Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the president of the United States, lays out the procedures for electing and removing the president, and establishes the president's powers and responsibilities.
Section 1 of Article Two establishes the positions of the president and the vice president, and sets the term of both offices at four years. Section 1's Vesting Clause declares that the executive power of the federal government is vested in the president and, along with the Vesting Clauses of Article One and Article Three, establishes the separation of powers among the three branches of government. Section 1 also establishes the Electoral College, the body charged with electing the president and the vice president. Section 1 provides that each state chooses members of the Electoral College in a manner directed by each state's respective legislature, with the states granted electors equal to their combined representation in both houses of Congress. Section 1 lays out the procedures of the Electoral College and requires the House of Representatives to hold a contingent election to select the president if no individual wins a majority of the electoral vote. Section 1 also sets forth the eligibility requirements for the office of the president, provides procedures in case of a presidential vacancy, and requires the president to take an oath of office.
Section 2 of Article Two lays out the powers of the presidency, establishing that the president serves as the commander-in-chief of the military, among many other roles. This section gives the president the power to grant pardons.
Section 2 also requires the "principal officer" of any executive department to tender advice. Though not required by Article Two, President George Washington organized the principal officers of the executive departments into the Cabinet, a practice that subsequent presidents have followed. The Treaty Clause grants the president the power to enter into treaties with the approval of two-thirds of the Senate. The Appointments Clause grants the president the power to appoint judges and public officials subject to the advice and consent of the Senate, which in practice has meant that presidential appointees must be confirmed by a majority vote in the Senate. The Appointments Clause also establishes that Congress can, by law, allow the president, the courts, or the heads of departments to appoint "inferior officers" without requiring the advice and consent of the Senate. The final clause of Section 2 grants the president the power to make recess appointments to fill vacancies that occur when the Senate is in recess.
Section 3 of Article Two lays out the responsibilities of the president, granting the president the power to convene both houses of Congress, receive foreign representatives, and commission all federal officers. Section 3 requires the president to inform Congress of the "state of the union"; since 1913 this has taken the form of a speech referred to as the State of the Union. The Recommendation Clause requires the president to recommend measures deemed "necessary and expedient." The Take Care Clause requires the president to obey and enforce all laws, though the president retains some discretion in interpreting the laws and determining how to enforce them.
Section 4 of Article Two establishes that the president and other officers can be removed from office through the impeachment process, which is further described in Article One.
Section 1: President and vice president[edit]
Clause 1: Executive power and term of office[edit]
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:[1]
Section 1 begins with a vesting clause that confers federal executive power upon the president. Similar clauses are found in Article I and Article III; the former bestows federal legislative power exclusively to Congress, and the latter grants judicial power solely to the Supreme Court, and other federal courts established by law.[2] These three articles together secure a separation of powers among the three branches of the federal government, and individually, each one entrenches checks and balances on the operation and power of the other two branches.[3]
Article I grants certain powers to Congress, and the Vesting Clause does not reassign those powers to the President. In fact, because those actions require legislation passed by Congress which must be signed by the president to take effect, those powers are not strictly executive powers granted to or retained by Congress per se. Nor were they retained by the U.S. Congress as leftovers from the Articles of Confederation. The Articles of Confederation, Continental Congress and its powers were abolished at the time the new U.S. Congress was seated and the new federal government formally and officially replaced its interim predecessor. And although the president is implicitly denied the power to unilaterally declare war, a declaration of war is not in and of itself a vehicle of executive power since it is literally just a public declaration that the U.S. government considers itself "at war" with a foreign political entity.
Regardless of the inability to declare war, the president does have the power to unilaterally order military action in defense of the United States pursuant to "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces". By U.S. law, this power is limited in that he must notify Congress within 48 hours after the beginning of military operations, explaining the source of his authority for the action. Once proper legal notification is given to the required members of Congress, military action can continue for up to 60 days without further authorization from Congress, or up to 90 days if the president "determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces."[4]
As treaties are by U.S. law official agreements with foreign governments recognized as such only after the Senate approves or rejects a resolution of ratification, the president obviously cannot make treaties unilaterally. However, the president does determine and decide U.S. foreign policy, and can enter into non-binding discussions and give conditional approval to agreements reached with foreign governments subject to Senate approval at a future date.[citation needed][5]
Additionally, since official treaties are specifically created under and by constitutional U.S. law, and are entered into by both government and the people as a whole, in their capacity as head of state and as the single individual representative of the United States and its citizens, the president does have Coauthority and Constitutional duty to unilaterally withdraw the United States from treaties if he or she determines the best interests and well being of the U.S. and its citizens are benefited by doing so.
As far as presidential appointments, as with treaties a person is not officially and legally appointed to a position until their appointment is approved by the Senate. Prior to Senate approval and publication of that approval along with an official date and time for their swearing-in and assumption of duties and responsibilities, they are nominees rather than appointees. And again, the president nominates people for specific positions at their pleasure and can do so without or in spite of Senate advice. Senate consent occurs when a majority of senators votes to approve and therefore appoint a nominee.
The head of the Executive Branch is the president. Although also named in this first clause, the vice president is not constitutionally vested with any executive power. Nonetheless, the Constitution dictates that the president and vice president are to be elected at the same time, for the same term, and by the same constituency. The framers' intent was to preserve the independence of the executive branch should the person who was vice president succeed to the duties of the presidency.[6]
Clause 2: Method of choosing electors[edit]
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Under the U.S. Constitution the president and vice president are chosen by electors, under a constitutional grant of authority delegated to the legislatures of the several states. The Constitution reserves the choice of the precise manner for selecting electors to the will of the state legislatures. It does not define or delimit what process a state legislature may use to create its state college of electors. In practice, the state legislatures have generally chosen to select electors through an indirect popular vote, since the 1820s. Most states use a "winner-take-all" system in which all the state's electors are awarded to the candidate gaining the most popular votes.[7] Maine and Nebraska allow individual congressional districts to each elect one elector.
In an indirect popular vote, it is the names of the candidates who are on the ballot to be elected. Most states do not put the names of the electors on the ballot.[7] It is generally understood by the voters and the electors themselves that they are the representative "stand-ins" for the candidates and are expected to cast their electoral college ballots for the president and vice president who appeared on the ballot. The actual electors being voted for are usually selected by the candidate's party. There have been a few cases where some electors have refused to vote for the designated candidate, termed a faithless elector. Many states have mandated in law that electors shall cast their electoral college ballot for the designated presidential candidate.[7] The constitutionality of such mandates was established by the Supreme Court of the United States in Chiafalo v. Washington [2020].
Each state chooses as many electors as it has representatives and senators representing it in Congress. Under the 23rd Amendment, the District of Columbia may choose no more electors than the state with the lowest number of electoral votes [in effect, three electors], although since that amendment's ratification the District's population has never reached the threshold that would otherwise entitle it to choose four or more electors. U.S. senators, representatives and federal government officials are barred from becoming electors; in practice, the two major federal parties frequently select senior state party and government officials [up to and including governors] to serve as electors.
All states other than Maine [including the District of Columbia] use a first past the post system in their presidential elections. In 2020, Maine switched from first past the post to ranked choice.[8]
In McPherson v. Blacker [1892], the Supreme Court affirmed the ability of a state to appoint its electors based on electoral districts rather than a statewide popular vote, describing the power of state legislatures to determine the method of appointment of electors as "plenary", and suggesting that it was not limited even by state constitutions.[9][10][11] In Bush v. Palm Beach County Canvassing Board [2000], the Supreme Court remanded to the Supreme Court of Florida the question of "the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority under Art. II, § 1, cl. 2".[12] In Williams v. Rhodes [1968], the Court struck down as a violation of the Equal Protection Clause an Ohio law which placed heavy burdens on minor parties seeking to be placed on the ballot for presidential electors.
The Supreme Court upheld the power of Congress to regulate political contributions intended to influence the appointment of electors in Burroughs v. United States [1934].[10]
Clause 3: Electoral College[edit]
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse [sic] by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse [sic] the President. But in chusing [sic] the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse [sic] from them by Ballot the Vice President.
[Note: This procedure was changed by the 12th Amendment in 1804.]
In modern practice, parties nominate their electors through various methods, see Elector Nominations. Then, each state chooses its electors in popular elections. In most states, the party with the plurality of the popular vote gets all of its electors chosen. Once chosen, the electors meet in their respective states to cast ballots for the president and vice president. Originally, each elector cast two votes for president; at least one of the individuals voted for had to be from a state different from the elector's. The individual with the majority of votes became president, and the runner-up became vice president. In case of a tie between candidates who received votes from a majority of electors, the House of Representatives would choose one of the tied candidates; if no person received a majority, then the House could again choose one of the five with the greatest number of votes. When the House voted, each state delegation cast one vote, and the vote of a majority of states was necessary to choose a president. If second-place candidates were tied, then the Senate broke the tie. A quorum in the House consisted of at least one member from two-thirds of the state delegations; there was no special quorum for the Senate. This procedure was followed in 1801 after the electoral vote produced a tie, and nearly resulted in a deadlock in the House.
While the Constitution reflects the framers' clear preference for the president to be elected by a constituency independent of the Congress, one of the most palpable limitations created by the stipulation that electors meet in their respective states as opposed to a single venue was that given the constraints of eighteenth-century technology there was no practical means for that constituency to resolve deadlocked elections in a timely manner, thus necessitating the involvement of Congress in resolving deadlocked elections. Obviously, having the electors meet in the national capital or some other single venue could have permitted the electors to choose a president by means of an exhaustive ballot without Congressional involvement, but the framers were dissuaded from such an arrangement by two major considerations. First, it would have been quite burdensome for electors from distant states to travel to the national capital using eighteenth century means for the sole purpose of electing the president – since they were to be barred from simultaneously serving in the federal government in any other capacity, electors would likely have no other reason to go there. But probably even more importantly, many framers genuinely feared that if the electors met in a single venue, especially under the initial assumption that they would act independently as opposed to being bound to vote for particular candidates, they would be vulnerable to the influence of mobs who might try to ensure a particular result by means of threats and intimidation – this had been a fairly common occurrence in European elections for powerful officials by relatively small constituencies [for example, and perhaps in particular, in papal elections] from the Middle Ages up to the Constitution's creation.[citation needed]
The 12th Amendment introduced a number of important changes to the procedure. Now, electors do not cast two votes for president; rather, they cast one vote for president and another for vice president. In case no presidential candidate receives a majority, the House chooses from the top three [not five, as before the 12th Amendment]. The Amendment also requires the Senate to choose the vice president from those with the two highest figures if no vice presidential candidate receives a majority of electoral votes [rather than only if there's a tie for second for president]. It also stipulates that to be the vice president, a person must be qualified to be the president.
Clause 4: Election day[edit]
The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Congress sets a national Election Day. Currently, electors are chosen on the Tuesday following the first Monday in November [the first Tuesday after November 1], in the year before the president's term is to expire.[13] The electors cast their votes on the Monday following the second Wednesday in December [the first Monday after December 12] of that year. Thereafter, the votes are opened and counted by the vice president, as president of the Senate, in a joint session of Congress.[citation needed]
Clause 5: Qualifications for office[edit]
Beginning of the clause in the 1787 document
Section 1 of Article Two of the United States Constitution sets forth the eligibility requirements for serving as president of the United States:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In this 1944 poster, Franklin Roosevelt [left] successfully campaigned for a fourth term. He was the only president who served more than two terms.
At the time of taking office, the President must be:
- a natural-born citizen [or they became a citizen before September 17, 1787]
- at least 35 years of age
- an inhabitant of the United States for at least fourteen years.
A person who meets the above qualifications, however, may still be constitutionally barred from holding the office of president under any of the following conditions:
- Article I, Section 3, Clause 7, gives the U.S. Senate the option of forever disqualifying anyone convicted in an impeachment case from holding any federal office.[14]
- Section 3 of the 14th Amendment prohibits anyone who swore an oath to support the Constitution, and later rebelled against the United States, from becoming president. However, this disqualification can be lifted by a two-thirds vote of each house of Congress.[15]
- The 22nd Amendment prohibits anyone from being elected to the presidency more than twice [or once if the person serves as president or acting president for more than two years of a presidential term to which someone else was originally elected].[16][17]