Article II of the Constitution

Article II, which lays out the powers, duties, and limits on presidential powers, is one of the most debated and reinterpreted parts of the Constitution. So what does it say? Today we are joined by Dr. Corey Brettschneider, a professor of political science at Brown, author of several books on presidential power, and co-host of the podcast The Oath and the Office. We go through each and every clause of Article II, but somehow it keeps coming back to the same 35 words. Be sure to check out Corey's podcast here. INCOGNI DEAL: They can't harm you, if they can't find you! To get an exclusive 60% off an annual Incogni plan, go to ⁠incogni.com/CIVICS⁠ Learn more about your ad choices. Visit megaphone.fm/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:02Nick Capodice?

  You are listening to Civics 101. I'm Nick Capodice.

• 0:05Hannah McCarthy?

  I'm Hannah McCarthy.

• 0:06Nick Capodice?

  And in one of the most 101 things we've ever done on this show, Hannah and I are continuing our meticulous journey through the articles in the Constitution. We have battled the Balrog of Congress, which is the very extensive Article I. And now we're moving on with the job that Congress and the Supreme Court are tasked with keeping in check the gosh darn President of the United States of America. Now Hannah, I wanted to keep this episode, as we say in the podcast biz, as evergreen as possible. And that has been very difficult to do.

• 0:41Hannah McCarthy?

  Evergreen, meaning that listeners can listen to this episode years from now, and it will still make sense because it's not, you know, super tied to current events.

• 0:50Nick Capodice?

  Yeah, and again, it's been hard. But while we will touch on the current administration a little bit, first and foremost, we are focusing on the words. Today is our top to bottom exploration of Article II, what the Constitution says about the executive branch. Stick around.

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• 2:43Nick Capodice?

  I want to start off with something that is not, often, simple to understand in the Constitution. And that something is people's actual jobs, what they do.

• 2:58Nick Capodice?

  So like, take a senator, for example. Where in the Constitution does it say what a senator does?

• 3:05Hannah McCarthy?

  Well, what we do know of their constitutional job description, that's in Article I. So like, senators do a ton of things, representatives do a ton of things.

• 3:15Nick Capodice?

  Yeah, and that job description of all those things, it is a full half of our Constitution. So what about the Supreme Court?

• 3:23Hannah McCarthy?

  Supreme Court is Article III. But the supreme power of the Supremes, that is not in the Constitution. That is a power they gave to themselves in 1803.

• 3:33Nick Capodice?

  And we are going to get into all that when we do an episode on Article III, by the way. But I bring all this up because Article II, which lays out the executive branch and specifically the powers of the President, it's got the most succinct, most clear job description in the entire Constitution, and it's a neat 35 words. These words are the beating heart of Article II, words that have been uttered so far 74 times.

• 4:01Speaker 04

  I, Franklin Delano Roosevelt. I, Dwight D. Eisenhower, do solemnly swear. That I will faithfully execute. That I will faithfully execute the oath. The office of President of the United States. That will to the best of my ability. And will to the best of my ability. Preserve, protect, and defend. Preserve, protect, and defend. Defend the Constitution of the United States. So help me God. So help me God. So help me God. Congratulations, Mr. President.

• 4:36Nick Capodice?

  I just want to start by saying I'm glad to be going on this journey with you, Hannah. Seven articles total in the Constitution. Now, we conquered the first article already, and now we're kind of even going further towards Mordor.

• 4:49Hannah McCarthy?

  I feel like, can I be Frodo in this one? I'm the Frodo. I like bearing burdens. I'm very pale.

• 4:57Nick Capodice?

  Is Frodo pale?

• 4:58Hannah McCarthy?

  Well, as things get harder, he definitely gets paler.

• 5:02Nick Capodice?

  You can definitely be Frodo in this metaphor. I think it's prudent to mention that I played Samwise in an eight-hour production of The Lord of the Rings at summer camp, a production which featured, by the way, a now very famous actor in the role of Bilbo Baggins.

• 5:16Hannah McCarthy?

  You're not going to say the famous actor's name?

• 5:18Nick Capodice?

  I'm not going to say his name. I'm just hoping he hears this and like remembers our friendship and gives the show a shout out. But I'm getting very distracted from our quest here, Hannah.

• 5:28Hannah McCarthy?

  I mean, Nick, the Constitution goes ever on and on, down from the preamble where it began.

• 5:36Hannah McCarthy?

  You started by saying that the presidential oath of office was the heart of Article II.

• 5:42Nick Capodice?

  I did, for a very good reason.

• 5:44Speaker 05

  My podcast, as you know, is called The Oath in the Office, and it's called that because of language in Article II, which lays out word for word in a way that is distinct from any other office, what the President has to say in the first few seconds in office to even become President.

• 6:01Nick Capodice?

  This is Corey Brett Schneider. He's a professor of political science at Brown University and the co-host of the podcast, The Oath and the Office.

• 6:10Speaker 05

  I also wrote a book called The Oath in the Office, and another called The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It.

• 6:21Nick Capodice?

  So I started my interview with Corey by saying, it seems to me like a lot of stuff in Article II feels kind of vague. And it's been reinterpreted a lot over the years. So he brought up the oath, which is the last paragraph in Section 1 of Article II. Quote, "Before he enter on the execution of his office, he shall take the following oath or affirmation, et cetera."

• 6:45Speaker 05

  So on the one hand, yes, you're absolutely right. Article II is very vague, but it's very specific when it comes to the oath. So much so that when President Obama recited the oath with Justice Roberts, he flubbed some of the words.

• 7:00Speaker 04

  That I will execute the office of President to the United States faithfully. That I will execute. Faithfully, the office of President of the United States. The office of President of the United States faithfully. And will to the best of my.

• 7:13Speaker 05

  The listeners will remember this. And there was such a worry about this that they repeated the oath that night to make sure that he actually was President. That's how serious a requirement it is. It says that the President has to pledge to preserve, protect, and defend the Constitution of the United States. That's what defines the office. And we often think about the President as sort of the leader of the country. That's language that Witcher Wilson introduced in the 20th century, kind of beyond, you know, the other branches. But what that language is meant to do is to say the opposite, that a President is not above the law, far from it, is concerned with the implementation and protection of law,

• 7:57Speaker 05

  not just that they have to respect rights, but that they have to do more than that, right? They have to preserve, protect, and defend them, not just not violate them.

• 8:06Hannah McCarthy?

  Okay, Nick, let's get into those vague parts you were talking about and all the rest. Let's do the nuts and bolts of Article II.

• 8:13Nick Capodice?

  Sure thing. Article II, it is 1,023 words. That is half the length of Article I. It's got four sections, and it lays out the executive branch. It details the office of the President and the Vice President, and a bunch of other things. And here we go. Quote, "The executive power shall be vested in a President of the United States of America," end quote. And Hannah, we got to stop right there.

• 8:38Hannah McCarthy?

  We just started.

• 8:39Nick Capodice?

  We did.

• 8:39Hannah McCarthy?

  We're not even out of the Shire, Nick. This is as far as we've ever gone before.

• 8:44Nick Capodice?

  If I take one step more.

• 8:47Speaker 05

  I mean, it seems straightforward, but notice how quickly it becomes complicated. What is executive power? And that's, on the one hand, you know, I think the best historical evidence suggests that the framers themselves had a very constrained idea of what that power was. They thought it was executing the laws, like it says.

• 9:06Nick Capodice?

  But, on the other hand, some judges and scholars have interpreted this sentence, which is called the vesting clause, to me that the president is the single person in charge of the entire executive branch.

• 9:19Hannah McCarthy?

  Right. This is the unitary executive theory, an interpretation that is tied to several recent Supreme Court decisions, specifically about who the president can and cannot fire.

• 9:31Speaker 05

  And I think it's just a weird pair, because the idea that the unitary executive is based in the text, you know, I feel embarrassed at the idea, because what the text is that they're talking about is that one sentence, and it doesn't really tell us a lot. It's not like, for instance, birthright citizenship, which says, you know, you're born in the United States, you are a citizen, we can talk about that, too. Or I'll give an even easier example, the requirement, age requirements for president or Senate or the House of Representatives, you know, those are textual, very clear. And then there are provisions that are really vague, and the executive power being vested in the president, I'd count that among the most vague.

• 10:12Nick Capodice?

  All right, moving on, the next part in Section 1 is pretty clear by comparison. The president, quote, "shall hold his office during the term of four years," end quote. Now, the 22nd Amendment enshrines the rule that you can only be elected two times as president, you only get two terms. And then it says, quote, "And together with the vice president, chosen for the same term, be elected as follows," colon.

• 10:34Hannah McCarthy?

  Colon, here's how we elect the president.

• 10:37Nick Capodice?

  Here's how we do it. This is the Electoral College. So first, it goes to say that each state appoints electors, and the formula for how many, I am not going to admit, Hannah, how old I was when I realized the number of electoral votes that a state gets is not just some sort of arbitrary number based on how many people live in that state. I mean, it is tied to how many people live in your state, but it is not arbitrary.

• 10:58Hannah McCarthy?

  The total number of senators and representatives your state is allowed to have in Congress is the total number of electoral votes you get. So Texas is apportioned to have 38 seats in the House of Representatives and two senators in the Senate, so Texas has 40 electoral votes. The fewest electoral votes a state can have is three, which a few states do have, so does Washington DC. And the state with the most electoral votes and the most representatives and senators is California, at 54 total.

• 11:29Nick Capodice?

  Yeah, and those numbers aren't static. There will always be 538 total, but when the census comes out every 10 years, those numbers can shift during reapportionment. By the way, Hannah, did you know that the term Electoral College is not in the Constitution?

• 11:43Hannah McCarthy?

  Yes.

• 11:44Nick Capodice?

  You did? I didn't know that. It's not even in the Federalist Papers, like, not once, not once. It is an old term, though. The first use I could find was in the 1760s in England, something to do with the Duke of Hanover. Interestingly. Anyways, then we move on to the longest paragraph in Article 2, how the electoral votes were tallied up, and who therefore is elected president and vice president. Now, this chunk was amended in 1804 with the ratification of the 12th Amendment.

• 12:16Hannah McCarthy?

  Yeah, it used to be that the person who got the most votes became the president, and the person who got the second most votes became the vice president, which means that, you know, especially as elections got more and more vicious, which was pretty much from the beginning, the guy who lost had to work directly with the guy who won.

• 12:34Nick Capodice?

  Yeah. The 2024 election would have resulted, under our original Constitution, in President Donald Trump and his vice president, Kamala Harris. Match made in heaven, the dream team. So here is the process for how those electoral votes get counted.

• 12:51Speaker 05

  This is where it gets complicated. The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall 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 a majority and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for president. If no person have a majority, then from the five highest on the list, the said House shall in like manner choose the president, but in choosing the president, the vote shall be taken by the states, the representative from each state having one vote. But what all of this does are two things.

• 13:35Speaker 05

  One is the idea that the, which seems innocuous, right? When I read it, like, so, how boring. The president of the Senate, the vice president is the president of the Senate, opens the votes, you know, and certifies them. That's the language that Donald Trump and John Eastman used to try to justify the plot of January 6th, because what they said was that gave the ability of the vice president, Mike Pence, the ability to say, "These ballots are invalid, they're fraudulent." Now, it doesn't say that, but that's what they read in.

• 14:09Speaker 04

  It aids to former Vice President Mike Pence told the House January 6th Committee Thursday that the conservative lawyer, John Eastman, pressured Pence to reject certification of the 2020 election, but the former vice president refused and repeatedly told the former President Trump the actions were illegal. Committee Chairman Benny Thompson applauded Pence for resisting the pressure.

• 14:31Hannah McCarthy?

  Their constitutional interpretation was that Article 2 gives the vice president the authority to certify or not certify votes, and if enough states are declared invalid, then this other procedure would kick in.

• 14:47Nick Capodice?

  Exactly.

• 14:48Speaker 05

  Which is that, under the electoral vote threshold, the states vote one by one, each state getting one vote. And what Eastman and Trump had calculated was that if you get through this combination of Pence refusing to certify supposedly invalid ballots, just to be clear, as I'm sure your listeners know, there's no evidence for the idea that these ballots were invalid, or that there was massive fraud to influence the election, but they were pretending that it was, and there were, Trump and his supporters were threatening Pence into trying to do this, all with the idea of going to the House of Representatives and kicking in this procedure that we were just reading about.

• 15:30Nick Capodice?

  It's hard to believe, Anderson, what's going on here in the United States Capitol right now. I've been around here for a long time, I've never seen anything like this, I never thought I would see an armed mob like this break windows and get into the United States Capitol and do what they're doing, and you can see what's going on. These individuals, they should be. I have to add here that after what happened on January 6, 2021, Congress did pass something called the Electoral Count Reform Act that clarified that the vice president's role in all of this is truly a formality, of just opening envelopes and saying who won each state.

• 16:09Nick Capodice?

  All right, the rest of Article 2 coming right up. Maybe you're aware of data brokers, maybe you're not, you should be. And as much as I wish that data brokers was just Brett Spiner managing real estate, it is not. Data brokers are out there, thousands of them, and what they're doing is they are collecting every single thing about you that exists on the internet. And they're taking that huge pile of data, and they are selling it to the highest bidder. And unlike commander data on the USS Enterprise, these guys are up to no good.

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• 18:49Nick Capodice?

  Holiday season is coming, and I don't think I have to tell you this might be a tough one because things are expensive in the fall of 2026. Everyone I know is looking for ways to make a little extra money prowling around the side hustle subreddits. But I will say, if you're looking to sell something to launch a store fast before the holiday rush, Shopify is the one stop shop platform for making a professional looking store without touching a line of code. You can sell anything and you can sell it anywhere that people shop online. You can have it done in minutes and you can launch before Black Friday, that time of year when more people are already shopping and ready to buy. So if you're ready

• 19:34Nick Capodice?

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• 19:53Hannah McCarthy?

  You're listening to Civics 101. I am Hannah McCarthy/Frodo Baggins.

• 19:56Nick Capodice?

  I am Nick Cappadice/Samwise Gamgee or Gamgee.

• 20:00Hannah McCarthy?

  I don't know. Ask Tolkien. And we are journeying through Article 2 of the US Constitution. So we've gone through the process of electing a president. What comes next?

• 20:13Nick Capodice?

  All right. Article 2, Section 1, Clause 5. This next clause is about the requirements for becoming a president. So you gotta be at least 35 years old. You have to have been a resident in the US for at least 14 years and, quote, "No person except a natural born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of president."

• 20:38Hannah McCarthy?

  And everybody, one of Nick's favorite trivia questions is, who was the first president born in the United States of America? And Nick got me on this one the first time around. It is Martin Van Buren.

• 20:53Nick Capodice?

  Yeah, because technically there wasn't a United States until 1776. So for example, George Washington was born in the colony of Virginia, but not in the United States. Anyhow, this requirement has come up a few times during presidential elections. President Chester A. Arthur was rumored to have been born in Canada. He was not. His father lived in northern Vermont and he traveled between the two countries pretty frequently. Barry Goldwater, Hannah, interestingly, did you know this about him?

• 21:22Hannah McCarthy?

  What?

• 21:22Nick Capodice?

  Goldwater was the candidate in 1964. He was born in the Arizona Territory, three years before it became a state. John McCain was born in a US naval base in the Panama Canal Zone. And finally, Barack Obama was born in Hawaii in 1961, three years after it became a state. But due to conspiracy theories that he was actually born in another country, President Obama was the subject of dozens of state and federal lawsuits attempting to remove him from office.

• 21:53Hannah McCarthy?

  Donald Trump today finally submitting to the truth. President Barack Obama was born in the United States, period. A seven second statement after 28 minutes of buildup, trying to reverse a position Trump's held for five years, championing a conspiracy theory.

• 22:13Nick Capodice?

  You want to move along?

• 22:14Hannah McCarthy?

  Yeah, I do.

• 22:17Nick Capodice?

  All right. The next clause is about what happens if a president is removed from office by, quote, "death, resignation, or inability to discharge the powers and duties of the said office," end quote.

• 22:27Hannah McCarthy?

  The whole shebang goes to the vice president.

• 22:30Nick Capodice?

  Yeah. Does it, Hannah? Is that person the president? Or is that person just acting like one? Is it a pipe or a picture of a pipe?

• 22:41Nick Capodice?

  After two centuries of presidents dying or nearly dying in office and several close calls where the succeeding Veep also nearly died around the same time, this section was clarified with the passage of the 12th, the 20th, and the 25th Amendment, which are all fascinating amendments that I can't get into right now. Now, penultimate clause in Section 1 of Article 2, "The president may receive compensation for the job. That amount can be raised or lowered during their elected term." So it has been $400,000 a year since 2001. And then there's this part. They, quote, "shall not receive within that

• 23:19Nick Capodice?

  period any other emolument from the United States or any of them," as in those states.

• 23:27Hannah McCarthy?

  Like individual states.

• 23:28Nick Capodice?

  Right.

• 23:28Hannah McCarthy?

  Yeah. So this is the presidential emoluments clause.

• 23:31Nick Capodice?

  It is. That word is one I had not heard until 2016. Emolument means compensation, basically, payment for doing something. But this section, Hannah, it is crucial. There are no fewer than three emoluments clauses in the Constitution. The other two are in Article 1. Here again is Dr. Corey Brett Schneider.

• 23:52Speaker 05

  To the founders, this was just the core. It was like the oath itself. What an emolument is, is essentially is being able to profit from the office. And that is not just some abstract idea. It's really spelled out in these emoluments clauses that essentially are saying you can't use the office for your own profit. And so George Washington, in his inaugural address, says that, you know, he says, "I will pledge to take no emoluments in the first inaugural." And to say the least, it's relevant to our current moment where there is, you know, on this one, I'm not going to be neutral. There is a president of the United States who seems to be defying these emoluments clauses.

• 24:32Hannah McCarthy?

  I do remember back in 2017, before we hosted Civics 101, there was an episode on emoluments because everyone was talking about it.

• 24:40Nick Capodice?

  It was such a hot topic. One reason being, when Trump was elected the first time, he did not divest himself of his myriad hotel businesses. People from all over the world stayed in those hotels. They paid for lavish things. There is a big potential to buy influence. So there were a bunch of lawsuits and the Supreme Court finally got around to this after Donald Trump left office and said, essentially, "Well, he's not the president anymore, so let's move on."

• 25:08Hannah McCarthy?

  And move on, we did.

• 25:10Nick Capodice?

  It is now official. CNN projects that Donald Trump has been elected president, defeating Vice President Kamala Harris and making a political comeback unlike any. One reporter at The New Yorker said in January of 2026 that a very conservative estimate of how much money Donald Trump has made in the first year of his second term is over $4 billion. But while the Constitution says you can't do this, it does not say what happens if you do do this. There is no enforcement clause. So we too shall just move on.

• 25:48Nick Capodice?

  Last part of this section is the oath of office, which we talked a little bit about earlier, but it does bear revisiting.

• 25:55Speaker 05

  So my favorite way of explaining it is to quote and explain the way George Washington took this oath so seriously, especially in his second inaugural. It's the shortest ever given, and I think the most powerful inaugural address. What he says is, "Look, I just took the oath of office and it pledges me to have fidelity to the rule of law and to the Constitution. And if I violate it, I want the people assembled here to upbraid me." That's the word that he uses, criticize me. "And if I really violate it," this is my favorite part, "subject me to constitutional punishment." And what a profound moment,

• 26:39Speaker 05

  you know, Washington is really saying like, "I'm not a king. I'm nothing like a king. I'm a temporary office holder and there are obligations and duties of this office that are spelled out in the oath to respect the rule of law."

• 26:52Nick Capodice?

  Can't get more OG than George Washington, Hannah. All right. We are nearly there. The last few parts of Article 2, right after a quick break.

• 27:10Nick Capodice?

  Holiday season is coming, and I don't think I have to tell you this might be a tough one because things are expensive in the fall of 2026. Everyone I know is looking for ways to make a little extra money prowling around the side hustle subreddits. But I will say, if you're looking to sell something to launch a store fast before the holiday rush, Shopify is the one stop shop platform for making a professional looking store without touching a line of code. You can sell anything and you can sell it anywhere that people shop online. You can have it done in minutes and you can launch before Black Friday, that time of year when more people are already shopping and ready to buy. So if you're ready

• 27:54Nick Capodice?

  to launch your business before Black Friday, go to Shopify.com/civics to start your free trial. That's Shopify.com/civics. Just go to Shopify.com/civics today to hear your first.

• 28:13Speaker 06

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• 28:42Speaker 02

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• 29:16Hannah McCarthy?

  We're back. We're getting to the end of Article 2 here. All right, what's left? What do we got?

• 29:20Nick Capodice?

  All right, Hannah, we're basically at like, what's the big battle on the two towers? Helms Deep?

• 29:24Hannah McCarthy?

  Yeah, but that's, there's still a long way to go after Helms Deep.

• 29:28Nick Capodice?

  We're kind of at the point where Legolas sees an elephant for the first time. That's kind of where we are. We got Sections 2, 3, and 4, but those are all much shorter than Section 1. Section 2 starts with, quote, "The President shall be Commander in Chief of the Army and Navy of the United States."

• 29:44Hannah McCarthy?

  Commander in chief, but you can't declare war.

• 29:47Nick Capodice?

  Exactly.

• 29:48Speaker 05

  One thing to say is the framers, you know, did a lot to try to make it clear that Article 2 was the opposite of creating an absolute monarch or anything like it. And one way that they did was they took monarchical power, in which, for instance, the ability to start a war and carry it out was held in the same person, in the monarch, and divided them. Congress has the power to initiate, or the framers use the word, declare war. And now this is the other side of it. The President is the Commander in Chief. Once the war has been declared, he or she has the obligation of commanding the military and, and, and winning the war, carrying it out.

• 30:28Speaker 05

  Very different from the modern understanding of many presidents of both parties, I should say, and, and many scholars of so-called originalism, because I, I really don't think there's any doubt about it. You know, defensive war, you know, that, that's one thing, when a war is already underway, that's one exception to this. But aside from that, you want to start a war, that's Congress, not the President.

• 30:52Hannah McCarthy?

  To be clear here, the last time the US declared war was 1942, when three countries were added to the original World War II declaration from the previous year.

• 31:01Nick Capodice?

  Yeah. So, the War Powers Resolution of 1973 dictates that a President has 60 days after a military action to get Congress's approval, or you gotta get out of there.

• 31:14Nick Capodice?

  Now, the next part in this, this is all in the same paragraph, is the pardon power. Pardon power is huge, to, quote, "Grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

• 31:27Hannah McCarthy?

  Do you know how many people have been pardoned over time by Presidents?

• 31:31Nick Capodice?

  I looked it up. Thousands, hundreds of thousands. So, Andrew Johnson pardoned over 7,000 former Confederates after the Civil War, and Jimmy Carter. Jimmy Carter pardoned over 200,000 people for avoiding the draft in the Vietnam War.

• 31:46Hannah McCarthy?

  And the pardon power is absolute, right? Like, anyone can be pardoned for anything.

• 31:51Nick Capodice?

  Anything, except for impeachment. An impeached and removed judge, or senator, or president cannot be pardoned by a President. All right, next part. The President can make treaties, with 2/3 of the Senate approving it, and the President can, with the advice and consent of the Senate, nominate, quote, 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, end quote.

• 32:23Hannah McCarthy?

  And this doesn't have to be the 2/3's consent of the Senate, just a majority.

• 32:26Nick Capodice?

  Just a majority for appointments.

• 32:28Speaker 05

  The President can't just pick a judge. He doesn't pick Justice Alito and put him on the Supreme Court. Doesn't even pick Cabinet Ministers, the Attorney General, for instance. We just went through this. Can't just be put permanently in that position unless there is, and it's not both Houses of Congress here, it's the Senate, a majority of the Senate approves. And that really is a fundamental check on the President's power. There was a debate, you know, in the 18th century, very early on, about whether or not you had to get permission from the Senate as well for removal. And that has gone in the direction of the unitary executive, where the answer is really no, that, that's up to the President. But what certainly remains, and there is no debate about this, this isn't a controversial

• 33:13Speaker 05

  thing, maybe the main check on monarchical power by a President is the idea that all the executive officers, judges, ambassadors, have to be approved by a majority of the Senate.

• 33:27Nick Capodice?

  The last part of Section 2 is that the President may fill up any vacancies during the recess of the Senate.

• 33:34Hannah McCarthy?

  Okay, how often does that actually happen?

• 33:36Nick Capodice?

  Uh, not very often. You know, it sounds like it could be really big, but when you consider the Senate isn't in recess all that much, and that there has to be a vacant position, it hasn't come up a ton. The Supreme Court ruled in 2014 that anything less than 10 days is too short a recess for this kind of appointment, and that it can't happen when the Senate is doing what are called pro forma sessions.

• 33:58Hannah McCarthy?

  All right, that's the thing where just one senator goes to DC and gives a little speech to an empty Senate chamber on any topic they like, and that means the Senate is still in session.

• 34:08Nick Capodice?

  Yeah, it's kind of like jiggling your mouse every 10 days.

• 34:12Nick Capodice?

  Section 3 is a fun one. Here it goes, quote, "He 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."

• 34:28Hannah McCarthy?

  You could kind of think of the State of the Union as the President's self-evaluation performance review.

• 34:34Nick Capodice?

  They're always like, "We're doing great. The State of the Union is..." What is it most often? Strong?

• 34:39Hannah McCarthy?

  I think so.

• 34:40Nick Capodice?

  Gerald Ford once said, "The State of the Union is not good."

• 34:46Nick Capodice?

  It's, it's not good. And then it goes on to say that the President may, on, quote, "extraordinary occasions," end quote, convene both Houses. So, this is usually to discuss an emergency, a potential war declaration, a nomination they want to get through, et cetera. And then it goes on to say that the President may adjourn Congress when Congress can't agree when to adjourn. And this has never happened. Never, never, never. And then that the President receives ambassadors and public ministers. And finally, Hannah, last little part of Section 3, it is a teeny, tiny little sentence. I am going to take a dramatic pause before reading this.

• 35:27Nick Capodice?

  "He shall take care that the laws be faithfully executed."

• 35:32Hannah McCarthy?

  That's really the whole job.

• 35:33Nick Capodice?

  That's it.

• 35:35Speaker 05

  Big one. I think maybe the most important and neglected sentence, because, notice what it's doing, right? It's using very similar language to the oath. The oath talks about faithful execution as well, of the office. And here, we're talking about faithful execution of the laws. So, that language really, really matters.

• 35:54Nick Capodice?

  This is called the "take care" clause, and it is maybe the most debated, most widely interpreted sentence in the whole Constitution. So, is it a power? Can the President do anything in the service of executing laws? Or is it a restriction? A President has to be faithful to the Constitution when executing laws? And tied to that "take care" clause, Hannah, is our very last paragraph. What happens when you don't take care? The final section of Article 2 is Section 4, which says, quote, "The President, Vice President, and all civil officers of the United States shall be removed from office

• 36:33Nick Capodice?

  on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors."

• 36:41Hannah McCarthy?

  And while no President has been removed from office, three Presidents have been impeached. Andrew Johnson, Bill Clinton, and Donald Trump, twice. And if I'm not mistaken, Nick, the charge has always been high crimes and misdemeanors.

• 36:54Nick Capodice?

  Every time. Always different, high crimes and misdemeanors, but none so far for treason or bribery.

• 37:02Nick Capodice?

  So, we have talked a lot about limits in this episode, and impeachment is one of those. The framers debated long and hard about what should justify an impeachment. Ben Franklin said it was for when the executive, quote, "rendered himself obnoxious."

• 37:23Nick Capodice?

  Like the Mark Twain of the-

• 37:24Hannah McCarthy?

  I think he got to the point. I think that's what Ben Franklin did.

• 37:27Nick Capodice?

  He was just like, eh.

• 37:28Hannah McCarthy?

  I love reading his stuff.

• 37:29Nick Capodice?

  Yeah.

• 37:30Hannah McCarthy?

  He's like, "Come on."

• 37:31Nick Capodice?

  Alexander Hamilton said in Federalist 65 that it was, quote, "Those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust," end quote. But whatever the cause, it is a limit.

• 37:49Speaker 05

  We often talk about presidential power, but notice what this is about. It's all about, what Article 2 really is about is presidential duties, obligations to obey the law, limits on what the President is able to do. And I think that is consistent throughout, even in places where we thought the power was unlimited. Think of the way people talk about the war power as if it's unlimited, or the pardon power, and even there, there are limits. Certainly in the war power, more controversially in the pardon power. And I think that's all consistent with the idea that the framers weren't creating a monarch. They were, thought they were creating this limited branch that was at most, you know, not more than co-equal to the other branches.

• 38:32Speaker 05

  They thought it would be, at the founding at least, even weaker. And, you know, the language is in there, the language of obligation and duty, rather than the language of power.

• 38:50Nick Capodice?

  And that, my old friend, is Article Two. We are like three quarters done with the whole Constitution. Like, the rest are very important. There's a lot more articles, but they're very short. We are like almost to Mount Doom.

• 39:03Hannah McCarthy?

  Which is, I mean.

• 39:07Nick Capodice?

  Isn't that the part?

• 39:08Hannah McCarthy?

  Yeah, but to say, like, we barely got anything left. Just, just the Mount Doom part. We're almost at the part where Sam is like, maybe I should carry it for a while.

• 39:18Nick Capodice?

  Share the load. Wait, you could do a thing. We could do a thing. We could do a flip, a flipsey. We could do a verso where you do the next article and I help you out.

• 39:28Hannah McCarthy?

  You're all, you've got this, man. You've got this.

• 39:34Nick Capodice?

  This episode was made by me, Nick Capodice, with you, Hannah McCarthy. Thank you always.

• 39:38Hannah McCarthy?

  Thank you.

• 39:39Nick Capodice?

  Huge thanks to Corey for getting us through the whole article. I got a link to his podcast, The Oath and the Office, in the show notes. He and John Fugelsang get much deeper into the stuff we touched on today. You should check it out. Civics 101 staff includes Rebecca Lavoy, Taylor Quimby, Marina Henke, and Dana Cataldo. Music in this episode from Blue Dot Sessions, Epidemic Sound, and the unimpeachably talented Chris Zabriski. Civics 101 is a production of NHPR, New Hampshire Public Radio.

• 40:15Nick Capodice?

  Oh, you know, we're at that battle where the ghosts come out.

• 40:18Hannah McCarthy?

  But it's, it's Frodo and Gollum and Sam just, just walking.

• 40:24Nick Capodice?

  We're kind of like at the Elvish Waybread point. We're kind of at like when the ghosts come out of the mountain and win the fight. We're kind of at the point where Legolas sees an elephant for the first time. That's kind of where we are. We got Sections Two.

• 40:38Hannah McCarthy?

  Not an elephant.

• 40:39Nick Capodice?

  An orlefant. Isn't it called an orlefant?

• 40:42Hannah McCarthy?

  Olefant.

• 40:43Nick Capodice?

  Olefant, like Timothy, like Timothy Olefant?

• 40:46Hannah McCarthy?

  It's not orlefant.

• 40:47Nick Capodice?

  I thought Legolas was like, it's an orlefant.

• 40:50Hannah McCarthy?

  He has an English accent.

• 40:51Nick Capodice?

  It's an orlefant. He wouldn't be like, well, there's an orlefant, sir.

• 40:55Speaker 02

  What does it really take to start a startup? I'm David Rosenko, entrepreneur, investor, and the host of Leap Forward. In each episode, I go behind the scenes with successful founders and someone who knew them before they were famous: their college roommate, their first employee, or their mom. To hear the sometimes uncomfortable but very real inside stories of how companies actually get built. Companies like Reddit, Airbnb, or Twitch. Listen to the new season of Leap Forward for never-before-heard stories behind the world's most iconic companies.

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• 42:15Hannah McCarthy?

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