The President's formal (constitutional) powers are the ones written in Article II and in Article I's veto clause. A President who meets the qualifications takes an oath to "preserve, protect and defend the Constitution" and gets these tools.
| Power | Where | Limit or check |
|---|---|---|
| Commander in chief of the armed forces | Article II, Section 2 | Congress declares war, raises and funds the military |
| Veto | Article I, Section 7 | two-thirds of each house can override |
| Pardons and reprieves for "Offences against the United States" | Article II, Section 2 | federal crimes only; not impeachment |
| Make treaties | Article II, Section 2 | two-thirds of senators present must agree |
| Appoint ambassadors, judges and officers | Article II, Section 2 | Senate advice and consent (recess appointments are temporary) |
| Receive ambassadors (recognize foreign governments) | Article II, Section 3 | the Court held in Zivotofsky v. Kerry (2015) that recognition belongs to the President alone |
| Give Congress information on the State of the Union; call Congress into session | Article II, Section 3 | |
| "Take Care that the Laws be faithfully executed" | Article II, Section 3 | the duty runs to laws Congress has made |
Why it works
Article II gives the President fewer listed powers than Article I gives Congress, and most come with a partner or a check. Hamilton argued in Federalist No. 69 that the President's powers were far smaller than a king's: the king could declare war and make treaties alone, and his veto was absolute. The pardon is the great exception: it needs no one's consent. Hamilton defended it in Federalist No. 74 as a way to temper justice with mercy and, in a rebellion, to offer peace. It can come before charges are filed (President Ford pardoned Richard Nixon in 1974 before any charge), but it reaches only federal offenses.
Key idea
The Constitution makes the President commander in chief and gives the powers to veto, to pardon (federal offenses), to make treaties and appoint officers with the Senate's consent, to receive ambassadors, and to report on the State of the Union.
Worked example: Can the President pardon this?
A person is convicted of a state crime in a state court. Can the President pardon her?
- The pardon power covers "Offences against the United States": federal crimes.
- A state crime is pardoned (if at all) by the state's governor or pardon board.
Answer: No.
Worked example: Formal or not?
Is giving the State of the Union address in person before Congress a formal power?
- Article II, Section 3 requires the President to "give to the Congress Information of the State of the Union."
- It does not say how. Washington and Adams spoke in person; Jefferson sent written messages; Woodrow Wilson revived the speech in 1913.
Answer: The duty to inform is formal; the speech in person is a custom.
Common mistake
Thinking a presidential pardon can cover state crimes. The pardon power covers only federal offenses, and never impeachment. Check: ask who prosecuted the crime: the United States, or a state?