Article II: The Executive Branch

Article II sets forth the Executive branch, and the office of the President.

Section 1: How the President is Elected and Qualifications for President/Vice President

  • The executive power will be vested in a President and a Vice-President, both elected for a term of four years.
  • Each State will appoint a number of electors equal to the whole number of Senators and Representatives to which the State is entitled in Congress (in Oregon, that would be 7, 5 Representatives and 2 Senators); however, no Senator or Representative or anyone holding an Office of Trust or Profit (explained here) may be chosen as an elector.
  • The electors are to meet in their home states and vote for two people each, one of whom must not be a resident of their State. Once this is finished, they make a list of names and the number of votes garnered, certifying the list as complete and correct. It is then sealed and sent the President of the Senate (the Current Vice President or President pro tempore as outlined in Article I, Section 3) in Washington DC. The Senate President then opens the certificates in the presence of all Representatives and Senators and counts the votes.
  • The one with the majority of all votes cast is elected President, as long as that majority is the majority of the whole number of electors. If there is more than one with such a majority, and an equal number of votes, then the House of representatives will immediately choose by ballot, one of them for President.
  • If none have a majority, then a list will be made of the top five vote getters, and the House of Representatives shall choose from among them. This vote will be taken by State, with the representation from each State getting one vote. In other words (if it were today), Oregon’s 7 Electoral representatives would get a single vote, just like California’s 55. Oregon’s delegation would have to arrive at a result among themselves, then vote for a person on the list.
  • A quorum for this proceeding is members from 2/3 of the States present (2/3 of the electors from any given State), but a majority of all the States is still required to choose a President.
  • After the President is chosen by the House, the person with the next highest vote total will be named Vice President. If there is a tie, the Senate gets to choose, by ballot, the Vice President.

The election of 1800 resulted in a tie between Democratic-Republican candidates Thomas Jefferson and Arron Burr, both receiving 73 electoral votes. Incumbent John Adams received 65 electoral votes. Popular vote results were not kept at this time. However, the D-R electors were supposed to all cast their second votes for Burr, except for one elector who was supposed to vote for someone else with  his second vote so that Jefferson would win by one vote (The Federalists did the same with Adams and Charles Pinckney, with one elector voting for John Jay). This didn’t happen, and it resulted in a tie between Jefferson and Burr. The tie was also in part due to the 3/5 compromise in Article I, which greatly inflated the population, and thus the number of electoral votes in the Carolinas and Georgia (and possibly Virginia).

Since Jefferson and Burr both had a majority of electoral votes and were tied, the election was to be decided by the House of Representatives, controlled by the outgoing Federalists.

Following the steps outlined above, Thomas Jefferson was elected President and Aaron Burr Vice President on the 36th ballot on February 17, 1801, two weeks before his term was to start. The voting was contentious, with Jefferson falling one state short of the required nine to take office. The northeastern Federalist states of New Hampshire, Massachusetts, Rhode Island and Connecticut refused to support Jefferson, long their partisan adversary, instead voting for Burr. Delaware and South Carolina also supported Burr, but both states ended up abstaining on the 36th ballot.

Vermont and Maryland, both Federalist states kept splitting their votes for the first 35 ballots, resulting in no vote from them. Maryland had five Federalist delegates and 3 Democrat-Republican delegates, but one Federalist supported Jefferson, resulting in the split ballots. Ultimately, it was resolved when Alexander Hamilton convinced members of his Federalist party that Jefferson was “by far not so dangerous a man” as Burr was. Maryland’s Federalists (except for the lone Jefferson supporter) abstained, as did the Vermont Federalist delegation, handing those states, and the Presidency, to Jefferson.

This election revealed flaws in the original Constitution, and this process was amended in 1804 with the Twelfth Amendment. Most of it was minor tweaking.

  • Electors no longer get two votes for President, but one vote for President, and one for Vice President. One of the two cannot be a resident of the State.
  • When the electors vote, they will name in their ballots who they vote for for President, and who they vote for as Vice President. They also have to create two distinct lists, one listing all persons voted for as President, and one listing all persons voted for as Vice President, and the number of votes for each.
  • If no one has a majority, the list is reduced to the top three vote getters, instead of five as originally stated in the Constitution.
  • If the House of representatives can’t choose a President by March 4 of the year following the election, the Vice President will act as President until the House can reach a decision. (superseded by section 3 of the Twentieth Amendment)
  • The person who garners the largest number of votes for Vice President will become Vice President.
  • If no person has a majority, the list is reduced to two and the Senate votes, by ballot, for the Vice President.
  • Anyone who is not constitutionally eligible to be President is ineligible to become Vice President.

In 1824, this amendment was put to the test. Andrew Jackson was running against John Quincy Adams, the son of John Adams. James Monroe has served two terms, and was stepping down (there was no presidential term limit at this time). This was a period of single party government control, as what was left of the Federalist party had dissolved into remnants.

Andrew Jackson received 99 electoral votes and 43% of the popular vote, while John Q. Adams received 84 electoral votes and 31% of the popular vote. There were two other candidates (William Crawford and Henry Clay) who collected the other 78 electoral votes. No one collected the required 131 vote majority.

The election went before the House of Representatives, and as directed by the the Twelfth Amendment, Henry Clay was dropped from the list, as he garnered the fewest number of electoral votes. In an ironic twist, Clay was the Speaker of the House that got to choose the President. Clay also had an intense dislike of Jackson:  “I cannot believe that killing 2,500 Englishmen at New Orleans qualifies for the various, difficult, and complicated duties of the Chief Magistracy.” Clay ended up throwing his support behind Adams, and he was elected President on the first ballot 13 states, to Jackson’s 7 and Crawford’s 4.

There were allegations that were never confirmed or denied, nor proven, that Clay had thrown his support behind Adams for the Secretary of State post in Adams’ administration. While maybe a bit unethical, I don’t think this was illegal (I’m not a lawyer), because Clay’s term as a Representative had expired. This, however, became known as the Corrupt Bargain.

The Twentieth Amendment (1933) further amends this Article.

  • March 4 was the date of the start of a Presidential term set by law, not in the Constitution. This amendment sets the date at January 20.
  • If a President has not been chosen by the House by this date, or if a President elect fails to qualify to be President, the Vice President elect acts as President until the President elect has qualified.
  • Congress may, by law, can provide the case that neither the President elect nor Vice President qualifies. They can then name someone to act as President, or the manner in which such a person will be selected, and this person will act as President until a President or Vice President shall have qualified.

Continuing on with Section 1…..

  • Congress may determine the time of choosing the electors, and the day that they will cast their votes, and that day will be uniform throughout the United States.
  • Only natural born citizens, or citizens of the US  at the time of the adoption of the Constitution (March, 1787), are eligible to be President. Those people must also be a minimum of 35 years of age, and a resident in the United States for 14 years.
  • In case the President is removed from office, dies, resigns, or is rendered incapable of executing the Office of President, the Vice President becomes President.
  • If this happens Congress may, by law, provide the case for removal, death, resignation or inability.
  •  If Congress provides this case for both President and Vice President, they can declare what officer of Congress will act as President, and that officer will act accordingly until the disability is removed or a new President is elected.

The clause covering the loss or removal of the President was superseded by the Twenty-fifth Amendment, which spells out the line of succession.

  • The President will be paid for the length of his term. The amount will not go up while he is in office, and he will not receive any other pay or compensation from the United States, or any of the States.
  • The oath of office is established. There is no “So help me God”.

Section 2: Presidential Powers

  • Commander in Chief of the Army and Navy of the United States, and the State Militias when called into the service of the United States.
  • May require the opinions, in writing, from the principal officers of each executive department on any subject relating to the duties of their respective offices
  • Grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
  • Make treaties, with the advice and consent of the Senate. Two thirds of Senate required to approve the treaty before the President can ratify it.
  • Nominate and appoint (with consent of the Senate) ambassadors, judges of the Supreme Court, public ministers and consuls, and all other officers of the United States where the appointments are not otherwise provided for in the Constitution, having been established by law.
  • Congress may vest the appointment of inferior officers in the President alone, or in the courts, or in the Heads of Departments. In other words, Congress can leave some appointments up to the President alone, the Courts or the respective department heads for those offices that are below the head of the department. For example, Congress want’s to vet and confirm the head of the CIA, but may not want to be bothered with confirming those people under him, leaving it up to him to decide. He also normally appoints the inferior Federal court judges.
  • The President can fill up all vacancies by granting commissions which will expire at the end of the next Senate session, provided that these vacancies happen DURING the recess of the Senate.

This last one is a point of contention. President Obama was defeated in Federal court because he didn’t wait for a recess to make some pocket appointments. However, there have been few Presidents who actually paid attention to the position becoming vacant during the recess, as required by the Constitution.

Section 3: Other Presidential Powers

  • From time to time, he will fill in the Congress to the State of the Union, done on television now, and recommend to them measures he may consider necessary and expedient.
  • He may convene one or both Houses on extraordinary occasions, and if they disagree with each other, he can adjourn them until such time as he sees fit, with respect to the time of adjournment.
  • He will receive ambassadors and public ministers
  • Make sure laws are faithfully executed. (Some presidents pick and choose what laws will be enforced and which won’t.)
  • He will commission all officers of the United States.

Section 4: Impeachment

  • The President, Vice President and all civil officers of the United States will be removed from office  on impeachment for and conviction of treason, bribery, or other High Crimes and Misdemeanors.

There has been a lot of debate as to the meaning of “High Crimes and Misdemeanors”. Many people interpret it as meaning a very serious crime. It could mean something as simple as breaking one’s oath of office, mismanagement of funds (let’s impeach the entire government on that one), or dereliction of duty.

A good explanation of High Crimes and Misdemeanors can be found here.

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