An introduction to the main themes of the American Constitution—popular sovereignty, separation of powers, federalism, and rights.
Presidential Powers, Part 1
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From the course by Yale University
America's Written Constitution
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From the lesson
Presidential Powers
As the title of this module suggests, you will be hearing about the specific powers held by the President of the United States. Learn how the presidential pardon is directly related to national security and why the veto power is nearly insurmountable. Prof. Amar will also point out how in a small number of situations, the President of the United States is even more powerful than the King of England.
Meet the Instructors
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
Welcome back.
In our previous sessions, we've been
talking about article two of the constitution.
The executive branch, the Presidency.
And we're going to continue that conversation,
for the next couple of sessions.
We started talking about numbers that, at first you
might not notice, but actually contain very interesting stories.
The number four, a Presidency is a four-year term.
And at
the founding, that was unprecedented.
No governor had a four-year term, only New York had a three-year term.
But today, 48 of the governors, of the 50
governors actually have four-year terms, because their governships have
begun to be modeled, have been, in fact, modeled
on the American presidency in all sorts of ways.
We talked about the number zero.
Zero property qualifications in order to be president.
Unlike property qualifications that existed for most governorships of the,
all the governorships really, at the time the Constitution was adopted.
No governorships today, and when you think about the fact that
the Constitution creates a strong presidency open to low born persons.
It's pretty remarkable when you remember that
in England, the chief of that the head
of, a state is anything but lowborn.
He's he's a, a monarch, to the throne born.
But in America, folks born in very modest circumstances have become president
because of, because of that invisible
number, what's not fair property qualification zero.
Andrew Jackson, lowborn.
Ulysses S Grant. Harry Truman.
Ronald Reagan. Gerald
Ford. Bill Clinton.
Barack Obama.
Now some of these folks, had acquired some modest fortunes by
the time they became presidents see, but not all of them.
Not, for example, Bill Clinton or Barack
Obama or, or others, so that's pretty extraordinary.
Think about another zero.
Zero religious qualifications in order to be president.
Again, something that's not fair. When we, when we look at the,
the, the, the terse text, the written Constitution, you
want to focus on what's there, and what's not there.
No, religious, qualifications, to be, president.
Whereas almost state governorship except for Virginia, had a religious test.
Two of the four folks up there
on Mt.Rushmore Jefferson and Lincoln, not members of
not church goers in organized denominational sets
at the time of their, their elections.
They're two of the four are kind of not conventional church goers.
Two of the four presidents up there on Mt.Rushmore.
Think about the last presidential election.
The constitution was created by a group of largely white Protestants.
Mainstream Protestants of the four people running for
the presidency and the vice presidency last time around.
Mitt Romney was, was, is a white Protestant, but of a, and a member
of a, of a, of a denomination that didn't even exist at the founding.
Mormonism, a kind of, a, a new denomination.
Paul Ryan and Joe Biden, both Catholics.
The only mainstream Protestant, Barack Obama, non-white.
Father a Muslim from Africa. And so, dramatic
possibilities, democratic possibilities, egalitarian possibilities,
simply from what not in the constitution, the zero, the no religious
qualifications. We talked about another number that, that
really is in the constitution if you look carefully, in the executive branch.
In article two, if you look carefully, three fifths.
The three fifths clause was built in to not just the apportionment
of the House of Representatives, but also the structure of the Electoral College.
And that's going to give, actually, Southern slave
holding states, a big leg up in the
Presidential sweepstakes because they're going to count, be able
to count their slaves, for extra electoral votes.
Remember, an anti-slavery rule
wouldn't have been one, count slaves just like everyone else.
Equality, no.
The question wasn't you know, whether slaves were going to vote.
Of course they weren't going to vote.
The question's how much extra cloud slave states
were going to get in the House of Representative and
Electoral College, because the existence of slavery, and three
fifths basically meant they were going to get extra cloud.
So so,
the number zero the number three-fifths, the number four.
I want to remind you of one other number that we talked about, the number one.
There's one president at any given time. It's a, it's a very personal office.
A very lonely office, a singular office. And is always in session, 24/7, 365.
Some more numbers. Now you might
think well, what about the Vice Presidency.
Is, is the President really as, as lonely as, as you've just said, professor.
Remember that at the founding under
article two, actually presidents and vice presidents
don't run as teams, as tickets under the original article two of the Constitution.
The person who's vice president, simply the person who comes in second
in the presidential sweepstakes.
George Washington won the, the presidency, and John Adams came in second in the
presidential contest, both in 1789 and then again in the reelection process.
So, the idea of, of a president and vice president sort of teaming up as being part
of a ticket is going to emerge a little bit later on as political parties come
on to the scene and are blessed by
a modification of article two, the twelfth amendment.
And we're going to talk about that in later lectures so, stay tuned.
But, for now, just recognize that, that presidents and vice presidents of
the founding aren't necessarily teammates working together intimately.
George Washington actually didn't rely very much on, on, on John Adams
in his ad, administration, but the very existence of the vice presidency does
confirm this idea of 24/7/365.
The presidency is always in session, you always have to have a president.
There are many months of the year that congress isn't in session.
The courts may go out of session, but you always have to have a president
because executive power is continuous and seamless.
The Presidency never sleeps.
And that's why the nanosecond that a, one President dies or resigns,
the Vice President, the understudy, seamlessly comes in to fill the breach.
That's not true in the House of Representatives for example.
If a representative resigns or dies, you have to wait for a new election.
In the Senate, if a senator dies or resigns the
governor can pick a replacement but that's going to take some time.
and, and the rules changed a little bit after the Seventeenth Amendment.
We'll talk about that in later lectures.
And by the way, why the governor?
Because in states, the governor was going to be continuously in office and
the state legislature might be in session or might not be in session.
So even at the state level, this idea of executive power being continuous
was kind of built into the Constitution, if you read very carefully.
So, the importance of an executive understudy, of a number two,
who can at any instant, just step up an, and, and
fill breach created by a presidential death or resignation, is an
important element of, of the nature of the executive power, American style.
The seamlessness, the continuity of,
of executive power.
Now the Constitution, article two also provides,
because, it's so important to have a
precedent at every moment, the constitution also
provides that if both the President and the
Vice President are somehow out of action, dead or disabled have left office
in a, in a resignation, that Congress by law, can provide for a line of succession.
now, today, the speaker of the house is under a statute
that's been passed in the, in the 1940's, next after the vice
presidency and the president pro tem of the senate after the speaker but
not at all clear, defines actually what the constitution contemplated.
The Constitution says that the Congress is
supposed to designate an officer to succeed
a vacant Presidency, Vice Presidency. And it's not at all clear that members
of the legislature are officers, in the relevant constitutional sense.
At least that's what James Madison argued, way back
in the 1790s, when Congress passed the first succession statute.
That first successions statute put legislative leaders, senate
leaders and house leaders in the line of succession.
And Madison said no, no, no, officers, by officers
we meant Cabinet Officers.
Folks in effect who had been hand picked by
the President to, to succeed him, not legislative leaders.
And in fact there's another provision in the Constitution that
says that law makers, legislators, can not be Executive Officers.
In England, in a parliamentary system, you've got, members
of parliament who are also part of the cabinet.
You've got a
prime minister, the, the head of the executive
branch, who is also a sitting member of parliament.
But the Constitution in article one actually
says Senators and Representatives can't be officers.
So the minute, for example, Senator Hillary Clinton is asked to
become Secretary of State Hillary Clinton, she has to leave the Senate.
Senator Salazar is asked to become
Cabinet Secretary Salazar.
Senator Kerry is asked to become Cabinet Secretary Kerry.
These folks have to leave the Senate because of
a thing called the incompatibility clause in the Constitution.
You can't, in America, this is a feature of American-style separation of
powers, be a member of both the legislature and the executive branch.
And so Madison said, now listen, how's this going to work?
You know, you can't simultaneously
be Speaker of the House and President, both ends of, of Pennsylvania Avenue.
Signing bills and then deciding, as Speaker of the House,
and then deciding whether to veto them or not as president.
So, so, it doesn't really make sense Madison argued,
for sitting lawmakers to be your, your caretaker presidents.
And if they have to step down from the legislature,
in order to be president Madison said, well then you know,
why not actually have Cabinet officers do that because they would be part
of the administration, hand picked by the
persons who had actually vacated the office.
Again, this idea of executive power as very indivualistic.
We, we vote for a person, as President and if that person can't be President why not
have someone that person has hand picked, their
Secretary of State for example carry on their mandate.
In a world of political parties, Madison's ideas I think,
actually became even more powerful because if you vote for
Republicans as George W Bush and Dick Chaney, you shouldn't
end up if disaster strikes, with a Democrat Nancy Pelosi.
You know, if you vote for, for Ronald Reagan
and George HW Bush, you shouldn't end up with
Tip O' Neill.
If you vote for Barrack Obama and, and Joe
Biden, you shouldn't ever end up with, with John Boehner.
So we're going to come back to that in, in later in later lectures, but for now,
the very existence of a vice presidency confirms
the unitary and continuous nature of executive power.
And so does the provision for succession in the event of double
death or double disability.
Now the, the unique personal nature of executive power is also there if we
look carefully at some other words in
article two specifying the Presidential Oath of Office.
There's not that much in the Constitution about the Presidency and yet
word for word the framers of
the Constitution specified the, the Presidential oath.
They,
that's the signal, they took oaths very seriously, and they wanted, to
us to get a clear picture of what the Presidency is all about.
I, do solemnly swear 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.
Okay, now I, do solemnly
swear, the Constitution begins we do, and now here
we see actually the singular, I do solemnly swear.
So it's a very personal office.
You know, I do solemnly swear that I will, to the best of my ability.
It's a very personal office.
And let's, let's take those words and again try to
look at what's there, and not there, understand them in context.
What's not there?
I don't have to swear any religious test.
Some presidents have chosen to add the words, so
help me God, after the constitutionally prescribed oath of office.
Almost all the presidents in the twentieth century have done so.
and, and in the twenty first century.
But those words aren't in the Constitution, they're a
personal choice, that a person can add or not at.
Now, in the
state constitutions there actually were religious oaths that needed to
be sworn by, by people before they could become governor.
In England you had to, if you, the, the, the coronation oath required
the, the, the monarch to swear to be defender of the faith.
The oath had to be administered by a, an Anglican Bishop or Arch Bishop.
Not so in the presidential oath.
Doesn't, doesn't specify any religious trappings.
You can use a bible if you want but you don't have to.
In England, you had to use a bible for the Monarch's coronation oath.
And, and not just any bible.
It had to be a Protestant Bible. Basically the King James Bible,
not the Duoay Catholic bible. So, England had all sorts of religious
elements to its oath of office but for the press, for the the,
the monarchy, but not for America's presidency, sort of a, a secular office.
And what do you, what do you swear or affirm, actually, you don't even
have to swear, if you have a
religious objection to swearing oaths, you can affirm.
I do 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, of the United States. You're not defender of the faith.
You're not even a defender of each and every statute that Congress passes.
You are a defender of the constitution. Now, what does that mean?
In England, after the Glorious Revolution of 1688, 89, when kings were
designed, were supposed to be limited, they, so that they wouldn't just rule by
executive fiat because no one had picked, no one had elected them.
In England monarchs pledged to follow Parliamentary laws.
The emergence after the Glorious Revolution of Parliamentary sovereignty
and the executive branch pledged to, to enforce every parliamentary statute.
The Presidential Oath doesn't quite read
that way. It says I will defend the Constitution.
And maybe, statutes that had been passed by the legislature
might be unconstitutional, and then what's an oath-bound president to do?
And I think if we read the oath carefully,
that oh, the president is supposed to defend the constitution
even at the expense of a statute, because in
America, there's the idea that the statutes might be unconstitutional.
because the Constitution comes from the people themselves, and the Legislature,
the Congress is just one branch of government under the Constitution.
That's not how it works in England.
In England, Parliament itself is sovereign.
It's the, the highest body.
It, it's in effect the, the British people, and anything that it, enacts,
is the highest law, and there's nothing quite higher than an act of Parliament.
At least in, in the British constitutional understanding
of the time of the, of the framing.
So, so when Parliament passes a law, that's the highest
law of the land and monarchs are supposed to unwaveringly enforce
that no matter what, even if the law for example,
violates religious rights or suppresses free speech, or does other things.
Monarchs are suppose to enforce, in England the
laws of Parliament.
But in America, the president is suppose to defend the constitution.
And if the legislature violated the Constitution by passing a statute that
suppresses free speech, or goes beyond Congresses enumerated powers, or
take property without just compensation after a, the adoption of a
Bill of Rights, or it deprives people of a jury trial, or
the like the President is supposed to
defend the Constitution and not the statute.
So an important difference and how might a President do that?
One easy and obvious way from the beginning is to veto
a bill that is presented to him, if he thinks it's unconstitutional.
So even if the House thinks the law is constitutional,
and even if the Senate thinks the law is constitutional,
a bill is constitutional, that doesn't end the thing.
The president should simply say no and veto the bill.
So, so, measuring constitutionality in the American system
is not simply and only the province of judges.
It's diffused more broadly.
If the House thinks it's unconstitutional, they should just vote no.
The Senate thinks it's unconstitutional, they should just vote no,
and they can prevent the thing from even becoming a law.
But if they both pass it, the President can
veto it, and indeed early presidents used
their veto pens overwhelmingly in constitutional situations.
Of the, the first 50 vetoes, let's say, roughly, be in the, in the
pre-civil war period, half of them were constitutionally-based vetoes.
Vetoes, where the President send to these, veto message saying, I think this bill is,
is not merely bad policy, but is affirmatively unconstitutional.
So about, say two dozen, 24 of, of the 50
early vetoes of the president are constitutional vetoes, based on
the president's constitutional oath of office to defend the, to
preserve, protect and defend the constitution of the United States.
By contrast, in that entire period, before the Civil War,
basically the Supreme Court has invalidated we'll
say even before 1850, they've invalidated one statue
using a thing called judicial review that we'll talk about in, in later lectures.
So, it's a case, 1803, Marbury versus Madison.
So one judicial invalidation 24 presidential
vetoes based on the, on constitutional objections.
And many of these vetoes are vetoing laws
that courts have upheld already or would uphold.
We'll talk about that a little bit more
in our next lecture, when I actually tell you a little bit about the next
picture that I want you to focus on which is a picture of Andrew Jackson.
All about, actually, this picture.
It's going to be all about his veto power and his relationship to the supreme court.
But in early Ameri-, in the in the early constitutional experience, presidents are
defenders of the constitution, every bit as much as courts, arguably more so.
In our next session, we're going to talk
about some other presidential powers that intersect
with and reinforce the veto power that we've just been, been, been talking about.
And I'm going to walk you through the next picture in in our series.
Remember, every chapter of the book,
America's Constitution: A Biography, has a picture.
That picture tells a story.
We talked about Washington's picture.
The picture of the Washington family in our previous lectures, and in
the next one we are going to talk about the picture of Andrew Jackson.
And if you understand that picture, you will understand the antebellum presidency.
See you then. [SOUND]
[SOUND]
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