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Nature and Scope of Presidential Power

EXECUTIVE DEPARTMENT

ARTICLE II

Section 1. Clause 1. 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:

NATURE AND SCOPE OF PRESIDENTIAL POWER

Creation of the Presidency

Of all the issues confronting the members of the Philadelphia Convention, the nature of the presidency ranks among the most important and the resolution of the question one of the most significant steps taken.1 The immediate source of Article II was the New York constitution, in which the governor was elected by the people and thus independent of the legislature, his term was three years and he was indefinitely re-eligible, his decisions except with regard to appointments and vetoes were unencumbered with a council, he was in charge of the militia, he possessed the pardoning power, and he was charged to take care that the laws were faithfully executed.2 But when the Convention assembled and almost to its closing days, there was no assurance that the executive department would not be headed by plural administrators, would not be unalterably tied to the legislature, and would not be devoid of many of the powers normally associated with an executive.

Debate in the Convention proceeded against a background of many things, but most certainly uppermost in the delegates’ minds was the experience of the States and of the national government under the Articles of Confederation. Reacting to the exercise of powers by the royal governors, the framers of the state constitutions had generally created weak executives and strong legislatures, though not in all instances. The Articles of Confederation vested all powers in a unicameral congress. Experience had demonstrated that harm was to be feared as much from an unfettered legislature as from an uncurbed executive and that many advantages of a reasonably strong executive could not be conferred on the legislative body.3

1 The background and the action of the Convention is comprehensively examined in C. THACH, THE CREATION OF THE PRESIDENCY 1775-1789 (1923). A review of the Constitution’s provisions being put into operation is J. HART, THE AMERICAN PRESIDENCY IN ACTION 1789 (1948).

2 Hamilton observed the similarities and differences between the President and the New York Governor in THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 462-470. On the text, see New York Constitution of 1777, Articles XVII-XIX, in 5 F. Thorpe, The Federal and State Constitutions, H. DOC. NO. 357, 59th Congress, 2d sess. (1909), 2632-2633.

3 C. THACH, THE CREATION OF THE PRESIDENCY 1775-1789 chs. 1-3 (1923).

Nonetheless, the Virginia Plan, which formed the basis of discussion, offered in somewhat vague language a weak executive. Selection was to be by the legislature, and that body was to determine the major part of executive competency. The executive’s salary was, however, to be fixed and not subject to change by the legislative branch during the term of the executive, and he was ineligible for re-election so that he need not defer overly to the legislature. A council of revision was provided, of which the executive was a part, with power to negative national and state legislation. The executive power was said to be the power to “execute the national laws” and to “enjoy the Executive rights vested in Congress by the Confederation.” The Plan did not provide for a single or plural executive, leaving that issue open.4

When the executive portion of the Plan was taken up on June 1, James Wilson immediately moved that the executive should consist of a single person.5 In the course of his remarks, Wilson demonstrated his belief in a strong executive, advocating election by the people, which would free the executive of dependence on the national legislature and on the States, proposing indefinite re-eligibility, and preferring an absolute negative though in concurrence with a council of revision.6 The vote on Wilson’s motion was put over until the questions of method of selection, term, mode of removal, and powers to be conferred had been considered; subsequently, the motion carried,7 and the possibility of the development of a strong President was made real.

Only slightly less important was the decision finally arrived at not to provide for an executive council, which would participate not only in the executive’s exercise of the veto power but also in the exercise of all his executive duties, notably appointments and treaty making. Despite strong support for such a council, the Convention ultimately rejected the proposal and adopted language vesting in the Senate the power to “advise and consent” with regard to these matters.8

4 The plans offered and the debate is reviewed in C. THACH, THE CREATION OF THE PRESIDENCY 1775-1789 ch. 4 (1923). The text of the Virginia Plan may be found in 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 21 (rev. ed. 1937).

5 Id. at 65.

6 Id. at 65, 66, 68, 69, 70, 71, 73.

7 Id. at 93.

8 The last proposal for a council was voted down on September 7. 2 id. at 542.

Finally, the designation of the executive as the “President of the United States” was made in a tentative draft reported by the Committee on Detail9 and accepted by the Convention without discussion.10 The same clause had provided that the President’s title was to be “His Excellency,”11 and, while this language was also accepted without discussion,12 it was subsequently omitted by the Committee on Style and Arrangement13 with no statement of the reason and no comment in the Convention.

9 Id. at 185.

10 Id. at 401.

11 Id. at 185.

12 Id. at 401.

13 Id. at 597.

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Last modified: August 27, 2012