Tuesday, September 16, 2008

Fifteen duties

Trivia to ask your friends: according to the Constitution, exactly how many duties does the President of the United States have?

By my count, it's fifteen. Twelve of the duties of the Oval Office are specified in Article II, sections 2 and 3. For the life of me, I don't know why the framers split this into two sections. It's not as though one section has mostly his domestic concerns and another his foreign policy charges, or that one has things he can do himself while the other is things he needs to consult with Congress on. Reading sections 2 and 3, it simply appears that the division was based on style.

I'll summarize here the President's dozen duties; all are from Article II sections 2 and 3 unless otherwise indicated. In the order that they are listed:

1. Signing or vetoing legislation (Article I, section 7)

2. Commander in Chief of the armed forces

3. Asking his cabinet for written opinions

4. Pardoning people who commit offenses against the United States

5. Making treaties

6. Nominating ambassadors, judges, etc.

7. Filling vacancies in the Senate with recess appointments

8. Giving State of the Union addresses and recommending legislation to Congress

9. Convening both Houses in an emergency

10. Telling Congress when to adjourn if they can't decide themselves

11. Receiving ambassadors and other foreign dignitaries

12. Taking care that the laws be faithfully executed

13. Commissioning all the Officers of the United States

14. Nominating someone for Vice-President if there is a vacancy (Amendment XXV, section 3)

15. Telling everybody the operation was fine, the anaesthesia has worn off, and he's ready to serve as President again (Amendment XXV, sections 3 and 4).

You could argue the President has more duties than this. Article 1, section 9 provides that the Writ of Habeas Corpus shall not be suspended unless there is a rebellion. It doesn't specify who does the suspending; Abe Lincoln assumed he could (see Farber, Lincoln's Constitution, 2003, p. 158). I left that out, because I wanted to limit this article to things it is obvious from the Constitutional text that he has the authority to do.

Anyway, I decided that as a little exercise I was going to take those duties and make my own subjective list, ranking them from... well, I don't really want to say least important to most important, because you know me, I don't want to imply that anything in the Constitution is unimportant. What I'm getting at with my list is this: which duties are things that if you are the most partisan person in America you really don't care if it's somebody in the other party handling? How, in other words, are the fifteen responsibilities ranked from the least you'd care if either McCain or Obama gets elected, to the most you'd care one way or another?

So this is my list; I encourage you to make your own if you disagree. From least anybody is concerned about to the most anybody is concerned about, I rank them as follows:

15. Telling Congress when to adjourn if they can't decide themselves. Did you think in the list above that I was joking with this one? It's actually in the Constitution; if the House of Representatives and the Senate cannot agree on a time of adjournment, the President decides. Personally, if I was the President and the Speaker of the House and the President pro tempore of the Senate called me and said they couldn't agree on when to stop giving C-SPAN live programming, I'd give them two choices: rock, paper, scissors, or flip a damn coin.

14. Receiving ambassadors and other foreign dignitaries. I presume that if Larry the Cable Guy was the President, even he would know that one doesn't pick one's nose or fart when shaking hands with the French President. Unless the Frenchy does it first.

I do need to acknowledge, however, there is a potential for great significance in isolated cases, as "receiving" ambassadors is tantamount to recognizing the validity of a country's regime. (See page 568 of the annotated Constitution maintained by the Government Printing Office ;
"The recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively presidential act.")

13. Commissioning all the Officers of the United States. Remember on the TV series MASH how Radar would shove papers in front of Colonel Blake, or later Colonel Potter, and they would have no idea what the hell they were signing? This is the Constitutional equivalent of that.

12. Filling vacancies in the Senate with recess appointments. Senators often serve a long time, but most of them at least have the sense to retire before they die. Anyway, these recess appointments expire at the end of the next session.

11. Asking the cabinet for written opinions. This is kind of funny, in that if the Constitution did not expressly say that the President had this power, would anybody seriously doubt he did? Why else would he have a cabinet in the first place, if not to get their professional opinions on things?

I hope it's obvious by this point that I'm discussing the importance of the duty itself, not the difference in who possesses the duty. That a Secretary of the Interior under McCain might well give a completely different opinion on drilling in the Arctic National Wildlife Refuge to one issued by a Secretary of the Interior under Obama is significant, but not really germane to the matter I'm concerned with here. There are tens of thousands of business managers in this country that ask subordinates for opinions; this is not a duty we would think particular to the Presidency.

10 and 9. Nominating a new Vice-President if the old one dies or gets arrested, and taking the reins of the Presidency again if he had to briefly give them up. "What if," Akhil Reed Amar ponders, "instead of dying within minutes of being shot in the head, JFK had in fact survived, drifting in and out of consciousness, with uncertain prospects for a full mental recovery? What if the bullet had badly impaired his cognitive functions but in a way that he himself did not understand and refuse to acknowledge?" (America's Constitution: A Biography, 2005, p. 448).

That's why the Twenty-fifth Amendment was ratified, to deal with presidential disability. But it also has the two duty provisions mentioned here: that if the President is unable to discharge his powers for a short period of time--like if he's under anaesthesia getting operated on--he can turn over control of the Executive branch to the VP and get it back once the gas wears off. Plus, the amendment has the provision that the President gets to nominate someone to fill a Vice-Presidential vacancy, subject to approval of both houses of Congress. I highlight the word "both" because this is in contrast to the President's other nominating powers, spelled out in Article I, in which he only needs the support of the Senate.

I can't rate either of these two things any higher. As far as nominating a new Vice-President is concerned, that's come up once since the amendment was ratified, when Nixon traded Spiro Agnew for Nelson Rockefeller. It will probably come up about twice a century, so it's not a major deal. As for what I like to call the anesthesia provision, well, maybe that's important, but we'd had a constitution for 180 years before that was added. Besides, how difficult is it for the President to say, "My gall bladder is out and I'm wide awake!"

8. Taking care that the laws are faithfully executed. This would include everything from giving tickets to litterbugs at the Washington Monument to prosecuting people who cross state lines to bomb abortion clinics. You could argue that this should be rated higher, but as long as the President is a good cop who makes sure everybody under him knows they have to enforce laws whether they agree with them or not, I presume not too many folks would get worked up whether the President is a Republican or Democrat. This is enforcing law, not making or changing it. You've heard the line about cabinet members serving at the pleasure of the President; this is a duty in which the President serves the pleasure of the people.

7. Convening Congress in an emergency. Very important, but again remember the criteria for my ranking. If some country declares war on the US in the middle of the summer when Congress has left Washington, any competent Chief Executive, regardless of his party, is going to know to call them back to the District.

6. Giving the State of the Union address, in which he implores Congress to do this and that. No matter who the next President is, there will be a night in January that regular programming is preempted for a long speech, and the network's ratings will go down correspondingly. The Prez will get a lot of polite applause from everybody on both sides of the aisle, and the cameras will catch a couple of old Senators appearing to nod off. Really it's not the delivery of the address itself that anybody is concerned with, it's that customarily at this time the President advises Congress what he thinks they should legislate on. (I thought about dividing this into two duties, but they are separated in Article I by a comma and not a semi-colon, so I left it at one responsibility.)

This is the duty some of you may really think I'm off base on; that it should be in, say, the top three because the President's word carries a lot of weight. Maybe you're right, but remember: the President can't pass legislation; he can only recommend it. And even if 150 Congressmen and 30 Senators agree, that's not enough to get it done.

5. Nominating ambassadors, judges, American Idol finalists, etc. (Okay, I made up that last one.) Years ago I saw a W.C. Fields movie--I don't recall the title--in which he and another character, as I recall, fall off a cliff. The other character remarks that they are plummeting a thousand feet and Fields remarks that 999 feet are harmless; it's just the last foot that's going to hurt.

That's kind of the way this Presidential duty is: 999 nominations for people like the guy who will serve as ambassador to Luxembourg, or the intrepid soul who will sit on the bench of the federal court for the Middle District of Georgia so he can preside over a lawsuit determining who is responsible for defective rebar sent from Montgomery to Macon--and once in a blue moon a nomination for a Supreme Court Justice that ties everybody's BVD's into a knot.

Now that we're in the top five, maybe I don't have to justify why I haven't ranked this higher, but in case I do, remember that the Senate has to concur in the nominations, and that while you may be able to name all nine Supreme Court justices, I'd be really impressed if you could name a single ambassador.

4. Making treaties. Again, the Senate must concur. You can switch this with #5 if you prefer.

3. Issuing pardons. Am I rating this too high? After all, how often is there a pardon of significance? I'm putting this in the top three because there is absolutely NO Congressional oversight, as there is with treaties and appointments. When Gerald Ford reached into his Monopoly set, pulled out a "get out of jail free" card, and handed it to Nixon, there was no Constitutional power for Congress to object. Interestingly, the one limitation is that the President cannot pardon in cases of impeachment. So by leaving office voluntarily, Nixon avoided impeachment and left his successor power to pardon him for offenses that might have gotten him impeached! If we ever scrap the Constitution and get a new one, I'd bet you anything you want there will be changes made to the Executive pardoning power.

2. Commander in Chief. I think everybody would put this in the top two; some of you might rank it first. No discussion should be necessary; suffice it to say that if the President did not have this authority, Code Pink wouldn't know who to be mad at.

1. Signing or vetoing legislation. Actually signing legislation isn't that big a deal; the President is just giving his approval to whatever Congress did. It's that veto pen that makes the office of President of the United States so damn powerful. If he vetoes a bill, it takes two-thirds of Congress to override it.

From time to time you'll hear people talk about features of the Constitution that are rather undemocratic. Usually the conversation centers around how there are the same number of Senators for millions of Californians as there are for several hundred thousand folks in Wyoming; or the matter of Presidents getting elected even though they lose the popular vote, thanks to the electoral college, as happened in 2000; or that there are 99 state legislative houses in this country (Nebraska has just one) and it only takes thirteen of the 99 to block a constitutional amendment. Very well. But arguably the veto power is the least democratic constitutional provision of all--one man (or woman) can subvert majority rule unless a pretty extensive super-majority of Congress stops him. That's why I'm ranking the veto power ahead of the military authority, even though people rarely die from a botched veto operation.

Anyway, that's my ranking. What's yours?

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