Hello and welcome back to The Civic Flame, the podcast where we talk deep dive into the US Constitution and how it does (and doesnÕt) still shape our government. Last week we finished our long trek through the Article 1 and the powers of Congress, which means this week weÕre starting Article II: The Executive Branch. As we go through the presidency, weÕll be taking a look at how very different the reality of the presidency today is from the Constitution. There are a couple of presidents we can really look at as starting this trend. Woodrow Wilson took a lot of power for the presidency and made the president something a lot more people noticed than before. As Article 1, Congress was supposed to be the most important and has the most power. But since Franklin Roosevelt with the New Deal and Richard Nixon with war powers, presidents have had a lot more power in a lot of different ways. So, think about all the things you expect any president to do, the powers you expect them to have, and how youÕve seen them working with power. Then, as we go through the powers the Constitution has, think about the ways those powers may be out of line from original expectations. Grab a seat by the fire, and letÕs do this! (transition) Okay, Article II: The powers of the presidency. Now, I guess this is a good time to remind you that when it comes to power and structures of government, I am kind of a stickler for the Constitution. This basically means that I complain a lot about every president sinceÉwellÉJohn Adams. But for every president in the past 100 years, my complaints have been as much about how theyÕve done things as what theyÕve done. In some cases, even more. See, law leaves a lasting legacy and power likes power. So, when you let the law change in a way that gives powerful folks power, itÕs not the person or party you like that gets to keep that power: itÕs the office. So, if you give the president or the Congress a power because you like the people running the show, that means that later on, that power will go to someone else. So, for me, itÕs always about minimizing the powers of the Congress and especially the president, to keep it in line with the original constitution. Which basically means IÕm that old guy shouting at the clouds any time a president does something. Now unlike Article 1 that is in 10 sections, Article 2 is in 4 sections. So, today letÕs look at Article 2, section 1. Next week, weÕll look at sections 2-4 all together! Why? Because again, the presidency isnÕt supposed to have that much power, so there wasnÕt that much space dedicated to it in the Constitution. Article 2, Section 1 starts with the vesting clause and says, ÒThe executive Power shall be vested in a President of the United States of America.Ó Sounds easy, right? But by now you know thatÕs just a trick. ItÕs more complicated. One reason this is distinct from our first Constitution, the Articles of Confederation is that the Article of Confederation did not have a real space for distinct executive power as substantially separate from legislative power. The vesting clause is thought to set up the executive branch as distinct from the other branches and to maintain the separation of power. Remember, when our Constitution was drafted it was SUPPOSED to be a fix of the Articles of Confederation. But you donÕt stick a few dozen revolutionaries who just overthrew a government in a room and expect them to do what you say. They decided instead to scrap the whole thing and start over with the Constitution. But while the Federalists were all about this, the Anti-Federalists were pretty ticked off because they didnÕt want any more government power. French philosopher Montesquieu was the solution. His idea that Òpower should be made a check to powerÓ inspired our separation of powers. The idea was that each branch got to have its own powers and its own job and its own check on the other branches. TheyÕd be so bush fighting each other that they would leave the rest of us alone and they wouldnÕt be able to overtake our rights because theyÕd be mired in their own nonsense. So, the vesting clause is a way of saying the president is a distinct part of government with separate powers from Congress. The next section ÒHe shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same TermÓ just sets up that the presidential term is 4 years, and thereÕs a vice president. Originally, there were no term limits on the presidency as FDR figured out when he was elected to four consecutive terms. The 22nd Amendment changed all that. The next few paragraphs talk about the weird electoral process before the 12th Amendment changed it and added an also weird electoral process that we know today as the Electoral College. Interestingly, amendments to repeal the electoral college and put the US in line with every other democracy by using the popular vote have come pretty close to gaining traction, but Southern senators and congressmen usually crush any legislation or proposed constitutional amendment before it gains too much steam. The next paragraph reiterates the Òtime place and mannerÓ thing that we talked about from Article 1 that just gives the federal government power to set the dates for elections. As a reminder if you go to the US code on Cornell law schoolÕs website you can take a deeper dive into how this works into actual law. Next, we get our qualifications clause. ÒNo Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.Ó Remember from the last article that a representative has to be 25 years old and a senator 30 years old. The president has to be 35 AND different than any other place in the Constitution ,has to be born an American. This is what crushed Arnold SchwarzeneggarÕs political dreams after he went from Terminator to Governator (and thatÕs not easy to say with a Massachusetts accentÉtoo many rÕs and vowels next to each other). The next part sets up the original line of secession, but thatÕs changed by the 25th Amendment. This is in case the president leaves office from some reason due to resignation, impeachment, medical issue, or death. WeÕve got to know who to put in that spot. So, we get the line of succession. Today you can see that line by looking at the Executive Branch (all those Department ofÉagencies). So the Secretary of Health and Human Services, Education, Defense, etc. are all in the line of succession if something should prompt the president to leave office or there should be an issue. ItÕs why at the state of the union address, youÕll always notice at least one member of the line of succession missingÉtheyÕre kicking it in a bunker hoping no one dies. The next section talks about paying the president. ÒThe President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.Ó Like Congress the presidency has what is called the emolument clause. This means that the president gets certain pay and certain perks (the White House, Air Force One) for being president and thatÕs okay. But any extra deals are not ok. This is why things like the TrumpCoin program that has the current president invested in a lot of cryptocurrency is legally problematic, we donÕt know how much money is there, where it comes from, or where it goes. Now, if youÕre from the Ô80s and Ô90s like me, youÕre used to this from Donald Trump because that was basically what happened with Trump Tower and Trump University. But at the presidential level, there is a whole different and more serious set of consequences that are meant to come from stuff like this. It's unclear how much that filters down to presidential families. In the same way the members of Congress pass laws that financially benefit their families (for instance, Joe Manchin passing legislation that drove up the purchasing of epi pens when his wife and daughter had financial interest in epi pen companies). And thereÕs not a lot of investigating going on there. So, at least, tacitly (that is, silently) Congress has consented to the notion that emoluments do not count when theyÕre family. So, Jared Kusher, TrumpÕs son-in-law doing real estate deals in the middle east or Barron Trump potentially getting money in Cryptocurrency or a seat on TikTokÕs executive board seem a little shady to those of us who donÕt have rich parents, but do seem to be just the way that business works in Washington. ItÕs tough to determine where some of the laws are because the Constitution is not self-enforcing, and just as the Article 2 doesnÕt have as many powers, it also doesnÕt have as many guidelines. So, it can get confusing and lead to some issues if you have a Congress and president who like each other (and therefore look the other way when any of them behave badly) or hate each other and attack each other in motivated attacks. The Constitution left ways to get rid of folks behaving badly, but I donÕt think they anticipated the number of folks working in the government or the number of ways theyÕd behave badly, so itÕs kind of up to us to hold the government accountable (which is why we have elections, and I always remind people that in a six year period we could vote out all 435 members of Congress, 100 senators, and the president). One time, I think we should, just to remind them who theyÕre dealing with and that they work for us, but IÕm just constitutionally aggressive that way when these guys get too big for their britches and act like they donÕt owe us anything (can you tell IÕm still steam that weÕre paying the House of Representatives for not working?) Last bit of the intro to the presidency is something youÕre probably familiar with: ÒBefore he enter on the Execution of his Office, he shall take the following 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."Ó I was there in DC when George W. Bush took this oath of office, and it was cool because I was pretty close to up front. I was also there when Barack Obama said the oath, which was wild because a) my hip was in a ton of pain from having to scale a barricade to avoid being squished by a mob on my way to the Mall, and b) I was pretty sure the oath was administered wrong, but o one mentioned it for a few hours until I was back at the airport and saw it on TV. I wanted to go to all of the inaugurations, but between having young kids, the covid lockdown, and all of that, I havenÕt been to one since Obama. Maybe IÕll go to the next one! Want to carpool? (transition) Okay, thatÕs it for the 1st section, next week, weÕll cover sections 2-4 that deal with fun stuff like the state of the union, treason, and the Cabinet. Until next time, share widely, and follow us on BlueSky, Instagram, and Substack at Dr Fun Sponge. In the meantime, keep the civic flame burning bright and take care out there. (outro) The civic flame is a dr fun sponge media production in coordination with writer Amber Vayo and sound producer Matthew munyon. Thanks for listening.