Aside from the question of whether the allocation of limited powers to the President means that Article II is skeletal or not, it certainly is true that the Constitution created an institutional presidency through its establishment of an executive branch. It is fair to say that the form or structure of Article II is skeletal with respect to the outlines of an institutional presidency, which imposes on the President significant administrative responsibilities The textual architecture of this creation provides language resolving some of the great disputes about the construction of the Presidency, as well as references to the organization of the administration. The first sentence of Article II, Section 1, points the way to a resolution of key conflicts: “The Executive Power shall be vested in a President.” Aside from the debate about the meaning of that clause, which is considered elsewhere, that simple declarative sentence discloses the Framers’ choice of a single, rather than a plural Presidency, as well as the title of the office. Whatever else the phrase “executive power” might mean or indicate, it is a given that it refers, at a minimum, to the duty of the President to enforce the law and make some appointments to office. One of the principal motives behind the invention of the Presidency was, in fact, the need for an Administrator in Chief, an omission in the Articles of Confederation that undercut governmental efficiency and enforcement of laws. Of course, the President cannot personally enforce the laws, a duty that is spelled out in the Take Care Clause of Article II, and which implies the creation of an organization or administration to facilitate that responsibility.
Two references to the issue of administrative organization are found in Article II, both of which stem from the broad congressional authority to enact statutes creating the departments and offices it believes necessary to promote efficiency in the governance of the nation. Article II, Section 2, Clause 1—the “Opinions Clause”—states that the President “may require the Opinion, in writing, of the principal Officer of each of the executive Departments, upon any Subject relating to the Duties of their respective Offices . . . .” The Opinions Clause reflects the Framers’ expectation that Congress will create departments and offices, and implies a division of labor within the executive branch. It also creates an administrative hierarchy with the President serving as the nation’s chief executive. The Framers’ articulation of this enumerated power, one that is virtually universally attributed to a chief executive officer and thus seemingly unnecessary to enumerate in the Constitution, is testimony to their careful attention to the demands of draftsmanship as well as the enumeration of powers doctrine.
Article II, Section 2, Clause 2 fills out the administrative role of the Presidency through a grant of the authority to make appointments to office. Presidential appointment of ‘principal” officers is reflected in the power to nominate and “by and with the Advice and Consent of the Senate,” to “appoint Ambassador, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States whose Appointments are not herein otherwise provided for, and which shall be established by Law.” The President’s appointment power is augmented by Congress, which “may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments.”
The President’s administrative responsibilities were described and explained by Alexander Hamilton in Federalist No. 72. In that paper, Hamilton wrote:
“The persons, therefore to whose immediate management these different [administrative] matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration.”
The Framers’ determination to establish the President as chief administrator was largely a reaction to the omission of such an office under the Articles of Confederation, as well as a common sense recognition of the need for an administrative organization that could enforce the laws, programs and policies of Congress. In this context the President was acting as an agent of Congress. Thus the President’s duties and responsibilities would hinge on congressional action in creating and repealing departments, offices, laws and policies. In this regard, the creation by Article II of an institutional Presidency was skeletal, since the development of the administration would be left to Congress.