Article Two of the United States Constitution: Encyclopedia II - Article Two of the United States Constitution - Section 2: Presidential Powers

Article Two of the United States Constitution - Section 2: Presidential Powers

Article Two of the United States Constitution - Clause 1: Command of military; Opinions of cabinet secretaries; Pardons

The President is the military's Commander-in-Chief. Article One, however, provides that Congress, not the President, may declare war. Often, the President has deployed troops with Congressional authorization, but in the absence of an explicit declaration of war.

The President may require the "principal officer" of any executive department to tender his advice in writing. Thus, implicitly, the Constitution creates a Cabinet that includes the principal officers of the various departments.

The President, furthermore, may grant pardons or reprieves. Pardons may not be granted in cases of impeachment. Originally, the pardon could be rejected by the convict. In Biddle v. Perovich, however, the Supreme Court reversed the doctrine, ruling that "a pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."

Article Two of the United States Constitution - Clause 2: Treaties; Senior-level and Judicial nominations

The President may exercise several powers with the advice and consent of the Senate.

If two-thirds of Senators concur, he may ratify treaties.

The Constitution is silent, however, on the termination of treaties. The first abrogation of a treaty occurred in 1798, when Congress passed a law terminating a 1788 treaty with France. In the nineteenth century, several Presidents terminated treaties after Congress passed resolutions requesting the same. In 1854, however, President Franklin Pierce terminated a treaty with Denmark with the consent of the Senate alone. A Senate committee ruled that it was correct procedure for the President to terminate treaties after being authorized by the Senate alone, and not the entire Congress. President Pierce's successors, however, returned to the former procedure of obtaining authorization from both Houses. Some Presidents have claimed to themselves the exclusive power of terminating treaties. Abraham Lincoln, for instance, terminated a treaty without prior Congressional authorization, but Congress retroactively approved his decision at a later point. The first unambiguous case of a President terminating a treaty without authorization, granted prior to or after the termination, occurred when Jimmy Carter terminated a treaty with the Republic of China. For the first time, judicial determination was sought, but the effort proved futile: the Supreme Court could not find a majority agreeing on any particular principle, and therefore instructed the trial court to dismiss the case.

The President may also appoint judges, ambassadors, consuls, ministers and other officers with the advice and consent of the Senate. By law, however, Congress may allow the President, heads of executive departments, or the courts to appoint inferior officials.

The Senate has a long-standing practice of permitting motions to reconsider previous decisions. In 1931, the Senate granted advice and consent to the President on the appointment of a member of the Federal Power Commission. The officer in question was sworn in, but the Senate, under the guise of a motion to reconsider, rescinded the advice and consent. In the writ of quo warranto proceedings that followed, the Supreme Court ruled that the Senate was not permitted to thus rescind advice and consent after the officer had been installed.

After the Senate grants advice and consent, however, the President is under no compulsion to commission the officer. Once the actual commission is made out, the responsible officer (the Secretary of State) is required to deliver it; if he does not, he may be compelled to do so by a writ of mandamus. (See Marbury v. Madison) It has not settled in the courts if President has the prerogative to withhold a commission after having signed it.

The President also has the power to remove individuals from office. Congress has often sought to limit the President's power; during the Reconstruction Era, Congress passed the Tenure of Office Act, purportedly preventing Andrew Johnson from removing, without the advice and consent of the Senate, anyone appointed with the advice and consent of the Senate. President Johnson ignored the Act, and was later impeached and acquitted. The constitutionality of the Act was not immediately settled. In Myers v. United States (1926), however, the Supreme Court held that Congress could not thus limit the President's power to remove executive officers. Congress, however, may remove an officer "who occupies no place in the executive department and who exercises no part of the executive power." On the basis of this principle, the Supreme Court permitted Congress to remove officers of the Federal Trade Commission, which was adjudged to be an "administrative body [that] cannot in any proper sense be characterized as an arm or eye of the executive." But if Congress by statute retains for itself the power to remove an officer, it may not clothe him with executive powers, for if it does so the individual in question becomes a part of the executive branch removable at the whim of the President.

Article Two of the United States Constitution - Clause 3: Recess appointments

During recesses of the Senate, the President may appoint officers, but their commissions expire at the conclusion of the Senate's next session. See, for example, the 2005 appointment of John Bolton as U.N. Ambassador.

Adapted from the Wikipedia article "Section 2: Presidential Powers", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki