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Presidential powers provided by the US Constitution

December 8, 2022

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This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article explains the powers of the President given in the Constitution of the United States of America. It also compares the position of a President in the US to that in India and Britain. It tries to explain the position of the President in the United States and his executive, legislative, and judicial powers.

It has been published by Rachit Garg.

Table of Contents

Introduction

Have you ever become a leader of any of the groups in your school or college? If yes, what powers did you have? Were you elected? What was your tenure? Were you eligible to be reelected? What were the qualifications?

With all these questions, you can imagine how difficult it is to be a leader and that too of a small group in a particular place. Now imagine the situation of the President of any country. Have you ever imagined how the President of a large country like the USA would be elected? What powers does he possess? What is his tenure like? How can he be removed? and so on.

I know you must be curious and waiting for the answers. All the answers are given in this article. So let’s begin.

The political system in America evolved through the founding fathers and their experiences. It is largely a homemade product and not planned like other totalitarian governments. The present Constitution of the United States was adopted in 1787 during the Philadelphia Convention, which came into force in 1797. It is claimed to be one of the briefest constitutions and originally consisted of seven articles. Today, it is a classic example of rigidity because of the doctrine of separation of powers established by Montesquieu. This also means that the powers of different branches of government, i.e., the executive, legislative, and judiciary, are separate and no one is allowed to interfere in another’s work or powers. The article further unfolds the powers of the President given in the Constitution.

Presidential form of government

The Constitution of the United States of America provides for a presidential form of government. His powers are enormous and vast. Though he is not responsible to Congress in any manner but all the executive powers of the country vest with him. Congress has no right to remove him during his fixed tenure, and at the same time, he cannot remove the members of Congress. Apart from Congress, there is a cabinet in the country whose members are neither part of Congress nor answerable to it. They are often called “errand boys” because they are close to the President and help him exercise his powers. Though the cabinet advises him on all important matters, he is not bound by their advice. He chooses his own cabinet, which is also described as his family.

Qualifications for being a President

In order to contest elections for President in the US, a person must fulfill the following conditions:

He must be a citizen, i.e., naturally born in the country.
He must have been 35 years old.
He must have lived in the country for at least 14 years.

Tenure of a President

The President of the United States of America holds office for 4 years. Originally, there was no restriction on the power of the President to be re-elected, but after the tenure of George W. Bush as President, a convention was developed that no person would be re-elected after two terms. After the 22nd Amendment to the Constitution, a limit of two terms has been set for the re-election of a candidate for the post of President in the country. This means that a person cannot be re-elected thrice for the post of President in the country. A person can only be re-elected twice and not more than that. Roosevelt was the only person who was appointed as the President more than twice i.e., 4 times.

Election procedure for a President

The procedure to elect the President in the country is quite hectic and secretive. Every citizen above 18 years of age has the right to vote in the elections unless disqualified on any grounds. He is elected by an electoral college, which consists of 535 presidential electors. This is constituted in each state. The Constitution provides for indirect elections for the President, but now they are directly elected due to multiple political parties. Article 2, Section 1, of the Constitution, lays out the procedure for the elections of the President.

Presidential nomination

In this system, a national committee of each party calls its conventions and makes arrangements. The calls are made in January or February, and they meet during the summer. During the gap between the call and the convention, each party selects its delegates in each state.

Nomination of electors

The next step in the process is the nomination of electors in several states. These are usually the party leaders or workers. The parties in each state put forth their list of electors who are nominated by them according to the rules laid down by the state.

Election of the electors

Before the elections, each state chooses its electors in the same number as the senators. All the nominees who won the largest number of votes in a state are declared to be elected. An electoral college consists of 535 members, and a candidate has to secure 269 votes in order to get elected.

Election of President

The Presidential electors meet on the second Wednesday of December in their state capitals and cast votes for President and Vice-President candidates. All the votes are then counted, and the results are immediately mailed to Washington, where they are opened in front of Congress. The President of the Senate counts the votes and announces the result. In the event that no candidate secures an absolute majority, the matter is then decided by the House of Representatives by way of election.

Sources of President’s power

The Constitution of the United States of America gives limited powers to its President, but he derives his powers from other sources as well. These are discussed below:

Constitution

It is obvious that the Constitution, being the supreme law of the country, defines the powers and functions of each branch of government. All the powers and functions of the three branches are kept separate, so much so that there is strict implementation of the separation of powers. The powers of the President are given under Article 2, Section 2, Section 3, and Section 4.

Decisions of the Supreme Court

In various instances where the Constitution was silent, the Supreme Court of the country, with its interpretations and judgments, widened the powers of the President. For example, the power to terminate a war now vests with the President because of the verdict of the supreme court. Another such power of the President that is granted by virtue of the Supreme Court is the power to remove federal officials.

Statutes of Congress

It is the duty and function of Congress to pass laws, but the details and gaps are filled by the President through his executive orders. Congress may also give him discretionary powers through any legislation or enactment. Thus, substantial parts of the powers of the President also come through Congress.

Convention and usage

His powers have been increased enormously with the help of conventions and usages. He is accepted as the leader of his party and is consulted in cases of internal disputes. He can also get any law or act passed with the help of his veto power or appeal to the public. Another example is the Senatorial Courtesy which placed enormous powers to the President to make different appointments.

Powers of President

The President of America now enjoys various different powers, which can be divided as follows:

Executive powers
Legislative powers
Financial powers
Judicial powers

All these powers are discussed in detail below:

Executive powers

Chief administrator

The President is the head of the administration in the country. All executive actions and works take place in his name. The enforcement and implementation of all the federal laws and treaties are his responsibility. He is the protector of the constitution, laws, and property in the USA. He also guarantees a republican form of government to each state and protects them from invasion and violence. He is also the head of millions of civil employees who work during his pleasure.

Commander-in-chief

He is the supreme commander in chief of the armed forces and is responsible for the defence of the country. He makes appointments to high military posts with the help of the Senate and can remove them at his will. During any war, his military powers increase enormously. He becomes the sole commander of all war operations. He also determines the locations of troops and ships and where they are to be mobilized.

Exponent of foreign relations

He is the representative of the country in foreign relations and conferences. He forms foreign policy and appoints diplomatic representatives for the country. He receives foreign diplomats that are accredited to the United States of America and can negotiate the terms of treaties and agreements.

All the treaties after the negotiation must be ratified by a two-thirds majority of the Senate for their implementation. However, executive agreements entered into by the President do not require ratification. He has the sole authority to extend recognition to a new state. He may also adopt for secret diplomacy and enter into secret agreements with foreign relations and commit himself.

Power to make appointments

He makes a large number of appointments to all the civil posts and federal services. With proper appointments, he can also ensure proper implementation of his policies. Usually, there are two categories of federal services:

Superior services
Inferior services

Appointments for superior services are made by the President with the help of the Senate, but those for inferior services are done by the President alone. Apart from this, there are a number of local services where the appointments are done by the President according to a convention called Senatorial Courtesy.

Expansion of executive powers

In history, there have been some instances where the executive powers of the President have been expanded. Sometimes, it was done by Congress in the form of delegation. At other times, the citizens or people demanded the executive act in a certain way at times of crises, thus, expanding their powers to deal with a particular situation. For example, the power to enact tariffs is one such power.

Another such reason for the expansion of executive powers of the President is the strong presidents themselves who during their tenure gained enormous powers and claimed to be the strongest Presidents to date. Teddy Roosevelt, being one such President, believed in the ‘theory of stewardship’ according to which a President must act as ‘Steward’ over the country irrespective of the powers given by the Constitution. He also established the notion of the ‘bully pulpit’ and used the prestige of the White House to educate people regarding certain legislations and acts. He used the method of interaction with people to shape his policies in a better way for their welfare. After him, the other presidents tried to expand their powers and interact with people with the help of the media, which is a tool to easily attract the attention of people and educate them about welfare schemes and policies of the government.

Legislative powers

The doctrine of separation of powers by Montesquieu is implemented in a strict sense in the US constitution. Thus, the President has no power to prorogue, summon, or dissolve Congress. He cannot initiate any bill in Congress directly, nor can he sit and participate in its discussions. He has no direct control over the legislature. However, he has some legislative powers.

Veto powers

All the bills passed by Congress are given to the President for his final assent. He can deal with such bills in three ways:

He may give his assent to the bill, after which it will become an Act.
He may reserve a bill with him for 10 days. The bill is killed if Congress adjourns it before 10 days, and after 10 days, it becomes law without his signature. This is called a “pocket veto”.
He may reject a bill or return it to the house with or without making amendments.

Messages

He can send messages to the House for any legislative measure. It may be intended for foreign consumption, but the purpose is to inform foreign powers about the USA’s stand on the matter.

Special sessions

He has the right to convene special sessions of Congress. The importance of such sessions lies in the fact that they are convened for a special reason between the regular intervals of two sessions, and the members are not paid for these sessions.

Patronage

He makes a large number of appointments with the federal services. The senators always want to win his favour and trust due to his wide powers and to secure jobs for their family and friends.

Appeal to public

He is not only the head of the republic but also the leader of the nation. The nation listens to him and looks up to him in cases of public nuisance. Whenever he thinks that Congress is plotting against him, he can directly appeal to the public and create public opinion.

Delegated legislation

He has the authority to legislate and make rules and regulations in the form of executive orders. When Congress makes a law, the gaps are left to be filled by executive orders. He makes rules and regulations to fill these gaps, and these are called delegated legislation or rule-making power.

Financial powers

The financial powers are somewhat under the control of the President. The budget of the country is formulated under his supervision by the Bureau of Budget. It is then placed before Congress for any changes or amendments, but only a few of its members could understand the technicalities involved in the budget. Thus, the budget formed under the supervision of the President is passed by Congress.

Judicial powers

The President has the power to grant pardon, reprieve, or amnesty to all offenders that are convicted of violating federal laws. However, an offender who is punished by impeachment or for offences against the state cannot be pardoned. It is the power of the President to appoint the judges of the Supreme Court with the consent of the Senate. Apart from this, the nation looks to him for guidance on public matters. It can be said that he enjoys judicial patronage.

Position of American President: a comparative analysis

The above powers show that his powers are real and enormous. It seems as if the fathers of the American Constitution gave major powers to the President and made him all-powerful. He is the representative of the whole nation and possesses ceremonial powers as well. In order to understand his position in a better way, he is compared with the king and prime minister of Britain and the President of India.

President and British King

Like the President in the US, the King in Britain is the head of state. Both are the supreme commanders of defence forces and perform ceremonial functions. Both receive foreign dignitaries and ambassadors accredited to their states, hold receptions, and deliver formal speeches. However, the major difference lies in the form of government. Britain being the parliamentary form of government, is headed by a mere constitutional head, whereas the Presidential system in the US witnesses the President as the head of the state and the government.

The President in the US is the real executive, and his powers are enormous and his authority onerous. The queen/king of Britain, on the other hand, is only the head of state. The powers are exercised by the Council of Ministers, with the Prime Minister as its head. In the US, the President has his own cabinet, which advises him but is not bound by it. But the queen in Britain is the only nominal head. The real executives are the ministers.

The President in the US is the Commander-in-Chief of the armed forces, but in the UK, the Crown is the supreme command of the forces and not the King. He also possesses veto power over the bills passed by Congress. The King, however, does not exercise such powers. Moreover, the budget in the US is formulated under his supervision, but the King in the UK has nothing to do with the budget. It is dealt with by the ministers.

The British monarch or King holds office on the basis of heredity, while the President in the US holds office for 4 years and can be re-elected only for two terms and not more than that. The Queen has the power to prorogue and dissolve the House of Commons, but the President in the US has no such power. The Queen is also the symbol of the commonwealth of nations, but no such position is enjoyed by the President of the USA. Thus, it can be said that the President of the US does hold the greatest and highest political office in the world but is very different from a British King or Queen.

US President and British Prime Minister

The comparison between the US President and the British Prime Minister can be made on the following points:

The term of office of the US President is secured, and he cannot be removed until 4 years have passed unless he is impeached. While the office of the British Prime Minister depends on the wishes of the House of Commons, he continues in office as long as he enjoys the support of the majority.
The American President is indirectly elected by the electoral college, while the British Prime Minister is appointed by the Queen.
The President is the head of the state as well as the government in the US, while the Prime Minister is only the head of the government in Britain.
The President is not answerable to the legislature for his actions in the US, while the Prime Minister in Britain is answerable and accountable to the House of Commons.
The President possesses the veto power over acts and bills passed by Congress. The prime minister in Britain has no such power.
The Prime Minister is only the leader of the cabinet, but the US President is the boss and leader of the cabinet.
The power of the US President to make appointments and formulate treaties is subject to the approval of the Senate, but the power of the Prime Minister in Britain has no such limitations.
The budget in the US is formulated by the bureau of the budget under the supervision of the President and then it is sent to Congress for amendments which accepts it or modifies it. While the budget in the UK is introduced by the Chancellor of the Exchequer under the direction of the Prime Minister and is to be accepted by the House of Commons,
The American President derives most of his powers from the constitution, but the Prime Minister in Britain derives them from the conventions. In the UK, the King is merely a constitutional head, the real executives are the ministers, with the Prime Minister as the head.

US President and Indian President

Unlike the US President, who is the real head, the Indian President is only the titular head. The American President is head of both state and government, but the Indian President is only head of state. The President in the US holds office for 4 years, but the President in India holds it for 5 years and can be re-elected any number of times, unlike the US President, who can be re-elected only twice.

The President in America is neither responsible to the legislature nor is its part but the Indian President is part of the legislature. However, both Presidents can be removed through impeachment, but the difference lies in the procedure. The President in India can be impeached by either house of parliament while that in America can only be done by the upper house or senate.

The President of India has been given emergency powers that are not given to the President of the US. The Indian President can also reduce the salaries of the officers in case of financial emergencies which includes the judges of the Supreme Court and high courts. He has also been given wide executive, financial, and legislative powers. He is also the Supreme Commander of the armed forces of India and can take action in case of aggression against India on the advice of the cabinet.

However, the real powers lie with the Prime Minister, who is the real head. Unlike the US President, the Indian President does not possess pocket veto or double veto power. The Indian President has the power to dissolve the parliament, which is not available to the US President.

Thus, it can be said that the council of ministers in India acts as checks and balances for the President and ensures that he does not exercise his powers arbitrarily. While the cabinet in the US is chosen, the President himself and its members are termed “the errand boys,” who aid and advise the President, though he is not bound by their advice.

Conclusion

The President in the US has enormous powers. He is the head of both the state and the government. The Constitution gives exclusive executive powers to the President. His powers are so vast that he is described as the foremost ruler of the world. A perusal of his powers reveals that he is the most powerful head of state. But in order to stop him from becoming a dictator, some of his powers have been restricted. The treaties signed by him have to be ratified by the Senate. All the appointments made by the President are subject to the approval of the Senate, and he cannot remove officials of his choice. Similarly, the budget formed under his supervision is given to the Senate for amendments and approval. He does not possess emergency powers, unlike the Indian President. Moreover, no person can be re-elected a third time for the post of President. All these measures make his powers limited and restricted.

The comparison between the positions of President of the US and King and Prime Minister of Britain reveals that he is more powerful, while the comparison with the Indian President reveals that there are some powers that are exercised by the Indian President but not by the US President. The Indian President is made powerful on paper, but the real power vests in the Council of Ministers, with the Prime Minister as the head, who is also the leader of the nation. On the other hand, the US President is the head of both state and government and the leader of his party. But even his powers are restricted to reduce the chances of him becoming a sole ruler or a dictator.

Frequently Asked Questions (FAQs)

Can the US President be re-elected?

Yes, the President in the US can be re-elected continuously for two terms, but he cannot be re-elected a third time for the post of President.

Who succeeds the President in case he is unable to fulfill his duties?

In case, the President dies, is unable to fulfill his duties, or the office of President turns out to be vacant for some reason, the Vice-President may take over his duties if the President states in writing that he is unable to carry out his duties and if the vice President, along with the majority of the executive department heads, believe that there is a presidential disability.

When can the President of the US be removed?

The President in the US may be removed before the expiration of his term through impeachment on the grounds of treason, bribery, and other high crimes and misdemeanours. The impeachment procedure in the US can be initiated only by the upper house, i.e., the senate. The charges are prepared by the House of Representatives. The meeting is then presided over by the chief justice of the Supreme Court. In order to convict the President, a two-thirds majority vote is needed in the Senate, after which he will be removed from office and disqualified from holding any office of trust under the government of the United States.

How many US presidents have been impeached?

3 US Presidents have been impeached so far. These are Bill Clinton, Andrew Johnson and recently Donald Trump, who were impeached from the office of the President in the US. Recently, Donald Trump was impeached from the office on the grounds of misdemeanor and high crimes. According to the Constitution, the President can be impeached in the House and tried by the Senate on the grounds of treason, bribery, misdemeanor and other high crimes.

References

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