history of the executive branch essay

Executive Branch of Government in the US Essay

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Changes in constitutional powers and functions

Economic changes, public welfare, works cited.

US Executive is one of the primary constituent of the centralized government. It consists of numerous offices that play significant roles in running the branch. The President’s office, his vice and some of the departmental offices are some of the most prime administrative offices in the branch (Brown and Graham, 1). Since the branch was formed, many changes have taken place, in the effort of improving its efficiency.

As years passes by, the US constitution keep on changing following the numerous modifications done by the congress (the law-making body). This has immensely affected the roles and powers of the executive branch, since the offices have to meet their constitutional job requirements. Furthermore, change in legal functions alters the structures the executive branch, since they will have to introduce other offices, to assist in meeting the newly introduced requirements.

For instance, some of the executive functions and terms were altered by the congress under the twentieth amendment. The interlude between election and inaugural ceremony was altered, and thus the president alongside with his vice had to surrender their offices in January 20 th (noon), the year after general elections. This is because; initially, the period between election and inauguration was quite stretched i.e. approximately four months after voting.

Furthermore, the amendment also stated that, incase the presidential-elect passes away, then the vice president elect will assume the president’s position and thus sworn as the new president of US. There were also some modifications under the 22 nd amendment that extensively affected the executive offices (Wright, 64). The amendment transformed the number of times a citizen can hold a presidential office; the number was changed to a maximum of two terms in office (Findlaw).

The succession of the president was changed, in one of the amendment clause i.e. the vice will assume the president’s role, incase the president quits his position or dies. Furthermore, the amendment states that any position in the vice’s office will be appointed by the president; however, the appointee shall not assume the office until he or she is approved by the congress.

A country’s economy keeps on shifting from one position to another thus influencing various crucial institution and bureaus, including the executive branches.

In the past year, United States experienced several economic changes; for instance, the recessions, depressions, crunches and other similar economic difficulties. This experience has made United States alter some of its executive departments, as a strategy to curb the economic changes. As a result, some executive departments were removed, while others introduced; some were modified while others replaced.

For instance, commerce and labor department were split to form two autonomous departments (Infoplease). This move was an economic strategy for the improvement of commerce in the country i.e. to enhance local and international trade. Being a victim of several hash economic environment, the US government has incorporated several junior offices in their departments that assist in projecting its business environment.

Education department was formed to operate independently, after the amalgamation of several learning programs, from different bureaus. This change was effected in the late seventies as a progress to provide quality education to all students, regardless of their backgrounds.

Following the terrorist attack in 2001, several offices were merged to form a sovereign protection department i.e. the homeland security department (infoplease). The prime function of this department was to up the security of United States, and also to protect their citizens against unnecessary threats. As early as 1939, the federal security agency was changed following the demands to improve human healthiness and well being.

The Agency was transformed to a healthcare department i.e. health and human services department, which was expected to up the standards of health in the country. Some of the numerous function of this health care department was to provide health services to all citizens regardless of their background, abilities or situation; finance healthcare institutions such as Medicaid; conduct healthcare researches and so on.

Early in the 60’s, the united states were subjected to numerous housing challenges especially in urban centers. This pressured the government to create an executive department that would solely address matters pertaining housing and the growth of cities.

Consequently, a department in the name of housing and urban development was created as a substitute for the home finance and housing sub-division. The department was formed to offer several services to the ordinary citizens i.e. offer inexpensive housing services; uphold community development and many more others (Infoplease).

The department of labor underwent several transitions before it finally stood out as a sovereign department. Initially, labor functioned as an agency under a certain executive department prior to its operation in the labor and commerce department (Henry, 375). Early in the 90’s, labor was separated from the department and thus operated as an autonomous executive department. The change was influenced by the undying effort of guarding workers against overexploitation.

Several executive offices have been altered following the government’s attempt to regulate the activities of certain crucial offices. For instance, the national military bureau was transformed following the need to regulate its mandate. The name of the bureau was transformed and named as the department of defense, which was accompanied by numerous changes in its functions.

Some of the functions dispensed to this department included flood control; the control and regulation of the navy, marine and other such like agencies. Executive department such as the department of agriculture was established following the need to regulate food prices and input costs.

The need to regulate commerce in United States is one of the numerous factors that led to the split of labor and commerce department. Several aspects such as local trade, international trade, and technological growth had to be regulated adequately. However, this proved tricky without the sovereign existence of commerce department. As a result, the department of trade and labor was split to form two autonomous departments.

Over the years, United States has grown technologically, with the introduction of numerous ideologies and hi-tech devices. However, these inventions and innovations possess a number of negative and positive impacts, which can influence a country in various capacities. In the attempt to control these impacts, the executive experienced a stretch in their duties and thus increasing their scope. In other words, the executive had to perform extra roles due to technological advancements i.e. to develop policies that regulate their use.

The advances in technology, which are eventually incorporated in different departments, have immensely influenced the executive structures. Several offices have been created as a solution for the management of these high-tech equipments in different executive departments. For instance, the defense department has several technological departments that contain several offices responsible for developing and managing technical weapons.

The functions and names of offices in the executive branch have changed over the years, due to several factors. Some of the reason that influenced changes in departmental names and operations include economic changes, technological changes, a shift in public welfare demands and the need for office regulations. Some of the offices in the branch, which have grown and changed over the years, include the president office, executive departments and the vice president office.

Barrett, Henry. The President’s Cabinet, Studies in the Origin, Formation and Structure of an American Institution . Charleston: BiblioBazaar, LLC, 2009 375.

Brown, Elizabeth and Graham, David. Leading the executive branch: strategies and options for achieving success . Santa Monica: Rand Corporation. 2007 1.

Findlaw. Amendment to the constitution of United States of America . London: Thomson Reuters business. 2010. Web. Available at: https://constitution.findlaw.com/amendments.html

Infoplease. Executive department . Berkeley: Pearson education 2007. Web. Available at: https://www.infoplease.com/history-and-government/executive-departments-and-agencies/executive-departments

Wright, John. The New York times Almanac 2002 . New York: Routledge. 2001 64.

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The executive branch is headed by the president , who must be a natural-born citizen of the United States, at least 35 years old, and a resident of the country for at least 14 years. A president is elected indirectly by the people through the Electoral College system to a four-year term and is limited to two elected terms of office by the Twenty-second Amendment (1951). The president’s official residence and office is the White House , located at 1600 Pennsylvania Avenue N.W. in Washington, D.C. The formal constitutional responsibilities vested in the presidency of the United States include serving as commander in chief of the armed forces; negotiating treaties; appointing federal judges, ambassadors, and cabinet officials; and acting as head of state. In practice, presidential powers have expanded to include drafting legislation, formulating foreign policy , conducting personal diplomacy, and leading the president’s political party .

The members of the president’s cabinet —the attorney general and the secretaries of State , Treasury , Defense , Homeland Security , Interior , Agriculture , Commerce , Labor , Health and Human Services , Housing and Urban Development , Transportation , Education , Energy , and Veterans Affairs —are appointed by the president with the approval of the Senate; although they are described in the Twenty-fifth Amendment as “the principal officers of the executive departments,” significant power has flowed to non-cabinet-level presidential aides, such as those serving in the Office of Management and Budget (OMB), the Council of Economic Advisers , the National Security Council (NSC), and the office of the White House Chief of Staff; cabinet-level rank may be conferred to the heads of such institutions at the discretion of the president. Members of the cabinet and presidential aides serve at the pleasure of the president and may be dismissed by him at any time.

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The executive branch also includes independent regulatory agencies such as the Federal Reserve System and the Securities and Exchange Commission . Governed by commissions appointed by the president and confirmed by the Senate (commissioners may not be removed by the president), these agencies protect the public interest by enforcing rules and resolving disputes over federal regulations. Also part of the executive branch are government corporations (e.g., the Tennessee Valley Authority , the National Railroad Passenger Corporation [ Amtrak ], and the U.S. Postal Service), which supply services to consumers that could be provided by private corporations, and independent executive agencies (e.g., the Central Intelligence Agency , the National Science Foundation , and the National Aeronautics and Space Administration ), which comprise the remainder of the federal government.

The U.S. Congress , the legislative branch of the federal government, consists of two houses: the Senate and the House of Representatives . Powers granted to Congress under the Constitution include the power to levy taxes, borrow money, regulate interstate commerce , impeach and convict the president, declare war, discipline its own membership, and determine its rules of procedure.

With the exception of revenue bills, which must originate in the House of Representatives, legislative bills may be introduced in and amended by either house, and a bill—with its amendments—must pass both houses in identical form and be signed by the president before it becomes law. The president may veto a bill, but a veto can be overridden by a two-thirds vote of both houses. The House of Representatives may impeach a president or another public official by a majority vote; trials of impeached officials are conducted by the Senate, and a two-thirds majority is necessary to convict and remove the individual from office. Congress is assisted in its duties by the General Accounting Office (GAO), which examines all federal receipts and expenditures by auditing federal programs and assessing the fiscal impact of proposed legislation, and by the Congressional Budget Office (CBO), a legislative counterpart to the OMB, which assesses budget data, analyzes the fiscal impact of alternative policies, and makes economic forecasts.

The House of Representatives is chosen by the direct vote of the electorate in single-member districts in each state. The number of representatives allotted to each state is based on its population as determined by a decennial census ; states sometimes gain or lose seats, depending on population shifts. The overall membership of the House has been 435 since the 1910s, though it was temporarily expanded to 437 after Hawaii and Alaska were admitted as states in 1959. Members must be at least 25 years old, residents of the states from which they are elected, and previously citizens of the United States for at least seven years. It has become a practical imperative—though not a constitutional requirement—that a member be an inhabitant of the district that elects him. Members serve two-year terms, and there is no limit on the number of terms they may serve. The speaker of the House , who is chosen by the majority party, presides over debate, appoints members of select and conference committees, and performs other important duties; he is second in the line of presidential succession (following the vice president). The parliamentary leaders of the two main parties are the majority floor leader and the minority floor leader. The floor leaders are assisted by party whips , who are responsible for maintaining contact between the leadership and the members of the House. Bills introduced by members in the House of Representatives are received by standing committees, which can amend , expedite, delay, or kill legislation. Each committee is chaired by a member of the majority party, who traditionally attained this position on the basis of seniority, though the importance of seniority has eroded somewhat since the 1970s. Among the most important committees are those on Appropriations, Ways and Means, and Rules. The Rules Committee, for example, has significant power to determine which bills will be brought to the floor of the House for consideration and whether amendments will be allowed on a bill when it is debated by the entire House.

Each state elects two senators at large. Senators must be at least 30 years old, residents of the state from which they are elected, and previously citizens of the United States for at least nine years. They serve six-year terms, which are arranged so that one-third of the Senate is elected every two years. Senators also are not subject to term limits. The vice president serves as president of the Senate, casting a vote only in the case of a tie, and in his absence the Senate is chaired by a president pro tempore, who is elected by the Senate and is third in the line of succession to the presidency. Among the Senate’s most prominent standing committees are those on Foreign Relations, Finance, Appropriations, and Governmental Affairs. Debate is almost unlimited and may be used to delay a vote on a bill indefinitely. Such a delay, known as a filibuster , can be ended by three-fifths of the Senate through a procedure called cloture . Treaties negotiated by the president with other governments must be ratified by a two-thirds vote of the Senate. The Senate also has the power to confirm or reject presidentially appointed federal judges, ambassadors, and cabinet officials.

The judicial branch is headed by the Supreme Court of the United States , which interprets the Constitution and federal legislation. The Supreme Court consists of nine justices (including a chief justice ) appointed to life terms by the president with the consent of the Senate. It has appellate jurisdiction over the lower federal courts and over state courts if a federal question is involved. It also has original jurisdiction (i.e., it serves as a trial court) in cases involving foreign ambassadors, ministers, and consuls and in cases to which a U.S. state is a party.

Most cases reach the Supreme Court through its appellate jurisdiction. The Judiciary Act of 1925 provided the justices with the sole discretion to determine their caseload. In order to issue a writ of certiorari , which grants a court hearing to a case, at least four justices must agree (the “Rule of Four”). Three types of cases commonly reach the Supreme Court: cases involving litigants of different states, cases involving the interpretation of federal law, and cases involving the interpretation of the Constitution. The court can take official action with as few as six judges joining in deliberation, and a majority vote of the entire court is decisive; a tie vote sustains a lower-court decision. The official decision of the court is often supplemented by concurring opinions from justices who support the majority decision and dissenting opinions from justices who oppose it.

Because the Constitution is vague and ambiguous in many places, it is often possible for critics to fault the Supreme Court for misinterpreting it. In the 1930s, for example, the Republican-dominated court was criticized for overturning much of the New Deal legislation of Democratic President Franklin D. Roosevelt . In the area of civil rights , the court has received criticism from various groups at different times. Its 1954 ruling in Brown v. Board of Education of Topeka , which declared school segregation unconstitutional, was harshly attacked by Southern political leaders, who were later joined by Northern conservatives . A number of decisions involving the pretrial rights of prisoners, including the granting of Miranda rights and the adoption of the exclusionary rule , also came under attack on the ground that the court had made it difficult to convict criminals. On divisive issues such as abortion , affirmative action , school prayer, and flag burning, the court’s decisions have aroused considerable opposition and controversy, with opponents sometimes seeking constitutional amendments to overturn the court’s decisions.

At the lowest level of the federal court system are district courts ( see United States District Court ). Each state has at least one federal district court and at least one federal judge. District judges are appointed to life terms by the president with the consent of the Senate. Appeals from district-court decisions are carried to the U.S. courts of appeals ( see United States Court of Appeals ). Losing parties at this level may appeal for a hearing from the Supreme Court. Special courts handle property and contract damage suits against the United States ( United States Court of Federal Claims ), review customs rulings (United States Court of International Trade), hear complaints by individual taxpayers (United States Tax Court) or veterans (United States Court of Appeals for Veteran Claims), and apply the Uniform Code of Military Justice ( United States Court of Appeals for the Armed Forces ).

U.S. Presidency

The power of the executive branch of the U.S. government has grown substantially since its inception, continuing and expanding its influence on all facets of American political life.    The impact of the U.S. presidency has evolved particularly in relation to civil rights, foreign relations and the handling of war and peace. The influence of the media has altered presidential policy. In this Vanderbilt University Special Collections and Archives exhibit, we use artifacts to convey the challenges and triumphs of the American presidency and its extensive role in American politics.

Expanding Power of the Executive Branch

Brennan Ferrington, Curator

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7a. The Evolution of the Presidency

The 21st Century dawned on a very different presidency than the one created at the end of the 1700s. Constitutional provisions limited the early presidency, although the personalities of the first three — George Washington , John Adams , and Thomas Jefferson — shaped it into a more influential position by the early 1800s. However, throughout the 1800s until the 1930s, Congress was the dominant branch of the national government. Then, throughout the rest of the 20th Century, the balance of power shifted dramatically, so that the executive branch currently has at least equal power to the legislative branch. How did this shift happen?

Constitutional Qualifications and Powers

Article II of the Constitution defines the qualifications, benefits, and powers of the presidency. The President must be at least 35 years old, and must have resided in the United States for no fewer than 14 years. Presidents must be "natural born" citizens. The Constitution states that the President should be paid a "compensation" that cannot be increased or decreased during a term. Congress determines the salary, which increased in 2001 to $400,000, doubling the salary that was set back in the 1960s.

Article II of the Constitution

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 choose 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 choose the President. But in choosing the President, the Votes shall be taken by States, the Representation 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 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 choose from them by Ballot the Vice President.]*

*Changed by the Twelfth Amendment.

The Congress may determine the Time of choosing 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.]*

*Changed by the Twenty-fifth Amendment.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased 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.''

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 Offenses 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.

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.

The Constitution assigned the following powers to the President:

The Strengthening of the Presidency

Because the Constitution gave the President such limited power, Congress dominated the executive branch until the 1930s. With only a few exceptions, Presidents played second fiddle to Congress for many years. However, those exceptions — Andrew Jackson , Abraham Lincoln, Theodore Roosevelt, and Woodrow Wilson — provided the basis for the turning point that came with the presidency of Franklin Roosevelt in the 1930s.

Andrew Jackson , greatly loved by the masses, used his image and personal power to strengthen the developing party system by rewarding loyal followers with presidential appointments. Jackson also made extensive use of the veto and asserted national power by facing down South Carolina's nullification of a federal tariff law. Jackson vetoed more bills than the six previous Presidents combined.

Abraham Lincoln assumed powers that no President before him had claimed, partly because of the emergency created by the Civil War (1861-1865). He suspended habeas corpus (the right to an appearance in court), and jailed people suspected of disloyalty. He ignored Congress by expanding the size of the army and ordering blockades of southern ports without the consent of Congress.

Theodore Roosevelt and Woodrow Wilson each expanded the powers of the presidency. Roosevelt worked closely with Congress, sending it messages defining his legislative powers. He also took the lead in developing the international power of the United States. Wilson helped formulate bills that Congress considered, and World War I afforded him the opportunity to take a leading role in international affairs.

Franklin Roosevelt, who was elected four times to the presidency, led the nation through the crises of the Great Depression and World War II . Roosevelt gained power through his New Deal programs to regulate the economy, and the war required that he lead the country in foreign affairs as well.

So, the powers of the modern presidency have been shaped by a combination of constitutional and evolutionary powers. The forceful personalities of strong Presidents have expanded the role far beyond the greatest fears of the antifederalists of the late 1700s.

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The Origin of the Executive

By natalie bolton and gordon lloyd, introduction:.

To assist teachers in teaching the founding of the U.S. government, Professor Gordon Lloyd  has created a website in collaboration with the Ashbrook Center at Ashland University on the American Founding . In an effort to assist students in understanding how the executive and judicial branches of government were established, two lesson plans have been created that combine content from websites created by Gordon Lloyd that tell the story of the founding. Students will review several primary source documents including Articles and Amendments of the U.S. Constitution and Federalist and Antifederalist papers to understand and explain the origins of the executive and judicial branches of the United States. The following lesson will explore the origin of the Executive using primary sources from Madison’s Notes on the Convention , Article II of the United States Constitution , Amendment XXII , Old Whig V , Cato IV , Federalist 70 and Federalist 71 . This lesson has been written as a Historical Scene Investigation (HSI). The HSI instructional model consists of the following four steps: Becoming a Detective Investigating the Evidence Searching for Clues Cracking the Case In the “ Becoming a Detective ” stage, students are introduced to the historical scene under investigation. Here background information and context are provided for the students. Students are then presented with an Engaging Question to guide their inquiry. Finally, students are presented with a task to help them answer the question – or crack the case. From this point, students move on to the “ Investigating the Evidence ” section. Students are provided links to appropriate digital primary sources to help them crack the case. These documents might include text files, images, audio, or video clips. In the “ Searching for Clues ” stage, students are provided with a set of questions for their Detective’s Log, guiding their analysis of the evidence. This can be very structured, or more open-ended, depending on the instructional goals. Often, these questions will be provided in the form of a printable handout from which students work. Finally, in the “ Cracking the Case ” section, students present their answer, along with a rationale rooted in the evidence, to the initial question. Additionally, students are encouraged to enter new questions that have arisen during the process for future investigation. For every case, there is a section for the teacher. This section will list particular objectives for the activity and will also provide additional contextual information and resources as well as instructional strategies that the teacher might find useful. The model is intentionally standardized so that teachers can easily browse the activities without getting bogged down in unusual terminology. Ultimately, the hope is that teachers do what they do best-that is, download an activity and either use it “as is” or cut, rearrange or extend an activity for use within their particular classroom. (Description of HSI Model taken with permission from: http://web.wm.edu/hsi/model.html )

Guiding Question:

How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty?

Learning Objective:

After completing this lesson, students should be able to: Analyze Federalist and Antifederalist papers and explain the arguments and compromises that were made to balance the need for energy and the need for liberty with the establishment of the Executive branch as described in Article II of the U.S. Constitution.

Background Information for the Teacher:

The years were 1787 and 1788. Along with the debate over the Constitution that was taking place in the state legislatures, an “out-of-doors” debate raged in newspapers and pamphlets throughout America’s thirteen states following the Constitutional Convention over the Constitution that had been proposed. Origin of The Federalist The eighty-five essays appeared in one or more of the following four New York newspapers: 1) The New York Journal , edited by Thomas Greenleaf, 2) Independent Journal , edited by John McLean, 3) New York Advertiser , edited by Samuel and John Loudon, and 4) Daily Advertiser , edited by Francis Childs. Initially, they were intended to be a twenty essay response to the Antifederalist attacks on the Constitution that were flooding the New York newspapers right after the Constitution had been signed in Philadelphia on September 17, 1787. The Cato letters started to appear on September 27, George Mason’s objections were in circulation and the Brutus essays were launched on October 18. The number of essays in The Federalist was extended in response to the relentless, and effective, Antifederalist criticism of the proposed Constitution. McLean bundled the first 36 essays together—they appeared in the newspapers between October 27, 1787 and January 8, 1788—and published them as Volume 1 on March 22, 1788. Essays 37 through 77 of The Federalist appeared between January 11, and April 2, 1788. On May 28, McLean took Federalist 37-77 as well as the yet to be published Federalist 78-85 and issued them all as Volume 2 of The Federalist . Between June 14 and August 16, these eight remaining essays—Federalist 78-85—appeared in the Independent Journal and New York Packet . The Status of The Federalist One of the persistent questions concerning the status of The Federalist is this: is it a propaganda tract written to secure ratification of the Constitution and thus of no enduring relevance or is it the authoritative expositor of the meaning of the Constitution having a privileged position in constitutional interpretation? It is tempting to adopt the former position because 1) the essays originated in the rough and tumble of the ratification struggle. It is also tempting to 2) see The Federalist as incoherent; didn’t Hamilton and Madison disagree with each other within five years of co-authoring the essays? Surely the seeds of their disagreement are sown in the very essays! 3) The essays sometimes appeared at a rate of about three per week and, according to Madison, there were occasions when the last part of an essay was being written as the first part was being typed. 1) One should not confuse self-serving propaganda with advocating a political position in a persuasive manner. After all, rhetorical skills are a vital part of the democratic electoral process and something a free people have to handle. These are op-ed pieces of the highest quality addressing the most pressing issues of the day. 2) Moreover, because Hamilton and Madison parted ways doesn’t mean that they weren’t in fundamental agreement in 1787-1788 about the need for a more energetic form of government. And just because they were written with certain haste doesn’t mean that they were unreflective and not well written. Federalist 10, the most famous of all the essays, is actually the final draft of an essay that originated in Madison’s Vices in 1787, matured at the Constitutional Convention in June 1787, and was refined in a letter to Jefferson in October 1787. All of Jay’s essays focus on foreign policy, the heart of the Madisonian essays are Federalist 37-51 on the great difficulty of founding, and Hamilton tends to focus on the institutional features of federalism and the separation of powers. I suggest, furthermore, that the moment these essays were available in book form, they acquired a status that went beyond the more narrowly conceived objective of trying to influence the ratification of the Constitution. The Federalist now acquired a “timeless” and higher purpose, a sort of icon status equal to the very Constitution that it was defending and interpreting. And we can see this switch in tone in Federalist 37 when Madison invites his readers to contemplate the great difficulty of founding. Federalist 38 , echoing Federalist 1 , points to the uniqueness of the America Founding: never before had a nation been founded by the reflection and choice of multiple founders who sat down and deliberated over creating the best form of government consistent with the genius of the American people. Thomas Jefferson referred to the Constitution as the work of “demigods,” and The Federalist “the best commentary on the principles of government, which ever was written.” There is a coherent teaching on the constitutional aspects of a new republicanism and a new federalism in The Federalist that makes the essays attractive to readers of every generation. Authorship of The Federalist A second question about The Federalist is how many essays did each person write? James Madison—at the time a resident of New York since he was a Virginia delegate to the Confederation Congress that met in New York—John Jay, and Alexander Hamilton—both of New York—wrote these essays under the pseudonym, “Publius.” So one answer to the question is that how many essays each person wrote doesn’t matter since everyone signed off under the same pseudonym, “Publius.” But given the iconic status of The Federalist , there has been an enduring curiosity about the authorship of the essays. Although it is virtually agreed that Jay wrote only five essays, there have been several disputes over the decades concerning the distribution of the essays between Hamilton and Madison. Suffice it to note, that Madison’s last contribution was Federalist 63 , leaving Hamilton as the exclusive author of the nineteen Executive and Judiciary essays. Madison left New York in order to comply with the residence law in Virginia concerning eligibility for the Virginia ratifying convention . There is also widespread agreement that Madison wrote the first thirteen essays on the great difficulty of founding. There is still dispute over the authorship of Federalist 50-58, but these have persuasively been resolved in favor of Madison. Outline of The Federalist A third question concerns how to “outline” the essays into its component parts. We get some natural help from the authors themselves. Federalist 1 outlines the six topics to be discussed in the essays without providing an exact table of contents. The authors didn’t know in October 1787 how many essays would be devoted to each topic. Nevertheless, if one sticks with the “formal division of the subject” outlined in the first essay, it is possible to work out the actual division of essays into the six topic areas or “points” after the fact so to speak. Martin Diamond was one of the earliest scholars to break The Federalist into its component parts. He identified Union as the subject matter of the first thirty-six Federalist essays and Republicanism as the subject matter of last forty-nine essays. There is certain neatness to this breakdown, and accuracy to the Union essays. The first three topics outlined in Federalist 1 are 1) the utility of the union, 2) the insufficiency of the present confederation under the Articles of Confederation , and 3) the need for a government at least as energetic as the one proposed. The opening paragraph of Federalist 15 summarizes the previous fourteen essays and says: “in pursuance of the plan which I have laid down for the pursuance of the subject, the point next in order to be examined is the ‘insufficiency of the present confederation.'” So we can say with confidence that Federalist 1-14 is devoted to the utility of the union. Similarly, Federalist 23 opens with the following observation: “the necessity of a Constitution, at least equally energetic as the one proposed… is the point at the examination of which we are now arrived.” Thus Federalist 15-22 covered the second point dealing with union or federalism. Finally, Federalist 37 makes it clear that coverage of the third point has come to an end and new beginning has arrived. And since McLean bundled the first thirty-six essays into Volume 1, we have confidence in declaring a conclusion to the coverage of the first three points all having to do with union and federalism. The difficulty with the Diamond project is that it becomes messy with respect to topics 4, 5, and 6 listed in Federalist 1 : 4) the Constitution conforms to the true principles of republicanism , 5) the analogy of the Constitution to state governments, and 6) the added benefits from adopting the Constitution. Let’s work our way backward. In Federalist 85 , we learn that “according to the formal division of the subject of these papers announced in my first number, there would appear still to remain for discussion two points,” namely, the fifth and sixth points. That leaves, “republicanism,” the fourth point, as the topic for Federalist 37-84, or virtually the entire Part II of The Federalist . I propose that we substitute the word Constitutionalism for Republicanism as the subject matter for essays 37-51, reserving the appellation Republicanism for essays 52-84. This substitution is similar to the “Merits of the Constitution” designation offered by Charles Kesler in his new introduction to the Rossiter edition; the advantage of this Constitutional approach is that it helps explain why issues other than Republicanism strictly speaking are covered in Federalist 37-46. Kesler carries the Constitutional designation through to the end; I suggest we return to Republicanism with Federalist 52 . Taken from Introduction to The Federalist . The Four Options of Antifederalism It is helpful to consider four options when reflecting on the importance of the Antifederalists . They are 1) incoherent and irrelevant, 2) coherent and irrelevant, 3) incoherent and relevant, and 4) coherent and relevant. And which option we choose is in large part linked to a) how we define the Antifederalist project, b) how we interpret The Federalist and c) whether or not we are willing to retrieve the Antifederalists on their own terms or whether we see them as valuable in a quarrel over the American regime. One way to define the Antifederalists is that they are those who opposed ratification of the unamended Constitution in 1787-1788. This definition might well make them lower case antifederalists or anti-federalists. The point is that they are both incoherent and irrelevant. A broader definition, one that reaches back to Montesquieu or to Aristotle introduces the possibility that they may be either coherent but irrelevant (Cecelia Kenyon) or incoherent but relevant (Herbert Storing). The upper case and hyphenated Anti-Federalist nomenclature is the preferred appellation for this approach. There is one last choice – the Antifederalists are coherent and relevant – and this suggests that we call them Antifederalists, upper case and non-hyphenated. This fourth approach argues that their coherence and relevance is located in their basically American and new world character. They are neither Kenyon’s “men of little faith” nor Storing’s “incomplete reasoners,” and thus “junior founders.” Their thought is grounded in the American struggle for independence, draws strength from the colonial tradition, the natural rights tradition, and new state constitutions that emerged between 1776 and 1780. Their thought is moreover informed by the Articles of Confederation of the 1780s, matured by the debates over the creation and adoption of the Constitution , culminates with the adoption of the Bill of Rights and then bids farewell to its creative phase with the introduction of the Virginia and Kentucky Resolutions . I encourage the reader to consider this broader, and basically American and new world, definition of the Antifederalist project. The Antifederalist Reputation This reputation of the Antifederalists as irrelevant, even proto-Calhoun, disunionists was shaped, in part, by Alexander Hamilton’s observation in Federalist 1 : “we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great an extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.” The response by the Antifederalist, “Centinel,” to Hamilton has been largely ignored: this claim of disunion, he said, is “from the deranged brain of Publius, a New York writer, who has devoted much time, and wasted more paper in combating chimeras of his own creation.” James Madison’s commentary in Federalist 38 was no doubt also influential in portraying the Antifederalists as incoherent. Madison asks: “Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves.” But Madison does not “let them speak for themselves.” When the Antifederalists are permitted to speak for themselves, as Antifederalist Melancton Smith demonstrates, a remarkably coherent alternative emerges. “An Old Whig” makes the same point: “about the same time, in very different parts of the continent, the very same objections have been made, and the very same alterations proposed by different writers, who I verily believe, know nothing at all of each other.” This appeared six weeks prior to Federalist 38 . When the Antifederalists are permitted to speak for themselves, a coherent and relevant account emerges. The Federalist argues for checks and balances, especially against the legislature; the Antifederalists support term limits and rotation in office for all elected and appointed officials. But this is why Kenyon calls them irrelevant; they held to a scheme of representation that was outmoded even for 1787. By contrast, The Federalist argues that the representative needs a longer duration in office than provided by traditional republicanism in order to exercise the responsibilities of the office and resist the narrow and misguided demands of an overbearing and unjust majority. Because the Antifederalists were dubious that one could be both democratic and national, they urged less independence for the elected representatives. They claimed that practical experience demonstrated that short terms in office, reinforced by term limits, would be an indispensable additional security to the objective of the election system to secure that the representatives were responsible to the people. For the Antifederalists, a responsible representative – the essential characteristic of republicanism – was constitutionally obliged to be responsive to the sovereign people. Ultimately, the “accountability” of the representative was secured by “rotation in office,” the vital principle of representative democracy. This is the concept of the citizen-politician who serves the public briefly and then returns to the private sphere. In Federalist 23 , Hamilton describes the Antifederalist position as “absurd” because they admit the legitimacy of the ends and then are squeamish, even, cowardly, about the means: “For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative.” The Antifederalists, according to Hamilton, are mushy thinkers; they fuss over means rather than focusing on ends. Storing totally agrees: they should have focused on the ends of union and the (limited) role of the states in the accomplishment of those ends. The Antifederalists, according to Hamilton and Storing, wanted union but argued against giving the union the means to secure the ends. They were absurd and thus they were incoherent. But there is more. According to Storing, the Antifederalists also avoided the hard and “ugly truth” of Federalist 51 : the people can’t govern themselves voluntarily. This truth, says Storing, is something that the Federalists faced squarely. Coherent and Relevant Perhaps that the Antifederalists have a coherent understanding of federalism and republicanism – grounded in “democratic federalism” and “constitutional republicanism” – and that this coherent understanding is worth keeping alive in the twenty-first century because it addresses what ails the contemporary American federal republic. Antifederalist thought is the built-in American antidote for the ills of the American federal republic. In particular, the three other alternative explanations either read history backwards or import European or ancient categories to explain an American experience. The Antifederalists are not primarily interested in the “good government” project of The Federalist or the “best regime” project of the ancients, or the “exit rights” project of the secessionists or many of the other projects invented by the various historical schools; instead, I suggest they are interested in the creation and preservation of free government. They remind us that free government means limited government, and thus the political project should be focused on limiting rather than empowering politicians. Antifederalist statesmanship involves an attachment to means, rather than an administration of ends. There is nothing absurd or incoherent about being fussy over the use and misuse of means because means are actually powers and the abuse of powers sets us down the slippery slope to old world tyranny. The Antifederalists speak to those who have become increasingly disillusioned by the collapse of decentralized state and local government, the greater intervention by the federal government in economic matters, the blurring of the separation of powers, and the replacement of voluntary associations by government programs. The Antifederalists warn: beware the dangers of “democratic nationalism,” and “delegated constitutionalism.” These are warnings from within the very American System itself. They warn us that there is something morally corrosive about the exercise of political power and thus they remind us about the need for the rule of law. And they warn about the dangers of the Federalist temptation with empire abroad. The Antifederalists are not isolationists, men of little faith, or junior partners; they are “Antitemptationalists” with a message of liberty and responsibility that resonates across the centuries. “On the most important points,” then, the Antifederalists were not only in agreement but their position was coherent and is currently relevant. They believed that republican liberty was best preserved in small units where the people had an active and continuous part to play in government. Although they thought that the Articles best secured this concept of republicanism, they were willing to bestow more authority on the federal government as long as this didn’t undermine the principles of federalism and republicanism. They argued that the Constitution placed republicanism in danger because it undermined the pillars of small territorial size, frequent elections, short terms in office, and accountability to the people, and, at the same time, encouraged the representatives to become independent from the people and the state governments. They warned that unless restrictions were placed on the powers of Congress, the Executive, and the Judiciary, the potentiality for the abuse of power would become a reality. These warnings culminated in their insistence on a Bill of Rights which, in conjunction with small territory, representative dependency, and strict construction, they conceived as the ultimate “auxiliary precaution.” The expression of discontent over the last fifty years about American politics has an ominous ring, revealing the widespread Antifederal mood in the electorate. Among the dramatic changes in recent American politics are the alarming alienation of the citizenry from the electoral system, the increased presence of the centralized Administrative State, and the dangerous consequences of an activist judiciary that openly thwarts the deliberate sense of the majority. These are all Antifederalist concerns about the tyranny of politicians. The term limits movement of the late twentieth century demonstrates that the Antifederalist message – keep your representatives on a short leash, otherwise you will lose your freedom – still resonates with the American people, because Antifederalism is very much part of the American political experience. When we hear the claim that our representatives operate independently of the people, and that the Congress fails to represent the broad cross-section of interests in America, we are hearing an echo of the Antifederalist critique of representation. When we hear that the federal government has spawned a vast and irresponsive administrative bureaucracy that interferes too much with the life of American citizens, we are reminded of the warnings of the Antifederalists concerning consolidated government. They warn that, in effect, executive orders, executive privileges, and executive agreements will create the “Imperial Presidency.” And they warn that an activist judiciary will undermine the deliberate sense of the majority. The criticism that Americans have abandoned a concern for their religious heritage and neglected the importance of local customs, habits, and morals, recalls the Antifederalist dependence upon self-restraint and self-reliance. When we hear a concern for the passing of decentralization – old time federalism  we are hearing the Antifederalist lament. The Antifederalist project calls for a rejuvenation of interest in Antifederalist “democratic federalism” and “constitutional republicanism.” Since American politics is often a debate over the possibilities and limitations of the separation of powers, an independent judiciary, federalism, and representative government, it is vital that the potency of Antifederalist political analysis be restored. If the electorate has “lost faith” in the responsibility of the representatives in every branch of government, then the very concept of representation undergirding the country is in crisis. What is the solution? If no one cares either about the question, or the solution, then America is perhaps doomed to go the way of previous great regimes, and the experiment in “republican government” is exactly what opponents through the centuries have predicted it would be: a complete failure thus proving that the human race is incapable of being governed other than by force and fraud. Antifederalist political science advocated concentration of the power of the people and eliminating temptations for the concentration of power in officeholders. The heart of their method was to propose a scheme of representation that safeguarded interests and avoid the clashes of factions. This called for certain homogeneity of interests, as opposed to the Madisonian encouragement of diverse interests. The latter approach they rejected as unnecessary and dangerous. They placed their faith instead in the virtue of “middling” Americans – a virtue that was not informed by ancient Sparta or even ancient Rome but by the modern doctrine of personal self-reliance – coupled with holding their representatives “in the greatest responsibility to their constituents.” The Antifederalists viewed the Constitution as creating mutually independent sovereign agents. They argued that such independent rulers would “erect an interest separate from the ruled,” which will tempt them to lose both their federal and their republican mores. The Antifederalists concluded that unless executive power was yet more limited, representation more broadened, presidents and senators made more responsible to the people and the state governments protected – unless the arrangement was significantly modified – the proposed regime would necessarily destroy political liberty by destroying the sovereignty of the people, the litmus test of republicanism. As an expression of this “constitutional republicanism,” they insisted on a Bill of Rights as a declaration of popular sovereignty. In conclusion, the Antifederalists warned about the tendency of the American system toward the consolidation of political power in a) the nation to the detriment of the various states, and b) one branch of the federal government at the expense of the separation of powers. They warned about c) the corrupting influence that political power has on even decent people, whom decent people elected into office, and d) that the rule of law has a privileged position in republican government. They also anticipated the idea that e) all politics is – or should be – local and thus particular attachments rather than abstract ideas matter in the preservation of a liberal political order. Taken from Introduction to the Antifederalists .

Preparing to Teach this Lesson:

Prior to teaching this lesson the teacher should cover content related to the Articles of Confederation and its weaknesses. The teacher should familiarize her/himself with Madison’s Notes on the Constitutional Convention of 1787 on the following days outlined below. Gordon Lloyd has presented the content of the Constitutional Convention of 1787 as a Four Act Drama . Students and teacher should also be familiar with the Federalist and Antifederalist Debates . Three activities are outlined below and should be implemented in order. Activity 1: Becoming a Detective Students are introduced to the historical scene under investigation. Here background information and context are provided for the students on Establishing the Electoral College and the Presidency . Students are then presented with an engaging question to guide their inquiry. The engaging question for the lesson is, “How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty? Finally, students are presented with a task to help them answer the question – or crack the case.

Activity 2: Investigating the Evidence

Students are provided links to appropriate digital primary sources using the American Founding website to help them crack the case.

Activity 3: Searching for Clues

Students are provided with a set of questions for their Detective’s Log, guiding their analysis of the evidence. Students are provided a printable handout, Detective Log, to work from.

Analyzing Primary Sources:

If your students lack experience in dealing with primary sources, you might use one or more preliminary exercises to help them develop these skills. The Learning Page at the American Memory Project of the Library of Congress includes a set of such activities. Another useful resource is the Digital Classroom of the National Archives, which features a set of Document Analysis Worksheets . Finally, History Matters offers pages on “ Making Sense of Maps ” and “ Making Sense of Oral History ” which give helpful advice to teachers in getting their students to use such sources effectively.

Suggested Activities:

Introduction to Case:

In this case, students explore a series of artifacts using the American Founding website . The artifacts serve as evidence taken from Major Themes at the Constitutional Convention , Federalist and Antifederalist Debates , and Document Library . As students explore the artifacts/evidence, they will work through a “detective’s log” to help them analyze and chart findings from the sources. In the end, students are asked to write an essay answering the following question: How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty? Additionally, students will be asked to indicate whether they were satisfied with the evidence and to list any additional questions that have been left unanswered through the investigation.

Activity 1: Becoming a Detective

Students are introduced to the historical scene under investigation. Here background information and context are provided for the students on the Establishing the Electoral College and the Presidency . As students read background information, they will complete the concept ladder resource , developing a question for each rung of the concept ladder based on their prior knowledge of American history and reading of the Establishing the Electoral College and the Presidency introduction. Students’ questions should represent what they expect to be answered in their investigation of the Executive. Students are then presented with an engaging question to guide their inquiry. The engaging question for the lesson is, “How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty?” Finally, students are presented with the task to help them answer the question – or crack the case. Teachers should share the Detective Log handout at this time.

Activity 2 and 3: Investigating the Evidence and Searching for Clues

Students are provided links to appropriate digital primary sources using the American Founding website to help them crack the case. For this HSI, students will read the content from the Federalist and Antifederalist Debates and the Document Library to assist them.

A REAP graphic organizer is provided to assist students who may need additional support as they read and analyze the digital primary sources. This graphic organizer asks students to:

R – Read the text. Write down the title of the text, whether it is a Federalist document or an Antifederalist document (if applicable) and what the evidence is about. E – Encode the text by putting the main ideas in your own words. Include the timeline of the evidence. A – Annotate the text by writing a statement that summarizes the important points explaining the significance of the evidence in relation to promoting a republic and balancing the need for energy in the Executive with the need for liberty. P – Ponder the text by thinking about what you learned.

Ask yourself “How does establishing the Executive promote a republic and balance the need for energy in the Executive with the need for liberty?” Connect this text to your own prior knowledge or to other documents you have read.

Students are provided with a set of questions for their Detective’s Log (see Detective Log handout ), guiding their analysis of the evidence. Students are provided a printable handout to work from.

Note: The teacher may decide to group students to investigate the evidence or have students work independently.

Assessment: Cracking the Case

Students will be completing a document-based question. The assessment consists of two parts. For the first part, students will answer 2-4 questions that accompany each of the four documents of evidence. In the second part of the assessment, students will construct an essay response to the document-based question. Directions: Based on your analysis of the four documents of evidence, answer the following questions based on the accompanying artifacts (1- 4). Some of these artifacts have been edited for the purposes of these exercises. This question is designed to test your ability to work with historic artifacts. As you analyze the artifacts, take into account both the sources of the document and the author’s point of view. Be sure to review the scoring criteria prior to answering questions. Note: Some text has been highlighted to assist students in answering document questions.

Scoring Criteria:

Credit will be fully rewarded if the response:

thoroughly addresses all aspects of the task by accurately interpreting the documents plus incorporates outside information related to the documents. discusses all aspects of the task and supports with accurate facts, examples and details. weighs the importance, reliability and validity of the evidence. analyzes conflicting perspectives presented in the documents and weaves the documents into the body of the essay. includes a strong introduction and conclusion.

Credit will be reduced if the response:

does not recognize the reliability, validity, or perspectives of the documents. reiterates the content of the documents with little or no use of outside information. discusses the documents in a descriptive rather than analytic manner. shows little recognition of the tasks, lacked an introduction or conclusion.

Historic Context

The ratification of the United States Constitution, which followed the Constitutional Convention of 1787, had a great impact on sustaining democracy in the United States. One of the great debates during ratification was the role, structure and powers of the Executive.

Question: How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty?

After reading the documents, complete part A.

Part a: short answer –.

Answer the questions accompanying each set of documents using evidence from the text(s).

Excerpt from Article II, United States Constitution

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…

No Persons 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 increased 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.

Amendment XXII

Ratified February 27, 1951

Section 1 – No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2 – This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Document Questions:

• What are the eligibility requirements for being President of the United States?
• Have eligibility requirements for being President of the United States been altered by Amendment XXII?
• Compare the exclusive powers the President and those that the President must share with the Senate.
• What are the criteria for removing the President from office?

Excerpt from Old Whig V

November 1, 1787

Philadelphia Independent Gazetteer

If we pass over the consideration of this subject so essential to the preservation of our liberties, and turn our eyes to the form of the government which the Convention have proposed to us, I apprehend that changing the prospect will not wholly alleviate our fears.—A few words on this head, will close the present letter. In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous. To be the fountain of all honors in the United States, commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a KING as much a King as the King of Great Britain, and a King too of the worst kind;—an elective King.—If such powers as these are to be trusted in the hands of any man, they ought for the sake of preserving the peace of the community at once to be made hereditary.—Much as I abhor kingly government, yet I venture to pronounce where kings are admitted to rule they should most certainly be vested with hereditary power. The election of a King whether it be in America or Poland, will be a scene of horror and confusion; and I am perfectly serious when I declare that, as a friend to my country, I shall despair of any happiness in the United States until this office is either reduced to a lower pitch of power or made perpetual and hereditary.—When I say that our future President will be as much a king as the king of Great-Britain, I only ask of my readers to look into the constitution of that country, and then tell me what important prerogative the King of Great-Britain is entitled to, which does not also belong to the President during his continuance in office.—The King of Great-Britain it is true can create nobility which our President cannot; but our President will have the power of making all the great men, which comes to the same thing.—All the difference is that we shall be embroiled in contention about the choice of the man, whilst they are at peace under the security of an hereditary succession.—To be tumbled headlong from the pinnacle of greatness and be reduced to a shadow of departed royalty is a shock almost too great for human nature to endure. It will cost a man many struggles to resign such eminent powers, and ere long, we shall find, someone who will be very unwilling to part with them.—I would therefore advise my country-men seriously to ask themselves this question;—Whether they are prepared TO RECEIVE A KING? If they are to say at once, and make the kingly office hereditary; to frame a constitution that should set bounds to his power, and, as far as possible secure the liberty of the subject. If we are not prepared to receive a king, let us call another convention to revise the proposed constitution, and form it anew on the principles of a confederacy of free republics; but by no means, under pretence of a republic, to lay the foundation for a military government, which is the worst of all tyrannies.

Excerpt from Cato IV

November 8, 1787

New York Journal

To the CITIZENS of the STATE of NEW-YORK.

The executive power as described in the 2d article, consists of a president and vice-president, who are to hold their offices during the term of four years; the same article has marked the manner and time of their election, and established the qualifications of the president; it also provides against the removal, death, or inability of the president and vice-president—regulates the salary of the president, delineates his duties and powers; and lastly, declares the causes for which the president and vice-president shall be removed from office.

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 . It is therefore obvious to the least intelligent mind, to account why, great power in the hands of a magistrate, and that power connected, with a considerable duration, may be dangerous to the liberties of a republic—the deposit of vast trusts in the hands of a single magistrate, enables him in their exercise, to create a numerous train of dependants—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 —And here it may be necessary to compare the vast and important powers of the president, together with his continuance in office with the foregoing doctrine—his eminent magisterial situation will attach many adherents to him, and he will be surrounded by expectants and courtiers—his power of nomination and influence on all appointments—the strong posts in each state comprised within his superintendence, and garrisoned by troops under his direction—his control over the army, militia, and navy—the unrestrained power of granting pardons for treason, which may be used to screen from punishment, those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt—his duration in office for four years: these, and various other principles evidently prove the truth of the position—that if the president is possessed of ambition, he has power and time sufficient to ruin his country.

The establishment of a vice president is as unnecessary as it is dangerous. This officer, for want of other employment, is made president of the senate, thereby blending the executive and legislative powers, besides always giving to someone state, from which he is to come, an unjust pre-eminence.

It is a maxim in republics, that the representative of the people should be of their immediate choice; but by the manner in which the president is chosen he arrives to this office at the fourth or fifth hand, nor does the highest votes, in the way he is elected, determine the choice—for it is only necessary that he should be taken from the highest of five, who may have a plurality of votes.

Every American Whig, not long since, bore his emphatic testimony against a monarchical government, though limited, because of the dangerous inequality that it created among citizens as relative to their rights and property; and wherein does this president, invested with his powers and prerogatives, essentially differ from the king of Great-Britain (save as to name, the creation of nobility and some immaterial incidents, the off-spring of absurdity and locality) the direct prerogatives of the president, as springing from his political character, are among the following:—It is necessary, in order to distinguish him from the rest of the community, and enable him to keep, and maintain his court, that the compensation for his services; or in other words, his revenue should be such as to enable him to appear with the splendor of a prince; he has the power of receiving ambassadors from, and a great influence on their appointments to foreign courts; as also to make treaties, leagues, and alliances with foreign states, assisted by the senate, which when made, become the supreme law of the land: he is a constituent part of the legislative power; for every bill which shall pass the house of representatives and senate, is to be presented to him for approbation; if he approves of it, he is to sign it, if he disapproves, he is to return it with objections, which in many cases will amount to a complete negative; and in this view he will have a great share in the power of making peace, coining money, &c. and all the various objects of legislation, expressed or implied in this Constitution: for though it may be asserted that the king of Great-Britain has the express power of making peace or war, yet he never thinks it prudent so to do without the advice of his parliament from whom he is to derive his support, and therefore these powers, in both president and king, are substantially the same: he is the generalissimo of the nation, and of course, has the command & control of the army, navy and militia; he is the general conservator of the peace of the union—he may pardon all offences, except in cases of impeachment, and the principal fountain of all offices & employments. Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy, or monarchy? The safety of the people in a republic depends on the share or proportion they have in the government; but experience ought to teach you, that when a man is at the head of an elective government invested with great powers, and interested in his re-election, in what circle appointments will be made; by which means an imperfect aristocracy bordering on monarchy may be established.

• What are the merits of the Antifederalists’ argument that Article II of the Constitution establishes a “foetus of monarchy?”
• Do they think that “good government” demands a vigorous Executive?
• Why do they think that a “plural executive” would be safer for republican government than a “unitary executive?”

Excerpt from Federalist 70

Publius (Alexander Hamilton)

March 15, 1788

There is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. 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. Every man the least conversant in Roman history knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.

There can be no need, however, to multiply arguments or examples on this head. A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.

Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic executive; it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention?

The ingredients which constitute energy in the executive are unity; duration; an adequate provision for its support; and competent powers.

The ingredients which constitute safety in the republican sense are a due dependence on the people, secondly a due responsibility.

Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justness of their views have declared in favor of a single executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand; while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.

That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.

This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority, or by vesting it ostensibly in one man, subject in whole or in part to the control and co-operation of others, in the capacity of counselors to him.

Summary of Federalist 70 – by Gordon Lloyd

This is the fourth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” The essay opens with the Antifederalist concern “that a vigorous executive is inconsistent with the genius of republican government.” Hamilton’s response is that “energy in the executive is a leading character in the definition of good government.” He explores two questions. A) What are the “ingredients which constitute energy in the executive?” B) How far can these ingredients be combined with other ingredients which constitute safety in the republican sense? A) There are four ingredients of energy: I Unity, II Duration, III Adequate Provision for Support, and IV Competent Powers. B) There are two ingredients of republican safety: I “A due dependence on the people,” and II “A due responsibility.”

A) Unity is “conducive to energy.” “The dictates of reason and good sense,” demonstrate that unity in the executive better secures the goals of “decision, activity, secrecy, and dispatch.” A “plurality in the executive” also destroys “responsibility.

• What are the four “ingredients which constitute energy in the Executive?”
• What are the two “ingredients” that permit an energetic Executive to be consistent “with the genius of republican government?

Excerpt from Federalist 71

March 18, 1788

The Duration In Office Of The Executive

DURATION in office has been mentioned as the second requisite to the energy of the executive authority. This has relation to two objects: to 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. With regard to the first, it must be evident that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he must lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be that he might lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station.

There are some who would be inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly intend the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.

But however inclined we might be to insist upon an unbounded complaisance in the executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the executive should be in a situation to dare to act his own opinion with vigor and decision.

It cannot be affirmed that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a 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 endowed with a tolerable portion of fortitude; and in which he might reasonably promise himself that there would be time enough before it arrived to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and goodwill of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As on the one hand, 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. If a British House of Commons, from the most feeble beginnings, from the mere power of assenting or disagreeing to the imposition of a new tax , have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation attempted by them, what would be to be feared from an elective magistrate of four years’ duration with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments.

Summary of Federalist 71 – by Gordon Lloyd

This is the fifth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” It covers A) II Duration as it pertains to “the personal firmness of the executive.

1. “It is a general principle of human nature that a man will be interested in what he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it.” The duration provision helps the President to be “interested” in resisting the “ill-humors” of society and a “predominant faction in the legislative body.” 2. “The servile pliancy of the executive to a prevailing current in the community or in the legislature” is NOT “its best recommendation.” The President must resist a “complaisance to every sudden breeze of passion” that might emerge in the society contrary to the true interests of the people, and, instead be “the guardians of those interests to withstand the temporary delusions in order to give them time and opportunity for more cool and sedate reflection.” It is the duty of the executive to secure the “republican principle”: “the deliberate sense of the community should govern.” 3. “The executive should be in a situation to dare to act “with vigor and decision.” 4. “The fundamental principles of good government” requires a fortification of the executive against the “almost irresistible” tendency in “governments purely republican” for the “legislative authority to absorb every other.” 5-7. “It may be asked whether a duration of four years” is sufficient. It may not “completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government.”

• What is “the republican principle” that it is “the duty” of the President to secure?
• How does “duration of four years” in office enable the President to fulfill this duty?
• Which branch of the government provides the greatest challenge to Presidential independence-the Legislative or the Judiciary– and why?

Part B: Essay response

Write an essay that discusses : How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty?

Essay response should be well organized with an introductory paragraph that states your position on the question. Develop your position in the next paragraphs and write a conclusion. In your essay, include specific historical details and refer to the specific documents you analyzed in Part A. You may include additional information from your knowledge of American History.

Extending the Lesson:

Extension 1: Based on the role, powers and structure of the Executive Branch of government today, research the following: How does Article II of the United States Constitution promote a republic and balance the need for energy in the Executive with the need for liberty today?

Related EDSITEment Lesson Plans:

• The Question of Representation at the 1787 Convention
• The Constitutional Convention: Four Founding Fathers You May Have Never Met
• The Constitutional Convention: What the Founding Fathers Said
• The Preamble to the Constitution: How Do You Make a More Perfect Union?
• The Federalist and Antifederalist Debates on Diversity and the Extended Republic

Selected Websites:

• America During the Age of Revolution, 1776-1789
• Unpaid Soldiers and the Newburgh Conspiracy
• Spain Closes Navigation of the Mississippi River to American Ships
• Congress is Unable to Raise Revenue and Repay Revolutionary War Debts
• Lack of U.S. Naval Strength to Promote and Protect Commerce
• Declaration of Independence, 1776
• Virginia Declaration of Rights, 177
• Articles of Confederation
• Proceedings of Commissioners to Remedy Defects of the Federal Government, Annapolis Convention, 1786
• Report of Proceedings in Congress (calling for 1787 Convention)
• James Madison, Notes of Debates in the Federal Convention of 1787
• Federalist 15, 1787
• Digital History
• James Madison to Edmund Randolph, 8 April 1787
• Constitution of the United States
• Bill of Rights (Amendments I-X of U.S. Constitution), 1791
• “A More Perfect Union: The Creation of the U.S. Constitution”
• Question and answer page about the Constitution and 1787 Convention
• George Washington to James Warren, 7 Oct. 1785
• George Washington to John Jay, 15 August 1786
• Massachusetts Constitution, 1780
• Gouverneur Morris to John Jay, 1 Jan. 1783
• Robert Morris to the President of Congress, 17 Mar. 1783
• Massachusetts farmers take up arms in Shays’ Rebellion
• Rufus King to Elbridge Gerry, 30 April 1786
• John Jay to Thomas Jefferson, 27 October 1786
• Continental Congress, Report on Proposed Amendments, 1786
• John Jay to George Washington, 7 January 1787
• Edmund Randolph to James Madison, 27 March 1787
• James Madison, Vices of the Political System of the United States, 1787

Standards Alignment:

• NCSS-10 Civic ideals and practices. Citizenship in a democratic republic.
• NCSS-5 Individuals, groups, and institutions.
• NCSS-6 Power, authority, and governance.

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The Executive Branch

The power of the Executive Branch is vested in the President of the United States, who also acts as head of state and Commander-in-Chief of the armed forces. The President is responsible for implementing and enforcing the laws written by Congress and, to that end, appoints the heads of the federal agencies, including the Cabinet. The Vice President is also part of the Executive Branch, ready to assume the Presidency should the need arise.

The Cabinet and independent federal agencies are responsible for the day-to-day enforcement and administration of federal laws. These departments and agencies have missions and responsibilities as widely divergent as those of the Department of Defense and the Environmental Protection Agency, the Social Security Administration and the Securities and Exchange Commission.

Including members of the armed forces, the Executive Branch employs more than 4 million Americans.

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.

The Vice President

The primary responsibility of the Vice President of the United States is to be ready at a moment’s notice to assume the Presidency if the President is unable to perform his or her duties. This can be because of the President’s death, resignation, or temporary incapacitation, or if the Vice President and a majority of the Cabinet judge that the President is no longer able to discharge the duties of the presidency.

The Vice President is elected along with the President by the Electoral College. Each elector casts one vote for President and another for Vice President. Before the ratification of the 12th Amendment in 1804, electors only voted for President, and the person who received the second greatest number of votes became Vice President.

The Vice President also serves as the President of the United States Senate, where he or she casts the deciding vote in the case of a tie. Except in the case of tie-breaking votes, the Vice President rarely actually presides over the Senate. Instead, the Senate selects one of their own members, usually junior members of the majority party, to preside over the Senate each day.

Kamala D. Harris is the 49th Vice President of the United States. She is the first woman and first woman of color to be elected to this position. The duties of the Vice President, outside of those enumerated in the Constitution, are at the discretion of the current President. Each Vice President approaches the role differently — some take on a specific policy portfolio, others serve simply as a top adviser to the President. Of the 48 previous Vice Presidents, nine have succeeded to the Presidency, and five have been elected to the Presidency in their own right. 

The Vice President has an office in the West Wing of the White House, as well as in the nearby Eisenhower Executive Office Building. Like the President, he or she also maintains an official residence, at the United States Naval Observatory in Northwest Washington, D.C. This peaceful mansion has been the official home of the Vice President since 1974 — previously, Vice Presidents had lived in their own private residences. The Vice President also has his or her own limousine, operated by the United States Secret Service, and flies on the same aircraft the President uses — but when the Vice President is aboard, the craft are referred to as Air Force Two and Marine Two.

Executive Office of the President

Every day, the President of the United States is faced with scores of decisions, each with important consequences for America’s future. To provide the President with the support that he or she needs to govern effectively, the Executive Office of the President (EOP) was created in 1939 by President Franklin D. Roosevelt. The EOP has responsibility for tasks ranging from communicating the President’s message to the American people to promoting our trade interests abroad.

The EOP, overseen by the White House Chief of Staff, has traditionally been home to many of the President’s closest advisers. While Senate confirmation is required for some advisers, such as the Director of the Office of Management and Budget, most are appointed with full Presidential discretion. The individual offices that these advisors oversee have grown in size and number since the EOP was created. Some were formed by Congress, others as the President has needed them — they are constantly shifting as each President identifies his or her needs and priorities. Perhaps the most visible parts of the EOP are the White House Communications Office and Press Secretary’s Office. The Press Secretary provides daily briefings for the media on the President’s activities and agenda. Less visible to most Americans is the National Security Council, which advises the President on foreign policy, intelligence, and national security.

There are also a number of offices responsible for the practicalities of maintaining the White House and providing logistical support for the President. These include the White House Military Office, which is responsible for services ranging from Air Force One to the dining facilities, and the Office of Presidential Advance, which prepares sites remote from the White House for the President’s arrival.

Many senior advisors in the EOP work near the President in the West Wing of the White House. However, the majority of the staff is housed in the Eisenhower Executive Office Building, just a few steps away and part of the White House compound.

The Cabinet

The Cabinet is an advisory body made up of the heads of the 15 executive departments. Appointed by the President and confirmed by the Senate, the members of the Cabinet are often the President’s closest confidants. In addition to running major federal agencies, they play an important role in the Presidential line of succession — after the Vice President, Speaker of the House, and Senate President pro tempore, the line of succession continues with the Cabinet offices in the order in which the departments were created. All the members of the Cabinet take the title Secretary, excepting the head of the Justice Department, who is styled Attorney General.

DEPARTMENT OF AGRICULTURE

The U.S. Department of Agriculture (USDA) develops and executes policy on farming, agriculture, and food. Its aims include meeting the needs of farmers and ranchers, promoting agricultural trade and production, assuring food safety, protecting forests and other natural resources, fostering rural prosperity, and ending hunger in America and abroad.

The USDA employs nearly 100,000 people and has an annual budget of approximately $150 billion. It consists of 16 agencies, including the Animal and Plant Health Inspection Service, the Food and Nutrition Service, and the Forest Service. The bulk of the department’s budget goes towards mandatory programs that provide services required by law, such as programs designed to provide nutrition assistance, promote agricultural exports, and conserve our environment.

The USDA also plays an important role in overseas aid programs by providing surplus foods to developing countries. 

The United States Secretary of Agriculture administers the USDA.

DEPARTMENT OF COMMERCE

The Department of Commerce is the government agency tasked with creating the conditions for economic growth and opportunity.

The department supports U.S. business and industry through a number of services, including gathering economic and demographic data, issuing patents and trademarks, improving understanding of the environment and oceanic life, and ensuring the effective use of scientific and technical resources. The agency also formulates telecommunications and technology policy, and promotes U.S. exports by assisting and enforcing international trade agreements. 

The United States Secretary of Commerce oversees a $8.9 billion budget and more than 41,000  employees.

DEPARTMENT OF DEFENSE

The mission of the Department of Defense (DOD) is to provide the military forces needed to deter war and to protect the security of our country. The department’s headquarters is at the Pentagon.

The DOD consists of the Departments of the Army, Navy, and Air Force, as well as many agencies, offices, and commands, including the Joint Chiefs of Staff, the Pentagon Force Protection Agency, the National Security Agency, and the Defense Intelligence Agency. The DOD occupies the vast majority of the Pentagon building in Arlington, Virginia.

The DOD is the largest government agency, with more than 1.4 million men and women on active duty, more than 700,000 civilian personnel, and 1.1 million citizens who serve in the National Guard and Reserve forces. Together, the military and civilian arms of DOD protect national interests through war-fighting, providing humanitarian aid, and performing peacekeeping and disaster relief services.

DEPARTMENT OF EDUCATION

The mission of the Department of Education is to promote student learning and preparation for college, careers, and citizenship in a global economy by fostering educational excellence and ensuring equal access to educational opportunity.

The Department administers federal financial aid for higher education, oversees educational programs and civil rights laws that promote equity in student learning opportunities, collects data and sponsors research on America’s schools to guide improvements in education quality, and works to complement the efforts of state and local governments, parents, and students.

The U.S. Secretary of Education oversees the Department’s 4,200 employees and $68.6 billion budget.

DEPARTMENT OF ENERGY

The mission of the Department of Energy (DOE) is to advance the national, economic, and energy security of the United States.

The DOE promotes America’s energy security by encouraging the development of reliable, clean, and affordable energy. It administers federal funding for scientific research to further the goal of discovery and innovation — ensuring American economic competitiveness and improving the quality of life for Americans. The DOE is also tasked with ensuring America’s nuclear security, and with protecting the environment by providing a responsible resolution to the legacy of nuclear weapons production.

The United States Secretary of Energy oversees a budget of approximately $23 billion and more than 100,000 federal and contract employees.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

The Department of Health and Human Services (HHS) is the United States government’s principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves. Agencies of HHS conduct health and social science research, work to prevent disease outbreaks, assure food and drug safety, and provide health insurance.

In addition to administering Medicare and Medicaid, which together provide health coverage to one in four Americans, HHS also oversees the National Institutes of Health, the Food and Drug Administration, and the Centers for Disease Control.

The Secretary of Health and Human Services oversees a budget of approximately $700 billion and approximately 65,000 employees. The Department’s programs are administered by 11 operating divisions, including eight agencies in the U.S. Public Health Service, two human services agencies, and the Centers for Medicare and Medicaid Services.

DEPARTMENT OF HOMELAND SECURITY

The Department of Homeland Security (DHS) protects the American people from a wide range of foreign and domestic threats. DHS has a broad and diverse mission set, including to prevent and disrupt terrorist attacks, protect critical infrastructure and civilian computer networks, facilitate lawful trade and travel, respond to and recover from natural disasters, protect our borders, and regulate the migration of individuals to and from our country.  

The third largest Cabinet department, DHS employs more than 250,000 people and deploys an $58 billion annual budget across more than 20 components, including the U.S. Secret Service, Transportation Security Administration, Federal Emergency Management Agency, U.S. Coast Guard, U. S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, and the Cybersecurity and Infrastructure Security Agency. The Homeland Security Act of 2002 established the Department in response to the terrorist attacks of September 11, 2001 and brought together 22 executive branch agencies. 

The Assistant to the President for Homeland Security and the Secretary of Homeland Security coordinate policy, including through the Homeland Security Council at the White House and in cooperation with other defense and intelligence agencies.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

The Department of Housing and Urban Development (HUD) is the federal agency responsible for national policies and programs that address America’s housing needs, improve and develop the nation’s communities, and enforce fair housing laws. The Department plays a major role in supporting homeownership for low- and moderate-income families through its mortgage insurance and rent subsidy programs.

Offices within HUD include the Federal Housing Administration, which provides mortgage and loan insurance; the Office of Fair Housing and Equal Opportunity, which ensures all Americans equal access to the housing of their choice; and the Community Development Block Grant Program, which helps communities with economic development, job opportunities, and housing rehabilitation. HUD also administers public housing and homeless assistance.

The Secretary of Housing and Urban Development oversees more than 9,000 employees with a budget of approximately $40 billion.

DEPARTMENT OF THE INTERIOR

The Department of the Interior (DOI) is the nation’s principal conservation agency. Its mission is to protect America’s natural resources, offer recreation opportunities, conduct scientific research, conserve and protect fish and wildlife, and honor the U.S. government’s responsibilities to American Indians, Alaskan Natives, and to island communities.

DOI manages approximately 500 million acres of surface land, or about one-fifth of the land in the United States, and manages hundreds of dams and reservoirs. Agencies within the DOI include the Bureau of Indian Affairs, the Fish and Wildlife Service, and the U.S. Geological Survey. The DOI manages the national parks and is tasked with protecting endangered species.

The Secretary of the Interior oversees about 70,000 employees and 200,000 volunteers on a budget of approximately $16 billion. Every year it raises billions in revenue from energy, mineral, grazing, and timber leases, as well as recreational permits and land sales.

DEPARTMENT OF JUSTICE

The mission of the Department of Justice (DOJ) is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.

The DOJ is made up of 40 component organizations, including the Drug Enforcement Administration, the Federal Bureau of Investigation, the U.S. Marshals, and the Federal Bureau of Prisons. The Attorney General is the head of the DOJ and chief law enforcement officer of the federal government. The Attorney General represents the United States in legal matters, advises the President and the heads of the executive departments of the government, and occasionally appears in person before the Supreme Court.

With a budget of approximately $25 billion, the DOJ is the world’s largest law office and the central agency for the enforcement of federal laws.

DEPARTMENT OF LABOR

The Department of Labor oversees federal programs for ensuring a strong American workforce. These programs address job training, safe working conditions, minimum hourly wage and overtime pay, employment discrimination, and unemployment insurance.

The Department of Labor’s mission is to foster and promote the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements.

Offices within the Department of Labor the Occupational Safety & Health Administration, which promotes the safety and health of America’s working men and women, and the Bureau of Labor Statistics, the federal government’s principal statistics agency for labor economics, and.

The Secretary of Labor oversees 15,000 employees on a budget of approximately $12 billion.

DEPARTMENT OF STATE

The Department of State plays the lead role in developing and implementing the President’s foreign policy. Major responsibilities include United States representation abroad, foreign assistance, foreign military training programs, countering international crime, and a wide assortment of services to U.S. citizens and foreign nationals seeking entrance to the United States.

The U.S. maintains diplomatic relations with approximately 180 countries — each posted by civilian U.S. Foreign Service employees — as well as with international organizations. At home, more than 5,000 civil employees carry out the mission of the Department.

The Secretary of State serves as the President’s top foreign policy adviser, and oversees 30,000 employees and a budget of approximately $35 billion.

DEPARTMENT OF TRANSPORTATION

The mission of the Department of Transportation (DOT) is to ensure a fast, safe, efficient, accessible and convenient transportation system that meets our vital national interests and enhances the quality of life of the American people.

Organizations within the DOT include the Federal Highway Administration, the Federal Aviation Administration, the National Highway Traffic Safety Administration, the Federal Transit Administration, the Federal Railroad Administration and the Maritime Administration.

The U.S. Secretary of Transportation oversees nearly 55,000 employees and a budget of approximately $70 billion.

DEPARTMENT OF THE TREASURY

The Department of the Treasury is responsible for promoting inclusive economic prosperity for all Americans.

The Department advances U.S. and global economic growth to raise American standards of living, support communities, promote racial justice, combat climate change, and foster financial stability. The Department operates systems that are critical to the nation’s financial infrastructure, such as the production of coin and currency, the disbursement of payments owed to the American public, the collection of necessary taxes, and the borrowing of funds required by congressional enactments to run the federal government. The Treasury Department also performs a critical role in enhancing national security by safeguarding our financial systems, implementing economic sanctions against foreign threats to the U.S., and identifying and targeting financial support networks that threaten our national security.

The Secretary of the Treasury oversees a budget of approximately $13 billion and a staff of more than 100,000 employees.

DEPARTMENT OF VETERANS AFFAIRS

The Department of Veterans Affairs is responsible for administering benefit programs for veterans, their families, and their survivors. These benefits include pension, education, disability compensation, home loans, life insurance, vocational rehabilitation, survivor support, medical care, and burial benefits. Veterans Affairs became a cabinet-level department in 1989.

Of the 25 million veterans currently alive, nearly three of every four served during a war or an official period of hostility. About a quarter of the nation’s population — approximately 70 million people — are potentially eligible for V.A. benefits and services because they are veterans, family members, or survivors of veterans.

The Secretary of Veterans Affairs oversees a budget of approximately $90 billion and a staff of approximately 235,000 employees.

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The first amendment, module 8: the presidency and executive power.

Article II of the Constitution establishes the executive branch of the national government, headed by a single President. Article II outlines the method for electing the President, the scope of the President’s powers and duties, and the process of removing one from office. The President’s primary responsibility is to carry out the executive branch’s core function—namely, enforcing the nation’s laws. From the debates over how to structure the Presidency at the Constitutional Convention to modern debates over executive orders, this module will explore the important role of the President in our constitutional system. 

Download all materials for this module as a PDF

Learning Objectives

• Discuss Article II of the Constitution and outline the requirements to be president, the election process, and the President’s primary powers and duties.
• Examine the origins of the Presidency and describe the Founders’ vision for the  nation’s chief executive.
• Describe how the President’s role in our constitutional system has changed over time.
• Review the role of the Supreme Court and Congress in checking the President.
• Define what an executive order is, understand the roots of the President’s authority to issue executive orders, and study the role of executive orders in our government over time.
• Analyze competing constitutional visions of the Presidency over time.

8.1 Activity: Jobs of the President

• Student Instructions
• Teacher Notes

Purpose Article II “vest[s]” the “executive Power . . . of the United States” in a single president. It sets out the details for how we elect a president (namely, through the Electoral College) and how we might remove one from office (namely, through the impeachment and removal process). It also lists some of the president’s core powers and responsibilities. In this activity, you will explore the role of the president in our constitutional system. 

Process Read the first line of Article II of the Constitution. 

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

Think about executive power and participate in a class discussion facilitated by your teacher. Answer the following questions:

• What reactions do you have to the opening text of Article II? What do you think it means?
• What is “the executive Power?”
• This text tells us that the Founding generation created a single chief executive—the president. Why do you think the founders decided to place the executive power in the hands of a single person rather than a committee? What are the benefits of a single chief executive? What are the potential downsides?
• What is the role/job of the executive branch? Who else is part of the executive branch?

After discussing the first line of Article II with your class, brainstorm a current list of roles/jobs for the president. Record them and share with your classmates.

Review the Info Brief: Presidential Roles document for a comprehensive list.

Launch Provide students with a summary of the three branches of government. Within the national government, the executive branch is responsible for enforcing the laws. We commonly think of the president as the most powerful elected office in all of the world. Yet, the Constitution actually grants far fewer explicit powers to the president in Article II than it does to the Congress in Article I.

Give students time to read the first line of Article II. 

Over the course of the week, ask students to try to match some of the key jobs of the president with what is spelled out in the Constitution.

Note: The 22nd Amendment limits the president to two terms in office. This is an example of a norm established by George Washington, held over time, violated by Franklin Delano Roosevelt, and then written into the Constitution. This is a great example to share with students of how a presidential norm may be written into the Constitution.

Activity Synthesis Ask students to discuss recent presidents and the roles they took on during their terms in office.

Activity Extension (optional) Now that students have a better understanding of the roles/jobs of the president, ask them to find a news article that demonstrates one or more roles of the president.

You can also ask students to speak to at least two adults and two peers outside of class, ask them the following questions, and write down their responses.

• What is the job of the president?
• What is the job of the executive branch?

8.1 Info Brief: Presidential Roles

8.2 activity: how does the presidency work.

Purpose In this activity, you will continue to explore the presidential jobs that are spelled out by the Constitution.

Process Review the text of Article II and the Interactive Constitution essays on Article II - The Executive Branch to help complete the Activity Guide: How does the Presidency Work? worksheet.

Review the following sections in the Constitution and the Interactive Constitution Common Essays:

• Text of the Constitution
• Common Interpretation

Compare your worksheet to the list you created as a class in the previous activity. Be prepared to discuss the similarities and differences as a class.

Launch Give students time to identify from memory as many roles/jobs of the president as they can remember from the previous activity. Compare that list to the list of roles/jobs that the adults and peers they asked identified.

Direct students to the text of Article II and the Interactive Constitution essays on Article II - The Executive Branch . Build a list of powers and duties for the president. Then, compare the crowdsourced list with the list developed from the primary and scholarly sources (the Constitution’s text and the Constitution essays). 

Review the following sections in the Constitution :

Activity Synthesis When the comparison is complete, students could build a “Job Posting Advertisement” for a presidential candidate. Have students share ads with their classmates for review and discussion. 

Activity Extension (optional) Review the resumes/background of several former presidents. Do you notice any patterns among the presidents? Does anyone stand out as having a unique background?  

8.2 Activity Guide: How does the Presidency Work?

8.3 video activity: the presidency.

Purpose In this activity, you will view a video on the presidency and what the Constitution says about it. 

Process Watch the following video about the presidency.

Then, complete the Video Reflection: The Presidency worksheet.

Identify any areas that are unclear to you or where you would like further explanation. Be prepared to discuss your answers in a group and to ask your teacher any remaining questions.

Launch Give students time to watch the video and take notes to support their notetaking skills.

Activity Synthesis Have students share their notes with a classmate and then review as a class. 

Activity Extension (optional) Now that students have a better understanding of the presidency, ask them to identify what informal qualifications a president should have to be successful. 

8.3 Video Reflection: The Presidency

8.4 activity: electoral college.

Purpose The delegates engaged in many debates over the presidency. One key debate involved the issue of how to elect the president. Today, many democratic nations elect their executives by direct popular vote. But we don’t. Instead, we use a system known as the “Electoral College.”  

In this activity, you will read two sources to understand the founders’ debates over how to elect a president and their vision for the Electoral College. You will also reflect on the Electoral College now versus back when it was created.

• Info Brief: Electoral College
• NCC Scholar Exchange: The Electoral College
• Interactive Constitution Essay on the Electoral College
• Review the Info Brief: Key Debate Notes and examine the key debates around electing the president and other compromises among delegates that led to the Electoral College.
• Be prepared to discuss what you have read and viewed.

Launch Give students time to read the briefing sheet on the Electoral College and watch this short video.  Review the key readings and debates and then examine the ideas and compromises as a group.

Activity Synthesis Have students share their thoughts about the proposals for how to elect a president and discuss positive and negative aspects of each. Ask students if they think the Electoral College, as it functions today, should be eliminated, changed, or stay the same. 

Activity Extension (optional) Have students run for president and then have the rest of the class divided into the states to vote for their preferred candidate, replicating the Electoral College. Have each candidate select (or select for them) a campaign manager. The campaign manager's job is to build a strategy for targeting which states they think will be most useful to gain the electoral votes needed. Have the campaign teams visit only five groups of students (replicating scarcity of time and money on the campaign trail), making strategy a key component in securing victory. Have students vote by state groups and individually to examine who wins the popular vote and who wins the Electoral College.

8.4 Info Brief: Electoral College

8.4 info brief: key debate notes, 8.5 activity: test of presidential power.

Purpose There are still many ongoing debates over presidential power. When it comes to presidential power, the core constitutional question often comes down to this: Can the president do that? Over time, the Supreme Court has provided some guidance on how to analyze this important question.

In this activity, you will examine a major test of presidential power, the Supreme Court’s landmark decision in Youngstown Sheet & Tube Co. v. Sawyer (1952) , also known as “ The Steel Seizure Case .” 

Process Begin by reading excerpts from Primary Source: Youngstown Sheet & Tube Co. v. Sawyer (1952) and reviewing your notes from Activity 8.3 and reference your notes from the Info Brief: Methods of Constitutional Interpretation from module one. If you would like to watch the video again, starting at timestamp 12:25. 

This landmark case took place during the Korean War. Steel workers were going on strike and President Truman responded by seizing the steel mills. He argued that a steel strike was a threat to national security because the Army needed steel to conduct the war. Therefore, he had the constitutional authority to act on his own—in other words, without explicit congressional approval—under his Article II commander in chief power.  

After reviewing the primary source and video, complete the Case Brief: Test of Presidential Power  worksheet.

Launch Give students time to read excerpts from Primary Source: Youngstown Sheet & Tube Co. v. Sawyer (1952), review your notes from the earlier video, and answer the questions provided.

Activity Synthesis Have students share their responses to the questions and discuss as appropriate.  Ask students how the presidency today compares to the founders’ vision.

Activity Extension (optional) Have students review other court cases related to presidential power.

• United States v. Nixon
• Chevron v. Natural Resources Defense Council, Inc.
• Morrison v. Olson
• Zivotofsky v. Kerry

8.5 Primary Source: Youngstown Sheet & Tube Co. v. Sawyer (1952)

8.5 info brief: methods of constitutional interpretation, 8.5 case brief: tests of presidential power, 8.6 activity: analyzing executive orders.

Purpose One of the key debates over presidential power today involves the president’s use of executive orders. Defenders of presidential power argue that executive orders are central to the president’s core responsibilities of overseeing the executive branch and enforcing laws already passed by Congress. Critics of presidential power often argue that presidents (of both parties) use executive orders to stretch their powers—using them to command executive-branch officials to promote policies that they can’t get Congress to enact into law. In this activity, you will examine executive orders and how they have evolved over time. 

Process In your group, review the following resources:

• Executive Orders Data
• Info Brief: Executive Orders
• Interactive Constitution Article II, Section 3 by William Marshall

Record your answer to the following questions and prepare to discuss.

• What is an executive order?
• Where does the president get her authority to issue executive orders?
• Which president used executive orders the most? The least?
• Who are the three that used them the least?
• Has the use of executive orders changed over time? Can you chart the numbers to see a pattern?
• Are there any eras where you see a boost in executive orders? Why do you think that would be the case? What do you know about that time period? 
• How have executive orders changed the role/job of the president? What are some of the benefits of executive orders? What are some of the dangers?

Then, review Activity Guide: Quotes on Visions of Presidential Power . Try to guess which quote belongs to which key historical figure. As a class, compare the different viewpoints on presidential power.

Launch Give students time to review executive orders resources and answer the questions. Three sources to review are as follows:

Activity Synthesis Have students record their answer to the following questions and review as full class.

Ask students to summarize the information from the lesson in three to five sentences. 

Activity Extension (optional) When it comes to presidential power, the constitutional question often comes down to this: Can the president do that?

Discuss the following examples with your class.

• Can her administration issue a sweeping regulation to regulate air pollution? 
• What about one to require everyone in the nation to wear a mask? Or to stay at home? 
• Can she send American troops to another country to overthrow that dictator?

Review a news item about executive orders today and see what leading questions are being posed on the balance of executive powers. 

8.6 Info Brief: Executive Orders

8.6 activity guide: quotes on visions of presidential power, 8.7 test your knowledge.

Congratulations for completing the activities in this module! Now it’s time to apply what you have learned about the basic ideas and concepts covered.

Complete the questions in the following quiz to test your knowledge.

This activity will help students determine their overall understanding of module concepts. It is recommended that questions are completed electronically so immediate feedback is provided, but a downloadable copy of the questions (with answer key) is also available.

8.7 Interactive Knowledge Check: The Executive Branch and Electoral College

8.7 printable knowledge check: the executive branch and electoral college, previous module, module 7: the legislative branch: how congress works, next module, module 9: the judicial system and current cases.

Article III of the Constitution establishes the judicial branch of the national government, which is responsible for interpreting the laws. At the highest level, the judicial branch is led by the U.S. Supreme Court, which consists of nine Justices. In the federal system, the lower courts consist of the district courts and the courts of appeals. Federal courts—including the Supreme Court—exercise the power of judicial review. This power gives courts the authority to rule on the constitutionality of laws passed (and actions taken) by the elected branches. The Cons...

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Handout A: Background Essay – The Balance of Power between the Legislative and Executive Branches

Background Essay—The Balance of Power Between the Legislative and Executive Branches

Directions: Read the essay and answer the critical thinking questions at the end.

The constitutional principles of the American Founding that guided American politics before the Civil War were increasingly altered as a new approach to governance become predominant in the early twentieth century. The rise of an administrative state centralized more power in the hands of federal agencies in the executive branch and blurred the relationship of the branches of government and their respective constitutional powers. Even though the Constitution specifically granted authority to Congress to regulate interstate commerce in its enumerated powers in Article I, Section 8, Congress increasingly delegated that authority to the executive branch.

In the late nineteenth century, railroads and corporations began to grow exponentially as big business became larger through waves of mergers. Soon, trusts began to exercise monopolistic control over several industries and over the broader economy. Although they benefitted workers with jobs and often consumers with falling prices on goods, they also created an incredibly wealthy ruling class that formed corrupt ties to politicians.

Many Americans began to fear the effects of the rise of big business. Progressive thinkers of the late nineteenth and early twentieth centuries advocated the idea that only the federal government had the national power to regulate business. They believed that educated, scientific experts could rationalize the economic and social order by bringing efficiency to the marketplace. The experts would regulate business from the bureaucracy with new executive agencies where they would supposedly be free from political decision-making and its potential for corruption.

The Congress passed the Interstate Commerce Act in 1887 and the Sherman Anti-Trust Act in 1890 to regulate railroads and big business. The Justice Department prosecuted illegal trusts in industry, and Congress created the Interstate Commerce Commission (ICC) to monitor the rates railroads charged and regulate other trade practices.

During the presidencies of Theodore Roosevelt and Woodrow Wilson, Congress significantly increased the number of executive agencies to regulate commerce. Roosevelt argued that, “Corporations should be managed with due regard of the public as a whole,” and presided over a large expansion of federal regulatory power. The Hepburn Act (1906) increased the ICC’s power and allowed it to set rates for railroad shipping. The uproar over Upton Sinclair’s The Jungle led to the passage of the Meat Inspection Act and the Pure Food and Drug Act of 1906, which created the Food and Drug Administration (FDA) with additional power over interstate commerce. Therefore, Congress delegated its authority to administrative agencies.

President Woodrow Wilson also supported enhancing executive authority over interstate commerce. He asserted that progressives sought to “interpret the Constitution according to the Darwinian principle” of a living Constitution with new meanings in different ages. Congress passed several key pieces of legislation that delegated authority to the executive to manage the economy. The most important were the Federal Reserve Act (1913), which established the Federal Reserve, and the Clayton Antitrust Act (1914),which created the Federal Trade Commission with power to manage competitive practices. World War I greatly enhanced federal executive power as the government nationalized the railroads and the War Industries Board directed the wartime economy. The executive had assumed many of powers constitutionally granted to Congress.

The progressive vision of the administrative state regulating the economy and commerce continued in the New Deal. President Franklin D. Roosevelt and a Democratic Congress struggled to find a way to deal with the worldwide crisis of the Great Depression. As the economy collapsed and unemployment skyrocketed, Congress passed a number of emergency laws with more regard for relieving suffering and stimulating the economy than worrying about the strict constitutionality of legislation.

Congress passed the National Industrial Recovery Act (NIRA) in 1933 and suspended antitrust legislation due to the economic emergency and allowed for “industrial self-regulation.” It created the National Recovery Administration (NRA) which was an executive agency that worked with business to set production quotas, prices of goods, and wages for each industry. The NRA (instead of Congress) regulated commerce between the states and within states.

The NIRA angered most constituencies that it was supposed to help. Big business resented the intrusion and regulation, consumers were angry over rising prices, and workers felt the promised right to strike was not adequately protected. Journalist Walter Lippmann complained, “The excessive centralization… [is] producing a revulsion of feeling against bureaucratic control of American economic life.” President Roosevelt defended economic cooperation and regulation against the former “individual self-interest and group selfishness” that he argued characterized American capitalism. The NIRA was quickly challenged in the courts and a case made its way to the Supreme Court.

The Schechter brothers owned two kosher butcher shops in New York City and operated under minute NRA regulations that controlled every step in how chickens were sold to a customer. The government accused them of selling unhealthy chickens and violating several parts of the poultry codes. The “sick chicken” case was decided by the Supreme Court in 1935.

In Schechter Poultry Corp. v. United States (1935), the Supreme Court unanimously ruled that the NIRA was unconstitutional. Since the Schechter slaughterhouses conducted business within the state of New York, Congress (or any executive agency) could not regulate intrastate trade. More importantly, the Court held that Congress could not delegate its authority of regulating commerce to an executive agency such as the NRA since it violated the separation of powers. Justice Louis Brandeis even privately told administration officials: “I want you to go back and tell the president that we’re not going to let this government centralize everything.”

President Roosevelt was furious that the Court had restricted his ability to use the New Deal to resolve the economic crises as he and Congress saw fit. At a press conference, Roosevelt told reporters, “We have been relegated to the horse-and-buggy definition of interstate commerce.”

Nevertheless, the Supreme Court relented to Roosevelt’s expansive vision of federal regulatory power through the commerce clause a few years later. Congress continued to transfer its authority over regulating interstate commerce to the executive branch which continued to grow in power throughout the twentieth century.

This delegation of legislative power over to federal agencies fundamentally changed Congress. Instead of a deliberative body, representing the people in the creation of laws, Congress became more of an oversight body, which assumed the ability to supervise the dozens of newly-established agencies. Since Congress created and authorized the agencies (and funded them, too), Congress could intervene when an agency took the wrong course of action. Now an oversight body as opposed to a lawmaking body, Congress placed more authority in its committees to hold oversight hearings and monitor the administrative state in other ways.

Other institutions adapted to delegation as well. The president, in particular, began to use the bureaucracy to make policy outside of the legislative process, through executive actions in which Congress was not involved. And the people began to look more to the president as a policymaker than their elected representatives in Congress.

CRITICAL THINKING QUESTIONS

• What is an administrative state? How did the United States shift to being more administrative in policies and procedures?
• What were/are the effects of Congress delegating power to executive agencies?
• Why were anti-trust measures put in place by Congress? Were they necessary? Were they effective?
• In your opinion, has a growth in executive power infringed upon or supported constitutional principles? Explain your answer.

The Authorship of Federalist 78: Exploring its Significance

This essay about Federalist 78 highlights its significance in American constitutional history authored by Alexander Hamilton. It discusses Hamilton’s arguments for judicial independence and the judiciary’s role in checking legislative and executive powers. The essay explains how Hamilton’s ideas laid the groundwork for judicial review and emphasizes the enduring relevance of Federalist 78 in maintaining a balanced and resilient government.

How it works

Federalism 78 central document in constitutional American history stands so as precept force and foresight his author intellectual. Written in one flow from discuss ratifications federalism 78 articulates principles lay to sleep in basis a role branch judicial authority in borders the federal government small offered from those pores. Added Alexander Hamilton only from one found fathers and key defender for a federal strong government charts federalism 78 role judicial authority criticizes in manners an aplomb forces.

Hamilton celebrates his cutting prose and deeply understands political philosophy locked a 78 federalism under a pseudonym “Publius” ?????? with federalisms John jay and James Madison friends.

While unit three played in favour of perceptibly papers federalist account Hamilton and legal penetrating distinctive dismiss he despite a 78 federalism. He discusses passionately for judicial independence declares that delegations judicial authority to interpret laws and to give up an anticonstitutionnelle legislation have large importance for an escort individual rights and manners constitutional order.

In Federalist 78 Hamilton expounds on the concept of judicial review asserting that the judiciary must serve as a check on the legislative and executive branches to prevent tyranny and ensure the rule of law. His arguments laid the groundwork for the principle of judicial review which was later affirmed by the landmark Supreme Court case Marbury v. Madison in 1803.

The enduring relevance of Federalist 78 lies not only in its defense of judicial independence but also in its reflection of broader constitutional principles. Hamilton’s advocacy for a judiciary insulated from political pressures resonates today highlighting the ongoing importance of an impartial judiciary in upholding constitutional norms and protecting individual liberties.

In conclusion while Federalist 78 is often attributed to Alexander Hamilton its enduring influence extends beyond its authorship. It remains a cornerstone of American constitutional theory reflecting the Founders’ commitment to creating a balanced and resilient government. Hamilton’s articulation of judicial independence and the role of the judiciary continues to inform debates on constitutional interpretation and the separation of powers ensuring that Federalist 78 remains a seminal work in American political thought.

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What it means for the Supreme Court to throw out Chevron decision, undercutting federal regulators

FILE- Gulls follow a commercial fishing boat as crewmen haul in their catch in the Gulf of Maine, in this Jan. 17, 2012 file photo. TExecutive branch agencies will likely have more difficulty regulating the environment, public health, workplace safety and other issues under a far-reaching decision by the Supreme Court. The court’s 6-3 ruling on Friday overturned a 1984 decision colloquially known as Chevron that has instructed lower courts to defer to federal agencies when laws passed by Congress are not crystal clear. (AP Photo/Robert F. Bukaty, File)

The Supreme Court building is seen on Friday, June 28, 2024, in Washington. (AP Photo/Mark Schiefelbein)

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WASHINGTON (AP) — Executive branch agencies will likely have more difficulty regulating the environment, public health, workplace safety and other issues under a far-reaching decision by the Supreme Court .

The court’s 6-3 ruling on Friday overturned a 1984 decision colloquially known as Chevron that has instructed lower courts to defer to federal agencies when laws passed by Congress are not crystal clear.

The 40-year-old decision has been the basis for upholding thousands of regulations by dozens of federal agencies, but has long been a target of conservatives and business groups who argue that it grants too much power to the executive branch, or what some critics call the administrative state.

The Biden administration has defended the law, warning that overturning so-called Chevron deference would be destabilizing and could bring a “convulsive shock” to the nation’s legal system.

Chief Justice John Roberts, writing for the court, said federal judges “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

The ruling does not call into question prior cases that relied on the Chevron doctrine, Roberts wrote.

Here is a look at the court’s decision and the implications for government regulations going forward.

What is the Chevron decision?

Atlantic herring fishermen sued over federal rules requiring them to pay for independent observers to monitor their catch. The fishermen argued that the 1976 Magnuson-Stevens Fishery Conservation and Management Act did not authorize officials to create industry-funded monitoring requirements and that the National Marine Fisheries Service failed to follow proper rulemaking procedure.

In two related cases, the fishermen asked the court to overturn the 40-year-old Chevron doctrine, which stems from a unanimous Supreme Court case involving the energy giant in a dispute over the Clean Air Act. That ruling said judges should defer to the executive branch when laws passed by Congress are ambiguous.

In that case, the court upheld an action by the Environmental Protection Agency under then-President Ronald Reagan.

In the decades following the ruling, Chevron has been a bedrock of modern administrative law, requiring judges to defer to agencies’ reasonable interpretations of congressional statutes.

But the current high court, with a 6-3 conservative majority has been increasingly skeptical of the powers of federal agencies. Justices Brett Kavanaugh, Clarence Thomas, Samuel Alito and Neil Gorsuch have questioned the Chevron decision. Ironically, it was Gorsuch’s mother, former EPA Administrator Anne Gorsuch, who made the decision that the Supreme Court upheld in 1984.

What’s at stake?

With a closely divided Congress, presidential administrations have increasingly turned to federal regulation to implement policy changes. Federal rules impact virtually every aspect of everyday life, from the food we eat and the cars we drive to the air we breathe and homes we live in.

President Joe Biden’s administration, for example, has issued a host of new regulations on the environment and other priorities, including restrictions on emissions from power plants and vehicle tailpipes , and rules on student loan forgiveness , overtime pay and affordable housing.

Those actions and others could be opened up to legal challenges if judges are allowed to discount or disregard the expertise of the executive-branch agencies that put them into place.

With billions of dollars potentially at stake, groups representing the gun industry and other businesses such as tobacco, agriculture, timber and homebuilding, were among those pressing the justices to overturn the Chevron doctrine and weaken government regulation.

The U.S. Chamber of Commerce filed an amicus brief last year on behalf of business groups arguing that modern application of Chevron has “fostered aggrandizement’’ of the executive branch at the expense of Congress and the courts.

David Doniger, a lawyer and longtime Natural Resources Defense Council official who argued the original Chevron case in 1984, said he feared that a ruling to overturn the doctrine could “free judges to be radical activists” who could “effectively rewrite our laws and block the protections they are supposed to provide.”

“The net effect will be to weaken our government’s ability to meet the real problems the world is throwing at us — big things like COVID and climate change,″ Doniger said.

More than just fish

“This case was never just about fish,’' said Meredith Moore of the environmental group Ocean Conservancy. Instead, businesses and other interest groups used the herring fishery “to attack the foundations of the public agencies that serve the American public and conserve our natural resources,’' she said.

The court ruling will likely open the floodgates to litigation that could erode critical protections for people and the environment, Moore and other advocates said.

“For more than 30 years, fishery observers have successfully helped ensure that our oceans are responsibly managed so that fishing can continue in the future,’' said Dustin Cranor of Oceana, another conservation group.

He called the case “just the latest example of the far right trying to undermine the federal government’s ability to protect our oceans, waters, public lands, clean air and health.’'

West Virginia Attorney General Patrick Morrisey called the decision a fitting follow-up to a 2022 decision — in a case he brought — that limits the EPA’s ability to control greenhouse gas emissions from power plants. The court held that Congress must speak with specificity when it wants to give an agency authority to regulate on an issue of major national significance.

Morrisey, now the GOP nominee for governor, called Chevron “a misguided doctrine under which courts defer to legally dubious interpretations of statutes put out by federal administrative agencies.”

A shift toward judicial power

The Supreme Court ruling will almost certainly shift power away from the executive branch and Congress and toward courts, said Craig Green, a professor at Temple University’s Beasley School of Law.

“Federal judges will now have the first and final word about what statutes mean,″ he said. “That’s a big shift in power.″

In what some observers see as a historic irony, many conservatives who now attack Chevron once celebrated it. The late Supreme Court Justice Antonin Scalia was among those who hailed the original ruling as a way to rein in liberal laws.

“Conservatives believed in this rule until they didn’t,’' Green said in an interview.

In recent years, conservatives have focused on “deconstruction of the administrative state,’' even if the result lessens the ability of a conservative president to impose his beliefs on government agencies.

“If you weaken the federal government, you get less government,’' Green said — an outcome that many conservatives, including those who back former President Donald Trump, welcome.

The ruling will likely “gum up the works for federal agencies and make it even harder for them to address big problems. Which is precisely what the critics of Chevron want,” said Jody Freeman, director of the environmental and energy law program at Harvard Law School.

Supreme Court delivers blow to power of federal agencies, overturning 40-year-old precedent

WASHINGTON — The Supreme Court on Friday overturned a 40-year-old precedent that has been a target of the right because it is seen as bolstering the power of “deep state” bureaucrats.

In a ruling involving a challenge to a fisheries regulation, the court consigned to history a 1984 ruling called Chevron v. Natural Resources Defense Council. That decision had said judges should defer to federal agencies in interpreting the law when the language of a statute is ambiguous, thereby giving regulatory flexibility to bureaucrats.

It is the latest in a series of rulings in which the conservative justices have taken aim at the power of federal agencies, including one on Thursday involving in-house Securities and Exchange Commission adjudications. The ruling was 6-3, with the conservative justices in the majority and liberal justices dissenting.

“Chevron is overruled,” Chief Justice John Roberts wrote in the majority opinion. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

He said that the ruling does not cast into doubt prior cases that relied on the precedent, but going forward lower courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

Liberal Justice Elena Kagan wrote in dissent that a “longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority.”

The ruling would hobble agencies with specialized scientific knowledge that will now be second-guessed by federal judges, she said.

“It puts courts at the apex of the administrative process as to every conceivable subject — because there are always gaps and ambiguities in regulatory statutes, and often of great import,” she added.

“What actions can be taken to address climate change or other environmental challenges? What will the nation's health-care system look like in the coming decades? Or the financial and transportation systems? What rules are going to constrain the development of AI?” Kagan wrote.

At the time it was decided, Chevron was a win for the deregulatory efforts of the Reagan administration. It was initially seen as a benefit to Republican officials in the administration who wanted to make regulations less onerous on businesses.

In practice, the ruling meant that both Democratic and Republican presidents could take advantage of the flexibility it gave to agencies in implementing new regulations on a wide variety of issues.

But Chevron over the years became increasingly criticized on the right because of the claim that it gives too much power to agency bureaucrats to interpret the law.

Groups on the left, including environmental activists, have defended Chevron, in part because it gives leeway to address issues like climate change.

Vickie Patton, general counsel of the Environmental Defense Fund, warned in a statement that the ruling is an impediment to ensuring clean air and water as well as climate policies.

“It undermines vital protections for the American people at the behest of powerful polluters,” she added.

The underlying issue before the justices concerned a federal regulation that would require fishing vessel operators to help fund the cost of collecting data that would assist with fishery conservation and management.

Roman Martinez, a lawyer for some of the challengers, said the court “has taken a major step to preserve the separation of powers and shut down unlawful agency overreach.”

Operators of fishing vessels active in the herring fishery off the Atlantic coast challenged the 2020 rule applying to New England fisheries. Lower courts in both cases ruled for the federal government.

The challengers argued that the National Marine Fisheries Service, the federal body that oversees ocean resources, did not have authority to issue the regulation under the 1976 Magnuson-Stevens Fishery Conservation and Management Act.

The rule implemented a monitoring program that vessel operators are required to fund. The challengers said that operators would have to pay up to $710 a day at certain times for independent observers to board their vessels and monitor operations. The cost would be burdensome for small owner-operators, the challengers said.

The fisheries dispute is one of several in the current court term in which the justices are considering attacks on federal agency power led by business interests and the conservative legal movement.

The Trump administration had embraced the war on “deep state” agency power, selecting judicial nominees in part based on their  hostility to the federal bureaucracy . The Supreme Court’s conservative majority includes three Trump appointees:   Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

The Supreme Court has already addressed the issue of agencies exerting broad power without clear congressional instructions from another angle in recent rulings that struck down President Joe Biden’s federal student loan debt relief plan, blocked his Covid vaccination-or-test requirement for larger businesses, and curbed the EPA’s authority to limit carbon emissions from power plants.

Those cases did not rely on the Chevron analysis but instead said simply that on issues of broad national impact, there needs to be an explicit authorization from Congress, an approach known as the “major questions doctrine.”

Lawrence Hurley covers the Supreme Court for NBC News.

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Checks and Balances

By: History.com Editors

Updated: July 27, 2023 | Original: November 17, 2017

The system of checks and balances in government was developed to ensure that no one branch of government would become too powerful. The framers of the U.S. Constitution built a system that divides power between the three branches of the U.S. government—legislative, executive and judicial—and includes various limits and controls on the powers of each branch.

Separation of Powers

The idea that a just and fair government must divide power between various branches did not originate at the Constitutional Convention , but has deep philosophical and historical roots.

In his analysis of the government of Ancient Rome , the Greek statesman and historian Polybius identified it as a “mixed” regime with three branches: monarchy (the consul, or chief magistrate), aristocracy (the Senate) and democracy (the people). These concepts greatly influenced later ideas about separation of powers being crucial to a well-functioning government.

Centuries later, the Enlightenment philosopher Baron de Montesquieu wrote of despotism as the primary threat in any government. In his famous work “The Spirit of the Laws,” Montesquieu argued that the best way to prevent this was through a separation of powers, in which different bodies of government exercised legislative, executive and judicial power, with all these bodies subject to the rule of law.

The U.S. System of Checks and Balances

Building on the ideas of Polybius, Montesquieu, William Blackstone, John Locke  and other philosophers and political scientists over the centuries, the framers of the U.S. Constitution divided the powers and responsibilities of the new federal government among three branches: the legislative branch , the executive branch and the judicial branch .

In addition to this separation of powers, the framers built a system of checks and balances designed to guard against tyranny by ensuring that no branch would grab too much power.

“If men were angels, no government would be necessary,” James Madison  wrote in the Federalist Papers , of the necessity for checks and balances. “In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Checks and Balances Examples

Checks and balances operate throughout the U.S. government, as each branch exercises certain powers that can be checked by the powers given to the other two branches.

• The president (head of the executive branch) serves as commander in chief of the military forces, but Congress (legislative branch) appropriates funds for the military and votes to declare war. In addition, the Senate must ratify any peace treaties.
• Congress has the power of the purse, as it controls the money used to fund any executive actions.
• The president nominates federal officials, but the Senate confirms those nominations.
• Within the legislative branch, each house of Congress serves as a check on possible abuses of power by the other. Both the House of Representatives and the Senate have to pass a bill in the same form for it to become law.
• Veto power. Once Congress has passed a bill, the president has the power to veto that bill. In turn, Congress can override a regular presidential veto by a two-thirds vote of both houses.
• The Supreme Court and other federal courts (judicial branch) can declare laws or presidential actions unconstitutional, in a process known as judicial review.
• In turn, the president checks the judiciary through the power of appointment, which can be used to change the direction of the federal courts
• By passing amendments to the Constitution, Congress can effectively check the decisions of the Supreme Court. But an amendment must either be proposed by Congress with a two-thirds majority vote in both the  House of Representatives  and the  Senate , or by a constitutional convention called for by two-thirds of state legislatures. Either way, a proposed amendment only becomes part of the Constitution when ratified by legislatures or conventions in three-fourths of the states (38 of 50 states).
• Congress (considered the branch of government closest to the people) can impeach both members of the executive and judicial branches.

Checks and Balances in Action

The system of checks and balances has been tested numerous times throughout the centuries since the Constitution was ratified.

In particular, the power of the executive branch has expanded greatly since the 19th Century, disrupting the initial balance intended by the framers. Presidential vetoes—and congressional overrides of those vetoes—tend to fuel controversy, as do congressional rejections of presidential appointments and judicial rulings against legislative or executive actions. 

Executive orders, official directives issued to federal agencies by the president, are powers afforded to the executive branch that do not require congressional approval. They are not directly provided for in the U.S. Constitution, but rather implied by Article II, which states that the president “shall take Care that the Laws be faithfully executed.” Executive orders can only push through policy changes; they cannot create new laws or appropriate funds from the United States treasury. 

Overall, the system of checks and balances has functioned as it was intended, ensuring that the three branches operate in balance with one another.

Roosevelt and the Supreme Court

The checks and balances system withstood one of its greatest challenges in 1937, thanks to an audacious attempt by Franklin D. Roosevelt to pack the Supreme Court with liberal justices. After winning reelection to his second term in office by a huge margin in 1936, FDR nonetheless faced the possibility that judicial review would undo many of his major policy achievements.

From 1935-36, a conservative majority on the Court struck down more significant acts of Congress than any other time in U.S. history, including a key piece of the National Recovery Administration, the centerpiece of FDR’s New Deal .

In February 1937, Roosevelt asked Congress to empower him to appoint an additional justice for any member of the Court over 70 years of age who did not retire, a move that could expand the Court to as many as 15 justices.

Roosevelt’s proposal provoked the greatest battle to date among the three branches of government, and a number of Supreme Court justices considered resigning en masse in protest if the plan went through.

In the end, Chief Justice Charles Evans Hughes wrote an influential open letter to the Senate against the proposal; in addition, one older justice resigned, allowing FDR to replace him and shift the balance on the Court. The nation had narrowly averted a constitutional crisis, with the system of checks and balances left shaken but intact.

The War Powers Act and Presidential Veto

The United States Congress passed the War Powers Act on November 7, 1973, overriding an earlier veto by President Richard M. Nixon , who called it an “unconstitutional and dangerous” check on his duties as commander-in-chief of the military. 

The act was created in the wake of the Korean War and during the Vietnam War and stipulates that the president has to consult Congress when deploying American troops. If after 60 days the legislature does not authorize the use of U.S. forces or provide a declaration of war, soldiers must be sent home.

The War Powers Act was put forth by the legislature to check the mounting war powers exercised by the White House. After all, President Harry S. Truman had committed U.S. troops to the Korean War as part of a United Nations “police action.” Presidents Kennedy , Johnson and Nixon each escalated the undeclared conflict during the Vietnam War .

Controversy over the War Powers Act continued after its passage. President Ronald Reagan deployed military personnel to El Salvador in 1981 without consulting or submitting a report to Congress. President Bill Clinton continued a bombing campaign in Kosovo beyond the 60-day time in 1999. And in 2011, President Barack Obama initiated a military action in Libya without congressional authorization. In 1995, the U.S. House of Representatives voted on an amendment that would have repealed many of the Act’s components. It was narrowly defeated.

State of Emergency

The first state of emergency was declared by President Harry Truman on December 16, 1950 during the Korean War. Congress did not pass The National Emergencies Act until 1976, formally granting congress checks on the power of the president to declare National Emergencies. Created in the wake of the Watergate scandal , the National Emergencies Act included several limits on presidential power, including having states of emergency lapse after a year unless they are renewed.

Presidents have declared almost 60 national emergencies since 1976, and can claim emergency powers over everything from land use and the military to public health. They can only be stopped if both houses of the U.S. government vote to veto it or if the matter is brought to the courts.

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Checks and Balances, The Oxford Guide to the United States Government . Baron de Montesquieu, Stanford Encyclopedia of Philosophy . FDR’s Losing Battle to Pack the Supreme Court, NPR.org . State of Emergency, New York Times , Pacific Standard , CNN . 

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Here’s What the Court’s Chevron Ruling Could Mean in Everyday Terms

The decision is expected to prompt a rush of litigation challenging regulations across the entire federal government, from food safety to the environment.

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By Coral Davenport ,  Christina Jewett ,  Alan Rappeport ,  Margot Sanger-Katz ,  Noam Scheiber and Noah Weiland

• June 28, 2024

The Supreme Court’s decision on Friday to limit the broad regulatory authority of federal agencies could lead to the elimination or weakening of thousands of rules on the environment, health care, worker protection, food and drug safety, telecommunications, the financial sector and more.

The decision is a major victory in a decades-long campaign by conservative activists to shrink the power of the federal government, limiting the reach and authority of what those activists call “the administrative state.”

The court’s opinion could make it easier for opponents of federal regulations to challenge them in court, prompting a rush of new litigation, while also injecting uncertainty into businesses and industries.

“If Americans are worried about their drinking water, their health, their retirement account, discrimination on the job, if they fly on a plane, drive a car, if they go outside and breathe the air — all of these day-to-day activities are run through a massive universe of federal agency regulations,” said Lisa Heinzerling, an expert in administrative law at Georgetown University. “And this decision now means that more of those regulations could be struck down by the courts.”

The decision effectively ends a legal precedent known as “Chevron deference,” after a 1984 Supreme Court ruling. That decision held that when Congress passes a law that lacks specificity, courts must give wide leeway to decisions made by the federal agencies charged with implementing that law. The theory was that scientists, economists and other specialists at the agencies have more expertise than judges in determining regulations and that the executive branch is also more accountable to voters.

Since then, thousands of legal decisions have relied on the Chevron doctrine when challenges have been made to regulations stemming from laws like the 1938 Fair Labor Standards Act, the 1970 Clean Air Act , the 2010 Affordable Care Act and others.

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