3/22/2016
1
3/22/2016
2
Article II & the President ...
"Executive power”
–
–
–
–
–
–
–
–
–
3/22/2016
Youngstown Sheet & Tube v. Sawyer, 1952
NY Times Co. v US, 1971
U.S. v US District court, 1972
U. S. v Nixon, 1974
Dames & Moore v. Reagan 1981
Bush & Executive Power & U.S. Hostages in Iran
Hamdi V. Rumsfeld, Secretary Of Defense 6/2004
Rumsfeld, Secretary Of Defense V. Padilla 6/2004
Rasul Et Al. V. Bush, President Of The United States
6/2004
3
Article II, Section 1
Term
Electoral college
3/22/2016
4
How Select President?
How to select President was the most
difficult question to our Framers.
4 times adopted & then defeated
election of President by Members of
Congress.
2 times defeated direct election of
President by people (who?).
Did NOT want chosen by either
Congress or by popular vote. So …
3/22/2016
5
Electoral College
Electoral College was a
compromise.
– Allow those eligible to vote to
express preference for President.
– But, employ elite “electors” as
independent check to make final
decision … in case voters choose
“wrong” candidate.
3/22/2016
6
Article II, section 1, clause 2
State law (legislatures) governs
appointment of electors equal to
number of U.S. Representatives and
U.S. Senators in each state.
– How many?
Electors may not hold any Federal
office. They are “state” officers.
3/22/2016
7
Electors as Free Agents
Electors intended to be “free agents” to exercise an
“independent & nonpartisan judgment” as to who
best qualified. Were to be distinguished,
enlightened citizens.
“Select according to own will without concern for
wishes of the people.”
Art #II, Sec. 1, Congress chooses day for selection
of Presidential electors (general election day).
When?
“Tuesday next after the 1st Monday in
November.”
– Nov. 7, 1848 first time all states chose on the same day.
Why chose 1st Tuesday after 1st Monday?
3/22/2016
8
2012 Election
http://elections.nytimes.com/2012/results/president shows classic view
3/22/2016
9
Election of 1800
Democratic Republican (DR) candidates
– Thomas Jefferson 73 electoral votes
– Aaron Burr 73 electoral votes
– DR electors intended Jefferson to be President & Burr to
be VP but overzealously voted for both.
Federalist candidates
– John Adams 65 electoral votes
– Charles C. Pinckney 64 electoral votes
Federalist elector refused to vote for Pinckney to help Adams.
Election thrown to Congress; 16 states’ representatives
voted over and over and still got tie votes until a member
changed his vote which gave the election to Jefferson.
Resulted in 12th Amendment to prevent problem & now
requires separate ballots for Pres & VP.
3/22/2016
10
Amendment 12 (1804)
Supersedes Article II, sec 1 to make
impossible situation of election of 1800.
President & Vice President “shall not be
inhabitants of the same state.”
– Texas voters sued Cheney 11/2000 as
ineligible since both he & Bush were
residents of Texas.
3/22/2016
11
Elector Voting
Electors met in state capitols to cast
separate votes for President & Vice
President.
– Congress decided 1st Monday after 2nd
Wednesday in December
http://www.star-telegram.com/2012/12/16/4489352/the-nationselectors-cast-the.html
3/22/2016
12
Amendment 12 (1804)
Each state’s certified & signed separate
lists of electoral votes for President &
VP sealed & sent to President of the
Senate (VP) who counts in joint session
of Congress. (Also sent to directors of
US General Services Administration,
the state’s secretary of state, and to the
federal district judge of the district
where each state’s elector’s met).
3/22/2016
13
Amendment 12 (1804)
If no presidential candidate receives
majority (what is it?) ...
– House (2/3 quorum) chooses from (3)
candidates with most electoral votes.
– Then each state’s US House
delegation gets one vote for
president. How many?
– If no decision made by March 4, then
the VP is acting president.
3/22/2016
14
Election of 1824
Pop & Electoral Vote
Andrew Jackson
John Quincy Adams
Henry Clay
William H. Crawford
3/22/2016
153,544(43.1%) 99
108,740(30.5%) 84
47,136(13.2%) 37
46,618(13.1%) 41
Total Pop votes cast
356,038
Total Electoral votes
cast 261/132(majority)
Thrown to Congress.
Adams 13, Jackson 7,
3 cast for another.
15
Amendment 12 (1804)
If no vice presidential candidate
receives majority of electoral votes ...
–Senate (2/3 quorum) chooses from
(2) with most electoral votes. Each
senator has 1 vote. 100 votes!
–VP must be eligible to be president.
3/22/2016
16
3/22/2016
17
1876 Electoral College
Samuel Tilden(D), 51% pop vote,
4,284,020, and 184 elector votes.
Rutherford B. Hayes(R), 48% pop vote,
4,036,571, 185 elector votes. 247,449
votes less than Tilden! 2.97% of vote
difference.
– Disputes over 15 Electoral College votes
in 4 states threw decision where?
3/22/2016
18
1876 Electoral College
15 member Commission
– Southern Democrat “conservatives”
(Republicans today) cut secret deal to do
what?
3/22/2016
19
1888 Electoral College
Grover Cleveland (D), 48.6% 5,540,050
popular votes.
– 168 electoral college votes.
Benjamin Harrison(R), 47.8% 5,444,337
popular votes.
– 233 electoral college votes.
– Narrow wins in states & tainted by vote fraud in
NY & Indiana
– 95,713 less pop votes than Cleveland. .8713%
of popular vote.
Cleveland defeats in 1892
3/22/2016
20
Article II, Section 1
Requirements (Age, birth & residency)
When I worked for the U.S. Congress, I grew to respect the Congressional Research Service for its scholarly research, who during Nov 2011 issued a detailed
legal opinion on the Article One section 1 presidential eligibility requirement that he be a "natural born Citizen or a Citizen of the United States." Excellent work.
Of course in the beginning we were all British & requirement will be waived. https://fas.org/sgp/crs/misc/R42097.pdf Also see state department legal
opinion http://www.state.gov/documents/organization/86755.pdf
–
Here is the section of US Law - 8 U.S. Code § 1401 - Nationals and citizens of United States at birth https://www.law.cornell.edu/uscode/text/8/1401
where it defines "Citizen at Birth." This is currently the legal definition of what "natural-born citizen" means and a person needs to satisfy only one of the
conditions listed there to be considered a citizen at birth. US Military bases are NOT considered US territory, though US Embassies (but not
Consulates) ARE. Being born on a foreign US military base is no different than being born in a foreign country, for determination of US Citizenship at
Birth. Neither qualify. It would depend on the person's parents to determine eligibility for Citizenship at Birth.
–
Regarding original intent, it is not clear what the Authors meant. However, their debate comments give a strong indication of their fears. Constitutional
Convention debate Elbridge Gerry stated his fear that “Persons having foreign attachments will be sent among us & insinuated into our councils, in
order to be made instruments for their purpose.”
–
Federalist 3 John Jay’s Dangers from Foreign Force and Influence: “Let us therefore proceed to examine whether the people are not right in their
opinion that a cordial Union, under an efficient national government, affords them the best security that can be devised against HOSTILITIES from
abroad.” Then he states: “The neighborhood of Spanish and British territories, bordering on some States and not on others, naturally
confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of
sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations;
and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the
passions which actuate the parties immediately interested.”
–
Federalist 4 John Jay: “Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint
Lawrence on the other.” and “How liable would she (America) become not only to their (foreign) contempt but to their outrage, and how
soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.“
–
Federalist 68 Hamilton states: “… desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by
raising a creature of their own to the chief magistracy of the Union?” In 69 there is several references to 4 years only.
–
See http://dallasmorningviewsblog.dallasnews.com/2016/01/heres-why-ted-cruzs-natural-born-citizenship-is-more-complicated-than-it-seems.html/
–
See http://www.latimes.com/opinion/op-ed/la-oe-lee-is-ted-cruz-eligible-to-be-president-20160110-story.html
–
See http://www.nbcnews.com/politics/2016-election/ted-cruz-natural-born-citizen-ask-founders-n490971
–
See http://www.huffingtonpost.com/entry/ted-cruz-natural-born-citizen-alan-grayson_56940bfce4b0a2b6fb710df9
–
See http://www.cnn.com/2016/01/12/politics/laurence-tribe-ted-cruz-birther-argument/index.html?eref=rss_latest
–
See http://www.dallasnews.com/news/columnists/gromer-jeffers-jr/20160108-trumps-right-ted-cruz-needs-to-dispense-with-birther-concern.ece
–
See http://lubbockonline.com/editorial-columnists/2016-01-08/rangel-birther-issue-now-being-raised-against-cruz#.VpZ4QhUrKUk
–
See http://www.mystatesman.com/news/news/state-regional-govt-politics/why-ted-cruz-cant-shed-questions-about-his-canadia/np376/
3/22/2016
21
Article II, Section 1
Succession
Benefits
– Salary? Gifts?
– http://www.politico.com/news/stories/0112/71358.html story about how a supreme
court decision can permit even one wealthy individual to prop up a political
candidate, which buys an election and does nothing to show broad based support.
– Prohibit acceptance of anything of value based on the code required by federal
law officers:
“I will accept nothing, even of the slightest value, including favored treatment of any kind, from
anyone on my own behalf or behalf of another person, recognizing that acceptance may result in a
conflict or give the appearance of a conflict with my official duties or in my effectiveness as an
elected leader.”
In 2009, Obama struck a blow for better government with his executive order banning political
appointees from accepting gifts from lobbyists. In 2011 he is extending ban to all 2.6 million career
federal workers. The ban, will end the current exception that lets a lobbyist provide a worker up to
$50 worth of gifts, including meals, entertainment and invitations to events, each year.
However, I believe nothing should be accepted from ANYONE.
3/22/2016
22
Article II, Section 1
Oath
– “I will support and defend the Constitution
of the United States against all enemies,
foreign and domestic; that I will bear true
faith and allegiance to the same; that I
take this obligation freely, without any
mental reservation or purpose of evasion;
and that I will well and faithfully discharge
the duties of the office on which I am
about to enter.” So help me God (Can this
be required?)
3/22/2016
23
Article II, Section 2
Commander in chief
Pardon
–
http://www.propublica.org/article/shades-of-mercy-presidential-forgiveness-heavily-favors-whites
War powers
Treaties
Nominations
3/22/2016
24
Article II, Section 3
State of the union
Call Congress
Receive ambassadors
Execute law
Commission officers
Impeachment
3/22/2016
25
Amendment 20 (1933)
Terms for President/VP & Congress
Congress meeting frequency
Death of president-elect
President-elect not chosen or qualified
President-elect and VP elect not chosen
or qualified
When Congress chooses president & VP,
what if one dies?
3/22/2016
26
Amendment 20 (1933)
If president-elect not chosen/qualified
by 1/20, what happens?
If president-elect & vice president-elect
both are not selected or qualified by
1/20 ... then what happens?
When Congress has right to choose the
president and vice president ... What
happens if a candidate dies?
3/22/2016
27
Amendment 22 (1951)
3/22/2016
28
Amendment 23
District of Columbia
3/22/2016
29
Amendment 25 (1967)
Garfield coma. What happened?
Wilson was an invalid? Why?
What role for the Vice President?
3/22/2016
30
Amendment 25 (1967)
What happens when there is a vice
president vacancy?
Examples?
3/22/2016
31
Amendment 25 (1967)
What if the president is unable to
discharge his duties but can
communicate under Amendment 25?
3/22/2016
32
Amendment 25 (1967)
What if the president is unable to
discharge his duties but cannot or will
not communicate under Amendment
25?
How can the President gets his job
back?
What if there is an objection?
What role does Congress have?
3/22/2016
33