Constitutional Role of the Executive Branch

views updated

Constitutional Role of the Executive Branch

The U.S. Constitution contains the blueprint for the federal government. Article II focuses on the executive branch. The main role of the executive branch is to enforce the nation's laws. It also leads the country's relations with foreign nations, commands the armed forces, and even participates in the lawmaking process.

The Constitution makes the president of the United States the head of the executive branch. It authorizes the president to seek advice from the heads of the executive departments. Executive departments are offices responsible for large areas of the federal government. The Constitution also provides for a vice president to serve the same four-year term as the president.

Articles of Confederation

America's Founding Fathers wrote the Constitution during a federal convention in 1787 and adopted it in 1788. Prior to then, beginning in 1781, the blueprint for American government was the Articles of Confederation.

The Articles established a Congress with both legislative and executive powers. This included the power to make and enforce the laws and operate the military. There was no executive branch separate from the Congress, and no judiciary as would exist under the Constitution.

Delegates serving in the Continental Congress wrote the Articles in 1777, one year after America declared independence from Great Britain. The Continental Congress was the governmental body that represented the states in their conflicts with Great Britain before and during the American Revolution (1775–83). At the time, Americans were generally fearful of executive power because of how King George III (1738–1820) of England treated the colonists leading up to the Revolutionary War (1775–83).

One of the problems the colonists had with Great Britain was its domination of commerce, or business and trade, in America. George III and the British Parliament, for example, passed laws giving the East India Company, a British company, control over the tea trade in America. Parliament also levied taxes on tea purchases in America. American merchants who wanted to participate in the tea trade and colonists who found the taxes unfair expressed their displeasure by dumping tea into the harbor during the famous Boston Tea Party of 1773.

When the delegates wrote the Articles of Confederation, they were determined to create a government that could not dominate them. According to Sidney M. Milkis and Michael Nelson in The American Presidency, the states told their delegates that government under the Articles could only be as powerful as necessary to conduct the Revolutionary War. In other words, they only wanted the government to be powerful enough to raise and equip an army and navy for winning the war. They did not want their state governments to be replaced with a powerful central government. This is one reason why the delegates did not create a separate executive branch of government or give the executive power to one person, such as a monarch. Instead, they gave all governmental power to Congress, which could have between two and seven delegates from each state. Each state's delegation could cast one vote for the state on matters before Congress.

When all of the delegates were not assembled for full sessions of Congress, the Articles allowed the government to be run by "A Committee of the States." The committee contained one delegate from each state, and those delegates appointed one person to be president of the committee. No person could be president for more than one year in every three-year term of Congress. The president had just one vote, like every other member of the committee. The president of the committee is the closest thing America had to an executive president until adoption of the U.S. Constitution. Ten men served as president under the Articles of Confederation, including Massachusetts politician John Hancock (1737–1793), the first person to sign the Declaration of Independence on July 4, 1776.

The military under the Articles of Confederation

Some Americans felt government did not work very well under the Articles of Confederation. Congress, for instance, did not have power to tax the people or businesses of America directly. To get money for operating the government, it had to borrow money or ask the states to collect taxes to send to Congress. States were generally unwilling to do this unless they were near American Revolution battles or conflicts with Native Americans requiring assistance from the American army. Congress had no power to force uncooperative states to collect and contribute their share of taxes.

After the American Revolution ended in 1783, financial problems left America with a weak military and unpaid debts to suppliers. This became a problem as Great Britain and Spain encouraged Native Americans to raid American frontier settlements.

Lack of a well-paid army proved personally scary to members of Congress. In the summer of 1783, unpaid American soldiers marched to Philadelphia, Pennsylvania, surrounding Congress to demand payment for their war service. The members of Congress escaped unharmed.

Some men in Congress wished they had a ready army to crush Shays's Rebellion in Massachusetts in the fall and winter of 1786. The rebels, including former American Revolution soldier Daniel Shays (c. 1747–1825), were farmers protesting debtor laws in that state. Debtor laws allowed the government to seize land and property from people who could not pay their debts, or bills. The people asked Massachusetts to issue paper money to help them pay their bills, but the government refused. To protest the government's actions, a group of citizens organized rebellions to shut down court proceedings against debtors. Without assistance from the federal army, Massachusetts crushed the rebellion with its militia, or armed soldiers.

Commerce under the Articles of Confederation

American commerce was another problem under the Articles of Confederation. The Articles gave Congress the ability to make treaties, or official agreements, concerning commerce with foreign nations. These treaties, however, could not prevent the states from regulating commerce with foreign nations on their own. The result was a mixture of laws concerning commerce with foreign nations. England and France, meanwhile, were banning the importation of manufactured goods from America. Congress lacked an executive leader or the legislative and treaty power to fix this state of affairs.

In 1786, the legislature of Virginia called for a national meeting to be held in Annapolis, Maryland, in September. Only six of the thirteen states sent delegates to the meeting. Their goal was to explore how to improve American commerce. Instead of finding answers, the delegates decided to call for a federal convention to be held in Philadelphia in May 1787 to explore how to fix the Articles of Confederation.

At first, Congress resisted the idea of a federal convention. When states began to appoint delegates anyway, and after Shays's Rebellion, Congress officially called for the convention by resolution of February 1787. According to Milkis and Nelson in The American Presidency, the resolution advised "that on the second Monday in May next [the following May] a Convention of delegates who shall have been appointed by the several states be held in Philadelphia for the sole and express purpose of revising the Articles of Confederation."

Guardian of Liberty

The Founding Fathers proposed a new Constitution by arguing that American government was too weak under the Articles of Confederation. They also argued that American commerce, or business and trade, could be strengthened under the Constitution.

Not everyone agreed with this assessment. A man writing under the pen name Centinel, which means "guard," published a newspaper essay on December 22, 1787. As reprinted in The Founders' Constitution, Centinel said America's problems were caused by large debts from the American Revolution, and by the American habit of spending money to import "merchandise and luxuries" from other countries.

Centinel said that if American commerce needed to be unified through federal regulation, the Articles of Confederation could be changed accordingly. Creating a wholly new government with greatly expanded powers, however, would "render the citizens of America tenants at will of every species of property, of every enjoyment, and make them the mere drudges of government. The gilded [gold-covered] bait conceals corrosives that will eat up their whole substance." In other words, Centinel thought the Constitution would destroy the states and individual liberty.

Separation of powers

Fifty-five men attended the Constitutional Convention from May to September 1787. The men were delegates from twelve of the thirteen American states. (Rhode Island refused to send delegates because the men in power there favored strong state governments, not a strong national government. They feared that a strong national government would be impossible for the people to control.)

Constitutional Convention Illegal?

The delegates to the Constitutional Convention of 1787 were not there to write a new constitution. They were there to discuss how to revise American government under the Articles of Confederation to make it stronger. According to The Founders' Constitution, for example, the legislature of Virginia sent its delegates to the convention with authority "to join with [the other delegates] in devising and discussing all such Alterations and farther Provisions as may be necessary to render the Foederal Constitution adequate to the Exigencies [urgent matters] of the Union [of thirteen states]."

Revising the Articles of Confederation by Convention might have been illegal. Under the Articles, only Congress could make changes, and then only with agreement by the legislatures of all thirteen states. There was no provision in the Articles for a federal convention.

The Articles also had no provision for ratification, or approval, of changes by less than all thirteen state legislatures. Yet the delegates who wrote the Constitution proposed that it be approved by state conventions instead of state legislatures. They also proposed that only nine of the thirteen state conventions needed to approve it for it to become law between the approving states. Nine was the number of states that had to agree to important decisions under the Articles. The delegates probably feared that requiring unanimous approval by the thirteen states would make it easy for one state to block adoption of the Constitution. On the other hand, if nine states approved, the other four would feel pressured to join rather than attempt to survive as independent states.

In a letter to Secretary of War Henry Knox (1750–1806) on February 3, 1787 (as reprinted in The Founders' Constitution), convention delegate George Washington dismissed concerns about the legality of the Convention. He said the federal government would collapse if the country did not strengthen it as soon as possible:

The legality of this Convention I do not mean to discuss, nor how problematical the issue of it may be. That powers are wanting, none can deny. Though what medium they are to be derived, will, like other matters, engage public attention. That which takes the shortest course to obtain them, will, in my opinion, under present circumstances, be found best. Otherwise, like a house on fire, whilst the most regular mode of extinguishing it is contended for, the building is reduced to ashes.

According to Congress's February resolution, the delegates were supposed to explore how to change the Articles of Confederation to strengthen the national government. After their first meeting on May 25, however, the delegates decided to scrap the Articles and write a whole new plan of government.

Forty-two of the delegates were current or former members of Congress, so they knew from experience the problems America had under the Articles of Confederation. An important reason for getting rid of the Articles was that it did not provide an energetic executive leader for the country.

The delegates, however, did not want an executive leader who was too powerful. Most of them agreed that the best government would be one that separated the legislative, executive, and judicial powers into different branches. Writing in The Federalist,No. 47, delegate and future president James Madison (1751–1836) said, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny [dictatorship]."

Thomas Jefferson (1743–1826), who would be the third president of the United States, agreed. He thought separation of the executive and legislative powers was essential if government was to operate effectively. Writing a letter to Virginia delegate Edward Carrington (1748–1810) from Paris, where he was the American ambassador to France in August 1787, Jefferson said (as reprinted in The Founder's Constitution):

I think it very material to separate in the hands of Congress the Executive and Legislative powers, as the Judiciary already are in some degree. This I hope will be done. The want of it has been the source of more evil than we have ever experienced from any other cause. Nothing is so embarrassing nor so mischievous in a great assembly as the details of execution. The smallest trifle of that kind occupies as long as the most important act of legislation, and takes place of every thing else. Let any man recollect, or look over the files of Congress, he will observe the most important propositions hanging over from week to week and month to month, till the occasions have past them, and the thing never done. I have ever viewed the executive details as the greatest cause of evil to us, because they in fact place us as if we had no federal head, by diverting the attention of the head [Congress] from great to small objects.

To separate the powers of government, the delegates wrote the constitution to give the legislative power to Congress, the executive power to the president, and the judicial power to the Supreme Court and the lower courts beneath it.

Checks and balances

The broad separation of powers in the Constitution is a little misleading. In reality, the three branches share the powers of government through a system of checks and balances. Many political scientists say this system creates a government of shared powers instead of a government of separated powers.

Many delegates to the Constitutional Convention were interested in checks and balances to prevent the president from being too strong. They knew the history of monarchical (rule by one) power in the world and of the colonists' experiences under King George III. They knew the history of the abuse of executive power by colonial governors appointed by Great Britain.

Some convention delegates, however, wanted the president to be as powerful as the kings and queens of England. According to Forrest McDonald in The American Presidency, Maryland delegate John Francis Mercer (1759–1821) said more than twenty of the fifty-five delegates were monarchists. Speaking at the convention on June 2, 1787, Delaware delegate John Dickinson (1732–1808) said a limited form of monarchy, such as existed in Great Britain, was one of the best kinds of government in the world, but that the people of America would not accept it for themselves.

For the executive branch of the federal government, the system of checks and balances was a compromise between the monarchists and those who feared monarchy. Under the Constitution, Congress and the president actually share the power to make laws. The president and the Senate share the power to make treaties with foreign nations and to appoint people to important government offices. The president enforces the nation's laws, but the judicial branch decides the cases brought by the president's enforcement agencies. (For more information on checks and balances, see chapters 7 and 8.)

Election of the president and vice president

One of the most difficult decisions at the Convention was how the president should be elected. The delegates considered many proposals. New York delegate Gouverneur Morris (1752–1816) and Pennsylvania delegate James Wilson (1742–1798) suggested that the people, meaning free men, elect the president by popular vote. The delegates strongly rejected this proposal. For various reasons, they did not believe democracy was wise on a national scale. Some feared giving the people too much power in government. Others thought the people were not intelligent or well enough informed to select a good president. Still others thought democracy worked only for local decisions.

New York delegate Alexander Hamilton (1757–1804) was at the other end of the political spectrum from Morris and Wilson. According to Milkis and Nelson in The American Presidency, Hamilton wrote, "The English model is the only good one on this subject." Hamilton wanted special electors from the states to select a president to serve for life, just like a king or queen. Virginia delegate James McClurg (1746–1823) and Delaware delegate Jacob Broom (1752–1810) agreed with the life-term idea but suggested that Congress select the president. The delegates rejected these proposals, too. Despite the existence of monarchists among them, most of the delegates feared giving one person the power of the presidency for life.

The very first constitutional plan the delegates considered was the Virginia Plan, written by Virginia delegate James Madison and presented by Virginia delegate Edmund Randolph (1753–1813). The Virginia Plan proposed that the executive branch of government be selected by the legislature. The delegates approved a form of this proposal in late August, less than a month before the Convention ended.

A problem with legislative selection of the president was that many delegates wanted the president to be eligible for reelection. They knew, however, that allowing Congress to reelect a president many times could lead to unfair deals between Congress and a president.

In the end, the delegates adopted a plan that had some of what most of the delegates wanted. The plan, called the electoral system, appears in Article II, Section 1, of the Constitution. It provides for selection of a president and vice president for a term of four years, with reelection allowed. To be president, a person must be at least thirty-five years old, a citizen of the United States, and a resident of the United States for at least fourteen years.

What's in a Name?

During most of the Constitutional Convention, the delegates referred to the head of the executive branch of government simply as "the Executive." When it came time to finish a draft of the Constitution, they had to choose an official name for the chief executive officer. "President" and "governor" were two possibilities. One draft even proposed that the president be referred to as "His Excellency."

In the end, the delegates chose "president" and dropped "His Excellency." Article I, Section 9, even specifies that the United States cannot use titles of nobility. Given their experiences under King George III, most Americans did not want the president to seem like a king or queen.

The electoral system gives each state a number of electors equal to the total number of representatives and senators they have in Congress. Each state gets to decide how to choose its electors. Once chosen, the electors meet in their state capitals on a day chosen by Congress.

Under the Constitution originally, each elector was to vote for two people, one of whom had to be from outside the elector's state. The votes would then be tallied and sent to the president of the Senate, who would open them in front of the whole Congress. If one person received a simple majority of votes, that person would become the next president, and the person with the second most votes would become the vice president. The House of Representatives got to select the president and the Senate got to select the vice president in cases of tie votes or failure of one person to receive a simple majority.

This system was used for the nation's first four presidential elections. In the election of 1800 (the nation's fourth), Vice President Thomas Jefferson and New York politician Aaron Burr (1756–1836) received the same number of electoral votes. Even though the electors clearly intended Jefferson to be president and Burr to be vice president, the Constitution required the House of Representatives to resolve the tie vote. A power struggle ensued between the Republican Party, to which Jefferson and Burr belonged, and the Federalist Party. The Federalists, the party of incumbent president John Adams (1735–1826; served 1797–1801), did not want Jefferson to be president. The Federalists in the House tried to give the election to Burr, but on the thirty-sixth ballot, Jefferson won. To prevent such a situation from happening again, Congress proposed and America adopted the Twelfth Amendment in 1804. Under the Twelfth Amendment, electors cast separate ballots for president and vice president. (See chapter 4, "Changes in the Executive Branch.")

Executive powers

Under the Articles of Confederation, Congress had sole authority to enforce the nation's laws. Its enforcement powers, however, were not very strong. The men who wrote the Constitution created the executive branch so the federal government would have stronger enforcement powers. These powers come mainly from the general vesting clause, the enforcement clause, the executive departments clause, and the pardons clause.

General vesting clause

Article II, Section 1, of the Constitution begins, "The executive power shall be vested in a president of the United States of America." The Constitution does not define the term "executive power," so scholars have argued that the term means different things. Some scholars think executive power is limited to the specific presidential powers contained in the Constitution.

Others think the vesting clause gives presidents general power not mentioned in the Constitution. Delegate Alexander Hamilton, who was the first secretary of the treasury under President George Washington (1732–1799; served 1789–97), favored such an interpretation. Hamilton believed that limiting a government to specific powers would prevent the government from handling unforeseen circumstances.

John Locke (1632–1704) was a philosopher whose writings influenced the men who wrote the Constitution. He also thought executive rulers should have undefined powers. In Second Treatise on Government (as quoted by Milkis and Nelson in The American Presidency), Locke wrote that rulers should have power "to do several things of their own free choice, where the law was silent, or sometimes, too, against the direct letter of the law, for the public good."

Whatever they think "executive power" means, most scholars agree that it includes the power to enforce the nation's laws. When referring to the separation of powers, the founders talked about the need to separate the power to make the laws from the power to enforce them. Under the Constitution, Congress has the primary lawmaking power, and the executive branch, headed by the president, is the primary law enforcer.

Enforcement clause

The power to enforce the laws also appears in Article II, Section 3. It says the president "shall take care that the laws be faithfully executed." This means that the president not only has the power to enforce the laws, but has a duty to do so. English monarchs throughout history often chose not to enforce the laws against favored people. Requiring a president to execute the laws "faithfully" is supposed to prevent the president from giving people special treatment under the laws.

In reality, though, presidents and their enforcement agencies get to use their judgment to decide when to enforce a law and when not to. Time and financial limitations prevent the executive branch from prosecuting all violations of the law. Political considerations, such as the power or popularity of an accused criminal, also affect the process. The combination of executive judgment, practical limitations, and political considerations makes it impossible to prevent the executive branch from giving special treatment to particular people.

Executive departments

Article II, Section 2, says the president "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." This clause gives the president power to use executive departments to run the government and enforce the nation's laws.

Executive departments are government offices that focus on a large area of the government's duties. Congress has sole power to create executive departments, and the president has primary power to run them. Each department has a leader who is usually called the secretary. When the federal government began to operate under the Constitution in 1789, there were only three departments: State, Treasury, and War. During the administration of Harry S. Truman (1884–1972; served 1945–53), the Department of War became the National Military Establishment, and then was renamed the Department of Defense. In 1789, there also was an Office of the Attorney General, who is the head lawyer for the government. This office later became known as the Department of Justice.

The Department of Justice is the president's main law enforcement agency. The head of the department is called the attorney general. The Department of Justice investigates federal crimes through the Federal Bureau of Investigation (FBI). Attorneys who work for the Department of Justice, called U.S. attorneys, prosecute cases against accused criminals to enforce the nation's laws.


Article II, Section 2, of the Constitution gives the president "power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." A reprieve is temporary relief from punishment for a crime. Reprieves give convicted criminals time to ask a court to change their punishment. A pardon is complete forgiveness for a crime. A pardon eliminates all punishment that a person might suffer if convicted of a crime.

The delegates to the Constitutional Convention had different feelings about the pardon power. Some feared presidents would use the power to pardon their friends, or even to pardon people who helped them commit a crime. Others, including Alexander Hamilton, argued that presidents needed the pardon power to help end rebellions against the government.

The delegates compromised by giving the president power to grant pardons except in cases of impeachment. Under the Constitution, the president and all other federal officers can be impeached and removed from office for committing treason, bribery, or other high crimes and misdemeanors. The Constitution defines treason as levying war against the United States or giving aid and comfort to its enemies. Bribery means giving something of value to influence official government action. The phrase "high crimes and misdemeanors" is completely undefined. The president cannot pardon himself or anyone else to avoid an impeachment.

Legislative powers

Congress has the primary lawmaking power under the Constitution. The system of checks and balances, however, gives the president lawmaking power too. The state of the union clause, recommendations clause, and veto power are the main sources of the president's lawmaking power.

State of the union message and recommendations

Article II, Section 3, of the Constitution begins, "He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient."

This clause did not cause much controversy when America was considering whether to adopt the Constitution. It requires the president to give Congress reports on how the country is doing, and to recommend laws that Congress should pass, change, or eliminate. In practice, these powers are more important than they seem. They allow presidents, especially popular ones, to set the tone for a session of Congress, influencing Congress's legislative agenda, or plan. For example, in his State of the Union address just after the start of his second term on February 2, 2005, President George W. Bush (1946–; served 2001–) asked Congress to pass laws to reduce lawsuits in America and to make Social Security investments private instead of public. (Social Security is a retirement and disability plan operated by the federal government, as of 2005.) Bush signed new legislation to reduce lawsuits by the end of that month.

Pardoning the Politicians and the People

The Constitution gives the president power to grant pardons and reprieves for offenses against the United States. A pardon is forgiveness for a crime, preventing the criminal from being punished. A reprieve is temporary suspension of a sentence. A reprieve gives a convict time to ask the court to change his or her sentence.

Presidents sometimes grant pardons to high-ranking government officials. The most famous example is President Gerald Ford's (1913–; served 1974–77) pardon of former president Richard Nixon (1913–1994; served 1969–74) on September 8, 1974. President Nixon had resigned from office one month earlier as the House of Representatives was about to impeach him for his involvement in covering up the Watergate scandal. (Impeachment is an official accusation of wrongdoing by the House of Representatives that can lead to conviction and removal from office by the Senate.) The Watergate scandal involved burglary of the offices of the Democratic National Committee. Ford said he pardoned Nixon to prevent the country from suffering through divisive criminal proceedings. The pardon was unpopular with many Americans, leading to Ford's defeat by former Georgia governor Jimmy Carter (1924–; served 1977–81) in the election of 1976, according to some scholars.

Another famous pardon happened in December 1992, when President George Bush (1924–; served 1989–93) pardoned six members of the administration of President Ronald Reagan (1911–2004; served 1981–89). The six men had been accused of criminal conduct in connection with the Iran-Contra scandal. The scandal involved the Reagan administration's sale of weapons to Iran for money illegally used to support rebels (called Contras) who were fighting the government in Nicaragua. The Reagan administration disapproved of the Nicaraguan government, which was based on socialism. Socialism involves government ownership of the means of production in an economy. Reagan's announcement of the Iran-Contra scandal, which he denied knowledge of, only slightly tarnished his overall popular approval in America.

History also has examples of presidents pardoning people who were not in positions of power. In 1792, President George Washington (1732–1799; served 1789–97) helped end the Whiskey Rebellion by granting a full pardon to the rebels. The Whiskey Rebellion was a protest by grain farmers against a tax on whiskey, which is made from grain.

When a pardon covers a group of people instead of specific persons, it can be called an amnesty. Presidents Abraham Lincoln (1809–1865; served 1861–65) and Andrew Johnson (1808–1875; served 1865–69), for example, granted amnesty to Confederate soldiers and leaders who had rebelled against the United States in the American Civil War (1861–65). Over a century later, presidents Gerald Ford and Jimmy Carter (1924–; served 1977–81) signed amnesties for people who had evaded the military draft during the Vietnam War (1954–75).

Veto power

The veto power is the power to reject laws passed by Congress. It appears in Article I, Section 7, of the Constitution. Under this section, Congress must present every bill it passes to the president. The president then has ten days (excluding Sundays) to consider and either approve or reject the bill. If the president signs the bill within ten days, or does nothing with the bill within ten days, the bill becomes law.

There are two ways a president can veto a bill. The first method, called a return veto, is when the president returns a bill to Congress with a veto message within ten days of getting it. A veto message explains why the president is vetoing a bill.

The second method is called a pocket veto. It happens when a president does nothing with a bill, but Congress adjourns, or takes an official recess break, before the president has the bill for ten days. In such cases, the bill is rejected even though the president did not use a return veto.

If the president vetoes a bill, it does not become law unless Congress overrides the veto by a two-thirds vote in both chambers, the Senate and the House of Representatives. History shows that overriding a presidential veto is very hard. According to a study by the Congressional Research Service in April 2004, presidents used the return veto 1,484 times and the pocket veto 1,065 times to that point in history. Congress voted to override only 106, or 7.1 percent, of the 1,484 return vetoes. (It is impossible to override a pocket veto, because a pocket veto occurs when Congress has adjourned.)

Military powers

Article II, Section 1, makes the president "commander in chief of the army and navy of the United States." Article I, Section 8, gives Congress the power "to make rules for the government and regulation of the land and naval forces" and "to declare war." This means that, in theory, Congress and the president share power over the armed forces.

In August 1787, a month before the end of the Constitutional Convention, a draft of the Constitution gave Congress the general power "to make war." On August 17, delegates James Madison and Elbridge Gerry (1744–1814) suggested changing "make war" to "declare war." The president, they said, should have the power to defend America from attack without a declaration of war. The delegates approved this change. Presidents have since used their power as commander in chief to conduct military operations, even offensive ones, without a declaration of war. As of 2005, Congress has declared war eleven times for five wars, including the War of 1812 (1812–15; one declaration against the United Kingdom), the Mexican-American War (1846–48; one declaration against Mexico), the Spanish-American War (1898; one declaration against Spain), World War I (1914–18; declarations against Germany and Austria-Hungary), and World War II (1939–45; declarations against Japan, Germany, Italy, Bulgaria, Hungary, and Romania). Every other war, including the Korean War (1950–53), Vietnam War (1954–75), and the Persian Gulf Wars, has been undeclared, though often supported by a congressional resolution.

Foreign affairs

The executive branch of government has the primary authority to conduct relations with foreign nations. This power comes from the clauses on ambassadors and treaties.

An ambassador is a person who represents a nation in relations with another nation. Article II, Section 2, gives the president power to appoint ambassadors with the advice and consent of the Senate. This means the Senate must approve presidential appointments to ambassador posts by a simple majority.

Article II, Section 3, gives the president the power to receive ambassadors and other public ministers from foreign nations. The power to appoint American ambassadors and receive foreign ambassadors makes the executive branch the focal point for America's relations with foreign nations. The president conducts these relations through the Department of State, which is run by the secretary of state.

Article II, Section 2, gives the president the power to make treaties with other nations. A treaty is an official agreement that governs the relations between nations. It creates an international law that the countries agree to obey and enforce. Under the Constitution, the president cannot make a treaty unless two-thirds of the Senate concurs, or agrees. This encourages presidents to work with senators while they negotiate treaties with other nations. On May 24, 2002, for example, President George W. Bush and President Vladimir Putin (1952–) of Russia signed the Moscow Treaty on Strategic Offensive Reductions. The Moscow Treaty was an agreement to reduce the number of strategic nuclear warhead arsenals in America and Russia to between 1,700 and 2,200 each by December 2012. The U.S. Senate ratified the treaty unanimously in March 2003.

Since the Senate must approve treaties, scholars debate whether the Senate must approve when a president cancels a treaty. Some scholars think presidents may cancel treaties on their own as part of their power over foreign affairs. Others think treaties are laws under the Constitution, and that letting presidents cancel them unconstitutionally gives one person the power to repeal a law. In December 2001, for example, President Bush notified Russia and the world that America was withdrawing from the Antiballistic Missile Treaty, which it had made with the Soviet Union in 1972. Bush withdrew from the treaty so America could work on an antimissile defense system, which the treaty would have prohibited. Bush said such a system was necessary to fight terrorism, and he did not seek Senate approval for his action.


Under Article II, Section 2, the president has the power to appoint not only ambassadors, but also "other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." Just as with ambassadors, the Senate must approve such appointments by a simple majority.

Vice president

When they wrote the Constitution, the delegates struggled with what would happen if a president died or left office before the end of his term. Their solution was to create the position of vice president.

The vice president is chosen at the same time as the president for the same four-year term. Article II, Section 1, of the Constitution says, "In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on [be passed to] the vice president and the Congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice president." The vice president has taken over as president nine times in history, eight times following the death of the president and once after the president resigned.

The only other job the vice president has in the Constitution is to serve as president of the Senate. In that role, the vice president has the power to break tie votes when the whole Senate is evenly split on a decision. The vice president does not get to vote in the Senate at any other time. The delegates to the Constitutional Convention, however, imagined that the vice president would attend Senate sessions fairly regularly. The vice president's role as president of the Senate is another way the executive branch participates in the lawmaking process.


The delegates to the Constitutional Convention decided to allow presidents to be reelected an unlimited number of times. In practice, only Franklin D. Roosevelt (1882–1945; served 1933–45) chose to run for more than two terms. (This was changed in 1951 by the Twenty-second Amendment, which allows a president to serve a maximum of two terms, or two terms and two years if the president was finishing no more than half of his predecessor's term.) The delegates wanted, however, a way to remove presidents who committed serious violations of law. The procedure for doing this is called the impeachment process. Under Article II, Section 4, presidents and other civil officers can be impeached and removed from office for "treason, bribery, or other high crimes and misdemeanors."

Congress alone has the impeachment power, which is divided between the House of Representatives and the Senate. The House has sole power to impeach a president or other federal officer. Impeachment is an official accusation that a president or other officer has committed treason, bribery, or other high crimes and misdemeanors.

If the House impeaches a president (or other federal officer), the Senate conducts an impeachment trial. The purpose of the trial is to determine whether the president should be removed from office for committing the crimes charged by the House. The Senate can convict and remove an impeached president (or other officer) only by a two-thirds majority.

As of 2005, only two presidents have been impeached by the House: Andrew Johnson (1808–1875; served 1865–69) in 1868 and Bill Clinton (1946–; served 1993–2001) in 1998. Neither was convicted or removed from office by the Senate.

For More Information


Beard, Charles A. American Government and Politics. 10th ed. New York: Macmillan Co., 1949.

Beard, Charles A. An Economic Interpretation of the Constitution of the United States. New York: Macmillan, 1935.

Charleton, James H., Robert G. Ferris, and Mary C. Ryan, eds. Framers of the Constitution. Washington, DC: National Archives and Records Administration, 1976.

Cronin, Thomas E. Inventing the American Presidency. Lawrence: University Press of Kansas, 1989.

Kelly, Alfred H., and Winfred A. Harbison. The American Constitution: Its Origins and Development. 5th ed. New York: W. W. Norton & Co., 1976.

Kurland, Philip B., and Ralph Lerner. The Founders' Constitution. 5 vols. Indianapolis: Liberty Fund, 1987.

Levy, Leonard W. Original Intent and the Framers' Constitution. New York: Macmillan, 1988.

McClenaghan, William A. Magruder's American Government 2003. Needham, MA: Prentice Hall School Group, 2002.

McDonald, Forrest. The American Presidency. Lawrence: University Press of Kansas, 1994.

Milkis, Sidney M., and Michael Nelson. The American Presidency: Origins & Development. 3rd ed. Washington, DC: Congressional Quarterly Inc., 1999.

Nelson, Michael, ed. The Evolving Presidency. Washington, DC: Congressional Quarterly Inc., 1999.

Volkomer, Walter E. American Government. 8th ed. Upper Saddle River, NJ: Prentice Hall, 1998.

Zinn, Howard. A People's History of the United States. New York: HarperCollins, 2003.


Sollenberger, Mitchel A. "Congressional Overrides of Presidential Vetoes." CRS Report for Congress, April 7, 2004. United States House of Representatives. (accessed on February 14, 2005).

Sollenberger, Mitchel A. "The Presidential Veto and Congressional Procedure." CRS Report for Congress, February 27, 2004. United States House of Representatives. (accessed on February 14, 2005).

About this article

Constitutional Role of the Executive Branch

Updated About content Print Article


Constitutional Role of the Executive Branch