The U.S. Constitution – Lesson #12: President of the United States


Today’s lesson gets us back into the text of the Constitution and its meaning for us today.  Recently we had finished Article I of the Constitution, which focused on the powers of the Legislative Branch of government, the U.S. Congress.  Today we move on to the first section of Article II, which is the Executive Branch, or the President of the United States.

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:

This clause state the executive power, the power to enforce the laws will be in a single President with a Vice President.  Both will serve a term of four years.  There was a large debate during the Constitution convention on the make up of the Executive.  There were calls for a committee of three to five individuals, a triumvirate of sorts.  The argument for a single is that only one person is responsible for executing the laws.  If there were three or four or five executives then you would have too much debate and discussion over the simple task of enforcing the laws passed by Congress, which needs to be a deliberative body.

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.

Here begins the explanation of the most confusing part of the American government: the electoral college.  Set out in this clause is how the states will determine the electors who will vote and elect the President.  In practical terms of election of the president is not a single national election, but 50 individual state elections.  First the electors are chosen by the state legislatures, removing all doubt that the election for president is not one of popular vote but of the votes of the state electors.  Each state will have the same number of electors as it does in Congress, so Nevada has three members of the House and two Senators, so it has five electoral votes.  It does prohibit any elected official for the U.S. government from being an elector.

In modern times this is how they electors are chosen.  When you cast your vote for the President and Vice-President, you are casting your vote not for those candidates, but the slate of electors chosen by that political party that have pledged their vote for that candidate.  My vote did not technically go for John McCain and Sarah Palin in 2008. It went to the five Republican electors for the state of Nevada.  Who then in turn, if chosen, by majority vote, will cast their electoral votes for those two individuals.  Everyone understand so far?  Good moving on.

The Electors shall meet in their respective States, and vote by Ballot for two
persons, of whom one at least shall not lie 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 the 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.

Here is where it can get complicated because of all the language in this one clause.  The electors, chosen by the state legislatures, will meet in the capital city.  There they will vote for two people for President.  One of them must be from outside that state.  This actually caused a problem in the 2000 election.  Vice-Presidential candidate Dick Chaney, was set to move his to Texas prior to the election, unfortunately if he did that he would not have been able to be received the electoral votes from Texas, since both Bush and Cheney would then be from Texas.  If it weren’t for that we could have easily had President George Bush and Vice-President Joe Lierberman.  But moving on…

All the votes from that state would then be sent to the President of the Senate, technically the current Vice-President, and those votes will be opened and counted in a joint session of Congress.  The person with the most votes would be declared the President, the person with the second highest votes the VP.  Under this system you could have political enemies serving in the same White House.  In fact that did happen between 1797-1801 when President John Adams, of the Federalists Party, served concurrently with Vice-President Thomas Jefferson, of the Democratic-Republicans.  That situation did not last long as I will talk about in a minute.

If there was a tie or no majority then the House of Representatives would vote, by state, on a slate of candidates that had the highest number of votes.  It was important that the House vote by state.  While, at present, California may have an a lot of power in presidential elections in the electoral college, in the event of a tie they have no more power than Rhode Island or Alaska.  This again shows that in fact the people do not elect the President, the states do.

Keep in mind also this method changed about eleven years after the Constitution was ratified.  It was changed by the 12TH Amendment.  Here it is

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists 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;

There is a bit more to the amendment but listed above are the major changes to this method.  The 12Th Amendment makes it so that when the electors vote they have two separate ballots, one for President and one for Vice President.  The creation of political parties made this change necessary during the election of 1800.  Let me explain.

During the election of 1800, Vice President Thomas Jefferson, ran for President against the his sitting boss, President John Adams.  Jefferson choose Aaron Burr to run as his Vice-Presidential candidate as part of the new Democratic-Republican party.  Jefferson instructed the electors that would be chosen for him by the state legislatures that they should vote for both Jefferson and Burr (The popular vote is still about 24 years away in American history.).  What happened?  Obviously a tie between Jefferson and Burr.  So the vote went into the House of Representatives and it took 36 votes to make Jefferson our third President.  Mostly because the Federalists were trying to prevent Jefferson from becoming President and voting for Burr.  Here we see the beginnings of partisan politics.  This problem created by political parties necessitated the change to the electoral system.  With the ratification of the 12TH Amendments party politics and partisan elections were ingrained and included, in our Constitution, against the wishes of the now dead Father of our Country, George Washington.  He had this to say about political parties in  his farewell address: 

In contemplating the causes which may disturb our Union, it occurs as matter of serious concern that any ground should have been furnished for characterizing parties by geographical discriminations, Northern and Southern, Atlantic and Western; whence designing men may endeavor to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence within particular districts is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heartburnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection.

There can be a lot said about this method of electing the President.  I welcome a hearty debate on the electoral college in my comments. Bring it on!  But moving on.  There is more to tell.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

It already has been stated that Congress has the power to alter the dates of the elections (Article I, Section 4, Clause 1).  Since this is not a general election Congress is also granted the power of when electors should be chosen.  This along with the general election day is the first Tuesday in November, after the first Monday.  They have also set by the the date when the electoral votes must have been certified and submitted to Congress.  I believe it is December 20TH.  This is why the case of Bush v. Gore was argued and decided so quickly after the 2000 election.  They had to do it so that the electoral votes could be submitted in the manner prescribed by law.  There is another topic of debate we could address in the comments with this posting:  the Supreme Court case of Bush v. Gore.

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.

Here is the infamous clause that states the qualifications for President of the United States The qualifications for the Vice-President are the same and are set in the 12TH Amendment. This is where the “Birthers” have take issue with our current President.  They claim President Obama is not a natural born citizen.  They do have some logical doubts, but some of them are nuts.  There is some doubt according to Philip Berg that when Obama immigrated to Indonesia with his mother that his father at the time, made him an Indonesian citizen.  Thereby renouncing his American citizenship and not making his natural born anymore.  There is also some question to the law at the time of the his birth and the age of his mother.  According to U.S. law a parent had to have been at least 19 years a citizen before she could confer citizenship on her child.  Records show she was 17 or 18 at the time of his birth, therefore he may not have been a true natural born citizen.  There is also anecdotal evidence of his grandmother (his father’s mother) saying she was at the birth, even though it was in Hawaii.  She lived in Kenya.  There is the fact that some political figures of Kenya have even stated that America elected a Kenyan citizen.  Michelle Obama has said her husband’s home country is that of Kenya.  Include in this the hysteria of a Manchurian candidate because of his far leftists political beliefs, the fact that he went to a Muslim school in Indonesia and  you are ripe to have a conspiracy theory on your hands.

This is how I look at it.  A)  Someone, somewhere had to have seen President Obama’s birth certificate certifying he was an American citizen. If they saw it or it was fraudulent or said something different than we know then the conspiracy is bigger than we know and that is unlikely with how incompetent our government and political parties are.  B)  If he really wanted to shut these people up he could just show it and entirely discredit them.  For the record, I am sure there are Birthers in the Tea Party movement, but they are a small minority.

The reason behind the Natural born citizenship clause is so that a foreign power could not invade our country and become the chief executive.  This was to help prevent us from being ruled by a foreign power.  At one point before the writing and ratification of the Constitution were almost had a king, twice.  First it was offered to General George Washington following the end of the Revolutionary War.  He turned it down.  He is the most powerful example of an elected leader.  He always was willing to give up power.  He reluctantly served two terms as President.  Too many people now seek the office and I fear that corrupts them.  During the critical period between the end of the Revolution and the Constitution the president of the Congress under the Articles of Confederation ask the Prussian king to becomes American’s king.  He declined due how we reacted to our first one.

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.

This clause allowed for the Vice-President to take over as President upon the remomal of the President by any means.  It also gives the Congress the authority to provide for the selection of a new President if this were to occur.  The Vice-President would serve as President though until there be a new President.  Following the death of President Harrison there were questions of who and what would be done with the Presidency.  Vice-President John Tyler stepped into the Presidency and proclaimed that he was now the President with all this powers.  Thus the tradition of the VP serving out the remaining portion of the President’s term was established.  This was also changed by the 20TH, and 25Th Amendments.  They also provided for it in the Presidential Succession Act of 1947.  This set the current secession of government officials in the following order:

  1. Vice President
  2. Speaker of the House
  3. President PRo-Tempore of the Senate
  4. Heads of the Executive Department in the order of their creation (Last in line: Secretary of Homeland Security)

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.

This ensures that the President gets paid for his service.  Currently the President earns $400,000 a year, though the total financial benefit of being President is closer to $60 million dollars over their four year term.  It also prevents Congress from raising or lowering the President’s pay during his term.  This is to prevent them from punishing the President for his actions.  Its a check on the Congresses power of the purse.

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.”

This oath has been taken by every President since George Washington.  It is also very similar to the oath of office taken by members of Congress, the Supreme Court and other appointed officials in the government.  There was a small mix up in the wording of the oath of office during Obama’s inauguration.  Chief Justice John Roberts chose to do the oath by memory, but Obama, being the Constitutional professor that he was, knew it and recited it correctly.  A day later they redid the oath in the Oval office just to make sure they got it right. 

It is the job of the President, in this oath, to preserve, protect and defend the Constitution.  It sad to say I fear our current and many former Presidents have failed at this oath.  Many have taken powers not given to them in the Constitution.  They have signed, instead of vetoed, laws that have no Constitutional authority.  They have refused to enforce vigorously the decisions of the Supreme Court.  The Constitution is the supreme law of the land and when the person charged with enforcing the law fails at that job we all lose a little bit of the liberty granted for us by our forefathers.

Class dismissed.

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