We Don’t Have To Listen To Him, Do We?

I generally tend to avoid politics as much as possible on this blog, if for no other reason than the fact that my son generally asks questions that fall into the realm of science. The “why does that glow?” and “do porcupines eat poop?” type of questions. He is, after all, six. Six year olds aren’t generally the most politically active demographic in the United States. But, they do pay attention to what is going on around them, and my family was not precisely what you would call “Trump supporters”. Far from it, in fact.

Relax. This isn’t going to be some sort of political rant. Like always, I’ll be answering a question or two that he asked. But, as always, I try to provide some context for the question.

we were not a happy husband and wife the day after the election. Near the end of the day, while we’re going through the family nighttime ritual of reading stories and talking about what we’re grateful for, my son looks at my wife. “We don’t have to listen to him, do we?”

The President of the United States

Contrary to popular belief, the United States is not a democracy. It is a democratic republic. And there is a difference of sorts. A democracy is any form of government in which the people exercise direct authority over the government. A republic is a subset of a democracy, in which the people elect officials to represent them and exercise power for them. The President of the United States is one of those elected officials.

The powers and the responsibilities of the President of the United States are spelled out in Article II, Sections 2 and 3 of the Constitution of the United States:

Section Two

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 Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint 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, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section Three

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; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

As the head of the executive branch of the US government, the President can also issue executive orders, which “help officers and agencies of the executive branch manage the operations within the federal government itself. Executive orders have the full force of law when they take authority from a legislative power which grants its power directly to the Executive by the Constitution, or are made pursuant to Acts of Congress that explicitly delegate to the President some degree of discretionary power”. These orders, like laws, are subject to judicial review and can be struck down if they are not supported by the law or the Constitution.

So, in brief, the president’s not a dictator and we don’t have to listen to him. But whoever the president is, he’s a powerful man who can issue orders that have the force of law. He should be listened to, whether you agree with him or not, but he should also listen. Because, for all his power, he still answers to the people.

The conversation with my son continued.  “It’s… complicated,” I tell him.

He gives me that baffled look he’s perfected. After all, he’s six. The world is pretty black and white to him. So, I try to explain. “You know how we’ve talked about how boring it would be if everyone liked exactly the same thing?”

He nods.

“Well,” I continue, “you know mommy and daddy didn’t vote for Mr. Trump. We didn’t think he’d be a good president. But, a lot of people did. Because not everyone likes the same thing, and they don’t always agree on what the best thing for our country is.”

“But why does he have to be president?” my son asks.

Electing a President

Electing the President of the United States is not quite as simple a process as “everyone casts a vote, and the candidate with the most votes wins”. After all, as of this election it appears that there have been five presidents elected to office without winning a majority of the popular vote: John Quincy Adams, Reutherford Hayes, Benjamin Harrison, George W. Bush, and (based on preliminary reports) Donald Trump.

How does that work?

Article II, Section 1 of the Constitution describes the procedure for electing the president:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the 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.

In other words, it is the Electoral College that chooses the president. Unless they deadlock, and then the House of Representatives chooses them. The next obvious question is, I think, what on earth is the popular vote for? And that answer is a little complicated.

First, on a state level, each political party chooses their Electors based on whatever rules that party has in place. This is not a contradiction of the Constitutional rule requiring “each State” to appoint the Electors, because at this point the election hasn’t even been held. This is just the different political parties stating who they want the Electors to be.

Next, the election happens. After the popular vote is counted, the majority of states simply inform the victorious party that their Electors have the job. The only exception is Nebraska and Maine. As the National Archives and Records Administration explains, “[i]n Nebraska and Maine, the state winner receives two Electors and the winner of each congressional district (who may be the same as the overall winner or a different candidate) receives one Elector. This system permits the Electors from Nebraska and Maine to be awarded to more than one candidate.”

Personally, I like the method used by Nebraska and Maine.

There is no Constitutional provision or Federal law that requires the Electors to vote for the popular winner from their state (or at a national level). In theory, when the Electors cast their votes for the 2016, they could vote me into office as the next President of the United States. However, 24 states and the District of Colombia have laws requiring Electors to cast their votes for a specific candidate. Michigan, North Carolina and South Carolina state law automatically cancels the Elector’s vote and replaces them if they try this, though. New Mexico, Oklahoma, and South Carolina also consider it a criminal offence to do this. Also, North Carolina, Oklahoma, and Washington state will fine the Elector for pulling this. So, I’m not likely to be getting sworn in as the 45th President on January 20.

The conversation continued. “Because he was elected,” I say, casting about for an explanation. “It’s like when you play a game. Everybody plays, but some people win and some people lose. Mr. Trump won the election, so he’ll be president.”

“Oh,” my son says.

“And now,” I continue, “although mommy and I didn’t vote for him, we both wish him the best. Because a lot of people think he’ll be a good president, and we hope he will be too.”

“That’s nice,” my son decides.

“You know what’s cool, though?” I tell him.

“What?”

“See, we’re Americans. That means we don’t have to agree with him, just because he’s the president. We hope he’ll be a great president, and I’m sure that he’ll do what he thinks is right. But…” I grin. “We should still do what we think is right. And if we don’t agree with him, we can work to change his mind.  And if he doesn’t, we can work to choose a new president in the next election.”

“Yeah!” my son says. Then he looks around. “Can we play Star Wars now?”

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