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Constitution 101: The President and the Executive Branch

Can the President start a war without Congress? Can he fire executive branch officials without cause? Find out in Part 2 of Legal Lad’s series on the U.S. Constitution.

By
Adam Freedman
September 21, 2012

Constitution 101: The President and the Executive Branch

Today’s Topic: Constitution 101 – The President and the Executive Branch

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Constitution 101

This is the second installment of a new series on the U.S. Constitution – consider it to be Legal Lad’s contribution to the 2012 election season! For more on the Constitution, you can check out my new book, The Naked Constitution: What the Founders Said, and Why it Matters.

Sponsor: The podcast version of this article is brought to you by Stitcher. With free Stitcher SmartRadio, you can listen to this and thousands of other podcasts on your mobile phone. Use promo code “Legal” and get a chance to win a cash prize.

The President’s Powers Are Not Specified

In our last episode, The Powers of Congress, we discussed Article I of the Constitution, which creates the Congress and sets forth its powers and duties. Today we move on to Article II which establishes the Executive Branch, headed, of course, by the President. 

Article II starts out with the following statement: “The executive power shall be vested in a President of the United States of America.”   What is significant about this sentence is what it doesn’t say – specifically, it doesn’t try to define the term “executive power.” In Article I, the Constitution’s framers said that Congress shall be vested with the legislative powers “herein granted,” and then the framers went on to list all the powers of Congress. This is the doctrine of “enumerated powers” that I discussed in the last episode

By contrast, Article II simply says that the President shall be vested with “the executive power,” without defining what that power is. The Constitution seems to assume that everyone would agree on the scope of executive power. Broadly speaking, the framers understood “executive power” to encompass all the powers necessary to carry a law into effect – including such tasks as collecting taxes and fees, policing violations of the law, and prosecuting the violators. 

And yet, throughout American history, there have been controversies about the precise limits of presidential power. As I discussed in my episode What Is Contempt of Congress?, courts have developed a doctrine of “executive privilege” even though such a doctrine is not spelled out in the Constitution.

Can the President Start Wars?

Perhaps the most controversial areas of presidential power is the ability to send American troops into combat.   According to Article I of the Constitution, it is the Congress, not the president, that has the power to declare war – this is one of the enumerated powers of the legislative branch. That would seem to give Congress the initiative when it comes to sending in the troops. But it’s not that simple. In the earlier drafts of the Constitution, the text said that Congress would have the power to “make war,” but that was changed to “declare war” – a change that was made, according to James Madison, to allow the president a free hand “to repel sudden attacks.”   The idea is that the president, as commander-in-chief of the armed forces has to be able to respond to imminent threats; he shouldn’t have to wait around for Congress to pass a declaration of war.

In the modern era, presidents have taken a fairly broad view of their power to repel sudden attacks. Consider that Congress has not declared war on anyone since the attack on Pearl Harbor in 1941 – and yet, America has engaged in numerous wars since then, including large conflicts such as Korea, Vietnam, and Iraq. In March 2011, U.S. forces bombed Libya on the command of President Obama, without any congressional authorization.

The President’s Power to Hire and Fire

The Constitution does specify the president’s power to appoint members of the executive branch, with senior executive officers requiring “advice and consent” of the Senate. The Constitution is silent, however, on the president’s power to fire members of the executive branch. The first Congress debated this very question in 1789 and concluded that the power to fire executive officers was inherent in the power of the president. This understanding was essentially unchallenged until the early years of the 20th century, when Congress began creating administrative agencies whose officers could not be removed by the president – unless the president could establish some malfeasance. 

A controversy erupted in 1933 when President Franklin D. Roosevelt tried to fire a commissioner of the Federal Trade Commission, and the commissioner refused to go. FDR argued that the very nature of executive power required that the president be able to fire all officials responsible for implementing federal law: a theory that is now referred to as the “unitary executive theory.” Ultimately, the dispute went up to the Supreme Court, which held that Congress was within its rights to create administrative agencies that are somewhat insulated from presidential control. 

The decision in that case – known as Humphrey’s Executor v. United States – cleared the way for the alphabet soup of federal regulatory agencies that we know today: the FTC, SEC, FCC, NLRB, etc. 

And that’s the report from QDT – I mean, Quick and Dirty Tips. Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life.

You can send questions and comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.

Constitution and Roosevelt Stamp images courtesy of Shutterstock