Article II of the U.S. Constitution

Example (Succession to the Presidency)

Article II, § 1, cl. 6 states that, “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.” In 1841, President William Henry Harrison became the first president to die in office, and Vice-President John Tyler ascended to the presidency. Tyler’s political opponents argued that he was merely the acting president, not the actual president, so they didn’t have to recognize his authority. But Tyler pointed to Article II, § 1, cl. 6 to assert that he was President of the United States and nothing less. Congress agreed, passing a resolution confirming that Tyler was indeed the president. Two hundred and twenty-six years later, the Twenty-Fifth Amendment was added to the Constitution, clarifying that the vice-president becomes president rather than acting president upon the death, resignation, or removal of the president.

Example (Presidential War Powers)

In 1952, the United States was fighting the Korean War. That year, upon hearing that a steel strike was imminent, President Harry S. Truman ordered the U.S. Army to seize control of America’s steel mills so that the strike wouldn’t disrupt the war effort. Truman justified this action on the grounds that Article II, § 2, cl. 1 made him the Commander-in-Chief of the Armed Forces, empowering him to seize the mills to support the military. The Supreme Court disagreed; in Youngstown Tube & Sheet Co. v. Sawyer, the Court held that the president’s Commander-in-Chief powers don’t enable the president to seize private property without congressional approval. Youngstown Tube & Sheet Co. v. Sawyer, 343 U.S. 579, 580 (1952).

Example (President’s Treaty-Making Power)

In 1803, Napoleon Bonaparte offered to sell France’s Louisiana Territory to the United States. If the U.S. bought Louisiana, it would double the nation’s size. U.S. President Thomas Jefferson feared that purchasing such a large amount of territory would exceed his presidential authority. Yet Jefferson looked to Article II, § 2, cl. 2, which empowers the president to make treaties, and he decided that as president, he had full authority to purchase Louisiana by negotiating a treaty with France. Jefferson made the purchase. Because the agreement was made through a treaty, the treaty still required approval from two-thirds of the Senate to become law. The Senate ratified the treaty, doubling America’s size at a bargain price.

Case Examples

• Although the Supreme Court ruled that the president may not be sued for official acts carried out during his presidency, it did not rule out state prosecutions after his presidency ends. See Trump v. Vance, 591 U.S. 786, 803, 140 S. Ct. 2412, 2426–27, 207 L. Ed. 2d 907 (2020). In that case, the Supreme Court stated that “state grand juries are free to investigate a sitting President with an eye toward charging him after the completion of his term for state crimes.” Id. In Vance, President Trump argued that the state of New York could not prosecute him for tax-related offenses or compel him to produce his tax records through a subpoena. Id. However, the court disagreed and held that the president had to comply with the subpoena and produce the records, as the state was free to prosecute him for his alleged tax evasion or fraud after his term in office ended. Id.
• Article II of the Constitution can apply to entities other than the President: In Dep't of Transp. v. Ass'n of Am. Railroads, 575 U.S. 43, 90–91, 135 S. Ct. 1225, 1254, 191 L. Ed. 2d 153 (2015), Amtrak claimed that they were not subject to presidential and congressional approval of its leaders despite helping to develop the federal law governing rail travel. Id. In his concurrence to the Court’s decision, Justice Clarence Thomas noted that “Article II of the Constitution vests the executive power in a President of the United States of America Art. II, § 1. Amtrak, of course, is not the President of the United States, but this fact does not immediately disqualify it from the exercise of executive power. Congress may authorize subordinates of the President to exercise such power, so long as they remain subject to Presidential control.” Id.

Key facts:

Article II has been amended four times. In 1804, the Twelfth Amendment was added to streamline the process of electing the president and vice-president. Originally, the person with the most electoral votes became president, while the person with the second-most electoral votes became vice-president. In 1788 and 1792, this system worked because George Washington was the nation’s consensus choice to be the first president. The runner-up in both elections, John Adams, supported Washington’s policies as vice-president. In 1796, the nation’s first contested election, Adams ran as the Federalist candidate while Thomas Jefferson ran as the Democratic-Republican candidate. Adams defeated Jefferson, but because Jefferson won the second-most votes, they had to govern in an awkward situation where the president and the vice-president were political opponents. In 1800, Jefferson defeated Adams in a rematch, yet Jefferson was tied with his own vice-presidential candidate, Aaron Burr. The election went to the House of Representatives. In a nail-biting contingent election, the House elected Jefferson after his archrival Alexander Hamilton intervened to stop Burr from becoming president. Hamilton reasoned that although he disagreed with Jefferson’s governing philosophy, he at least was a statesman who wanted to act in America’s best interests, whereas Burr was an unprincipled opportunist who was willing to say or do anything to acquire power for himself.

The drama of the 1800 election showed Congress that it needed to overhaul the election process, so the Twelfth Amendment was introduced in 1804. Now, instead of running as separate candidates, the presidential and vice-presidential candidates run on the same ticket. Voters don’t choose between the two candidates; they vote for them simultaneously. The second-place finisher no longer serves as vice-president.

As the Constitution was originally written, a newly elected president had to wait four months for the inauguration, from November to March 4 the following year. In 1933, the Twentieth Amendment shortened the presidential lame-duck period (the period between the election and the inauguration). Instead of being inaugurated on March 4, presidents would be sworn in on January 20.

In 1951, the Twenty-Second Amendment imposed a general limit of two terms for presidents. Before the Twenty-Second Amendment, there was no limit on the number of terms that a president could serve. In 1940, Franklin D. Roosevelt became the first and only president to be elected to a third term. He was elected to a fourth term in 1944. While most Americans admired FDR, they also believed that future presidents should serve no more than two terms, so the Twenty-Second Amendment was ratified in 1951. Because FDR’s successor, Harry Truman, was exempted from the amendment, he could’ve won a third term in 1952. However, due to his unpopularity, Truman bowed out of the 1952 race and he retired to his home in Missouri.

The Twenty-Second Amendment contains a loophole allowing presidents to serve more than eight years in some circumstances: if a president leaves office and their vice-president serves less than two years of their predecessor’s term, they may be elected twice in their own right. In 1963, President John F. Kennedy was assassinated. His vice-president, Lyndon B. Johnson, served the remainder of Kennedy’s term, and he was elected to a full term in a landslide the following year. Had Johnson won the 1968 election, he could have served for over nine years in total, but he dropped out of the election due to the unpopularity of the Vietnam War.

The most recent time that Article II was amended was in 1967: the Twenty-Fifth Amendment allowed presidents to appoint a new vice president if the vice presidency was vacant. When Vice President Spiro Agnew resigned in 1973 due to a scandal, President Richard Nixon appointed Congressman Gerald Ford to replace him. Ford was the first vice president to be appointed rather than elected. In 1974, Nixon himself resigned the presidency because of the Watergate scandal, making Ford president. Ford ran for president in 1976, but he lost to Jimmy Carter. Under the Twenty-Second Amendment, Ford was entitled to only one full term in his own right, as he had served more than two years of Nixon’s term. Had Ford won in 1976, he wouldn’t have been able to run for president again.