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GOVT 2302. The Executive Constitutional Design. In the last section we discussed the development of the executive branch from the Norman Invasion through the British Bill of Rights, and the problems of executive power as explained in the Declaration of Independence.

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GOVT 2302

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GOVT 2302

The Executive

Constitutional Design

In the last section we discussed the development of the executive branch from the Norman Invasion through the British Bill of Rights, and the problems of executive power as explained in the Declaration of Independence.

One of the principle points made was that over the course of British history executive departments (what we could refer to as the state) were developed.These made it easier for the monarch to implement the law.

It also allowed for abuse which led to the opposition of the House of Commons, the signing of the English Bill of Rights, and the establishment of the constitutional monarchy.

The grievances listed in the Declaration of Independence argued that the king was usurping colonial executive power. The colonists would no longer be able to execute the law, it would be done for them.

The lesson initially learned was to not have a national executive. None existed under the Articles of Confederation. This made governing the states difficult, so the decision was made to establish an executive of some sort in the constitutional convention.

As we already know, the U.S. Constitution would establish a singular executive on the national level. This was partly due to the trust granted to George Washington since he seemed capable of restraining his ambitions.

We also know that Texas established a plural executive partly because governors during reconstructions did not seem similarly capable.

In this section we look at the product of that evolution.The executive branch as designed in the U.S. and Texas Constitutions.

We will read through the Constitutional design of the executive branch on each level and will touch base on the various issues raised in each of these sections.

We concluded the last section with a discussion of the problems the Federalists had with the lack of a centralized executive. Policy implementation on the national level was impossible.

But there were legitimate concerns that the establishment of a national executive branch, especially a single headed office, would allow a tyranny to emerge.

The central question addressed on the national and state level was the basic design of the chief executive.How can it both effective and restrained?

We want energy in the executive, but we also want to limit abuses of executive authority.How? What design decisions were necessary in order to determine how best to accomplish this in the long term?

For good sources outlining these conflicts click here: The Constitutional Convention: Day by Day SummaryLOC: Federalists Papers

The design of the executive was considered on the following days:June 1June 2June 4July 17

July 18July 19July 20July 26August 20August 24

August 25August 27September 4September 6September 7September 8

A sample of issues debated during the convention

1 - The idea of a singular executive was introduced immediately and was subject to great debate from the start.

The virtues of the singular design:Unity, Consistency, Effectiveness

But an elected executive could turn into a monarchy, and elected monarchies are the worst kind.

2 - Should the president be elected by a direct vote by the general population, or some other method?

A direct connection to the general population might allow the president to gain the popular support that would allow for increases in power.

Again, the principle lesson from history:

Julius CaesarHe gained power by stirring popular opposition to the Senate. By doing so he undermined the vitality of the Roman Republic.(is this a lesson?)

The general public has had a peculiar tendency over history to support the establishment of strong executive authority.Napoleon, Stalin, Hitler See the Wikipedia entry on Populares.

An indirect connection between the executive and the people would moderate this tendency, but potentially allow executive power to become intertwined with whatever institution selected the office.

An electoral college where individuals are selected to only elect a president and nothing else would be less likely than other institutions to become intertwined with the executive.

3 - What control should the president have over the bureaucracy?Should the office have the sole power of appointment? Or should some other institution?

Presidential control allows the institution greater control over the implementation of laws, but also allows the bureaucracy to be used for the personal needs of the president.

The bureaucracy needs to be both professional and independent.

4 - What relationship should the executive have with the other branches?

Checks and BalancesEach branch is given the power to resist potential effort of the executive to control them.

The executive helps limit the power of the legislative and judicial branches.It is also limited by them.

Constitutional languageId advise that you open up the following links in order to get an idea of what the design of each institution looks like.

The Constitutional Design of the Unites States Executive:Article 2 of the U.S. Constitution4 sections - 1,072 words

The Constitutional Design of the Texas Executive: Article 4 of the Texas Constitution26 sections - 4,243 words

As with the legislative branches, the design of the United States executive is vague and open ended while the Texas executive is precise and limited.

Heres a walk through the national Constitution.

The U.S. Constitution Article Two Section OneClause OneFor further information about presidential power read The Power and the Scope of Presidential Power.Background from the Founders Constitution.

The Executive power shall be vested in a President of the United States of America . . .

This is the vesting clause. It vests executive power in a single individual. This, in very simple language, establishes the singular executive.

Hamilton was a strong proponent of an energetic executive, a singular form was one of the factors necessary to allow for energy. Federalist #70

The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.The ingredients which constitute safety in the republican sense are, first, a due dependence on the people, secondly, a due responsibility.

That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.

Some proposals were made for an executive council.Others argued this would be too weak and indecisive to effectively implement the laws passed by Congress.

Note that there is no qualifier on his the extent of executive power (no phrase like herein granted which we saw in Article One) as there is with the legislative power. Is there significance to this?

Some argue yes, it means that the president possesses all executive power.The Unitary Executive Theory

The strong version of this theory holds that the Congress has little power to interfere with how the president implements laws, but others argue this violates the checks and balances and allows for tyrannical power to evolve in the office.

There is debate regarding how extensive this power should be, especially when it comes to the inherent powers of the commander-in-chief.

The Inherent Powers can include anything a commander in chief thinks is necessary to successfully fight a war. Often these can involve the suspensions of civil liberties and the allowance of unreasonable searches and seizures and detention without due process.

The U.S. Constitution Article Two Section OneClause OneContinued . . .

. . . He shall hold office during the term of four years, and together with the Vice President, chosen for the same term, be elected as follows

This refers to the term of office as well as the means that the office is elected.

The Four Year Term was considered to be too short for those who wished an active government or too long for those who feared tyranny.

From Cato number 4: It is remarked by Montesquieu, in treating of republics, that in all magistracies, the greatness of the power must be compensated by the brevity of the duration; and that a longer time than a year, would be dangerous.

But annual terms can be ineffective. How short is too short?Hamilton argued in favor of life time service in order to ensure that presidents have the strength to carry out congressional laws.

A favorite claim of the anti-federalists was that where annual appointments end, tyranny begins.Longer terms allowed presidents to establish relationships with private interests that would keep them in power for as long as they liked?

As we know George Washington established the tradition of presidents stepping down after two terms. This established the tradition of the peaceful transition of executive power.

This was similar to his stepping down after the end of the Revolutionary War.

No president served more than 2 terms until Franklin Roosevelt ran for a third and fourth term in 1940 and 1944.

Roosevelt argued that it was necessary to maintain stability during times of crises.Opponents thought it was a power grab.

The 22ndAmendment was added to the Constitution to limit presidents to two terms.

The U.S. Constitution Article Two Section OneClause Two and ThreeRead The Electoral College in for further information. Background in the Founders Constitution.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Aside from this section, nothing regarding the presidential election is granted to the national government.

What follows is the design of the Electoral College, which was an unusual way of ensuring the office would not be directly elected, thus likely to merge with the House of Representatives. It was felt that an electoral college would be composed of people aware of who could best serve as a president, and who were not in a position to engage in any intrigue about it.

Heres the original text

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

In brief, each state was assigned a number of electors equal to its total representation in Congress. Each elector had two votes. The majority winner became president while second place became vice-president.

This gives the states additional power over the selection of the president. Smaller states are more significant with the electoral college than they would be with a direct election.

Circumstance surrounding the election of 1796 where the leaders of each party became president and vice-president led to the 12th Amendment, which made them run on one ticket.

Heres the text of the 12th Amendment.(I know the text is small)

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The principle change is that presidents run together with vice presidents. As we know from 2301, this change recognized the growth of parties. Presidents are commonly assumed to be the heads of their parties.

Its worth discussing one of the consequences of the current state of presidential elections.Presidential Primaries Coupled with the increased ability of candidates to connect directly with the population through increasingly sophisticated media operations.

The development of primaries has weakened the ability of parties to handpick candidates.

Presidential candidates that are able to connect effectively through the media have advantages over those that cannot.They can develop their own identity apart from the party.

This is argued to have changed the type of person likely to get elected president. It pays to look good on television.Heights and good hair helps as well.

The U.S. Constitution Article Two Section OneClause FourFor further information about presidential power read Background from the Founders Constitution.

The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

This is a legislative check on the executive.Congress sets election day.

The U.S. Constitution Article Two Section OneClause FiveFounders Constitution.Findlaw.

No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

This office has the highest age and residency requirement of any office created in the Constitution.

The U.S. Constitution Article Two Section OneClause SixFounders Constitution.Findlaw.

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected

If you read carefully you note that this does not establish that the Vice-President becomes President on the death, disability or removal of the President. He simply assumes the powers of the office. Two amendments were added, 20th Amendment and 25th Amendment, to clarify that.

The 25th Amendment also allows Congress to establish a line of succession to the president.

The U.S. ConstitutionArticle TwoSection OneClause SevenFounders Constitution.Findlaw.

The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

The President is to be paid, but the amount of pay cannot be increased nor decreased. Either would create the opportunity for corruption, either bribery or blackmail.

The Current salary of the president is $400,000.

This is an executive check on the legislature. Or at least it provides the executive freedom from the manipulation of the legislature.

The U.S. ConstitutionArticle TwoSection OneClause EightFounders Constitution.Findlaw.

Before he enter on the execution of his office, he shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Controversy: Did Washington add so help me God to the end of the oath?Click here for commentary.Some random thoughts on the oath.

The U.S. ConstitutionArticle TwoSection TwoClause OneFounders Constitution.Findlaw.

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;

This means that the military is headed by a civilian.This is to ensure that the civil power stays superior to the military power.

One of the arguments offered to support the ratification of the Constitution was that a stronger national government would make armed conflict less likely.

Federalist #4. . . the safety of the People of America against dangers from foreign force, depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed that there are pretended as well as just causes of war.

Inherent PowersTorture?Warrantless Searches?

Commander-in-Chief PowersThese can be controversial powers during time of war since they can be taken to imply that presidents have surveillance powers that go beyond limitations stated in the Bill of Rights.

Is There an Exclusive Commander-in-Chief Power?

Perhaps the most noteworthy use of commander in chief powers was the Emancipation Proclamation.

Now that the U.S. has a seemingly permanent peacetime military, is there any need for declarations of war? Can the president use the military as he sees fit? Does this include proactive uses?

The U.S. ConstitutionArticle TwoSection TwoClause One (continued)Founders Constitution.Findlaw.

. . . 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,

This alludes to the existence of executive departments, though it does not establish what departments are to exist.

The executive agencies are established by acts of Congress passed over the course of time. This is true for almost all executive positions.

It suggests that the heads of the executive departments, what would become the Cabinet, would serve as an advisory body.

Some discussion existed in the Constitutional Convention over what departments ought to be established, but these were not added to the Constitution itself.The First Congress would do so.

Controversy: Executive Privilege

Are the conversations that a president has with advisors fully private? Can an advisor be subpoenaed and forced to testify about the advise given the president or does this undermine tha ability of a president to get good council?

The U.S. ConstitutionArticle TwoSection TwoClause One (continued)Founders Constitution.Findlaw.

. . . and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

This is an historical check on judicial powers. Monarchs have traditionally been able to grant clemency to those they deem worthy, or opportunistic.

These can be among the most controversial decisions a president can make.Fords pardon of NixonH.W. Bushs pardon of WeinbergerClintons pardon of Marc Rich

A further controversy: What impact does this have on judicial responsibility for wrong convictions?Does the Supreme Court care about innocence? For justice? Or do they kick this responsibility over to the executive?

The U.S. ConstitutionArticle TwoSection TwoClause TwoFounders Constitution.Findlaw.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; . . .

The President is Head of State, and is has authority over the countrys diplomatic powers. The office is responsible for negotiating treaties, but the Senate has a check over this power since they get to ratify the treaties.

Presidents can by pass this check by negotiating executive agreements, which are more limited in scope that treaties. These do not need to be ratified by the Senate.

The U.S. ConstitutionArticle TwoSection TwoClause Two(continued)Founders Constitution.Findlaw.

. . . and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, 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:

High level executive and judicial officials who are appointed by the President must be confirmed by the Senate. This is a legislative check on executive power.

The U.S. ConstitutionArticle TwoSection TwoClause Two(continued)Founders Constitution.Findlaw.

. . . but the Congress 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.

Lower level officials can be appointed by the President, or even lower levels officials, without Senate confirmation. This includes the process for hiring people to the civil service.

The U.S. ConstitutionArticle TwoSection TwoClause Three Founders Constitution.Findlaw.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This power is used when the Senate refuses to confirm, or consider the appointments of the president. These are called recess appointments.

The U.S. ConstitutionArticle TwoSection ThreeFounders Constitution.Findlaw.

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; . . .

This is a check on the legislature. The president can help set Congress agenda. This is always a public event, which allows the president to use the media to go public, take a message directly to the general population.

. . . . he 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.

He can call special sessions to address both chambers in order to highlight a special initiative or for some other special occasion.

The power to adjourn Congress is very limited. It only occurs when a disagreement exists between the two chambers regarding when to adjourn. He lacks the power to force an adjournment over their objections.

The U.S. ConstitutionArticle TwoSection ThreeFounders Constitution.Findlaw.

He shall receive Ambassadors and other public Ministers; . . .

The president has the unilateral power to recognize foreign countries. The Senate does not have to approve the decision. This is part of the presidents diplomatic powers as Chief of State.

The U.S. ConstitutionArticle TwoSection ThreeFounders Constitution.Findlaw.

. . . he shall take Care that the Laws be faithfully executed . . .

The president does not have the prerogative power to suspend the laws. He is Chief Executive and bound by the laws passed by the legislature.

The U.S. ConstitutionArticle TwoSection ThreeFounders Constitution.Findlaw.

. . . and shall Commission all the Officers of the United States.

This is the last of the presidents constitutional military powers.

The U.S. ConstitutionArticle TwoSection Three Founders Constitution.Findlaw.

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.

This was a check the parliament had on many executive officials that advised the monarch.

The definition of high crimes and misdemeanors is up for debate.

The Constitutional Design of the Texas Executive

Article 4 of the Texas Constitution

The Texas Constitution is longer and more detailed. The powers of the governor are specified further. The powers of the plural executive are also listed.

Texas plural executive is argued to have been a response to the perceived abuses the state suffered under reconstruction as well as the alleged corruption of the administration of E.J. Davis.

The Texas governors office is generally considered to be one of the weaker ones in the country.

Sec.1.OFFICERS CONSTITUTING THE EXECUTIVE DEPARTMENT. The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General.

Sec.2.ELECTION OF OFFICERS OF EXECUTIVE DEPARTMENT. All the above officers of the Executive Department (except Secretary of State) shall be elected by the qualified voters of the State at the time and places of election for members of the Legislature.

The governor originally had a two year term and rapid turnover was common.

Beginning in 1974, the term expanded to four years, and executive commissions established since then are appointed by the governor. This has led to an increase in the governors powers.

The ability to make appointments to key state agencies gives the governor power that the office did not previously possess.

A quick look at parts of the Texas Constitution that differ from the U.S. Constitution



Sec.16.LIEUTENANT GOVERNOR. (a)There shall also be a Lieutenant Governor, who shall be chosen at every election for Governor by the same voters, in the same manner, continue in office for the same time, and possess the same qualifications. The voters shall distinguish for whom they vote as Governor and for whom as Lieutenant Governor.(b)The Lieutenant Governor shall by virtue of his office be President of the Senate, and shall have, when in Committee of the Whole, a right to debate and vote on all questions; and when the Senate is equally divided to give the casting vote.

Sec.21.SECRETARY OF STATE. There shall be a Secretary of State, who shall be appointed by the Governor, by and with the advice and consent of the Senate, and who shall continue in office during the term of service of the Governor. He shall authenticate the publication of the laws, and keep a fair register of all official acts and proceedings of the Governor, and shall, when required, lay the same and all papers, minutes and vouchers relative thereto

Sec.22.ATTORNEY GENERAL. The Attorney General shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.

He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law.

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