Article II Section 1

The executive Power shall be vested in a President of the United States of America

• The presidency is the most visible position in the U.S. government

• The Founders accepted the need to empower a relatively strong and vigorous chief executive …

  • … but they also wanted this chief executive to be restrained by checks from the other branches of the federal government, as well as by the Constitution itself

• The presidency is about the execution of the law

Presidents versus Prime Ministers

Divided and Unified Government

• Presidents have no guaranteed legislative majority

• Divided government: one party controls the White House, another controls one or both chambers of Congress

• Unified government: the same party controls the White House and both chambers

• Since 1952: at least 60% of congressional elections have produced divided government

Energy in the Executive

Energy in the Executive

Hamilton, Federalist No. 70

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 the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy

Hamilton’s Ingredients of Energy

Federalist No. 70

• Unity: a single executive, not a council or plural executive

  • “Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man”

• Duration: a term long enough to act with firmness

• Adequate support: a salary Congress cannot cut to pressure the president

• Competent powers: veto, command of the military, appointments

• But energy must be safe: “a due dependence on the people, a due responsibility”

Selection and Re-eligibility

Federalist No. 68 and No. 72

The Power of Commander in Chief

• Extends beyond military control

• Includes management of the economy and the direction of foreign affairs

• Grows more in wartime, but applies in peacetime too

Article II, Section 2

Expressed Powers of the Presidency

• Commander in Chief
• Grant pardons
• Treaties; approved by two-thirds of the Senate
• Appoint ambassadors, judges, and other officers with advice and consent of the Senate
• Veto legislation (Article I, Section 7)
• State of the Union (Section 3)

Balance of Powers: Article II

Article II

The Take Care Clause, Section 3

he shall take Care that the Laws be faithfully executed

Executive Orders

• Executive order: a directive to federal agencies on how to interpret or carry out existing law
  • Legally binding on the executive branch
  • Cannot make new law or contradict a statute
• Easy to reverse: the next president can revoke them with the stroke of a pen
  • Schedule F: created by Trump (2020), revoked by Biden, reinstated by Trump (2025)
• Checked by the courts
  • EO 14160 sought to end birthright citizenship; blocked by courts and never took effect
  • Trump v. Barbara (2026): Supreme Court struck it down as unlawful

Executive Orders

Total Orders by President

Founding Debates

• Delegates believed governing a large nation required a single president with significant power

• Some feared the presidency would become, in Edmund Randolph’s words, the “foetus of monarchy”

• The Framers positioned the president’s clearest constitutional authority over the military

• Electoral College: an indirect way of selecting the president

• Term of office: originally no term limits; presidents rarely sought more than two terms until FDR; the 22nd Amendment (1951) formally capped the office at two terms

The 12th Amendment (1804)

• Original design: each elector cast two votes; the top vote-getter became president and the runner-up became vice president

• The rise of parties broke the system

  • 1796: rivals Adams (president) and Jefferson (vice president) were elected together
  • 1800: Jefferson and his running mate Aaron Burr tied, and the House needed 36 ballots to choose Jefferson

• The fix: electors cast separate votes for president and vice president

• A broader reform failed: Hamilton’s 1802 draft also required electors to be chosen by district, but only the separate-ballot provision survived

From the First Presidents to the Modern Presidency

• The first presidents: prominent, but kept a modest office; distrusted political parties

• The Jacksonians: more contentious relationship with Congress; increased use of the veto power (Jackson vetoed 12 acts — more than all his predecessors combined)

• The re-emergence of Congress: Congress became the leading institution during a highly partisan era

• The rise of the modern presidency: initiates a policy agenda, oversees a robust staff, wields greater formal and informal power, and commands heightened visibility

The Three Audiences

• Other leaders

• Party leaders and activists

• The public

  • Presidents communicate with the public to convert personal popularity into congressional support and to improve reelection chances

Additional Tools of Influence

• Veto message: the president expresses to Congress the intention to veto legislation

• Pocket veto: a bill fails to become law because the president did not sign it within 10 days before Congress adjourns

• Impoundment of funds: refusal to spend congressionally appropriated funds

  • Impoundment was constrained by the Impoundment Control Act of 1974

• Signing statements: statements accompanying the signing of a bill, sometimes declaring part of the law unconstitutional

Presidential Organization

• The White House Office: the president’s closest personal staff

• The Executive Office of the President (established 1939): policy and management staff serving the presidency as an institution

• The Cabinet

• Independent agencies, commissions, and judgeships

Presidential Organization

Presidential Succession and Transition

• The Succession Act of 1886: designated the Secretary of State next in line after the vice president, followed by other cabinet officers by seniority

• The 25th Amendment: allows the vice president to serve as “acting president” if the president is disabled

• Most transitions of power have been peaceful: January 6, 2021

Impeachment

• Article II, Section 4: officers “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”

• Only three presidents have ever been impeached, for a total of four times: Andrew Johnson (1868), Bill Clinton (1998), and Donald Trump (2019 and 2021)

• January 2021: the first time in U.S. history a president was impeached twice

• What counts as a “high Crime and Misdemeanor”? Readings range from a technical crime, to whatever the House judges sufficiently bad, to an egregious abuse of distinctly presidential power

The Constitution

• Thirty-five years of age
• Natural-born citizen
• Fourteen years a US resident
• Elected to a four-year term
• Limited to two-terms
  • Twenty-Second Amendment (1951)
• Electoral College

The Process

The Electoral College

Hamilton, Federalist No. 68

…the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation… A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations

Why an Electoral College?

• The Convention rejected two alternatives
  • Selection by Congress: would make the president dependent on the legislature
  • Direct popular vote: a large nation, voters with little information about distant candidates, and slave states that would lose the weight of the Three-Fifths Compromise
• The compromise served two purposes
  1. A check on the people: guard against a candidate with “talents for low intrigue, and the little arts of popularity”
  2. A balance between small and large states: every state gets at least three electors

How the Electoral College Works

• Electoral College: the people chosen to cast each state’s votes in a presidential election
• Each state gets one elector for each senator and representative
  • D.C. gets 3 (23rd Amendment, 1961)
  • 538 total electors; 270 needed to win
• 48 states use winner-take-all; Maine and Nebraska award electors by congressional district
• Electors meet in state capitals in December; Congress counts the votes in January
• No majority? The House chooses among the top three, one vote per state delegation

Not the Framers’ Electoral College

• Political parties emerged within five years of ratification
• By the early 1800s, electors pledged their votes in advance: party loyalists, not independent judges
• 12th Amendment (1804): separate ballots for president and vice president
• The election of a President of the United States is no longer that process which the Constitution contemplated (1816)

Choosing Electors: Three Methods

• The Constitution lets each state legislature decide how electors are chosen
  • Legislative appointment: the legislature picks the electors
  • District method: each district chooses one elector
  • Winner-take-all: the statewide winner receives every elector
• States switched methods for partisan advantage, sometimes days before an election
  • Massachusetts changed its method seven times in the first ten elections
• By 1836, all but one state had adopted winner-take-all

The Electoral College Today

• Short ballot (after 1920): ballots list the candidates, not the electors — most voters never learn their electors’ names
• Parties choose their own slates of electors
• Faithless electors: most states require electors to vote for their party’s nominee
  • Chiafalo v. Washington (2020): states may enforce those pledges
• Electoral Count Reform Act (2022): the vice president’s role in counting is purely ministerial; objections require one-fifth of each chamber

Presidential Election 2024

Electoral College vs. Popular Vote

Winner-Take-All and Swing States

• Winner-take-all makes most states safe for one party
• Campaigns concentrate on a handful of battleground states
  • 2024: Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania, Wisconsin
• Voters in safe states see few candidate visits and little advertising
• Small states are overrepresented: a Wyoming elector represents about one-quarter as many people as a California elector

Debating the Electoral College

Checks on the Presidency

• Congress can override vetoes (2/3 majority, both chambers)

• The Senate must confirm treaties (2/3) and major appointments (majority)

• Congress can impeach and remove the president

• Courts review executive actions for constitutional and statutory compliance

Trump v. United States (2024): Presidential Immunity

• Arose from Special Counsel Jack Smith’s indictment of former President Trump over efforts to overturn the 2020 election and the January 6, 2021 attack on the Capitol

• Chief Justice Roberts’s majority opinion established a three-tier immunity framework for former presidents

The Three Tiers of Immunity

• Absolute immunity for acts within the president’s core constitutional powers — e.g., the pardon power, the veto, recognizing ambassadors, appointments

• Presumptive immunity for other official acts — prosecutors can only overcome this by showing prosecution poses no danger to executive functioning

• No immunity for unofficial (private) acts

Dissent: “A King Above the Law”?

• Justice Sotomayor: the ruling has no textual or historical basis — the framers gave members of Congress narrow immunity (the Speech or Debate Clause) but deliberately gave presidents none

• The Impeachment Judgment Clause (Article I, Section 3) presupposes a president can face criminal prosecution after impeachment

• Sotomayor warns the ruling’s broad view of “official” conduct makes “the President… a king above the law”

• Justice Jackson (separate dissent): the ruling “unilaterally altered the balance of power” among the branches

Immunity in a Broader Context

• Scholars group Trump v. United States with other 2020s Supreme Court decisions expanding presidential power at Congress’s expense

• The end of Chevron deference

• Trump v. Slaughter (2026): overruled Humphrey’s Executor v. United States (1935), constitutionalizing the Unitary Executive Theory — agency officials exercising “executive power” may be removed by the president at will

How Powerful Is the President Today?

• Presidents hold significant constitutional and political power, and are expected to lead the country and set the national policy agenda