Hello, and welcome back to the Civic Flame, a podcast where we take a look at the US Constitution and how it isÑor isnÕtÑshaping the government today. IÕm your host Amber Vayo, and IÕm a professor of law and policy at Worcester State University. IÕm very excited to talk to you today about Article 2 of the Constitution because the presidency is such a good example of how the constitution is not self-enforcing. What does that mean? Well, if you tuned in last week, you already know, but mostly it means that the office of the president (no matter who is the president at the time) has WAY more power than the Constitution ever intended. And that can work in good (think mobilization during WWII) and bad (think about Japanese internment during WWII) ways. Last week we talked about some structural stuff. This week, weÕll get into Article 2 sections 2-4. My favorite Constitutional Website, the National Constitution Center is down today, so IÕm going to my second favorite constitutional resource (and my first favorite online legal resource: Cornell Law school. If youÕre ever looking for legal stuff online, national Constitution center is very readable and easily accessible, but for those deeper dives the Legal Information Institutie at law.cornell.edu is top tier. LetÕs go! (transition) Remember how Article 1 was in 10 sections and it took us months to get through? Yup, thatÕs because they were meant to have all of the power in the system. Today, weÕre going through sections 2-4 and that will end our look at Article 2 because there is not more article 2 after that. The presidency was never supposed to be very powerful. But letÕs take a look at what they can do. Section 2 starts with ÒThe President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.Ó This is the one weÕre most familiar with and it does a few things. One is that it gives the false illusion that the president makes decisions to go to war. RememberÑunder our constitutional authority at leastÑit is CongressÕ power to declare war, not the president. But because of the Commander in Chief power (and because the rise in presidential war powers broadly, the presidency has taken a lot more powers than the Constitution intends (and notice IÕm saying the presidency rather than any specific president because the problem is bi-partisan and crosses generations, and the powers stay with the office regardless of who takes them in the first place). The other thing this section notes is the Òmilitia.Ó Today we would consider that the National Guard. Remember, at the Founding we didnÕt really have a standing army, and a standing army was not common until after WWII. So, if someone wanted to saddle up, they had to build the army first. This meant that for many states, especially as states were expanding West and meeting resistance from the indigenous people, we were kicking off their landÑthe biggest defense were national guard. And all states today have National guards, you know, in Wisconsin tries to invade the upper peninsula or and the Michiganders have to hold them off until the feds arrive. But section 2 also allows the president to federalize the national guard. This was a bit of a deal during the early 2000s when national guard units were being sent to Iraq and Afghanistan. One of the issues with the response to Hurricane Katrina was actually that a lot of the Louisiana National Guard was deployed overseas instead of where they were meant to be to help their own people (there was also an issue of something called stop-lossing in which the government prevented people who had completed their military terms of service or contracts and tried to keep thema round, but thatÕs a different discussion. But because the president can direct the military and is the commander in chief, it does give people the wrong impression that war powers are a presidential thing, which, as you now know, is a congress thing. Other specific presidential powers include cool stuff like asking for memos: Òhe may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.Ó Okay, not ideal, but this does help establish all of that executive branch bureaucracy that we talked about for (so thatÕs the cabinet like Department of Defense, Department of Housing and Urban Development, etc.). Next it says, Òand he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.Ó This one gives you two things: one, the Constitution was REALLY serious about the House having the sole power over impeachment. Even a presidential pardon canÕt change that. Two is the pardon power. This is a big deal and has typically gone through processes with the Department of Justice. We can talk later about presidents who have used this power properly and those who have not. But pardon power is a big executive power and even the executive of states (Governors) have this power. But the key here is the president can only pardon for federal crimes (crimes against the United States) rather than state crimes. The next section basically sets up all of those confirmation hearings that we see going on when someone gets nominated to the supreme court or the new president comes in and gets their cabinet set up. ÒHe shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.Ó What you see here are two things: the president has a lot of the diplomacy and foreign relations powers. And two, the senate is a check on the president. But sometimes this goes sideways like Senator Mitch McConnell refused to hold confirmation hearings for Merrick Garland because President Obama had only a 9 months left in office but pushed Amy Coney Barret through even when the 2020 election had already stated and Trump only had a few weeks left in office. WeÕll talk another time about the politicization of these confirmation hearings, but for now, just know that this is another one of those parts of our checks and balances. Then you get the recess appointment which gives the president power to put someone in a job if Congress is not showing up for work ÒThe President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.Ó Section three sets up the state of the Union and some procedural stuff. ÒHe shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.Ó And thereÕs some more procedural stuff in there, but then we get to the important part: Òhe may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers (more diplomat powersÓ; Then you get the big one: Òhe shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.Ó When you hear about the Òtake care clause,Ó this is what people are talking about. The president is required to take care that the laws are observed. It's interesting to see that so many of the presidents powers are not so much powers as obligations, and I think that is an interesting difference between the presidency and Congress in our system. The president is a guard to make sure the laws are executed but Congress gets to make those laws. And in this same vein, the final section of article 2 says Òthe President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.Ó Really emphasizing that there are major constraints on this office. So itÕs interesting to see the ways the US president has reshaped the role of the office itself. Through getting the White House, Air Force One, the Motorcade, having the ability to stand up in front of any microphone, and as important, being a single person rather than 535 members of Congress, the presidency has the illusion of more power. And that illusion has been used to create the reality of more power. This happens both because of the ideas of what the presidency should be but also because it allows Congress to abdicate responsibility. People in Congress who like the president ride on the presidentÕs coattails while being able to distance themselves from criticism, while those who oppose the president can criticize the presidentÕs policies without having to propose legislation of fight with their colleagues. So, as George Carlin would say, Òbusiness as usual in the Untied States.Ó Not to be too cynical about it, but when Congress fails to do its job, this is what happens. And sooner of later itÕs going to put a big burden on the political and legal system. (transition) Well, thatÕs that for article 2! Can you believe it? Just wait until we get to article 3 next time. In the meantime, share widely and follow us at Dr Fun Sponge on BlueSky, Instagram, and Substack. As we move into the holidays, weÕll take a short break over Turkey Day but he back. Take care out there, and keep the civic flame burning bright. (outro) The civic flame is a Dr Fun Sponge Media production in coordination with writer Amber Vayo and Matthew Munyon, sound producer. As always, thank you got listening.