The Path to the Presidency: What does the Constitution say about the executive office?
What comes to mind immediately when you think about a modern day presidential election?
Perhaps you’re imagining the televised debates before large crowds or the commercials playing on television all day. You might think of citizens waiting in line to use the voting machines at their precinct or the vote counts popping up on the television news later that night.
Elections in 2008 are a hyper-sensory event. Compare what you imagine to how Article II of the United States Constitution describes the election of the president:
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.
This description of the Electoral College - the group of appointed voters who cast the official ballots on behalf of the much larger constituency of their state - sounds simple when compared to the media buzz we’ve grown accustomed to in the 21st century. But media buzz isn’t the only difference in the presidential elections between George Washington’s era and today.
The role of the chief executive has remained much the same over the centuries. But many important rules about how they become chief executive have come into play through amendments to the U.S. Constitution.
If the same rules were still in place from the 18th century, for example, the Nov. 4 elections could end with John McCain elected president and Barack Obama elected vice president, or vice versa. Until the Twelfth Amendment was passed in 1803, the vice presidency went to the runner-up in the vote count. However, Congress realized that it was difficult for two political rivals with potentially different viewpoints to run government together efficiently.
Changes like this were meant to improve both the election process and the functions of government, to make it run more smoothly and give the president the maximum amount of support in fulfilling his duties effectively and efficiently.
What does it take to be President?
The requirements to become president have not, in contrast to the differences in election system itself, changed much over the years. Article II Section I of the Constitution states that there are three main eligibility requirements to be president:
These requirements remain the same. But that is not to say that it is easy to get elected. Since the rise of political parties soon after the nation was founded, having the nomination of a political party is an unwritten rule to be president. The custom of party nominations has led to the creation of a primary election process in which the two major political parties – Republicans and Democrats – each select the one candidate that will represent their party for president on the general election ballot.
- he or she must be a natural born citizen of the United States
- he or she must have lived in the United States for the previous 14 years
- he or she must be over the age of 35
Once the party has nominated someone to represent them in the general election, the campaign for the presidency begins. The candidates cross the country, trying to gain support of voters in each state, which will translate into official votes from the Electoral College.
The Electoral College, created in Article II Section I of the Constitution, is the group of citizens who elects the president officially. When you cast a vote in the presidential election, you are voting indirectly for the candidate. Specifically, you are voting for the particular electors in your state who have pledged to cast their Electoral College votes for your candidate. Each state has a set number of electoral votes which is equal to its total number of representatives and senators in the U.S. Congress.
Currently, there are 538 members of the Electoral College, which is equal to the 435 members of the House of Representatives and the 100 members of the Senate, plus an additional three electors for Washington, D.C., as granted in the 23rd Amendment to the U.S. Constitution. With 538 Electoral College votes possible, in order for a candidate to win the election, they must win at least 270.To learn more about the Electoral College, visit the Electoral College information page by the National Archives.
What powers does the President have?
The president represents the executive branch of the federal government. The executive (the president and his or her administration) is one of the three branches of government established by the Constitution, the other two being the legislative (Congress) and the judicial (the U.S. courts system).
The powers of the executive office are explained throughout the Constitution. Among them:
Additionally, the president must also report regularly to Congress on the affairs of the country. This is customarily done in the form of an annual State of the Union address before Congress.
The president can sign into law any legislation passed by Congress. The president can also veto any legislation passed by Congress, but the veto can be overturned by a 2/3rds majority vote in both houses (Article I Section VII).
Normally, if the president does not act on a bill within 10 days, it automatically becomes law. However, this is not the case in the final 10 days of the legislative term; if the president takes no action during this period, the bill dies as Congress adjourns. So if he or she wishes to reject a bill without formally vetoing it, he can simply opt for doing nothing, which is known as a “pocket veto.” (Article I Section VII).
The president appoints the Supreme Court Justices, but they must be approved by the Senate (Article II Section II).
The president is the Commander-in-Chief of the armed forces, meaning that the president is the head of all the branches of the military (Article II Section II).
The president appoints people to run the different executive agencies like The State Department and The Department of Health and Human Services (Article II Section II).
With a 2/3rds majority of the Senate, the president can enter treaties with foreign nations (Article II Section II).
The president can pardon anyone serving in federal prison (Article II Section II).
Changes over time
After the initial roles, responsibilities and processes were laid out in the United States Constitution and the young government’s operations got underway, members of Congress and the Supreme Court began to see room where modifications was necessary, beginning with the Bill of Rights.
In addition to changing the way the vice president is appointed, the Twelfth Amendment, passed in 1803, established something called the “inhabitant clause.” This is a sixteen-word phrase pertaining to the president and vice president:
…one of whom, at least, shall not be an inhabitant of the same state with themselves…
It suggests that the running mates should not be from the same state, in the interests of keeping one region from having too much power in the executive office. It stops short of prohibiting Vice Presidents from the same state as the president. Nevertheless, it has come up from time to time, most recently in the 2000 election when vice presidential candidate Dick Cheney changed his registration to Wyoming, a previous state where he had lived, from Texas, where presidential candidate George W. Bush lived.
The Twelfth Amendment also specifies what happens in an instance where neither candidate in a presidential election gets a majority of votes. In these circumstances, the House of Representatives chooses from among the top three candidates. Lastly, the amendment extends the eligibility requirements laid out in Article II Section II to the vice president, so that:
no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
The Twentieth Amendment created a speedier transition between presidential administrations by setting the date of the presidential inauguration to Jan. 20 following the election. Prior to its passing in 1933, presidents did not take office until the following March 4. This made for a lengthy “lame duck” period - a nickname referring to the time when a president who is not reelected has little power to promote their policies.
The beginnings of a line of succession were also established with the Twentieth Amendment. This amendment simply states that if the president is unable to serve, the vice president steps in. It also instructs Congress to create a more detailed succession plan, which they later accomplished in the Twenty-Fifth Amendment. It created a process by which the vice president steps in when the president cannot serve, and by which the president can return to power if he is able to serve again. It also gives the president the power to pick a new vice president if the current vice president is unable to serve, though the choice must be approved by a majority vote in both houses of Congress.
Also prior to the mid-20th century, there were no laws establishing term limits. Two terms were customary for presidents ever since George Washington declined to run for a third term in 1796. But an ambitious president during the Great Depression changed that; Franklin Delano Roosevelt won his third term in 1940 and was elected to a fourth in 1944, though his final term was cut short by his death in office.
Nevertheless, this alerted Congress to the concern that some candidates might not be willing to loosen their grip on executive power, so they passed the Twenty-Second Amendment, which limited presidents to two four-year terms. The only exception is in cases of succession: if a president dies in office - or is otherwise unable to serve - and there are fewer than two years remaining in his or her term, the vice president can still be elected to two four-year terms. If there are more than two years remaining, however, the new president can be elected to only one additional term.
Some of the modified powers of the president were not established by amending the Constitution. While the power to declare war rests in Congress (Article I, Section VIII), this became modified by The War Powers Act of 1973. This maintained Congress’ role in approving any declaration of war, except for situations “where imminent involvement in hostilities is clearly indicated.” In these circumstances, the president need only give congress 48 hours notice to unilaterally send troops into conflict.
The following year saw the formal establishment of the concept Dwight Eisenhower called “executive privilege.” This gives the president the power to resist search warrants and withhold certain information from Congress and the Judiciary. Executive Privilege was confirmed by the Supreme Court in U.S. v. Nixon (1974), when the Court said it is an element of separation of powers that can only be challenged under pressing circumstances. Unfortunately for Nixon, his claim of executive privilege was rejected and he was forced to hand over incriminating audio tapes during the Watergate investigation.
The president is also responsible for composing the annual budget for the federal government. Although not part of the original Constitution, legislation passed in the early 20th century, including the Budget and Accounting Act of 1921 and the Executive Reorganization Plan of 1939, established that the president would submit an annual budget to Congress. Congress then deliberates and proposes modifications to the presidents’ budget as necessary before it is finally adopted.
Finally, there are signing statements and executive orders. These are less about the duty of the president and more about an authority in which a president can issue proclamations. While presidents do not have the power to make law themselves, in the case of signing statements, they can add written commentary to bills as they sign them into law. This has the effect of clarifying the content of legislation and possibly – as critics argue –interpreting or altering the meaning of legislation. Executive orders are proclamations made most often to other departments or personnel in the federal government, effectively “ordering” them to take particular actions in accordance with the administration’s objectives.
The Constitution is often referred to as a “living document.” When the founding fathers drafted the Constitution, they envisioned that its interpretation may change as appropriate over time, and this is often done by decisions made by the judicial system. As the years passed, the government has also passed written changes to the document itself; 27 amendments to the Constitution over the course of more than two centuries have been passed. Four of those amendments have related specifically to the presidency.
What do you think?
If the founding fathers knew then what we know now, what do you think they would change about the way the executive branch works? How have the amendments made by Congress over the years affected the way our government is run? Do you think there are further modifications that could or should be made? How about the roles and responsibilities? What other qualifications do you look for when choosing who will best represent you as president? Join the discussion!
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