The Structure of the Presidency
Welcome back to Constitutional Perspectives!
Last time we talked about the powers of Congress. That means today it is time to discuss the executive branch and the presidency. As with Congress, this will be split into two lessons, the first of them covering the structure of the institution, the second examining its powers.
The very first sentence of Article II states that the "executive Power shall be vested in a President of the United States of America." Right off the bat, this raises two questions: (1) What is the "executive power"? and (2) what is a president?
This first question arouses a lot of rather heated discussion in constitutional theory circles, as advocates of expansive presidential power often look to the Vesting Clause itself as a source of broad authority. But for present purposes I am interested in the more foundational question. I already said that the legislative power has its roots in the natural ability we all have to regulate our own conduct on a moment by moment basis.
The executive power, in Lockean contract theory, also belonged originally to individual people in the state of nature. But it's a little more complicated than the legislative power. Locke, famously, posits that the state of nature is governed by what he calls the "law of nature." You can think of this as the moral rules that would apply to us all even in the absence of any government institutions: rules like "don't murder people." The executive power, in Locke's state of nature, is basically the power to punish those who violate the law of nature. Everyone, Locke says, has the right to do this. However, because everyone doing this for themselves leads to sheer chaos, we find ourselves needing to create government. And whereas only a portion of our natural legislative powers are given to the government, the executive power is delegated in its entirety.
Of course, the executive power conferred by Article II is not the power to enforce the law of nature, but the laws of the United States, i.e. the laws passed by Congress. Investigating and prosecuting violations of federal law is one of the primary functions of the executive branch. The other is, well, doing stuff. Essentially everything the government does is under the auspices of the executive. And the President, as chief executive, has supervisory authority over everything the government does.
Okay, so what's a president? It's an interesting word. Today, of course, when the American President is the single most powerful person in the world, it has grand connotations. But what it literally means is "one who presides." There was a president under the Articles of Confederation, but they were just the presiding officer of the Continental Congress. And "presiding officer" is not a very glamorous job description.
Calling the chief executive of the new constitutional order a "president," then, is meant to convey something about the nature of the office. The President does not rule over the nation as a king, nor even govern it as a governor. They merely preside.
Of course, history had other ideas.
The biggest difference between the President of the United States and the President of the Continental Congress is, of course, that the latter was chosen by Congress itself, as presiding officers typically are. Under the Constitution, however, the President is independent of Congress. This is arguably the single most important part of Article II. As my grandfather liked to point out, if you struck Article II from the Constitution entirely, there would still be a President of the United States. But they would owe their existence and powers entirely to Congress.
What Article II does, then, is give the executive a foundation that is beyond the will of Congress. Of course most of the President's power still comes from Congress. Think of it this way: if Congress had never passed a single law, the President would have nothing to do all day. You can't very well execute the laws if there are no laws to be executed. However, because the President is not generally dependent on Congress, they have a measure of freedom in how they go about executing the laws.
This allows the President to serve as a check on the power of the legislature, as the Framers were very concerned with legislative overreach. They did not want the President chosen by Congress, and by the same token did not want him chosen by the state legislatures. This kind of boxed them in. There is only really one other way to choose a major public official, and that is direct election by the public. But this was undesirable for a few reasons. Most notably, a national popular election would create a huge incentive for each state to increase the number of people who were eligible to vote, as this would increase its overall influence within the country. The franchise was quite restrictive at the Founding, and this was a non-starter.
The solution came from James Wilson, the literal only person at the Convention who wanted a national popular vote. The other delegates rejected that idea unanimously, but then couldn't find anything else that would work. So Wilson proposed an electoral college. The idea was basically that each state would be entitled to a certain number of votes for president. But those votes would be cast, not by the state legislatures themselves, but by "electors" chosen by the state legislatures. Wilson liked this because it was a reasonable approximation of a true national election; everyone else liked it because giving each state a fixed number of votes would avoid the dynamic mentioned above.
Spoiler alert: the Electoral College has proven one of the worst ideas in the entire Constitution. It was hilariously ill-designed at the outset. Under the 1789 edition, each elector was to cast two votes for president. Whoever got the most votes would become President; whoever got second-most would become Vice-President. If no one got a majority of the total vote, then the House of Representatives would decide among the leading candidates. This design was clearly shaped by the expectation that General George Washington, who had served as President of the Philadelphia Convention, would be unanimously chosen as the first President under the Constitution. Every elector would cast one vote for Washington, and another for whoever they wanted to be Vice President. This is, indeed, what happened in the first two presidential elections.
But when Washington declined to seek re-election in the 1796 election, the system immediately broke down. The Washington Administration had seen the emergence of political parties with different views about how the government should be run: the Federalists, led by Vice President John Adams and Treasury Secretary Alexander Hamilton, and the Democratic-Republicans, led by Secretary of State Thomas Jefferson and Representative James Madison. Wilson's original design may have envisioned nonpartisan elections, where electors were simply men of prominence in the community, each of whom would vote for the two men they saw as best qualified for the office.
But by 1796 this idea was already obsolete. Instead, electors were partisan figures, chosen by the majority in each state's legislature specifically to support that party's slate. The way this was supposed to work is that every elector for a particular party would vote for that party's presidential and vice-presidential candidates, but one elector would leave the running mate's name off their ballot. Then, the winning presidential candidate would become President, and their running-mate, having received one fewer vote, would become Vice President.
This worked in exactly zero competitive elections. In 1796, Adams narrowly defeated Jefferson 71 to 68. But twelve Federalist electors left running mate Thomas Pinckney off their ballots. So Jefferson finished second overall, and became Vice President to his hated rival. Then, in 1800, Jefferson won the rematch over Adams. But this time no Republican electors left running mate Aaron Burr off their ballot. So Jefferson and Burr came in tied. And while you would ordinarily expect the running mate to bow out gracefully, Burr saw an opportunity to become President himself and tried it in the House with the support of Northern Federalists who hated Jefferson's guts.
Burr's gambit failed, but it was clear enough that the system was unusable. The coordination problem of getting exactly one elector to leave the vice-presidential candidate off their ballot was too hard. In a funny way, this kind of vindicated the design of the whole thing, because one of the other primary goals of the entire system was to make it very difficult to bribe the electors. (You can see this in some of the language about exactly how and when the electors cast their votes.)
By 1803, the Twelfth Amendment had been proposed and ratified, reworking the Electoral College significantly. Now, electors would vote separately for President and Vice-President. So modified, the system has basically worked well enough ever since, kind of approximating a real national election in the way that James Wilson had in mind. The strange circumstances surrounding Andrew Jackson's rise to power convinced almost every state (South Carolina the lone holdout until after the Civil War) to hold a popular vote to award its electoral votes. It kind of works, and for the entire twentieth century we could basically forget that the Electoral College existed and pretend we all got to vote for President ourselves. (We don't, by the way: if you ever pay close attention to the ballot in a presidential election you'll see that you are actually voting for the office of elector.)
But, well, the twenty-first century had other ideas. Twice in my lifetime, the winner of the presidency has received fewer votes than their chief rival for the office. This is particularly glaring in our age of more or less universal suffrage. The reasons why the Founding generation could not quite accept a national popular vote are long since obsolete. But we're stuck with this awkward kludge of a system they designed.
Anyway. Once a President is chosen by this Rube Goldberg machine, they serve for a guaranteed four-year term. If they are unable to finish that term, because they die or resign or whatever, the Vice President becomes President. This is approximately 98% of the Vice President's job. (The other 2% is breaking ties in the Senate.) Congress is given the power to create an order of succession for cases in which both the President and Vice President leave office at the same time, e.g. because they're both killed in a plane crash or something. Right now, the Speaker of the House is next up after the Vice President, followed by the President Pro Tem of the Senate, followed by the Secretary of State and then the other cabinet officers.
At the Founding, there was no limit on how many terms someone could serve as President. Washington's decision not to seek a third term created an informal precedent that was observed without exception into the Twentieth Century. After Franklin Roosevelt won four presidential elections in a row, Congress passed and the states ratified the Twenty-Second Amendment, which (somewhat inartfully) wrote the Washington precedent into law. So now no one can serve more than two terms, or really two and a half: the Amendment graciously allows a Vice President who takes office more than halfway into someone else's term to seek two terms of their own.
There are plenty of other little technicalities and edge cases, of course. The Twentieth and Twenty-Fifth Amendments did a lot of tinkering with various different scenarios involving the disability of either the President or the Vice President or both. But I believe I have covered the essentials of how the presidency is structured.
If you're left wondering what the President can actually do with the office, well, stay tuned! I'll be covering the powers of the office in the next lesson.
