Constitutional Law Treatise
Table of Contents
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| Constitutional Law Outline
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| Introduction
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| The Preamble
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| Article I Legislative Branch
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| Art. I, Section 1 Legislative Vesting Clause
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| Art. I, Section 2 House of Representatives
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| Art. I, Section 3 Senate
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| Art. I, Section 4 Congress
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| Art. I, Section 5 Proceedings
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| Art. I, Section 6 Rights and Disabilities
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| Art. I, Section 7 Legislation
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| Art. I, Section 8 Enumerated Powers
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| Art. I, Section 9 Powers Denied Congress
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| Art. I, Section 10 Powers Denied States
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| Article II Executive Branch
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| Art. II, Section 1 Function and Selection
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| Art. II, Section 2 Powers
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| Art. II, Section 3 Duties
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| Art. II, Section 4 Impeachment
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| Article III Judicial Branch
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| Art. III, Section 1 Vesting Clause
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| Art. III, Section 2 Justiciability
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| Art. III, Section 3 Treason
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| Article IV Relationships Between the States
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| Art. IV, Section 1 Full Faith and Credit Clause
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| Art. IV, Section 2 Interstate Comity
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| Art. IV, Section 3 New States and Federal Property
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| Art. IV, Section 4 Republican Form of Government
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| Article V Amending the Constitution
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| Article VI Supreme Law
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| Article VII Ratification
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| First Amendment: Fundamental Freedoms
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| Religion
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| Establishment Clause
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| Free Exercise Clause
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| Free Speech Clause
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| Freedom of Association
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| Second Amendment: Right to Bear Arms
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| Third Amendment: Quartering Soldiers
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| Fourth Amendment: Searches and Seizures
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| Fifth Amendment: Rights of Persons
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| Sixth Amendment: Rights in Criminal Prosecutions
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| Seventh Amendment: Civil Trial Rights
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| Eighth Amendment: Cruel and Unusual Punishment
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| Ninth Amendment: Unenumerated Rights
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| Tenth Amendment: Rights Reserved to the States and the People
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| Eleventh Amendment: Suits Against States
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| Twelfth Amendment: Election of President
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| Thirteenth Amendment: Abolition of Slavery
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| Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
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| Thirteenth Amend., Section 2 Enforcement
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| Fourteenth Amendment: Equal Protection and Other Rights
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| Fourteenth Amend., Section 1 Rights
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| Fourteenth Amend., Section 2 Apportionment of Representation
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| Fourteenth Amend., Section 3 Disqualification from Holding Office
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| Fourteenth Amend., Section 4 Public Debt
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| Fourteenth Amend., Section 5 Enforcement
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| Fifteenth Amendment: Right of Citizens to Vote
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| Fifteenth Amend., Section 1 Right to Vote
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| Fifteenth Amend., Section 2 Enforcement
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| Sixteenth Amendment: Income Tax
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| Seventeenth Amendment: Popular Election of Senators
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| Eighteenth Amendment: Prohibition of Liquor
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| Eighteenth Amend., Section 1 Prohibition
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| Eighteenth Amend., Section 2 Enforcement of Prohibition
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| Eighteenth Amend., Section 3 Ratification Deadline
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| Nineteenth Amendment: Women's Suffrage
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| Twentieth Amendment: Presidential Term and Succession
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| Twentieth Amend., Section 1 Terms
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| Twentieth Amend., Section 2 Meetings of Congress
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| Twentieth Amend., Section 3 Succession
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| Twentieth Amend., Section 4 Congress and Presidential Succession
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| Twentieth Amend., Section 5 Effective Date
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| Twentieth Amend., Section 6 Ratification
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| Twenty-First Amendment: Repeal of Prohibition
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| Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
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| Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
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| Twenty-First Amend., Section 3 Ratification Deadline
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| Twenty-Second Amendment: Presidential Term Limits
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| Twenty-Second Amend., Section 1 Limit
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| Twenty-Second Amend., Section 2 Ratification Deadline
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| Twenty-Third Amendment: District of Columbia Electors
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| Twenty-Third Amend., Section 1 Electors
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| Twenty-Third Amend., Section 2 Enforcement
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| Twenty-Fourth Amendment: Abolition of Poll Tax
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| Twenty-Fourth Amend., Section 1 Poll Tax
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| Twenty-Fourth Amend., Section 2 Enforcement
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| Twenty-Fifth Amendment: Presidential Vacancy
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| Twenty-Fifth Amend., Section 1 Presidential Vacancy
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| Twenty-Fifth Amend., Section 2 Vice President Vacancy
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| Twenty-Fifth Amend., Section 3 Declaration by President
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| Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
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| Twenty-Sixth Amendment: Reduction of Voting Age
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| Twenty-Sixth Amend., Section 1 Eighteen Years of Age
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| Twenty-Sixth Amend., Section 2 Enforcement
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| Twenty-Seventh Amendment: Congressional Compensation
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Article II Executive Branch
Article II of the U.S. Constitution establishes the Executive Branch of the federal government. The Executive Vesting Clause, in Section 1, Clause 1, provides that the federal executive power is vested in the President. Section 3 of Article II further requires the President to "take Care that the Laws be faithfully executed."[1] The executive power thus consists of the authority to enforce laws and to "appoint the agents charged with the duty of such enforcement."[2] The President also has distinct authority over foreign affairs, and "alone has the power to speak or listen as a representative of the nation."[3] As a general matter, the Supreme Court has recognized that the Constitution vests the President not only with the authorities expressly delineated therein, but also with certain implied authorities,[4] such as the ability to supervise (and generally to remove) executive officials[5] and the power to recognize foreign governments.[6] At the same time, the Court has said that by granting the President the power of faithfully executing the laws, the Constitution "refutes the idea" that the President was intended "to be a lawmaker."[7] Nonetheless, the Court has recognized that officials appointed by the President--even those located within the Executive Branch--may exercise regulatory or adjudicative powers that are quasi-legislative or quasi-judicial.[8] Broadly, the Court has recognized that Executive Officers exercise authority to enforce and administer the laws, including rulemaking, administrative determinations, and the filing of lawsuits.[9]
The remaining provisions of Article II's Section 1 primarily outline the election of the President, including the establishment of the electoral college. Relatedly, Section 1 sets out the qualifications of the President, the oath of office, and compensation. Section 1 also creates succession provisions in the event of a President's removal or other inability to act, although the relatively sparse language in Clause 6 was later supplemented by the Twenty-Fifth Amendment and the Presidential Succession Act.[10]
Sections 2 and 3 define specific presidential powers and duties. Section 2, Clause 1 describes exclusive presidential powers: namely, the Commander in Chief authority, the power to require written opinions from the heads of executive departments, and the pardon power. Clause 2 defines the powers that the President shares with Congress, outlining the treaty-making power and the appointment power. Clause 3 expands on appointments by granting the President the power to unilaterally make temporary appointments during Senate recess. Section 3 requires the President to give Congress information on the state of the union. It also authorizes the President to recommend legislative measures and in extraordinary circumstances convene or adjourn Congress. Section 3 further grants the President the power to receive ambassadors and other public ministers. And as previously mentioned, Section 3 contains the Take Care Clause, requiring the President to ensure that the laws are faithfully executed.
Section 4 provides that the President--and all other "civil Officers of the United States"--may be removed from office if impeached and convicted on charges of "Treason, Bribery, or other high Crimes and Misdemeanors."[11] Article I contains further provisions bearing on impeachment procedures and judgments.[12]
As discussed elsewhere, Article I also contains some provisions bearing on presidential authority, perhaps most notably the President's authority to approve or veto legislation.[13]
Section 1 Function and Selection[edit | edit source]
- Main Article
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| The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
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- Main Article
| Clause Text
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| Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
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Clause 3 Electoral College Count[edit | edit source]
- Main Article
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| The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
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- Main Article
| Clause Text
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| The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
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- Main Article
| Clause Text
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| No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
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- Main Article
| Clause Text
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| In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
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Clause 7 Compensation and Emoluments[edit | edit source]
- Main Article
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| The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
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Clause 8 Presidential Oath of Office[edit | edit source]
- Main Article
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| Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:- I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
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Clause 1 Military, Administrative, and Clemency[edit | edit source]
- Main Article
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| 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; he 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, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
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Clause 2 Advice and Consent[edit | edit source]
- Main Article
| Clause Text
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| He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, 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.
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- Main Article
| Clause Text
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| The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
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- Main Article
| Clause Text
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| 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; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
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- Main Article
| Clause Text
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| 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.
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- ↑ Art. II, Section 3 Duties.
- ↑ Springer v. Government of Philippine Islands, 277 U.S. 189, 202 (1928).
- ↑ United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
- ↑ See generally Art. II, Sec. 1, Cl. 1: Overview of Executive Vesting Clause.
- ↑ Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 22 (U.S. June 29, 2020).
- ↑ Zivotofsky v. Kerry, 576 US. 1, 17 (2015). Cf., e.g., United States ex rel. Knauff v. Snaughnessy, 338 U.S. 537, 543 (1950) (stating that the right to exclude aliens "is inherent in the executive power to control the foreign affairs of the nation," and when Congress legislates in this area, it "is implementing an inherent executive power").
- ↑ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
- ↑ See Buckley v. Valeo, 424 U.S. 1, 132-33 (1976).
- ↑ See id. at 138-41.
- ↑ Twenty-Fifth Amendment Presidential Vacancy; 3 U.S.C. § 19.
- ↑ Art. II, Section 4 Impeachment.
- ↑ Id. art. I, § 2, cl. 5; id. art. I, § 3, cls. 6-7.
- ↑ See Art. I, Sec. 7, Cl. 2: Overview of Presidential Approval or Veto of Bills; Art. I, Sec. 7, Cl. 3: Presentation of Senate or House Resolutions.
