Contrary to appearances, despite its strong political position, the constitutional shape of the presidency was designed by the Founding Fathers, as the antithesis of the position of the British monarch, who in the eyes of the 18th century American colonists was seen as a tyrant. Such an assessment was not so much the general opinion of the rulers of Britain, but rather of George III – a sick man, often called Crazy King George, whose political decisions were often irrational, and in many other matters he left the decisions to the politicians who represented him.
Constitutional Assumptions
The Constitution of the United States, honouring Enlightenment political assumptions, adopted a clearly outlined tripartite division of power. This can easily be seen when reading the Constitution, the first three articles of which are devoted respectively to the legislative power (Article 1), the executive power (Article 2) and the judicial power (Article 3). The American tripartite model of power has also adopted as a principle the check and balances mechanism. This means that power in the state is not only divided between three independent groups of entities, but these entities also have the power to control each other and suppress attempts to potentially increase the importance of one of the authorities.
Article 2 of the Constitution is devoted to the powers of the president. At the beginning of Section 1 of the article, it is stated that “executive power should be vested in the President of the United States of America.” This power should be exercised by the President together with the Vice President for a period of four years (you will read about the position of the Vice President in one of the following articles).
The powers of the President are set out in Article 2 sec. 2 of the Constitution. According to its provisions, the President is the supreme commander of the armed forces, oversees the work of the departments (equivalent to ministries), and has the right of clemency for those who have committed a crime (with the exception of active ones considered through the impeachment procedure). In addition, the President may, with the advice and consent of the Senate, enter into international treaties, and, with the advice and consent of the Senate, also appoints ambassadors and other members of the diplomatic corps, judges, and other officials (known as officers) of the United States.
Section 3 of the same article of the Constitution, on the other hand, states that the President is obliged to present to Congress “from time to time” a message on the State of the Union, in which he should indicate to Congress the key issues for the State and recommend solutions concerning them, in exceptional cases he may convene a meeting of the parliamentary chambers, in addition, the President is to receive ambassadors or other representatives of foreign states, To ensure proper observance of the laws, he should finally appoint officers of the United States.
It should be noted that the broadest part of Article 2 is devoted not so much to defining the position and competence of the president as to a detailed analysis of the course of the electoral process (sec. 1, see the first article in the ConLaw24 series entitled “University of Lodz Researcher Talks about the US Presidential Election System”). This arrangement of Article 2 is not accidental. It was a direct result of securing the United States against dynastic and hereditary power, which the Founding Fathers feared after observing the madness of King George III.
George Washington – "role model"
The catalogue of constitutional powers of the President of the United States appears broad, although at the same time it must be said that it has been defined in a relatively general way that has allowed the provisions of the Constitution to be interpreted over time to suit the needs of successive presidents.
Historians of the US system agree that the generality of the Constitution's wording regarding the position of the president was the fruit of the assumption that in the new republic the role of president would be held by one of the heroes of the American War of Independence. It is believed that the Constitution was designed with the intention of entrusting the office to George Washington. In fact, in 1789, Washington was elected by the votes of 69 electors (34 electors voted for the other candidate, John Adams). Washington's presidency was a trailblazer, testing constitutional solutions in practice, but also developing mechanisms and customs that set the tone for the exercise of office in subsequent centuries. Washington himself was fully aware of this. In the days leading up to his inauguration in April 1789, he was to repeat "I walk on untrodden ground."
One of the lasting and visible consequences of Washington's presidency is the creation of the so-called "Cabinet." The US Constitution only mentions that the President may request written opinions from the ‘Principal Officers’ on matters of national importance. On the basis of this constitutional clause, Washington built a cabinet (an idea reminiscent of the solution known in Great Britain). Washington's cabinet consisted of four departments – State, Treasury, War and Justice (currently presidents appoint fifteen departments).
Washington also agreed that the Constitutionally mandated State of the Union address should be delivered once a year before the assembled Congress. This practice was abandoned by Thomas Jefferson (who disliked public speaking) but was revived by Woodrow Willson in the early 20th century.
Washington also laid the foundations for numerous other customs associated with the American presidency, including the daily organisation of the president's work.
Presidency in the 19th and 20th centuries
The following decades saw the development of the office's position, both in terms of the system and the formula for holding office.
The emergence of political parties and the split between President John Adams (Federalist) and his Vice-President Thomas Jefferson (Democratic-Republican Party), which ultimately led to a change in the rules for the election of the vice-president was of great significance for the functioning of the American presidency.
The presidency of Jefferson (who was elected the third president in 1800) weakened the office by giving it a passive role (quite different from the presidency projected ‘for Washington’). Examples of the weakening of the presidency in the 19th century include the introduction of a system of electing the presidential candidate during party conventions (1824) or the introduction of a ban on the dismissal of civilian civil servants by the president without the consent of the Senate (Tenure of Office Act (1867)).
The 20th century brought a gradual end to the weak presidency and led to an increase in its importance. The first clear moves to increase the office's importance were made at the beginning of the century, when, under Theodore Roosevelt, the practice of issuing so-called ‘executive orders’ was transformed into acts of a quasi-legislative nature.
Since Wilson's presidency, the practice of presenting the State of the Union address orally to Congress has been restored (a written presentation of the address has been exceptional since 1913 and was last made in 1981 during the last presidency of Jimmy Carter). The return to the old practice resulted in an increased activity of presidents and their cabinets in initiating new legislation.
There is no doubt that the global political situation during the Cold War also had a huge impact on the development of the powers and position of the President of the United States. During that time, presidents began to be seen as representatives of a nation opposing the communist threat and, more broadly, as leaders of the democratic world.
Recent times
The end of the Cold War should have gradually led to a minimisation of the strong position of the presidents of the United States, but the new challenges brought by the 21st century, primarily the threat of terrorist attacks (after the attacks of 11 September 2001) and the growing polarisation of political views (first clearly felt in 2004 after George W. Bush defeated the Democratic candidate John Kerry), led to the maintenance of the strong position of presidents of the United States. This strong image of the presidency seems to have become a permanent fixture in American politics.
Text: Dr hab. Łukasz Jan Korporowicz, Associate Professor at the University of Lodz
Center for Anglo-American Legal Tradition / Department of Roman Law, University of Lodz
ORCID: 0000-0002-5725-5018
The article is a part of the ConLaw24 series, in which the Centre for Anglo-American Legal Tradition takes a closer look at the intricacies of the American legal and political system. We will publish new texts every Tuesday until election day.