Many posts have discussed the presidency.
At AEI:
Reading the First State Constitutions on Executive Power:
A Window into Article II
Joseph M. Bessette, Alice Tweed Tuohy Professor (Emeritus) of Government and
Ethics at
Claremont McKenna College
Joseph.Bessette@claremontmckenna.edu
&
Gary J. Schmitt, Senior Fellow, American Enterprise Institute
Gschmitt@aei.org
Turning next to the opening words of Article II—“The executive Power shall be
vested in a President of the United States of America”—the question arises whether those
words were meant to grant substantive power or were merely meant to designate the
office of the chief executive. First, as our review of the state constitutions showed, the
executive vesting clause was not an invention crafted by the delegates to the
Constitutional Convention. Virtually every state constitution included a general grant of
executive authority, with the constitutions of three states—South Carolina, Pennsylvania,
and New York—offering clear textual antecedents to the vesting formula found in Article
II. In each of the three, there is evidence that the executive vesting provision was read, or
assumed to be, a substantive grant of power. When that fact is combined with the most
obvious reading of the text itself,78 it seems reasonable to conclude that the opening line of
Article II was intended to give the president an actual power. And the fact that the power
vested is “the executive power” implies that it was a power that was understood to have a
distinct and discernable character.
Also worth noting is how Article II of the U.S. Constitution mirrors much of the
structure of the New York constitution. As in the case of New York, Article II’s first section
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vests the executive power and also spells out how the chief executive is selected. Then, in
the following section in both constitutions, the executive is given a set of powers, such as
being commander-in-chief and having the authority to grant pardons. And finally, Article
II, sec. 3 of the Constitution, echoing Article XIX of the New York Constitution, states:
[The President] 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; he may, on extraordinary Occasions, convene
both Houses, or either of them, and in Case of Disagreement between them, with
Respect to the Time of Adjournment, he may adjourn them to such Time as he shall
think proper; he shall receive Ambassadors and other public Ministers; he shall
take Care that the Laws be faithfully executed, and shall Commission all the
Officers of the United States.
The section appears as a mix of authorities—some significant, others less so; one
seemingly discretionary, the others not (“shall”). What appears to tie them together is that
each has in some way a role in keeping the government moving forward. This is both
broad, such as in putting forward ideas for legislative consideration and ensuring the
nation’s laws are properly administered, and, more mundanely, in formally accepting the
credentials of foreign emissaries and ensuring civilian and military officials are properly
authorized to carry out their duties. Given this list of responsibilities, it was perhaps one
reason the nation’s chief executive was designated as “President,” presiding not over
another branch of government or even a single chamber of the legislature but, rather,
acting as a steward for government functions most aptly suited to the institution of the
presidency.
Finally, with the exception of Pennsylvania’s constitution, the U.S. Constitution is
the only constitution in the founding period in which the executive is given both a list of
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duties and an oath of office. And, with the exception of Georgia’s constitution, the
Constitution is the only American governing charter of the period that had an oath
specifically tailored for the chief executive. (“I do solemnly swear (or affirm) that I will
faithfully execute the Office of President of the United States, and will to the best of my
Ability, preserve, protect and defend the Constitution of the United States.”) It’s an oath
that points toward the president’s official responsibilities being broader than being a mere
executive—with the duty to faithfully execute the laws being just one of several
responsibilities listed in Section 3 of Article II—while, at the same time, circumscribing
their execution to supporting the political order itself.