Electors Clause

Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the President of the United States, lays out the procedures for electing and removing the President, and establishes the President's powers and responsibilities.

Section 1 of Article Two establishes the positions of the President and the Vice President, and sets the term of both offices at four years. Section 1's Vesting Clause declares that the executive power of the federal government is vested in the President and, along with the Vesting Clauses of Article One and Article Three, establishes the separation of powers among the three branches of government. Section 1 also establishes the Electoral College, the body charged with electing the President and the Vice President. Section 1 provides that each state chooses members of the Electoral College in a manner directed by each state's respective legislature, with the states granted electors equal to their combined representation in both houses of Congress. Section 1 lays out the procedures of the Electoral College and requires the House of Representatives to hold a contingent election to select the President if no individual wins a majority of the electoral vote. Section 1 also sets forth the eligibility requirements for the office of the President, provides procedures in case of a Presidential vacancy, and requires the President to take an oath of office.

Section 2 of Article Two lays out the powers of the Presidency, establishing that the President serves as the Commander-in-Chief of the military. This section gives the President the power to grant pardons. Section 2 also requires the "principal officer" of any executive department to tender advice.

Though not required by Article Two, President George Washington organized the principal officers of the executive departments into the Cabinet, a practice that subsequent Presidents have followed. The Treaty Clause grants the President the power to enter into treaties with the approval of two-thirds of the Senate. The Appointments Clause grants the President the power to appoint judges and public officials subject to the advice and consent of the Senate, which in practice has meant that Presidential appointees must be confirmed by a majority vote in the Senate. The Appointments Clause also establishes that Congress can, by law, allow the President, the courts, or the heads of departments to appoint "inferior officers" without requiring the advice and consent of the Senate. The final clause of Section 2 grants the President the power to make recess appointments to fill vacancies that occur when the Senate is in recess.

Section 3 of Article Two lays out the responsibilities of the President, granting the President the power to convene both Houses of Congress, receive foreign representatives, and commission all federal officers. Section 3 requires the President to inform Congress of the "state of the union"; since 1913 this has taken the form of a speech referred to as the State of the Union. The Recommendation Clause requires the President to recommend measures deemed "necessary and expedient." The Take Care Clause requires the President to obey and enforce all laws, though the President retains some discretion in interpreting the laws and determining how to enforce them.

Section 4 of Article Two gives directives on impeachment. The directive states, "The President, Vice President and all civil Officers of the United States shall be removed from office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Section 1: President and vice president

Clause 1: Executive power and term of office

Section 1 begins with a vesting clause that confers federal executive power upon the President. Similar clauses are found in Article I and Article III; the former bestows federal legislative power exclusively to Congress, and the latter grants judicial power solely to the Supreme Court, and other federal courts established by law. These three articles together secure a separation of powers among the three branches of the federal government, and individually, each one entrenches checks and balances on the operation and power of the other two branches.

Article I grants certain powers to Congress, and the Vesting Clause does not reassign those powers to the President. In fact, because those actions require legislation passed by Congress which must be signed by the President to take effect, those powers are not strictly executive powers granted to or retained by Congress per se. Nor were they retained by the U.S. Congress as leftovers from the Articles of Confederation. The Articles of Confederation, Continental Congress and its powers were abolished at the time the new U.S. Congress was seated and the new federal government formally and officially replaced its interim predecessor.

The President may order military action in defense of the United States pursuant to "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces". The President must notify Congress within 48 hours after the beginning of military operations, giving the source of his authority for the action. Once legal notification is given to Congress, military action can continue for up to 60 days without further authorization from Congress, or up to 90 days if the President "determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces."

Treaties are official agreements with foreign governments. Treaties must be approved by Senate. While the President does not make treaties, the President shapes and determines U.S. foreign policy initiatives, can enter into discussions and give conditional approval to agreements reached with foreign governments subject to Senate approval.

In their capacity as Head of State and individual representative of the United States, the President has the authority to withdraw the United States from treaties when it is in the best interests and well being of the U.S.

Presidential appointments are approved by advice and consent of the Senate. Senate consent occurs when a majority of senators votes to approve a nominee.

The head of the Executive Branch is the President. The Constitution states that the President and Vice President are to be elected at the same time, for the same term, and by the same constituency. It is believed the framers wanted to preserve the independence of the executive branch should the Vice President assume the Presidency.

Clause 2: Method of choosing electors

Under the U.S. Constitution the President and Vice President are chosen by electors, under a Constitutional grant of authority delegated to the legislatures of the several states. The Constitution reserves the choice of the precise manner for selecting electors to the will of the state legislatures. It does not define or delimit what process a state legislature may use to create its ''state'' college of electors. In practice, the state legislatures have generally chosen to select electors through an indirect popular vote, since the 1820s. Most states use a "winner-take-all" system in which all the state's electors are awarded to the candidate gaining the most popular votes. Maine and Nebraska allow individual congressional districts to each elect one elector.

In an indirect popular vote, it is the names of the candidates who are on the ballot to be elected. Most states do not put the names of the electors on the ballot. It is generally understood by the voters and the electors themselves that they are the representative "stand-ins" for the candidates and are expected to cast their electoral college ballots for the president and vice president who appeared on the ballot. The actual electors being voted for are usually selected by the candidate's party. There have been a few cases where some electors have refused to vote for the designated candidate, termed a faithless elector. Many states have mandated in law that electors ''shall'' cast their electoral college ballot for the designated presidential candidate. The constitutionality of such mandates was established by the Supreme Court of the United States in ''Chiafalo v. Washington'' (2020).

Each state chooses as many electors as it has representatives and senators representing it in Congress. Under the 23rd Amendment, the District of Columbia may choose no more electors than the state with the lowest number of electoral votes (in effect, three electors), although since that amendment's ratification the District's population has never reached the threshold that would otherwise entitle it to choose four or more electors. U.S. Senators, Representatives and federal government officials are barred from becoming electors; in practice, the two major federal parties frequently select senior state party and government officials (up to and including governors) to serve as electors.

All states other than Maine (including the District of Columbia) use a first past the post system in their presidential elections. In 2020, Maine switched from first past the post to ranked choice.

In '' McPherson v. Blacker'' (1892), the Supreme Court affirmed the ability of a state to appoint its electors based on electoral districts rather than a statewide popular vote, describing the power of state legislatures to determine the method of appointment of electors as "plenary", and suggesting that it was not limited even by state constitutions. In ''Bush v. Palm Beach County Canvassing Board'' (2000), the Supreme Court remanded to the Supreme Court of Florida the question of "the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority under Art. II, § 1, cl. 2". In ''Williams v. Rhodes'' (1968), the Court struck down as a violation of the Equal Protection Clause an Ohio law which placed heavy burdens on minor parties seeking to be placed on the ballot for presidential electors.

The Supreme Court upheld the power of Congress to regulate political contributions intended to influence the appointment of electors in '' Burroughs v. United States'' (1934).

Clause 3: Electoral College

''(Note: This procedure was changed by the 12th Amendment in 1804.)''

In modern practice, parties nominate their electors through various methods . Then, each state chooses its electors in popular elections. In most states, the party with the plurality of the popular vote gets all of its electors chosen. Once chosen, the electors meet in their respective states to cast ballots for the president and vice president. Originally, each elector cast two votes for president; at least one of the individuals voted for had to be from a state different from the elector's. The individual with the majority of votes became president, and the runner-up became vice president. In case of a tie between candidates who received votes from a majority of electors, the House of Representatives would choose one of the tied candidates; if no person received a majority, then the House could again choose one of the five with the greatest number of votes. When the House voted, each state delegation cast one vote, and the vote of a majority of states was necessary to choose a president. If second-place candidates were tied, then the Senate broke the tie. A quorum in the House consisted of at least one member from two-thirds of the state delegations; there was no special quorum for the Senate. This procedure was followed in 1801 after the electoral vote produced a tie, and nearly resulted in a deadlock in the House.

The 12th Amendment introduced a number of important changes to the procedure. Now, electors do not cast two votes for president; rather, they cast one vote for president and another for vice president. In case no presidential candidate receives a majority, the House chooses from the top three (not five, as before the 12th Amendment). The Amendment also requires the Senate to choose the vice president from those with the two highest figures if no vice presidential candidate receives a majority of electoral votes (rather than only if there's a tie for second for president). It also stipulates that to be the vice president, a person must be qualified to be the president.

Clause 4: Election day

Congress sets a national Election Day. Currently, electors are chosen on the Tuesday following the first Monday in November (the first Tuesday after November 1), in the year before the president's term is to expire. The electors cast their votes on the Monday following the second Wednesday in December (the first Monday after December 12) of that year. Thereafter, the votes are opened by the President of the Senate, and then counted by Congress in a joint session.

Clause 5: Qualifications for office

Section 1 of Article Two of the United States Constitution sets forth the eligibility requirements for serving as president of the United States:

At the time of taking office, the President must be:
* a natural-born citizen, or a person recognized as a citizen before September 17, 1787
* at least 35 years of age
* an inhabitant of the United States for at least fourteen years.

A person who meets the above qualifications, however, may still be constitutionally barred from holding the office of president under any of the following conditions:
* Article I, Section 3, Clause 7, gives the U.S. Senate the option of forever disqualifying anyone convicted in an impeachment case from holding any federal office.
* Section 3 of the 14th Amendment prohibits anyone who swore an oath to support the Constitution, and later rebelled against the United States, from becoming president. However, this disqualification can be lifted by a two-thirds vote of each house of Congress.
* The 22nd Amendment prohibits anyone from being elected to the presidency more than twice (or once if the person serves as president or acting president for more than two years of a presidential term to which someone else was originally elected).

Clause 6: Vacancy and disability

''(Note: This clause was partially superseded by the 25th Amendment in 1967.)''

The wording of this clause caused much controversy at the time it was first used. When William Henry Harrison died in office, a debate arose over whether the vice president would become president, or if he would just inherit the powers, thus becoming an acting president. Harrison's vice president, John Tyler, believed that he had the right to become president. However, many senators argued that he only had the right to assume the powers of the presidency long enough to call for a new election. Because the wording of the clause is so vague, it was impossible for either side to prove its point. Tyler took the Oath of Office as president, setting a precedent that made it possible for later vice presidents to ascend to the presidency unchallenged following the president's death. The "Tyler Precedent" established that if the president dies, resigns or is removed from office, the vice president becomes president.

The Congress may provide for a line of succession establishes the order as the speaker of the House of Representatives, the president ''pro tempore'' of the Senate and then the fifteen Cabinet secretaries in order of each department's establishment. There are concerns regarding the constitutionality of having members of Congress in the line of succession, however, as this clause specifies that only an "officer of the United States" may be designated as a presidential successor. Constitutional scholars from James Madison to the present day have argued that the term "officer" excludes members of Congress.

The 25th Amendment explicitly states that if the president dies, resigns or is removed from office, the vice president becomes president, and also establishes a procedure for filling a vacancy in the office of the vice president. The Amendment further provides that the president, or the vice president and Cabinet, can declare the president unable to discharge his or her duties, in which case the vice president becomes Acting president. If the declaration is done by the vice president and Cabinet, the Amendment permits the president to take control back, unless the vice president and Cabinet challenge the president and two-thirds of both Houses vote to sustain the findings of the vice president and Cabinet. If the declaration is done by the president, the president may take control back without risk of being overridden by the Congress.

Clause 7: Salary

The president's salary, currently $400,000 a year, must remain constant throughout the president's term. The president may not receive other compensation from either the federal or any state government.

Clause 8: Oath or affirmation

According to the Joint Congressional Committee on Presidential Inaugurations, George Washington added the words "So help me God" during his first inaugural, though this has been disputed. There are no contemporaneous sources for this fact, and no eyewitness sources to Washington's first inaugural mention the phrase at all—including those that transcribed what he said for his oath.

Also, the president-elect's name is typically added after the "I", for example, "I, George Washington, do..." Normally, the chief justice of the United States administers the oath. It is sometimes asserted that the oath bestows upon the president the power to do whatever is necessary to "preserve, protect and defend the Constitution". Andrew Jackson, while vetoing an Act for the renewal of the charter of the national bank, implied that the president could refuse to execute statutes that he felt were unconstitutional. In suspending the privilege of the writ of ''habeas corpus'', President Abraham Lincoln claimed that he acted according to the oath. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Chief Justice Roger B. Taney) in ''Ex parte Merryman'', 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. Finally, Andrew Johnson's counsel referred to the theory during his impeachment trial. Otherwise, few have seriously asserted that the oath augments the president's powers.

The vice president also has an oath of office, but it is taken under the Oath or Affirmation Clause of Article VI that provides that "all ... Officers ... of the United States ... shall be bound by Oath or Affirmation, to support this Constitution". Pursuant to Article VI, the 1st United States Congress passed the Oath Administration Act (that remains in effect) which provides that "...the oath or affirmation required by the sixth article of the Constitution of the United States ... shall be administered to he President of the Senate. Currently, the vice presidential oath is the same as that for members of Congress and members of the Cabinet, which is as follows:

Section 2: Presidential powers

In the landmark decision ''Nixon v. General Services Administration'' (1977), Justice William Rehnquist, afterwards the chief justice, declared in his dissent "It would require far more of a discourse than could profitably be included in an opinion such as this to fully describe the preeminent position that the president of the United States occupies with respect to our Republic. Suffice it to say that the president is made the sole repository of the executive powers of the United States, and the powers entrusted to him as well as the duties imposed upon him are awesome indeed."

Unlike the modern constitutions of many other countries, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution itself includes no comprehensive separate regime for emergencies. However, according to ''The Atlantic'', some legal scholars believe that the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined "executive Power". Congress has delegated at least 136 distinct statutory emergency powers to the President, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress; the remaining 123 are assumed by an executive declaration with no further Congressional input. Congressionally-authorized emergency presidential powers are sweeping and dramatic and range from seizing control of the Internet to declaring martial law. This led the magazine ''The Atlantic'' to observe that "the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power", because, in the words of Justice Robert H. Jackson's dissent in ''Korematsu v. United States'' (1944), the decision that upheld the internment of Japanese Americans, each emergency power "lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

Clause 1: Command of military; Opinions of cabinet secretaries; Pardons

The Constitution vests the president with executive power. The Supreme Court has interpreted that power as reaching its zenith when wielded to protect national security, and ruled that federal courts in the United States must show deference to the executive in assessing threats to the country. The president is the military's commander-in-chief; however, Article One's War Powers Clause gives Congress, and not the president, the exclusive right to declare war. Nevertheless, the power of the president to initiate hostilities has been subject to question. According to historian Thomas Woods, "Ever since the Korean War, Article II, Section 2 ..has been interpreted 'The president has the power to initiate hostilities without consulting Congress' ...But what the framers actually meant by that clause was that once war has been declared, it was the president's responsibility as commander-in-chief to direct the war. Alexander Hamilton spoke in such terms when he said that the president, although lacking the power to declare war, would have 'the direction of war when authorized or begun.' The president acting alone was authorized only to repel sudden attacks (hence the decision to withhold from him only the power to 'declare' war, not to 'make' war, which was thought to be a necessary emergency power in case of foreign attack)." Since World War II, major U.S. military engagements, including the Korean War and the Vietnam War, have commenced as "military operations" or under the framework of United Nations "police action". These campaigns or efforts have been justified through Congressional authorizations, such as the Gulf of Tonkin Resolution and the Authorization for Use of Military Force Against Iraq

HOME


Content is Copyleft
Website design, code, and AI is Copyrighted (c) 2014-2017 by Stephen Payne


Consider donating to Wikimedia



As an Amazon Associate I earn from qualifying purchases