Article II, Section 1, Clause 1 — President’s Role

ArtII.S1.C1.1 Overview of Executive Vesting Clause

Under Article II, Section 1, Clause 1, the executive power is vested in a single person—the President of the United States. The nature and extent of the executive power is less clear.¹ Article II identifies exclusive powers of the President, including the President’s authority as Commander in Chief and the power to pardon;² powers the President shares with the Senate, including the appointments and treaty-making powers;³ and the President’s duties, the most important of which is the duty to “take Care that the Laws be faithfully executed.”⁴ Moreover, the Supreme Court has recognized that “[b]ecause no single person could fulfill that responsibility,” the Take Care Clause implicitly provides the President with authority to supervise subordinate officers assisting with this responsibility.⁵ Likewise, Article I provides the President a role in the legislative process, including authority to veto legislation, subject to potential override by a two-thirds vote of both Houses of Congress.⁶

It is less clear from the text of the Constitution whether the executive powers expressly identified in the Constituion are exclusive or illustrative. Whereas the Article I Legislative Vesting Clause provides that “All legislative Powers herein granted shall be vested in a Congress,”⁷ thereby distinguishing the powers granted by states from those they retained, the Article II Executive Vesting Clause does not limit the “executive Power” in any way.⁸ Consequently, since the earliest days of the Republic, the parameters of the executive power and, in particular, what implicit or residual powers such executive power encompasses have been the subject of debate.

ArtII.S1.C1.2 Historical Background on Executive Vesting Clause

The nature of the presidency ranked among the most important issues the Framers considered at the Constitutional Convention.¹ Reacting to how royal governors had exercised their powers, the framers of the state constitutions had generally created weak executives and strong legislatures. Likewise, the Articles of Confederation vested the national government’s powers in a unicameral congress.² Experience during the period during which the Articles of Confederation had been in effect, however, had demonstrated to the delegates that an unfettered legislature, like an uncurbed executive, posed disadvantages, and that a legislature could not confer many of the advantages of a reasonably strong executive.³ The Framers considered several ways to organize the Executive Branch, including plural executives, selection of the executive or executives by Congress, and whether the executive should be advised by a council.

The constitution of the State of New York, which provided for a Governor who was largely independent of the state legislature, offered one possible template for the Framers. Under New York’s constitution, the Governor was directly elected by the people for three-year terms and eligible for re-election indefinitely. Because the state legislature did not select the Governor, the Governor was less beholden to it. Except with regard to appointments and vetoes, the Governor’s decisions were unencumbered by a council. The Governor was also in charge of the militia, possessed the power to pardon, and was responsible for ensuring that the laws were faithfully executed.⁴

The Virginia Plan offered an alternative structure to that of the New York constitution. Under the Virginia Plan, the legislature would select the executive but would not be able to change the executive’s salary during the executive’s term in office. In addition, the executive would be ineligible for re-election, thereby reducing any incentive the executive might have to be overly deferential to the legislature. The Virginia Plan also provided for a council of revision, which included the executive, that could negate national and state legislation. The Virginia Plan provided that the executive power was the power to “execute the national laws” and to “enjoy the Executive rights vested in Congress by the Confederation,” but it left open whether the executive would be a single or plural position.⁵

When the executive portion of the Virginia Plan was considered on June 1, 1787, James Wilson of Pennsylvania moved that the executive should consist of a single person.⁶ In the course of his remarks, Wilson argued for a strong executive, directly elected by the people so that the executive would not be dependent on Congress or state legislatures. Wilson further proposed that the executive be eligible for reelection and granted power to negate legislation with the concurrence of a council of revision.⁷ The vote on Wilson’s motion was postponed until the method of selection, term, and mode of removal of, and powers to be conferred on the executive had been considered and subsequently approved.⁸

Ultimately, the Framers decided on a single executive and did not provide for an executive council, which would have participated in exercising the executive’s veto, appointments, and treaty-making powers.⁹ Instead, the Framers granted the Senate power to “advise and consent” on appointments and treaties¹⁰ and gave the President power to require the “principal Officer in each of the executive Departments” to provide their “Opinion, in writing” on “any Subject relating to the Duties of their respective Offices.”¹¹

The Committee of Detail reported draft language providing that the executive be designated the “President of the United States,”¹² which the Convention accepted without discussion.¹³ The same clause also provided that the President’s title be “His Excellency,”¹⁴ and, while this language was also accepted without discussion,¹⁵ the Committee of Style and Arrangement subsequently omitted it from the final text without providing any reason.¹⁶

ArtII.S1.C1.3 Early Perspectives on Executive Power

While the Article I Legislative Vesting Clause provides that “All legislative Powers herein granted shall be vested in a Congress,”¹ thereby distinguishing the legislative powers that the states had granted to the National Government from those the states retained, the Article II Executive Vesting Clause refers only to a general “executive Power,” which is vested in a single person—the President.² While the Constitution expressly identifies specific powers and duties that belong to the President—for example, the power to pardon and the duty to take care that the laws be faithfully enforced—the Founders differed on whether those powers were exclusive or illustrative.

The First Congress considered the parameters of the executive power and, in particular, the President’s power to remove Executive Branch officers absent the consent of the Senate, the acquiescence of which is necessary for such Executive Branch officers’ appointment.³ Known as the Debate of 1789, the First Congress considered the President’s removal power while it was establishing the Department of State.⁴ As one commentator has noted: “Congress tacitly recognized the existence of an unrestrained presidential removal power from 1789 to 1867, and it developed into one of [the President’s] most effective instruments for control of the executive branch.”⁵ While Congress subsequently passed laws limiting the President’s ability to remove Executive Branch officers,⁶ the Supreme Court did not address such a law until 1926 in Myers v. United States.⁷

Similar questions arose with respect to the President’s authority over foreign affairs.⁸ After President George Washington issued a proclamation declaring the United States neutral when France and Great Britain went to war in 1793, Alexander Hamilton and James Madison took competing positions on whether President Washington had exceeded his constitutional authority. Arguing that Article II does not enumerate all executive powers,⁹ Hamilton wrote:

The enumeration [of executive powers in the Constitution] ought therefore to be

considered, as intended merely to specify the principal articles implied in the

definition of executive power; leaving the rest to flow from the general grant of that

power, interpreted in conformity with other parts of the Constitution, and with the

principles of free government.¹⁰

Hamilton continued: “The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.”¹¹ Rejecting Hamilton’s view that the Constitution granted the President such broad powers, James Madison argued that, if executive powers were unfettered, “no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.”¹²

Unsurprisingly, Presidents have tended to interpret the Executive Vesting Clause’s provision of executive power expansively. For example, President Thomas Jefferson justified the Louisiana Purchase based on implied executive power.¹³

ArtII.S1.C1.4 The President’s Powers, Myers, and Seila

In 1926, Chief Justice and former President William Taft addressed the President’s removal power in Myers v. United States, holding that the executive power includes the power to remove Executive Branch officers.¹ Myers concerned a law that required the Senate’s advice and consent for the President to remove a Postmaster from office. In a 6-3 decision for the President, Chief Justice Taft reasoned that the removal power was necessary for the President to fulfill his constitutional duty to enforce the laws.² Absent power to hold subordinate Executive Branch officers accountable by removing them if necessary, the President would not be able to fulfill his obligation to “take Care that the Laws be faithfully executed.”³ Holding the removal power to be constitutionally vested in the President,⁴ the Myers Court observed that powers vested in Congress must be strictly construed in favor of powers retained by the President.⁵

In the 1935 decision Humphrey’s Executor v. United States⁶ and the 1988 decision Morrison v. Olson, the Supreme Court⁷ upheld limits on the President’s removal power. However, the Court subsequently emphasized that those cases were limited to specific circumstances.⁸ In Humphrey’s Executor, the Court held that Congress could constitutionally provide that commissioners on the Federal Trade Commission (FTC) could only be removed for cause. The Court reasoned that “good-cause tenure” was permissible for the principal officers of independent agencies that performed a “quasi-legislative and quasi-judicial” role because “Congress could require [an agency] ‘to act . . . independently of executive control.’”⁹

In Morrison, the Court examined the Ethics in Government Act of 1978, which provided for independent counsels to investigate and prosecute certain high-ranking government officials.¹⁰ Under the independent counsel statute, the Attorney General notifies a special Article III court if he believes there are sufficient grounds to investigate a senior government official and the special court appoints a special counsel to investigate and, if warranted, prosecute. The Attorney General can only remove the special counsel for cause as prescribed in the statute.¹¹ Consequently, the independent counsel is generally free from Executive Branch supervision. After assessing how the law impacted executive power and whether Congress had attempted to aggrandize itself or enlarge judicial power at the executive’s expense, the Court upheld for-cause removal for independent counsels.¹²

Notwithstanding Humphrey’s Executor and Morrison, the Court later clarified that “the President’s removal power is the rule rather than the exception.”¹³ In its 2010 decision, Free Enterprise Fund v. Public Accounting Oversight Board, the Court held unconstitutional a statute that structured a government office to restrict the President’s ability to remove a principal officer and also restrict the principal officer’s ability to remove an inferior officer who “determines the policy and enforces the laws of the United States.”¹⁴ The Court explained: “The President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly.”¹⁵

In its 2020 decision in Seila Law LLC v. Consumer Financial Protection Board (CFPB), the Court rejected the proposition that Humphrey’s Executor¹⁶ and Morrison¹⁷ “establish a general rule that Congress may impose ‘modest’ restrictions on the President’s removal power.”¹⁸ Examining the CFPB, the Court noted that it had a single Director, who was insulated from the President’s removal power and “accountable to no one.”¹⁹ Describing the President’s role in the constitutional structure as the link that makes the administrative state answerable to the people, Chief Justice John Roberts, writing for the majority, stated:

The resulting constitutional strategy is straightforward: divide power everywhere

except for the Presidency, and render the President directly accountable to the people

through regular elections. In that scheme, individual executive officials will still wield

significant authority, but that authority remains subject to the ongoing supervison and

control of the elected President. Through the President’s oversight, “the chain of

dependence [is] preserved,” so that “the lowest officers, the middle grade, and the

highest” all “depend, as they ought, on the President, and the President on the

community.”²⁰

Finding the CFPB Director’s protection from removal to be unconstitutional, the Court stated: “In our constitutional system, the executive power belongs to the President, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”²¹

ArtII.S1.C1.5 The President’s Powers and Youngstown Framework

In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court considered the relationship between the President’s powers and the powers Congress can exercise.¹ In a concurring opinion, Justice Robert Jackson set forth a framework that the Court has subsequently adopted to assess claims of presidential power.

Youngstown concerned an executive order that President Harry S. Truman issued on April 8, 1952, directing the Secretary of Commerce to seize and operate the Nation’s steel industry in order to avert a nationwide strike that he believed would jeopardize national defense during the Korean War.² In the executive order, President Truman cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the order to steel executives and the President reported his action to Congress, conceding Congress’s power to supersede the order, which Congress did not do.³ The steel companies sued, a federal district court enjoined the seizure,⁴ and the Supreme Court agreed to hear the case prior to a decision by the court of appeals.⁵

By a 6-3 vote, the Court held the seizure unconstitutional. In the controlling opinion, Justice Hugo Black rejected the Solicitor General’s argument that the President’s action was justified as an exercise of his executive power under Article II, Section 1; by his duty to enforce the laws; and by his power as Commander in Chief.⁶ Instead, Justice Black observed that not only was there no statute that expressly or impliedly authorized the President to take possession of the property, but also Congress had refused to authorize seizures of property to prevent work stoppages and settle labor disputes when it considered the Taft-Hartley Act in 1947.⁷ Because neither the aggregate of the President’s Article II executive powers nor his powers as Commander in Chief supported the action, Justice Black reasoned that the President had sought to exercise a lawmaking power, which the Constitution vests solely in Congress:⁸ Even if other Presidents had taken possession of private business enterprises without congressional authority to settle labor disputes, Congress retained its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested in it by the Constitution.⁹ Consequently, while Congress could have directed the President to seize the steel mills, the President could not seize them absent congressional authorization, even if he believed that such an action “was necessary to avert a national catastrophe.”¹⁰

In his concurring opinion, Justice Jackson outlined a framework for assessing the President’s powers depending on its “disjunction or conjunction with those of Congress.”¹¹ Justice Jackson divided presidential actions into three categories that looked at the extent to which the President was acting in concert with Congress. With regard to the first category, he stated:

When the President acts pursuant to an express or implied authorization of Congress,

his authority is at its maximum, for it includes all that he possesses in his own right

plus all that Congress can delegate. In these circumstances and in these only, may he

be said . . . to personify the federal sovereignty. If his act is held unconstitutional

under thise circumstancies it usually means that the Federal Government as an

undivided whole lacks power.¹²

Describing the second category, Justice Jackson stated:

When the President acts in absence of either a congressional grant or denial of

authority, he can only rely upon his own independent powers, but there is a zone of

twilight in which he and Congress may have concurrent authority, or in which its

distribution is uncertain. Therefore, congressional inertia, indifference or quiescence

may sometimes at least as a practical matter, enable, if not invite, measure on

independent responsibility. In this area, any actual test of power is likely to depend on

the imperatives of events and contemporary imponderables rather than on abstract

theories of law.¹³

The third category addressed situations where the President’s actions were contrary to will of Congress. Justice Jackson observed:

When the President takes measures incompatible with the express or implied will of

Congress, his power is at its lowest ebb, for then he can rely only upon his own

constitutional powers minus any constitutional powers of Congress over the matter.

Courts can sustain exclusive presidential control in such a case only by disabling the

Congress from acting upon the subject. Presidential claim to a power at once so

conclusive and preclusive must be scrutinized with caution for what is at stake is the

equilibrium established by our constitutional system.¹⁴

Justice Jackson viewed the steel seizure as falling into the third category because Congress had adopted statutory policies inconsistent with President Truman’s steel seizure. Accordingly, under Justice Jackson’s framework, the President’s action could only be sustained if the power to seize strike-bound industries was within the President’s domain and beyond Congress’s control.¹⁵

Since the decision in Youngstown, the Court has used Justice Jackson’s framework when assessing assertions of presidential power.¹⁶ For example in Zivotofsky v. Kerry, the Court applied Justice Jackson’s “tripartite framework” to find that because the challenged presidential action “falls into Justice Jackson’s third category, his claim must be ‘scrutinized with caution,’ and he may rely solely on powers the Constitution grants to him alone.”¹⁷

ArtII.S1.C1.6 Separation of Powers and Executive Branch Functions

In his Commentaries on the Constitution of the United States, Justice Joseph Story noted the importance of an independent executive department to the separation of powers. He observed: “All America have at length concurred in the propriety of establishing a distinct executive department. The principle is embraced in every state constitution; and it seems now to be assumed among us, as a fundamental maxim of government, that the legislative, executive, and judicial departments are to be separate, and the powers of one ought not to be exercised by either of the others.”¹

The Supreme Court has referred to principles of separation of powers when examining congressional actions that may infringe the President’s exercise of executive power. For instance, in 1983, the Court in INS v. Chadha² struck down the congressional veto as circumventing Article I’s bicameralism and presentment requirements to exercise legislative power. In Chadha, the Court suggested that Congress, by providing itself with the ability to veto the Attorney General’s decision to suspend deportation of an alien, had enabled itself to participate impermissibly in executing the laws.³ Writing for the majority, Chief Justice Warren Burger observed that “the powers delegated to the three Branches are functionally identifiable.”⁴ Under Chadha, when Congress exercises legislative power rather than delegates it, it must follow the prescribed bicameralism and presentment procedures.

In Bowsher v. Synar three years later,⁵ the Court held that Congress had unconstitutionally vested executive functions in a Legislative Branch official through the Gramm-Rudman-Hollings Deficit Control Act. The Gramm-Rudman-Hollings Deficit Control Act set maximum deficit amounts for federal spending and directed across-the-board cuts in spending when projected deficits would exceed the target deficits.⁶ Each fiscal year, the Comptroller General, who only Congress could remove, had to prepare a report identifying the reductions necessary to meet the deficit target, which the President had to implement. The Court stated: “Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.”⁷ Because Congress could remove the Comptroller General from office, it could not delegate executive powers to him. The Court stated: “By placing the responsibility for execution of the [Act] in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.”⁸

In Lujan v. Defenders of Wildlife, the Court held that Congress could not legislate to grant citizens not suffering particularized injuries standing to sue the federal government to compel its compliance with congressional mandates. Such a law, the Court reasoned, would allow Congress to transfer the President’s Take Care Clause duty to the Judiciary.⁹

The Court emphasized the importance of the separation of powers in Seila Law LLC v. Consumer Financial Protection Board (CFPB) in which the Court held that Congress encroached on Executive Branch powers when it limited the President’s ability to remove the head of an independent agency to “for cause” removal.¹⁰ In Seila, the Court noted that Congress had “vest[ed] significant governmental power in the hands of a single individual accountable to no one”¹¹ thereby violating the separation of powers.¹² Similarly, in Collins v. Yellen, the Court ruled that Congress could not restrict the President’s authority to remove the director of the Federal Housing Finance Agency, which had a structure similar to the CFPB.¹³

ArtII.S1.C1.7 Major Questions Doctrine and Administrative Agencies

In several twenty-first century decisions with significant implications for the administrative state, the Court held that under the “major questions doctrine,” the Executive Branch cannot interpret ambiguous legislation to effectuate sweeping changes of national consequence. Instead, Congress must, at a minimum, provide clear authorization that it intends to grant the Executive Branch such far-reaching powers.

In its 2014 decision in Utility Air Regulatory Group v. Environmental Protection Agency (EPA), the Court found that EPA could not construe the Clean Air Act (CAA) to enable it to regulate millions of small sources of air pollution, including hotels and office buildings, when Congress had not sought to regulate these entities under the CAA in the past.¹ Although the Court did not explicitly refer to the major questions doctrine, it held that an agency exceeds its regulatory authority when (1) the agency’s action involves an issue of “vast ‘economic and political significance,’” and (2) Congress has not clearly granted the agency authority over the issue.² The Court noted that Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”³

The Court’s concern about the Executive Branch establishing law that exceeded the authority Congress had delegated was also evident during the coronavirus disease 2019 (COVID-19) pandemic. For example, in August 2021, the Court vacated a lower court’s stay, effectively halting an eviction moratorium issued by the Centers for Disease Control and Prevention (CDC).⁴ The Court noted that the CDC had no legal authority to mandate an eviction moratorium and that Congress itself had declined to extend the eviction moratorium.⁵ Likewise, in National Federation of Independent Business v. Department of Labor, the Court stayed the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine mandate on the grounds that the plaintiffs were likely to succeed on the merits of their claim that OSHA did not have authority to require that “84 million Americans . . . either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense.”⁶ By comparison, on the same day, the Court vacated a stay of a a more limited vaccine mandate from the Secretary of Health and Human Services requiring that facilities receiving Medicare and Medicaid funding “ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID-19.”⁷ In reaching this decision, the Court agreed that “the Secretary’s rule falls within the authorities that Congress has conferred upon him.”⁸

In its 2022 decision West Virginia v. EPA, the Court held that EPA exceeded its CAA Section 111(d) authority⁹ in the 2015 Clean Power Plan (CPP) by requiring “generation shifting” whereby coal-fired power plants would “reduce their own production of electricity or subsidize increased generation by natural gas, wind, or solar sources.”¹⁰ Stating that “[i]t is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme,”¹¹ the Court observed: “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”¹² Examining EPA’s assertion that Section 111(d) provided EPA authority to require generation shifting, the Court noted that Section 111(d) was a little-used statutory “gap-filler” that allowed EPA to regulate emissions not covered by the CAA National Ambient Air Quality Standards (NAAQS)¹³ or Hazardous Air Pollutants (HAP) programs.¹⁴ In light of this, the Court held, Section 111(d) could not be read as granting EPA power to transform the national economy by adopting a “regulatory program that Congress had conspicuously and repeatedly declined to enact itself.”¹⁵

ArtII.S1.C1.8 The President’s Foreign Affairs Power, Curtiss-Wright, and Zivotofsky

The extent of the President’s foreign affairs power has been subject to debate since the earliest days of the Republic.¹ The Constitution provides that the President “shall receive Ambassadors and other public Ministers.”² In his Commentaries on the Constitution of the United States, Justice Joseph Story noted, “If the executive receives an ambassador, or other minister, as the representative of a new nation . . . it is an acknowledgment of the sovereign authority de facto of such new nation or party.”³ In addition, Article II provides that the President, with the advice and consent of the Senate, shall “make Treaties” and “shall appoint Ambassadors” and “other public Ministers and consuls.”⁴

Writing for the Court in the 1936 United States v. Curtiss-Wright Export Corp. decision,⁵ Justice George Sutherland reasoned that the the President “has the sole power to negotiate treaties,”⁶ although the President requires the Senate’s advice and consent to complete them.⁷ In Curtiss-Wright, the Curtiss-Wright Export Corp. challenged an embargo President Franklin D. Roosevelt had imposed pursuant to a congressional delegation. Indicted for violating the embargo, Curtiss-Wright argued that Congress had impermissibly delegated a legislative power to the President when it granted the President power to impose the embargo. Writing for a 7-1 majority in favor of the government, Justice Sutherland posited that the National Government’s power in foreign relations is inherent. Consequently, the limits on Congress’s ability to delegate power relating to domestic areas, Justice Sutherland reasoned, did not apply in the area of foreign affairs. Justice Sutherland stated:

The broad statement that the Federal Government can exercise no powers except those

specifically enumerated in the Constitution, and such implied powers as are necessary

and proper to carry into effect the enumerated powers, is categorically true only in

respect of our internal affairs. . . . As a result of the separation from Great Britain

. . . . the powers of external sovereignty passed from the Crown . . . to the colonies in

their collective and corporate capacity as the United States of America . . . . The

powers to declare and wage war, to conclude peace, to make treaties, to maintain

diplomatic relations with other sovereignties, if they had never been mentioned in the

Constitution, would have been vested in the Federal Government as necessary

concomitants of nationality. . . . In this vast external realm, with its important,

complicated, delicate and manifold problems, the President alone has the power to

speak or listen as a representative of the nation.⁸

Notwithstanding Curtiss-Wright, the Court has recognized that the President may be subject to the delegated powers doctrine in matters implicating foreign relations.⁹ For instance, in Kent v. Dulles,¹⁰ the Court held that the standards that apply to congressional delegations to the President of domestic authorities likewise applied to a congressional delegation to the President of authority to issue passports.¹¹

The Supreme Court’s decision in Zivotofsky v. Kerry appears to be the first instance in which the Court held that an act of Congress unconstitutionally infringed upon a foreign affairs power of the President.¹² The case concerned a legislative enactment requiring the Secretary of State to identity a Jerusalem-born U.S. citizen’s place of birth as “Israel” on his passport if requested by the citizen or his legal guardian.¹³ The State Department had declined to follow this statutory command, citing long-standing executive policy of declining to recognize any country’s sovereignty over the city of Jerusalem.¹⁴ It argued the statute impermissibly intruded upon the President’s constitutional authority over the recognition of foreign nations and their territorial bounds, and attempted to compel “the President to contradict his recognition position regarding Jerusalem in official communications with foreign sovereigns.”¹⁵

The Zivotofsky Court evaluated the State Department’s non-adherence to a statutory command using the framework established by Justice Robert Jackson’s concurring opinion in Youngstown, under which executive action taken in contravention of a legislative enactment will only be sustained if the President’s asserted power is both “exclusive” and “conclusive” on the matter.¹⁶ The Constitution does not specifically identify the recognition of foreign governments among either Congress’s or the President’s enumerated powers. But in an opinion that employed multiple modes of constitutional interpretation, the Court concluded that the Constitution not only conferred recognition power to the President, but also that this power was not shared with Congress.

In its analysis, the Court first examined “the text and structure of the Constitution,” which it construed as reflecting the Founders’ understanding that the President exercises the recognition power.¹⁷ In particular, the Court focused on the President’s responsibility under the Reception Clause to “receive Ambassadors and other public Ministers.”¹⁸ At the time of the founding, the Court reasoned, receiving ambassadors of a foreign government was tantamount to recognizing the foreign entity’s sovereign claims, and it was logical to infer “a Clause directing the President alone to receive ambassadors” as “being understood to acknowledge his power to recognize other nations.”¹⁹ In addition to the Reception Clause, Zivotofsky identified additional Article II provisions as providing support for the inference that the President retains the recognition power,²⁰ including the President’s power to “make Treaties” with the advice and consent of the Senate,²¹ and to appoint ambassadors and other ministers and consuls with Senate approval.²²

The Zivotofsky Court emphasized “functional considerations” supporting the Executive’s claims of exclusive authority over recognition,²³ stating that recognition is a matter on which the United States must “speak with . . . one voice,”²⁴ and the Executive Branch is better suited than Congress to exercise this power for several reasons, including its “characteristic of unity at all times,” as well as its ability to engage in “delicate and often secret diplomatic contacts that may lead to a decision on recognition” and “take the decisive, unequivocal action necessary to recognize other states at international law.”²⁵

The Court also concluded that historical practice and prior jurisprudence gave credence to the President’s unilateral exercise of the recognition power. The Court acknowledged that the historical record did not provide unequivocal support for this view, but characterized “the weight” of historical evidence as reflecting an understanding that the President’s power over recognition is exclusive.²⁶ Although the Executive had consistently claimed unilateral recognition authority from the Washington Administration onward, and Congress had generally acquiesced to the President’s exercise of such authority, there were instances in which Congress also played a role in matters of recognition. But the Zivotofsky Court observed that in all earlier instances, congressional action was consistent with, and deferential to, the President’s recognition policy, and the Court characterized prior congressional involvement as indicating “no more than that some Presidents have chosen to cooperate with Congress, not that Congress itself has exercised the recognition power.”²⁷ The Court also stated that a “fair reading” of its prior jurisprudence demonstrated a long-standing understanding of the recognition power as an executive function, notwithstanding “some isolated statements” in those cases that might have suggested a congressional role.²⁸

Having determined that the Constitution assigns the President exclusive authority over recognition of foreign sovereigns, the Zivotofsky Court ruled that the statutory directive that the State Department honor requests of Jerusalem-born U.S. citizens to have their passports list their birthplace as “Israel” was an impermissible intrusion on the President’s recognition authority. According to the Court, Congress’s authority to regulate the issuance of passports, though wide in scope, may not be exercised in a manner intended to compel the Executive “to contradict an earlier recognition determination in an official document of the Executive Branch” that is addressed to foreign powers.²⁹

While the Zivotofsky decision establishes that the recognition power belongs exclusively to the President, its relevance to other foreign affairs issues remains unclear. The opinion applied a functionalist approach in assessing the exclusivity of executive power on the issue of recognition but did not opine on whether this approach was appropriate for resolving other inter-branch disputes concerning the allocation of constitutional authority in the field of foreign affairs. The Zivotofsky Court also declined to endorse the Executive’s broader claim of exclusive or preeminent presidential authority over foreign relations, and it appeared to minimize the reach of some of the Court’s earlier statements in Curtiss-Wright³⁰ regarding the expansive scope of the President’s foreign affairs power.³¹ The Court also repeatedly noted Congress’s ample power to legislate on foreign affairs, including on matters that precede and follow from the President’s act of foreign recognition and in ways that could render recognition a “hollow act.”³² For example, Congress could institute a trade embargo, declare war upon a foreign government that the President had recognized, or decline to appropriate funds for an embassy in that country. While all of these actions could potentially be employed by the Legislative Branch to express opposition to executive policy, they would not impermissibly interfere with the President’s recognition power.³³

ArtII.S1.C1.9 Term of the President

Article II, Section 1, Clause 1, provides for the President and Vice President to serve four-year terms. The Framers generally appear to have contemplated that, under the Constitution, the President, like Representatives and Senators, would not be subject to term limits but could run for office “as often as the people of the United States shall think him worthy of their confidence.”¹ However, there was much debate and concern that the Constitution might grant the President too much power and that, as Thomas Jefferson observed, “the perpetual re-eligibility of the President” could produce “cruel distress to our country even in your day and mine.”² Following precedent established by George Washington, the idea that no President would hold office for more than two terms was generally regarded as a fixed tradition until President Franklin Delano Roosevelt sought and won reelection for a third and fourth term in 1940 and 1944, respectively. In 1951, the states ratified the Twenty-Second Amendment limiting the President to two terms in office.³

When considering the term of the President during the Constitutional Convention, the Framers weighed how the President would be selected, whether a President should serve multiple times, and how to mitigate the danger that the Presidency might evolve into a “hereditary Monarchy”⁴ or become the “mere creature” of Congress.⁵ On June 1, 1787, James Wilson of Pennsylvania proposed to the Committee of the Whole that the term of the President be three years, “on the supposition that a re-eligibility would be provided for,”⁶ while Charles Pinckney of South Carolina proposed a term of seven years.⁷ George Mason of Virginia urged a term of “seven years at least, and for prohibiting a re-eligibility as the best expedient both for preventing the effect of a false complaisance on the side of the Legislature towards unfit characters; and a temptation on the side of the Executive to intrigue with the Legislature for a re-appointment.”⁸

Although the Committee of the Whole voted for a seven-year term,⁹ debate continued over how to select the President and whether he should be eligible for reelection. Efforts to offset the longer seven-year term with a bar on re-eligibility were met by concerns that prohibiting reelection would, among other things, “destroy the great motive to good behavior, the hope of being rewarded by a re-appointment.”¹⁰ Revisiting the appropriate term of office for the President in conjunction with whether the President should be eligible for reelection,¹¹ the Convention considered proposals for, among other things, fifteen-year, eleven-year, eight-year, six-year, and three-year terms,¹² as well as an indefinite term during Good Behavior.¹³ In late August 1787, the Convention referred the matter to the Committee of Eleven, which, in turn, proposed a term of four years without a bar to reelection.¹⁴

While the four-year term was shorter than the originally contemplated seven-year term, critics of the Constitution maintained that it would still allow the President to establish a dangerous influence over the United States.¹⁵ Responding to such concerns in the Federalist Papers, Alexander Hamilton explained the advantages of a four-year term as striking a balance between the “personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices.”¹⁶ He stated:

Between the commencement and termination of such a [four-year] period, there would

always be a considerable interval, in which the prospect of annihilation would be

sufficiently remote, not to have an improper effect upon the conduct of a man endued

with a tolerable portion of fortitude. . . . [A] duration of four years will contribute to

the firmness of the Executive in a sufficient degree to render it a very valuable

ingredient in the composition; so, on the other, it is not enough to justify any alarm for

the public liberty.¹⁷

Hamilton also cited the three-year New York gubernatorial term to support that the President would be unlikely to acquire undue power across the entirety of the United States over four years when the Governor of New York had not done so over the much smaller state of New York over three years.¹⁸

In his Commentaries of the Constitution of the United States, Justice Joseph Story observed that the four-year term the Framers adopted for the President is “intermediate between the term of office of the senate, and that of the house of representatives” and, as a result, “[i]n the course of one presidential term, the house is, or may be twice recomposed; and two-thirds of the senate changed, or re-elected.”¹⁹ Because the President’s four-year term is between the two-and six-year terms of the House and Senate, the President is subject to pressures that drive the House’s need to respond to the people’s immediate demands, even though such demands may be short-lived, and those that facilitate the Senate’s greater focus on long-term objectives because its six-year term provides some insulation from political winds.²⁰