What’s the Law?
What’s actually required, by law, to become President of the United States?
The Constitution lists only three qualifications for the Presidency — the President must be at least 35 years of age, be a natural born citizen, and must have lived in the United States for at least 14 years.
From WH.gov:
https://www.whitehouse.gov/about-the-white-house/our-government/the-executive-branch/
The President
The President is both the head of state and head of government of the United States of America, and Commander-in-Chief of the armed forces.
Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress. Fifteen executive departments — each led by an appointed member of the President’s Cabinet — carry out the day-to-day administration of the federal government. They are joined in this by other executive agencies such as the CIA and Environmental Protection Agency, the heads of which are not part of the Cabinet, but who are under the full authority of the President. The President also appoints the heads of more than 50 independent federal commissions, such as the Federal Reserve Board or the Securities and Exchange Commission, as well as federal judges, ambassadors, and other federal offices. The Executive Office of the President (EOP) consists of the immediate staff to the President, along with entities such as the Office of Management and Budget and the Office of the United States Trade Representative.
The President has the power either to sign legislation into law or to veto bills enacted by Congress, although Congress may override a veto with a two-thirds vote of both houses. The Executive Branch conducts diplomacy with other nations and the President has the power to negotiate and sign treaties, which the Senate ratifies. The President can issue executive orders, which direct executive officers or clarify and further existing laws. The President also has the power to extend pardons and clemencies for federal crimes.
With these powers come several responsibilities, among them a constitutional requirement to “from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” Although the President may fulfill this requirement in any way he or she chooses, Presidents have traditionally given a State of the Union address to a joint session of Congress each January (except in inaugural years) outlining their agenda for the coming year.
The Constitution lists only three qualifications for the Presidency — the President must be at least 35 years of age, be a natural born citizen, and must have lived in the United States for at least 14 years. And though millions of Americans vote in a presidential election every four years, the President is not, in fact, directly elected by the people. Instead, on the first Tuesday after the first Monday in November of every fourth year, the people elect the members of the Electoral College. Apportioned by population to the 50 states — one for each member of their congressional delegation (with the District of Columbia receiving 3 votes) — these Electors then cast the votes for President. There are currently 538 electors in the Electoral College.
President Joseph R. Biden is the 46th President of the United States. He is, however, only the 45th person ever to serve as President; President Grover Cleveland served two nonconsecutive terms, and thus is recognized as both the 22nd and the 24th President. Today, the President is limited to two four-year terms, but until the 22nd Amendment to the Constitution, ratified in 1951, a President could serve an unlimited number of terms. Franklin Delano Roosevelt was elected President four times, serving from 1932 until his death in 1945; he is the only President ever to have served more than two terms.
By tradition, the President and the First Family live in the White House in Washington, D.C., also the location of the President’s Oval Office and the offices of his or her senior staff. When the President travels by plane, his or her aircraft is designated Air Force One; the President may also use a Marine Corps helicopter, known as Marine One while the President is on board. For ground travel, the President uses an armored presidential limousine.
Now, let us delve into the Constitution, the law, and see just exactly what it says about becoming President of the United States.
First, from constitution.congress.gov
(https://constitution.congress.gov/browse/essay/artII-1/ALDE_00000243/)
ArtII.1 Overview of Article II, Executive Branch
Article II of the U.S. Constitution establishes the Executive Branch of the federal government. The Executive Vesting Clause, in Section 1, Clause 1, provides that the federal executive power is vested in the President. Section 3 of Article II further requires the President to “take Care that the Laws be faithfully executed.”(1) The executive power thus consists of the authority to enforce laws and to “appoint the agents charged with the duty of such enforcement.”(2) The President also has distinct authority over foreign affairs, and “alone has the power to speak or listen as a representative of the nation.”(3) As a general matter, the Supreme Court has recognized that the Constitution vests the President not only with the authorities expressly delineated therein, but also with certain implied authorities,(4) such as the ability to supervise (and generally to remove) executive officials(5) and the power to recognize foreign governments.(6) At the same time, the Court has said that by granting the President the power of faithfully executing the laws, the Constitution “refutes the idea” that the President was intended “to be a lawmaker.”(7) Nonetheless, the Court has recognized that officials appointed by the President—even those located within the Executive Branch—may exercise regulatory or adjudicative powers that are quasi-legislative or quasi-judicial.(8) Broadly, the Court has recognized that Executive Officers exercise authority to enforce and administer the laws, including rulemaking, administrative determinations, and the filing of lawsuits.(9)
The remaining provisions of Article II’s Section 1 primarily outline the election of the President, including the establishment of the electoral college. Relatedly, Section 1 sets out the qualifications of the President, the oath of office, and compensation. Section 1 also creates succession provisions in the event of a President’s removal or other inability to act, although the relatively sparse language in Clause 6 was later supplemented by the Twenty-Fifth Amendment and the Presidential Succession Act.(10)
Sections 2 and 3 define specific presidential powers and duties. Section 2, Clause 1 describes exclusive presidential powers: namely, the Commander in Chief authority, the power to require written opinions from the heads of executive departments, and the pardon power. Clause 2 defines the powers that the President shares with Congress, outlining the treaty-making power and the appointment power. Clause 3 expands on appointments by granting the President the power to unilaterally make temporary appointments during Senate recess. Section 3 requires the President to give Congress information on the state of the union. It also authorizes the President to recommend legislative measures and in extraordinary circumstances convene or adjourn Congress. Section 3 further grants the President the power to receive ambassadors and other public ministers. And as previously mentioned, Section 3 contains the Take Care Clause, requiring the President to ensure that the laws are faithfully executed.
Section 4 provides that the President—and all other “civil Officers of the United States”—may be removed from office if impeached and convicted on charges of “Treason, Bribery, or other high Crimes and Misdemeanors.”(11) Article I contains further provisions bearing on impeachment procedures and judgments.(12)
As discussed elsewhere, Article I also contains some provisions bearing on presidential authority, perhaps most notably the President’s authority to approve or veto legislation.(13)
Footnotes:
to essay-1
U.S. Const. art. II, § 3.Jump to essay-2
Springer v. Government of Philippine Islands, 277 U.S. 189, 202 (1928).Jump to essay-3
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).Jump to essay-4
See generally ArtII.S1.C1.1 Overview of Executive Vesting Clause.Jump to essay-5
Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 22 (U.S. June 29, 2020).Jump to essay-6
Zivotofsky v. Kerry, 576 US. 1, 17 (2015). Cf., e.g., United States ex rel. Knauff v. Snaughnessy, 338 U.S. 537, 543 (1950) (stating that the right to exclude aliens “is inherent in the executive power to control the foreign affairs of the nation,” and when Congress legislates in this area, it “is implementing an inherent executive power”).Jump to essay-7
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).Jump to essay-8
See Buckley v. Valeo, 424 U.S. 1, 132–33 (1976).Jump to essay-9
See id. at 138–41.Jump to essay-10
U.S. Const. amend. XXV; 3 U.S.C. § 19.Jump to essay-11
U.S. Const. art. II, § 4.Jump to essay-12
Id. art. I, § 2, cl. 5; id. art. I, § 3, cls. 6–7.Jump to essay-13
See ArtI.S7.C2.1 Overview of Presidential Approval or Veto of Bills; ArtI.S7.C3.1 Presentation of Senate or House Resolutions.
ArtII.S1.C1.1 Overview of Executive Vesting Clause
Article II, Section 1, Clause 1:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Under Article II, Section 1, Clause 1, the executive power is vested in a single person—the President of the United States. The nature and extent of the executive power is less clear.(1) Article II identifies exclusive powers of the President, including the President’s authority as Commander in Chief and the power to pardon;(2) powers the President shares with the Senate, including the appointments and treaty-making powers;(3) and the President’s duties, the most important of which is the duty to “take Care that the Laws be faithfully executed.”(4) Moreover, the Supreme Court has recognized that “[b]ecause no single person could fulfill that responsibility,” the Take Care Clause implicitly provides the President with authority to supervise subordinate officers assisting with this responsibility.(5) Likewise, Article I provides the President a role in the legislative process, including authority to veto legislation, subject to potential override by a two-thirds vote of both Houses of Congress.(6)
It is less clear from the text of the Constitution whether the executive powers expressly identified in the Constituion are exclusive or illustrative. Whereas the Article I Legislative Vesting Clause provides that “All legislative Powers herein granted shall be vested in a Congress,”(7) thereby distinguishing the powers granted by states from those they retained, the Article II Executive Vesting Clause does not limit the “executive Power” in any way.(8) Consequently, since the earliest days of the Republic, the parameters of the executive power and, in particular, what implicit or residual powers such executive power encompasses have been the subject of debate.
Footnotes
Jump to essay-1
U.S. Const. art. II, § 1, cl. 1.Jump to essay-2
Id. art. II, § 2, cl. 1. See ArtII.S2.C1.1.1 Historical Background on Commander in Chief Clause.Jump to essay-3
Id. art. II, § 2, cl. 2. See ArtII.S2.C1.3.1 Overview of Pardon Power.Jump to essay-4
Id. art. II, § 3. See ArtII.S3.3.1 Overview of Take Care Clause.Jump to essay-5
Seila Law LLC v. Consumer Fin. Protection Bureau, No. 19-7, slip op. at 2 (U.S. June 29, 2020). See also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 492–93 (2010).Jump to essay-6
U.S. Const. art. I, § 7, cl. 2. See ArtI.S7.C2.1 Overview of Presidential Approval or Veto of Bills.Jump to essay-7
Id. art. I, § 1, cl. 1 (emphasis added). See ArtI.S1.1 Overview of Legislative Vesting Clause.Jump to essay-8
Id. art. II, § 1, cl. 1.
ArtII.S1.C1.3 Early Perspectives on Executive Power
Article II, Section 1, Clause 1:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
While the Article I Legislative Vesting Clause provides that “All legislative Powers herein granted shall be vested in a Congress,”(1) thereby distinguishing the legislative powers that the states had granted to the National Government from those the states retained, the Article II Executive Vesting Clause refers only to a general “executive Power,” which is vested in a single person—the President.(2) While the Constitution expressly identifies specific powers and duties that belong to the President—for example, the power to pardon and the duty to take care that the laws be faithfully enforced—the Founders differed on whether those powers were exclusive or illustrative.
The First Congress considered the parameters of the executive power and, in particular, the President’s power to remove Executive Branch officers absent the consent of the Senate, the acquiescence of which is necessary for such Executive Branch officers’ appointment.(3) Known as the Debate of 1789, the First Congress considered the President’s removal power while it was establishing the Department of State.(4) As one commentator has noted: “Congress tacitly recognized the existence of an unrestrained presidential removal power from 1789 to 1867, and it developed into one of [the President’s] most effective instruments for control of the executive branch.”(5) While Congress subsequently passed laws limiting the President’s ability to remove Executive Branch officers,(6) the Supreme Court did not address such a law until 1926 in Myers v. United States.(7)
Similar questions arose with respect to the President’s authority over foreign affairs.(8) After President George Washington issued a proclamation declaring the United States neutral when France and Great Britain went to war in 1793, Alexander Hamilton and James Madison took competing positions on whether President Washington had exceeded his constitutional authority. Arguing that Article II does not enumerate all executive powers,(9) Hamilton wrote:
The enumeration [of executive powers in the Constitution] ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government.(10)
Hamilton continued: “The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.”(11) Rejecting Hamilton’s view that the Constitution granted the President such broad powers, James Madison argued that, if executive powers were unfettered, “no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.”(12)
Unsurprisingly, Presidents have tended to interpret the Executive Vesting Clause’s provision of executive power expansively. For example, President Thomas Jefferson justified the Louisiana Purchase based on implied executive power.(13)
Footnotes:
Jump to essay-1
U.S. Const. art. I, § 1, cl. 1 (emphasis added).Jump to essay-2
Id. art. II, § 1, cl. 1.Jump to essay-3
See David P. Currie, the Constitution in Congress: The Federalist Period 1789–1801, at 36–41 (1997) (discussing James Madison’s proposal for a department of foreign affairs). In the Federalist No. 77, Alexander Hamilton commented that the Senate’s consent was necessary for the President to remove an Executive Officer, stating: “The consent of [the Senate] would be necessary to displace as well as to appoint. . . . Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt and bring some degree of discredit upon himself.” The Federalist No. 77 (Alexander Hamilton). While Congress expressly referred to the President’s removal power in some legislation, e.g., Judiciary Act of 1789, ch. 20, § 27, 1 Stat. 87; Act of May 15, 1820, ch. 102, 3 Stat. 582, the Supreme Court in Myers v. United States observed that Congress adopted these provisions “to show conformity to the legislative decision of 1789.” Myers v. United States, 272 U.S. 52, 146 (1926).Jump to essay-4
For discussion on the Debate of 1789, see ArtII.S2.C2.3.15.2 Decision of 1789 and Removals in Early Republic. See also Charles Thach, The Creation of the Presidency 1775–1789 124–49 (1923).Jump to essay-5
C. Herman Pritchett, Constitutional Law of the Federal System 293 (1984). See also Act of May 15, 1820 (providing for removal of officers “at pleasure” of the President).Jump to essay-6
Tenure of Office Act of 1867, ch. 154, 14 Stat. 430 (requiring, among other things, for the President to have the Senate’s consent to remove the Secretary of War and certain other department heads); Act of July 12, 1876, ch. 179, 19 State. 80, 81 (providing that “Postmasters of the first, second and third classes shall be appointed by the President by and with the advice and consent of the Senate and shall hold their officers for four years unless sooner removed or suspended according to law.”). See also United States v. Perkins, 116 U.S. 483 (1886). In Perkins, the Court addressed whether the Secretary of the Navy could discharge a naval cadet-engineer at will notwithstanding that the Act of August 5, 1882 provided that naval officers could not be discharged except pursuant to a court-martial. Ruling for the naval cadet-engineer, the Court stated: “The head of a Department has no constitutional prerogative of appointments to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments but in all that is incident thereto.” Id. at 485. The Court, however, noted that it was not addressing a situation where an officer was appointed by the President with the advice and consent of the Senate. Id. (“Whether or not Congress can restrict the power of removal incident to the power of appointment of those officers who are appointed by the President by and with the advice of the Senate under the authority of the Constitution (article 2, section 2) does not arise in this case and need not be considered.”).Jump to essay-7
The Court discussed the President’s removal power in dicta in Ex parteHennen, 38 U.S. (39 Pet.) 230 (1839) (recognizing authority of a District Judge to remove a clerk of the court). For further discussion of the removal power, see ArtII.S2.C2.3.15.1 Overview of Removal of Executive Branch Officers .Jump to essay-8
See David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801 174–82 (1997).Jump to essay-9
Id. See also Charles Thomas, American Neutrality in 1793: A Study in Cabinet Government (1931).Jump to essay-10
7 Works of Alexander Hamilton 76, 80–81 (J. C. Hamilton ed., 1851).Jump to essay-11
Id. (emphasis added).Jump to essay-12
1 Letters and Other Writings of James Madison 621 (J.B. Lippincott & Co., 1865).Jump to essay-13
For discussion of the constitutionality of the Louisiana Purchase, see Everett Brown, The Constitutional History of the Louisiana Purchase, 1803–1812 (1920). For discussion of how the Jeffersonians and Federalists approached executive powers, see Leonard White, The Jeffersonians: A Study in Administrative History 1801–1829 (1951); Leonard White, The Federalists: A Study in Administrative History (1948).
ArtII.S1.C1.4 The President's Powers, Myers, and Seila
Article II, Section 1, Clause 1:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
In 1926, Chief Justice and former President William Taft addressed the President’s removal power in Myers v. United States, holding that the executive power includes the power to remove Executive Branch officers.(1) Myers concerned a law that required the Senate’s advice and consent for the President to remove a Postmaster from office. In a 6-3 decision for the President, Chief Justice Taft reasoned that the removal power was necessary for the President to fulfill his constitutional duty to enforce the laws.(2) Absent power to hold subordinate Executive Branch officers accountable by removing them if necessary, the President would not be able to fulfill his obligation to “take Care that the Laws be faithfully executed.”(3) Holding the removal power to be constitutionally vested in the President,(4) the Myers Court observed that powers vested in Congress must be strictly construed in favor of powers retained by the President.(5)
In the 1935 decision Humphrey’s Executor v. United States(6) and the 1988 decision Morrison v. Olson, the Supreme Court(7) upheld limits on the President’s removal power. However, the Court subsequently emphasized that those cases were limited to specific circumstances.(8) In Humphrey’s Executor, the Court held that Congress could constitutionally provide that commissioners on the Federal Trade Commission (FTC) could only be removed for cause. The Court reasoned that “good-cause tenure” was permissible for the principal officers of independent agencies that performed a “quasi-legislative and quasi-judicial” role because “Congress could require [an agency] ‘to act . . . independently of executive control.’”(9)
In Morrison, the Court examined the Ethics in Government Act of 1978, which provided for independent counsels to investigate and prosecute certain high-ranking government officials.(10) Under the independent counsel statute, the Attorney General notifies a special Article III court if he believes there are sufficient grounds to investigate a senior government official and the special court appoints a special counsel to investigate and, if warranted, prosecute. The Attorney General can only remove the special counsel for cause as prescribed in the statute.(11) Consequently, the independent counsel is generally free from Executive Branch supervision. After assessing how the law impacted executive power and whether Congress had attempted to aggrandize itself or enlarge judicial power at the executive’s expense, the Court upheld for-cause removal for independent counsels.(12)
Notwithstanding Humphrey’s Executor and Morrison, the Court later clarified that “the President’s removal power is the rule rather than the exception.”(13) In its 2010 decision, Free Enterprise Fund v. Public Accounting Oversight Board, the Court held unconstitutional a statute that structured a government office to restrict the President’s ability to remove a principal officer and also restrict the principal officer’s ability to remove an inferior officer who “determines the policy and enforces the laws of the United States.”(14) The Court explained: “The President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly.”(15)
In its 2020 decision in Seila Law LLC v. Consumer Financial Protection Board (CFPB), the Court rejected the proposition that Humphrey’s Executor(16) and Morrison(17) “establish a general rule that Congress may impose ‘modest’ restrictions on the President’s removal power.”(18) Examining the CFPB, the Court noted that it had a single Director, who was insulated from the President’s removal power and “accountable to no one.”(19) Describing the President’s role in the constitutional structure as the link that makes the administrative state answerable to the people, Chief Justice John Roberts, writing for the majority, stated:
The resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervison and control of the elected President. Through the President’s oversight, “the chain of dependence [is] preserved,” so that “the lowest officers, the middle grade, and the highest” all “depend, as they ought, on the President, and the President on the community.”(20)
Finding the CFPB Director’s protection from removal to be unconstitutional, the Court stated: “In our constitutional system, the executive power belongs to the President, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”(21)
Footnotes:
Jump to essay-1
272 U.S. 52 (1926). See Edward Corwin, The President’s Removal Power under the Constitution, in 4 Selected Essays on Constitutional Law 1467 (1938).Jump to essay-2
Id. art. II, § 3. See ArtII.S3.3.1 Overview of Take Care Clause.Jump to essay-3
4 Selected Essays on Constitutional Law supra note , at art. II, § 3. SeeArtII.S3.3.1 Overview of Take Care Clause.Jump to essay-4
Charles Thach, The Creation of the Presidency, 1775–1789 92–123 (1923).Jump to essay-5
Myers v. United States, 272 U.S. 52, 163–64 (1926).Jump to essay-6
295 U.S. 602 (1935). See also Wiener v. United States, 357 U.S. 349 (1958).Jump to essay-7
487 U.S. 654, 685–93 (1988). Morrison concerned the Title VI of the Ethics of Government Act of 1978, which provided for the appointment of independent counsels who the Attorney General could only remove for “good cause.” See also United States v. Perkins, 116 U.S. 483 (1886).Jump to essay-8
Seila Law LLC v. CFPB, No. 19-7, slip op. at 7 (U.S. June 29, 2020).Jump to essay-9
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 493 (2010) (quoting Humphrey’s Executor, 295 U.S. 602, 627–29 (1935).Jump to essay-10
See 28 U.S.C. §§ 591–599.Jump to essay-11
Ethics in Government Act of 1978, Pub. L. No. 95-521, title VI, 92 Stat. 1824, 1867 (codified as amended in 28 U.S.C. §§ 49, 591-599).Jump to essay-12
Morrison v. Olson, 487 U.S. at 693–96.Jump to essay-13
Seila Law LLC v. CFPB, No. 19-7, slip op. at 27 (U.S. June 29, 2020). For discussion, on the President’s removal authority in the twenty-first century, see ArtII.S2.C2.3.15.7 Twenty-First Century Cases on Removal.Jump to essay-14
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 484 (2010).Jump to essay-15
Id.Jump to essay-16
295 U.S. 602 (1935).Jump to essay-17
487 U.S. 654 (1988). While acknowledging that the independent counsel statute restricted a constitutionally delegated function (law enforcement), the Morrison Court upheld the statute, using a flexible analysis that emphasized that neither the Legislative nor the Judicial Branch had aggrandized its power and that the statute, while infringing on executive power, did not impermissibly interfere with the President’s constitutionally assigned functions. Id.Jump to essay-18
Seila Law LLC v. CFPB, No. 19-7, slip op. at 26 (U.S. June 29, 2020).Jump to essay-19
Id. at 23.Jump to essay-20
Id. (quoting 1 Annals of Cong. 499 (1789)) (James Madison).Jump to essay-21
Id.
ArtII.S1.C1.5 The President's Powers and Youngstown Framework
Article II, Section 1, Clause 1:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court considered the relationship between the President’s powers and the powers Congress can exercise.(1) In a concurring opinion, Justice Robert Jackson set forth a framework that the Court has subsequently adopted to assess claims of presidential power.
Youngstown concerned an executive order that President Harry S. Truman issued on April 8, 1952, directing the Secretary of Commerce to seize and operate the Nation’s steel industry in order to avert a nationwide strike that he believed would jeopardize national defense during the Korean War.(2) In the executive order, President Truman cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the order to steel executives and the President reported his action to Congress, conceding Congress’s power to supersede the order, which Congress did not do.(3) The steel companies sued, a federal district court enjoined the seizure,(4) and the Supreme Court agreed to hear the case prior to a decision by the court of appeals.(5)
By a 6-3 vote, the Court held the seizure unconstitutional. In the controlling opinion, Justice Hugo Black rejected the Solicitor General’s argument that the President’s action was justified as an exercise of his executive power under Article II, Section 1; by his duty to enforce the laws; and by his power as Commander in Chief.(6) Instead, Justice Black observed that not only was there no statute that expressly or impliedly authorized the President to take possession of the property, but also Congress had refused to authorize seizures of property to prevent work stoppages and settle labor disputes when it considered the Taft-Hartley Act in 1947.(7) Because neither the aggregate of the President’s Article II executive powers nor his powers as Commander in Chief supported the action, Justice Black reasoned that the President had sought to exercise a lawmaking power, which the Constitution vests solely in Congress:(8) Even if other Presidents had taken possession of private business enterprises without congressional authority to settle labor disputes, Congress retained its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested in it by the Constitution.(9) Consequently, while Congress could have directed the President to seize the steel mills, the President could not seize them absent congressional authorization, even if he believed that such an action “was necessary to avert a national catastrophe.”(10)
In his concurring opinion, Justice Jackson outlined a framework for assessing the President’s powers depending on its “disjunction or conjunction with those of Congress.”(11) Justice Jackson divided presidential actions into three categories that looked at the extent to which the President was acting in concert with Congress. With regard to the first category, he stated:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances and in these only, may he be said . . . to personify the federal sovereignty. If his act is held unconstitutional under thise circumstancies it usually means that the Federal Government as an undivided whole lacks power.(12)
Describing the second category, Justice Jackson stated:
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes at least as a practical matter, enable, if not invite, measure on independent responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.(13)
The third category addressed situations where the President’s actions were contrary to will of Congress. Justice Jackson observed:
When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution for what is at stake is the equilibrium established by our constitutional system.(14)
Justice Jackson viewed the steel seizure as falling into the third category because Congress had adopted statutory policies inconsistent with President Truman’s steel seizure. Accordingly, under Justice Jackson’s framework, the President’s action could only be sustained if the power to seize strike-bound industries was within the President’s domain and beyond Congress’s control.(15)
Since the decision in Youngstown, the Court has used Justice Jackson’s framework when assessing assertions of presidential power.(16) For example in Zivotofsky v. Kerry, the Court applied Justice Jackson’s “tripartite framework” to find that because the challenged presidential action “falls into Justice Jackson’s third category, his claim must be ‘scrutinized with caution,’ and he may rely solely on powers the Constitution grants to him alone.”(17)
Footnotes:
Jump to essay-1
343 U.S. 579 (1952). For additional discussion on Youngstown, see Maeva Marcus, Truman and the Steel Seizure Case: The Limits of Presidential Power (1977).Jump to essay-2
E.O. 10340, 17 Fed. Reg. 3139 (1952).Jump to essay-3
H. Doc. No. 422 (1952); H. Doc. No. 496 (1952).Jump to essay-4
103 F. Supp. 569 (D.D.C. 1952).Jump to essay-5
The court of appeals stayed the district court’s injunction pending appeal. 197 F.2d 582 (D.C. Cir. 1952). For the Supreme Court decision bringing the action up, see 343 U.S. 937 (1952).Jump to essay-6
Youngstown, 343 U.S. at 587–88.Jump to essay-7
Id. at 586.Jump to essay-8
Id. at 588.Jump to essay-9
Id. 585–89.Jump to essay-10
Id. at 585–86.Jump to essay-11
Id. at 635 (Jackson, J., concurring). See also Trump v Mazars USA, LLP, No. 19-715, slip op. at (U.S. July 9, 2020) (“Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reprocity.”). Justice Jackson’s concurrence has been described as having “canonical status.” Georgia v. Public.Resource.Org, Inc., No. 18-1150, slip op. at 48, n.10 (U.S. Apr. 27, 2020) (Thomas, J., dissenting).Jump to essay-12
Youngstown, 343 U.S. at 635–37 (Jackson, J., concurring).Jump to essay-13
Id. at 637.Jump to essay-14
Id. at 637–38 (footnotes omitted).Jump to essay-15
Id at 639, 640. Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936). In Dames & Moore v. Regan, 453 U.S. 654, 659–62, 668–69 (1981), the Court turned to Youngstown as embodying “much relevant analysis” on an issue of presidential power. In Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006), the Court cited Youngstown with approval, as did Justice Anthony Kennedy, in a concurring opinion joined by three other Justices, id. at 638.Jump to essay-16
See Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015).Jump to essay-17
Id.
Now, I’m skipping ahead to the Article dealing with the Term of the President.
ArtII.S1.C1.9 Term of the President
Article II, Section 1, Clause 1:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows.
Article II, Section 1, Clause 1, provides for the President and Vice President to serve four-year terms. The Framers generally appear to have contemplated that, under the Constitution, the President, like Representatives and Senators, would not be subject to term limits but could run for office “as often as the people of the United States shall think him worthy of their confidence.”(1) However, there was much debate and concern that the Constitution might grant the President too much power and that, as Thomas Jefferson observed, “the perpetual re-eligibility of the President” could produce “cruel distress to our country even in your day and mine.”(2) Following precedent established by George Washington, the idea that no President would hold office for more than two terms was generally regarded as a fixed tradition until President Franklin Delano Roosevelt sought and won reelection for a third and fourth term in 1940 and 1944, respectively. In 1951, the states ratified the Twenty-Second Amendment limiting the President to two terms in office.(3)
When considering the term of the President during the Constitutional Convention, the Framers weighed how the President would be selected, whether a President should serve multiple times, and how to mitigate the danger that the Presidency might evolve into a “hereditary Monarchy”(4) or become the “mere creature” of Congress.(5) On June 1, 1787, James Wilson of Pennsylvania proposed to the Committee of the Whole that the term of the President be three years, “on the supposition that a re-eligibility would be provided for,”(6) while Charles Pinckney of South Carolina proposed a term of seven years.(7) George Mason of Virginia urged a term of “seven years at least, and for prohibiting a re-eligibility as the best expedient both for preventing the effect of a false complaisance on the side of the Legislature towards unfit characters; and a temptation on the side of the Executive to intrigue with the Legislature for a re-appointment.”(8)
Although the Committee of the Whole voted for a seven-year term,(9) debate continued over how to select the President and whether he should be eligible for reelection. Efforts to offset the longer seven-year term with a bar on re-eligibility were met by concerns that prohibiting reelection would, among other things, “destroy the great motive to good behavior, the hope of being rewarded by a re-appointment.”(10) Revisiting the appropriate term of office for the President in conjunction with whether the President should be eligible for reelection,(11) the Convention considered proposals for, among other things, fifteen-year, eleven-year, eight-year, six-year, and three-year terms,(12) as well as an indefinite term during Good Behavior.(13) In late August 1787, the Convention referred the matter to the Committee of Eleven, which, in turn, proposed a term of four years without a bar to reelection.(14)
While the four-year term was shorter than the originally contemplated seven-year term, critics of the Constitution maintained that it would still allow the President to establish a dangerous influence over the United States.(15) Responding to such concerns in the Federalist Papers, Alexander Hamilton explained the advantages of a four-year term as striking a balance between the “personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices.”(16) He stated:
Between the commencement and termination of such a [four-year] period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man endued with a tolerable portion of fortitude. . . . [A] duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty.(17)
Hamilton also cited the three-year New York gubernatorial term to support that the President would be unlikely to acquire undue power across the entirety of the United States over four years when the Governor of New York had not done so over the much smaller state of New York over three years.(18)
In his Commentaries of the Constitution of the United States, Justice Joseph Story observed that the four-year term the Framers adopted for the President is “intermediate between the term of office of the senate, and that of the house of representatives” and, as a result, “[i]n the course of one presidential term, the house is, or may be twice recomposed; and two-thirds of the senate changed, or re-elected.”(19) Because the President’s four-year term is between the two- and six-year terms of the House and Senate, the President is subject to pressures that drive the House’s need to respond to the people’s immediate demands, even though such demands may be short-lived, and those that facilitate the Senate’s greater focus on long-term objectives because its six-year term provides some insulation from political winds.(20)
Footnotes:
Jump to essay-1
The Federalist No. 69 (Alexander Hamilton).Jump to essay-2
Letter from Thomas Jefferson to Alexander Donald (Feb. 7, 1788), reprinted in3 The Founders’ Constitution 505 (Philip B. Kurland & Ralph Lerner eds., 2000).Jump to essay-3
U.S. Const. amend XXII. The Twenty-Second Amendment was adopted largely in response to President Franklin Delano Roosevelt seeking and winning reelection for an unprecedented third and fourth terms in 1940 and 1944, respectively. The Twenty-Second Amendment became a part of the Constitution on February 27, 1951, after it was adopted by Minnesota, which provided the thirty-sixth state that was necessary for adoption of the Amendment. 2 Grossman, Constitutional Amendments 758–759 (2012). For additional discussion on the Twenty-Second Amendment, see Amdt22.1 Overview of Twenty-Second Amendment, Presidential Term Limits.Jump to essay-4
2 The Records of the Federal Constitution 35 (Max Farrand, ed. 1911) (statement of George Mason of Virginia)[hereinafter Farrand’s Records].Jump to essay-5
Id. at 103 (statement of Gouveneur Morris of Pennsylvania); see also Max Farrand, The Framing of the Constitution 117–118 (1913).Jump to essay-6
1 Farrand’s Records, supra note 5, 68.Jump to essay-7
Id.Jump to essay-8
Id.Jump to essay-9
Id. at 69.Jump to essay-10
2 Farrand Records, supra note 5, at 33 (statement of Gouverneur Morris of Pennsylvania in support of motion made by William Churchill Houston of New Jersey on July 17, 1787, to strike the bar to reelection).Jump to essay-11
See id.Jump to essay-12
See, e.g., 1 Farrand Records, supra note 5,; 2 Farrand Records, supra note 5, at 102 (Rufus King of Massachusetts also suggested a twenty-year term. However, given that King’s proposal was “twenty years . . . [which is] the medium life of princes ”, Max Farrand, the editor of the Records of the Constitution, observes that this was likely meant to be ironic, stating, “This might possibly be meant as a caricature of the previous motions in order to defeat the object of them.”). See also id. at 100, 112.Jump to essay-13
Id. at 33–35.Jump to essay-14
Id. at 497.Jump to essay-15
See, e.g., The Anti-Federalist Papers, No. 67 (Cato/George Clinton), reprinted in The Complete Federalist and Anti-Federalist Papers 709 (2014) (“It is remarked by Montesquieu, in treating of republics, that in all magistracies, the greatness of the power must be compensated by the brevity of the duration, and that a longer time than a year would be dangerous. The deposit of vast trusts in the hands of a single magistrate enables him in their exercise to create a numerous train of dependents. This tempts his ambition, which in a republican magistrate is also remarked to be pernicious, and the duration of his office for any considerable time favors his views, gives him the means and time to perfect and execute his designs; he therefore fancies that he may be great and glorious by oppressing his fellow citizens, and raising himself to permanent grandeur on the ruins of his country.”).Jump to essay-16
The Federalist No. 71 (Alexander Hamilton).Jump to essay-17
Id.Jump to essay-18
The Federalist No. 69 (Alexander Hamilton). See also The Federalist No. 72 (Alexander Hamilton) (describing five “ill effect[s]” of excluding the President either temporarily or permanently from subsequent terms of office).Jump to essay-19
3 Joseph Story, Commentaries on the Constitution of the United States §1432 (1833).Jump to essay-20
See generally id.
Now, for those that may be interested, here’s a link to the:
Constitution of the United States
https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm
And here is the link to:
Article II of the Constitution of the United States
https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm#a2
Here’s Article II in it’s entirety:
Section 1
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representatives from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"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."
Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section 3
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section 4
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
Now, as you can see, this lays out, in pretty simple language, the parameters for becoming a President, duties of the office, and, what one can be removed from office for.
What I’m not seeing, nor understanding, is as quoted in Article II Section 4:
“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”
The question remains in my mind that if this is reasons to be removed from office by impeachment, then why in the world would one be allowed to run for any office covered under the Constitution of the United States if that person has been convicted of such crimes as to prevent him from holding the office?
THIS is where the debate comes in with Trump, currently twice impeached, twice indicted (and several more indictments ahead of him), not to mention civil litigations for criminal actions, one of which he has lost to the tune of $5 million dollars.
THIS is where debate will come in for people like Marjorie Taylor Greene, Loren Boebert, and numerous others in the House of Representatives, and Senate, that still are possible looking at indictments for their Seditious actions on, or about January 6, 2021, and beyond.
I realize it’s been over 2 years since the act took place, since all the criminal activity surrounding the attempted overthrow of our government, our Democratic way of life, and the transfer of power to the newly elected President. Could this have been done quicker? Who knows? Surely, I have no idea, and I would like to consider myself as a seasoned investigator. Be it from many years ago, but still. It’s what I did for a living.
Things are a lot different with this case. First, you are going after an ex-president, and most likely sitting members of Congress. An investigator needs to make sure he climbs s that ladder rung by ruby, missing nothing, crossing all the “T”’s and dotting all the “I”’s. Everything has to be Rick solid, and extremely methodical. Meticulous.
This, we can see by the indictment Prosecutor Jack Smith has brought again Donald J. Trump. Thirty-seven (37) felony counts involving the handling of highly classified government documents, thirty-one (31) of which involve the Espionage Act.
This indictment is written in extremely easy language to read and understand. It was written in such a manner as to stay away from a lot of the legal jargon that attorneys often use. Seemingly to make it where any person could read it, and have a very clear picture of each incident described.
The question still remains, after all this:
IF Trump is convicted on this, or any if the other inducements coming, should he be allowed to run for President of the United States?
Should he be allowed to have his name in the ballot, or accept the nomination of his party?l