
democratically accountable control and unlike the
Articles of Confederation, a single person gets to control
all of this power so that you can have a
coordinated military force.
- [Sal] And as simple and as clean as this statement
seems to be, in future videos we'll discuss more
of how this may or may not be in contention with
the power given to Congress in Article One
around the right to declare war.
- [Jeffrey] Exactly right, we know that the President
in Section Two has the power to,
Congress has the power to declare war and the question
of what the President can do is contested, as you said.
We'll talk about it more later but everyone agrees
that the President has the ability to repel sudden attacks.
At the same time, we haven't had a declared war
since World War Two, although there's been lots of
military actions and the question of how much
independent power the President has to initiate
military action is very hotly contested.
- [Sal] Yep, and in this next section, this talks about
the power of the President to make treaties
but with the advice and consent of the Senate and
it has to be approved, provided two thirds of
the senators present concur.
- [Jeffrey] Yes, so the treaty power is shared between
the President and the Senate, and generally people think
that the Senate can approve or disapprove or maybe
attach conditions or reservations to the treaty
but the President, alone, has the power to negotiate
treaties and that was a precedent set by George Washington.
So the treaty power is shared.
- [Sal] And there's a lot here cause it also talks
about the power of the President to appoint ambassadors,
other public ministers, consuls, judges of the
Supreme Court, and other officers of the United States.
So this is a pretty important sentence there.
- [Jeffrey] It sure is.
We know now from the controversy over
Supreme Court nominations that the so-called advice
and consent clause is really important.
The advice and consent clause is limited to
high officers as opposed to inferior officers.
Because the clause says for inferior officers,
Congress can vest the appointment in the President
alone, in the courts of law or the heads of the department.
But for high ranking officials like Supreme Court judges,
the President can nominate, the Senate exercises advice
and consent and this is a shared power between the
President and Congress.
- [Sal] Yes, and just to make people familiar
with the language, when they're talking about inferior
officers, they're not making any judgment about
those peoples capability, they're more talking about
a more junior, less senior officials in the government.
- [Jeffrey] That's an excellent point but although
it is a term of art, it's hugely important and people
have disputed about who counts as an inferior officer
cause a lot hangs on it.
If the officer isn't inferior then the President alone
doesn't get to appoint them.
- [Sal] And then they--
- [Jeffrey] Sorry, and also the question of who
the President can remove or fire without Congressional
approval is important and may hinge on that
question as well.
- [Sal] Right, and we'll talk more about it, but it seems
like, you need Senate consent for more of the getting
people into their jobs but being able to
remove them is oftentimes, there's more power there
for the President.
- [Jeffrey] Absolutely, although again, like most of
these powers, they're contested, there are arguments
on both sides throughout history and the Supreme
Court has both recognized the President's unitary
authority to fire executive branch officials
but in other cases have said that Congress can impose
certain conditions on when the President can fire someone.
- [Sal] And somewhere we'll talk about it more but
this next sentence, really, is also a really interesting
one is that look, when the Senate is in recess,
the power shall have the President, the President
shall have the power to fill up all vacancies
and it seems like it's a temporary filling of
positions by granting commissions which shall expire
at the end of their next session.
- [Jeffrey] That's exactly right and the President's
power to make recess appointments was just litigated
before the Supreme Court and the Supreme Court
unanimously that President Obama could not make
certain appointments because Congress wasn't technically
out of session, so the question of when the Senate
is in recess is very contested and the scope
of that power is really important as well.
- [Sal] And Section Three, it kind of just says,
hey, the President can get Congress together for
the State of the Union, can address Congress,
can kind of tell Congress what's on his or her mind.
- [Jeffrey] Yes.
It does say that and the State of the Union
power is really important.
You know, there's one other clause in Section Two
that just might want to flag and that's
the take care clause.
Sorry, that's in Section Three and I know you're about
to get to it.
So we start with this ability to
give Congress information about the State of the Union,
the ability to convene both Houses of Congress
in cases of disagreement among them.
Then you get to this really core power, that he shall
take care of the laws we faithfully executed.
- [Sal] And why is that so important that he takes
care of the laws?
I mean, isn't that what the executive should be doing?
- [Jeffrey] Absolutely, but there's a serious question,
what happens if the President believe a law
is unconstitutional, then is it the kind of law
that he has to execute?
And President Thomas Jefferson said no, he refused to
enforce the Sedition Acts which basically allowed
the government to punish people who criticized
the President on the grounds that Jefferson
believed that it was unconstitutional.
More recently, we've had a big controversy over this clause
when opponents of President Obama's executive orders
about immigration have said that they're a violation
of his power to take care that the laws are
faithfully executed because, according to opponents,
Congress reached a different immigration policy.
The Supreme Court ultimately
refused to cleanly decide that because of the four four
split and it didn't clearly rule on the question
of the take care clause and the immigration policy.
- [Sal] Fascinating.
And just to finish up here and we'll go deeper
in future videos as we go into Section Four,
this really just talks about how the President
or the Vice President and all civil officers
of the United States, how they might be removed from office.
- [Jeffrey] That's right and we know from not so
distant history that the only way the President
can be removed from office is by impeachment.
A President is impeached by the House and has to be
convicted by Senate.
Two Presidents have been impeached in American history,
Andrew Johnson and Bill Clinton.
Neither has been convicted so we've never actually
had a President who's been removed from office
under the impeachment clause.
- [Sal] And a lot of times in popular language,
impeachment, to be clear, impeachment is the accusation
and then you have to be held at, no you actually did,
those crimes happened and that's what you're saying,
the Senate is responsible for it.
- [Jeffrey] That's right, you can be impeached but
acquitted and that's what happened to both Bill Clinton
and Andrew Johnson so it's like being indicted but
then you go to trial and you're later acquitted,
you get to keep your office.
- [Sal] Well thanks so much, Jeffrey,
this is a super valuable overview.
- [Jeffrey] Thanks, it's been great to talk.