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Constitution's Article 2 Leaves Room For Interpreting Presidential Powers

STEVE INSKEEP, HOST:

In asserting the power of his office, the president once said the Constitution allows him to, quote, "do whatever I want." In truth, the president says he can do many things that he cannot do. But it's also hard to figure out where the line is. Ever since 1787, when the framers drafted Article II of the Constitution, questions over the limits of presidential power have surfaced again and again. Rund Abdelfatah and Ramtin Arablouei are the hosts of the NPR podcast Throughline. And they take us back to that moment in history when the Founders created the office of the president.

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UNIDENTIFIED PERSON: (Yelling).

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UNIDENTIFIED PERSON: (Yelling).

RUND ABDELFATAH: On Friday, June 1, 1787, the Constitutional Convention convened in Philadelphia. And on the agenda that day was a single question, how much power should the executive branch have?

RAMTIN ARABLOUEI: At this point, there was no executive branch yet, no president. There was only Congress.

ANDY RUDALEVIGE: What began to frighten people who eventually would write the Constitution was that the government seemed very ineffective. It was bad at running the war. It was broke. It found it very hard to implement the law. And, of course, by the time you get into the mid-1780s, you know, people are worried. There's domestic disputes at home. Up in Massachusetts, a bunch of former soldiers are taking over state armories and trying to get the legislature to forgive all their debts. You've got British troops still stationed on American soil, other European powers kind of circling. They're very nervous about the ability of the government to deal with it.

ABDELFATAH: So this was a really chaotic time. And the framers of the Constitution began to think the only way to make order out of chaos was to create an executive branch that would carry out and execute the nation's laws.

ARABLOUEI: But what should an executive branch actually look like? Well, none of the framers had a clear idea including the person who's often called the father of the Constitution, James Madison.

UNIDENTIFIED NARRATOR: I've scarcely ventured as yet to form my opinion either of the manner in which it ought to be constituted or of the authorities with which it ought to be clothed.

ARABLOUEI: The one thing they definitely knew they didn't want was a monarchy with a single person in charge holding all the power.

RUDALEVIGE: And that was, in part, you know, a reaction to the existence of King George III. You know, the idea of executive tyranny is very high on people's minds at that point.

ABDELFATAH: By the way, this is Andy Rudalevige. He's a professor at Bowdoin College.

RUDALEVIGE: And I've been researching and teaching about the executive branch for about 20 years now.

ABDELFATAH: So the framers needed to figure out how to create an executive branch that had enough power to be effective but not so much that it became tyrannical.

RUDALEVIGE: So you have this weird dynamic where, you know, half the time, they're worried about making this office too strong. The other half, they're worried about making it too weak. It's kind of like Goldilocks, right? They want to make it just right.

ABDELFATAH: But on that day in June at the convention, one representative from Pennsylvania had a bold idea and brought it to the floor.

UNIDENTIFIED NARRATOR: Mr. Wilson moved that the executive consists of a single person.

RUDALEVIGE: And there's dead silence.

ARABLOUEI: Every man in the room, from George Washington to James Madison to Alexander Hamilton, just sat there quietly. Remember, monarchy was never far from their minds.

ARABLOUEI: And then...

RUDALEVIGE: Ben Franklin, actually, he said (laughter) - he actually says, you know, we ought to at least talk about it. And so that kind of breaks the ice.

ARABLOUEI: For four months, They debated whether or not there should be a president and what the terms and limits of executive powers should be. And by mid-September, 1787, they had made their minds up. The result was Article II of the U.S. Constitution.

ABDELFATAH: Can you actually - if you have it in front of you - read to us what they landed on, what Article II says and what it means?

RUDALEVIGE: Sure. Yeah. Well, I have it on my desk, as always - copy in my suit pocket and a copy on my desk and a copy on my phone.

ABDELFATAH: (Laughter) Naturally. Don't we all? (Laughter).

RUDALEVIGE: You never know when you're going to need a copy of the Constitution. Well, it starts out - the first line of it is maybe the most important in some ways. It says simply that the executive power shall be vested in a president of the United States of America.

ARABLOUEI: A big deal to some of the framers who'd been really wary of putting power in one person's hands.

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RUDALEVIGE: Then it turns to a couple of other sections where it talks about powers and, importantly, duties of the office.

UNIDENTIFIED NARRATOR: The president shall be commander in chief of the Army and Navy of the United States.

RUDALEVIGE: He's allowed to pardon people. He's allowed, of course, to appoint people to office.

UNIDENTIFIED NARRATOR: By and with the advice and consent of the Senate.

RUDALEVIGE: He's allowed to make treaties.

UNIDENTIFIED NARRATOR: By and with the advice and consent of the Senate.

RUDALEVIGE: But all of these pretty much, except for the pardon power, have this big asterisk - right? - because they require that Congress act.

UNIDENTIFIED NARRATOR: He shall from time to time give to the Congress Information of the State of the Union.

RUDALEVIGE: It's pretty vague. It does lay out that sort of broad notion of the executive power. But it doesn't define the executive power.

ABDELFATAH: Basically, Article II had left a lot of room for interpretation whether intentionally or not, because all the president really needed in order to expand that vaguely defined power was buy-in from Congress.

ARABLOUEI: So even though the framers created the executive branch, legislative branch and judicial branch as equal partners, with each theoretically providing checks and balances for the others, the executive branch had maybe the most room to grow.

RUDALEVIGE: Edmund Randolph, who was the governor of Virginia, you know, he said, this is the fetus of monarchy. It's going to grow up to be a dictator.

ABDELFATAH: That worry wasn't unfounded. Because Article II is pretty vague, presidents throughout our country's history, regardless of party, have been able to push the limits of their authority, leading to a slow and steady expansion of executive power.

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INSKEEP: Our colleagues from Throughline, Rund Abdelfatah and Ramtin Arablouei. You can hear the whole episode of Throughline wherever you get your podcasts. Transcript provided by NPR, Copyright NPR.