Sec. 1.-The President Cl. 3.-Election Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.]1 Clause 4.-DATE OF ELECTION. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. See Revised Statutes, sec. 131, for law. Clause 5.-QUALIFICATIONS. No 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Age of thirty five Years, and been fourteen Years a Resident within the United States. 1 This clause, in brackets, was superseded by Amendment 12, p. 647. Sec. 1.-The President Clause 6.-REMOVAL. Cl. 6.-Removal In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law, provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. Clause 7.-COMPENSATION. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased 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. Clause 8.-OATH. Before 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." The appointment of electors and the mode thereof belong exclusively to the States, but the time of choosing them and the day upon which they are to give their votes is determinable by Congress. This clause and that in the twelfth amendment relative to the opening of the vote confer upon Congress the only powers it possesses with relation to the appointment of electors. Where a State law fixes a date for the meeting of presidential electors different from that provided by Congress, if that provision is separable it may be rejected and the act remain otherwise valid. The States have power to punish for illegal voting for presidential electors. McPherson v. Blacker, 146 U. S. 35. In re Green, 134 U. S. 379. U. S. v. Reese, 92 U. S. 214. Section 2.-POWERS AND DUTIES OF PRESIDENT. Clause 1.-COMMANDER IN CHIEF-PARDONS. The 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; he 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, and he shall have power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. Commander in Chief In General As Commander in Chief the President is authorized to direct the movements of the naval and military forces placed under his command, and to employ them in a manner which he may deem most effectual. By virtue of his position he has undoubted power to establish rules and regulations for the government of the Army and Navy, or may modify or repeal or create them anew, and such rules and regulations can not be questioned on the ground that they are unwise. Army and Navy regulations made pursuant to the authority conferred upon the President have the force of law. When promulgated through the Secretary of War they must be received as the acts of the President, and as such are binding on all within the sphere of his authority. Fleming v. Page, 9 How. 603. See also Kurtz v. Moffitt, 115 U. S. 503. The power of the President as Commander in Chief must be exercised in accordance with the laws and usages of nations, and in the manner prescribed by Congress; otherwise his orders will afford no protection to an officer acting under them. An instruction to an officer can not justify an act which without it would have been a trespass. He is authorized by law, previous to a declaration of war by Congress, to meet insurrection or invasion by military force. He may, jure belli, declare a Sec. 2.-Powers and Duties of President Cl. 1.-Commander in Chief blockade of hostile ports in a civil war as well as in a foreign war, or may employ secret agents to enter the enemy's lines to obtain information regarding the latter's strength, resources, and movements, and direct payment therefor out of the contingent fund. Otis v. Bacon, 7 Cranch 589. Little v. Barreme, 2 Cranch 170. Prize Cases, 2 Black 668. Totten v. U. S., 92 U. S. 107. See also Tracy v. Swartout, 10 Pet. 80. Matthews v. McStea, 91 U. S. 12. The President can not establish a prize court or confer power to condemn prizes upon any inferior officer, civil or military. In case of insurrection he may accord to the enemy the character of belligerents. Jecker v. Montgomery, 13 How. 515. Power to Convene General Courts-Martial It is within the power of the President of the United States, as Commander in Chief, to validly convene a general courtmartial, even where the commander of the accused officer to be tried is not the accuser. Swaim v. U. S., 165 U. S. 558. Power to Repel Invasion and Suppress Insurrection The President does not initiate war, but by the acts of Congress of February 28, 1795, and March 3, 1807, he was authorized to call out the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States. Prize Cases, 2 Black, 668, which also see as to power of the President to accord belligerent rights to insurgents. When Commander in Chief of Militia The President is made Commander in Chief of the Army and Navy of the United States at all times, and Commander in Chief of the Militia only when called into the actual service of the United States. Johnson v. Sayre, 158 U. S. 115. Departments The word "departments" clearly means the same thing as in the clause giving Congress the power to vest the appointment of inferior officers in the heads of departments. The "principal officer" in this clause is the equivalent to the "head of the department" in the other. U. S. v. Germaine, 99 U. S. 511. Sec. 2.-Powers and Duties of President Conquered Territory Cl. 1.-Commander in Chief In his capacity as Commander in Chief the President may order the invasion of the enemy's territory, but such conquests can not enlarge the boundaries of the Union. According to the usages of nations, if a nation be not entirely subdued by another, the holding of conquered territory is to be deemed a mere military occupation until its status is determined by the treaty of peace, and the military may hold and occupy conquered territory without incorporation so long as it may seem appropriate to Congress. Where territory is ceded by a treaty of peace the occupation is confirmed, but the territory thus acquired becomes appurtenant to and not a part of the United States; actual incorporation as a part of the Nation can follow only after the action of Congress. Fleming v. Page, 9 How. 615. American Ins. Co. v. Canter, 1 Pet. 542. Downes v. Bidwell, 182 U. S. 342. New Orleans v. Steamship Co., 20 Wall. 398. U. S. v. Huckabee, 16 Wall. 434. It is the duty of the President so long as war continues to provide for the security of persons and property in territory taken from the enemy's control, and to this end he may institute a temporary military government, which will continue to be a valid government until the ratification of a treaty of peace and the provision by Congress for the formation of another government. The establishment of provisional courts is a part of this power, as also is the collection of duties in the conquered territory. The Grapeshot, 9 Wall. 132. Texas v. White, 7 Wall. 730. Cross v. Harrison, 16 How. 191. Burke v. Miltenberger, 19 Wall. 525. Downes v. Bidwell, 182 U. S. 346. See also Mechanics', etc., Bank v. Union Bank, 22 Wall. 296. Lewis v. Cocks, 23 Wall. 469. U. S. v. Castillero, 2 Black 358. Dooley v. U. S., 182 U. S. 234. Leitensdorfer v. Webb, 20 How. 176. The creation of the provisional court for Porto Rico between April 11, 1899, when ratifications of the treaty by which it was ceded were exchanged, and May 1, 1900, when act of April 12, 1900, establishing a civil government, took effect, was within the scope of the military power, acting by authority of the President as commander in chief, though peace then prevailed, and courts established under Spain were open. Santiago v. Nogueras, 214 U. S. 260. |