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4.3 - State of the Union and Other Duties
“He”
The first word of Article II, Section 3 is “He.” The word refers to the President of the United States. I have actually had some people, who oppose the Constitution, tell me that the word “He” being used is evidence that the Constitution disallows women from being President. They then argue that if a woman was to become President, because of the word “He” being used in the Constitution, anything she did in office would be unconstitutional since the Constitution does not allow women to be President of the United States.
Not necessarily.
As with other writings, such as the Holy Bible, often the word “He” may be used as a general term to represent both sexes.
Being politically correct, or gender neutral, was not a concern during those days, as in today’s pluralistic, topsy-turvy society. In the case of the Constitution, it is conceivable, considering the mindset of the day, that the founders did not think a woman would someday become President of the United States. I assure you, people like John Adams and Aaron Burr were exceptions to that line of thinking.
Aaron Burr was Vice President under Thomas Jefferson, and he actually was one that proposed that there be a uniform rule across the nation that enabled women to vote.
If you look through the Constitution, there is no place in the Constitution that says women cannot vote, or run for office. The reason women were not able to vote, or run for office, was because the States were given the authority over the rules of elections, and during that time the States did not generally allow women to vote or hold office. Much of that changed in some States and territories long before the Suffrage Movement, but it took a Constitutional amendment to make the practice uniform among all States.
Therefore, the first word being “He,” in my opinion, is simply a general term, and so when someone like Sarah Palin, Hillary Clinton, Michelle Bachmann, or whoever the first female President is in the future, becomes President, don’t worry, she is fully entitled upon being elected, to assume the Office of the President of the United States.
State of the Union
“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”
This clause establishes the State of the Union address. The State of the Union address is supposed to be as it is worded in the Constitution, a speech about the state of the union addressed to Congress by the President. It is not supposed to be a campaign speech, it is not supposed to be a popularity speech, nor a chance to take a stab at political opposition. The speech is simply supposed to be an opportunity for the President to give the Congress information regarding the state of the union.
Also, notice, the speech is not for the people, per se. Yes, it is fine that we get to hear the speech, and it is in our interest to know what the state of the union is. But, the specific reason for the State of Union address is to give Congress information of the state of the union.
There is an additional reason for the State of Union address should the President deem it necessary. He may during the speech “recommend to their Consideration such measures as he shall judge necessary and expedient.” Of course, he can do this during the normal course of his presidency, as well.
Let’s go back to Article I, Section 1 for a moment. Article I, Section 1 reads: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
This means that the authority to make law, modify law, repeal law, and strike down law - “all” legislative powers - are granted to the Congress by the States.
Article II, Section 3 says the President can “recommend” to their “consideration” such measures. . .
The President can “recommend to their consideration,” because he has no legislative capacity. He cannot make Congress do anything.
Executive Orders
The President has the authority to issue Executive Orders. An Executive Order is a proclamation or change within the Executive Branch. Executive Orders began back when George Washington was President. His Thanksgiving Proclamation was an Executive Order. Executive Orders serve two functions. They may be used to change the processes within the Executive Branch, because the rules of the internal workings of the Executive Branch are up to the President. Or, an Executive Order may be used to issue a proclamation.
No place in the Constitution does it give the President the allowance through Executive Order to modify, repeal or make law. Executive Orders have been used often in history to modify law, but that is unconstitutional. The President does not have that kind of authority.
With that in mind, all of the regulatory agencies in the United States Government are a part of the Executive Branch. Whenever they make a regulation that is not to regulate an existing constitutional law, but to regulate an unconstitutional law, or to create a new law, such as the EPA did with Cap and Trade, or the FCC’s move to establish Net Neutrality, it is unconstitutional.
The agencies are under the Executive Branch, and therefore do not have the authority of legislative powers.
Extraordinary Occasions
“He may, on extraordinary occasions, convene both Houses, or either of them.”
What is an extraordinary occasion? That would be an emergency, or during a time that matters are urgent. If the President believes a matter needs to be tended to, he can compel the Congress to be in session. In other words, it is Constitutional when the President says something like, “I’m working, so Congress needs to be too.”
An extraordinary occasion can be wartime, budget discussions, or anything else the President judges as an extraordinary occasion.
This includes when there is a “disagreement between them (the Houses).” The President may choose when the Houses will meet, as he feels is proper.
You may remember in Article I that the Houses may not adjourn without the permission of the other House. But what if they refuse to allow the other House to adjourn? This is where the President comes in. If, because of disagreement, the Houses won’t allow each other to adjourn, the President, if he feels it is necessary, “may adjourn them to such time as he shall think proper.”
The president can compel the Houses to convene, or adjourn, as he feels necessary.
He can’t force them to make particular laws, per se, but he can make them be in session to get the work done, or take a break if he sees it as necessary.
As much as Congress has control over when they convene or adjourn, the President does have the authority if things are getting out of hand, or for whatever other reason he deems necessary, to override Congress’ decision of when to convene or adjourn.
An example would be during wartime. His war powers enable him to put the military into action. If he feels there should be a declaration of war, or would like to discuss his war plans with the Congress, he can compel them to be in session. He cannot make them declare war, or approve of his actions, but he can ensure they are in session so that the politics of war may be discussed.
If some of the members of Congress have a problem with the actions of the President so they refuse to convene, he can then order Congress to convene so that he may discuss with them the issues at hand.
Receiving Ambassadors and Other Public Ministers
The President may invite important people to Washington, be they ambassadors, or other officials. Having the Chinese leader over for a dinner at the White House, for example, is completely constitutional.
Regulatory Agencies
“He shall take Care that the Laws be faithfully executed.”
This is the establishment of the enforcement arm of the Executive Branch. In turn, this clause is what eventually became the regulatory agencies.
Notice, however, what the clause says: he “shall” - remember, shall is definitive - “take Care” - notice in your Constitution that “Care” is capitalized, placing emphasis on the word (sort of like we do today with italics. This makes “Care” a very important word. - “that the Laws be faithfully executed.”
Laws, under the federal government, are only laws, if they are constitutional. If the laws are not made in line with the authorities granted to the federal government by the Constitution, they are not legal laws. The executive branch shall “execute” the laws - Constitutional laws. In the case of immigration laws, for example, it is unconstitutional for the President to refuse to execute those constitutional laws.
Some people say the Executive Branch is supposed to “enforce” the laws - and in a sense that is correct. But really, the Executive Branch is supposed to execute the laws - ensure they are carried out - Laws that were put into place constitutionally.
We are the final arbiters of the Constitution, but there are other steps along the way to ensure that unconstitutional laws don’t go into effect. The President is one of those checks.
When President Obama determined DOMA was unconstitutional, and decided his agencies would not execute that law, he was acting Constitutionally. The law is the law, however, and there is much discussion regarding if, considering that the President has decided the law is unconstitutional, if he is compelled to ensure the law is executed. Also, if he refuses to execute constitutional law, calling it unconstitutional, it is our responsibility that he is removed, and replaced with somebody that will execute the laws appropriately.
In 1817, when President Madison deemed a Public Works bill unconstitutional, he simply refused to sign the bill into law, indicating in his written reason why he vetoed the bill that the proposed law was unconstitutional.
Congress can override a President’s decision not to execute a law on the books because he deems it unconstitutional, just like they can override a veto. The States may also enforce the law if the President refuses.
The reverse is also true. If the President tries to execute law, calling it constitutional, when it is not constitutional, the States can ignore those federal laws, or “nullify” them.
Officers of the United States
“… and shall commission all the Officers of the United States.”
The “United States,” as mentioned here in this final part of Article II, Section 3, does not mean The United States as a country. The United States is mentioned often in the Constitution, and whenever the “United States” is mentioned, it means one of two things. Either, it means “these States that are united,” or the “federal government.”
Remember, to these early Americans, who considered themselves citizens of their States before they considered themselves “Americans,” the United States meant “these States that are united,” rather than a single, nationalistic, entity.
In this case, however, the “United States” means “federal government.”
As a result of that definition, you could also say that this part of the Constitution reads: “and shall commission all the officers of the federal government.” The Officers of the United States are members of the President’s Cabinet, department heads, and other officers approved by the Senate.
The Senate must give consent, as indicated in Article II, Section 2 and Article I, Section 3, to the appointment of these officers. Therefore, giving the U.S. Senate (and therefore “the States” prior to the 17th Amendment) the power of oversight over the President’s choices. This, in turn, means that the President’s czars are unconstitutional.
Congress has no oversight over the czars.
Terms:
Executive Order: An Executive Order is an order issued by the President of the United States that may be a proclamation, or an order to change the processes within the Executive Branch.
Regulatory Agencies: Agencies within the Executive Branch tasked with executing the laws of the nation. The enforcement arm of the Executive Branch.
State of the Union address: A speech about the state of the union addressed to Congress by the President.
Questions for Discussion:
1. Why does the Constitution instruct the President to give a State of the Union speech?
2. What can executive orders be used for?
3. Name some extraordinary occasions that might compel the President to call Congress into session.
4. What kind of laws can the regulatory agencies execute?
5. Who are the officers of the United States?
6. Are the President’s “czars” constitutional?
Resources:
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Madison’s Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
4.4 - Impeachment
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Impeachment is a term that means “To charge with misconduct.” Removal from office does not happen unless the official is “convicted.” In the case of the President and Vice President, the hearings are held by the U.S. Senate.
The reasons for impeachment may be for “Treason, Bribery, or other high Crimes and Misdemeanors.”
Treason is defined in Article III, Section 3 as “levying War against them (United States, these States are united), or adhering to their Enemies, giving them Aid and Comfort.”
Bribery is defined as meaning the exchange of money, promises, or other things, with someone in office, in order to influence that person’s views or conduct.
The real confusion comes when we talk about the final part: “or other high Crimes and Misdemeanors.”
When it comes to the phrase, "high crimes and misdemeanors" and the meaning of that phrase to the Founding Fathers, we must recognize the language used.
The word “high” in this context does not necessarily mean "more serious". It refers to those punishable offenses that only apply to high persons, meaning “public officials,” or those who, because of their official status, are under special obligations that ordinary persons are not under.
For an official that was placed in office by the people, a crime offends the sense of justice of the people. When a public official commits these crimes, they can be more serious than if the same crime is committed by a citizen, because of the trust put into the office the official holds.
One of those high crimes is Perjury, which is more than merely “lying under oath". Under the definitions used by the founders, Perjury also means "violation of one's oath (or affirmation)". Therefore, the President refusing to protect and defend the Constitution, could be considered Perjury.
The President is bound by his oath of office in all matters until he leaves office to follow the oath of office. While he holds that office, he is always under oath, failing to uphold the oath, or lying at any time, constitutes perjury if it is not justified for national security.
An executive official is also ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons. The president's subordinates include everyone in the executive branch, and their agents and contractors. It is not limited to those over whom he has direct supervision. He is not protected by "plausible deniability". He is legally responsible for everything that everyone in the executive branch is doing.
Impeachment and removal proceedings may then encompass a full range of offenses against the Constitution and against the rights of persons committed by subordinate officials and their agents which have not been adequately investigated or remedied.
The meaning of the phrase "high crimes and misdemeanors," was common knowledge during the time of the founding of this nation. The phrase imports a concept in English Common Law of the word “misdemeanors” that essentially means bad behavior.
“Misdemeanors" in the language of the founders, then, did not necessarily refer to a criminal act as many believe, but opened up the opportunity for impeachment of the President should he be guilty of gross incompetence, gross negligence, or outright distasteful actions which clearly show "malevolence toward this country and constitution, which is unabated."
The subject of impeachment was adopted from the English concept of this idea. In England impeachment was a device to remove from office someone who abused his office or misbehaved but who was protected by the Crown.
Madison said impeachment was to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.”
At first, during the debates in the Constitutional Convention, the grounds for removal of the president were to be upon conviction “of mal-practice or neglect of duty” and subsequently this was changed to “Treason, or bribery.” George Mason objected to this limitation, saying that the term did not encompass all the conduct which should be grounds for removal. So, Mason proposed adding the term ''or maladministration'' following ''bribery.''
Madison objected, believing the term to be too vague. Mason then suggested ''other high crimes and misdemeanors,'' which was adopted without further recorded debate.
Terms:
Bribery: The exchange of money, promises, or other things, with someone in office, in order to influence that person’s views or conduct.
High Crimes: Punishable offenses that only apply to high persons, meaning “public officials,” or those who, because of their official status, are under special obligations that ordinary persons are not under.
Impeachment: To charge with misconduct. Formal process that may lead to removal of an official accused of unlawful activity; impeachment does not mean the removal from office, though removal from office is often the result of impeachment proceedings.
Misdemeanors: In the Constitution the definition is bad behavior including, but not limited to, gross incompetence, gross negligence, or outright distasteful actions which clearly show "malevolence toward this country and constitution, which is unabated."
Perjury: Lying under oath, violation of one's oath (or affirmation).
Treason: Levying war against the States, or adhering to the enemies of the States, giving aid and comfort to the enemy.
Questions for Discussion:
1. In the United States Government, who has the sole power of impeachment, and who holds all impeachment hearings?
2. Based on the definitions of bad behavior, could the President, an officer, or judge be impeached for unconstitutional actions?
3. Why do you suppose James Madison changed the term “maladministration?”
Resources:
James Madison, Veto of Federal Public Works Bill 1817; Constitution.org: http://www.constitution.org/jm/18170303_veto.htm
Jon Roland, Meaning of "High Crimes and Misdemeanors"; Constitution Society: http://www.constitution.org/cmt/high_crimes.htm, (1999)
Madison’s Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution - Volume Four - Article 2, Section 2 through Article 7; Indianapolis: Liberty Fund (1987).
Vincent Gioia, What is a ‘Misdemeanor’ Under the Constitution and Why is it Important?; Right Side News: http://www.rightsidenews.com/2010091511636/editorial/rsn-pick-of-the-day/what-is-a-misdemeanor-under-the-constitution-and-why-is-it-important.html, (2010)
