creation of the Presidency

The office of President of the United States was created at the Constitutional Convention of 1787. The framers had three options: to create a weak executive to administer the departments of government, whose powers would come solely from laws passed by Congress; to create a stronger executive that would be able to check and balance Congress; or to establish an executive with its own constitutional grants of power.

The Virginia Plan (designed by George Mason and James Madison of Virginia), with which delegates began their work, envisioned a weak plural executive that would be elected by Congress and subject to recall by a majority of state governors or state legislatures. In contrast, Alexander Hamilton proposed a supreme governor to be elected by the people or their delegates for life, with an absolute veto over laws passed by the legislature and armed with “Supreme Executive Power.” The Constitutional Convention settled on a middle course, providing for an executive branch that could check the legislature. Eventually, it also accepted language that would allow the President to exercise vast constitutional powers on his own prerogative, without requiring Congress to pass laws giving him authority to act in many diplomatic or military matters.

Convention deliberations began with Robert Morris's motion, which carried unanimously, to make George Washington the presiding officer. It was obvious that delegates expected Washington to lead the new government. All deliberations about the powers of the executive were also debates about powers to be accorded to Washington. “The first man put at the helm will be a good one,” Benjamin Franklin acknowledged; “nobody knows what sort may come afterwards.”

The Virginia Plan created a “National Executive” consisting of several officials elected by Congress who would be vested with “general power to execute National laws,” but it specified neither the length of the term nor the powers of the office. No person holding an executive office would be eligible to serve in Congress simultaneously, and Congress could not change the salary of the President during his term. Both of these provisions were designed to promote the separation of the executive and legislative branches that later appeared in the Constitution. The executive would have a check on laws passed by Congress, but that power would be shared by a Council of Revision consisting of members of the high court, called the “supreme tribunal.” Congress could, however, pass a law over the veto. The members of the executive could be impeached, or tried for crimes, by the “supreme tribunal.”

After two weeks of debate these provisions were replaced by an article that called for a single executive officer, chosen for a seven-year term by Congress, ineligible for reelection, with powers derived solely from laws passed by Congress and the ability to veto laws (though the veto could be overridden by a two-thirds vote of each house of Congress).

The Committee on Detail added several constitutional powers for the “President” (as the committee now referred to the executive). These powers sometimes were modified by floor debate and on other occasions by the Committee on Postponed Matters when the delegates could not come to an agreement. The President was to appoint officers not otherwise provided for by the Constitution, give Congress information on the state of the Union and recommend measures for its consideration, receive foreign ambassadors, grant reprieves and pardons to people convicted of crimes, convene Congress on extraordinary occasions, take care that the laws be faithfully executed, command the armed forces, and command the militia when it was called into federal service. The Constitution also provided for an oath of office. The Committee on Detail also provided that the House could impeach the President on the grounds of “treason, bribery or corruption” and the trial would be held by the Supreme Court.

The Committee on Postponed Matters turned the trial of a President over to the Senate. It also dropped the vague charge of “corruption,” and the convention substituted for it the phrase “other High Crimes and Misdemeanors,” which referred to serious abuses of Presidential power. The convention also raised the number of senators needed for conviction from a majority to two-thirds. After the Committee on Detail assigned the power to make treaties to the Senate rather than to the President, James Madison dissented, arguing that the President alone should have the power. The delegates referred the issue to the Committee on Postponed Matters, which split the difference: it decided that the President, with the advice and consent of two-thirds of the Senate, would make treaties. The committee also removed the power to appoint judges from the Senate and gave it to the President, subject to the advice and consent of the Senate.

Throughout the convention proponents of a strong Presidency argued for a short term of four years, no restrictions on eligibility for reelection, and a method that would remove selection from the legislature and make the President accountable to the people. At times an electoral college was proposed and once even briefly accepted, but on most occasions the convention rejected the idea and returned to legislative selection of the President. Eventually, the Committee on Postponed Matters incorporated the electoral college into the final draft of the Constitution. Its proposal to have the Senate elect a President in the event of an electoral college deadlock was changed after debate to a House contingency election; because the House was popularly elected, it was considered the more democratic chamber.

The Committee on Postponed Matters also provided that the President be 35 years old, a natural-born citizen (or a citizen at the time of the Constitution's adoption), and a resident of the United States for at least 14 years. The convention approved Charles Pinckney's motion that no religious test should be required or be part of the oath of office.

The Committee on Postponed Matters suggested the opening language of Article 2, that “the Executive Power of the United States shall be vested in a President of the United States.” This wording made it clear that the powers of the office, especially the enumerated, or specified, powers that followed, were derived from the Constitution, not from legislation that might be passed by Congress. Thus Congress could not modify or rescind these powers, though Article 1, Section 8, would permit Congress to pass all laws “necessary and proper” for the President to carry out his constitutional powers. Moreover, the phrase “Executive Power” could itself be an open-ended grant of power that might be interpreted expansively by Presidents to include powers not specifically mentioned in the Constitution, such as the power to remove officials from office and the power to direct executive department secretaries.

At the Constitutional Convention the Committee on Style was chaired by Gouverneur Morris, an ally of Washington and a strong proponent of Presidential power. He left the “Executive Power” provision of Article 2 intact but provided in Article 1 that Congress could exercise only the legislative powers “herein granted.” The difference in language between Article 1 and Article 2 is taken by proponents of a strong Presidency to mean that the executive power may consist of more than the specific powers that follow in Article 2. The Committee on Style left the Constitution at key points ambiguous, incomplete, and undefined. Much of the subsequent history of the Presidency would involve the incumbent's claim that he had the power to act, refuted by critics’ claims that his exercise of power was unconstitutional.

The unsettled issue of Presidential power was to trouble many of the delegates to state conventions to ratify the Constitution. “Your President may easily become a King,” thundered Patrick Henry of Virginia, and he predicted “there will be no checks, no real balances in this government.” James Monroe gloomily foresaw a President who might be reelected for life. In Paris, Thomas Jefferson noted tartly that “their President seems a bad edition of a Polish King” because he could be reelected indefinitely and commanded the armed forces. The Virginia and North Carolina conventions submitted proposed constitutional amendments to limit tenure in office to 8 years in any 16-year period.

Defenders of Article 2 tried to minimize the scope of Presidential powers that the Constitution had granted. They pointed out that the President could not become a king because there was no established church or aristocracy in the United States. The President did not appoint the Senate and was unlikely to combine with it in a conspiracy to usurp congressional power. He had no royal prerogatives, or privileges, and his limited diplomatic authority was subject to Senate approval. He would be nominated and elected by the electoral college to a short term in office and would remain accountable to the people.

Sources

Catherine Drinker Bowen, Miracle at Philadelphia (Boston: Little, Brown, 1966). Thomas Cronin, ed., Inventing the American Presidency (Lawrence: University Press of Kansas, 1989).
Charles Thach, The Creation of the Presidency (Baltimore, Md.: Johns Hopkins University Press, 1922)

creation of the Presidency

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