American Government and the Constitution Lecture Three

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American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: "I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." This section does not affect other oaths required by law.

The above is Title 5 of the United States Code, Section 3331, which establishes by law that federal officials other than the president take the above oath of office. Notice that the oath is to defend the Constitution, "So help me God." Our nation is governed by the Constitution, by "Rule of Law."

Why does the federal law say "except the President." Does the president take an oath of office? What is his oath?

If you read Article II of the Constitution carefully in the first homework assignment, then you know that the oath of office for the president is in the Constitution itself. Article II, Section 1, clause 8, states that the president, when sworn into office (typically during his inauguration a few months after being elected), must take this oath:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Usually it is the Chief Justice of the United States (the highest judge on the Supreme Court) who administers the oath to the president, typically in Washington, D.C. But not always. When George Washington became president for the first time in 1788, there was no Capitol yet in Washington, D.C., and there was no Supreme Court yet. So George Washington was sworn into the office of president in New York City, by a state official. Calvin Coolidge became president when Warren Harding surprisingly passed away from an illness, and Coolidge was sworn in by his father, who was merely a notary public authorized to witness signatures on documents. Coolidge did not take the oath of the office of president in Washington, D.C., but at his father's home in Plymouth, Vermont.

Article II - Creating the Presidency

Article II of the U.S. Constitution creates something that never existed before: an office of president of the United States. Previously, under the Articles of Confederation, there was no executive position of "president". Prior to the U.S. Constitution, there was only a position of president of the Congress, which was part of the legislative body and comparable to the titles of "Speaker of the House" and "Majority Leader of the Senate" today.

Article II of the Constitution changed all that, by creating a separate, independent, and powerful branch of government to be led by an elected "president". He is not elected by a majority vote of the people, but by an "Electoral College" that is based on the existence of the States as separate sovereign units. At several times in American history, the candidate for president who won the most votes of the people has not won the election. Most recently, in 2000, Republican George W. Bush won the election for president even though his opponent, Democrat Al Gore, received more "popular votes" (votes by the people) than Bush did. If the Constitution created a democracy, the candidate with the most votes would be the winner. But as we have already learned in this course, the Constitution does not create a democracy. The Constitution creates a republic.

The Electoral College

The "Electoral College" is how the Constitution, in Article II, Section 1, clauses 2 through 4, requires Americans to elect a president. The Electoral College gives each State the right to decide, for itself, how it will allocate its share of the vote for the candidates.

Today, there are a total of 538 total votes in the Electoral College, which are divided among the 50 States (plus D.C.) based on a sum of their number of members in the House of Representatives and Senate.[1] For example, New Jersey has 12 members of the House of Representatives and (like every State) has two U.S. Senators, for a total of 14 Electoral College votes. States with larger populations have a greater vote in the Electoral College: California has 55, Texas has 38, and Florida has 29.

All states except for Maine and Nebraska choose a "winner take all" system, whereby the candidate who wins the most votes in the State then receives all of the State's votes for president. The extremely close presidential election of 2000 between Bush and Gore illustrated how this works.

Because there are 538 total Electoral College votes, a candidate must obtain 270 Electoral College votes in order to win. In the presidential election of 2000, not counting Florida, Democrat Al Gore was ahead with 267 Electoral College votes to Republican George W. Bush's 246 Electoral College votes. The vote in Florida was so close that it was impossible to declare a winner on election night.

If Florida had a law giving each candidate the same percentage of the Florida's Electoral College votes as he won in the vote by the people, then Gore and Bush would have each received about 50% of the Electoral College votes from Florida, and Gore would have won the presidential election.

But instead Florida, like most States, votes with one voice in the Electoral College by casting all of its votes for the candidate who won the people's vote in Florida. This is similar to how the delegates voted at the Constitutional Convention, where each State had one vote based on a majority vote by the delegates from that State. So Florida, like most States, did not split its Electoral College votes between Bush and Gore, but instead cast all of its Electoral College votes for one or the other candidate.

If you set the rules for your State, would you have this type of "winner-takes-all" system? The advantages include preventing a candidate from taking the State for granted, and causing the candidate to try to win the State rather than simply attract some votes there. Florida gets more attention from the candidates by having its "winner take all" system than it would otherwise. This system is similar to sports contests, where fans prefer having a "winner" and a "loser", rather than a "tie" where neither side clearly won or lost. On the other hand, having a winner-take-all system may result in decreased attention for a state that is safely Republican or Democratic. For example, New Jersey is a safe Democratic state that assigns its Electoral College votes on a winner-take-all basis, so it is a waste of money for either candidate to campaign there. Another advantage is that voting fraud in one State is less likely to affect the overall result under a "winner-takes-all" system, since at most only the outcome in that State would be affected by the fraud.

In 2013, legislatures in Pennsylvania and Virginia considered but rejected bills that would award Electoral College votes by congressional district, meaning that one vote would go to the winner of each Congressional district. The change would have helped a Republican presidential candidate in Pennsylvania by enabling him to win many Electoral College votes even though the majority of the State votes for the Democrat. Under the winner-take-all system, Republican presidential candidates typically win zero Electoral College votes in Pennsylvania, despite winning about 45% of the popular vote there.

An advantage to the Electoral College system includes how it avoids any national recounts of votes in close presidential elections. In 1960, John F Kennedy received 34,220,984 votes, or 49.7%, compared with Richard Nixon, who won 34,108,157 votes, or 49.6%. Barely 100,000 votes, out of more than 68 million cast, separated the two candidates. In the absence of an Electoral College system, a nationwide recount would have taken many weeks or months, potentially causing a national crisis.

Beginning in the 2000s, opponents of the Electoral College system have proposed the National Popular Vote Interstate Compact. The intent is to have enough states join the compact to account for 270 or more Electoral College votes; then, all those states would case all their Electoral College votes for the popular vote winner. This would result in de facto elimination of the Electoral College. As of September 2014, ten states and the District of Columbia have joined the compact; they represent 165 Electoral Votes, far short of the 270 required before it would go into effect.

When No Candidate Wins a Majority of the Electoral College

Twice in American history no candidate won a majority in the presidential election, and the House of Representatives selected the president as provided by Article II and the Twelfth Amendment.

The Election of 1800 was prior to the enactment of the Twelfth Amendment, and the tie vote in that election between the presidential candidate Thomas Jefferson and his own running mate for Vice President, Aaron Burr, revealed a flaw in the original Constitution.

The "ticket" of Jefferson and Burr defeated their opponents led by the incumbent President John Adams. But the original Constitution failed to distinguish between Electoral College votes for President and Vice President. Both Jefferson and his Vice President running mate received the same number of votes in the Electoral College: 73. Under Article II, Section I, neither Jefferson nor Burr received a majority of the Electoral College votes, so the House of Representatives had the responsibility to pick the next president.

Under the "unit rule" required by the Constitution then and now for the House to choose the next president when there is no majority in the Electoral College, each State has only one vote. In other words, the House does not vote as it usually does, where each representative has one vote and a State has many representatives in proportion to its population. Instead, the House votes in this situation like the Senate, with each State on equal footing with each other, regardless of their population. It is a majority of the delegation from each State that determines how it will vote in this process, under the "unit rule."

In 1800 there were 16 States in the United States: the original 13 colonies, plus Vermont (admitted as a State in 1791), Kentucky (1792), and Tennessee (1796). That means a vote of 9 States was required to attain a majority, and to select the next President.

But Jefferson had the support of only 8 States, short of what he needed. The House of Representatives voted again and again, but neither Jefferson nor Burr could attain a majority. It required 36 "ballots" (voting cycles) in the House of Representatives before Thomas Jefferson received a majority! It was only because Alexander Hamilton, working behind the scenes, opposed Aaron Burr so much that Jefferson was finally able to win a majority of States despite intense opposition to him by congressmen who were members of the opposition Federalist Party. Departing President John Adams himself refused to welcome Jefferson or help him during the transition to power. Instead, Adams left before dawn on the day of inauguration of Thomas Jefferson. It was a bitter transition of power, remarkable in that it happened peacefully.

But a few years later, Aaron Burr took revenge on Hamilton for repeatedly opposing Burr and frustrating his political ambitions, particularly in New York, by killing Hamilton in a duel in New Jersey. Aaron Burr was an evil man who nearly became president of the United States, and who even murdered one of the greatest Founders of our Nation, Alexander Hamilton.

In 1804, this flaw in the Constitution was corrected when Congress passed, and more than 3/4ths of the States ratified, the 12th Amendment. This Amendment changed the Constitution by requiring separate Electoral College votes for President and Vice President, such there would never be a tie between two candidates who were running on the same "ticket", as part of the same political party.

In 1824, the 12th Amendment was put to the test when no candidate won a majority of the Electoral College. All five candidates for president were members of the same political party, the Democratic-Republicans, and no candidates belonged to the Federalist Party. Military hero Andrew Jackson won the most popular votes (votes by the people), and the most Electoral College votes, but he did not win a majority of either. Because no candidate won a majority of the Electoral College, the House of Representatives again had to select the next president. Jackson expected to be chosen because he was first in both the popular and Electoral College voting.

But the Constitution does not require the House of Representatives to pick the top candidate, if that candidate did not win a majority of the Electoral College, and Jackson had not. Instead, with political wheeling and dealing going on behind the scenes, the House picked the runner-up candidate, John Quincy Adams, as the next President. Adams, after becoming President, then selected the Speaker of the House Henry Clay as his Secretary of State, which looked like a political reward for Clay's help in persuading the House to pick Adams as President. Andrew Jackson's supporters called this the "Corrupt Bargain," although it was probably just politics-as-usual. Four years later, Jackson defeated Adams in a landslide by reminding voters of the "Corrupt Bargain" by his opponent John Quincy Adams (who was former President John Adams' son).

Most Important Duties of a President

Most people think a president has more power than he really does. A president cannot pass a law -- only Congress can do that. A president cannot decide a legal case -- only the judiciary can do that.

The greatest influence of an American president is, ironically, in foreign countries. That is because the president is the Commander in Chief, which means he directs our Armed Forces in conflicts in foreign nations.

Commander in Chief

Article II, Section 2, clause 1, establishes that the president shall be Commander in Chief of the military of the United States:

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 grant of power appears to be unlimited, in contrast with the limits on the powers granted to Congress. As a result, there has been a long-running feud between the president and Congress over which one has the power to order troops to fight in foreign nations. Congress says that it has the sole power under the War Powers Clause to start a war; presidents instead insist their power is unlimited under the above clause to order the military to start or join foreign conflicts at any time.

In practice, for more than a half century presidents have ignored Congress and ordered American servicemen into foreign conflicts without any declaration of war. But usually Congress passes a more limited authorization for the use of some military force, which is less than a formal declaration of war.

Near the end of the Vietnam War, which Congress never declared, Congress passed in 1973 the War Powers Resolution by overriding the veto of President Richard Nixon. The War Powers Resolution attempts to limit the power of the president to use the American military to start or participate in foreign wars. Specifically, the War Powers Resolution sharply reduces the power of a president to engage American troops in a foreign conflict for more than 60 days. But in practice presidents have largely ignored this law, and Congress has been unable to enforce it.

As an illustration of how the meaning of a clause in the Constitution can hinge on a single word, the notes of James Madison from the Constitutional Convention reveal that he changed the phrase in Article I, Section 8, from "make" war to "declare" war, so that a president could immediately order troops without congressional approval in order to repel an invasion by a foreign country.

Can individual States start a war? The Constitution (Art. I, Sec. 10, cl. 3) prohibits States from engaging in war without approval by Congress, unless a State is actually invaded or there is an imminent danger which does not permit delay to obtain congressional approval:

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Nominating Judges

Perhaps the most influential power that a president has today is in nominating federal judges, including Supreme Court Justices, for confirmation by the U.S. Senate. (Judges on only the U.S. or State Supreme Courts are called "Justices" rather than "Judges".)

Most "Article III" federal judges remain in office for several decades, having been nominated between the ages of 40 and 60 and then remaining in power for 20-30 years. The 22nd Amendment prevents anyone from being president longer than ten years, and as a practical matter the limit is eight years. Moreover, after about 6 years a president begins to lose power because politics is forward-looking, and everyone knows that he cannot be reelected.

But the judges picked by a president to serve on the U.S. Supreme Court and other federal courts continue to decide cases for 20 or 30 years, or more. Chief Justice John Marshall was nominated by President John Adams and Chief Justice Marshall remained in power for 35 years, while Adams was defeated for reelection after serving only 4 years.

The U.S. Senate does have the power to reject any nomination to the federal judiciary made by the president, and some selections by president for the U.S. Supreme Court have been rejected by the U.S. Senate. But the vast majority of nominations to federal courts below the Supreme Court are approved (confirmed) by the Senate, and most presidential nominations to the Supreme Court are also confirmed. A mere majority vote in the U.S. Senate is sufficient to confirm a federal judge. Once confirmed, he has a lifetime job and can only be removed from office if there is an impeachment of him by Congress, which is very rare.

Supreme Court decisions, such as Roe v. Wade (1973) establishing nearly unlimited abortion, have a far greater effect on our Nation than any actions by a president has. It was the Supreme Court which banned prayer from public schools, in Engel v. Vitale (1962), as an additional example. Supreme Court decisions last until they are overruled by a future Supreme Court. A lower court, state or federal, may not overrule or change a decision by the U.S. Supreme Court.

Qualifications of a President

Article II, Section 1, clause 5, establishes the only three qualifications of a president today:

  • must be a "natural born Citizen";
  • must be at least 35 years old; and
  • must have resided in the United States for at least 14 years.

The age requirement is a safeguard against hereditary presidencies, the way that monarchies are hereditary. A relatively young son or daughter of a president, younger than 35 years old, cannot become president based on the popularity of his father (or mother) as president.

The controversial requirement is the "natural born Citizen," which limits presidents to those who were born as American citizens, rather than people who became American citizens through immigration. No other office or position is limited to people who are born American citizens. The United States is a land of immigrants, and every opportunity and position is equally available to immigrants who become citizens as to people who are born American citizens -- except the office of president.

Someone can be born outside the United States as a "natural born Citizen" if his parents were American citizens. John McCain, the Republican nominee for president in 2008, was born outside the United States while his father was on military duty, but John McCain was still eligible to be president. Similarly, someone born within the United States may not be a "natural born Citizen" if he was born to parents who were foreign diplomats working in a foreign embassy located in the United States.

The purpose of the "natural born Citizen" requirement was to prevent ambitious foreigners from taking control of the Executive Branch and becoming Commander in Chief of the American military forces. The requirement illustrates how the Constitution was written to prevent against bad people gaining power. Many good people are prevented from becoming president because of this requirement, but the Framers were more concerned about keeping power away from bad people than trying to give power to good people.

Faithfully Execute the Laws

Article II, §3, requires that the president “take Care that the Laws be faithfully executed.”[2] It is this provision that many conservatives feel President Barack Obama has repeatedly violated by refusing to enforce some laws (such as laws against illegal immigration) and by changing other laws to be different from what Congress passed (such as Obama's changes to the Patient Protection and Affordable Care Act, better known as ObamaCare).

But it is difficult for anyone to successfully sue the president when he fails to "faithfully execute[]" the laws as required by Article II, Section 3. Instead, courts are likely to hold that a citizen lacks legal "standing" to complain about a failure to enforce the laws by the president, especially when the citizen is not directly harmed by the government inaction or action. No court is likely to order a president to "faithfully execute[]" the law as required by the Constitution.

No Nobility

The Constitution prohibits conferring any official nobility in the United States. This was a reaction to the ranks of nobility that were used in England, and still are. "Sir" Isaac Newton and "Sir" Paul McCartney are titles of official nobility given by the monarchy to individuals as part of "knighthood". The Constitution bans that here.

Do you agree with this ban?

Homework

Answer any 4 questions of the following:

1. Do you think the Electoral College should be replaced by democracy, such that the candidate who receives the most votes nationwide always wins the election for president? Include in your answer a concise summary of how the Electoral College works.

2. Do you think a president has the power under the Constitution to invade a foreign nation, without approval by Congress? Identify the two key provisions for this issue in your explanation.

3. What are the three qualifications required to become president, and do you agree with them? Explain briefly.

4. Explain the power of the president to nominate federal judges, and why that power is so influential today. Include an example of a case in your answer.

5. Should the Electoral College be abolished? Explain your view of whether you would keep the current system for electing the president, or how you would change the system if you could. Include a mention of the election of 1824 in your answer.

Honors

Answer any one question of the following:

6. Can you find the ban on nobility in the Constitution? Explain your opinion of it, and why it is there.

7. What is an example of President Obama violating Article II, Section 3? Explain.

8. Explain your opinion of the oaths of office required of congressmen, and the president. Would you require that oath of every citizen, and would you change it in any way for the elected officials?

References

  1. The votes in the American territories -- Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, Northern Mariana Islands, and the U.S. Minor Outlying Islands -- do not count towards the Electoral College.
  2. Often people use the symbol "§" to mean "Section", as in "Article II, §3."