Article II of the Constitution is the foundation stone of the American Presidency. It is, in fact, the source of all powers granted to the Office of the Presidency, those enumerated and those implied. The government, the Supreme Court has said on multiple occasions, in giving voice to the First Principle of American Constitutionalism, is “a creature of the Constitution,” and has “only those powers granted to it by the Constitution.” That first principle, a function of the fact that the people, as James Iredell explained it, ratified a particular Constitution, with a particular allocation of power and a particular division of responsibility. They did not ratify a blank sheet –a “lump of clay,” in Thomas Jefferson’s words– an object to be manipulated and reshaped by the three branches of government which, indeed, derive their powers solely from the Constitution. This understanding precludes resort to the claim of extra-constitutional powers, that is, authority not derived from, or grounded in, the Constitution. Accordingly, the Presidency is a creature of the Constitution and derives its powers solely and exclusively from the four corners of Article II. The mere wish for a power, James Madison explained, does not create it; it must be grounded in the Constitution.
Article II, it has been asserted, is skeletal; its provisions are loosely drawn, vague, imprecise and indefinite in comparison to those defining the powers of the other coordinate branches. While it has been conceded that there is ample detail pertaining to the election and tenure of the President, the powers and duties, on the other hand, are said to be stated in general terms. Not everyone has surrendered to that characterization of presidential powers. Indeed, it has been observed that the powers granted to the President are spare and lean, few and meager, particularly when compared to those vested in Congress. Accordingly, the provisions of Article II, it has been maintained, are not so vague, but rather sparse and carefully eked out from what would have been grants of power to Congress. They are, in point of fact, enumerated in some detail. Thus, the argument goes, it might not be true that Article II is skeleton-like; rather, it may be the case that it is brief simply because the Framers wanted to vest in the President only a few, express and limited powers.
The case for the enumeration of presidential powers was presented by several delegates, perhaps most prominently by Madison. He stated that presidential powers should be “defined and confined.” And so they were. The principle argument in favor of the Enumeration of Powers doctrine drew from deep historical experiences. From the colonial period forward, Americans had been distrustful of general grants of authority, for they defied limitations of power. Protection for liberty was better served, they believed, through more precise definitions of power, so that officeholders and citizens alike might be better informed about the allocation of authority because they could see it expressed in the text. The same principle would guide the First Congress in enumerating the liberties embodied in the Bill of Rights. Enumeration of powers alone would not necessarily fence in the exercise of power, for Madison himself had noted that mere parchment could not prevent those committed to the abuse of power. But it would help, since it would provide meaning and substance to the Doctrine of Checks and Balances which, if one considers it, would have little utility if that which it was checking had amorphous boundaries that could not be identified, monitored and checked.
The Framers were careful draftsmen. The Constitution, as a whole, wastes few words, and the debates themselves reveal the drafters’ attention to detail and the need for nuance. While they, and we, might quibble over the use of language employed in the Constitution, it is unpersuasive to argue that the Framers were careless in their wording. Indeed, the document itself reveals the delegates’ own sense of the importance of terms and, with it, the entire scheme of enumeration of powers and responsibilities.
Article II details the express or enumerated powers vested in the President. These provisions are explained and examined throughout these lectures. They include clauses, powers and responsibilities well known to the American citizenry, including the Commander in Chief Clause, the Take Care Clause, the Treaty Power and the Appointment Power, as well as lesser known provisions such as the Reception Clause and the Opinions Clause. If arguments about the meaning or scope of power persist, as they certainly do, the mere existence of debates does not warrant the conclusion that argument itself betrays the purpose of the enumeration of powers, that it is full of promise but nevertheless hollow. Rather, it is more reasonable to conclude that there is room for disagreement about the contours and parameters of authority. But that acknowledgment merely places the Constitution in the context of disagreements about the meaning of laws for the past 3,000 years. Where textual language is imprecise, as it is in various places, it bears reminder that it is instructive to pay attention to what the Framers actually said and did. Thus, our analysis includes key components from the illuminating discussions and debates in Philadelphia.
Apart from the enumeration of presidential powers, there remain important questions, long the subject of public interest and academic debate. Does the President possess, by virtue of Article II, powers variously called inherent, emergency or prerogative powers? If so, is that authority found in the Vesting Clause, that is, the first sentence of Article II: “The executive Power shall be vested in a President”? If not, is it located in another clause? The debate on the issue of inherent power is considered in Section 2 of this section of the course. Moreover, does the President enjoy “implied powers” that are derived from the enumerated or express powers outlined in Article II? That question is taken up in Part III, Section 9 in this course.