The United States Constitution Explained: Article II - The President: Part 1
Finally! After 12 posts about what we believe in, the Preamble, and Congress we get to the big guy (or gal), the leader of the free world, the President of the United States of America. Today we are continuing our Constitution Explained series by discussing what the Office of the President is, how he or she is elected, and who can be the President.
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
As we all know, the President is the leader of the Executive branch of our government. If you think back to our Article I Section 5 post; you will remember that he has the power to veto bills passed by Congress or sign them into law. This is all well and good, but many scholars, including your friendly researchers here at March Forth, believe that the President is set up to do even more. Vesting the absolute power of the Executive Branch in one person gives the President the power to direct agency heads, pass Executive Orders, and in general use the full capabilities of the National Government that are not given explicitly to another branch. This does come with a powerful check, however. Through the Necessary and Proper Clause discussed in Article I, Section 8 Congress can pass legislation to restrict some of this inferred power when he begins to step too close to their defined role in the National Government. The last two parts of this clause establish that there will also be a Vice President and that they will serve for four years at a time. One role of the Vice President was already established in Article I, Section 3 as the President of the Senate. For more information on this role, please go check out that post! Other functions of the Vice President, like being second in command and taking over when the President must leave office before the end of his term, are described a little later on.
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.
Ok, so now we get to the meat of all of the controversy surrounding the 2020 election. We will do our best to stay non-partisan and explain how the process should work.
On its face, this should be very simple. Each State picks people to be electors based on whom the State thinks they will vote for. Each State gets the same number of electors as its number of Representatives and Senators, and no elected official can be an elector. Nice and easy, no controversies to be had here.
Becoming especially heated in the 2016 and 2020 races, significant public contentions around this clause's existence and interpretation have existed for a long time.
As you know, here at March Forth, we do not shy away from the controversy. Our whole mission is to break down the controversy to the facts and leave it up to you to form your own opinion from there.
With that said, let's start with the first question that rose out of the 2020 election: the meaning of "in such manner as the Legislature thereof may direct." While this clause seems pretty straightforward, the definition of one of the words has been the critical issue of serious scholars who have questioned the legitimacy of the 2020 Election.
The word in question is "Legislature." Typically, in all places in the Constitution, the word Legislature refers to a specific branch of government. However, some could argue that the word Legislature could also refer to the State's governing body as a whole. I will not go through each of the election challenges in this post because I think that will distract from our mission.
For the 2020 Legislature definition controversy, I will present the race in Arizona below and explain both sides and how we feel the issue should have been decided.
For those reading this in the distant future, you will remember that 2020 was a year like no other. With a massive pandemic sweeping the nation, there were calls for serious lockdown measures, and it also became an excuse for literally everything to run slowly. In the spirit of that, two advocacy groups in Arizona, Mi Familia Vota and the Arizona Coalition for change, asked a district court to extend the deadline from 29 days before election day, October 5th for 2020, to 7 days before Election Day, October 27th for 2020. The initial court sided with the two groups over the Attorney General and Secretary of State's objection. They said that there were no Constitutional conflicts with Arizona's original deadline; however, it agreed that a pandemic did warrant an extension and ordered the deadline to be extended to October 23rd. Ten Days later, on October 13th, an appellate court found that the Original Deadline was Constitutional and that the lower court did not have the power to extend the deadline as it did. Instead of reversing the decision, the Ninth Circuit Court of Appeals decided to end the extension early on October 15th because they did not want to "punish" the 32,000 people who registered after the original deadline for the trial court's decision.
The View From Supporters of Certification
Those who support the certification basically fall into four camps.
First, the ones who define State Legislature differently.
Some people have argued that the term Legislature refers to the State government system as a whole. In this way, they believe any change made to the election rules that does not directly violate any federal law and increases the number of eligible voters is good.
Second, the ones who agree with the Court's findings
These people agree that the originating court should not have extended the election registration date. Their primary response has been that the worst thing that happened is the expansion of the vote, so we should just celebrate that turnout increased by 32,000. Any other action would be seen or construed as purposely disenfranchising voters.
Third, the ones who say that Congress has no role in certifying election results
While the former two groups were mostly comprised of liberal politicians, this group was made up of generally conservative politicians. Their view is that the language of Clause 3 (see below) does not give Congress any authority to choose which States' votes to count. They believe that the provisions for objection outlined in the Electoral Count Act are unconstitutional, and therefore they should not exercise that power.
Fourth, the ones who thought that the violence at the Capitol nullified arguments for objection
Some people who initially supported objection changed their mind after the mob entered the Capitol and the building had to be evacuated. They believed that with actions so horrible surrounding the very idea that this election was not free and fair that they could not in good conscience stand up for what they believed in.
The View From Supporters of Objection
Now that we have covered those who opposed objection, let's talk about those who supported throwing out Arizona's electoral votes. The basic argument was that the courts effectively changed Arizona's Election law. The ballots were valid for every other race because they do not specifically call for the State Legislature to decide how electors are chosen. However, because the Presidential Electors Clause has this language, the process in Arizona is inherently unconstitutional, so, therefore, the votes are invalid on their face.
March Forth's Constitutional View
To us, the answer is relatively straightforward. The 32,000 votes in question should have been thrown out for the Presidential race only, and that President Trump should have done it.
First, let me explain why they should be thrown out. While the Constitution does not provide that anyone specifically in the State governments must handle elections for Senators and Representatives, Article II Clause 2 states explicitly that the State Legislatures must decide how the Presidential electors are chosen.
We do not believe that this should or would have given Arizona's Electoral Votes to Trump.
Because the number of votes in question is much higher than the margin by which Joe Biden won Arizona, there is no way to confidently remove these votes from the total to get to the actual tally. Because of this, the entire process in Arizona should be considered invalid and the Electoral Votes not counted.
Many people look at this and agree with the third camp of nonobjectors and say, "Woah, woah, woah, you are disenfranchising voters! That's terrible!" To them, I would say that yes, their State Legislature disenfranchised those voters by not calling a special session to make the court's decision law.
Allowing any deviance from the Constitution makes for a precedent that will be upheld in the future. To make a fair decision, you must remove optics and politics and look directly at the Law. With the facts outlined above, we believe that the process was illegitimate and should have been stopped to protect future elections' validity.
Now for why Trump should have been the one to nullify the Electoral votes. In certifying the Arizona election, the Arizona Secretary of State and the Governor broke the highest federal law in the land, the Constitution. As the President is charged with executing the laws and his Oath (described down below) calls him to preserve, protect, and defend the Constitution of the United States, it is his responsibility to deal with those who break the law. Now, we definitely do not think that the President SHOULD have the power to nullify votes; however, based on the Constitution's language, there is no clear way to argue that he does not. Because of this, the Supreme Court would be immediately involved and would most likely rule given the facts above that there is no Constitutional argument why those votes can be counted, so they would be held null and void. However, it is not the President's place to issue an Executive Order to nullify any State's votes. In this way, it negates the issue of mootness or standing, which the Supreme Court consistently used to stay out of the 2020 election and forces them to answer the Constitutional question at hand.
We know that this decision is not pretty, and we take no joy in it. However, if we allow slow and small incursions on the Constitution, we work our way closer and closer to tyranny.
The 2016 Election and The Electoral College
Now that we have covered the issues with the 2020 election, let's look back on the controversy of the 2016 election. Laid out simply, Hillary Clinton supporters believed that the election was stolen from her by the unfair electoral college and that because she won the most overall votes of individuals, she should have been President. There have been calls ever since from the Democratic party and especially from hard left-leaning members to abolish the Electoral College. At March Forth, we think that would be a TERRIBLE idea, and here's why.
First and foremost, we need to look at the way the United States is structured. We are a confederacy of individual moderately autonomous States bound to a National government via the Constitution. This National Government has, over time, become quite large and intrusive in Citizens' lives and State affairs. This overreach into citizens' lives has grown exponentially since the New Deal.
The founders designed our country as a federal system such that power and control over people's daily lives should be handled at various levels. First and strongest, the family level, then the neighborhood level, then the city level, then the county or parish level, then the State level, and then lastly at the National level.
Mass media, including radio, television, and even more so with social media, has disrupted Americans' focus on their local communities and put all eyes on who sits in the Oval Office in Washington. The only way we keep our great nation and not be changed into a globalist society is to allow the States to handle their elections in accordance with the federal guidelines that all States must follow and get a consensus of the States to determine who should lead them. Given how our nation's population is distributed, Presidential candidates would have no incentive to campaign in less populous States. If they campaign and win majorities in America's top 10 cities, they will get the overall number of votes needed to win.
Second, the Founding Fathers were extremely wary of democracy and set up the country as a republic for a reason. When you have a simple democracy, even for selecting a President, it sets up the potential for a slim majority to run over the minority and not care for them. For example, if out of one-hundred people, fifty-one agreed to make the other 49 pay ninety percent of the taxes, and a simple majority ruled every decision, then the 49% would be pretty out of luck. They would try and try and try to get the others to vote their way and get the tax burden shared evenly; however, who would want to punish themselves and even the burden?
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 chuse 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 chuse the President. But in chusing 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 chuse from them by Ballot the Vice President.
Ok, I have already spent a lot of ink (or really pixels) talking about why the system of Electors is essential. Still, let's talk for a second about how these Electors actually choose the President. Most of this clause has been altered with the 12th Amendment, however as we have done in all other cases, we will explain how it was initially constructed now and explain the 12th Amendment when we get there. Luckily the overall structure is relatively similar, and it is generally straightforward if we look at it as a list as opposed to a paragraph. First, the electors meet in their respective States and determine which two Candidates their votes should be for. They each cast a first-place vote and a second-place vote, and one of these two must be on someone who is NOT from their State. This was done so that States could not send up multiple people and vote for both to try to ensure that one of their citizens won the election regardless of what is best for the country.
Second, sign and certify their votes. The word "certify" is essential, especially today because this means that they swear under Oath that the votes are correct and in line with how their State's election laws determined they should be chosen.
Third, they seal them and bring them to the President of the Senate, usually the currently serving Vice President.
Fourth, the President of the Senate calls a joint session of Congress where the certificates are opened, and the votes are counted in the presence of both houses of Congress. This is very important because it necessitates transparency in the counting so that no one can accuse this process of ballot stuffing or meddling. It was later postulated with the Electoral Count Act of 1887 that Congress could dispute the sealed certificates if they felt that the electors had not acted in good faith or if it appeared they had not acted in accordance with State election law.
Fifth, if the person with the most votes has a majority, he or she becomes President, the person in second place becomes Vice President, and we all go out to the bar to celebrate (or commiserate), and we get together to play the game again in 4 years.
The "Happy Path" or expected path through these five steps that we are fairly familiar with take up 142 words or roughly 49% of the clause. The Framers spend the majority of the clause covering their bases for what happens when less cut and dry outcomes happen. By this, I mean ties and people not achieving majorities. In 2021, we see this even less often than the founders anticipated. As political parties grew and the country has become more polarized, and binary rather than well-rounded and more based in specific factions, the choice's binary nature has made it much more likely that a candidate will achieve a majority of electoral votes.
Like the rest of the clause, most of this was rewritten with the 12th amendment, but we will break it down either way. Let's take this part of the clause in reverse order. When the House of Representatives must resolve either a tie or a lack of majority for who becomes President, they vote as a State instead of individual representatives. This means that each State's representatives get together and decide amongst themselves one vote to cast for their State. This drastically can change the balance of power because even right now, while there is a Democrat majority in the House of Representatives, when you break it down by State, there will be more States with Republican majorities than with Democrat Majorities. This is to be expected because more liberal policies tend to be more popular in large cities than in rural areas. This was just as true in 1789 as it is today. This goes back to our first ever post – The United States of America, Not the United People. The Founders set up the Electoral College system and this House of Representatives backup system to ensure that States were in control of the National Government's leader, and the People had a say in the national government. Still, they intended for them to be more focused on their State and Local governments closer to home. Now that we know how the House votes for President, let's talk more about when they vote. The House only votes for President when there is an exact tie in the number of electoral votes between two candidates, meaning they each have 50% of the vote or if more than two candidates receive electoral votes and no one of them receives a majority. The hope was that with the Electoral system, that there would be little need for this provision. However, like most things in the Constitution, they wanted to prepare for as many alternate scenarios as possible. (It's a good thing they did too because, in just the 4th Presidential election (the election of 1800), there was a tie between Thomas Jefferson and Aaron Burr (who as someone sharing the name Publius I am required to hate) and the House had to vote to break the tie and ultimately as we all know Thomas Jefferson became President, and Alexander Hamilton got shot for it. The last part of this clause decides who gets to be the Vice President. Before the 12th amendment, the Vice Presidency went to the person who got second place in the Electoral counting. The thought was that whoever came in second would be who represented the second-highest number of States and therefore would be best to break ties in the Senate and fill in for the President if he died, resigned, or was impeached.
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.
What if the States all voted for President on different days? Would results from one State impact another? Would people assume massive fraud based on a candidate that seemed unlikely to win, getting just enough votes from the later States to put him ahead? In short, it would be chaos.
We saw the effects of this on a small scale with the massive mail-in voting in the 2020 election.
I am not suggesting or even alluding to fraud in this election because that is not my place to assert one way or the other.
My only point is that when you spread an election out over such an extended amount of time, the opportunity for fraud arises. When there is an opportunity for fraud, there will always be those who doubt the validity of the election.
The purpose of a nationally aligned Election Day is to ensure that one State's results do not influence the results in another. In addition, it is supposed to expedite the process such that a decision can be made quickly and effectively.
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.
If you remember back to our posts on the House of Representatives and the Senate the Framers put limits on who is eligible for each office based on the prestige of the office. Representatives have to be 25. Senators have to be 30, and the President has to be 35. While 35 does not seem old today, with an average life expectancy of 38 years, they were definitely at the more senior end of the population. In addition to the age requirements, citizenship requirements were also imposed. Like the age requirements, these got progressively more rigorous as the prestige of the office increased. SPOILER ALERT for our next post: For the person tasked with being the Commander and Chief of the Armed Forces, the treaty negotiator, the person who appoints literally everyone, and where the buck stops for the execution of all laws, we need this person to be a red-blooded loyal American through and through. Look for Loft for President in 2032.
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.
Ok, so remember how Presidents are at the high end of the 1789 average life expectancy? They knew right away that be it by death by natural causes, assassination, or impeachment (the way they built into the earlier sections that a President or other officer of the US could be removed) that at some point they would need to backfill for the President. They obviously give this to the Vice President first as he or she is elected along with the President. They are elected in the same manner, so it would make sense that they would take over. Knowing that this still may not provide for all cases, they gave Congress the power to extend the line of succession so that there will always be a President even when there is some kind of catastrophe. In addition, the last line provides for if a President falls ill for a period of time like a surgery or wound in battle and needs to heal. In that case, the Vice President would take over until the President has recovered.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased 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.
So you're saying the President gets to be the most powerful person in the world, is the leader of the free world, gets to live in a really sweet house on Pennsylvania Avenue and he gets paid for it? Yeah, that is exactly what we are saying. Because the Framers did not want the President to always be someone who was already independently wealthy enough to not work their normal job for four years, they wanted him or her to be paid. They specifically left it open-ended so that Congress could decide how the President is paid. This has allowed Congress, in later years, to add a pension for former Presidents so that a grateful country can continue to provide for them and their families in thanks for the service in such a stressful job.
Lastly, Congress cannot increase or decrease the salary of the sitting President. This is standard and agrees with the earlier statements on pay for Senators and Representatives that any change to the salaries only takes effect after the next election.
Last for this clause is the piece about emoluments. At a high level, the word emolument means a salary or fee from employment or office. Given this definition, they did not want the President to be on the payroll of any specific State so that they would be impartial in their execution of the office.
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."
Last but certainly not least for Article II Section 1 is the Oath of Office. While George Washington did not take the Oath of office until almost two months after he took office, every President since has taken the Oath at his inauguration. The primary purpose of the Oath is to bind the elected person to the Office of the President, which means that he or she agrees to the rights and restrictions laid out in the Constitution and will do their best to execute them. The Oath also confers on the President a moral obligation to protect and defend the Constitution of the United States. This means the President has a responsibility to protect Constitution and defend it. While this does not give the President any implied powers, it does mean that the President should use his platform to denounce unconstitutional power grabs and defend the document to the general public.
In our next post, we will continue on with Article II and given all of the controversy around this Article, it should be fun. Please remember to follow us on Instagram and Facebook @marchforthfortheconstitution for other Constitution content and share us with your friends. When we reach 200 followers on our Instagram or Facebook page, we will pick one lucky follower to give away another $25 Amazon gift card!