EXECUTIVE BRANCH—
PRESIDENT &
BUREAUCRACY
• Perspectives
– Theory
– Declaration of Independence
– Separation of Powers
• Constitutional Convention
• Article II
ARISTOTLE
Government must
• Make laws
• Execute laws
• Judge laws
Can be done by one, few, many
Declaration of Independence
• King George III performs all three
functions
• Refuses petitions to redress
grievances
• King’s character marked by acts
“which may define a Tyrant”
SEPARATION OF POWERS
Guiding principle of American governments
“Publius,” No. 47
Accumulation of legislative, executive, judicial
powers in same hands is “very definition of tyranny”
Philadelphia Convention
Greatest focus on representation—states or
people?
No clear theory of executive power
Virginia Plan
• National executive—single or plural???
• Elected by legislature
• Take over executive functions performed
by Congress under Articles
• One seven-year term; not re-eligible
• Member of Council of Revision; negative
legislation before becoming law
New Jersey Plan
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Plural executive
Elected by legislature
Ineligible for second term
Removable at request of Congress on
application of majority state governors
• To direct military operations but none to
directly command troops
Hamilton Plan
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One person to “execute laws”
Elected by electors from districts
Life tenure, but impeachable
Absolute veto
Have “direction of war when authorized or
begun”
• Sole authority to appoint heads of finance, war,
foreign affairs
• Treaty, other appointment power with Senate’s
“advice and approbation”
• To appoint state governors
James Wilson (Pa.)
Characteristics of good executive:
Energy
Dispatch [efficiency]
Responsibility
Roger Sherman (Ct.)
Characteristic of good executive:
Carry out will of legislative branch
Gouverneur Morris (Pa.)
Characteristic of good executive:
Protect people from legislative branch
What we want from executive
affects. . .
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How many chief executives
How chief executive best selected
Term of office
Executive powers
Limitations on executive
Compromises
• Term of office
• Re-eligibility
• Selection
• Qualified veto power
• Impeachment
Article II (executive powers)
• “Commander in Chief of the Army and Navy. . .when
called into the actual Service of the United States”
• Require opinions of principal officers in executive
Departments
• Grant reprieves/pardons for offenses against U.S.
(except impeachment)
• Make treaties with Advice/Consent of Senate
• Nominate/appoint Ambassadors/public ministers,
Consuls, S.C. Judges with Advice/Consent of Senate
• Fill vacancies during Senate recess
• Convene/adjourn Congress or either house
Article I (executive powers)
Veto
– With statement of objections
– Qualified
Responsibilities
• State of the Union address
• Recommend to Congress “Measures as he shall
judge necessary and expedient”
• Receive Ambassadors/public Ministers
• Take Care Laws be faithfully executed
• Commission Officers of U.S.
• Be subject re re-election every 4 years (changed
by 22d A.)
• Take oath
Presidential oath
“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.”
Concerns about executive power. ..
Pierce Butler (S.C.)
“It had been observed that in all countries
the executive power is in a constant
course of increase.”
Gouverneur Morris (Pa.)
“The love of fame is the great spring to
noble and illustrious actions. Shut the civil
road to glory, and he may be compelled to
seek it by the sword.”
Edmund Randolph (Va.)
Single executive is “foetus of monarchy”
Charles Pinckney
(S.C.)
If President has power over war and peace,
U.S. will have worst kind of monarchy:
elective one
George Mason (Va.)
“We are not indeed constituting a British
government, but a more dangerous
monarchy—an elective one. . . Do
gentlemen mean to pave the way to
hereditary monarchy?”
“Philadelphiensis”
President as “military king”
“Who can deny but the president general will
be a king to all intents and purposes, and
one of the most dangerous kind too--a
king elected to command a standing
army.”
So. . .what are the President’s
powers?
• Constitutional “white space”
• E.g., signing statements
• Constitution: must issue when vetoes
• Since Monroe, have used when signing
• Dramatic increase since Reagan
» President Bush: includes frequent references to
“unitary executive”
Unitary Theory of the President
During war, the President cannot be
bound by law. Reasons:
Commander in chief
Inherent power of the President
Examples. . .
• ”The centralization of authority in the president
alone is particularly crucial in matters of national
defense, war, and foreign policy, where a unitary
executive can evaluate threats, consider policy
choices, and mobilize national resources with a
speed and energy that is far superior to any
other branch.” John Yoo
• “The president has not just some executive
powers, but the executive power—the whole
thing.” Samuel Alito
JOHN DEAN (2002)
“. . .
“[E]ach national crisis has left the nation a
little less democratic than before. . . [I]f a
future attack comes, and is devastating,
the pressure to resort to constitutional
dictatorship may be irresistible.”