Ratification of the U.S. Constitution

The Constitutional Convention Created Compromises and the Development of the United States System of Government

With the exception of Rhode Island, the states sent 55 delegates to the Constitutional Convention in Philadelphia in 1789. The delegates’ makeup included merchants, lawyers, farmers, and bankers as well as state government officials. Leaders such as Thomas Jefferson, Thomas Paine, Patrick Henry, John Adams, and John Hancock doubted that replacing the Articles of Confederation with the new constitution was the answer to the country’s problems and did not attend. Those present believed a revision of the Articles of Confederation would not go far enough. Hamilton, Washington, and Madison led the fight for a new constitution. Benjamin Franklin, at age 81, was one of the oldest delegates and the only one to sign both the Declaration of Independence and the Constitution.

Philosophically, the delegates were split on how to reconcile basic differences regarding the organization of a new government. They shared a cynical belief that people could not be given power to govern and that political conflict would naturally occur if there were not built-in checks. Because the delegates came from the newly emerging middle class as well as the traditional rich property owners, they quickly saw that factions would exist both in the government and in society. The Federalist Papers (No. 10) pointed out that these factions could ultimately paralyze effective government. Self-interest of the delegates resulted in an agreement that the objective of government should be to protect the property owner. Ultimately a series of checks and balances, outlined in Federalist No. 47, and a structure of government that stressed a separation of powers became the fiber of the new constitution.

Constitutional historian Charles Beard, in his An Economic Interpretation of the Constitution (1913), argued that the founding fathers were concerned with protecting the wealth of the property class. He painted a picture of the delegates to the convention as men who were wealthy and who cared about the financial interests of that class.

The compromises reached at the convention included voting, representation, slavery, and trade. Because wealth was such an important consideration, the delegates decided to let the individual states determine the criteria for voting qualifications. Property became the major criterion, and each state was able to determine who was eligible to vote in the national elections for Congress and the president.

Compromise Results in a Bicameral Congress

The thorny issue of how to create a new Congress split the convention between the larger, more populous, states and the smaller ones. The smaller states, led by New Jersey, insisted that each state should have equal representation. The Virginia Plan argued that a legislature based on population would be more equitable. The Connecticut Compromise, also known as the Great Compromise, resulted in the formation of a bicameral (two-house) Congress—one house is represented equally by the states (the Senate) and the other house is represented by population (the House of Representatives).

The Issue of Slavery Is avoided by the Three-Fifths Compromise

Once the structure of the new Congress was agreed upon, the divisive issue of slavery had to be resolved. There was never a doubt that Jefferson’s original proposition that “All men are created equal” would never see the light of day in the new Constitution. Nevertheless, the issues of slave trade and slave representation had to be resolved. The southern states agreed to halt the import of slaves in 1808 if the northern states agreed to return fugitive slaves. More difficult was the issue of representation. If each slave counted as one person, the southerners could have easily held the balance of power in the House of Representatives. Thus, the Three-Fifths Compromise was agreed on. Every five slaves would count as three people for representation and tax purposes. There was also a compromise over the importation of slaves, allowing them to be imported after the Constitution had been ratified for 20 years.

The last major compromise dealt with tariffs. The northerners wanted to tax southern exports to Europe and to protect their own manufactured goods. The South did not want to tax European goods so that their own exports would not be taxed. They agreed to tax only imports.

Economic Issues

The delegates also addressed the weaknesses of the Articles of Confederation. Because a primary concern was protection of the property owner, they dealt with economic issues. Congress was given the power to tax, regulate interstate and foreign commerce, create a viable national currency, and, in what later became known as the elastic clause, make “all laws necessary and proper” to carry out the stated powers of Congress.

States were strictly prohibited from duplicating the federal government’s powers that would have an impact on the nation’s economy (i.e., denied the power to coin money, regulate interstate and foreign commerce, and interfere with the federal government’s ability to collect debts).


The Electoral College 

Advantages and disadvantages of the electoral college 


The founding fathers established the Electoral College in the Constitution as a compromise between election of the president by a vote in Congress and election of the president by the popular vote of qualified citizens. Article II also outlined the role of the Electoral College (even though that term is not used) in the election of the president. Simply stated, the Electoral College consists of presidential electors in each state. The number of electors is based on the state’s population. The states with the greatest population have the most electoral votes. When the voter casts a vote for president, in reality the vote goes to one of the presidential electors designated by the candidate in that state. The number of electors for each state equals the number of senators and representatives that state has in Congress. Thus, the number can change based on the census. The candidate who receives the most votes receives all the electoral votes in that state. The candidate with a majority of the electoral votes is elected to office. The electors gather in state capitols in December and cast their ballots based on the results of the November election. The Congress certifies the results in January. If no candidate receives a majority of the electoral votes, the election of president is determined by the House of Representatives.

The Amendment Process

Advantages and Disadvantages of the Amendment Process 

Because there was concern that the Constitution had to be a living document ensuring that self-government would be successful, Article V of the Constitution provides for the amendment process.

If you do not count the Bill of Rights and the prohibition amendments, the Constitution has been amended only 15 times. The revisions have been significant and help to strengthen, expand, and explain provisions found in the original document. The amendments can also be classified in six ways:

■creating additional power for the federal government such as the legalization of a progressive income tax (Sixteenth);

■limiting power to the state governments, such as prohibiting a state from making laws that deny equal protection for its citizens (Fourteenth);

■granting the right to vote to various groups such as Black males (Fifteenth), women (Nineteenth), and 18-year-olds (Twenty-sixth);

■taking away and adding to the power of the voter to elect public officials (Seventeenth);

■direct election of senators (Twenty-second; limiting presidential terms); and

■changing the structure of government (limiting term of office, Twenty-second amendment, presidential succession and disability, Twenty-fifth amendment).

There are two methods used to amend the Constitution. The one that has been used the most requires a two-thirds vote in both houses of Congress and ratification in three-fourths of the state legislatures. The second method is when Congress must call for a national constitutional convention after a request is made by two-thirds of the state legislatures; then, either three-fourths of the state legislatures must ratify the amendment or three-fourths of ratifying conventions held in the states must approve it. There may also be a time limit placed on the ratification of most amendments passed by Congress. One of the most debated constitutional amendments was the proposed Equal Rights Amendment, which would have guaranteed the equality of rights by the United States and every state based on sex. This amendment was given seven years for approval, and then an extension to pass in two-thirds of the state legislatures. It died in 1982, falling short of the necessary votes because of political pressure brought by groups opposed to public funding of abortion and others concerned about the effect that affirmative action would have on various labor laws. Other amendments such as the Twenty-seventh, which places restrictions on Congress passing pay raises for its members, took over 200 years to ratify! The vast majority of amendments, including the Bill of Rights, took less than a year to ratify.

If the Constitution is an enduring document, then one must project that other amendments to the Constitution are a real possibility. Such measures as a balanced-budget amendment, a term-limits amendment for Congress, the abolition of the Electoral College, and a provision for equal rights for women and homosexuals have advocates. However, as was shown after the Supreme Court ruled in Texas v Johnson (1989) that flag burning is a legal form of political protest, Congress failed to pass a constitutional amendment supported by President George H. W. Bush making it illegal to burn or desecrate the flag.

The Bill of Rights Is Debated

The Supreme Court and Public Policy 

After the U.S. Constitution was ratified in 1789, the future success of this young new republic hung in the balance. After struggling with the Articles of Confederation, the United States found in the Constitution a new opportunity to demonstrate that its form of limited government could work. In 1791, fulfilling a commitment made to the Anti-Federalists at ratification conventions, an additional ten amendments, the Bill of Rights, were ratified, keeping a promise made to the Anti-Federalists at the state ratifying conventions. In fact, the entire rationale for including a Bill of Rights in the Constitution was to reinforce this concept of limited government. From the opening words of the First Amendment, “Congress shall make no law respecting,” to the due process guarantees of the Fifth and Fourteenth Amendments, the government is told that the rights of its citizens must be protected.

Current Debate over the Role of Government

Issues raised at the Constitutional Convention resulting in the many compromises that stitched the Constitution together have reemerged today. For example, the aftereffect of the September 11, 2001 attacks resulted in the passage of the USA Patriot Act in October and the creation of the Director of Homeland Security, a new cabinet-level official. Public concerns over privacy rights and wiretapping were raised by many citizens and lawmakers. The Patriot Act allows federal officials greater authority in tracking and intercepting communications, both for purposes of law enforcement and foreign intelligence gathering. It gives the secretary of the treasury regulatory powers to combat corruption of U.S. financial institutions for foreign money-laundering purposes; it more actively works to close our borders to foreign terrorists and to detain and remove those within our borders; it establishes new crimes, new penalties, and new procedural techniques for use against domestic and international terrorists. The Office of Homeland Security was the latest addition to the cabinet and is responsible for protecting the United States against future terrorist attacks. Each federal agency is directly responsible to the president and makes policy recommendations appropriate to its area. In the summer of 2004, the 9/11 presidential commission held hearings and issued a report that recommended the creation of a new National Counterterrorism Center headed by the Director of National Intelligence. After much political in-fighting in the Republican-controlled House of Representatives, the bill, which was supported by a majority of Democrats, passed both houses in a lame-duck session of Congress. The law, signed by President George W. Bush, created a new counterterrorism center with a director appointed by the president and confirmed by the Senate. This director was given broad powers and coordinates intelligence among the many existing agencies. This new director and the agency also have the major responsibility of working with the Department of Homeland Security and becoming a link between federal and state agencies. The law expanded a security system for airlines, expanded security technology to other areas not previously covered such as transportation threats, ports, and illegal immigrants. The law also set up a Privacy and Civil Liberties Board, consisting of private citizens appointed by the president, ensuring that the security policies of the federal government do not breach the civil liberties of Americans.

Another example of an issue that was central at the 1789 Constitutional Convention, the conflict between the federal government and states, was the debate over how much control the federal government should have in education. Between the operations of the federal government and local governments, our lives are deeply affected by a federal form of government. The sheer number of governments that exist nationwide illustrate the complexity of the federal system. If you are concerned with the education of your child, you must be aware of the local requirements set up by your town’s school board, and you have to support the school district through some kind of tax system. The state government may set up minimum graduation requirements and laws affecting the certification of teachers. When George W. Bush was elected president in 2000, he initially had to work with a divided Congress. After the 2002 midterm election, the Republicans controlled both houses of Congress, and Bush was able to push his legislative agenda through, passing the No Child Left Behind legislation that helped reform the nation’s schools. According to the Department of Education, “The NCLB Act incorporates increased accountability for states, school districts, and schools; greater choice for parents and students, particularly those attending low-performing schools; more flexibility for states and local educational agencies in the use of federal education dollars; and a stronger emphasis on reading, especially for our youngest children.” Specifically, the provisions of the No Child Left Behind legislation direct the U.S. Department of Education to “hold schools accountable for academic achievement by setting academic standards in each content area for what students should know and be able to do; gather specific, objective data through tests aligned with those standards; use test data to identify strengths and weaknesses in the system; report school conditions and progress to parents and communities; empower parents to take action based on school information; celebrate schools that make real progress; and direct changes in schools that need help.” In 2009, the Department of Education implemented as part of the American Recovery Act the “race to the top” program that encouraged states through grants to satisfy certain educational policies such as performance-based standards for teachers and principals, complying with nationwide standards, promoting charter schools and privatization of education, and computerization. Part of the standards included a “Common Core” curriculum. By 2015, states began to opt out of the grant program because of the Common Core demands. After Donald Trump was elected president in 2016 on a platform to eliminate Common Core, his new education secretary turned away from it and began implementing the Every Student Succeeds Act, which Congress passed in 2015. That act gave the states more flexibility and decision making in developing educational policy. After President Biden was elected in 2020, he pledged that the federal government would take a greater role in setting guidelines and began the process of rescinding many of the mandates that the Trump administration established. Another initiative of Biden was the elimination of $10,000 of student debt.


: THE CONSTITUTION

Among the outcomes the Constitution brought were various methods of making policy that guaranteed the people’s views would be represented and that their liberty and freedom would be guaranteed.

The Big Idea, Competing Policy-Making Interests, is reflected by this concept.

Lobbyists 

Are Pressure Groups good for democracy? 

Required Document: The Constitution of the United States


The Preamble Sets Forth the Goals of the Constitution

■The establishment of justice

■The assurance of domestic tranquility

■The promotion of the general welfare

■The security of individual liberty

Once you consider these principles, you will see how people can differ on the meaning, interpretation, and implementation of these functions of the national government. When you look at specific examples of these functions and how they affect us, you will see the scope of government. Such policy areas as health care, the nature and size of our armed forces, the welfare system, Social Security and Medicare, and the extent to which government should regulate our lives illustrate the expanding role of government and the impact it has on our lives.

The Importance of Goals and Public Policy

In evaluating the success or failure of government, always analyze whether the national government is achieving the Preamble’s goals, which translate into public policy. Another way of putting it is whether officials are meeting the needs of the public they serve. To make a final judgment, you should ask the following questions about government and politics as you continue reading this text:

■What is the public interest?

■Who determines the parameters of what the public wants?

■How much influence should government have on the lives of its citizens?

■How big should government be?

■How much money should government spend?

■What is the best way to raise money for government spending?

■How should government and its elected officials deal with serious ethical issues such as abortion, euthanasia, and birth control?

■How should government and politicians restore the public’s confidence in their elected officials and government?

The Role of Government Has Different Perspectives

Government itself must become responsive. It must respect minority rights even though its elected officials were chosen by majority rule. Individual freedom must be respected and is guaranteed through the Bill of Rights. Court decisions such as Tinker v Des Moines have reinforced the concept that the First Amendment is applicable even to high school students. Finally, government itself must operate on the basis of consensus and compromise. Otherwise public policy, the measure of whether government succeeds or fails, will not be implemented. During the Obama administration, the cry of “gridlock” was heard because a Democratic president had difficulty achieving his legislative agenda in the face of a divided Congress and then a Republican Congress.

After the Republicans assumed control of Congress in 1994, a divided government again dominated American politics. In 1995, the Republicans tested a weakened president Bill Clinton by forcing a government shutdown caused by a budget stalemate. This backfired when public opinion turned against the GOP. A complete turnaround occurred at the conclusion of the 104th Congress prior to the 1996 election when both the president and Congress reached compromises regarding healthcare portability, the minimum wage, and welfare reform. At the start of the 105th Congress a bipartisan agreement on a balanced budget was reached.

After the contested 2000 election, newly elected President George W. Bush had to face a divided Congress in 2001 when one of his fellow Republicans became an independent and voted with the Democrats, giving the Democrats a single-vote majority in the Senate. This lasted until the 2002 midterm election, when the Republicans again regained control of Congress. In 2006, the Democrats won back Congress as a result of voter discontent with the Iraq War. The Democrats expanded their majorities in both houses in the 2008 election, thus ending divided government.

In 2010, the Republicans regained control of the House of Representatives by winning more than sixty seats. The Republicans also gained six seats in the Senate but failed to win a majority. In 2014, the Republicans took complete control of Congress. Thus, a new era of divided government began with the 114th Congress.

After the 2016 presidential election, the Republicans took control of both houses of Congress. The party promised to overturn many of the initiatives signed into law by President Obama, such as the Affordable Care Act. They failed but did pass a massive tax cuts bill. After the 2018 midterm elections, the Democrats regained control of the House of Representatives, signaling the return of divided government. In 2020, the Democrats won the White House, maintained control of the House of Representatives, and won the slimmest majority in the Senate that required Vice-President Harris to cast the tie-breaking vote if there was a 50-50 vote. The midterms returned the House to Republican control but the Democrats unexpectedly retain a slim majority in the Senate.


Required Documents

The Constitution Is the Blueprint of How the Government Operates

When studying the Constitution, you should be able to picture a document that is laid out simply and directly. From the clarity of purpose in the Preamble, to the organization and structure of the three branches of government, to the amending process, the Constitution provides for orderly and effective government.

The major characteristics of the Constitution include the following:

■the separation of powers of each branch of government;

■checks and balances including a recognition that a simple majority vote may not be enough of a check;

■a built-in elastic clause as part of Congress’s power;

■a reserved power clause giving states power not delegated to the national government;

■rights guaranteed to the citizens;

■an impeachment clause to guarantee the president does not break the oath of office;

■precedents and traditions in creating an unwritten constitution;

■judicial review growing out of interpretation of the power of the Supreme Court;

■an amending process, which is flexible enough to allow for change even though it involves more than a majority vote; and

■the inherent powers of the president.


Separation of Powers and Checks and Balances


The first three articles of the Constitution provide the basis of the organization of the government. Article I broadly defines the legislative powers of Congress. It divides the Congress’s governing responsibilities between a bicameral (two-house) legislature. The House of Representatives is defined as the body most directly responsible to the people. The Senate, with its makeup based on equal representation, joins in a partnership with the House in passing laws. The rules for impeachment of government officials are also outlined in Article I. It is interesting to note that there are subtle differences (to be discussed later in this unit) between the two bodies. The House of Representatives is considered more representative than the Senate because of its size, shorter terms, and qualifications for office. The term of office for a representative is two years compared to six years for a senator. A person serving in the House has to be at least 25 years old, an American citizen for seven years, and an inhabitant of the state the congressperson represents. A senator, on the other hand, must be at least 30 years old, nine years a citizen of the United States, and a resident of the state the senator represents.

The two houses of Congress created as a result of the 1787 Connecticut Compromise resulted in the establishment of a House of Representatives and a Senate. The House of Representatives is made up of 435 members based on the census taken every 10 years. According to the 2010 census, there is one House seat for every 710,767 people in each state. It grew to 747,000 people in 2018. It also includes “shadow” representatives from the District of Columbia, Guam, Puerto Rico, the Virgin Islands, and American Samoa. Each state has a minimum of two senators and one representative. As a result of the Supreme Court decision, Baker v Carr (1962), the principle of “one man, one vote” was established. This decision created guidelines for drawing up congressional districts and guaranteed a more equitable system of representation to the citizens of each state. The Supreme Court has been asked to review some districts in the South to ensure fair racial representation. In another highly controversial decision, the court ruled in 1995 that a racially apportioned district in Georgia set up to comply with the Voting Rights Act of 1965 was unconstitutional based on the equal protection clause of the Fourteenth Amendment. The 2014 Supreme Court voting rights decision left the door open for these kinds of districts to be created. In other situations, some state legislatures created districts that favored the political party in power. This became known as gerrymandering.

When you look at the specific power of each house, you can also see how the House is “closer to the people.” Besides the fact that senators were originally appointed by state legislatures, the House of Representatives is given the responsibility of starting all revenue bills. The Senate must also approve revenue bills and can vote for a different version, but it must wait for the House to pass the first version of the bill. The House has the authority for initiating the process of impeachment. The House Judiciary Committee passed articles of impeachment against Richard Nixon, Bill Clinton, and Donald Trump. Nixon resigned before the Senate could try him, whereas Clinton and Trump were tried and acquitted by the Senate. The Senate tries impeachment cases and, in the only four trials involving a president, failed by one vote to convict Andrew Johnson and acquitted Bill Clinton and Trump in both of his impeachment trials. The other major difference between the two bodies in the allocation of power is that the Senate has the responsibility of approving presidential appointments and treaties.

 Example

The Mueller Report Investigation into Russian Interference in the 2016 Presidential Election

During the 2016 presidential campaign, U.S. security agencies reported to President Obama that Russia was interfering in the election through social media and attempts to hack into Hillary Clinton’s campaign in order to aid Donald Trump’s campaign. After the election, there were unanswered questions on the extent of Russian interference and whether President Trump or his campaign conspired with Russia. The FBI initiated an investigation of Trump’s connections in July 2016. In May 2017, President Trump fired the director of the FBI, claiming that James Comey was “not able to effectively lead the bureau.” Because of public and private statements alleging that Trump fired Comey to impede the Russian probe, the deputy attorney general appointed a special counsel, Robert Mueller, to investigate Russian interference in the United States’ 2016 presidential election.

Mueller’s report, released in April 2019, was the culmination of the special counsel’s nearly two-year investigation of Russia’s election meddling and possible obstruction of justice by President Trump. Robert Mueller’s team indicted, convicted, or obtained guilty pleas from 34 individuals and three Russian companies. Among the individuals were six former Trump advisers, including his national security advisor and his former campaign manager, and 26 Russian nationals. Other potential investigations were passed along to several U.S. attorneys. One of these probes resulted in a guilty plea from Trump’s personal lawyer and named President Trump as a party involved in making hush-money payments during the 2016 campaign to silence women alleging affairs with him.

President Trump was highly critical of the investigation, calling it a “witch hunt,” and he questioned the bias of Mueller and the FBI. At times after the Mueller Report was released, President Trump proclaimed, “No collusion. No obstruction. A complete exoneration.” He wanted to investigate the origins of the investigation because he claimed that he was unfairly treated.

The Mueller Report made two principle conclusions: the first on Russian interference with the 2016 presidential election and the Trump campaign’s possible connections, and the second on President Trump’s conduct and possible obstruction of justice related to the investigation. The following are excerpts from Mueller’s report.

“The Special Counsel’s investigation established that Russia interfered in the 2016 presidential election principally through two operations. First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against… the Clinton Campaign and then released stolen documents. The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

“Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the president’s conduct. The evidence we obtained about the president’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.”

The Mueller Report, and related investigations by House and Senate committees, show that constitutional mechanisms and principles, such as checks and balances and congressional oversight, are efforts to determine the extent of Russian interference in U.S. presidential campaigns, whether there was a conspiracy on the part of Donald Trump or his campaign to work with Russia in the 2016 elections, and whether President Trump obstructed justice prior to and during the investigations. In July 2020 the House Judiciary Committee opened up a preliminary impeachment investigation of President Trump after Director Mueller appeared before the committee. They did not find enough evidence to impeach President Trump on issues raised by the Mueller report. Impeachment charges were voted on by the House in 2019, and the Senate acquitted him in 2020. The second time, Trump was impeached by the House and acquitted by the Senate in 2021.

Congressional Powers

The common powers of the Congress are listed in Article I Section 8. These are the enumerated or delegated powers of Congress. They include the power to

■collect taxes, pay debts, and provide for the common defense and general welfare;

■borrow money;

■regulate commerce among the states (interstate commerce) and with foreign countries;

■establish uniform laws dealing with immigration and naturalization and bankruptcies;

■coin money;

■make laws regarding the punishment for counterfeiting;

■establish post offices;

■make copyright laws;

■establish federal courts in addition to the Supreme Court;

■define and punish piracy;

■declare war;

■raise and support armies and a navy; and

■create a national guard.

In this same section, implied powers are defined in the “necessary and proper” clause, which states that Congress has the power to “make all laws necessary and proper for carrying into execution the foregoing powers.” This “elastic clause” is a major and significant power of Congress, granting the legislature the ability to interpret its lawmaking ability in a broad manner. Even though strict interpreters of the Constitution reject the extent of its elasticity, Congress has demonstrated an ability to change with the times. From the creation of the National Bank in 1791 to the passage of the Brady Bill (establishing a waiting period for handgun purchase), congressional legislation more often than not reflects the tenor of the times.

Powers denied to Congress are the denial of the writ of habeas corpus, giving appeal protection to the accused; the passage of bill of attainder laws, which proscribe penalties without due process; and the passage of ex post facto laws, which take effect after the act has taken place. In addition, Congress cannot pass export taxes or grant titles of nobility to citizens.

In 1995, after states passed term limitations restricting the number of consecutive terms a representative can serve, the Supreme Court ruled that these laws were unconstitutional.

Another related issue dealing with the organization of Congress is term limitations. In 1995 the Supreme Court, in the case of Thornton v Arkansas, ruled that state-imposed term limits were unconstitutional, indicating that the only way the terms of members of Congress could be altered was through an amendment.

Powers of the Chief Executive

Article II determines the role of the chief executive, giving responsibility to a president and vice-president. Even though the executive’s powers are not as specifically defined as in the legislative branch, the president’s major responsibility is to administer and execute the public policies of the United States. The inherent power of the president, which includes those powers the president exercises that grow out of the existence of the national government, expands the power of the presidency. By signing congressional legislation into law, the president assumes the responsibility of enforcing the laws of the land. Reference is also made to the president’s authority in the area of foreign policy. This article also outlines the mechanics of the Electoral College and determines its procedures in the case where a candidate does not receive a majority of the electoral votes. The article refers to executive departments, though it does not specifically mention the president’s cabinet or the federal bureaucracy.

Executive Powers

Because of the unique qualities of the presidency, the qualifications for office are the strictest among the three branches. The president must be a natural-born citizen (unlike senators and representatives, who can be naturalized citizens), at least 35 years old, and a resident of the United States for at least 14 years. The source of power of the president comes from the language in Article II Section 1, “The executive power shall be vested in a president of the United States of America.” The term of office is four years, limited by constitutional amendment to no more than two terms.

The president becomes a central and unique player in government as a result of the manner in which the definition of chief executive is stated. The only specific powers and duties listed in Article II Sections 2 and 3 include:

■the power to act as commander in chief of the armed forces;

■the ability to obtain information from members of the executive branch;

■the power to grant pardons;

■the power to make treaties with the consent of the Senate;

■the power to appoint ambassadors, justices, and other officials with the advice and consent of the Senate;

■the power to sign legislation or veto legislation;

■the duty to give Congress a State of the Union report;

■the power to call special sessions of the Congress; and

■the inherent power of the president.

Even though there are far fewer powers and responsibilities listed for the president than for the Congress, because the president can interpret the role of the executive in a broad manner, the power of the president in modern times has increased more than the other branches. From Franklin Roosevelt’s passage of the New Deal and Lyndon Johnson’s Great Society programs, to Presidents Obama’s and Trump’s increase of executive orders, the power of the president has been on the rise. As head of state, the visibility of the president in ceremonial areas far exceeds that of a Congressman. The president is also considered the titular head of the political party in power and thus wields a great deal of power in relation to party appointments. President Trump had a 90 percent approval rating among Republican voters during his presidency, even though his overall approval rating averaged in the mid 40s, which gave him a great deal of influence over Republican lawmakers. Even after Trump left office, a large majority of Republicans still supported the Trump agenda.

The Vice-President

The vice-president’s responsibility is also listed in Article II. The only stated responsibility of the vice-president is to preside over the Senate and be the deciding vote if there is a tie vote. This occurred in President Clinton’s first administration when Vice-President Al Gore cast the decisive vote to pass the president’s budget proposal. It was a key piece of legislation for the new president and set the course of his economic program. The vice-president is also next in line to succeed the president in case of death and, as a result of the Twenty-fifth Amendment, can take over the presidency if the president is disabled.

Presidential Succession

After John F. Kennedy was assassinated, the presidential succession amendment was ratified. Little did the country realize that it would be used, not as a result of an assassination, but rather because Spiro Agnew, Nixon’s vice-president, resigned and, not much later, so did President Nixon.

Presidential disability and succession are defined in the Twenty-fifth Amendment, which allows the vice-president to become acting president after the president’s cabinet confirms that the president is disabled. This happened for a short period when Ronald Reagan was undergoing surgery after an assassination attempt.

The amendment also outlines the procedures for selecting a new vice-president when that office becomes vacant. When a vacancy occurs, the president nominates a new vice-president. Unlike other presidential appointments, both the Senate and House must approve the appointment by a majority vote in each house. This occurred after Spiro Agnew resigned in 1973. Nixon appointed Congressman Gerald Ford as vice-president, and both houses of Congress approved his selection. When Nixon resigned in 1974, Ford appointed former governor of New York Nelson Rockefeller as vice-president, and both houses of Congress approved Rockefeller. By law, after the vice-president, the Speaker of the House and then the Senate president pro-tempore are next in line.

Nine presidents have not completed their term of office. Eight presidents have died, and one, Nixon, resigned. After Franklin Roosevelt died in 1945, a constitutional amendment was passed limiting the term of office to two terms or a maximum of ten years. There has been a growing movement to further limit presidential terms to one six-year term to reduce the amount of time and energy devoted to raising campaign funds and campaigning for office.

Executive Orders

Executive actions by the president are defined as policy directives that are ordered by the president without any Congressional authorization. They differ from executive orders, which are policy directives aimed at federal agencies. Executive orders are legally binding and can be reversed by the Congress and the courts. Executive actions change existing federal policies that are under the jurisdiction of the federal government. Presidents Obama and Trump issued a number of highly controversial executive orders during their presidencies. The most controversial actions related to immigration.

Immigrant groups such as Hispanics and Asians have grown in numbers as problems facing their home countries have increased. The 2010 Census reported that Hispanics were the fastest-growing minority. Cuban and Haitian immigrants have settled in Miami. Puerto Ricans and Jamaicans have made New York City a second home. Mexicans have fled poor economic conditions and have settled in Texas, Arizona, and California. Asians have fled war in Southeast Asia and have left Korea and Japan. Many have become citizens; others have obtained legal status. Unlike natural-born Americans, they are having an extremely difficult time obtaining civil rights. There is a tremendous resentment on the part of the American people to those groups placing an additional burden on America’s welfare system. Even though these groups are increasing in numbers, they have yet to achieve complete political equality. There are an increasing number of Hispanic and Asian representatives in Congress. A Congressional Hispanic Caucus formed. Governor Bill Richardson became the first Hispanic American to run for president in 2008. The courts have recognized the problems facing these groups. In the case of Lau v Nichols, in 1974, the Supreme Court ruled that Title VI of the Civil Rights Act of 1964 mandates schools to offer English as a second language to non-English-speaking students. A corollary language problem facing these groups arises when cities pass legislation making English the official language of the municipality. States like California have passed referenda abolishing bilingual education programs.

Just as nativist groups turned against immigrants after the first great influx (1800s–1920), Americans during the 1990s and 2000s reacted in a strong way against immigrants and illegal aliens. From the efforts of California voters, who passed Proposition 187 in 1994, which attempted to deny illegal aliens social services and education, to the attempts of Republicans to deny welfare for legal immigrants, Americans continued to express concerns about the impact of immigration on the country. In 2006, a debate emerged on what to do about the approximately 12 million illegal immigrants in this country. President George W. Bush proposed a comprehensive immigration bill that would have secured the nation’s border while giving illegal immigrants a path to citizenship through a guest worker program. Congress rejected this proposal and voted to build a 700-mile fence to prevent illegal immigrants from coming into the country. The debate over illegal immigration intensified after the 2008 election. In 2010, Arizona passed a very controversial immigration law that gave state authorities the right to stop and check the immigration status of people they felt were illegal immigrants. There was an outcry of opposition from immigration groups, and the Obama administration, through the Department of Justice, challenged the law because the administration claimed that the enforcement of immigration policy is a federal prerogative. The Supreme Court ruled that parts of the law were legal, including the controversial requirement that allows the police to stop and check an immigrant’s status.

Illustrative Example

Immigration policy leading to DACA

Optional Reading

Obama Executive Order on Immigration DACA

In 2012, President Obama signed an executive order that gave legal status to undocumented children who were brought to the United States before they turned 16 years old, are no older than 30, have been in the United States for at least 5 years, have been convicted of no serious crime, and have a high school diploma, a GED, or a stint in the U.S. military. In the 2012 election, 70 percent of Hispanics voted for President Obama. When Congress was not able to pass comprehensive immigration reform, President Obama then issued a highly controversial executive action in 2014. According to the U.S. Citizenship and Immigration agency the actions:

■“Cracked down on illegal immigration at the border, prioritized deporting felons not families, and required certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.”

These initiatives include:

■expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years.

■allowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, in a new Deferred Action for Parents of Americans and Lawful Permanent Residents program, provided they have lived in the United States continuously since January 1, 2010, and pass required background checks.

■expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens.

■modernizing, improving, and clarifying immigrant and nonimmigrant visa programs to grow our economy and create jobs.

■Promoting citizenship education and public awareness for lawful permanent residents, and providing an option for naturalization applicants to use credit cards to pay the application fee.”

The program was highly controversial and was criticized by the Republican leadership in Congress and was challenged by the Republican Congress, the governor of Texas, and other states attorneys general. In 2017, the Supreme Court was deadlocked 4-4 and these regulations remained in effect. As a result of the 2016 election, after the Republicans took control of all branches of government, President Trump reversed the executive order and gave Congress six months to come up with a legislative solution. After a U.S. Appeals Court upheld Obama’s executive order, President Trump announced that he would wait until the Supreme Court ruled before taking action.

One of President Trump’s first executive orders was a travel ban aimed at immigrants from seven Muslim countries in the Middle East. The ban was halted as a result of a ruling by the Ninth Circuit Appeals Court. The Trump administration issued a revised order as a result of that ruling which the Supreme Court was scheduled to hear arguments in the 2017 term. Many of Trump’s first hundred-day accomplishments were the repeal of Obama administration executive orders. Trump also signed over 90 executive actions covering domestic and foreign policy issues such as:

■A memorandum directing the secretary of defense to draw up a plan within 30 days to defeat ISIS.

■A memo ordering an investigation into whether aluminum imports are hurting national security.

■An order meant to improve accountability and whistleblower protections for Veterans Affairs employees.

■An order directing a review of national monument designations under prior administrations.

■An order meant to affirm local control of school policies, and examine certain Department of Education regulations and guidance to determine their compliance with federal law.

■An order directing a task force to review regulations affecting the agriculture industry memorandum to restructure the National Security Council and the Homeland Security Council.

■One of the most controversial actions by President Trump was to declare a national emergency over funding to build a border wall. Congress passed a resolution to block it, which resulted in Trump issuing his first veto.

After President Biden was elected, he signed 17 executive orders, many of them reversing President Trump’s executive orders, such as:

■An executive order reversing a Trump administration order that excluded undocumented immigrants from the census.

■A memorandum directing officials to “preserve and fortify” the Deferred Action for Childhood Arrivals, or DACA, program.

■An executive action repealing two proclamations, informally known as the “Muslim ban,” that restricted entry into the United States from majority-Muslim countries.

■An executive order revoking Trump’s “harsh and extreme immigration enforcement” and directing agencies to set immigration policies more “in line” with the Biden administration’s “values and priorities.”

■A proclamation that will pause the construction of the border wall with Mexico and determine how to best divert those funds elsewhere.

Judicial Branch

Article III outlines the nature of the judicial branch. It is interesting to note that, unlike the first two articles, this article is the most vague regarding the qualifications of its members. It refers to one Supreme Court and how cases get there. But it does not give the Supreme Court the broad authority it has assumed. This authority of judicial review was given to the court in the landmark case of Marbury v Madison (1803). The scope of the court system is set in Article III, and the jurisdiction of the system is defined. This article also defines treason and provides for a range of penalties, including death, if a person is convicted of this crime. The only time this penalty has been carried out was when Ethel and Julius Rosenberg were convicted of giving the Soviet Union information concerning U.S. development of the atom bomb. They were tried and convicted of treason and executed after the Supreme Court denied their appeal.

It becomes apparent that by separating the three branches of government, the framers of the Constitution were concerned with the delicate balance of power among the branches. The Constitution neatly lays out the various powers of each branch of government without any reference as to which of the branches should be the lead player.

Judicial Powers

Unlike the legislative and executive departments, the judiciary has no specific qualifications for office. The Constitution in Article III states that judges shall “hold their offices during good behavior.” The Supreme Court is the only court established by the Constitution. Lower federal courts are established by the Congress. Even the size of the Supreme Court is not defined. It has remained at nine sitting justices in modern times, although the number has been as low as five. Franklin Roosevelt attempted to “pack” the court in 1937 after the court ruled a number of his New Deal acts unconstitutional. Congress rejected his attempt. The appointment of Supreme Court justices, by extension of the description of service, is their lifetimes. Typically, Supreme Court justices come from other federal judgeships. The appointment process has become more and more difficult as a result of close questioning by the Senate Judiciary Committee.

Appointments by Richard Nixon were turned down. One of the most publicized confirmation hearings took place when George H. W. Bush sent Clarence Thomas’s name to the Senate, and he was accused by Oklahoma law professor Anita Hill of sexual harassment. Thomas was appointed to the court. After Justice Anthony Kennedy retired, President Trump nominated U.S. Court of Appeals Judge Brett Kavanaugh to the Supreme Court. Allegations of sexual abuse against Kavanaugh were raised during the contentious confirmation hearings. The Senate, by party-line vote, approved his nomination. After Justice Scalia suddenly died in 2016, President Obama appointed DC Federal Appeals Judge Merrick Garland to replace him. Senate Majority Leader, Mitch McConnell, announced that because 2016 was an election year, the voters should determine who the next Supreme Court Justice should be and refused to allow a hearing. After Trump was elected, his first appointment to fill the position was Neil Gorsuch, who the Senate confirmed. Again in 2020 after the death of Justice Ruth Bader Ginsburg, McConnell reversed himself insisting that Trump had the constitutional authority to nominate a new justice even though it was only weeks before a presidential election. Because the Republicans had the majority in the Senate and the new appointee Amy Coney Barrett only needed a simple majority, the Democrats could not stop the nomination. These two Trump appointees expanded the conservative majority of the Supreme Court. In addition, nominees are also questioned on their attitudes regarding potential issues the court may have to rule on, such as abortion. Nominees must tread a very thin line during this process and not be too specific. They must avoid creating a conflict that would arise if they rule on a case they have already spoken about.

The major power given to the judicial branch is defined as “the judicial power (which) shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made.” The real power, that of judicial review, has grown in importance throughout the history of the court. The Constitution describes cases through original jurisdiction that the court can hear directly. In 2020, the Supreme Court was petitioned by Texas to hear a case based on its power of original jurisdiction. Arguing that the states of Georgia, Pennsylvania, Michigan, and Wisconsin violated Article II Section 1 of the Constitution, Texas sued those states attempting to overturn the results of the 2020 vote. Joined by over 100 Republican Representatives and 19 states, all who had voted for President Trump, the Supreme Court dismissed the case stating that Texas lacked standing and had no authority to challenge how another state conducted its election. The vast majority of cases heard in the Supreme Court are brought on appeal from state and federal courts. This is called appellate jurisdiction.

Congressional law as well as presidential actions have also been taken up by the Supreme Court. It is interesting to note that of the three branches of government, the Supreme Court has no direct responsibility or accountability to the voters. Sitting justices, once confirmed, decide on cases based on their interpretation of the Constitution. The impact of the Supreme Court on policy making has increased in modern times. Many court experts point to the landmark decision of Brown v Board of Education (1954) as a turning point in the history of the court.

The Unwritten Constitution Makes It a Living Document

The unwritten constitution, as well as the Constitution’s elasticity, adds to its viability. Political parties, the president’s cabinet, special-interest groups, political action committees, and the federal bureaucracy are important examples of tradition, precedent, and practice incorporated into our form of government.

The elastic clause and powers given to the Congress in the Constitution are perhaps the greatest instruments of change that Congress has at its disposal. From the passage of the Judiciary Act of 1789 to the creation of the many executive branch departments, Congress has used its power to expand the size of government. Congress has used the elastic clause to pass civil rights legislation, has broadly interpreted the meaning of interstate commerce, and has passed a war-powers act under its power to declare war.

Neither the Constitution nor any law provides for the establishment of political parties, nominating conventions, primaries, or most of the political system we are used to. Even though the Federalist Papers warned of the danger of political factions, and George Washington echoed that point of view, the influence of political parties has become a dominant feature of government. When the Republican Party can unite and not provide a single vote for the president’s budget proposal, one can see the importance of party politics. When a party decides to start a filibuster (continuous debate) in the Senate to block the passage of legislation, this becomes an additional check.

The Supreme Court has also gone beyond the constitutional parameters in establishing precedent. From the Marbury v Madison (1803) decision establishing judicial review to Roe v Wade (1973), which found a way to constitutionally protect the right of a woman to have an abortion, the court is plowing new ground based on its interpretation of the Constitution.

Custom and tradition are an integral part of government. After executive departments were established by Congress, Washington announced the formation of cabinet positions. Congress then codified this concept as they approved additional cabinet positions. A two-term president was the accepted tradition until Franklin Roosevelt broke it. After he died, an amendment limiting presidential terms was passed, making the tradition a written component of the Constitution.

A Balance of Power Is Achieved Through Checks and Balances

Based upon the writings of Montesquieu in The Spirit of Natural Laws, and James Madison’s Federalist No. 47, the concept of checks and balances became a central feature to our government. As Madison stated, “It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.”

Some specific examples of how each branch of government has used its power to check another branch may be useful to illustrate the importance of this feature.

■President Barack Obama using his veto power when the Republican Congress voted to repeal the Affordable Care Act.

■Congress overriding President Trump’s veto of the Defense Authorization Act in 2020.

■Congress voting to impeach President Trump in 2020 and 2021.

■The Supreme Court striking down part of the Voting Rights Act.

As of 2020, there had been more than 2,500 presidential vetoes of congressional bills. Congress overrode more than a hundred of those vetoes. The Supreme Court has found more than 100 acts of Congress unconstitutional. The Senate has refused to confirm 27 nominees to the Supreme Court and nine cabinet members. Other appointees have withdrawn as a result of expected Senate opposition. There have been several cases of congressional impeachment of federal judges. One way the president can get around Senate opposition to an appointment is through a “recess appointment,” a temporary appointment of the president’s choice made during a congressional recess. This temporary appointment can serve for only one year, at the end of which the president must resubmit the nominee for Senate confirmation. The Supreme Court ruled that many of the appointments were unconstitutional.

The critics of checks and balances point to the potential for a constitutional crisis developing if one branch attempts to challenge the authority of another. For instance, if the president as commander in chief deploys troops in a country for an extended period of time and ignores the provisions of the War Powers Act—an act of Congress that limits presidential authority to send armed forces to another country—there is a good possibility that an unresolvable conflict could occur between the executive and legislative branches. Typically, the Supreme Court does not get involved in adjudicating those kinds of conflicts. In fact, Congress challenged presidential authority in such unapproved conflicts in Somalia and the former Yugoslavia, but stopped short of placing restrictions on his authority.

Probably the most significant feature of checks and balances is that it consistently proves that our republic is one of limited government.


Required Documents

Federalist No. 51

Madison wrote Federalist No. 51 to lay out the reasons for three separate independent branches of the national government. This would ensure the people had their liberty. Madison preferred that each branch be elected by the people, but he realized the judicial branch had special qualifications making that impossible. Madison also argued that checks and balances would prevent one branch of government from becoming too strong. As in Federalist No. 10., Madison is concerned about factions but sees the election of government officeholders as the solution.

Key Quote:

“If men were angels, no government would be necessary.”



IMPEACHMENT IS THE ULTIMATE CHECK OF A PRESIDENT WHO ABUSES POWER

■The House of Representatives has the power to initiate impeachment proceedings.

■The Senate has the power to try impeachment proceedings.

■The Chief Justice of the Supreme Court presides over impeachment trials.



The Impeachment of Bill Clinton

In one of the most bitter and partisan political clashes in American history, the House of Representatives voted in 1998 for two articles of impeachment against President Clinton. This was the first impeachment of an elected American president—Andrew Johnson, impeached in 1868, had succeeded the assassinated Lincoln. The events leading to Clinton’s impeachment read like a sordid novel. Special Prosecutor Kenneth Starr had been investigating Clinton’s role in the Whitewater land acquisition and other alleged White House abuses, including the dismissal of travel office personnel and illegally obtained FBI tapes. Clinton had also been fighting other legal battles, including whether he had to testify in an accusation that Clinton sexually abused an Arkansas woman when he was governor. The Supreme Court ruled that the civil suit could go on while Clinton was president. Starr’s inquiry took seven months to complete.

The investigation culminated with the unprecedented testimony of the president appearing before a grand jury on video. Clinton again denied any legal wrongdoing, but admitted publicly that he had misled the American people and, indeed, had a relationship with the young intern. Starr completed his report in August 1998 and concluded there was “credible” evidence that Clinton may have committed impeachable offenses. The House Judiciary committee voted on four articles of impeachment. The House rejected two of the articles and submitted to the Senate the final articles accusing the president of high crimes and misdemeanors as a result of grand jury perjury and obstruction of justice. With the Senate unable to muster the two-thirds vote required to find Clinton guilty, the president was acquitted on all charges.

The Impeachment of Donald Trump

Donald Trump was the only American president to be impeached twice, even though he only served one term. The first impeachment vote took place in December 2019, with the Senate trial acquitting him in January 2020. A whistle blower revealed that President Trump, in a phone call with the president of Ukraine, had pressured him to investigate Trump’s potential 2020 opponent, Vice-President Joseph Biden and his son Hunter. The transcript of the call revealed that the president could withhold funds for weapons aid to Ukraine if they did not pursue this investigation. Charges of a quid pro quo were levied against the president. After testimony by witnesses before the House Intelligence Committee and the House Judiciary Committee, these committees investigated the alleged foreign interference by the president, which if proven, would violate the law and the Constitution. The House Judiciary Committee voted along party lines to accuse President Trump of abuse of power and obstruction of justice. The Senate trial acquitted the president by a vote of 52-48 on the abuse of power question and 53-47 on the obstruction of justice question, with one Republican voting for conviction on that question.

The second impeachment trial occurred in February 2021 after President Trump left office even though the House voted for impeachment prior to January 20th. President Trump was accused of “incitement of insurrection.” The events leading up to this impeachment began months before the 2020 presidential election when the president insisted that if he lost the election, it would be because of fraudulent mail-in voting that many states, including the key swing states, adopted because of the COVID-19 pandemic and fears of increased spread if voters turned out in person on Election Day. Mail-in votes proved to be the decisive factor in Trump’s losing the election. Trump aggressively pursued a course of action to overturn those results through lawsuits that were turned down by state and federal courts, pressure on state legislatures and state boards of elections not to certify the results, pressure on the Electoral College not to accept the certified results, and pressure on Congress not to certify the final tally of the Electoral College. On the day Congress was scheduled to certify the Electoral College, Trump held a rally in which he urged his followers to “fight” to reject the results and “March down Pennsylvania Avenue” to tell Vice-President Pence that he had the constitutional authority not to certify the results. After the speech concluded, thousands of his supporters demonstrated in front of the Capitol, and hundreds breached the barricades and occupied the House and Senate looking for Speaker Nancy Pelosi and Vice-President Pence and threatening harm to both of them. A Capitol police officer was killed along with four other protesters. During the insurrection, President Trump tweeted his “love” of the protesters urging them to “go home in peace.” The House, without holding any hearings, voted to impeach the president, and it was supported by ten Republican representatives. Senate Majority leader McConnell did not schedule the trial until after inauguration day on January 20th. The majority of Republican senators claimed that a former president could not be impeached because he was no longer in office. When the actual vote was taken on the charge of inciting an insurrection, the president was acquitted by a vote of 57-43. Even though it was a majority, it was ten votes short of conviction. The vote to convict attracted seven Republican senators, the most bipartisan vote of any presidential impeachment.


FEDERALISM

Federalism, the division of power between a central, or federal, government and state governments, has been a fundamental and evolving feature of our system of government. Political scientists consider the balance of power between the federal government and the states as defined by the powers given to the Congress by the Constitution and the reserved powers given to the states by the Tenth Amendment. There is also fiscal federalism: how the federal government offers federal assistance through different kinds of grants to state and local governments.