Unit 9: The Executive Branch: The Presidency and the Administration
9.1-3: The President and the Constitution I: An Overview of Article II, Section 1, Clauses 1-8
Clause 1: Legislative Vesting Clause
“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:”
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vests all executive powers in the office of the president
Elected for four year terms
elected together with a vice president
Clauses 2, 3, 4: Presidential Elections (To be discussed in Theme 3)
Clause 5: Presidential Eligibility
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this
Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who
shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United
States.”
Citizenship: natural born, or if not, a citizen at the time of the adoption of the Constitution (17
SEP 1787?)
1.
What did the Founders mean by the term “natural born?”
They never defined it. Experts are in agreement that it means a citizen “by birth,
or at birth”
2.
What definitely makes you a citizen at birth, or by birth?
Being born on US soil, even if your parents aren’t citizens (jus soli)
3.
What definitely is considered US soil for natural born citizenship purposes?
Washington DC, and all territories or other possessions (Puerto Rico, Guam, Virgin
Islands)
4.
What is not considered US soil for natural born citizenship purposes?
US military bases and embassies.
5.`
What probably makes you a natural born citizen?
Congress, which has the delegated power to pass naturalization laws passed a statute
that if you are born abroad to parents who are US citizens, then you are a “natural
born citizen” but they later dropped the phrase “natural born” and just said citizen
(jus sanguinis…by blood). Most experts agree that this makes you eligible to run for
presidency. It gets tricky with all sorts of rules about both or one parent being
citizens and where they lived.
6.
Any examples of this?
Michigan governor George Romney was born in Mexico to US citizens and ran in 1968.
John McCain was born on a naval base near the Panama Canal to US citizens and ran in
2000 and 2008.
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7.
Why did they insert the phrase “or a Citizen of the United States, at the time of
Adoption of this Constitution?”
Because none of the Founders were natural born citizens. They were all born before
the American Revolution before there was a United States of America, as British
subjects on British soil. As citizens of each of their states though, they automatically
became US citizens at the moment of adoption of the US Constitution (17 SEP 1787?)
8.
When did the US come into existence and people could start being natural born
citizens by jus soli?
It’s unclear. Was it the Declaration of Independence? The date each state ratified its
own constitution? The date the Articles of Confederation was adopted or ratified? The
date the Treaty of Paris was signed? The date the Constitution was adopted (probably
this date)?
Age: 35 years old
1.
When must you be 35 years old by?
Most experts agree that you must 35 by inauguration
Residency: resident of US for 14 years
1.
What does the term “resident” mean and how is different from “inhabitant” (the
term used for Senators and Reps)?
It’s not clear exactly what was meant by either term…inhabitancy may have meant
more a permanent domicile regardless of whether you were physically there or not.
Residency may have implied a more physical presence.
2.
Does the 14 years have to consecutive or cumulative? Does it have to be the past 14
years?
Most experts say just cumulative and does not have to be the past 14 years.
Otherwise someone could argue every little trip abroad for civil or military business,
or for pleasure would interrupt that time period.
3.
Any examples?
Herbert Hoover was inaugurated president in 1939. He lived in London from 19141917 in charge of US aid during WWI. Of course, it could also be argued he was still a
resident of the US during that time too.
22nd Amendment: Term Limits
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Although it does not amend or supersede any part of Article II, Section 1, Clause 5, the
entire 22nd Amendment does add another eligibility requirement to run for office
Section 1:
“No person shall be elected to the office of the President more than twice, and no person who has held the
office of President, or acted as President, for more than two years of a term to which some other person
was elected President shall be elected to the office of President more than once. But this Article shall not
apply to any person holding the office of President when this Article was proposed by Congress, and shall
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not prevent any person who may be holding the office of President, or acting as President, during the term
within which this Article becomes operative from holding the office of President or acting as President
during the remainder of such term.”
Section 2:
“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by
the legislatures of three-fourths of the several States within seven years from the date of its submission to
the States by the Congress.”
1. How many terms can someone be elected president?
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2. What was the motivation for this amendment?
FDR being elected to a 4th term in 1944
3. Was he the first person to violate Washington’s precedent of two terms?
He was the first who was succesful at it. Grant wanted to run for a third term in 1876,
but was not even nominated by his own party. TR served 3 years of McKinley’s term
from 1901-1905 after his assassination. He won the election of 1904, served a full
term from 1905-1909 and then ran again in 1912, but did not win.
4. What if you serve part of someone else’s elected term by succeeding them to the
presidency because of their death, resignation, or removal?
If you serve two years or less, you can still be elected twice on your own. If you serve
more than two years, you can only be elected once on your own?
5. FDR was inaugurated for his fourth term on January 20, 1945. He died on April 12 ,
1945 and VP Harry S. Truman was sworn in as president. He was elected president on
his own right in the 1948 election and was inaugurated on January 20, 1949. Could he
be elected again in 1952?
Yes. Athough that would violate the 22nd Amendment, he is exempt from it because
he was the president when it was first proposed in 1947.
6. What does the clause “and shall not prevent any person who may be holding the
office of President, or acting as President, during the term within which this Article
becomes operative from holding the office of President or acting as President during
the remainder of such term” mean?
It meant that if someone would be violating the amendment by serving too many
terms as president when it was ratified, then that person would still be able to finish
out that term. However, since the Congress put a time limit on ratification of 7
years, then that would have been by 1954 and the only person that could possibly be
violating the amendment would have been Truman (he could have been serving an
illegal 3rd term, but he is already exempt. Unless, and older president came back and
served a third term?
Clause 6: Presidential Succession
“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the
Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law
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provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President,
declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.”
1. What are 4 ways that the presidency can become vacant?
removal, death, resignation, or disability (temporary)
2. Who then takes over the job?
Vice President
3. What does the phrase “the Same shall devolve on the Vice President” mean?
Unclear. Did the Vice President actually become President, or just Acting President?
4. When was the first time the presidency became vacated and this clause was put to the test?
1841 when WHH became the first president to die in office. His VP John Tyler had himself
sworn in establishing the precedent that the VP actually became president under this clause.
5. What problems did this precedent create?
Future VP’s were reluctant to assume duties of president during times of presidential
disability, because Tyler’s precedent actually made them the president! Disabilities can be
temporary…what happens when the president gets better?
25th Amendment (1967), Section 1 supersedes this language:
“In case of the removal of the President from office or of his death or resignation, the Vice President shall
become President.”
1.
Under which circumstances does the VP actually become president under
this amendment?
removal, death, resignation
2.
Under which circumstance does the Vice President serve only as Acting President?
disability…notice that was not included in this amendment, so we can assume the
original language from Article II, Section 1, Clause 6 still applies to that
5. How many times has the presidency been vacated and the VP succeeded to the presidency?
9 times (4 Assassinations, 4 Deaths, 1 Resignation) The first 8 under John Tyler’s precedent.
Richard Nixon’s resignation occurred under the 25th Amendment.
6. What happens if both the presidency AND the vice presidency are vacant (due to removal,
death, resignation or disability) at the same time?
Congress can pass a law declaring who will ACT as president until the disability is removed,
or a new president is elected
7. Why was this phrase necessary?
Obviously they both could have died together or more likely resigned together, but a more
likely scenario is that something happens to the president while the vice presidency is
vacant.
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8. How could the vice presidency be left vacant?
Removal, death, resignation, disability, OR the VP succeeded to the presidency! There was
no provision for a new VP to take over!!
9. How many times has the VP been vacant?
18 times! (7 by death, 9 by ascension, 2 by resignation)
http://en.wikipedia.org/wiki/List_of_Vice_Presidents_of_the_United_States
25th Amendment (1967), Section 2 fixes this problem:
“Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President
who shall take office upon confirmation by a majority vote of both Houses of Congress.”
1.
Has this ever been used?
Richard Nixon’s VP Spiro Agnew resigned on October 10, 1973. Nixon appointed
Gerald Ford and he was sworn in on December 6, 1973. On August 8, 1974 Richard
Nixon resigned as president, making Gerald Ford the president (the first under Section
1 of the Amendment). Ford then appointed Nelson Rockefeller as VP and took office
on December 19, 1974. Only time in US history the president and the vice president
were not elected by the people and they served together.
10. Since the presidency and vice presidency could, and still can, be vacant together, what laws
has Congress passed to establish the order of succession?
Presidential Succession Act of 1792 – President Pro Tempore, then Speaker of the House
became Acting President until next election or disability be removed
Presidential Succesion Act of 1886 – Cabinet member replaced President Pro Tem and
Speaker in the order that the executive department was created.
Presidenital Succesion Act of 1947 – Speaker of the House, President Pro Tempore, then
cabinet members in the order they were created
http://en.wikipedia.org/wiki/United_States_presidential_line_of_succession
11. Why move congressional leaders back ahead of the cabinet?
More democratic. They’re elected by the people.
12. Does everyone move up in the order of succession?
No, just that first person in line “ACTS” as president, and their old position is either
appointed and confirmed if a cabinet member or elected if the Speaker or President Pro
Tempore. Remember, VP is left vacant prior to 25th Amendment, after new Pres would pick a
new VP
25th Amendment, Section 3 discusses disability:
“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House
of Representatives his written declaration that he is unable to discharge the powers and duties of his office,
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and until he transmits to them a written declaration to the contrary, such powers and duties shall be
discharged by the Vice President as Acting President.”
1.
How does the vice president become acting president if the president will be disabled
under Article II, Section 1, Clause 6:
President notifies President Pro Tempore and speaker in writing
2.
How long does VP serve as Acting President for?
Until president notifies them in writing that disability no longer exists
3.
Has this ever been invoked?
Three times. All for colonoscopies. Reagan once. Bush twice. All three sent letters.
Bush’s referenced Section 3, Reagan’s did not.
25th Amendment, Section 4:
“Whenever the Vice President and a majority of either the principal officers of the executive departments or
of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and
the Speaker of the House of Representatives their written declaration that the President is unable to discharge
the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the
office as Acting President”
“Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the
House of Representatives his written declaration that no inability exists, he shall resume the powers and duties
of his office unless the Vice President and a majority of either the principal officers of the executive
department or of such other body as Congress may by law provide, transmit within four days to the President
pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue,
assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days
after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after
Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to
discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting
President; otherwise, the President shall resume the powers and duties of his office.”
1.
What if the president is unable to declare himself disabled?
Vice President AND a majority of cabinet or other body convened by Congress, such as
a group of doctors can notify the President Pro Tempore and Speaker of House that
he will be serving as Acting President
2.
How long will this last?
Until president declares in writing disability no longer exists
3.
What if VP and a majority of cabinet or other such body as Congress may convene
disagree?
They have four days to declare in writing that they disagree
4.
Who then decides the matter?
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Congress must assemble within 48 hours of receiving notification of disagreement (if
not already in session and then they have 21 days to decide. Takes a two-thirds vote
to keep VP as Acting President
5.
Ever been invoked?
Almost…Reagan’s assasination attempt. He underwent surgery and could not send a
letter. Some say VP Bush should have but by the time Bush arrived back in DC from
Texas, Reagan was out of surgery
Clause 7: Compensation
“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased
nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period
any other Emolument from the United States, or any of them.”
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To maintain independence from Congress, which sets the pay, it can’t be changed during the time for which he
was elected
Cant receive any other emolument from the federal government or state governments to prevent bribery
Clause 8: Oath of Office
“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — "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."
1. Any examples of this mattering?
Barack Obama in 2008 messed up the wording. Was sworn in again the next day just to be safe.
http://www.youtube.com/watch?v=274_VdeckAU
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