Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (7 page)

Article II, Section 2, is principally concerned with outlining the powers of the president, but given the enormous power of the modern presidency, it seems remarkably short and vague in its prescriptions. Certainly, the most important—and controversial—of those powers has devolved from the president’s role as commander in chief of the army and navy of the United States and of the militias of the several states. That role, which has given the president enormous power to “make war,” has sometimes come in conflict with the power of Congress to “declare war” as well as with Congress’s power to control the financial appropriations necessary to make fighting a war possible.

By the terms of Article II, Section 2, the president has the primary role in entering into treaties with other nations, although it reserves to the Senate the right to approve any treaty before it assumes the force of law.

The president has the power, with the advice and consent of the Senate, to appoint ambassadors, ministers, justices of the Supreme Court, and “all other Officers of the United States.” In recent decades, as the Supreme Court has become a more powerful and assertive branch of the federal government, members of the Senate have responded by asserting more vigorously
their
right to advise and consent with respect to the appointment of justices of the Court.

The president’s use of the power to appoint “all other Officers of the United States” has increased in direct proportion to the growing power of the federal government and of the executive branch in particular. Although the Founding Fathers no doubt assumed that the president would appoint members of a presidential “cabinet,” they would perhaps have been surprised at the growth in the size and scope of the bureaucracy serving each of the cabinet departments. The president’s cabinet has expanded from four members in President Washington’s day (the secretaries of treasury, war, and state and the attorney general) to fifteen (not including the vice president) today.

Presidents Washington and Adams addressed the Congress directly on the “State of the Union,” but from 1801 to 1909 the president merely sent the Congress written messages. Beginning in 1913, and continuing to the present day, the formal State of the Union address to Congress, given at the beginning of each year, has become an important national ritual. Some presidents, including President Barack Obama, have convened both houses of Congress on other “extraordinary Occasions,” to address them on subjects that they have considered important.

This is another one of the provisions of Article II that is remarkably simple and maddeningly vague. The framers of the Constitution all agreed that a president should be removed from office if he committed treason, bribery, or other “high Crimes,” but most of them also believed that the president might be removed if he were found culpable of “malfeasance in office” (a term used in one of the earlier drafts of the Constitution). On the other hand, most of the framers agreed that it would be improper for Congress to remove a president simply because a majority of members of Congress might disagree with him, and since “malfeasance” was a term with a meaning that might vary in the eye of the beholder, they substituted the term “Misdemeanors” for “malfeasance.” It was a term that left no one wholly satisfied, and it has caused considerable confusion in those rare cases (during the presidencies of Andrew Johnson, Richard Nixon, and William Jefferson Clinton) in which impeachment proceedings against a president have been initiated.

Just as the framers of the Constitution considered the Congress to be the most vital branch of the new government and therefore dealt with that branch in the very first article of the Constitution, so too was the placement of the judicial branch in Article III of the Constitution a reflection of their view of the relative importance of that branch. The brevity and vagueness of the language in Article III are similarly a reflection of their relative lack of concern about the judicial branch as well as of their uncertainty about its function in the new federal union.

Article III, Section 1, stipulates that there would be one “supreme” court in the nation but is vague about the number and extent of the “inferior” courts. The provision that all federal judges should hold their offices during “good Behaviour” was intended to protect the independence of the judiciary and reinforce the separation of powers among the three branches of the new government.

Article III, Section 2, defines the jurisdiction and mode of procedure of the federal courts. The key phrase is “to all Cases, in Law and Equity, arising under this Constitution.” In other words, the jurisdiction of the federal courts extends to those areas in which the United States government itself has jurisdiction. That jurisdiction, vaguely defined in 1787, has steadily increased over the more than two centuries in which the Constitution has been in operation.

Although Article III, Section 2, makes no mention of a power of judicial review (the power of the Supreme Court or any other federal court to pass judgment on whether a federal or state law violates the terms of the Constitution), many, if not most, of the delegates to the Convention probably assumed that the federal courts would exercise at least some limited form of that power. In 1803, in the case of
Marbury v. Madison
, the Supreme Court, in an opinion written by its chief justice, John Marshall, enunciated a limited power of judicial review.