If Not Impeached by Senate in First Term Can Run Two More Terms
Mutual Interpretation
Article II, Section three
Article Two, Section iii both grants and constrains presidential power. This Section invests the President with the discretion to convene Congress on "boggling occasions," a power that has been used to telephone call the chambers to consider nominations, war, and emergency legislation. Information technology farther grants the President the authorization to adjourn Congress whenever the chambers cannot agree when to adjourn, a power that no President has ever exercised.
Section iii imposes obligations on the President that are varied and significant. The President must provide data on the "state of the wedlock" from "time to time." This seems to crave the President to share information with Congress. The President shall "recommend" measures to Congress, a soft duty that necessarily cedes discretion. The President "shall receive" all strange ambassadors, a duty that many suppose grants Presidents authority over whether to recognize foreign nations and their governments. The President "shall Commission all the officers of the U.s.," a Clause that forces the President to authenticate the status of federal officials.
Finally, and nearly significantly, Section 3 contains the True-blue Execution Clause, commonly known equally the Take Care Clause. The Have Intendance Clause is arguably a major source of presidential power because it seemingly invests the function with wide enforcement authority. Yet, at the same time, the provision also serves as a major limitation on that ability because it underscores that the executive is under a duty to faithfully execute the laws of Congress and not disregard them.
The Take Care Clause has played a fundamental role in momentous constitutional disputes. Legislators have discussed it in many debates regarding the scope of presidential power, including whether the President has a constitutional power to remove federal officers. Ii Presidents, Andrew Johnson and William Clinton, were impeached by the House, at least in part, for allegedly violating their Accept Intendance Clause duties. Famous Supreme Courtroom cases, like Youngstown Sheet & Tube v. Sawyer (1952) and Myers v. The states (1926), relied upon detail claims about the Clause. More recently the Clause played a central role in the debates and litigation surrounding President Barack Obama's enforcement of federal immigration laws.
The Clause traces back to the 1776 Pennsylvania Constitution and the 1777 New York Constitution. Both granted their executives "executive power" and also required them to execute the laws faithfully. Early constitutional discussions shed some light on its pregnant. Though the Clause is found amongst a sea of duties in Article Two, Section iii, some, including Alexander Hamilton, spoke of the "ability" of "faithfully executing the laws." While President, George Washington observed, "information technology is my duty to meet the Laws executed: to allow them to exist trampled upon with impunity would exist repugnant to" that duty.
At a minimum, the Clause ways that the President may neither breach federal law nor lodge his or her subordinates to do so, for defiance cannot be considered faithful execution. The Constitution also incorporates the English bars on dispensing or suspending the constabulary, with some supposing that the Clause itself prohibits both. Hence the Constitution itself never grants the President authority to either authorize private violations of the law (event individualized dispensations) or nullify laws (append their operation).
Beyond these constraints, the Clause raises a number of vexing questions. For instance, must the President enforce even those laws he or she believes to be unconstitutional? Some scholars argue that Presidents must enforce all congressional laws, without regard to his or her ain constitutional opinions. Yet mod Presidents occasionally exercise a power to ignore such enactments on the grounds they are non true "laws" subject area to the faithful execution duty. In and so doing, they somewhat mimic the arguments and practice of President Thomas Jefferson, who refused to enforce the Sedition Human action on the grounds that it was unconstitutional.
There is also the related question of whether the President must honor statutes that purport to limit his or her authority over law execution. Can Congress decree by statute that the President must allow others to implement certain statutes without regard to presidential supervision or oversight? Again, some suppose that the Congress can insulate execution from presidential control while others insist that the Congress cannot strip away the President'southward duty.
Finally, the sweep of contemporary federal police ensures that federal constabulary enforcers take tremendous enforcement discretion. In item, resource constraints coupled with numerous violations often preclude a policy of total enforcement. Given the inevitable tradeoffs, modern Presidents counterbalance the costs and benefits of investigation, anticipation, and prosecution, and sometimes create rules for allocating scarce resource beyond the range of possible investigations and prosecutions. In this context, judging what counts equally faithful execution is laden with value judgments about the relative claim of certain enforcement priorities over others. Moreover, contentious disputes about the scope of discretion invariably circumduct around claims that the President has violated his or her duty of faithful execution by declining to adopt a particular enforcement policy or strategy.
Matters of Debate
Presidential Duties
Almost of Article II, Department three has been inconsequential. Still there are notable changes in exercise that bear on that department. Despite the State of the Wedlock Clause, the executive is increasingly unwilling to share information with Congress. Citing "executive privilege" (the right to go along secrets from the courts and Congress, endorsed by the Supreme Court in U.s.a. v. Nixon (1974)), the executive often withholds information from Congress. Another revolution concerns the extent of the President'south leadership in legislation. When Presidents "recommend . . . measures," they now practise so as the de facto head of their party and with the predictable back up of a good portion of the two chambers. As a result, Presidents are frequently the primary commuter of legislation and legislative agendas, particularly in the offset months of their start term (the catamenia of "100 days").
The Accept Care Clause has the most modernistic resonance. Past virtue of his "executive Ability," the President may execute federal laws and control executive officers who execute those laws. The Take Care Clause modifies that grant, requiring the President to "have Care that the Laws exist faithfully executed." At the Founding, the President'south ability over law execution was praised as ensuring prompt and vigorous implementation of laws, something lacking under the Manufactures of Confederation. As 1 opponent of the Constitution noted, law execution was best entrusted "to the direction and care of one man." A single executive seemed "peculiarly well circumstanced to superintend the execution of laws with discernment and decision, with promptitude and uniformity." The master executive would ensure wise, prompt, and uniform police force execution past "direct[ing]" subordinate executives.
Another Perspective
This essay is part of a discussion well-nigh Commodity II, Section 3 with William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law. Read the full discussion here.
The Take Care Clause is the focus of several ongoing disputes. Beginning, consider restrictions on the removal of officers. In a serial of unfortunate cases, the Supreme Court has sanctioned the cosmos of independent agencies, which operate as a fourth co-operative of regime. These agencies execute various federal laws (communications, banking, securities) by investigating and prosecuting alleged violations. Congress has protected these agencies from executive influence by imposing "for cause" restrictions on the removal of their summit officers. It is hard to escape the conclusion that such statutes are unconstitutional. They violate the grant of executive power and interfere with the Have Intendance Clause duty. In creating mini-fiefdoms, Congress has essentially stripped abroad the President's executive power and granted it to these agencies. Moreover, Congress has erected statutory obstacles making it rather hard for the President to guess whether the law is beingness faithfully executed.
Second, there are continuing disagreements almost whether the President must bide by, defend, and enforce laws that he regards as unconstitutional. Presidents sometimes declare that because they believe parts of a law to exist unconstitutional, they will ignore those provisions. Some scholars have argued that the Take Care Clause prohibits the President from refusing to honor, defend, and enforce federal laws. Once a bill becomes police force, the President must enforce it. A contrary (and better) view supposes that unconstitutional laws are void from the kickoff and thus non subject to the Clause. Though the Supreme Court has never held that the President may decline to enforce unconstitutional statutes, numerous Justices have hinted at such authority. Moreover, the do goes back to Thomas Jefferson, when he refused to keep prosecuting individuals for violations of a statute he believed to exist unconstitutional. Jefferson said that the declared statute (the infamous Sedition Human action) was no law at all and hence not subject to the Take Care Clause.
Lastly, there are recurring clashes about when and whether the President may reject to enforce statutes based on policy reasons. The Constitution never conveys any power to turn down to enforce (to suspend) a statute. That much is clear. Yet despite this constraint, Presidents volition well-nigh necessarily bask a great deal of enforcement discretion. To brainstorm with, using his constitutional power to pardon, the President can forgive offenses fifty-fifty earlier trial or confidence, meaning that executive officers need not investigate and prosecute every offender of federal law. Moreover, resource constraints coupled with innumerable violations of federal law preclude complete enforcement of all federal laws. In that location are besides many laws, too many scofflaws, and but limited resources. Given the inevitable tradeoffs, Presidents may allocate scarce enforcement resource afterwards weighing the costs and benefits of investigation, apprehension, and prosecution.
Recognizing that it would be highly impolitic to assert a constitutional power to decline to enforce statutes, modern Presidents carefully avoid embracing such a power. Instead, they invariably argue that the laws implicitly or explicitly convey enforcement discretion. Critics of these presidential measures deny that the statutes in question grant discretion and fence that in declining to enforce a law the President has violated his Faithful Execution duties. Discerning the truth of the matter requires a careful consideration of the relevant statutes, including enforcement resources. Sometimes there are no piece of cake answers.
Matters of Debate
Article 2, Department 3 and the Limits of Presidential Power
At the time of the Framing it was assumed that the most powerful branch of regime was the legislature. That is one of the reasons why Congress was made bicameral while the executive was unitary—so that legislative power and executive power could be finer balanced. Today, however, any notion that Congress is twice as powerful as the Presidency would be dismissed as fanciful. The Presidency is the most powerful branch.
Commodity 2, Department three has not played a major office in presidential power expansion (although as discussed below, it should be interpreted in light of that expansion). Rather the telescopic of presidential power has been adamant more by how executive power has actually been exercised than by constitutional text. As Justice Jackson observed over 50 years ago in Youngstown Canvas & Tube v. Sawyer (1952), "[t]he Constitution does not disclose the measure of bodily controls wielded by the modern presidential part. . . Vast accretions of federal power . . . have magnified the scope of presidential activity [then that] the centers of real power . . . do non prove on the face of the Constitution."
There are a number of reasons why the President has get so dominant. First, the Presidency has go the focus of national power and civilization, giving the President the unique power to set up the political calendar. In Justice Jackson's words: "[east]xecutive power has the advantage of concentration in a single head in whose choice a whole nation has a office, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public centre and ear."
Second, presidential power has expanded because each successive President is able to rely on the actions of their predecessors in justifying their ain utilise of power. In this fashion, the use of presidential power works as a one-way ratchet with each President building on the deportment of those that came before.
Third, presidential power has grown considering the size and jurisdiction of the federal government accept expanded. The President directs an authoritative state that oversees everything from prescription drugs to smoke stack emissions to higher sports and from economical development to workplace safety to national parks management. As a outcome, the President has the ability to make decisions that achieve almost every aspect of American life. Further, as head of the federal regime, presidents have unparalleled resources to use in advancing their political agenda. This includes access to armed forces and civilian intelligence, the expertise and assistance of countless federal agencies, and the command of the most powerful military in the world. No other co-operative has such resource at its disposal.
Another Perspective
This essay is part of a discussion about Article Ii, Section three with Saikrishna B. Prakash, James Monroe Distinguished Professor of Police force, University of Virginia School of Law. Read the full discussion hither.
Fourth, presidential power has expanded because of the need for exigent decisionmaking in the modern world. The suddenness with which contemporary events demand authorities response inevitably invests power in the but co-operative capable of reacting immediately—the Executive.
Fifth, presidential power has increased because of the changed nature of politics. In the current political environs, those elected to Congress ofttimes run across their political duty as supporting their political party rather than protecting their institutional concerns equally legislators. For that reason, many are unwilling or unable to check the President's power when their party is in the majority. Farther, and paradoxically, contemporary politics has served to increase presidential ability even when the Presidency and the Congress are controlled by different parties. In those circumstances, Congress has at times so rigidly opposed a President's calendar that Presidents have been able to claim that their apply of unilateral executive power is necessary to overcome Congress's "obstructionism."
It is against this recognition of presidential ability authorization that specific issues raised by Section 3—and peculiarly the Accept Care Clause—should exist analyzed. Given that the Constitution was designed to allow branches to check other branches, one should be cautious in interpreting particular provisions in a mode that would add to the current imbalance.
Some have argued, for example, that the Take Care Clause should be interpreted to prevent the creation of contained agencies because protecting the officers in those agencies from removal at will by the President interferes with the latter's power to execute the police force equally they see fit. But given the scope and breadth of the administrative land, in that location are frequently strong reasons for insulating particular agencies from political control in order to foster independent, nonpartisan decisionmaking.
Concerns with centering too much power in the Presidency also arise in relation to whether Presidents must comply with and defend laws that they believe are unconstitutional. Some contend that the Take Care provision grants Presidents wide discretion to disregard laws that they believe are unconstitutional fifty-fifty when in that location are substantial arguments to the contrary. Others suggest that Presidents may merely refuse to comply with or defend laws when there is absolutely no credible constitutional defense of those provisions. Given that reasoned constitutional estimation varies so widely, the latter may be the improve route. Otherwise, Presidents may be able to end-run the deportment of Congress too easily.
Similar concerns ascend with a President'south refusal to enforce laws on policy grounds. Presidents take, and should have, wide-ranging discretion on how to enforce particular laws. As Professor Prakash points out in his essay, enforcing every federal constabulary against every offender would exist impossible. Further, in that location seems to be petty doubt that Presidents may accept policy considerations into account when setting enforcement priorities. But when Presidents use their enforcement power to essentially invalidate or re-write statutes with which they practice not agree, serious questions arise every bit to whether they are coming together their "accept care" obligations. The problem, of grade, is determining when a President's actions are legitimate uses of enforcement discretion and when they are, in effect, illegitimate usurpations of legislative authority. To this point, the courts take not however come with an answer to this question. But at some point, they will be forced to.
Source: https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/348
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