Constitution Series Part 15: Article II, Section 1, Clauses 1 through 4

Article II of the Constitution of the United States established the office of the president. Article II, Section 1 is the longest section in the Constitution, with a higher word count than Article I, Section 8. However, despite its length, it's not nearly as dense as Section 8, so don't worry--it won't take five different posts to get through.

ARTICLE II

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

Here we have established that executive power belongs to a President, who serves for four years. Also, there's a Vice President.

So, what exactly is executive power? Simply put, it's the power to execute and enforce the law. It also means that the President runs the country in all of the ways not explicitly delegated to Congress and the courts, which mostly means establishing and enforcing a foreign policy.

The office of the President was an important departure from the Articles of Confederation, which pretty much only had a legislature. Eschewing an executive may have seemed nice at the time since the colonies, fed up with the King, wanted nothing to do with having authority vested in any single person. However, this proved to be inefficient. While a legislative body was great for the creation and discussion of laws and policy, a strong, independent executive was vital for making decisions quickly and with authority.

Another idea toyed with by emerging republics at the time was a plural executive--an executive office run by a small number of people that could make decisions quickly while still having a democratic element to it. This was the model adopted by the French around that time... though it didn't go terribly well for them. Not inherently due to the model, though.

However, several of the delegates at the Constitutional Convention believed that a single executive would work best. A President could make decisions quickly, and it avoided any confusion that might arise from multiple executives that end up disagreeing with each other or giving contradictory orders. Alexander Hamilton wrote exhaustively on the problems with a plural executive in The Federalist No.70, but in short a single, strong executive was necessary for a strong government. "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."

The convention debated over whether or not a President can serve more than one term, with some concerned that a President could get re-elected multiple times and become a tyrant, while others wanted to give good Presidents a chance to keep doing their job if they were doing it well. There was even talk of having the President appointed by the legislature, though that plan was scrapped (see the next clause) due to the need to have the executive office independent from the legislative branch.

Once they settled on having a re-electable President, they discussed term length. Four years, it was decided, was long enough to give the President time to work, while being short enough to prevent a President from doing too much damage if they did poorly. Just as the two year terms of the House and the six year terms of the Senate balanced the needs of stability and democracy, the four year presidential term struck that balance by splitting the difference between the two.

The Vice President here is not given any executive power, and only really exists to take over if something happens to the President and to serve as a tie-breaker in the Senate, as discussed in Article I. Any other executive powers given to the Vice President are completely dependent on the pleasure of the President. That said, since the Vice President has an important role as the first in the line of succession, it was important to have them elected in the same way as the President.

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 we have the establishment of the electoral college. The convention didn't want the President to be elected by simple popular vote because, simply put, the electorate at the time wasn't expected to be all that well-educated about the issues. So, instead, each state's legislature would determine for themselves how their electors would be chosen, and those electors would vote for the President.

The number of electors given to each state was favorable for the smaller, less-populatous states, since all states are guaranteed at least three electors. The clause also prevents any government official (especially legislators) from being electors, once again assuring the independence of the office.

At this point, all state legislatures have their electors chosen by popular vote (as of 1880), though we still use the electoral college for some reason. I mean, as it is, presidential elections usually reflect the popular vote, but in the election of year 2000 that was not the case: Al Gore won the popular vote by over 500,000 votes, but due to the electoral college George W. Bush won the presidency. Since the electors are now chosen by popular vote, the original rationale for their existence no longer holds, so I'm not sure why the electoral college still exists. However, there have been literally hundreds of attempts to get rid of the electoral college, and none have succeeded, so clearly somebody is fighting for them.

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.

This is the longest single clause in the Constitution by far. I wanted to post the whole thing first to point that out before I broke it down into manageable chunks. This whole clause is about the election of the President, and it has been largely changed by the 12th Amendment. Still, I'm going to explore it as it was, and we'll go over how it's changed if and when we get to the amendments.

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.

The language used here implies that the electors must collectively decide on two candidates and not vote independently of each other. So, the two candidates who get Rhode Islands's three votes (as they had in 1788) each get all three; the electors should not split their votes. Rogue electors have happened, though, and it's not entirely clear what happens when an elector goes renegade.

Giving each elector two votes was a measure designed to improve the odds that at least one candidate might get a majority. The convention was concerned that it would be difficult for anybody to actually win a majority of the electoral vote. I guess they figured we would have a bunch of people running for the office each election, and they obviously couldn't foresee the current, massive organization of the two-party system.

Also, at least one of the two candidates the state votes for must not be from their same state. So, for instance, if both Thomas Jefferson and James Madison had run for President at the same time, the electors of Virginia would not have been able to vote for both of them. As a result, Presidents and Vice Presidents would rarely be from the same state.

They decided to have the electors meet in their own states because the convention wanted to prevent the electors from getting together and conspiring with each other. This is also why they mail in their ballots to the Senate, as described in the next part of the clause:

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.

This is simple procedure. What's interesting to me here is that they go into this much detail about how a President is chosen, and they don't go into this much detail about how legislators are chosen. It makes sense, since the President is the only office decided by all the states, while legislators are chosen only by the people within their own states. States could potentially decide for themselves how they'd elect their Congressmen, but the procedure for electing the President needed to be clear and uniform.

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.

There are several possibilities here. Let's run through them:

If one person has the most votes and has a majority of the electoral votes, they are the President. In this case "majority" means more than 25% of the total votes, since each elector casts two votes, each for a different person.

If two people tie for the most votes and they both have a majority, the House of Representatives chooses which of the two becomes President.

If nobody has a majority, the House of Representatives chooses the President from the top five candidates.

In either case that the House chooses the President, each state only gets one vote (so the Representatives must come to a consensus), and at least two-thirds of the states must participate in the vote. Also, the decision must be an absolute majority of all of the states to take effect. So, when there were only 13 states, at least 9 states needed to participate in the vote, and of those who voted an absolute majority was needed to win: 7 states if there were 13 states total, or 8 states if there were 14 states total.

Nowadays this sort of tie-breaking doesn't need to happen much since there's basically never an electoral tie. At the time, though, this was very important due to how the Vice President was chosen:

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.

In short, the second-place winner became Vice President. And, if there's a tie for Vice President, the tie is broken by the Senate, since they're effectively choosing the President of the Senate.

This method of choosing a President and Vice President was a problem. Even in the best case, the President and Vice President would likely have been opponents, which may have been the intention, but it definitely made things awkward during the administration of John Adams, whose Vice President (Thomas Jefferson) had campaigned against him unsuccessfully in 1796, and then successfully in 1800.

However, that 1800 election had its own problems, as the organized Democratic-Republicans successfully elected both Thomas Jefferson and Aaron Burr with an equal number of electoral votes. The decision of which man was to become President was left to the House of Representatives, which was at the time controlled by the Federalists. For 35 votes in a row, the House was deadlocked at 8 votes for Jefferson, 6 votes for Burr, (there were 16 states at the time), with the Burr votes mostly coming from Federalist states who weren't voting for Burr so much as they were voting against Jefferson. The remaining states' Representatives (Maryland and Vermont) couldn't come to a consensus and abstained for those 35 votes. It wasn't until Alexander Hamilton recommended Jefferson over Burr (despite Hamilton's fierce rivalry with Jefferson) that the deadlock was lifted, and Maryland and Vermont cast their votes for Jefferson.

This was the mess that led directly to the 12th Amendment, which clarified the way Presidents and Vice Presidents were chosen.

Finally, there's one last clause in this section regarding elections:

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.

We discussed Election Day back in Article I, but that's just the day the electors are chosen. The electors would convene in December to choose their President, but that's just a formality by this point. Nowadays, communication is much faster, and the popular vote results inform the electoral votes, so we generally know who the President will be by the time the polls close on Election Day.

Continue to Part 16: Article II, Section 1, Clauses 5 through 8