The Constitution: Presidential Powers

“The vesting clause” of Article II, as it’s known, differs significantly from the vesting clause of Article I, which concerns the powers of Congress—the House of Representatives and the Senate. Article I’s vesting clause states: “all legislative powers herein granted shall be vested in a Congress of the United States…” It then goes on to list those limited powers. That’s it. Congress can’t do anything else.

There are no such limitations specified in Article II. The difference is subtle, but important. Whereas Congress is given specific responsibilities, the President is given broad responsibilities and wide discretion as to how he fulfills them. This is part of his executive authority. And just what is that executive authority?

This is spelled out in Sections 2 and 3. The President is the commander in chief of the armed services. He sets military policy. He makes treaties with foreign countries. He sets foreign policy. He appoints his own advisors—what became known as his cabinet. He sets domestic policy. He appoints judges to the Supreme Court. That obviously gives him a big say in judicial policy. And finally, “he shall take care that the laws be faithfully executed.”

This list is at once brief and vast because there’s so much involved in all these duties. Indeed, the President stands at the head of the entire administrative apparatus of the Federal government with all the rights and responsibilities that entails. For example, if the President can appoint federal officials, it stands to reason that he must be able to fire them, too. When you realize that enforcing the law involves layers and layers of people from department heads to federal law enforcement to government lawyers, all of whom are accountable to the President, you start to grasp how much power the chief executive has.

So, how did the Framers keep the President in check? First and foremost, they gave Congress “the power of the purse,” the power to fund the operations of the federal government. Congress can restrain the President by withholding funding. The President literally can’t buy a light bulb for a lamp in the Oval Office without a Congressional appropriation. If the President proposes to add a new federal agency or to launch a war, Congress can bring his plans to a halt simply by refusing to fund them.

The Constitution strikes a similar balance in foreign affairs. The President, as Commander-in-Chief, controls the strategy, tactics, and deployments of the U.S. Armed Forces, and also dictates U.S. foreign policy. Only Congress, however, has the power to declare war, and the Senate, by a two-thirds majority, must consent to any treaty negotiated by the President. Congress also has the power to impeach the President in cases of serious misconduct—treason, bribery, or other high crimes and misdemeanors. But the bar for impeachment is set very high to protect the President’s independence from Congress.

Finally, the framers made the President accountable to the people. If the people are dissatisfied with his performance, the people can vote him out. And they don’t have to wait long—they get a chance every four years. Before the US Constitution, no country had ever had a leader whose fate was so dependent on the will of the people.

At the same time, the Founders had no patience for pure democracy, which they considered no different than mob rule. This is why presidential elections are not determined by popular vote but by the Electoral College, as outlined in Article II Section 1. Yet another guard against tyranny—this time, the tyranny of the majority. It’s often said that the President is the most powerful man in the world. This is undoubtedly true. But he’s not more powerful than the Constitution. Article II made sure of that.