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In the previous two weeks we considered
the structure and powers of the

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Federal Legislative Branch.

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This week we'll turn our attention
to the Executive, focusing on the

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Office of President.

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As we saw previously,
Article 1 of the Constitution spells

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out in some detail what kinds of
laws Congress can make.

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Article 2, however, is less specific
about the powers of the President.

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To understand the scope of Federal
Executive power, we need to briefly

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consider the historical context
of its establishment.

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Some of the original critics of
the Constitution were concerned

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that the President would become too powerful, and start behaving like a monarch or despot. Indeed,

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the predecessor to the Constitution,
the Articles of Confederation of 1781,

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didn't even include an independent
Executive power, as it was thought

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that having a President,
even under a democratic system,

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was just too close to having a King.

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As a consequence, Congress was
originally given both legislative

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and executive responsibilities.

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The Framers drafted the Constitution
to try to address these concerns,

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which arose out of recent historical
experience at the hands of the

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British monarch.

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The Constitution created a presidency
with limited powers that could

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be controlled by the other two
branches, Congress and the Judiciary.

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Congress, not the presidency,
was meant to be the preeminent

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institution of the American political
system.

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We also see built into the Constitution
the principle of the separation

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of powers along with the system
of checks and balances.

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The idea was to prevent any one
of the three branches of government

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from becoming too powerful.

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As it happens, despite the best
efforts of the Framers of the

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Constitution, over time power has
progressively shifted away from

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Congress and towards the President.

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We often hear today the American
President described as the leader

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of the free world and the most
powerful person on earth.

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This change in the status of President
has occurred even though the text

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of Article 2 has not changed since
it was first drafted back in 1787.

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So this raises the obvious question,
how has the same constitutional

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provision resulted in the weak
presidents of the 19th century

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on the one hand, and on the other
hand the increasingly powerful

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leaders that have emerged over
the course of the last century?

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Well there are a number of elements
to take into account here.

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Firstly, unlike the legislative branch,
which spreads power across two

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chambers made up of numerous members,
the power of the executive branch

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is concentrated in one person who
is able to act much more quickly

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and decisively than Congress.

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The 20th century also saw the United
States' emergence as a world

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superpower, which also contributed
to the importance of the President's

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role as the nation's foremost
representative on the international

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stage.

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But perhaps the most significant
element contributing to the rise

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of executive power was the apparent
inability and often unwillingness

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of Congress and the judiciary to
resist the President's arguments

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for increasing executive power,
particularly in times of war or

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national crisis.

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When the Civil War started in 1861,
Congress was not in session and

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President Lincoln acted unilaterally
to introduce a range of measures

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that arguably exceeded his
constitutional powers.

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For example, he seized ships that
were bound for Confederate ports

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and he suspended the writ of habeas
corpus.

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This is the legal mechanism that
protected people from arbitrary

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arrest and incarceration.

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He also declared the emancipation
of slaves in the Confederate states.

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Now, Lincoln defended his actions,
which went well beyond the traditional

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limits of executive power,
on the basis that they were necessary

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for the good of the nation.

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And with rare exceptions,
this justification was broadly

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accepted by the courts and by citizens
generally.

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But it was in the 1930s,
faced with the economic and social

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crisis of the Great Depression,
that the modern increase in executive

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power has its real roots.

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President Roosevelt embarked on
a massive expansion of the federal

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governments in a bid to respond
to the crisis and implement the

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policies of the New Deal.

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Roosevelt himself likened the task
to going to war, declaring in his

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first inaugural address,
I quote, I shall ask the Congress

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for the one remaining instrument
to meet the crisis, broad executive

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power to wage a war against the
emergency as great as the power

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that would be given to me if we
were in fact invaded by a foreign foe.

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Well, Congress supported him in
his efforts, but the Supreme Court

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on this occasion vigorously resisted
his efforts to implement federal

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legislation in areas that the court
said were beyond federal power.

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But in the end, the court was forced
to back down after Roosevelt threatened

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to stack the court, in other words,
to nominate additional justices

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to the court that would support
his program.

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If we turn now to impeachment,
one of the main safeguards in the

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Constitution against executive
abuses of power is Congress's power

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to remove a public official through
impeachment proceedings.

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This is something I mentioned in
previous weeks.

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The power is spelled out in Article
2 of the Constitution,

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which states that,
"the president, vice president and

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all civil officers of the United
States shall be removed from office

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if convicted in an impeachment
trial of treason, bribery or other

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high crimes and misdemeanors."

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So, as we saw in week five,
it's the House that brings the

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impeachment proceedings and the
Senate that decides whether the

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charges have been made out or
established.

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In practice, impeachments are quite
rare and successful trials before

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the Senate are even less common.

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So up till now, the House has only
commenced impeachment proceedings

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against three presidents,
including recently against Donald

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Trump, one senator, one cabinet
officer and 15 judges.

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All of these were unsuccessful
before the Senate, except for eight

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cases of federal judges.

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So in the end, only eight judges
were actually convicted and removed

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from office.

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The impeachment clause allows
impeachment for high crimes and

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misdemeanors.

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This is a phrase that has been
the subject of controversy over

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the years.

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It appears to rule out the idea
that officials could be removed

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for incompetence or general unfitness
for office.

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It's really a last resort to be
used by Congress in cases of abuse

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or abuses of public office.

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But it's not always obvious where
to draw the line between general

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unfitness for office and actual
abuses of office.

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Are high crimes and misdemeanors
restricted to conduct that would

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amount to a criminal offense?

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Or does the phrase encompass other
forms of misconduct?

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In the case of impeachment proceedings
brought against presidents in the past,

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it's clear that politics played
a large part in proceedings.

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President Andrew Johnson,
a Democrat who was sworn in as

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president after Lincoln's
assassination, faced considerable

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opposition to his Reconstruction
program, which was very favorable

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to ex-Confederate states and would
have allowed, effectively,

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southern states to bring in codes
that preserved many elements of

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slavery.

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Slavery, of course, being abolished
after the Civil War.

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Now, when Johnson attempted to
dismiss the Secretary of War from

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his cabinet, Republican opponents
brought formal impeachment proceedings

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against him.

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Although Republicans dominated
the Senate, they narrowly failed

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to achieve the two-third majority
required to convict Johnson.

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Bill Clinton was the second US
president to face impeachment,

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this time for perjury.

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So here, the Republican-controlled
House alleged that Clinton had

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lied under oath about his relationship
with the White House intern Monica

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Lewinsky.

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Again, the Senate dismissed the
charges with members generally

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voting along party lines.

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So no Democrat senators voted guilty,
while almost all Republicans voted

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to convict.

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Most recently, Donald Trump was
the first official to,

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in fact, be impeached twice while
in office.

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The first impeachment for abuse
of power and obstruction of Congress

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arose from allegations that Trump
had attempted to coerce Ukrainian

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officials to investigate Democratic
presidential candidate Joe Biden

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and his son Hunter.

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Two years later, the House charged
Trump with inciting insurrection

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against the government through
his conduct in the lead-up to the

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Capitol riots on January the 6th,
2021.

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Now, in both cases, the Senate
vote fell well short of the two-third

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majority required to convict.

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And again, we saw the role of party
politics in determining the vote.

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Next week, we'll be looking in
more detail at the specific powers

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granted to the president under
Article 2 of the Constitution.

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I look forward to seeing you then.