US Constitution 101, page 16
—Federalist No. 70 (Hamilton)
In the end, Hamilton’s pragmatic arguments in favor of an energetic executive proved more persuasive than those of the Antifederalists, who stirred up fears of monarchy without proposing a viable alternative that could get the job done just as efficiently.
EXECUTIVE DEPARTMENTS The Cabinet and Federal Agencies
The Constitution puts the president in charge of the operations of the entire executive branch of the US government. This would be a daunting task for any individual to tackle. Fortunately, the Constitution provides plenty of help for the president. As the chief executive, it is the president’s responsibility to select people to run the many departments that make up the executive branch.
THE EXECUTIVE DEPARTMENTS
The Constitution gives the president broad powers to appoint a number of executive branch officials, including the heads of every executive department, with the advice and consent of the Senate.
He…by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls…and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 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.
—Article II, Section 2, Clause 2 of the Constitution
The Constitution does not specify which federal departments will be created, leaving this to the discretion of Congress. Over the years, Congress has created a number of executive departments, which include the Department of State and the Department of Defense, which handle foreign relations and the military, respectively, on the president’s behalf. While the Departments of State and Defense perform delegated functions of the federal government that are not shared with the states, more recently created federal departments, such as the Department of Education, cooperate with state agencies in areas where the Constitution reserves direct control to the states.
THE PRESIDENT’S CABINET
The president’s cabinet is a group that advises the president. Although the Constitution never specifically mentions that the president will have a cabinet, it does state that the president may ask executive branch officials for advice from time to time.
The President…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.
—Article II, Section 2, Clause 1 of the Constitution
The officers who run the executive departments do not run their departments independently but are directly answerable to the president. The idea of a cabinet began to take shape during George Washington’s presidency, when he found it more expedient for his department heads to come together and discuss matters of importance in person. Although this may sound like the kind of executive committee that the framers rejected at the Constitutional Convention, the cabinet is not a body with any legal authority, and the president maintains sole authority to make decisions (even if it means rejecting the advice of the cabinet).
President Washington’s cabinet included only four people: Secretary of State Thomas Jefferson, Secretary of the Treasury Alexander Hamilton, Secretary of War Henry Knox, and Attorney General Edmund Randolph. Interestingly, the original cabinet did not include Vice President John Adams, who Washington believed had a conflict of interest due to his role in the legislative branch as president of the Senate. However, it became a standard practice in the twentieth century for presidents to include their vice presidents in the cabinet and rely on them for advice. In contrast to Washington’s small cabinet, President Joe Biden assembled a cabinet that included the vice president and twenty-five other federal officials.
The “Kitchen Cabinet”
Many presidents have chosen to confide in close friends, assembling informal “kitchen cabinets” to advise them on big decisions. This term was first used during the presidency of Andrew Jackson, whose troublesome relationship with his official cabinet was well known. Ronald Reagan often consulted with his “kitchen cabinet” of California businessmen.
Since the cabinet is an informal body, each president decides which executive offices are cabinet-level positions. Some executive positions, such as the US ambassador to the United Nations, move in and out of the cabinet. President Dwight D. Eisenhower raised the position of UN ambassador to cabinet-level rank after appointing his political ally Henry Cabot Lodge Jr. to the position. Since the presidency of George H. W. Bush, the UN ambassador has been downgraded from and restored to cabinet status at the discretion of individual presidents. A UN ambassador with cabinet status reports directly to the president, while an ambassador without cabinet status reports directly to the secretary of state.
AT THE PLEASURE OF THE PRESIDENT
Although the Constitution requires cabinet members and senior officials in the executive departments to be confirmed by the Senate, they serve “at the pleasure of” the president after they are confirmed. This means that the president can fire cabinet members and senior officials for any reason (or for no reason) without needing anyone’s approval. The Supreme Court held in Myers v. United States (1926) that the Senate cannot limit the president’s removal powers because the Constitution doesn’t give the Senate this power. If the Senate had the power to stop the president from firing executive officials, it would throw off the system of checks and balances. A federal official with enough friends in the Senate, for example, could defy the president without facing any consequences. If that were to happen, the president would cease to be in control of the executive branch.
CIVIL SERVICE REFORM
For over a century after the Constitution was ratified, presidents had the sole authority to appoint or remove every employee in the executive branch of government. While early presidents used this power in moderation, Andrew Jackson replaced every employee in the executive branch (even local postmasters) with someone who was loyal to him. This began the “spoils system,” which was abused by presidents for decades to reward political loyalists.
In the decades after the Civil War, there was an outcry for reforms that would reduce corruption in the federal government. In 1883, Congress passed the Pendleton Civil Service Act, which insulated most employees in the executive branch from arbitrary removal by the president. While the president maintains appointment and removal powers of senior officials in the executive branch, most federal employees are career professionals who maintain their jobs regardless of which president or party is in office.
INDEPENDENT AGENCIES
The executive branch also includes several independent agencies, which are governed by boards appointed by the president with the advice and consent of the Senate. Unlike the standard executive departments, whose senior officials serve at the pleasure of the president, the boards of independent agencies function outside of the president’s direct control, and the president must demonstrate cause prior to removing a person from the board of an independent agency.
The first independent agency to be created by Congress was the Interstate Commerce Commission, which was created in 1887 in order to regulate the railroads. Congress placed the commission outside of the direct control of the president in order to reduce corruption and political influence. During the twentieth century, Congress created several more independent agencies, including the Federal Election Commission, the Federal Reserve System, and the Securities and Exchange Commission.
THE COMMANDER IN CHIEF Presidential Control of the Military
One of the most important functions of the federal government under the Constitution is providing for the common defense. This delegated power, carried over from the Articles of Confederation, was the most important reason that the newly independent states came together to form a common government. As mentioned earlier, making war and protecting the country from invasion are two of the most important components of the executive branch of government. In addition to directing the administration of the executive departments as chief executive, the president also directs the military as commander in chief of the armed forces.
THE COMMANDER IN CHIEF
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.
—Article II, Section 2, Clause 1 of the Constitution
As commander in chief of the armed forces, the president exercises complete authority over all US military forces as well as state militia (National Guard) units when they are called to serve in a federal capacity. When the Constitution was ratified, this power was typically held by European monarchs (usually in a ceremonial capacity).
CIVILIAN CONTROL OF THE MILITARY
The president’s role as commander in chief reflects the importance of civilian control of the military in a democratic republic. Since the government’s power comes from the people, the people’s elected representatives should have the final say in matters of peace and war. As Georges Clemenceau, who served as prime minister of France during World War I, said: “War is too important to be left to the generals.” Civilian control of the military is sometimes compromised, such as when Napoleon overthrew the civilian government of France in a military coup in 1799. In today’s world, military coups still happen in developing countries without strong democratic institutions. However, in establishing civilian control of the military, the Constitution has created a government in which the people have ruled through their elected representatives for over 230 years without a single period of military rule.
MILITARY SERVICE OF PRESIDENTS
Although the Constitution designates the president as commander in chief of the armed forces, there is no constitutional requirement that the president have any military experience. Of the forty-five men who have served as president, thirty-one served in the military prior to their presidencies. Of those thirty-one who served, twelve attained the rank of general officer. The presidents who reached the highest levels of the military command structure were George Washington, Ulysses S. Grant, and Dwight D. Eisenhower, each of whom exercised overall command of military forces in the wars prior to their elections. Neither Washington, Grant, nor Eisenhower had ever served in an elected office prior to being elected president.
Although two out of three presidents served in the military before becoming president, military service as a road to the presidency is less common in the twenty-first century. The last president to have any record of military service was George W. Bush, who served in the Texas and Alabama Air National Guards, and the last president with any combat experience was his father, George H. W. Bush. Since the United States has had an all-volunteer military since 1972, the current percentage of Americans who have served in the military is lower in comparison to the decades following the Civil War, the world wars, and the Vietnam War. With this in mind, it may be some time before Americans elect another president with military service.
General of the Armies
In 1976, Congress voted to posthumously elevate George Washington to the rank of General of the Armies, a “six-star” rank that had only been held by John J. Pershing, who commanded the American Expeditionary Forces during World War I. Elevating Washington’s rank to that of Pershing’s ensured that the father of our country would not be outranked by any other military officer.
ROLE IN DECLARING WAR
Although the Constitution gives Congress the sole authority to declare war, James Madison set a precedent for the president’s initiation of this process when he sent a letter to Congress asking for a declaration of war against Britain in 1812. This letter became popularly known as Madison’s “War Message.” Presidents Polk, McKinley, Wilson, and Franklin D. Roosevelt all followed Madison’s precedent in requesting declarations of war against Mexico, Spain, Germany, and Japan, respectively. Wilson, the first president in over a century to deliver the State of the Union address in person, delivered his war message as a speech rather than in writing. Roosevelt’s war message, which declared December 7 as “a date which will live in infamy,” made a permanent impression on the American mind.
CONGRESSIONAL CHECKS ON THE PRESIDENT’S POWERS
Although the president exercises overall command of the armed forces, Congress has some checks on the president’s military powers. The president cannot appropriate money for the armed forces, so Congress can inhibit the president’s authority by using the “power of the purse.” Congress can also take action to limit where the military can operate. During the Vietnam War, Congress pushed back against the Nixon administration’s incursions into Cambodia, where Congress had never authorized the president to use military force. While the president can initiate limited military actions without consulting Congress (one of the most recent being missile strikes against Houthi terrorists in Yemen who were firing on cargo ships in the Red Sea), Congress maintains its right through the War Powers Resolution of 1973 to authorize any military action exceeding sixty days.
MEMORABLE MOMENTS
Presidents have occasionally used their powers as commander in chief in creative ways. In 1863, Abraham Lincoln used his power as commander in chief to direct the Union Army to free enslaved people in Confederate-held territories. By framing the Emancipation Proclamation as a “necessary war measure,” he argued that the proclamation was a constitutional use of his powers as commander in chief (he advocated aggressively for the Thirteenth Amendment partly out of a concern that his Emancipation Proclamation might be overturned in the courts). In 1907, Theodore Roosevelt ordered a naval force known as the Great White Fleet to circumnavigate the globe in a voyage that had no other direct purpose than to show off American naval power across the globe. The voyage of the Great White Fleet demonstrated that the president’s power as commander in chief extends even into the sphere of public relations.
THE POWER TO PARDON The President’s Uncheckable Power to Forgive
The Constitution sets up a very intricate system of checks and balances. For example, the president’s veto power is not absolute, as Congress can override a veto by a two-thirds vote of both houses. The president’s power as commander in chief is balanced by congressional authority to declare war and make military appropriations. However, there is one presidential power in the Constitution that stands out like a sore thumb from the others due to an inability of the other branches to check it: the power to pardon.
THE PRESIDENT’S PARDONING POWER
The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
—Article II, Section 2, Clause 1 of the Constitution
In simple language, this means that the president has the power to forgive anyone who has either been accused or found guilty of a federal crime. The pardoning power can take the form of pardons, reprieves, commutations, and amnesties.
Pardons
A presidential pardon forgives the recipient for breaking a federal law and exempts them from further prosecution or punishment for the crime. Although the person receiving a pardon escapes further prosecution and punishment, a pardon does not erase the recipient’s guilt. In Burdick v. United States (1915), the Supreme Court stated in its ruling that someone who accepts a pardon indirectly admits guilt and confesses to the pardoned offense. However, the Burdick case involved a petitioner who had refused a pardon from President Woodrow Wilson. The pardon had been granted for the sole purpose of making George Burdick testify in a criminal case, taking away his ability to “plead the Fifth” on the stand. It is still unclear whether a pardoned person necessarily admits guilt by accepting a pardon. A pardoned offense is not removed from someone’s criminal record unless it is expunged by a judicial process.
Reprieves
A reprieve is a presidential order to delay a convicted person’s punishment. As it is most often used to delay execution for an inmate on death row, it’s used primarily by state governors since most death row inmates are guilty of murder, which is a state crime. A reprieve is typically granted to give a convicted person time to gather evidence that might overturn the conviction.
Commutations
A commutation occurs when the president reduces a sentence they believe to be overly harsh or excessive. The pardoning power allows the president to commute (or reduce) a sentence for any federal crime, while keeping the conviction. In 1977, President Jimmy Carter commuted the sentence of G. Gordon Liddy, who had received a twenty-year prison sentence and a $40,000 fine for his role in the Watergate scandal. Carter commuted Liddy’s sentence to eight years and left the fine in place. Liddy, who remained a convicted felon after his commutation, occasionally bragged about his wife’s extensive gun collection (as a convicted felon, Liddy could not own a firearm).
Amnesties
Occasionally, presidents may extend blanket pardons in the form of general amnesties, giving immunity from further prosecution and punishment to a whole category of offenders. On Christmas Day in 1868, just before leaving office, President Andrew Johnson signed an amnesty proclamation giving a full pardon to all former Confederates. Prior to this, Johnson had pardoned former Confederate leaders on an individual basis. In 1924, President Calvin Coolidge proclaimed amnesty for anyone who had deserted from the military during World War I, as he saw no point in prosecuting or punishing anyone further.
