Despite such concerns, on June 4 the convention opted for a single executive—seven states in favor, three opposed, and one divided. There was one critical safeguard against overreach: the executive would be “removable on impeachment & conviction of mal-practice or neglect of duty.”
Over the next two months, the office took shape. On August 6, the Committee of Detail tabulated the convention’s interim findings. A “president,” chosen by Congress, could “recommend” legislation but neither push for it nor vote on it. He could commission officers and receive ambassadors, but the authority to appoint ambassadors and judges lay with the Senate, as did the power to make treaties with foreign nations. He could command military forces but not raise them. He could neither declare war nor negotiate peace. He could write letters to governors, but he was not empowered to force their hands, supersede their authority, or, on his own authority, suppress insurrections within their states. He could be removed from office through “impeachment by the House of Representatives, and conviction in the supreme Court, of treason, bribery, or corruption.” His authority, in short, was tightly circumscribed. Only once, to check the judiciary, did the committee use the word “power”: “He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment.”
Four weeks later, on September 4, the “Committee of Eleven” rewrote the script:
- The president would be chosen by special electors, not a joint session of Congress. If electors failed to produce a winner, the Senate would determine the result. At the insistence of small states, the deciding body was later changed to the House of Representatives, with each state delegation having one vote.
- Although the president’s term was shortened to four years, the restriction against re-eligibility was dropped. Until the mid-twentieth century, a president could remain in office indefinitely. Might this open a door to “kingly government”?
- With the “advise and consent” of the Senate, the president could appoint ambassadors, Supreme Court justices, and “other public ministers”—authorities previously granted to the Senate alone.
- The president could make treaties, pending approval of two-thirds of the Senate.
The first of these alterations, establishing what we now call the Electoral College, fundamentally altered presidential politics, while the others significantly increased presidential powers. Had such consequential changes been suggested in June, July, or early August, they might have stirred opposition and been discussed at length, but at this late date, they did not receive full scrutiny. Yet James Madison, ever astute, noted potential danger in the treaty-making provision. “The President would necessarily derive so much power and importance from a state of war that he might be tempted, if authorised, to impede a treaty of peace.” To counter this, Madison moved that two-thirds of the Senate could “make treaties of peace, without the concurrence of the President.”