Introduction Essay: The Executive Branch
Written by: Kirk Higgins, Bill of Rights Institute
Guiding Questions
What does it mean that the president’s role is to execute the laws? How has this role changed over time? Where in the Constitution are the requirements, mode of election, and executive powers defined? What else is contained in Article II? What other institutions have developed to support the work of the president.
The Executive Branch
The executive branch of government is essential in the American republic for enforcing the laws made by Congress. The executive is constitutionally tasked with preserving the rule of law and therefore protecting the rights of the people. The Constitution empowers the president to execute the laws in Article II of the Constitution.
Neither the Continental Congress nor the Articles of Confederation government had an independent executive branch. The revolutionaries feared executive power and tyranny because of their experience under the British. However, the Framers of the Constitution created a stronger, independent executive branch for more effective and energetic government and to support the Founding principles of separation of powers and checks and balances.
Whereas the Framers created Congress to be the deliberative and representative branch of government, the power of the president is exercised by a single person. In Federalist #70, Alexander Hamilton asserted that energy and vigor were requisite in the executive branch. He wrote, “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of laws.” For example, the Constitution expects the president to respond decisively to an invasion, a national emergency, or even signing or vetoing a law.
Article II of the Constitution has a Vesting Clause that grants all executive power to the president with great discretion. Unlike Congress in Article I, the powers of the president are not enumerated. The president takes an Oath of Office to “preserve, protect and defend the Constitution of the United States.” As the chief executive, the president must “take care that the laws be faithfully executed.” All of these powers and duties of office support the rule of law.
The president must act decisively and quickly to respond to crises and emergencies to preserve public safety and liberty. While the president should seek advice and consent of the cabinet and other advisors, the president reserves the right to make final decisions. The president must be prudent when considering decisions and probable outcomes. The president must demonstrate good character and exercise the civic virtues of courage, integrity, justice, prudence, and responsibility especially because presidential powers have wide discretionary authority.
The Electoral College selects the president based upon the outcome of the popular election. This method of election helps preserve the principle of federalism and means that the president must appeal to all parts of the country. The president serves for four years and is eligible for re-election for continuity in the administration of law and for experience in the office. Originally, there was no limit on re-election, though George Washington retired after two terms to set a moral precedent for his successors. The Twenty-Second Amendment limited presidents constitutionally to the two-term standard.
The president has many constitutionally-defined powers of office. The president serves as the Commander-in-Chief of the armed forces and conducts war. The president is the head of state or chief diplomat and directs foreign affairs, appoints ambassadors, and makes treaties which must be submitted to the Senate for ratification with a two-thirds majority. The president can also recommend legislation to Congress and offer a national perspective. The president signs or vetoes congressional bills consistent with the principle of checks and balances.
The president is also responsible for appointing ambassadors, members of the cabinet and other federal officials in the bureaucracy, and Supreme Court justices. The Senate also advises on this process and must confirm appointees with a majority vote. The president reserves the power to remove those officials who are not fulfilling the duties of their offices.
The president engages in constitutional interpretation while using discretion in executing the law, fulfilling the Oath of Office, and vetoing congressional bills. The president must exercise the powers of the office vigorously and energetically while respecting constitutional boundaries and prudential self-restraint. Constitutional presidents who following those guidelines have had the greatest success in perpetuating the experiment in liberty and maintaining a republic dedicated to the rule of law and energetic, yet limited government. As you read the section on presidential vetoes, executive orders, and presidential addresses, consider the constitutional powers and duties of the president.