The topic of conversation for this Constitution Monday concerning the Presidency of the United States. The office of president was established by Article II of the Constitution. This article begins: “The executive power shall be vested in a President of the United States of America.” This language is known as the “vesting clause.”
Article II, Section 3 confers upon the president the duty to “take care that the laws be faithfully executed.” Section 1 contains the oath of office for the president, and it obligates and empowers the president to “preserve, protect and defend the Constitution of the United States.”
The language in the oath of office requires the president to act if constitutional government is threatened, but it does not put limits on that action. President Abraham Lincoln acted in 1861 during the Civil War by suspending the writ of habeas corpus. The write of habeas corpus protects individuals from arbitrary government detention. Lincoln stated that he would break his oath of office if the government were overthrown and that suspending habeas corpus was necessary to protect the government.
Article II gives presidents three types of powers: expressed powers, implied powers, and delegated powers. Presidents claim a fourth type of power not listed in Article II: inherent power of the office. The Constitution lists the following expressed powers: military (Commander in Chief), judicial (power to grant reprieves and pardons), diplomatic (power to make treaties with advice and consent of Senate), executive (power to see that all laws are faithfully executed; power to appoint, remove, and supervise all executive officers, and to appoint all federal judges), and legislative (power to participate authoritatively in the legislative process).
“Each expressed power has become the foundation of a second set of presidential powers, the implied powers of the office” (We the People, Ginsberg et al., 2021). These powers are derived from the necessary and proper clause of Article I, Section 8 in the Constitution. These powers are not expressly stated but are implied through the interpretation of delegated powers.
Delegated powers are powers that the Constitution gives to one governmental agency but are exercised by another agency with permission from the first agency. Over the past century, Congress has delegated numerous powers given to it by the Constitution to the Executive Branch. When Congress passes a bill and the presidents signs the bill into law, then the applicable agency in the Executive Branch draws up the rules and regulations to administer the law.
Inherent powers are powers claimed by a president that are not expressed in the Constitution but are inferred from it. Inherent powers are most often used in times of war or national emergency. Presidents use this power to declare war to bypass the Congress who is constitutionally assigned the power to declare war. President George W. Bush used it several times. President Barack Obama used it to order drone strikes against suspected terrorists and to order air strikes against Libya. President Donald Trump used it to ban travelers from several Muslim countries and to determine whether businesses could reopen or stay closed during the COVID-19 pandemic.
Presidents also claim many powers from the institutions in the Executive Branch. These institutions include the Cabinet, the White House staff, the Executive Office of the President, the vice presidency, the president’s political party, and the first spouse. These institutions broaden the capacity of the president to act for the good of the nation.
Much of the information in this post comes from chapter 11 of the textbook titled We The People by Benjamin Ginsberg, Theodore J. Lowi, Margaret Weir, Caroline J. Tolbert, Andrea L. Campbell, and Robert J. Spitzer.
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