The Founding of the American Presidency

The Founding of the American Presidency

Please discuss in small groups: If you were designing a new government, what powers would you give the executive branch? What are the problems you see arising from executive power, and how would you solve them? Which powers are easiest to grant? Which would give you most pause? What do you think of the idea of having a presidential council instead of a president?

Today: • What were the framers’ personal experiences with executive power? • How did those experiences shape their views of executive power? • What were the main controversies over the construction of the Executive branch at the Constitutional Convention?

do we care what the founders thought?Why? How do we know what the Founders thought?

The Declaration of Independence • He has refused his Assent to Laws, the most wholesome and necessary for the public good. • He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. • He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. • He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. • He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. • He has affected to render the Military independent of and superior to the Civil power. • For Quartering large bodies of armed troops among us:

…continued • For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States: • For cutting off our Trade with all parts of the world: • For imposing Taxes on us without our Consent: • For depriving us in many cases, of the benefits of Trial by Jury: • For transporting us beyond Seas to be tried for pretended offences • For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: • For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. • He has abdicated Government here, by declaring us out of his Protection and waging War against us. • He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

The Articles of Confederation (1777) • No executive branch • Execution of laws left to states • Members of Congress chosen, paid, and recalled by state legislatures • Each state has one vote • Congress cannot levy taxes or regulate interstate commerce • No national army, only state militias

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 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 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 --Article II, US Constitution The President’s Constitutional Powers

Power to suggest “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” (Art. II: Sect. 3).

Qualified veto power • Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

Federalist 69 • Virtues of the Constitutional executive: • Single not plural • Elected and re-eligible (not hereditary!) • Impeachable, removable, and subject to the law • Qualified veto (unlike King) • Can only adjourn Congress if they disagree about when to adjourn • Only occasional command of military, cannot declare war or raise armies • Can pardon but not in impeachments • Can make treaties with 2/3 of the Senate (unlike the King, who can make treaties and alliances on his own) • Receiving ambassadors (more dignity than authority) • Nominate govt officers, with advice and consent of Senate

Debates over the executive branch at Philadelphia • How to elect the president (and how long will he serve)? • Will there be one or several presidents? • What will the president’s power over appointments be? • What will the president’s veto power be? • Other minor debates: war powers, the “executive” power

Single or plural executive? • Advantages of a plural executive? • Advantages • Stability? • No problem of succession • Less risk of usurpation of legislative/judicial power or individual liberty in pursuit of ambition and glory • Others? • Disadvantages?

Federal Farmer • The states all have single executives • Other countries all have single executives • One person can execute laws consistently, decisively, quickly • One person should be the focal point in government • A council would necessarily be aristocratic • A Constitution will prevent the executive from accumulating too much power

Federalist 70 • “Energy in the executive 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 interrup the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”

Federalist 70 • Feeble executive = Feeble execution of laws = bad government • Single executive=energetic executive • “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.” • Plural executive=disagreement, faction, lawlessness

What dangers did the framers worry would arise from the appointment power?

The Appointment Power • Colonial experience: • King corrupted Parliament by buying off legislators with titles, offices, and pensions • King/Governors created offices to bribe colonists to support him • Colonial legislatures also had some important appointment powers (SC, PA) • State Constitutions: • Only one state gave governor appt of judges • Most governors could not appoint militia officers • Most prohibited legislators from holding other offices

The Appointment Power • Who appoints judges? • Senate appoints: Pros and Cons: • Wilson, Madison (2), Gorham, Sherman, Bedford, Gorham, Randolph, Ellsworth, Morris (2) • Executive appoints (after Brearly revision): • Wilson, Pinckney, Morris, Gerry • What restrictions will be placed on legislators’ holding other offices? • Mr. Randolph’s proposals • Gorham, Madison (2), Mason, King, Morris, Pinckney, Mercer, Sherman, Baldwin, Wilson • Adams’ letter to Sherman (pts. 1, 2, 5, 6, 8)

The Veto Power: Background • Colonists very angry about King & Governors’ absolute vetoes • In 1776, only ONE state gave the governor a veto power • NY Constitution lodged the veto power in Council of Revision • MA Constitution of 1780 gave governor a qualified veto

The Veto Power • Madison’s plan • Council of Revision (lost 4 different times) • Wilson & Hamilton’s plan • Absolute veto (lost unanimously) • Winner: Qualified veto with 2/3 override

The Debate • Proposing a council of revision, and contrasting that with an absolute veto: • Gerry (3), Franklin, Wilson (2) , Butler, Bedford, Mason (2), Madison, Gorham, Martin, Rutledge • Weighing a 2/3 vs. ¾ threshold for override • Williamson, Sherman, Gerry, Mason, Madison

How often did they want the veto used, and for what purposes?

The Vesting Clauses • The executive Power shall be vested in a President of the United States of America. • Article II, Section 1 • All legislative Powers herein granted shall be vested in a Congress of the United States • Article I, Section 1

The Founding of the American Presidency