Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

The nature of the presidency ranked among the most important issues the Framers considered at the Constitutional Convention.1 Reacting to how royal governors had exercised their powers, the framers of the state constitutions had generally created weak executives and strong legislatures. Likewise, the Articles of Confederation vested the national government’s powers in a unicameral congress.2 Experience during the period during which the Articles of Confederation had been in effect, however, had demonstrated to the delegates that an unfettered legislature, like an uncurbed executive, posed disadvantages, and that a legislature could not confer many of the advantages of a reasonably strong executive.3 The Framers considered several ways to organize the Executive Branch, including plural executives, selection of the executive or executives by Congress, and whether the executive should be advised by a council.

The constitution of the State of New York, which provided for a Governor who was largely independent of the state legislature, offered one possible template for the Framers. Under New York’s constitution, the Governor was directly elected by the people for three-year terms and eligible for re-election indefinitely. Because the state legislature did not select the Governor, the Governor was less beholden to it. Except with regard to appointments and vetoes, the Governor’s decisions were unencumbered by a council. The Governor was also in charge of the militia, possessed the power to pardon, and was responsible for ensuring that the laws were faithfully executed.4

The Virginia Plan offered an alternative structure to that of the New York constitution. Under the Virginia Plan, the legislature would select the executive but would not be able to change the executive’s salary during the executive’s term in office. In addition, the executive would be ineligible for re-election, thereby reducing any incentive the executive might have to be overly deferential to the legislature. The Virginia Plan also provided for a council of revision, which included the executive, that could negate national and state legislation. The Virginia Plan provided that the executive power was the power to “execute the national laws” and to “enjoy the Executive rights vested in Congress by the Confederation,” but it left open whether the executive would be a single or plural position.5

When the executive portion of the Virginia Plan was considered on June 1, 1787, James Wilson of Pennsylvania moved that the executive should consist of a single person.6 In the course of his remarks, Wilson argued for a strong executive, directly elected by the people so that the executive would not be dependent on Congress or state legislatures. Wilson further proposed that the executive be eligible for reelection and granted power to negate legislation with the concurrence of a council of revision.7 The vote on Wilson’s motion was postponed until the method of selection, term, and mode of removal of, and powers to be conferred on the executive had been considered and subsequently approved.8

Ultimately, the Framers decided on a single executive and did not provide for an executive council, which would have participated in exercising the executive’s veto, appointments, and treaty-making powers.9 Instead, the Framers granted the Senate power to “advise and consent” on appointments and treaties10 and gave the President power to require the “principal Officer in each of the executive Departments” to provide their “Opinion, in writing” on “any Subject relating to the Duties of their respective Offices.” 11

The Committee of Detail reported draft language providing that the executive be designated the “President of the United States,” 12 which the Convention accepted without discussion.13 The same clause also provided that the President’s title be “His Excellency,” 14 and, while this language was also accepted without discussion,15 the Committee of Style and Arrangement subsequently omitted it from the final text without providing any reason.16

Footnotes

1

The background and the action of the Convention is comprehensively examined in Charles Thach, The Creation of the Presidency 1775–1789 (1923). See also John Hart, The American Presidency in Action 1789 (1948).

2

3 Joseph Story, Commentaries on the Constitution of the United States § 1407 (1833) ( “Under the confederation there was no national executive. The whole powers of the national government were vested in a congress, consisting of a single body; and that body was authorized to appoint a committee of the states, composed of one delegate from every state, to sit in the recess, and to delegate to them such of their own powers, not requiring the consent of nine states, as nine states should consent to. This want of a national executive was deemed a fatal defect of the confederation.” ).

3

Thach, The Creation of the Presidency, supra note 1, at 1–64.

4

Alexander Hamilton observed the similarities and differences between the President and the New York Governor. The Federalist No. 69 (Alexander Hamilton). See N.Y. Const. of 1777 arts. XVII–XIX, reprinted in 5 Francis Thorpe, The Federal and State Constitutions (1909).

5

For discussion of the plans offered at the Constitutional Convention and the resulting debate, see Thach, The Creation of the Presidency, supra note 1 at 65–91. For the Virginia Plan, see 1 Records of the Federal Convention of 1787 20–23 (Max Farrand ed., 1911)[hereinafter Farrand’s Records].

6

Id. at 65.

7

Id. at 65–73.

8

Id. at 93.

9

The last proposal for a council was voted down on September 7, 1787. 2 Farrand’s Records 542.

10

See ArtII.S2.C2.1.1 Overview of President’s Treaty-Making Power; ArtII.S2.C2.3.1 Overview of Appointments Clause.

11

See ArtII.S2.C1.2 Executive Departments.

12

1 Farrand’s Records, supra note 5, at 185.

13

Id. at 401.

14

Id. at 185.

15

Id. at 401.

16

Id. at 597.