Let’s Talk About Civics: The Executive Branch

In the last Civics 101 post, I discussed the basics of U.S. civics, including the foundations of the U.S. Government and the U.S. System of Government. And as we discussed, the U.S. Government has 3 branches. Today’s post will focus the executive branch.

First, a small, but necessary disclaimer

I’m writing about these concepts in a brief, almost elementary way. This series of posts is in no way a comprehensive or complete discussion of civics but will simply provide a basic overview. I encourage everyone to do their own research. In fact, I link to texts, documents, books, and other resources for your reference.

The Executive Branch

The executive branch is established in Article II of the U.S. Constitution, which vests the executive power of the United States in a President and Vice President.

Side note: the National Archives is a wonderful resource. Go check it out!

What Are the Executive Power & Duties?

The President is the U.S. head of state. The primary powers of the President are to direct the executive branch of the federal government and be the commander-in-chief of the United States Armed Forces.

As the head of the executive branch, the President executes and enforces federal law. To accomplish this, the President appoints, with the advice and consent of the Senate (one of the checks and balances of power), federal executive officers. These executive officers include the Secretaries of each department (e.g., Secretary of [the Department of] Defense, Secretary of the Treasury [Department]), and the heads of the agencies.

And while Congress passes the law, the President takes an active role by promoting his policy priorities, both domestic and foreign, to members of Congress. The President may also veto legislation passed by Congress (another check and balance). A bill only becomes a law once the President signs it. (Of course, there is an option for Congress to override, but that is a legislative branch power to be discussed next time.)

As commander-in-chief, the President is in charge of the U.S. armed forces. The President decides where troops are stations, where ships are sent, and how weapons are to be used. The President also sets military policy and appoints the Joints Chiefs of Staff (a body of senior uniformed leaders in the Department of Defense who advise the President).

The President also appoints diplomats and judges as well as negotiates and enters into treaties with foreign powers (again with the advice and consent of the Senate).

Other powers of the President include granting federal pardons and reprieves and calling a special session of Congress under “extraordinary occasions.” While the Presidential pardon power has been used by almost every President, the President has only exercised the power to call Congress 46 times, most recently by Harry S. Truman in 1948.

Who Can Be President?

Article II of the Constitution sets forth only 3 qualifications for holding the office: (1) natural-born citizen, (2) at least 35 years old, and (3) has been a resident in the U.S. for at least 14 years.

While in recent times there has been debate on what “natural born citizen” means and the phrase has been mentioned in several decisions of the U.S. Supreme Court, the Supreme Court has never directly addressed the question of a specific presidential or vice-presidential candidate’s eligibility as a natural-born citizen.

But it is clear from Constitutional history that the purpose of qualification 1, and to a lesser extent 3, was to secure the nation from foreign influence.

As for the age requirement (Congress also has one), there is very little historical information on it. There was little public debate during the Constitutional Convention in Philadelphia, and only a few mentions in other publications, like the Federalist Papers. While the age minimum has been challenged in court, it has never been successfully challenged.

What Are the Limits on the Office of President?

In addition to the personal qualifications above, the Constitution limits the office of the President to a 4-year term. But the Constitution did not limit the number of terms a President could be elected.

Many scholars cite to George Washington establishing the precedent of a President only holding 2 four-year terms. Due to declining health and exhaustion, Washington declined to run for a 3d term of office. And several subsequent Presidents followed Washington in only serving 2 terms. But not all.

Several Presidents sought a 3d term, but only Franklin D. Roosevelt succeeded in being elected 3 times. It was when FDR ran for his fourth term in 1944 (which he won but died soon thereafter), Congress began discussing limiting presidential terms.

In 1947, Congress passed the 22nd Amendment, which limited the number of times a person could be elected to the office of President to two. This amendment was ratified in 1951. (More on Constitutional Amendments in a future post.)

So today, a person may only be elected 2 times to the office of President.

The Constitution also provides that Congress may create laws to provide for the removal, resignation, death, or the inability to discharge the powers and duties of office. The President may also be removed from Office on impeachment for and conviction of treason, bribery, or “other high crimes and misdemeanors.”

What About the Vice President?

The Constitution says little on the Vice President. Article II states that the VP is “chosen for the same term” as the President. And if for some reason the President is removed, resigns, dies, or is unable to discharge the powers and duties of office, the powers and duties of the office “devolve on the Vice President.”

The VP, like the President, may also be removed from office, along with all “civil Officers of the United States,” on impeachment.

And Article I, section 3 provides the VP is “President of the Senate, but shall have no Vote, unless they be equally divided.”

Basically, if only reading of the Constitution, the VP is a Presidential and Senate back-up plan.

How Does A President Get Elected?

This is where the U.S. varies from how other countries’ heads of state are chosen. The Constitution provides for the President to be chosen by a vote of Electors, today known as the Electoral College. But what is that and how does that work?

To clarify, the Constitution only refers to “electors” and “Electors.” The phrase “electoral college” didn’t come into use until the 19th century and was written into federal law in 1845. Today, the term appears in 3 U.S.C. § 4 and refers to group of electors

Electors can be anyone in your state—your neighbors, friends, colleagues. It is up to each state’s legislature to determine how they chose their electors. The Constitution only says that an elector cannot be a U.S. Senator or Representative or hold an “Office of Trust or Profit under the United States.”

The number of electors per state is based on that state’s total number of Senators plus Representatives (the state’s Congressional delegation). As we will discuss next time, each State has 2 senators, but the number of Representatives varies based on population. The minimum number of electors is 3 (2 Senators + 1 Representative). So there are a total of 538 electors (100 Senators + 435 Representatives + 3 for D.C.)

To be elected President, a candidate must receive a majority of 270 electoral votes.

As a side note: the 23rd Amendment provided that D.C. was entitled to a number of electors no greater than that of at least populous state (so 3). But because the U.S. territories (Puerto Rico, Guam, American Samoa, Northern Mariana Islands, & the U.S. Virgin Islands) do not have a voting Congressional delegation, citizens in these territories may vote in the Presidential primaries, but do not have Electors in the electoral college.

What Does This “Electoral College” Have To Do With Anything?

The Presidential election takes place every 4 years on the first Tuesday after November 1, commonly known as “Election Day.” Election Day is when the of-voting age population goes to the polls to vote for President.

Side note: in the U.S., you must be 18 to vote.

On Election Day, a ballot may include other races, such as other candidates running for the Senator, Representative, state offices, or even local offices, but I am only referring to the U.S. Presidential election.

So when Susie Citizen looks at the Presidential candidates on her ballot, Susie is not actually voting for her chosen candidate to be President. Susie is actually voting for the electors who pledged to vote for that candidate.

The Election Day law (currently found at 3 U.C.S. § 1) actually that Election Day is the day the electors are appointed.

What?

That’s right. Each Presidential candidate has his or her own group of electors. And the so-called “popular vote” is really only a vote for a group of electors who pledge to vote for that particular candidate.

And once the popular votes are cast on Election Day, then things get a bit more complicated.

Most states have a “winner-take-all” system that awards all that state’s allocated electors to the presidential candidate who received the plurality of votes. (Maine and Nebraska are the exception and a variation of “proportional representation.”)

It is because most states have a winner-take-all system that the news media reports on Election Day which candidate has “won.” But it’s not official because there’s more.

After the presidential election, the governor of each states prepares a “Certificate of Ascertainment” listing all of the candidates who ran for President in that state along with the names of their respective electors. The Certificate of Ascertainment also declares the winning presidential candidate in that state and shows which electors will represent the state at the meeting of the electors in December of the election year. This certificate is sent to Congress.

Side note: the certificate is also sent to the National Archives to be a part of the official records.

Next, each state’s winning slate of electors meets at their state’s capital on the first Monday after the second Wednesday in December. This is when the electors cast their electoral votes on separate ballots for President and VP.

I told you it got a bit complicated. But wait, there’s more.

Technically, an Electoral College member can vote for anyone (this is what the Constitution allows), but most states have laws that punish “faithless” electors (those who do not vote as they have pledged because remember, each Elector has pledged to vote for a certain candidate). Each elector’s vote is recorded on a “Certificate of Vote” and also sent to Congress.

On January 6 following Election Day, each state’s electoral votes are counted. Members from both the House and Senate meet in the House chamber to conduct the official tally of election votes. The VP, acting in capacity of President of the Senate, opens the votes.

If no candidate receives a majority of the electoral vote (270), the President is determined by the rules outlined in the 12th Amendment—the selection is then decided by a contingent election in a ballot of the House of Representatives. For the purposes of electing the President, each state has only one vote. A ballot of the Senate is held to choose the Vice President. In this ballot, each senator has one vote. The House has chosen the victor of the presidential race only twice, in 1800 and 1824; the Senate has chosen the victor of the vice-presidential race only once, in 1836.

So this is why a candidate may technically win the popular vote, but lose the election because the candidate failed to receive 270 electoral votes. Because of this, there has been discourse and debate over whether the Electoral College should be abolished. But that would take a Constitutional Amendment (which we will discuss in a future post.).

For a good discussion of how the popular vote can differ from the Electoral College, check out this TedX video.

And stay tuned! Next Monday on Civics 101 we will discuss the Legislative Branch.

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