Q41: Which of these is a power of the president?

A. Sign or veto laws 
B. Enforce laws
C. Chief diplomat 
D. All of the above

Q45: Who appoints federal judges? 

A. The President, with the consent of the Senate 
B. The President, with the consent of the House
C. The Senate with the consent of the House
D. The Chief Justice appoints other federal judges

Question Background Information

As James Madison observed in a 1793 essay, “The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must presuppose the existence of the laws to be executed.”

Historically, executive power (which in the U.S. belongs to the president) was focused in two spheres: 1) setting foreign policy and 2) enforcing (or “executing”) laws. Making the laws, on the other hand, and setting domestic policy, would be the role and responsibility of the legislature.

The U.S. Constitution largely follows this arrangement, while limiting and reallocating certain powers between the executive and legislature.  In general, Article I gives Congress only the “legislative powers herein granted”, while Article II holds that “the executive power shall be vested in a president of the United States of America,” though it also goes on to elaborate some of the specific powers.

Not only must he or she take care that the laws be faithfully executed, but the President is assigned to be commander-in-chief of the military. He or she also serves as chief diplomat, and appoints, with the consent of the Senate, federal judges and members of the executive branch.

Finally, preserving a distribution of powers already present in the British monarchy, the president receives a part of the legislative power: the power to approve or block legislation by signing or vetoing bills passed by Congress (though Congress itself still retains the ultimate legislative power through its ability to override a president’s veto).  At the same time, the Constitution also moved certain traditional powers from the executive and puts them in the hands of Congress when it comes to foreign policy, namely the power to declare war and ratify treaties.

In his 1913 autobiography, former President and then recent candidate Theodore Roosevelt argued that the president should be re-conceived to be a much more active figure, authorized to act broadly on behalf of the public good, rather than needing specific constitutional authorization for his or her actions, a view described as the “stewardship” theory.  According to Roosevelt, the president should be “a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin.” By way of contrast, Roosevelt stated that he “declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.” In other words, the president could do whatever he could for the people unless specifically banned by the Constitution.

Former president William Howard Taft, who would soon be appointed to the Supreme Court, defended the more traditional understanding of presidential power in his own 1916 book:

The true view of the executive is….that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest.

In Taft’s view, that is, no single person should have the power to do whatever he or she wants as president simply by claiming to be working for good. Rather, the president must respect the limits of the office and work within the powers it is given.   As Taft noted--reminding his readers he had been a member of Roosevelt’s own cabinet—even the examples Roosevelt gave to justify the need for a broader “stewardship model,” such as his previous intervention in California’s anti-Japanese law, actually came from his constitutional duties—such as enforcing an international treaty ratified by the United States. In other words, even Roosevelt had been able to achieve his ends by following the powers and obligations given to the office by the Constitution.

Nonetheless many would argue that the modern presidency more closely resembles Theodore Roosevelt’s wide-ranging conception. Today, the president exercises, in practice, much of the law-making power formally assigned to the legislature by the Constitution. This is because Congress has delegated much of its power to administrative agencies that are typically part of the executive branch but that are ostensibly working to execute Congress’ wishes.  These agencies are sometimes referred to by those concerned about the consolidation of power away from lawmakers as “the administrative state.”

As it had in earlier cases, in 1928, the Supreme Court, in the case of J.W. Hampton v. United States, upheld the limited delegation of a power from Congress to the president, saying that as long as an “intelligible principle” existed by which Congress’s legislative will was made clear, then the power could be delegated to the executive branch to carry it out. Thus, for then-Chief Justice Taft writing the opinion, Congress’s essential role in policymaking was preserved. (The specific example in that case was whether Congress could instruct the executive to implement a tariff at certain times (but not at others) based on whether certain conditions Congress described were occurring. In other words, the executive’s job was to decide which condition held and then apply Congress’s rule accordingly, rather than decide what the policy should be).

The scope of delegation subsequently expanded beyond such conditional legislation, granting the executive much more discretion in setting the details--and often much of the core of-- policy. That is a key part of why the presidency has become much more powerful—one now reads about “executive orders” or executive branch “rulemaking” that would seem, to the layman, to be setting important policy, which is the role of the legislature. This delegation has been justified on the grounds that much of modern life is too technical and thus requires both more expertise and flexibility than Congress itself can muster; others argue that it has resulted in the collapse of the separation of powers and the consolidation of real political power in an unelected bureaucracy.

Additional Content

Offline Activity


The National Constitution Center conducted an exercise in which three teams of legal scholars--one libertarian, one progressive, and one conservative—were each invited to envision themselves as a constitutional convention drafting a new Constitution or modifying the current one, as well as writing an essay explaining their reasoning. Each team chose to keep the basic organization of the U.S. Constitution and most of its text; many of the changes were envisioned by the drafters as clarifications to more clearly enforce or restore the original Constitution’s text; others to modify the Constitution to correct for what the re-drafters believed were obsolete or non-functioning provisions. This exercise will have students look to the sections discussing the powers of the executive branch as well as the current section, and consider which changes they believe are clarifications, which are improvements, and which are worse than the current Constitution. 

So that the students will look at the merits of the texts themselves, the alternative constitutional texts are identified as A, B, and C, listed in the order on which they appear on the National Constitution Center, rather than by the ideology of the scholars. A thus corresponds to the Libertarian Constitution, B to the Progressive Constitution, and C to the Conservative one.


  • Print Article II: US Constitution and National Constitution Center Draftings
  • Print Article II: US Constitution and National Constitution Center Draftings Worksheet
  • You might also consider reading the introductory essays at the National Constitution Center website.

Required files


  1. This activity works well as an individual assignment. However, depending on the age and/or skill level of the students, you may want to have them work in larger groups. 
    • If that is the case, divide the class into pairs based on the students’ individual levels. Group A is the group that needs some extra support. Group B is the core group that has the core knowledge to complete the activity. Group C is the enrichment group that has mastered the material; Group C students are prepared to extend their knowledge. 
      • When using pairs, assign those who need support (Group A) with those who have core knowledge and/or have mastered the material (Groups B and C). 
      • Groups of three or more should have at least one student from each group. 
  2. Explain to each student that they will be looking at the powers of the executive branch, both in the U.S. Constitution and in an alternative constitution. Depending on the level of the class, you might instead want each individual or group doing all three constitutions. In that case, you give each group three worksheets, not one, below.
  3. Give each group a copy of Article II: US Constitution and National Constitution Center Draftings and a worksheet. You might also provide a copy of the background material above and have the students read that first.
  4. Have the students fill out the worksheet, noting the changes the alternative Constitution makes to the current U.S. Constitution, and deciding what kind of change it is and explaining why.
  5. Circulate throughout the room to help students as needed. 
  6. Once everyone is finished, have the students describe the changes they identified in their respective constitutions and explaining why they found those changes to be clarifying, improving, or worsening the Constitution.
    • You might consider writing the list of changes the students identify on the board and have them vote which version of each they think best and why.

Discussion Prompts

Below are two discussion prompts that can be used by teachers in a classroom setting.

  • The first discussion prompt will be one that is designed to support students that are not really understanding the content in a way that would help them to answer the test question.
  • The second discussion prompt will be one that is designed to further student understanding of the content by making real-world connections, including connections to current events and historical events.


Article II gives the president “the executive power” and specifically authorizes the president not just to enforce the laws; the president also is assigned to be the chief diplomat, to sign or veto legislation, and the ability to appoint, with the consent of the Senate, federal judges.

Prompt 1

What are some powers of the president? What other members of the federal government can he or she appoint?

Prompt 2

There is a strong debate among constitutional scholars about whether the president, as part of the obligation to “take care that the laws be faithfully executed,” has an obligation to enforce a law he or she genuinely believes is unconstitutional. Some argue the president does not have to enforce such laws: the Constitution, not the laws of the Congress, is the supreme law of the land, and it is to that Constitution that the president takes an oath to “preserve, protect, and defend.” Having the president as an additional check on constitutionality makes for one more guarantee of constitutional fidelity. Others argue that the president should still enforce such a law, arguing that Congress has deemed it constitutional, and that the remedy is for the courts to strike it down. For the president to unilaterally decline to implement such a law would create constitutional anarchy as the branches disagreed. What do you think? If possible, use current and past events in your answer.