Wednesday, April 20, 2016

Constitution Series Part 17: Article II, Section 2, Clause 1

In Section 1 we established the office of the President and went over how to elect one. But what does a President do? There are two basic schools of thought on this: the first is that a President gets all of the powers implied by an executive office, as established in Section 1. The other is that a President is only allowed to do that which he is explicitly allowed to do as laid out in the Constitution and as granted by Congress.

Historically, Presidents have acted mostly under the former assumption, with implicit powers as an executive. In Section 2, however, we're going to go over the President's explicit powers.


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.
This clause grants three separate powers to the President: to be Commander in Chief of the armed forces, to request information from his officers on their respective departments, and to grant pardons for federal offenses. Let's tackle each individually:

As Commander in Chief of the armed forces of the United States, the President oversees military operations. This is one of the most vital roles of a President, as military operations are complex and require quick decisions to authorize and abort missions, which is something a body like Congress can not provide.

Especially now, when the President is in command of the largest, most advanced military in the world with global operations and impact, this is not a role to be taken lightly. It's a solemn duty, and one that a President must be careful not to abuse. Indeed, though our very first President was a military general, many Presidents were not. Luckily, those without military experience have the aid and advice of generals to help them make sound, tactical decisions and to understand the ramifications of their actions.

There's some debate over Congress's power to check the President's ability to engage in military activities. After all, according to Article I Section 8, Congress has the authority to "declare war," implying the President does not. However, this brings us back to the difference between "declaring" war and actually waging it. In fact, according to James Madison's notes from the Constitutional Convention he successfully changed that line in Article I from "make war" to "declare war," implying a distinction between the two. However, that could either mean he wanted to make it clear that Congress did not control the military during war time or that declaring war is different from overseeing all military activity.

The debate between Congressional and presidential authority over the military has been waged more or less constantly since the beginning. I'm personally in favor of more Congressional authority on the matter since our military is enormous and it would be nice if more than one person had a say in how and where we get our military tangled up in conflicts. It's complicated, and I can see the argument for executive authority, but in principle I think Congress has the right to decide the general goal of our military, while the President handles the details of accomplishing that goal--much like their relationship regarding laws.

Getting "an Opinion, in writing, of the principal Officer in each of the executive Departments" has generally been seen as a hint toward the relationship between the President and his officers. There's no explicit executive structure defined in the Constitution, though. George Washington formed a Cabinet because it made sense to him to have a group of people to advise him during his presidency, and subsequent Presidents just kinda followed his lead. The size, organization, and involvement of the Cabinet changes from administration to administration, but generally it's pretty similar to what Washington established over 200 years ago.

The power of the presidential pardon was hotly contested during the Convention, especially since it's fairly unlimited: it doesn't apply to state, civil, or impeachment cases, but otherwise any federal crime can be pardoned. Some felt that this power might be abused, but in the end it was decided that the power was an important one. It was a power that allowed the President a chance to show mercy in the face of laws whose punishments may sometimes be too severe.

The most valuable use of the power, though, may be in its ability to pardon acts of treason. As Alexander Hamilton put it in The Federalist No. 74, during times of rebellion "there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth." Mercy, well-timed, can prevent bloodshed. The power of presidential pardon was used heavily in the wake of the Civil War, for instance, otherwise half of the country would have been put on trial for treason.

Continue to Part 18: Article II, Section 2, Clauses 2 and 3

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