Friday, April 22, 2016

Constitution Series Part 19: Article II, Sections 3 and 4

Starting now, we're going to be breezing through sections and, eventually, whole articles of the Constitution with each post. With much of the framework of the country laid down in Article I and the bulk of the President's processes and powers laid out in Sections 1 and 2, the Constitution will begin handling the rest of its details with impressive brevity.

That's not to say the remaining parts are any less dense than what we've seen already, though. I'm preparing to spend quite a bit of time on two relatively short paragraphs today, after all.


Section 3

This section consists of a single paragraph that covers several provisions, so I'm going to break the paragraph up and handle each provision individually.
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;
Every year the President gives a speech called the State of the Union Address in which they, presumably, give everyone an update on the state of the union. George Washington and John Adams gave annual speeches to the Senate, but starting with Thomas Jefferson the State of the Union was merely written by the President and sent to Congress in order to fulfill this Constitutional obligation. Woodrow Wilson revived the oral address in 1913, and the tradition has continued since.

With the rise of radio and, eventually, television, the State of the Union has become a more public affair; less an address to Congress and more an address to the nation at large, giving the citizens an update on the state of our nation and, of course, the President's opinion of the path forward. It's become less of an assessment of the government and more of a chance to advocate the President's views.

This State of the Union provision bleeds into the President's ability to recommend legislation to Congress. Like the State of the Union, this isn't a suggestion, it's a Constitutional requirement that the President recommend legislation to Congress on occasion. He can't simply tell them there's a problem and make them figure out how to solve it, after all; the President needs to come to the table with a solution in mind.

At least, that's how the provision is phrased. Federal courts have since ruled that the provision is voluntary, and if a President doesn't have any legislation to propose, he doesn't have to propose anything. And, of course, the President can recommend legislation all he wants, but if Congress isn't interested they'll simply vote against it and move on. That said, many legislative programs, especially since the presidency of Franklin D. Roosevelt, originated in the White House, not Congress. After all, a President is much more likely to energetically enforce a program if it was his idea in the first place.
[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;
The power of the king to convene and dissolve a legislature was one of the problems the colonies had with King George III, so much so that it was included in the Declaration of Independence in the list of grievances: "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 dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people."

As such, the Constitutional Convention was hesitant to give the President any power to control Congressional sessions. However, they saw the need to give the President some power to convene Congress, but only on "extraordinary Occasions." In practice, this means that Congress has only been convened by Presidential authority a few times, and then only due to war or some other national emergency.

However, even that hasn't been done since 1948. Congress is generally in session for the entire year these days, so they're usually already in session during any extraordinary occasions anyway.

The President can also adjourn Congress, but only in one specific, extremely narrow instance: when the House and the Senate can't agree on a time when they should adjourn. You may recall in Article I that both Houses of Congress must agree to a time of adjournment. Well, this provision solves the problem if and when they ever can't agree on this matter. This has never once been an issue, though.
[The President] shall receive Ambassadors and other public Ministers;
This brief provision sparks a decent amount of debate. Does this give the President additional powers over foreign relations? Must the President receive every ambassador? If the President doesn't receive them, does that mean the United States doesn't recognize the sovereignty of that country?

In practical terms, yes, this provision gives the President extraordinary power over foreign relations simply by virtue of choosing who to receive and who not to receive as ambassadors. James Madison and Alexander Hamilton argued publicly about it (particularly in regards to Washington's statement of neutrality regarding France), with Madison contending that this provision was supposed to make the President a mere figurehead for this sort of diplomatic gesture, leaving the actual foreign policy decisions to the Senate.

However, in the end the President has become the primary face of American diplomacy. Hamilton, it seems, won that argument.
[The President] shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Finally, the primary role of the President: to execute the laws passed by Congress. In theory, this means enforcing all existing laws.

In practice, though, the President can't possibly enforce every law fully. There are a lot of laws, after all, and only so much budget and staff to enforce them all. That reality, combined with the implicit power of discretion granted by the power of granting Pardons, means that the President generally picks and chooses which laws he focuses on enforcing and which he does not. For instance, yes, selling marijuana is a federal crime, but both Colorado and Washington have legalized it in their states. Technically, the President has the power and, some would say, the obligation to enforce the federal law over the state laws. He does not, though, as a matter of discretion.

Likewise, growing up in the South I heard a lot of talk, not about enacting immigration laws, but simply enforcing the immigration laws already in place to get rid of "Illegals." Again, though, actually enforcing such laws is incredibly difficult: how do you know a person is here illegally? How do you find out without also encroaching on citizens' rights? This country is huge and filled with places to hide. Whether the President disagrees with the law or not, it's not likely to be enforced well.

That said, a President can not prevent a federal officer from performing their duties under the law. If a federal agency busts a marijuana distributor in Denver, they are within their rights to do so, even if the President decides against encouraging the enforcement of that law.

This section also mentions commissioning officers of the United States. Specifically, this means civil officers, not military officers. In effect, this is mostly an addendum to the appointments clause in Section 2: once an officer is confirmed by the Senate, the President "commissions"  them, and they get to work. Though this step is mostly ceremonial, by being officiated by the President, the officer is vested with the executive power and authority they need to do their job.

Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
The final section of Article II details how and why you can remove a bad President. In short, only serious criminal acts can result in impeachment.

A President can not be removed from power due to simply sucking at their job. If that's the case, the country will just need to wait for the next election to remove them from power. Some at the Constitutional Convention wanted a provision that would allow Congress to impeach a President for incompetence, but what constitutes "incompetence" is subjective, and James Madison didn't want Congress to be able to terminate a President just because they didn't like him. So, impeachment is solely limited to criminal activities.

We have, of course, already gone over important impeachment cases in Article I, where Congress's right to impeach was established.

Continue to Part 20: Article III, Section 1

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