Investigative Question

Has the role of the presidency expanded?

Article II: The Executive Branch

In this unit, students document the evolution of the presidency and the growth of executive powers in modern history. Like their study of Article I, students first develop a basic understanding of how the president is elected, the requirements for the office, how a president can be removed, and the specific executive powers enumerated in Article II. Teachers then turn to case studies to give students the opportunity to analyze presidential campaigns, the handling of international crises, and the scope and limits of presidential power (both foreign and domestic) in depth. Close reading of and comparing State of the Union addresses across administrations, analyzing factors that influence presidential public approval ratings as well as the successes and failures of presidential policies, and using role play, simulation, and interactive learning can illuminate the process of presidential decision making.

As students study the executive branch, certain guiding questions can connect case studies and discrete examples: How has the role of the presidency expanded? What are the factors that seem to help presidents win election? How does the president interact with the other branches of government, and how has that changed over time?

The role of the president has grown since the inception of the Constitution. This source set provides resources for students to address the question How has the role of the presidency expanded? by focusing on historical examples of the expanding role of the president as chief legislator and commander in chief through presidential directives, executive orders, and executive actions in times of war.

The Constitution grants power to the president of the United States primarily in Article II (Source 1). However, because the Constitution is vague in detailing specific powers of the president, throughout history presidents have asserted power that they claim is implied by the Constitution.

Since George Washington, presidents have issued executive directives in the form of memos, proclamations, and orders that act as law, citing the portion of the Constitution that states the president shall “take care that all laws be executed.” Executive directives have been used by every US president except two. At the beginning, most executive orders were about operating executive departments and agencies and/or managing government officials. The executive order has also been used to establish laws in areas in which Congress has been silent or has failed to act. Two executive directives that had significant impact on Americans are included in this source set: the Emancipation Proclamation (Source 2), which Lincoln issued in 1863 to free the slaves in the Confederate states; and Executive Order 9066 and Directions for its Implementation (Source 3), which Roosevelt issued in 1942 to segregate civilians with Japanese heritage into internment camps.

Presidents have also taken the constitutionally designated power from the Oath of the President to “faithfully . . preserve, protect” to withhold information from Congress and the public. What is today called executive privilege, this power is implied and has grown with presidents throughout the years in both number and scope. Washington’s Response to a Congressional Request for Documents in 1796 (Source 4) was one of the first examples of executive privilege when the president argued he should not have to provide the documents to the House of Representatives for its investigation into whether a treaty with Britain would affect appropriation (funding) and commerce powers. The phrase executive privilege, however, was not coined until the 1950s during the Eisenhower administration, when the president claimed executive privilege for his staff during the McCarthy–Army hearings saying that, “Any man who testifies as to the advice he gave me won’t be working for me that night.”

This source set also includes a summary of the Supreme Court’s findings in the famous case United States v. Nixon (Source 5), where the Court ruled that President Nixon had to turn over tapes recorded in the Oval Office, despite Nixon’s claim of executive privilege. This case proves that the claims of executive privilege can be checked by the courts.

Finally, presidents have also taken the constitutionally designated power of commander in chief to direct military action without a full declaration of war by Congress, known as executive power in times of war. This power has been expanded since Washington’s administration. The power of the presidency has often been increased by Congress itself through legislation and through the lack of checks on the executive branch’s implementation of the law. In an early example, Congress passed the Alien and Sedition Acts during an undeclared war with France in 1798. The acts gave the president the authority to deport any noncitizen as “dangerous to the peace and safety of the United States.” Fourteen people were indicted under this law. President James Polk tested these powers when he sent American troops to the Rio Grande in an apparent attempt to draw fire and provide an excuse to enter war with Mexico in 1846. Polk’s Message to Congress (Source 6) and Alexander Stephens’s Speech on the Mexican War (Source 7) demonstrate how the president justified his actions and how his opponents challenged these powers, even though Congress had sided with the president and voted for war. When Congress passed the War Powers Resolution in 1973 (Source 8), it intended to give the president the official power to send troops without congressional approval. However, presidents have claimed that the resolution is an infringement on the constitutional powers of the commander in chief, and many have found methods of sending troops into foreign countries without violating the War Powers Resolution.

The following excerpt from Article II of the Constitution details the president’s authority, as envisioned by the framers in 1787. This excerpt reflects the framers’ preference for a limited executive as well as their interest in a system of checks and balances to ensure that no branch of the federal government becomes too powerful.

Historical Context: The separation of powers outlined in the Constitution was rooted in the young country’s recent experience as an English colony in particular, and the suffering engendered by monarchical rule in general. The framers sought to limit power by dividing it among the executive, legislative, and judicial branches. In Article II, the framers gave a general outline of the powers of the executive branch but did not provide as much detail as they did in Article I, which outlines the powers of Congress. Some of the powers in the Constitution are explicitly stated. These are called expressed powers; they are direct, detailed, and clear. Other powers are implied, or suggested; they are indirect, broad, and relatively vague.

Source Text:

Section. 2. … 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."

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.

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.

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.

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.

Directions

1. Student Handout 12.4AD breaks up significant phrases from Article II that detail the power of the executive branch.

2. Explain to students that each row in the chart details a separate power of the presidency and that they should highlight one to three important words from each row to help them get a better sense of what the president can do.

3. In the third column, have them select one or more category of powers (explain as necessary).

4. Have students complete the fourth column using clues from the text and, if necessary, Article I of the Constitution.

5. Finally, have students return to the original investigative question: Has the role of the presidency expanded? 

Handouts

12.4AD Presidential Powers Student Handout

12.4AD Presidential Powers Teacher Key (1)

  • The Library of Congress. The Library of Congress’ Primary Source Analysis Tool supports an inquiry model of instruction by asking students to first observe, then reflect, then question. Their customizable tool includes specific prompts for student interrogation of books and other printed materials, maps, oral recordings, photographs and paintings, and many other types of primary sources.

 

  • The National Archives and Records Administration (NARA). NARA has developed a vast collection of document analysis worksheets, ready for classroom use. Their website offers teachers a wide collection of customizable tools – appropriate for working with photographs, maps, written documents, and more. NARA has also customized their tools to meet the needs of young learners, and intermediate or secondary students.