[BLANK_AUDIO] Welcome back. We're in the middle of a conversation about Article 2 of the Constitution, the Executive Article, the article centered on the United States Presidency. We've already begun to talk about one of the most important powers of the presidency, the veto power. And that power is actually textually in Article One of the constitution, which talks about how laws are to be made. It's, it's an extraordinary power because, in effect, the president is almost a third branch of the legislature. So a lot has to get the approval of not just of the House and the Senate but, as a practical matter, the president too. Now, it's true that a presidential veto can be overridden by a two thirds vote of each house of Congress, but that's a very hard thing to do. It's an especially hard thing to do once political parties emerge on the scene, because usually, the president's party will have at least a third plus one in a single house. And indeed, as we'll see later on, the first, it's not until after the Civil War that any presidential veto of any significance is actually overridden by Congress. Now, to give the president a sufficient sort of fortitude to use that veto power, and remember, this veto power that makes the president far more powerful than virtually every state governor in 1788. Only the Massachusetts governor has a veto pen comparable to the president's veto pen. Whereas, today, all the governors have veto pens. Some of them, can be overridden with less than two thirds, but, but all of the governors look more like presidents now than was true at the founding. The, the governorships have been basically reinvented, in the image of, of the presidency. Now to bolster this, this veto power, the Constitution gives a president a four-year term, so he has, has a while to, to make his, if he vetoes bills early on, to make his case before the American people. Before he has to, return to them for, for reelection. He also has a guarantee, a constitutionally guaranteed salary. Congress can't augment the salary if they like what he's doing and want to basically sort of bribe him to, to pass, to sign more laws, and they can't diminish his salary so as so to punish him for exercising that veto power. He has more salary independence from the legislature than even the judiciary, the judiciary salary, and we'll talk about the judiciary in the next couple of sessions. The judiciary salary can't be diminished, but it can be increased, and the reason is, judges are going to serve for a very long time, maybe for life. There's going to be inflation, and so you might need to increase their salaries. Whereas presidency is a four-year term, and within that four-year term, inflation probably won't be so bad. So in order to bolster the president's in constitutional independence from, from Congress, his salary can't be increased or decreased. It gives him sort of a base on which to stand. So note here we see sort of, the idea of, of separation of powers, of checks and balances, of the idea of the president as independent of Congress, trying to counterbalance Congress, keep Congress from, from doing unwise or unconstitutional things. Remember, the veto power is especially to be used if the president thinks that Congress has acted not just unwisely but unconstitutionally. Fully half the vetoes before the Civil War were constitutional vetoes. Today one doesn't see that nearly as much in the presidency. Today, courts do a lot more constitutional stuff, maybe, presidents do a lot less. At the founding, this idea of salary independence strongly interacted with the veto power. And while we're talking about salary, let's just pause for a moment just to recall that we pay our presidents in America, that's provided for in the constitution, this is a democratic idea, an egalitarian idea, because if you didn't pay the chief executive, then only people who are fabulously wealthy could afford to serve. So along with the payment of the constitutionally provided for compensation for the members of the House and the Senate, the compensation structure provided for the presidency is a deeply egalitarian one. George Washington, at the beginning, actually said, oh no, you don't need to pay me. You know, I can, I can handle it. And Congress insisted that he be paid and that he accept the payment in order to establish this tradition, a republican tradition, a democratic tradition, opening the presidency to talent of all sorts. And as we've seen, there are no property qualifications, there are no religious qualifications, it's really quite striking. And the qualifications that do exist, like that a person be natural born and 35 years old, actually have an egalitarian structure to them. The presidency was especially hard for the framers to figure out, because they wanted an office much more powerful than the existing governors, who weren't really able to keep state legislatures in sufficient check, except maybe in Massachusetts, and maybe in New York, thought the framers. They want a presidency more powerful than state governors, but they don't want to create someone so powerful as to be the kind of tyrant king against who they've just successfully waged a military revolution, led by George Washington of course. So it needs to be bigger than a governor but not so powerful as a king, but there's a vast difference between those two. How do you sort of specify the powers for this new office, especially because Presidents do so many different things and it's maybe hard to identify all the things that they might need to do. And so Article Two actually begins in a very interesting way. It it says the executive power shall be vested in a president. And the question is and then it goes on to enumerate, to list, some of the powers that a president would have, some of the executive powers. But is that a comprehensive list? That's the question. And Article One, Article One begins, all legislative powers herein granted are vested in, in, in a congress. So, and then, so it itemizes, Article One does, all the congressional powers. So congressional power either has to be very explicit in, in in Article One, or implied in, in those enumerations. Sort of following from the basic structure and spirit, the spirit as well as the letter of those enumerations. But Article Two has been construed to give a president a residuum of, of executive power, from that very first sentence, all executive power is vested in the president above and beyond the items on the list. Where, for example, does it say explicitly that a President can fire cabinet officers at will? Well it doesn't. But early on, and we'll talk about this more in later sessions, but early on, the, the view basically prevailed that a president needs to be able to monitor his executive subordinates. He needs to wage foreign policy. So if he loses confidence in his Secretary of State, he's gotta be able to fire him or her at will. He's commander-in-chief of the army. If he doesn't like the secretary of defense, earlier called the secretary of war, he's gotta be able to fire that person at will. That's just the nature of executive power, it flows from the vesting clause of Article Two, that executive power is vested in the president, and that power includes the power to oversee your, your, your cabinet officers, your lieutenants. Where does it say in the Constitution explicitly the presidents can negotiate treaties? It doesn't, secretly even, doesn't quite say that, but, but that's part of the executive power. Where does a president get the, so, so get the abilities to, to repel an invasion get if, if some other nation attacks, to sort of resist. Again, I think it flows from the basic nature of executive power. Lincoln suspends the writ of habeas corpus, and critics say, what? Where do you get that authority? It doesn't say so explicitly in Article Two. And actually, the power to suspend habeas corpus is mentioned in Article 1, and that's actually the Legislature. So how can you as president do that? Even Kings of England can't do that. And here's what Lincoln says in response. You gotta understand that the presidency is always in session 24/7/365. Attacks may arise, insurrections and rebellions, when Congress isn't even in session. And indeed, the assault on Fort Sumter has occurred when Congress isn't in session. If I don't act immediately, and I'm the only one basically in office 24/7/365, there may be no constitution to come back to, when Congress finally comes back to town. So I have to act immediately in order to keep the constitutional system afloat. I've called Congress into session as soon as possible. I've actually accelerated their first meeting. And I get to do that, because, again, as the person sort of always on duty, I, I, I have to sort of monitor the situation. I've called them back into session. When they come into session, they're going to need to approve what I've done. But in the meantime, I, vested as I am with the executive power of the United States, above and beyond all the specific lists of presidential powers, have to have the authority to keep the United States going, to keep the constitution going, to preserve, protect, and defend the constitution as an ongoing project. Jefferson earlier took a kind of similar position. Congress and the Senate hadn't authorized him to negotiate with Napoleon for Louisiana and when Napoleon signals that he might be willing to sell the entire territory to the United States, Congress isn't in session. But Jefferson seizes the opportunity, this is a chance to secure the borders of the United States, to, to absolutely create a strong independent America that will be able to survive against European monarchies. To keep, basically, get the Spanish and the French largely out of the New World as well as having expelled the, the, the British at least from, from the the original colonies and states. So when that opportunity arises, Jefferson, who's the only one in there 24/7/365, seizes the chance. And the best textual defense of these unilateral exercises of executive power by the likes of George Washington and Thomas Jefferson and, and Abe Lincoln, negotiating treaties even without, secretly sometimes, without Senate pre-authorization acquiring Louisiana. Suspending the writ of habeas corpus, is that the executive power is vested in one person, who is continuously in office. That person can do a whole bunch of things to keep the United States afloat. And, here's the key, afterwards, Congress is going to need to approve a whole bunch of these temporary, unilateral measures. Any treaty that Washington negotiates is going to have to be confirmed by the Senate. The Louisiana Purchase actually was confirmed by the Senate, and then the House is going to have to agree to, to pass a law to, to, to pay Napoleon the, the, the price for the land. So, so Lincoln suspends the writ of habeas corpus, but Cong, but calls Congress into session, and Congress approves what Lincoln has, has done when he was the only one in town holding down the fort. So, the nature of Executive power is that it's continuous, one person always in charge, and he's in charge of basically preserving, protecting, and defending the project. And we don't want him to be a king, but he's way more than a governor, and we see that when we look at some of the specific powers. The president, for example is commander-in-chief, and that's way more powerful, of the army and of the militia when it's in actual service, and that's way more powerful than any governor, you know, he controls continental professional troops. But he doesn't control the militia at all times, states actually control militias, and there's a kind of check against a possible arbitrary military coup d'état, tyrannical takeover. So that's unlike England where the, the king is basically the head of all the armed forces at all times. So more than a governor, less than a king. The king can pardon anyone, any time, even in an after an impeachment. A president can pardon only for federal officials federal offenses, not state offenses and can't spare someone the, a punishment of the sanction of an impeachment court. So, less than a king, but way more powerful than most governors, who didn't have comparably sweeping unilateral pardon power. Why does a president need the power unilaterally at any moment to pardon someone even before a crime has been, a criminal has been indicted or convicted, a president can issue a pardon pre-conviction, pre-trial, pre-indictment. At any moment after the crime has occurred, the president can simply say, I pardon you. Way more powerful than a governor. Why? Well, partly for national security reasons. And again, this idea of 24/7/365. Suppose there's an insurrection somewhere, and Congress might not even be in session. But if the president has the ability at any moment to say to the rebels, lay down your arms and I will spare you, I will be merciful. You know, I will not prosecute you. He might have that and he's maybe, again, the only one in, in town when the insurrection breaks out. That unilateral power to pardon at any time connects to our larger stories about national security and the continuity of executive power. So the president is way more powerful than a governor, but less powerful than a king. Kings can negotiate treaties. or, kings of England used to be able to negotiate treaties at will, and implement, and ordain them. Maybe if money was required to implement them, Parliament might need to get involved, but not necessarily for all treaties. Presidents can negotiate treaties unilaterally, but the Senate is going to have to give its advice and consent under the Constitution. So, less powerful than a king, but obviously more powerful than the governors, who aren't involved in a treaty-making process. Presidents are going to be able to pick their Cabinet officers, that wasn't true in most states. The upper counsel, the governor's counsel, was often not picked by the governor but by the legislator or by other forces. But Presidents are going to be able to pick their, their cabinet officers, their advisors. But again, the senate is going to have to confirm those officials' advice, and consent. So presidents aren't going to be able just to pick their, their sons in law or something, their incompetent sons in law. There's going to be a check. A senate checking this power, so more powerful than a governor, but way less powerful than kings, who were able to create offices at will and, and, and, and fill them. The king was the font of all honor in England, and, and the embodiment of, of, of Britain, internationally. So could, could unilaterally ordain treaties. and, and create offices. President has less power than that, but way more than a governorship. Perhaps the biggest, a related feature of, of the various powers of the presidency are that he's a person who doesn't just implement laws one by one, but all of them all together. He, he is in supposed to give reports on the state of the union. And, and recommendations to congress. He's a generalist. He has to sort of see how all the laws are working together. And this is another argument that Lincoln makes. Listen, if I, there may be certain statutes and certain court orders, but if I enforce them, maybe as a practical matter, other laws and other constitutional provisions won't be enforced, so you have to give me some leeway to try to basically make the whole project, the constitutional project, as a whole, work. Well, that's, that's a very dangerous and powerful office, and I just defended the idea that presidents can do things that even kings of England were not allowed to do, namely, to suspend the writ of habeas corpus temporarily until Congress could be called back into session. So why would we ever give a president more power than a king? And the answer is because we have two important checks on the presidency. First, election. Kings of England can be idiots can be tyrants, they just, they're, they're born and, and you're stuck with them. We pick our presidents and we pick them very carefully. There's a vetting process, and so, up front ex ante, we have a lot of checks to make sure that this person who wields awesome power is going to be someone we have a lot of confidence in. We've created a very elaborate and democratic system of presidential succession, selection, excuse me. And we have some, and, and, and here's one of the biggest checks and balances, not true for the British monarchy. If they misbehave, there's always impeachment. Kings of England couldn't be impeached in the case of, of misbehavior. So what do you do when you have a tyrant king? Well, in England, sometimes, you basically had to behead him. Charles the First which led to the English civil war in the 1640s. Or chase him off the, the, the throne and force, and force him into exile. As occurred in the glorious revolution with James the Second. So but in America, we have a much more democratic and peaceful system. You don't have to behead the person. You don't have to sort of force them into exile. You can just remove them peacefully from power. Do it democratically with the House and the Senate. And and limit the punishments. It's not going to be a criminal process. It's it's the punishment in cases of impeachment will be limited to removal from office and possibly disqualification from holding future office. So it's a, it's a democratic system. It's a limited system, and and it's going to prevent and so it doesn't lead to a necessarily automatically criminal sanctions. And we specify a standard. High crimes and misdemeanors. Now that's a little bit of a fuzzy standard. But we create a democratic system to implement it: the House of Representatives and the Senate of the United States. We're going to talk more about impeachment in future sessions. One little feature, interesting to note, about presidential impeachment. And the president isn't the only person who is impeachable. So are cabinet officers and judges. But when a president is impeached, that is, indicted, in effect, by the House to be tried in the Senate, the person who presides constitutionally is the chief justice. Why? Because otherwise, who would be the ordinary presiding officer of the Senate? The Constitution says it's the vice president. And you don't want the vice president, basically, presiding over a trial that could, if it results in a conviction, make him president. He would have too much at stake. So that wouldn't be fair, that wouldn't be impartial. So, so when Presidents are impeached, chief justices preside, precisely because vice presidents shouldn't. Which raises the interesting question, who should preside when the vice president is impeached? The constitution doesn't say explicitly. And if you just read its words literally, perhaps an argument can be made, well, then he gets to preside. He's the presiding officer of the Senate. But can that be right? In later lectures, I'm going to argue that that can't be right. That we have to read not just the Constitution's written text but its unwritten spirit. So stay tuned on that, we will come back to the fascinating little wrinkle of vice presidential impeachment. But before we go, I promised to tell you a little bit about the picture that's associated with this chapter of the book. It's the chapter of the book, the book is America's Constitution: A Biography, it's been our guidebook throughout this, this part of the, the course. And, and you don't have to read it, but if you do, you'll get a lot more details than I'm able to, to summarize here. And chapter five is entitled Presidential Powers, and that's what we've been, been talking about for the last couple of sessions. Remember our last chapter, we had George Washington's picture up there. This is a picture of Andrew Jackson, and if you understand this picture, you understand a lot of themes so far. This is a picture that says, King Andrew the First. See, because, the critics of Andrew Jackson are saying he's acting like a king. That's the anxiety, our presidents going to become like kings. And so they've got him with a crown, and a scepter, and a mace, and, and a royal gown. And so, hiss critics say he's acting like a king. And what do the critics call themselves? They called themselves the Whig party. Choosing a name for the antimonarchical party in, in England. Now the Whig party no longer exists, but they pick a name, basically says, Andrew Jackson is acting like a king and we're resisting that. So he's presented as a king-like person. But and in one hand, he's holding a veto. That's a big power that he's got, his mace. and, and why are they object, and he's trampling the constitution under foot, according to his critics. And stepping on the a judicial book of the and, and so, what are the critics complaining about? They're complaining about the fact that Andrew Jackson has vetoed bills that John Marshal has upheld. Like the Bank Bill. Marshall in Mcculloch vs Maryland said the bank is constitutional. But when the bank came up for reauthorization, Jackson said, I don't think it's constitutional, and I have to defend the constitution, I've taken my own oath, and so, if I don't think it's constitutional, I'm not going to sign it. So very much our, the vision that we've been talking about. The presidents using their veto power, maybe their most important power, making them almost one third of the legislative process. Using their power to implement their view of the constitution. And critics saying, oh, you're acting too much like a, a president like a king. But let's note a few final features of Andrew Jackson. If he's a king, he's an odd one. He was very low born, didn't come from any sort of wealthy family. And that captures the idea of a presidency open to talent. A few other things about Jackson. He is the dominant political figure in antebellum America. America's constitution, which begins with Washington will culminate in Tocqueville's America, which is basically Jackson's America. That's the dominant system before the civil war. And the features that we have been talking about are well captured in the person of Andrew Jackson. He is, he's saying the constitution is democratic and open to people of all, talent. At least, free white people, and he is low-born. So it's a democratic constitution. And, he, he helps refound the Democratic Party. They claim that they are proud democrats. But the Constitution is also pro-slavery. And Andrew Jackson is pro-slavery. The Democratic party is the pro-slavery party. That's because of three-fifths. Three-fifths is going to basically empower the South, make slave holders like Andy Jackson have a, an inside track for the Presidency. So the Constitution is pro-Democratic and pro slavery, and so was Andrew Jackson, and its all about national security. Who was Andrew Jackson? He's a guy who can beat the British, just like George Washington. He beat them at the Battle of New Orleans in the War of 1812, which is the American Revolution, sort of, you know, part two. So, so your early presidents, remember, they're all, basically, leading diplomats and/or battlefield generals. So America's antebellum constitution is, I think, very much nicely embodied in the person of Andrew Jackson. Democratic, slavocratic, a powerful protector of national security. So much for the presidency, at least for now. In our next couple lectures, we'll talk about Article Three of the Constitution, the judiciary. Hope to see you then. [MUSIC]
