The Missouri Bar Constitution Day Program
THE ROLE OF THE PRESIDENT IN THE AMERICAN
CONSTITUTIONAL SYSTEM
A Joint Project of the Missouri Bar and HEC-TV Live
September 16, 2011
STUDY GUIDE
(Prepared by Millie Aulbur, Director of Citizenship Education, The Missouri Bar)
INTRODUCTION
The Missouri Bar and HEC-TV are proud to host The Missouri Bar Constitution Day
Program for the fourth consecutive year. This year we are pleased to announce that the
program will be broadcast from White Haven, the St. Louis family home of Julia Dent
Grant, wife of President Ulysses S. Grant. The Grants spent time there prior to the Civil
War. (See http://www.nps.gov/ulsg/index.htm for more information about White Haven.)
The reason for broadcasting from White Haven is that the 2011 Constitution Day
program will focus on Article II of the Constitution, which created the executive branch
of government. Thus, it is fitting that the program originates from a place connected to
one of the forty-three1 men who have served as President of the United States.
Political scientists, historians, biographers and tabloid-like reporters have written
volumes about Presidents and their constitutional powers and the use or abuse of those
powers. The 2011 Constitution Day Program will have two different live events: The
10:00 a.m. broadcast will focus on the President and domestic issues and the 1:00 p.m.
broadcast will focus on the President and international issues. Both programs will feature
taped statements from two former Presidents—George H.W. Bush and William J.
Clinton. Constitution Day participants will have the opportunity to listen to a panel of
experts on these topics and to submit their own questions and comments to the panel.
The panel members are:
 John Truman, great nephew of President Harry S Truman. Mr. Truman is a
member of The Missouri Bar, served as a defense attorney at the My Lai trials and
has practiced law with F. Lee Bailey.
 Greg Willard, former attorney for President Gerald Ford. Mr. Willard is a partner
with the law firm Bryan Cave LLP. He is also an Adjunct Professor at the St.
Louis University Law School, where he teaches a course on presidential power.
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Although President Obama is the 44th President, Grover Cleveland was both the 22nd and 24th Presidents
so technically only forty-three men have served as President.
1

Dr. Dave Robertson, Political Science professor at the University of Missouri-St.
Louis.
Objectives:
Students will be able to:
1. Identify and explain the purpose of Article II of the United States Constitution.
2. Evaluate and defend the role of the President in the American Constitutional
System.
3. Explain how the executive branch has evolved since 1787 and the implications of
these expanded powers.
4. Compare and contrast the powers and duties of George Washington’s presidency
with the present day presidency.
5. Explain the concept of the rule of law and how it applies to the American
presidency.
6. Discuss current constitutional presidential controversies as they pertain to Article II.
Purpose of the study guide
This study guide is intended as a resource for classroom teachers to prepare students for
the Constitution Day broadcasts and to provide follow-up activities. The study guide has
background materials, classroom activities, enrichment suggestions and links to
outstanding Internet resources.
THE MAKING OF THE CONSTITUTION AND THE BILL OF RIGHTS
We recommend several excellent websites for exploring the philosophical and historical
foundations and for learning about the Constitution and the Bill of Rights, and for
information about the Constitutional Convention of 1787 and the constitutional
ratification process:
 The National Archives site at http://www.archives.gov
 The National Constitution Center at http://constitutioncenter.org.
 The Constitutional Sources Project at http://consource.org
THE ROLE OF THE PRESIDENT
IN THE AMERICAN CONSTITUTIONAL SYSTEM
THE RATIFICATION DEBATES OVER THE PRESIDENCY
The Framers of the Constitution debated a great deal about what the powers of the
presidency should be. On the one hand, they did not want to create a tyrannical
monarchy like that of Great Britain, one of the major reasons cited in the Declaration of
Independence as justification for the Revolution of 1776. But on the other hand, one of
the reasons the Framers were meeting in Philadelphia in 1787 was that the lack of
executive power under the Articles of Confederations had proven problematic. How
much power the President should have was one of the arguments the Federalists (for
ratification of the Constitution) and Anti-Federalists (against ratification) engaged in
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during the ratification process. (The Federalists Papers and Anti-Federalists Papers are
excellent original document resources for understanding how each side felt and both can
be found online—Federalists Papers,
http://usgovinfo.about.com/library/fed/blfedindex.htm and Anti-Federalists Papers,
http://www.wepin.com/articles/afp/index.htm.)
The Federalists’ basic argument was not to worry about a President becoming too
powerful because there were enough checks and balances within the Constitution to
prevent abuse of power. The Anti-Federalists’ vehemently disagreed and feared that the
presidency would become a monarchy. Here is part of what George Clinton said about
the presidency in Anti-Federalist Paper #67:
And wherein does this president, invested with his powers and prerogatives,
essentially differ from the king of Great Britain (save as to name, the creation of
nobility, and some immaterial incidents, the offspring of absurdity and locality)?
The direct prerogatives of the president, as springing from his political character,
are among the following: It is necessary, in order to distinguish him from the rest
of the community, and enable him to keep, and maintain his court, that the
compensation for his services, or in other words, his revenue, should be such as to
enable him to appear with the splendor of a prince. He has the power of receiving
ambassadors from, and a great influence on their appointments to foreign courts;
as also to make treaties, leagues, and alliances with foreign states, assisted by the
Senate, which when made becomes the supreme law of land. He is a constituent
part of the legislative power, for every bill which shall pass the House of
Representatives and Senate is to be presented to him for approbation. If he
approves of it he is to sign it, if he disapproves he is to return it with objections,
which in many cases will amount to a complete negative; and in this view he will
have a great share in the power of making peace, coining money, etc., and all the
various objects of legislation, expressed or implied in this Constitution…. He is
the generalissimo of the nation, and of course has the command and control of the
army, navy and militia; he is the general conservator of the peace of the union-he
may pardon all offenses, except in cases of impeachment, and the principal
fountain of all offices and employments. Will not the exercise of these powers
therefore tend either to the establishment of a vile and arbitrary aristocracy
or monarchy? The safety of the people in a republic depends on the share or
proportion they have in the government; but experience ought to teach you, that
when a man is at the head of an elective government invested with great powers,
and interested in his re-election, in what circle appointments will be made; by
which means an imperfect aristocracy bordering on monarchy may be established.
(Emphasis added.)
Here is how Alexander Hamilton responded, in part, to the Anti-Federalists in Federalist
Paper # 69:
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The one [referring to a president] would have a concurrent power with a branch of
the legislature in the formation of treaties; the other is the SOLE POSSESSOR of
the power of making treaties. The one would have a like concurrent authority in
appointing to offices; the other is the sole author of all appointments. The one can
confer no privileges whatever; the other can make denizens of aliens, noblemen of
commoners; can erect corporations with all the rights incident to corporate bodies.
The one can prescribe no rules concerning the commerce or currency of the
nation; the other is in several respects the arbiter of commerce and in this capacity
can establish markets and fairs, can regulate weights and measures, can lay
embargoes for a limited time, can coin money, can authorize or prohibit the
circulation of foreign coin. The one has no particle of spiritual jurisdiction; the
other is the supreme head and governor of the national church!
Of course, the Federalists prevailed or we would not be celebrating the 224th
anniversary of the Constitution!
ENUMERATED POWERS OF THE PRESIDENCY
Article II of the Constitution lists the following presidential powers or roles:
1. Commander and chief of the armed forces.
2. Head of the executive branch.
3. Granting reprieves or pardons.
4. Making treaties subject to the advice and consent of the Senate.
5. Nominating ambassadors, public ministers, consuls, and judges of the Supreme
Court and other federal courts.
6. Recommending legislation to Congress.
7. Reviewing legislation that Congress has passed and returning bills to which the
President objects.
8. Receiving ambassadors and other public officials.
THE EVOLUTION AND EXPANSION OF EXECUTIVE POWERS
George Washington had three departments or cabinets—State, War and Treasury. He
had no agencies, commissions or bureaus. Currently there are 15 departments, 69
agencies and 68 commissions. Each of these has additional bureaucratic levels. The
agencies and commissions are both quasi-legislative and quasi-judicial. They are quasilegislative in that they make and enforce federal regulations. For example the Federal
Communications Commission makes rules about radio and television broadcasting. They
are quasi-judicial in that they conduct hearings on these matters. For example, the FCC
has hearing to determine if a television program has violated the FCC’s rules about
obscenity. Although Congress created these agencies and has oversight powers over
them as well as controlling the budgets for them, former Representative Lee Hamilton
says that Congress rarely, if ever, provides much oversight. However, the federal courts
hear and rule upon cases concerning the actions of the various agencies and commissions.
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Historians and political scientists attribute the greatest expansion of presidential powers
to the following Presidents:
 Andrew Jackson because he was the first President to extensively exercise the
presidential power of veto.
 Abraham Lincoln because of the various actions he took during the Civil War.
 Theodore Roosevelt because of his “bully pulpit” leadership style.
 Franklin Roosevelt usually considered to be the President who most expanded
executive powers, because of his New Deal programs to get the country out of
the Great Depression and because of his leadership during World War II.
Several Presidents who followed FDR, most notably Lyndon Johnson, further
expanded the many social programs begun under FDR. Many of these
programs led to the various agencies and commissions now in existence.
For outstanding lessons on executive power, go to the Bill of Rights Institute’s website:
http://www.billofrightsinstitute.org/page.aspx?pid=708 .
RULE OF LAW AND THE PRESIDENCY
The overarching philosophy of our system of government is the rule of law. The rule of
law encompasses the following principles:
 The people are sovereign (no one is above the law).
 The need for a written body of law so that everyone knows what the law is (the
Constitution, case law and statutory laws).
 Procedural due process (search warrants, jury trials, no double jeopardy, no
self-incrimination, etc.)
 A fair and impartial judiciary where disputes are settled.
Arguably, the principle of the rule of law most often cited when discussing Presidents is
the idea that NO ONE IS ABOVE THE LAW. (For a lesson plan about Presidents and
the rule of law, go to www.mobar.org, the Educators section, then to Constitution Day
where the Rule of Law lesson plan is listed.) Occasionally, the Supreme Court of the
United States or Congress has had to remind Presidents that they are not above the law:






Abraham Lincoln—suspension of habeas corpus, See Ex Parte Merryman (a
federal district court case from 1861) and Ex Parte Milligan, 71 U.S. 2 (1866)
Franklin Roosevelt trying to pack the Supreme Court and Congress refused to do
so.
Harry Truman and the steel strike, See Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).
Richard Nixon and the Watergate tapes, See United States v. Nixon, 418 U.S. 683
(1974),
Bill Clinton and civil law suits, See Clinton v. Jones, 520 U.S. 681 (1997)
George W. Bush and Guantanamo Bay detainees, See Hamdan v. Rumsfeld, 548
U.S. 557 (2006).
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CURRENT CONTROVERSIAL EXECUTIVE ACTIONS
One political scientist has opined that the War Powers Act, Signing Statements and
Executive Orders are the “trifecta of modern day abuses of executive power.”

War Powers Act of 1973 was passed by Congress as a check on the
President’s role as Commander-in-chief. Essentially, the act requires that a
President may not commit the U.S. military to a long-term conflict without
the consent of Congress. Article I, Section 8 of the Constitution grants
Congress the power to declare war. The last time Congress exercised this
power was World War II. Basically, the act provides that the President must
notify Congress within 48 hours of committing armed to military action and
furthermore forbids armed forces from remaining for more than 60 days
without a congressional declaration of war.
This is what the Library of Congress has said about the War Powers Act:
Aside from its use as a rhetorical device, the War Powers Resolution has
been of little worth in reordering presidential-congressional relations in the
years since its enactment. All Presidents operating under it have expressly or
implicitly considered it to be an unconstitutional infringement on
presidential powers, and on each occasion of use abroad of United States
troops the President in reporting to Congress has done so consistently with
the reporting section but not pursuant to the provision.
Some examples of when the War Powers Act was ignored are:
a)
b)
c)
d)
Reagan in Grenada, Lebanon and El Salvador
George Herbert Walker Bush in Panama
Clinton in Kosovo
George W. Bush to some extent in Iran and Afghanistan (Congress
did appropriate money for these conflicts and some argue that this
was a “tacit” declaration of war.)
e) Obama in Libya.

Executive Orders are just as they sound—orders issued by the President. All
Presidents have issued executive orders. Although the Constitution does not
specifically provide for the President to issue such orders, historians argue
that there is a vague grant of such an executive power implied throughout
Article II. Some of the orders have had very good intentions—President
Truman desegregating the military. Others have had good intentions but have
caused great harm—President Roosevelt ordering the internment of JapaneseAmericans during WWII.
The United States Supreme Court has declared two of the orders
unconstitutional:
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a) President Truman placing all steel mills under federal control. See
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
b) President Clinton attempting to prevent the U.S. government from
contracting with organizations that had strike-breakers on the payroll.

Signing Statements are statements made by a President when he signs a law.
The statements vary as to purpose. Until the 1980s, most statements were
celebratory—the President stating that signing a particular law was a historical
event. (President Johnson signing the Civil Rights Act of 1964 and the Voting
Rights Act of 1965.) Sometimes the statements address a President’s
constitutional concerns. Sometimes they express concerns about how the
President will be able to enforce a law. Occasionally, the President states that
although he is signing a bill into law that he might not enforce it in its entirety.
The Constitution does not specifically provide for signing statements and
certainly does not provide that a President may pick and choose what part of a
law he will enforce. Critics of these kinds of signing statements argue that the
President has two constitutional choices: Sign the bill and enforce it as is the
role of the President in our system of separations of powers or veto it.
The first President to issue a signing statement was James Monroe. Until Ronald
Reagan became President, only 75 statements had been issued; Reagan and his
successors George H. W. Bush, Bill Clinton and George W. Bush produced
over 400 signing statements among the four of them. President Obama has
issued 18 signing statements thus far.
For more information, go to
http://www.presidency.ucsb.edu/signingstatements.php?year=2004&Submit=DI
SPLAY#axzz1Vyy6FF45.
DISCUSSION QUESTIONS FOR STUDENTS
AND SUGGESTIONS FOR FURTHER STUDY AND ENRICHMENT
1. Upon consideration of how the presidency has evolved over the last 224 years,
who do you think had the best argument during the ratification process—the
Federalists or the Anti-Federalists?
 Enrichment activity: Look at the arguments of both the Federalists and
Anti-Federalists pertaining to the presidency. Divide the class into two
sides and conduct a modern day Federalist/Anti-Federalist debate about
the presidency.
 Enrichment activity: Have the students research how various Presidents
have used their executive powers in both domestic and international
matters. (Some excellent examples may be found in particular with:
George Washington, Thomas Jefferson, James Madison, James Monroe,
Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Woodrow
Wilson, Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John F.
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
Kennedy, Lyndon Johnson, Richard Nixon, Ronald Reagan and George
W. Bush.)
Further study: After further research, as a class, discuss which
President(s) the students think have been the most influential in expanding
the role of the President.
2. Of the enumerated powers, which refer to domestic matters and which refer
more to international matters? Which of these do you think most empower the
President? Why?
 Further study: What challenges or problems has President Barack Obama
had during his presidency? Which ones are international affairs and
which ones are domestic matters? What solutions, if any has he
proposed, for these challenges and problems? Where are those solutions
found in the Article II of the Constitution?
3. What role, if any, do you think political parties have contributed to how the
role of the President has changed since Washington’s time?
 Further study: Discuss how presidential candidates are chosen i.e.
primaries, caucuses, conventions, etc. Why do you think the Framers of
the Constitution did not provide a process for choosing presidential
candidates in the Constitution? Do you think the Constitution should be
amended to provide for a process? If so, what would be your proposal?
4. In a debate about the presidency, which side would you prefer and why:
 The modern President is more like a king than the head of a co-equal
branch of government.
 The modern President must have more powers than the Framers
envisioned to lead a country of 50 states and to be a leader in the
modern world.
5. Do you think the current executive branch with all of its departments and
agencies blurs the principle of the separation of powers? Why or why not?
 Enrichment: Former Congressman Lee Hamilton has written extensively
about how Congress has ceded some of its constitutional powers to the
presidency. Have students read this essay and some of his other essays at:
http://congress.indiana.edu/congress-keeps-ceding-power-the-president
After reading the essays, consider whether you agree or disagree with Rep.
Hamilton.
6. How would you describe the War Powers Act? Do you think it has been
effective? Why or why not?
 Enrichment: Have students read in depth about the War Powers Act at
http://www.loc.gov/law/help/war-powers.php. Discuss the merits and
weaknesses of the act. Have students consider how Truman’s commitment of
troops to Korea and several Presidents’ (Eisenhower, Kennedy and Johnson)
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commitment of troops in Vietnam may have led to this act. Has the War
Powers ever been evoked since becoming law?
7. What are executive orders? How have they been used to promote the
constitutional rights of individuals? How have they been oppressive? Is there
a check on these orders?
 Enrichment: Have students go this website for a full list of executive orders:
http://www.archives.gov/federal-register/executive-orders/disposition.html
8. What are signing statements? Do you think these are constitutional? Why or
why not?
Enrichment: The Supreme Court of the United States has ruled that Presidents
may not line item veto of the budget or other bills. See Clinton v. City of New
York, 524 U.S. 417 (1998). How is a signing statement that says the President
will not enforce a portion of a law different from a line item veto or is it?

Enrichment: Have students go to this website for factual information about
signing statements:
http://www.presidency.ucsb.edu/signingstatements.php?year=2004&Submit=
DISPLAY#axzz1Vyy6FF45 .
9. One of the issues that arises in campaign years is the presidential power to
nominate federal judges, especially Supreme Court justices? Why do you
think that has become a campaign focal point?

Enrichment: Have students read the Supreme Court cases listed under the
Rule of Law and the President section.
(See alignment with Missouri’s Social Studies Standards on the following page.)
PRESIDENTIAL TRIVIA—FOR FUN!
(Answers on the following page.)
1. Who was the only president never elected as either President or Vice-President?
2. Which President (before becoming President) defended the British soldiers in the
Boston Massacre case?
3. Who was the only President elected more than twice?
4. Which President served non-consecutive terms?
5. Who was the only bachelor President?
6. What is the most common first name for Presidents?
7. How many presidents share a last name with another President?
8. How many sitting Vice-Presidents have been elected as President?
9. How many sitting Vice-Presidents became President because the sitting President
was no longer able to serve?
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10. Who served as Speaker of the House of Representatives after serving as
President?
11. Who became Chief Justice of the Supreme Court after serving as President?
12. Who was the last person to serve as President who did not have a college degree?
ALIGNMENT WITH MISSOURI’S SOCIAL STUDIES STANDARDS
Constitution Day
Objectives
Explain the purpose of
Article II of the United
States Constitution.
Show Me
Knowledge/Content
Performance
Process
Course level expectations/
depth of knowledge
1.1 Develop
questions and ideas
to initiate and refine
research.
1.2 Conduct
research to answer
questions and
evaluate information
and ideas.
1.2 Conduct
research to answer
questions and
evaluate information
and ideas.
3.6 Examine
problems and
proposed solutions
from multiple
perspectives.
1-A
Evaluate and defend the role
of the President in the
American Constitutional
System.
Social Studies 3
Principles and
processes of
governance systems.
Social Studies 3
Principles and
processes of
governance systems.
Explain how the executive
branch has evolved since
1787 and the implications of
this evolution.
Social Studies 3
Principles and
processes of
governance systems.
Compare and contrast the
executive branch of George
Washington’s presidency
with the present day
presidency.
Explain the concept of the
rule of law and how it
pertains to the American
presidency.
Social Studies 3
Principles and
processes of
governance systems.
Social Studies 3
Principles and
processes of
governance systems
1.2 Conduct
research to answer
questions and
evaluate information
and ideas.
1-A/7-E
Discuss current
constitutional presidential
controversies.
Social Studies 3
Principles and
processes of
governance systems
1.2 Conduct
research to answer
questions & evaluate
information &ideas.
2-C
Trivia answers:
1. Gerald Ford
2. John Adams
3. Franklin D. Roosevelt
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2-C
1
4
1-A/7-E
1-A/B
3
3
4
4
4.
5.
6.
7.
8.
9.
10.
11.
Grover Cleveland
James Buchanan
James (6—Madison, Monroe, Polk, Buchanan, Garfield, Carter)
Ten—John and John Q. Adams, William and Benjamin Harrison, Andrew and Lyndon
Johnson, Theodore and Franklin Roosevelt, George H.W. and George W. Bush.
Four--John Adams, Thomas Jefferson, Martin Van Buren and George H.W. Bush.
Eight—John Tyler, Millard Fillmore, Andrew Johnson, Chester Arthur, Theodore Roosevelt,
Calvin Coolidge and Lyndon Johnson.
John Quincy Adams
William Taft
12. Harry S Truman
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