Federalist Papers Nos. 67–77 shift the focus from the legislative branch to the presidency.
Written entirely by Alexander Hamilton, these eleven essays systematically defend the structure, election, and powers of the single executive created by the Constitution.
Hamilton’s central goal is to show that an energetic yet carefully limited President is essential to good government and fully consistent with republican principles.
● Federalist 67 opens the series by exposing the exaggerated and false attacks on the presidency. Hamilton refutes the claim that the office resembles a monarchy and corrects misrepresentations about the President’s appointment powers.
● Federalist 68 praises the mode of electing the President (the Electoral College) as nearly perfect—designed to ensure a capable, independent choice while avoiding both cabal and pure popular passion.
● Federalist 69 carefully compares the President’s powers with those of the British king and the governors of the individual states, demonstrating that the American executive is far more limited and accountable.
● Federalist 70 argues that “energy in the executive” is a leading characteristic of good government. Hamilton insists that this energy requires unity: a single person, not a council, so that decision, activity, secrecy, and responsibility can be achieved.
● Federalist 71 defends the four-year term as long enough for the President to act with firmness and independence, yet short enough to prevent the accumulation of dangerous power.
● Federalist 72 rejects the idea of term limits, arguing that eligibility for re-election encourages good performance, allows the nation to keep proven leaders in times of crisis, and avoids the instability of forced rotation.
● Federalist 73 discusses two vital supports for executive independence: a fixed salary that cannot be altered during the President’s term, and the qualified veto power over legislation.
● Federalist 74 explains the President’s role as commander-in-chief of the armed forces and the exclusive power to grant pardons (except in cases of impeachment).
● Federalist 75 defends the shared treaty-making power: the President negotiates, but treaties require the advice and consent of two-thirds of the Senate.
● Federalist 76 and 77 examine the appointment power. Hamilton argues that vesting the nomination in a single President, subject to the Senate’s confirmation, combines responsibility with a useful check and is superior to every alternative method.
Taken together, these papers present the presidency as a carefully balanced office—energetic enough to administer the government effectively, yet restrained by the Constitution’s structure, the Senate’s participation in key powers, and ultimate accountability to the people through election and the possibility of impeachment.
They complete the analysis of the three branches begun in the earlier essays on Congress and prepare the way for the discussion of the judiciary.
Federalist 67: Opponents of the Constitution Will Always Denigrate the Office of President
We Must Ascertain the True Nature of the Office of President
THE COMPOSITION OF THE EXECUTIVE department of the Federal government next claims our attention.
No part of the Federal system was attended with greater difficulty in its arrangement than this, and none criticized with less candor and judgment.
The writers against the Constitution here took pains to signal their talent of misrepresentation.
Calculating upon the aversion of the People to monarchy, they endeavored to enlist all of the People’s jealousies and apprehensions in opposition to the office of President of the United States – and not merely as the embryo – but the full-grown progeny of that detested parent.
To establish the pretended affinity, they did not scruple to draw resources even from the regions of fiction.
The powers of the chief executive of the United States – the President – are in a few instances greater and in some instances less than those of a governor of New York.
Yet they were magnified into more than royal prerogatives, with attributes superior in dignity and splendor to those of a monarch of Great Britain.
We saw images of an imaginary President, standing with a diadem sparkling upon his brow and imperial purple flowing in his train, or seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty.
Images of Asiatic despotism and voluptuousness could scarcely have been wanting to crown the exaggerated scene.
The extravagant attempts we saw to disfigure and metamorphose the President into a despotic monarch render it necessary to take an accurate view of the real nature and form of the Federal executive, in order to ascertain its true aspect and genuine appearance, and to unmask the lies and expose the fallacy of the counterfeit resemblances that were so insidiously and industriously propagated.
The Opponents o the Presidency Will Lie if Needed
In the execution of this task, all will find it arduous to behold with moderation – let alone treat with seriousness – the devices (not less weak than wicked) which were contrived to pervert the opinion of the People.
These devices so far exceeded the usual (though unjustifiable) license of party artifice that even those with a candid and tolerant disposition will be forced to abandon those sentiments favoring indulgence toward political adversaries, in favor of a voluntary and unreserved indignation.
It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a supposed similarity between a monarch of Great Britain and a magistrate of the character marked out for that of the President of the United States.
Further proof is shown by the rash and barefaced expedients employed to misrepresent the powers of the President.
We saw images of an imaginary President, standing with a diadem sparkling upon his brow and imperial purple flowing in his train, or seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. Images of Asiatic despotism and voluptuousness could scarcely have been wanting to crown the exaggerated scene.
One Example of Deceit Will Serve to Highlight Them All
A writer in opposition offered a sample of the temerity that ascribed to the President of the United States a power the Constitution expressly allots to the executives of the individual States.
I refer to the power of filling casual vacancies in the Senate.
This bold experiment upon the discernment of the People was hazarded by a writer who had some share in the applause of his party and who – upon this false and unfounded suggestion – built a series of observations equally false and unfounded.
Let him now be confronted with the evidence of the shameful outrage he has offered to the dictates of truth and the rules of fair dealing.
The Appointments Clause empowers the President of the United States to “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 United States whose Appointments are not herein otherwise provided for, and which shall be established by Law[.]” Art. II, § 2, ¶ 2, cl. 2, emphasis added.
Immediately after this clause follows another – the Recess Appointments Clause: “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.” Art. II, § 2, cl. 3 emphasis added.
It is from the Recess Appointments Clause that the pretended power of the President to fill vacancies in the Senate has been deduced.
A slight attention to the connection of the clauses and the obvious meaning of the terms will satisfy us that the deduction is not even colorable.
The writers against the Constitution here took pains to signal their talent of misrepresentation. Calculating upon the aversion of the People to monarchy, they endeavored to enlist all of the People’s jealousies and apprehensions in opposition to the office of President of the United States – and not merely as the embryo – but the full-grown progeny of that detested parent. To establish the pretended affinity, they did not scruple to draw resources even from the regions of fiction.
The Appointments Clause provides a mode for appointing only such officers whose appointments are not otherwise provided for in the Constitution, and which shall be established by law.
On its face it cannot extend to the appointments of senators, whose appointments (1) are otherwise provided for in the Constitution, Art. I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof”), and (2) are established by law because the Constitution itself establishes them, so no future establishment by law is required.
This position is incontestable.
The Recess Appointments Clause Merely Supplements the Appointments Clause
It is equally clear that the Recess Appointments Clause cannot be understood to comprehend the power of filling vacancies in the Senate, for several reasons.
First – The relation in which the Recess Appointments Clause stands in relation to the Appointments Clause – which declares the general mode of appointing officers of the United States – denotes it to be nothing more than a supplement to Appointments Clause, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.
The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised while the Senate is in session.
It would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess.
During a recess, it might be necessary for continuity of public service for President alone “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.” Art. II, § 2, cl. 3.
Second – If the Recess Appointments Clause is to be considered as supplementary to the Appointments Clause, the vacancies of which it speaks must be construed to relate to the “officers” described in the Recess Appointments Clause.
I have described how the Appointments Clause excludes from its description the members of the Senate.
Third – The time within which the power is to operate – “during the Recess of the Senate” – and the duration of the appointments – “to the End of the next session” of that body – conspire to elucidate the sense of the provision.
If the Recess Appointments Clause had been intended to comprehend Senators, it naturally would have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not the recess of the national Senate, who are to have no concern in those appointments.
It also would have extended the duration in office of the temporary Senators to the next session of the legislature of the State – in whose representation the vacancies had happened – instead of making it to expire at the end of the ensuing session of the national Senate.
The circumstances of the body authorized to make the permanent appointments – the State legislatures – would of course govern the modification of a power which related to the temporary appointments.
Finally – Two other provisions not only obviate all possibility of doubt, but destroy the pretext of misconception.
The first provides: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years[,]” Art. I, § 3, cl. 1 emphasis added, while the second directs “if Vacancies happen by resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.” Art. I, § 3, cl. 2 (emphasis added).
Here an express power is given in clear and unambiguous terms to the State executives to fill casual vacancies in the Senate by temporary appointments.
This not only invalidates the supposition that the Appointments Clause could have been intended to confer that power upon the President of the United States, but proves that this supposition – destitute as it is even of the merit of plausibility – must have originated in an intention to deceive the People, for it is too palpable to be obscured by sophistry, and too atrocious to be palliated by mere hypocrisy.
I have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the Constitution.
Nor have I scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers.
I hesitate not to submit it to the decision of any candid and honest adversary of the Constitution whether language can furnish epithets of too much asperity for so shameless and prostitute an attempt to deceive the citizens of America.
Hamilton
[Ed. Note Federalist 67: Hamilton’s observations regarding attacks on the executive arguably apply to just about every President since Washington. Contrary to his expressed desire to minimize questioning the motives of the opponents of the Constitution in Federalist 1, Hamilton cannot contain his exasperation dealing with those who falsely characterized the executive branch as monarchical. The unnamed object of his scorn was the writer identifying as “Cato” in Cato V.]
Federalist 68: The Constitution’s Mode of Selecting a President Is Almost Perfect
THE MODE OF APPOINTMENT OF THE CHIEF MAGISTRATE OF THE UNITED STATES – the President – is almost the only part of the system of the Constitution to escape severe censure and receive only the slightest mark of disapproval from its opponents.
I will venture somewhat further – and not hesitate to affirm – that if the manner of appointment is not perfect, it is at least excellent, and unites in an eminent degree all possible advantages.
The People Must Have a Voice in Selection
It was determined the sense of the People should operate in the choice of the person to whom so important a trust was to be confided.
This end was answered by committing the right of making it to individuals chosen by the People for a special purpose at a particular conjuncture, rather than any preexisting body.
The Electors Will Be the Most Qualified
It was equally desirable that the immediate election be made by individuals who are the most capable of analyzing the qualities adapted to the station of President, and acting under circumstances favorable to deliberation, resulting in a judicious combination of all the reasons and inducements which are proper to govern their choice.
A small number of persons – selected by their fellow-citizens from the general mass – will be the most likely to possess the information and discernment requisite to such complicated investigations.
Nothing was more desired than to put in place every practicable obstacle to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally be expected to make their approaches from many quarters, but chiefly from the desire in foreign powers to gain an improper ascendancy in our councils.
Avoiding Tumult and Disorder Is a Priority
It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder, which are evils to be dreaded in the election of a magistrate who will have so important an agency in the administration of the government of the United States.
The precautions which have been so happily concerted in the system of the Constitution promise an effectual security against these mischiefs.
The choice of voting for several electors to an intermediate body will be much less apt to convulse the community with any extraordinary or violent movements, than would the direct choice of the individual who was be the final object of the public wishes.
A further barrier to confusion is erected by requiring the electors to be chosen in each State, and to assemble and vote in the State in which they are chosen.
This detached and divided situation will expose the electors to far less of the heats and ferments that would naturally occur if they were all to be convened at one time and in one place, a situation that can increase public agitation.
The Highest Goal Is the Avoidance of Cabal, Intrigue or Corruption
Nothing was more desired than to put in place every practicable obstacle to cabal, intrigue, and corruption.
These most deadly adversaries of republican government might naturally be expected to make their approaches from many quarters, but chiefly from the desire in foreign powers to gain an improper ascendancy in our councils.
How could they better gratify this than by raising a creature of their own to the presidency of the United States?
The Constitution guards against all danger of this sort with the most provident and judicious attention.
A Special Body (the Electoral College) Will Appoint the President, Rather than a Preexisting (and Thus Corruptible) One
The election of the President does not to depend on any preexisting bodies of individuals, who might be tampered with beforehand to prostitute their votes.
The election is referred in the first instance to an immediate act of the People of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment.
Excluded from eligibility to this trust are all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States can be of the numbers of the electors. Art. II, § 1, ¶ 2.
Another and no less important goal was that a President’s re-election to office should depend on nothing but the favor of the People themselves.
The immediate agents in the election will at least enter upon the task free from any sinister bias.
Their transient existence and detached situation afford a satisfactory prospect of their continuing so to the conclusion of it.
The business of corruption – when it is to embrace so considerable a number of individual electors – requires time as well as means.
It would not be found easy suddenly to embark them – dispersed as they would be over all the States – in any combinations founded upon motives of a nature to mislead them from their duty, if not to corrupt them.
A President Seeking Re-Election Need Depend Only on the Favor of the People
Another and no less important goal was that a President’s re-election to office should depend on nothing but the favor of the People themselves.
Otherwise the President might be tempted to sacrifice duty to complaisance for those whose favor was necessary to the longevity of presidential service.
This advantage will be secured by making reelection also depend upon a special body of representatives – the newly-elected members of the Electoral College – who will again be deputed by the People for the single purpose of making the important choice of President.
The Electoral College Will Advance Outstanding Candidates and Suppress the Evils Attendant to the Election of a President
All these advantages happily combine in the plan set forth in the Constitution, which is: the People of each State shall choose a number of persons as electors that is equal to the number of senators and representatives of such State in the Federal government.
The electors shall assemble within their State, and vote for some fit person as President.
Their votes, thus given, are to be transmitted to the seat of the Federal government, and the person who may happen to have a majority of the whole number of votes will be the President. Art. II, § 3.
But as a majority of the votes might not always happen to center on one individual – and as it might be unsafe to permit less than a majority to be conclusive – it is provided that in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the person who in their opinion may be best qualified for the office.
The process of presidential appointment affords a moral certainty that the office of President will never fall to the lot of any individual who is not endowed with the requisite qualifications in an eminent degree.
Talents for low intrigue or the simple art of popularity may alone suffice to elevate a person to the first honors in a single State, but it will require other talents – and a different kind of merit – to establish an individual in the esteem and confidence of the entire United States, or of so considerable a portion of it as would be necessary to make for a successful candidate for the distinguished office of President of the United States.
There ought to be a constant probability of seeing the station filled by individuals of ability and virtue.
This is not an inconsiderable recommendation of the Constitution to those persons who can accurately estimate the effect which the executive in every government must necessarily have in its good or ill administration.
Although I cannot agree with the political heresy of the poet who says: “For forms of government let fools contest, for that which is best administered is best,” I may safely pronounce that the true test of a good government is its aptitude and tendency to produce a good administration.
Talents for low intrigue or the simple art of popularity may alone suffice to elevate a person to the first honors in a single State, but it will require other talents – and a different kind of merit – to establish an individual in the esteem and confidence of the entire United States, or of so considerable a portion of it as would be necessary to make for a successful candidate for the distinguished office of President of the United States.
The Vice-President Shall Be Chosen Almost in the Same Manner as the President
The Vice-President is to be chosen in the same manner as the President, by the electors delegated to that purpose, with the only difference being that the Senate, rather than the House of Representatives, will make the appointment if no candidate receives a majority of electoral votes.
Some objected to appointment of an extraordinary person to be Vice-President as superfluous, if not mischievous.
Others preferred to have authorized the Senate to elect out of their own body a person to fill the office of Vice-President.
Two considerations justify the mechanism set forth in the Constitution.
First, the Vice-President is also President of the Senate, but in that capacity casts a vote only in the event of deadlock.
If a senator of any State were to become President of the Senate, it would exchange – in regard to the State from which that Senator came – a constant vote for a contingent vote.
The other consideration is that the Vice-President may occasionally become a substitute for the President in the supreme executive magistracy, so all the reasons recommending the mode of election prescribed for the President apply with great if not with equal force to the manner of appointing a potential successor.
Those from New York who disputed the mode of selecting the Vice-President remarkably overlooked that their objections would lie against the constitution of their own States.
New York has a lieutenant governor, chosen by the electorate, who presides in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exercise the authorities and discharge the duties of the President.
Hamilton
[Ed. note: Following the 1800 election – in which two candidates from the same party received the same number of electoral votes for President – Amendment XII was ratified to distinguish between electoral votes for President and Vice-President. Article II (complete).]
Federalist 69: Presidential Powers Are Far Less than Those of the British Monarch
I PROCEED NOW to trace the real character of the executive branch as marked out in Article II of the Constitution, thereby exposing the unfair misrepresentations made regarding it.
The Executive Department Will Be Administered by a Single Person
The first thing to strike the attention is the executive authority is vested in a single magistrate – the President – with a few exceptions. For those who unfavorably compare the President to the royal sovereign of Great Britain, they could have as easily made a comparison to the sultan of Turkey, the khan of Tartary, the emperor of Rome, or the governor of New York.
For those who unfavorably compare the President to the royal sovereign of Great Britain, they could have as easily made a comparison to the sultan of Turkey, the khan of Tartary, the emperor of Rome, or the governor of New York.
A Four-Year Presidential Term Is Less Dangerous than a Three-Year New York Governorship
The President is to be elected for four years, and may be re-elected as often as the People of the United States shall think him worthy of their confidence.
In these circumstances there is a total dissimilitude between the President and a monarch of Great Britain, presently George III, who is a hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever.
There is a closer analogy between a monarch and a governor of New York, who is elected for three years, and is re-eligible without limitation or intermission.
If we consider it would require less time to establish a dangerous influence in a single State than establishing a like influence throughout the United States, we must conclude that a duration of four years for the President of the United States is a degree of permanency far less to be dreaded in that office than a three-year duration of a corresponding office in a single State.
The President May Be Impeached and Removed
The President of the United States would be liable to be impeached, tried, and – upon conviction of treason, bribery, or other high crimes or misdemeanors – removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course of law.
In contrast, the individual monarch of Great Britain is sacred and inviolable, for there is no constitutional tribunal to which he or she is amenable, and no punishment may be imposed without involving the crisis of a national revolution.
In this delicate and important circumstance of personal responsibility, the President of the United States would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.
The Veto Power Is Not Absolute, as It Is in Great Britain
The President of the United States has the power to return for reconsideration a bill passed by the Congress, and the bill so returned shall become a law following reconsideration if two thirds of both houses approve it.
The monarch of Great Britain, by contrast, has an absolute negative upon the acts of the two houses of Parliament.
The disuse of that power for a considerable time past does not affect the reality of its existence.
The disuse may be wholly ascribed to the crown’s having found the means of substituting the power of influence to that of its authority, or the art of gaining a majority in one or the other of the two houses, to avoid the necessity of exerting its veto prerogative (which could seldom be exerted without hazarding some degree of national agitation).
The qualified negative of the President differs widely from this absolute negative of the British monarch.
The limited veto power matches exactly the authority of the New York’s Council of Revision, of which the state’s governor is a constituent part.
The veto power of the President would exceed that of the governor of New York, who shares that power with a chancellor and judges, but it would be precisely the same as that of the governor of Massachusetts, whose constitution was the original the Constitutional Convention apparently copied.
In most of these particulars, the power of the President will resemble equally that of the monarch of Great Britain and of the governor of New York.
The President:
(1) is the “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,
(2) has the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment;
(3) may recommend to the consideration of Congress such measures as he shall judge necessary and expedient;
(4) may convene both houses of Congress, or either of them, on extraordinary occasions,
(5) in cases of disagreement between houses with respect to the time of adjournment, may adjourn the Congress to such time as is thought proper to take care that the laws be faithfully executed, and
(6) shall commission all officers of the United States.
In most of these particulars, the power of the President will resemble equally that of the monarch of Great Britain and of the governor of New York.
I now turn to the most material points of difference.
The President’s Power to Call the Militia into Service Requires Legislation
The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the United States.
The monarch of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions.
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the monarch of Great Britain, but in substance much inferior to it.
The President’s Power as Commander in Chief Is Limited by Congress
The President is to be commander-in-chief of the army and navy of the United States.
In this respect his authority would be nominally the same with that of the monarch of Great Britain, but in substance much inferior to it.
It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the United States, while the power of the British monarch extends to the declaring of war and to the raising and regulating of fleets and armies, all of which the Constitution delegates to the Congress.
While the governor of New York is vested only with the command of its militia and navy, the constitutions of several other States expressly declare their governors to be commanders-in-chief of the army as well as the navy, and it may be argued that New Hampshire and Massachusetts confer larger powers upon their respective governors in this instance than could be claimed by a President of the United States.
The Power of the President to Pardon Is Less than that of a Governor of New York
The power of the President in respect to pardons extends to all cases except those of impeachment.
The governor of New York may pardon in all cases, including those of impeachment, except for treason and murder.
On a calculation of political consequences, is not the power of the governor greater than that of the President?
All conspiracies and plots against the government which have not been matured into actual treason may be screened from punishment of every kind by a pardon.
All conspiracies and plots against the government which have not matured into actual treason may be screened from punishment of every kind by a pardon.
If a governor of New York should be at the head of any such conspiracy, he or she could protect accomplices and adherents with an entire impunity, at least until the design had been ripened into actual hostility.
Although a President of the United States may pardon even treason when prosecuted in the ordinary course of law, the offender would have no shelter from the effects of impeachment and conviction.
It seems likely the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation should the scheme should miscarry.
And would this last expectation have any influence when the probability was computed that the person who was to afford that exemption (a treasonous President) might be incapacitated from affording the desired impunity?
The Power to Adjourn Congress Is Limited to Disputes concerning the Date of Adjournment
The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment.
The British monarch may dissolve the Parliament it altogether, or prorogue it by discontinuing it without dissolving it.
The Governor of New York also may prorogue the legislature for a limited time, which is a power that may be employed to very important purposes in certain situations.
The President does not have the power to prorogue the Congress.
The Treaty Power of the President Requires Senate Approval
The President is to have power – with the advice and consent of the Senate – to make treaties – provided two thirds of the senators present concur.
The monarch of Great Britain, on the other hand, is the sole and absolute representative of the nation in all foreign transactions, and can of its own accord make treaties of peace, commerce, alliance, and of every other description, contrary to those who have insinuated that the monarch’s authority in this respect is inconclusive, and that conventions with foreign powers are subject to the revision and ratification of Parliament.
The suggestion is false, for as everyone acquainted with its Constitution knows, the prerogative of making treaties exists in the crown in its utmost plentitude, and compacts entered into by royal authority have the most complete legal validity and perfection independent of any other approval or sanction.
The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty, and this probably gave birth to the idea that its cooperation was necessary to the obligatory efficacy of the treaty.
But this parliamentary interposition proceeds from a different cause: the necessity of adjusting a most artificial and intricate system of revenue and commercial laws to the changes made to them by the operation of the treaty, and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder.
There is no comparison between the treaty power of the President and the actual power of the British monarch.
The monarch can perform alone what the President can do only with the concurrence of a branch of the legislature.
It must be admitted, that, in this instance, the power of the President exceeds that of any state executive, but this arises naturally from the sovereign power which relates to treaties.
If the Confederacy had been dissolved without adoption of Constitution, a question would have arisen whether the executives of the several States were not solely invested with that delicate and important prerogative.
There is no comparison between the treaty power of the President and the actual power of the British monarch. The monarch can perform alone what the President can do only with the concurrence of a branch of the legislature.
The Authorization to Receive Ambassadors Is Ordinary
The President is authorized to receive ambassadors and other public ministers.
Although this power has been a rich theme of declamation, it is more a matter of dignity than of authority.
It is a circumstance without consequence in the administration of the Federal government, and it was far more convenient to arrange in this manner to convene the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.
The Appointment Power Is Subject to Senate Approval
The President is to nominate – and with the advice and consent of the Senate – to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. Art. II, § 2, ¶ 2.
The monarch of Great Britain, by comparison, is emphatically and truly styled the fountain of honor, not only appointing all officers, but creating new offices.
The monarch can confer titles of nobility at pleasure, and has the disposal of an immense number of church preferments.
There exists great inferiority in the power of the President to that of the British monarch in this particular; nor is it equal to that of the governor of New York, if we interpret the meaning of its constitution by the practice which has obtained under it.
The power of appointment in New York is lodged in a council, composed of the governor and four members of the State senate, chosen by the State assembly.
The governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment.
If I assume the governor actually possesses the right under law of nominating, the governor’s authority is in this respect equal to that of the President, and exceeds it due to the additional power of casting a vote.
In the Federal government, if the Senate should be divided, no appointment could be made.
In the government of New York, if the council should be divided, the governor can turn the scale with a confirming vote on the nominee.
If we further compare the publicity which must necessarily attend the mode of a national appointment requiring the concurrence of the President and the Senate, with the privacy in the mode of appointment of the governor of New York – closeted in a secret apartment with at most four, and frequently with only two persons – and if we at the same time consider how much more easy it must be to influence a small number on a council of appointment than a considerable number in the Senate, I do not hesitate to pronounce that the power of the governor of New York to appoint officers must, in practice, be greatly superior to that of the President of the United States.
Any Attempt to Compare the President to the British Monarch Must Fail
Aside from treaty negotiations, it would be difficult to determine whether the President, in the aggregate, possesses more or less power than a governor of New York.
More unequivocally one can see no pretense for the parallel which has been attempted between the President and the monarch of Great Britain.
To render the contrast in this respect still more striking, I will throw the principal circumstances of dissimilitude into a closer group:
The President of the United States is an officer elected by the People for four years; the monarch of Great Britain is perpetual and hereditary.
One would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.
One would have a qualified negative upon the acts of the legislative body; the other has an absolute negative.
One would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his or her own authority.
One would have a concurrent power with one branch of the legislature in the formation of treaties; and the other is the sole possessor of the power of making treaties.
One would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments.
One can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies.
One can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, regulate weights and measures, lay embargoes for a limited time, coin money, and authorize or prohibit the circulation of foreign coin.
One has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church!
What answer shall we give to those who would persuade us that things so unlike resemble each other?
The same that ought to be given to those who tell us that a government – the whole power of which would be in the hands of the elective and periodical servants of the People – is an aristocracy, a monarchy, and a despotism.
Hamilton
Federalist 70: An Energetic Executive Is Essential to the Success of Any Government
THERE IS AN IDEA – not without advocates – that a vigorous executive is inconsistent with the genius of republican (representative) government. These enlightened advocates of a weak executive must at least hope their supposition is destitute of foundation, for if true it would condemn their own principles.
Energy in the executive is a leading character in the definition of good government.
Energy is essential to the protection of the community against foreign attacks.
It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice, and to the security of liberty against the enterprises and assaults of ambition, faction and anarchy.
Everyone at least conversant in Roman story knows how often that republic was obliged to take refuge in the absolute power of a single man – under the formidable title of Dictator – against not only the intrigues of ambitious individuals who aspired to tyranny, but the seditions of whole classes of the community – whose conduct threatened the existence of all government – and against as well the invasions of external enemies who menaced the conquest and destruction of Rome.
There can be no need to multiply arguments or examples on this head.
A feeble executive implies a feeble execution of the government.
A feeble execution is but another phrase for a bad execution.
A government executed poorly – whatever it may be in theory – in practice must be a bad government.
I shall take for granted that all persons of good sense will agree in the necessity of an energetic executive, with but several remaining inquiries: what are the ingredients constituting this energy?
How far can they be combined with those other ingredients which constitute safety in the republican sense?
And how far does this combination characterize the Constitution?
Energy in the executive is a leading character in the definition of good government. Energy is essential to the protection of the community against foreign attacks. It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice, and to the security of liberty against the enterprises and assaults of ambition, faction and anarchy.
Energy Requires Unity, Time, Provisions, and Powers
The ingredients constituting energy in the executive are:
(1) unity,
(2) duration,
(3) adequate provisions for its support, and
(4) competent powers.
The ingredients which constitute safety in the republican sense are a due dependence on the People and a due responsibility to them.
Those politicians and statesmen most celebrated for the soundness of their principles and the justice of their views have declared in favor of a single executive and a numerous legislature.
With great propriety, they have considered energy as the most necessary qualification of the executive, and regarded energy as most applicable to power in a single hand.
With equal propriety, they considered a single executive as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.
Unity in the Executive Is Indispensable
That unity is conducive to energy is indisputable.
Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one person in a much more eminent degree than the proceedings of any greater number, and in proportion as the number is increased, these qualities will be diminished.
That unity is conducive to energy is indisputable. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one person in a much more eminent degree than the proceedings of any greater number, and in proportion as the number is increased, these qualities will be diminished.
How to Destroy Unity in the Executive
Unity of the executive may be destroyed in two ways.
First, the executive power may be vested in two or more magistrates of equal dignity and authority.
Second, although the power is ostensibly vested in one person, that person is subject – in whole or in part – to the control and cooperation of others – usually in their capacity as counselors.
Both means are liable to equal or to similar objections, and may be examined in conjunction.
The Few Historical Examples Favor a Single Executive
The experience of other nations affords little instruction on this head. As far as it teaches anything, it teaches us not to be enamored of plurality in the executive.
We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one.
The two Consuls of Rome also serve as an example of the disunity that results from more than one coequal executive.
Although Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls – or between the military Tribunes, who were at times substituted for the Consuls – it gives us no specimens of any peculiar advantages derived to the republic from the circumstance of the plurality of those magistrates.
It is a matter of astonishment that dissensions between them were not more frequent or more fatal, until we recall the singular position in which the republic was almost continually placed, and as well as the Consuls’ prudent policy of making a division of the government between them.
The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities.
The Consuls – who were generally chosen from the patricians – were commonly united by the personal interest they had in the defense of the privileges of their order.
In addition to this unifying motive of personal interest, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot, with one of them remaining at Rome to govern the city and its environs, the other taking the command in the more distant provinces.
This expedient undoubtedly had great influence in preventing those collisions and rivalries which might otherwise have embroiled the peace of that republic.
But quitting the dim light of historical research – and attaching ourselves purely to the dictates of reason and good sense – we shall discover much greater cause to reject than to approve the idea of plurality in the executive, under any modification whatever.
Individuals often oppose a thing merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. Moreover, if they have been consulted, and happened to have disapproved, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor – and by all the motives of personal infallibility – to defeat the success of what has been resolved upon contrary to their sentiments.
More than One Executive Will Promote Dissension
Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion.
If it be a public trust or office – in which they are clothed with equal dignity and authority – there is peculiar danger of personal emulation and even animosity.
The most bitter dissensions are apt to spring from either.
Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide.
If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government in the most critical emergencies of the state.
And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy.
Opposition Based upon Personal Animosity Is an Unfortunate Human Trait
Individuals often oppose a thing merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike.
Moreover, if they have been consulted, and happened to have disapproved, opposition then becomes, in their estimation, an indispensable duty of self-love.
They seem to think themselves bound in honor – and by all the motives of personal infallibility – to defeat the success of what has been resolved upon contrary to their sentiments.
Persons of upright and benevolent tempers have often remarked with horror at the desperate lengths to which this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, conceit, and obstinacy of individuals whose passions and caprices have interested the People.
Opposition to the Constitution afforded melancholy proofs of the effects of this despicable frailty – or rather detestable vice – in the human character.
The Dissension Wrought by Unreasonable Opposition Ought to Be Resolved in the Legislative Branch, Not the Executive
Upon the principles of a free government, the inconveniences of opposition resulting from personal animosity and the like must necessarily be submitted to the legislative branch.
But it is unnecessary, and therefore unwise, to introduce them into the constitution of the executive, where dissension may be most pernicious.
In a legislature – of which the Congress is one – a prompt decision is more often evil than a benefit.
In the legislative branch of government, the differences of opinion and jarrings of parties – although they may sometimes obstruct salutary plans – yet often promote deliberation and circumspection, and serve to check excesses in the majority.
Once a resolution is taken by enacting a law, however, the opposition must be put to an end, with resistance to it being punishable.
No such favorable circumstances can lessen the disadvantageous effects of dissension in the executive department.
Motives there fueled by personal animosity are pure and unmixed.
There is no point at which they cease to operate.
They can serve to embarrass and weaken the execution of the plan or measure to which they relate, from its first step to final conclusion. The effects of dissension constantly counteract those qualities needed in an executive – vigor and expedition – without offering any counterbalancing good.
In the conduct of war – in which the energy of the executive is the bulwark of the national security – more than one executive would cause fear and apprehension in everything.
These observations apply with principal weight to the situation where a plurality of magistrates have equal dignity and authority.
They also apply with considerable weight to the project of a council whose concurrence is made constitutionally necessary to the operations of the ostensible executive.
An artful cabal in that council would be able to distract and to enervate the whole system of administration.
If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness.
More Than One Executive Conceals Faults and Destroys Responsibility
One of the weightiest objections to a plurality in the executive is that it tends to conceal faults and destroy responsibility.
Responsibility is of two kinds: censure and punishment.
Censure is the more important of the two, especially in an elective office. A person holding a public trust will much more frequently act in a manner contrary to that trust – which may cause public censure and disapproval – than in a manner contrary to law – which may result in legal punishment.
In either situation, the existence of more than one executive would add to the difficulty of detecting either censurable or punishable conduct.
It often becomes impossible – amidst mutual accusations – to determine on whom the blame or the punishment ought really to fall for a pernicious measure or series of pernicious measures.
Blame may shifted from one to another with so much dexterity – and under such plausible appearances – that the public opinion is left in suspense about the real author.
The circumstances which may lead to any national miscarriage or misfortune are sometimes so complicated that a number of actors may have had different degrees and kinds of agency.
Although the People may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account any evil is truly chargeable.
Excuses would abound: “I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point.”
Whether true or false, these and similar pretexts are constantly at hand.
We Cannot Expect Individual Citizens to Track Down the Sources of Governmental Malfeasance
Who will either take the trouble or incur the odium of a strict scrutiny into the secret springs of a transaction against the national interest?
If there could be found a citizen zealous enough to undertake the unpromising task – and should there happen to be collusion between the parties being investigated – it would be easy to clothe the circumstances with so much ambiguity as to render uncertain the precise conduct of any of those parties.
State Examples Demonstrate the Drawbacks of Executive Councils
If I recollect correctly, New York and New Jersey are the only States which have entrusted the executive authority wholly to a single individual. New Jersey has a council whom the governor may consult, but from the terms of its constitution, their resolutions are not binding.
In New York, the single instance in which the governor is coupled with a council – that is, in the appointment to officers – I detailed its mischiefs in Federalist 69. Scandalous appointments to important offices have been made. Indeed, some cases have been so flagrant that all parties have agreed in the impropriety of the thing.
When inquiry actually has been made, the members of the council have laid blame on the governor’s nomination, while the governor has blamed the members of the council.
The People, meanwhile, remain altogether at a loss to determine by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I will forbear to descend into particulars.
Responsibility is of two kinds: censure and punishment. Censure is the more important of the two, especially in an elective office. A person holding a public trust will much more frequently act in a manner contrary to that trust – which may cause public censure and disapproval – than in a manner contrary to law – which may result in legal punishment.
Multiple Executives Tend to Deprive the People of Their Security for Performance
It is evident from the preceding considerations that a plurality of the executive tends to deprive the People of the two greatest securities they can have for the faithful exercise of any delegated power.
First, multiple executives weaken the restraints of public opinion, which lose their efficacy with respect to bad measures due to the division of the censure among a number, as well as the uncertainty on whom it ought to fall.
Second, the multiplicity of actors diminishes the People’s ability to discover with facility and clearness the misconduct of the persons they trust, in order either to remove them from office or to their actual punishment in proper cases.
An Executive Council Is Better Suited to a Monarchy than a Chief Executive or Magistrate Like the President
In Britain, the monarch is a perpetual magistrate.
For the sake of the public peace, his or her person is sacred and unaccountable for poor administration.
In that kingdom, therefore, nothing is wiser than to annex to the king or queen a constitutional council, who may be responsible to the nation for the advice they give.
Without this, there would be no responsibility whatever in the executive department, which is an inadmissible idea in a free government.
In practice, the monarch of Britain is not bound by the resolutions of his or her council, although they are answerable for the advice they give.
The British monarch is the absolute master of his or her own conduct in the exercise of office, and has the sole discretion to observe or disregard the advice and counsel given.
The reasons why the British Constitution dictates the propriety of an executive council do not apply in a republic, where every magistrate ought to be personally responsible for his or her behavior in office.
In the monarchy of Great Britain, an executive council accepts the responsibility that would be assigned to the chief magistrate in a republic.
In some degree the British executive council serves as a hostage to the national justice for the good behavior of the monarch.
In the American republic, an executive council would serve to destroy – or greatly diminish – the intended and necessary responsibility of the chief magistrate personally.
An Executive Branch Run by a Council – Though Based on a Republican Jealousy Favoring Security – Raises More Risks than Rewards
The idea of a council to the executive – which has so generally obtained in the State constitutions – has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of persons than of a single one.
If the maxim is applied to the case, the advantage on that side would not counterbalance the numerous disadvantages on the opposite side.
However, I do not think the rule applies at all to the executive power.
In this particular, I clearly concur in opinion of Jean-Louis de Lome – whom the celebrated Junius pronounces to be “deep, solid, and ingenious” – that “the executive power is more easily confined when it is one” – and that it is far safer for a single object to attract the jealousy and watchfulness of the People – in a word, that all multiplication of the executive is more dangerous than friendly to liberty.
The reasons why the British Constitution dictates the propriety of an executive council do not apply in a republic, where every magistrate ought to be personally responsible for his or her behavior in office.
The Threat of Intrigue and Cabal Is Higher in an Executive Council
It takes only a little consideration to satisfy ourselves that the species of security sought for in the multiplication of the executive is unattainable.
The number of members must be great enough as to render an evil combination difficult, or the council would become more a source of danger than of security.
Combining that credit and influence of several individuals is more formidable to liberty than the credit and influence of any of them separately.
When power is placed in the hands of a sufficiently small number of persons as to admit of their interests and views being easily combined in a common enterprise by an artful leader, it becomes more liable to abuse – and more dangerous when abused – than if it be lodged in the hands of one person – who from the very circumstance of being alone will be more narrowly watched and more readily suspected – and who cannot unite so great a mass of influence as when associated with others.
The Decemvirs of Rome, whose name denotes their number – 10 – were more to be dreaded in their usurpation than any single one of them would have been.
No person would think of proposing an executive much more numerous than that body, and from six to a dozen have been suggested for the number of such a council.
These numbers are not too many to prevent an easy combination from embarking on a wicked project, and America would have more to fear from such a combination than from the ambition of any single individual.
A council to the President – who is individually responsible for what he or she does – generally would be a clog upon a President’s good intentions, often would be the instruments and accomplices of a President’s bad intentions, and are almost always a cloak to a President’s faults.
The Expense of an Executive Council Would Outweigh the Benefits
I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members – who must be drawn from their homes to reside at the seat of government – would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility.
I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent person from any of the States, who did not admit, as the result of experience, that the unity of the executive in New York was one of the best of the distinguishing features of its constitution.
Hamilton
Federalist 71: A Four-Year Presidential Term Is Long Enough for Action But Too Short for Complete Tyranny
DURATION IN OFFICE is the second requisite to the energy of the executive authority.
Duration relates to two objects: (1) the personal firmness of the executive magistrate in the employment of constitutional powers, and (2) the stability of the system of administration adopted under the magistrate’s auspices.
Uncertainty as to Duration of an Executive Term Undermines Its Energy
With regard to fidelity to constitutional powers, the longer the President stays in office, the greater the probability of obtaining so important an advantage.
It is a general principle of human nature that a man will be interested in whatever he possesses in proportion to the firmness or precariousness of the tenure by which he holds it.
He will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable and more certain title, and naturally he will be willing to risk more for the sake of the more certain possession.
This remark applies to any article of ordinary property, of course, and even more so to a political privilege, honor, or trust.
The inference from it is: that a person acting in the capacity of chief magistrate – under a consciousness that in a very short time he must lay down his office – will be apt to feel himself too little interested in it to hazard censure or difficulties resulting from the independent exertion of his or her powers or encountering the ill-humors (however transient) which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the Congress.
If the case should only be that the President might lay down powers – unless continued by a new choice – and if the President should be desirous of being continued – his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station.
There are some who regard the servile pliancy of the executive to the prevailing currents – either in the community or in the legislature – as its best recommendation. But such persons entertain very crude notions of the purposes for which government is instituted, and of the true means by which the public happiness may be promoted.
The President, Like Representatives, Ought to Ameliorate the Vicissitudes of Public Opinion
There are some who regard the servile pliancy of the executive to the prevailing currents – either in the community or in the legislature – as its best recommendation.
But such persons entertain very crude notions of the purposes for which government is instituted, and of the true means by which the public happiness may be promoted.
It is a true republican principle that demands the deliberate sense of community should govern the conduct of those to whom they entrust the management of their affairs.
The principle does not, however, require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the People may receive from the arts of men, who flatter their prejudices to betray their interests.
It is a just observation that the People commonly intend the public good even when they err.
But the good sense of the People would despise the adulator who should pretend that they always reason right about the means of promoting it.
The People know from experience they sometimes err – at a surprisingly infrequent rate – since they are continually beset by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, and the desperate, by the artifices of those who obtain their confidence more than they deserve, and by those who would rather possess the People’s confidence than deserve it.
When occasions present themselves in which the interests of the People are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion, in order to give the People time and opportunity for more cool and sedate reflection.
Instances might be cited in which a conduct of this kind has saved the People from the fatal consequences of their own mistakes, and earned lasting monuments of gratitude to the individuals who had courage and magnanimity enough to serve them at the peril of their displeasure.
It is a true republican principle that demands the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs. The principle does not, however, require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the People may receive from the arts of men, who flatter their prejudices to betray their interests.
However inclined I might be to insist upon an unbounded complaisance in the executive to the inclinations of the People, we can with no propriety contend for a like complaisance to the humors of a legislature like the Congress.
A legislature may sometimes stand in opposition to the executive, and at other times the People’s representatives may be entirely neutral.
In either situation, the executive should be able to dare to act on his own opinion with vigor and decision.
The tendency of the legislative authority to absorb every other has been fully displayed and illustrated in preceding numbers, particularly Federalist 48.
This tendency is almost irresistible in purely representative governments.
The representatives of the People sometimes seem to fancy they are the People themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter, as if the exercise of rights by either the executive or the judiciary were a breach of their privilege and an outrage to their dignity.
Such representatives often appear disposed to exert an imperious control over the other departments, and as they commonly have the People on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.
Separation of Powers Is Distinct from Subordination of Powers
The doctrine of separation of powers teaches the propriety of a partition between the various branches of power. (See Federalist 47 and Federalist 48.)
It likewise dictates this partition should be so contrived as to render each one independent of the other.
Why separate the executive department or the judiciary from the legislature, if both the executive and the judiciary are constituted so they are at the absolute devotion of the legislature?
Such a separation would be in name only, and incapable of producing the ends for which it was established.
It is one thing to be subordinate to the laws, and another to be dependent on the legislative body.
Subordination of men to law comports with fundamental principles of good government; subordination of one branch to another violates these same principles, for it unites all power in the same hands, whatever may be the forms of the Constitution.
Some have asked how the shortness of the duration in office can affect the independence of an executive where the legislature does not possess the power of appointing or displacing the executive.
One answer, identified above, is the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard.
Another answer – perhaps more obvious though not more conclusive – results from the influence the legislative body has over the People.
Such influence might be employed to prevent the re-election of a person who – by an upright resistance to any sinister project of that body – has become obnoxious to its resentment.
The representatives of the People sometimes seem to fancy they are the People themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter, as if the exercise of rights by either the executive or the judiciary were a breach of their privilege and an outrage to their dignity. Such representatives often appear disposed to exert an imperious control over the other departments, and as they commonly have the People on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.
Four Years Is the Proper Length of a Presidential Term
It may be asked whether a duration of four years would answer the end proposed; and if not, whether a shorter period d at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate.
It cannot be affirmed that a duration of four years – or of any other limited duration – would completely answer the end proposed, but it would contribute towards it in a degree to have a material influence upon the spirit and character of the government.
Between the commencement and termination of such a period, there will always be a considerable interval in which the prospect of annihilation is sufficiently remote not to have an improper effect upon the conduct of an executive imbued with a tolerable portion of fortitude, during which he might reasonably promise himself there would be time enough before it arrived to make the community sensible of the propriety of the measures he might incline to pursue.
Although it be probable that – as he approached the moment when the public was, by a new election, to signify their sense of his conduct – his confidence – and with it his firmness – would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him to establish himself in the esteem and goodwill of the People.
He might then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens.
A duration of four years will contribute to the firmness of the executive in a sufficient degree to render it a very valuable ingredient in the composition, yet it is not enough to justify any alarm for the public liberty.
A duration of four years will contribute to the firmness of the executive in a sufficient degree to render it a very valuable ingredient in the composition, yet it is not enough to justify any alarm for the public liberty.
The British Experience with Its House of Commons Demonstrates Jealousy of an Executive Power Is Overstated
From its feeble beginnings, the British House of Commons – by using the mere power of assenting or disagreeing to the imposition of any new tax – have by rapid strides reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived as compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the British legislature.
If the House of Commons has been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments in the Church as well as State; what is to be feared from an elective magistrate of four years’ duration, with the confined authorities of a President of the United States?
What, but that the President might be unequal to the task which the Constitution assigns?
If the duration of four years leaves a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments.
Hamilton
Federalist 72: Presidential Term Limits Were Rejected As Unduly Restrictive
THE ADMINISTRATION OF GOVERNMENT – in its largest sense – comprehends all the operations of the body politic, whether legislative, executive, or judicial.
In its most usual – and perhaps its most precise signification – it is limited to executive details, and falls peculiarly within the province of the executive department.
Presidential administration of the Federal government includes:
(1) the actual conduct of foreign negotiations,
(2) the preparatory plans of finance, application and disbursement of the public moneys in conformity to the general appropriations of the Congress,
(3) the arrangement of the army and navy,
(4) the directions of the operations of war, and
(5) other matters of a like nature.
The persons to whose immediate management these different matters are committed ought to be considered as the assistants or deputies of the President.
On this account, they derive their offices from presidential appointment and should be subject to the President’s superintendence.
This view of the subject at once suggests the intimate connection between the duration of the President in office and the stability of the system of administration.
Presidential administration of the Federal government includes: (1) the actual conduct of foreign negotiations, (2) the preparatory plans of finance, application and disbursement of the public moneys in conformity to the general appropriations of the Congress, (3) the arrangement of the army and navy, (4) the directions of the operations of war, and (5) other matters of a like nature.
New Administrations Tend to Undo the Acts of Preceding Administrations
To reverse and undo what has been done by a predecessor is very often considered by a successor as the best proof to be given of his own capacity and desert.
In addition to this propensity, where the alteration has been the result of public choice through elections, the person substituted is warranted in supposing that the dismissal of the predecessor proceeded from a dislike to the predecessor’s measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents.
These considerations – and the influence of personal confidences and attachments – would be likely to induce every new President to promote a change of persons to fill the subordinate stations.
When combined, these causes could not fail to occasion a potentially disgraceful and ruinous mutability in the administration of the Federal government.
Limiting or Excluding a President from Re-Election Is Unwise
The four-year duration of a presidential term is necessary to give to the President the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits.
The option of reelection is necessary to enable the People – when they see reason to approve of the President’s conduct – to continue the President in station, both to prolong the utility of his talents and virtues, and to secure to the Federal government the advantage of permanency in a wise system of administration.
The Negative Effects of Exclusion Outweigh the Positive Ones
Nothing appears more plausible at first sight – nor more ill-founded upon close inspection – than a scheme of continuing the President in office for a certain time and then excluding him from it – whether for a limited period or forever after.
Whether temporary or perpetual, exclusion from office would have nearly the same effects, and those effects would be for the most part pernicious rather than salutary.
The option of reelection is necessary to enable the People – when they see reason to approve of the President’s conduct – to continue the President in station, both to prolong the utility of his talents and virtues, and to secure to the Federal government the advantage of permanency in a wise system of administration.
One ill effect of limiting a President’s eligibility for re-election would be a diminution of the inducements to good behavior.
Few persons would feel much zeal in the discharge of a duty when conscious that the advantages of the station connected with the duty must be relinquished at a determinate period, when compared to zeal they would feel if permitted to entertain a hope of obtaining, by merit, a continuance of them.
This position is indisputable, since the desire of reward is one of the strongest incentives of human conduct.
Together with having a person’s interests coincide with duty, it is the best security for fidelity to duty.
Even the love of fame – the ruling passion of the noblest minds – would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit – even those requiring considerable time to mature and perfect them – if he could flatter himself with the prospect of being allowed to finish what he had begun.
On the contrary, he would be deterred from the undertaking when he foresaw that he must quit the scene before he could accomplish the work, and must commit that work – together with his own reputation – to hands which might be unequal or unfriendly to the task.
The most to be expected from a person in such a situation is the negative merit of not doing harm, instead of the positive merit of doing good.
One ill effect of limiting a President’s eligibility for re-election would be a diminution of the inducements to good behavior. Few persons would feel much zeal in the discharge of a duty when conscious that the advantages of the station connected with the duty must be relinquished at a determinate period, when compared to zeal they would feel if permitted to entertain a hope of meriting a continuance of them.
A Limit on Presidential Terms Can Induce Unscrupulous Policies and Acts
Another ill effect of exclusion would be the temptation to sordid views, speculation, and in some instances, usurpation.
An avaricious person – looking forward to a time when he must at all events yield up the emoluments enjoyed as President – might feel a propensity (not easily to be resisted by such a person) to make the best use of the opportunity he enjoys while it lasts, and have recourse to the most corrupt expedients to make his harvest as abundant as it would be transitory.
Avarice Can Guard Avarice
The same person, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities.
His avarice might be a guard upon his avarice. If the same person also is vain or ambitious – but could expect to prolong his honors by good conduct – he might sacrifice his appetite for gain.
But with the prospect before him of an approaching and inevitable annihilation, his avarice would be likely to get the victory over his caution, vanity, or ambition.
An ambitious man, when seated on the summit of his country’s honors – and looking forward to the time when he must descend from the exalted eminence forever – and knowing also that no exertion of merit on his part could save him from the unwelcome reverse – such a man would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power (at every personal hazard) than if he had the probability of answering the same end by doing his duty.
Would it promote the peace of the community or the stability of the government to have half a dozen or so former Presidents wandering among the People like discontented ghosts, and sighing for a place they were destined nevermore to possess?
Limiting Presidential Terms Can Deprive the People of an Experienced and Popular Magistrate
A third ill effect of the exclusion would deprive the People of the advantage of the experience gained by the President in the exercise of his office.
“Experience is the parent of wisdom” is a truthful adage recognized by the wisest as well as the simplest of mankind.
What quality is more desirable or essential than experience in the government of nations?
Where is experience more desirable or essential than in the first magistrate of a nation?
It is unwise to diminish the desirable and essential quality of experience by declaring that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted.
This is the precise import of all those regulations which would exclude individuals from serving their country – by the choice of their fellow citizens – after they have by a course of service fitted themselves for doing it with a greater degree of utility.
Limiting Presidential Terms Might Unnecessarily Exclude Great Leaders
A fourth ill effect of limiting Presidential terms would be the banishment of persons from stations and offices in which their presence might be of the greatest moment to the public interest or safety, especially in certain emergencies.
There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular individuals in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence.
How unwise, therefore, must be every such self-denying ordinance prohibiting a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances!
Requiring a change of the President due to a time or term limitation leaves open the possibility that a the change might happen to coincide with a war breaking out, or any similar crisis.
Even without supposing the existing President was essential, the substitution of someone else – even of equal merit – would at all times be detrimental to the community, inasmuch as it would substitute inexperience for experience, and would tend to unhinge and set afloat the already-settled train of administration.
A fourth ill effect of limiting Presidential terms would be the banishment of persons from stations and offices in which their presence might be of the greatest moment to the public interest or safety, especially in certain emergencies.
Presidential Term Limits Undermine Stability
A fifth ill effect of the exclusion would be its operation as a constitutional interdiction of stability in the administration of the Federal government.
Necessitating a change of President necessitates mutability of his measures, for in the usual course of things it is not generally expected that men will vary yet measures remain uniform.
We need not be apprehensive about too much stability, so long as there is the option of changing administrations through Presidential elections.
Nor should we desire to prohibit the People from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy.
The disadvantages flowing from the principle of exclusion, apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other.
The Advantages of Presidential Term Limits Are Overstated
There are two asserted advantages principally advanced to support Presidential term limits: greater independence in the magistrate, and greater security to the People.
As for greater independence of the President, it would only apply if the exclusion were perpetual.
But even in the case of an absolute bar after service of one or two terms, is there no object beyond his present station, to which he may sacrifice his independence?
Will he have no connections or friends for whom he may sacrifice it?
Would it promote the peace of the community or the stability of the government to have half a dozen or so former Presidents wandering among the People like discontented ghosts, and sighing for a place they were destined nevermore to possess?
Would not a President be less willing to make personal enemies through firm conduct, when acting under the impression that a time is fast approaching when he not only may, but must, be exposed to their resentments, upon an equal or perhaps inferior footing?
It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement.
As to the greater security that Presidential term limits supposedly afford the People, there are still greater reasons to entertain doubts concerning it.
Assuming a perpetual exclusion existed, a man of irregular ambition would be infinitely reluctant to yield to the necessity of forever taking leave of a post in which his passion for power and preeminence had acquired the force of habit.
And if such a President had been fortunate or adroit enough to conciliate the goodwill of the People, he might induce the People to consider any presidential term limit to be an odious and unjustifiable restraint upon themselves, and contend it was calculated to debar them of the right of giving a fresh proof of their attachment to him.
An artful induction of disgust for term limits among the People, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary votes of the community, exercising a constitutional privilege.
As to the greater security that Presidential term limits supposedly afford the People, there are still greater reasons to entertain doubts concerning it.
There is an excess of refinement in the idea of disabling the People from continuing in office persons who have entitled themselves to the People’s approval and confidence.
The advantages of limits are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive.
Hamilton
[Ed. note: Amendment XXII, ratified in 1951, provides: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.”]
Federalist 73: The President Must Have Adequate Financial Support and Means for Self-Defense
THE THIRD INGREDIENT towards constituting the vigor of the executive is an adequate provision for its support.
Without support, separation of the executive department from the legislative department would be nominal and nugatory.
The Congress – having a discretionary power over the salary and emoluments of the President – could render the President obsequious to their will.
In most cases, the Congress might either reduce him by famine or tempt him by largess to effect a surrender of his judgment and discretion to their inclinations.
While there are some who could neither be distressed nor won into a sacrifice of duty, this stern virtue is the growth of few soils.
In the main it will be found that a power over a man’s support is a power over his will.
If it were necessary to confirm so plain a truth by facts, examples would not be wanting – even in this country – of the intimidation or seduction of the executive by the terrors or allurements of the pecuniary arrangements of the legislative body.
The Prohibition of Any Salary Reduction Will Insulate the President
I therefore cannot commend too highly the judicious attention paid to this subject in the Constitution, where it is there provided: “The President of the United States shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” Art. II, § 1, cl. 7, emphasis added.
It is impossible to imagine any provision more eligible for inclusion than this.
Upon the appointment of a President, the Congress is once and for all to declare what shall be the compensation for services during the time for which he shall have been elected.
This done, they will have no power to alter it – either by increase or diminution – until a new period of service by a new election commences.
By this rule, the Congress can neither weaken the President’s fortitude by depleting his necessities, nor corrupt his integrity by appealing to his greed and avarice.
Neither the United States nor any individual State will be at liberty to give or receive any other emolument than that determined by the first act of setting compensation.
The President, of course, can have no pecuniary inducement to renounce or desert the independence the Constitution intends for the chief executive.
The Presidential Power to Veto Is Essential to Executive Energy
Competent powers are the last of the requisites to energy in the executive.
The first thing we see is the qualified negative of the President upon the acts or resolutions of the Congress.
The President has the power of returning all bills with objections, which will prevent their becoming law, unless two thirds of both the Senate and House of Representatives afterwards ratify the measure, in which event the vetoed measure becomes law.
From the perspective of the President, if more than one third of either half of the Congress agrees with the veto, the veto stands.
From these clear and indubitable principles, it is proper to give the executive a negative power – either absolute or qualified – upon the acts of the legislative department.
I have already noted in Federalist 48 the propensity of the legislative department to intrude upon the rights and absorb the powers of the executive and judicial departments, the insufficiency of mere paper or parchment delineations of the boundaries of each, and the necessity of furnishing each with Constitutional arms for its own defense.
From these clear and indubitable principles, it is proper to give the executive a negative power – either absolute or qualified – upon the acts of the legislative department.
Without either an absolute or qualified veto power, the President would be completely unable to defend against the depredations of the Congress.
The President might gradually be stripped of authorities by successive resolutions, or annihilated by a single vote.
Whether one or the other, the legislative and executive powers might speedily come to be blended in the same hands.
The Veto Power Is Premised Not on Presidential Superiority, But Legislative Fallibility
Some objected to a presidential negative on the ground that a single individual would not possess more virtue and wisdom than a number of them, as in a legislative body.
When examined, this observation proved more specious than solid.
The propriety of an executive veto power is not based on a supposed superior wisdom or virtue of a President acting alone.
Instead it supposes the Congress will not be infallible; that the love of power may sometimes betray a legislature into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself would condemn upon more mature reflection.
One Department Ought Not Have the Opportunity to Dominate Another
Even in the absence of a legislative propensity to invade the rights of the executive, the rules of just reasoning and theoretic propriety teach us the executive ought not to be left to the mercy of the legislature, but must possess a constitutional and effectual power of self-defense.
The Limited Presidential Veto Power Can Forestall and Prevent Bad Laws, and Ameliorate Misguided Factions
The primary inducement to conferring veto power upon the President is to enable a self-defense against legislative encroachments.
The veto power has a further use, for it not only serves as a shield to the President, but furnishes an additional security against the enactment of improper laws.
It establishes a salutary check upon the Congress, calculated to guard the community against the effects of faction, precipitancy, or any impulse unfriendly to the public good then happening to influence a majority of that Legislative body.
This secondary purpose of the executive veto power favors the community against the passage of bad laws, whether through haste, inadvertence, or design.
The more often a proposed measure is brought under examination, the more will be the diverse situations of those who examine it, and the less will be the danger of those errors which flow from want of due deliberation, or those missteps which proceed from the contagion of some common passion or interest.
It is less likely these errors would infect all the parts of the Federal government at the same moment and in relation to the same object.
It is more likely that a common passion or interest would govern and mislead each department in turn.
The propriety of an executive veto power is not based on a supposed superior wisdom or virtue of a President acting alone. Instead it supposes the Congress will not be infallible.
The Veto Power Will Not Defeat Good Laws
Those opposed to an executive veto power have said the power of preventing bad laws includes the power of preventing good ones, and may be used to the one purpose as well the other.
But this objection has little weight with those who can properly estimate the mischiefs caused by inconstancy and mutability in the laws, which are the greatest blemishes upon the character and genius of our governments.
Those familiar with these defects would consider as beneficial every institution calculated to restrain the excesses of lawmaking and to promote continuity at any given period, since it greatly favors the stability required in any competent legislative system.
Any injury which may possibly be done by defeating a few good laws will be amply compensated by the advantages of preventing a number of bad ones.
Nor is this all.
The superior weight and influence of the legislative body in a free government – and the hazard to the executive who seeks a trial of strength with that body – afford a satisfactory security that a veto will be issued with great caution, so that a President will more often be accused of timidity rather than rashness in use of the Veto Clause.
The British Monarch Rarely Exercises Veto Power, and only as a Last Resort
The monarch of Great Britain – possessing a train of sovereign attributes and all the influence drawn from a thousand sources – would hesitate to put a negative upon the joint resolutions of the two houses of Parliament.
A king or queen would not fail to exert the utmost resources of that influence to strangle a disagreeable measure in its progress to the throne, in order to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body.
Should the British monarch ultimately venture to exert a negative prerogative, it invariably is limited to cases of manifest propriety or extreme necessity, with very considerable periods between its use.
The British Example Demonstrates Presidential Vetoes Will Be Infrequent
If an executive magistrate as powerful and well fortified as a British monarch would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a Federal government wholly and purely representative of the People?
In the situation where the President possesses only a common share of firmness, there would be a greater danger that the Veto Clause would not be invoked when necessary, than it would be used too often or too much.
Drawing on this, clever opponents to the veto power argued it was a power odious in appearance and useless in practice.
Simply because a power might be rarely exercised, it does not follow that it would never be exercised.
In the cases for which the Veto Clause is chiefly designed – an immediate attack upon the Constitutional rights of the executive, or a case in which the public good was evidently and palpably sacrificed – a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility.
In the case of an immediate attack upon the executive’s constitutional rights, the President’s fortitude would be stimulated by an immediate interest in preserving the power of his office.
In the case where the public good was evidently and palpably to be sacrificed, the President would be induced to exercise a veto due to the probability of sanction by constituents at the next election.
While the People naturally incline to the legislative body in a doubtful case, they would hardly suffer their partiality to delude them in a very plain case.
These remarks are inapplicable to those executives who will have the courage to do their duty at every hazard under any circumstances.
The primary inducement to conferring veto power upon the President is to enable a self-defense against legislative encroachments. The secondary purpose of the executive veto power favors the community against the passage of bad laws, whether through haste, inadvertence, or design.
The Legislative Authority to Overturn a Presidential Veto Is a Sound Check on Executive Abuse
The Constitutional Convention sought a mean between the extremes of an absolute veto or no veto at all.
While the initial exercise of the veto power is vested in the executive, its efficacy depends on the sense of a considerable part of the legislative body.
Instead of an absolute negative, the executive has the qualified negative already described.
A qualified negative is a power much more readily exercised than an absolute negative.
A President who might be afraid to defeat a law by a single veto, might not scruple to return the measure for reconsideration, since final rejection would depend on more than one third of the Senators or Representatives concurring in the sufficiency of the President’s objections.
The direct and categorical negative of an absolute veto is more harsh and apt to irritate than the President’s suggestion of argumentative objections to be approved or disapproved by the Congress.
A President will be encouraged by the reflection that a veto will succeed only if a very respectable proportion of Senators or Representatives unite in supporting the propriety of the President’s conduct in the public opinion.
The less the veto power is apt to offend, the more apt it is to be exercised, and for this reason will be more effectual in practice.
It will not often happen that improper views will govern so large a proportion as two thirds of both chambers of the Congress at the same time, and even less so considering the countervailing weight of the executive.
It is far more likely that erroneous views will taint the resolutions and conduct of only a bare majority.
The power of a negative in the executive will often have a silent and unperceived – yet forcible – operation.
When persons engaged in unjustifiable pursuits are aware that obstructions may come from a quarter they cannot control, the bare apprehension of opposition will often restrain them from doing what they would eagerly do if no such external impediments were to be feared.
The Success of New York’s Qualified Executive Veto Power
In New York, the veto power is vested in an executive council consisting of the governor and the judges on the State’s highest court, who have freely employed the veto upon a variety of occasions, and frequently with success.
Its utility became so apparent that persons who once violently opposed it later become its declared admirers through experience.
The power of a negative in the executive will often have a silent and unperceived – yet forcible – operation. When persons engaged in unjustifiable pursuits are aware that obstructions may come from a quarter they cannot control, the bare apprehension of opposition will often restrain them from doing what they would eagerly do if no such external impediments were to be feared.
The Qualified Veto Power of Massachusetts Was Ultimately Found Most Suitable
I remarked in Federalist 69 that the Constitutional Convention departed from the New York veto model in favor of the Massachusetts model.
Two strong reasons justified this preference.
One is that judges – who are interpreters of the law – might be improperly biased from having previously given an opinion in their revisionary capacities.
The other reason is that judges are often associated with the executive, which might induce them to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judicial departments.
It is impossible to keep judges too distinct from every other avocation than that of expounding the laws.
It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the executive.
Hamilton
[Ed. note: The pertinent part of the Veto Clause provides: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. . . .” (Art. I, § 7, cl. 2.)]
Federalist 74: A President May Pardon All Except Those Who Are Impeached
THE PRESIDENT OF THE UNITED STATES is the “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.” Art. II, § 2, cl. 1, emphasis added.
The propriety of this provision is self-evident and consonant with the precedents of the State constitutions.
Even those State constitutions that join the chief executive with a council in the exercise of powers have for the most part concentrated the military authority in the chief executive alone.
The President Must Control the Conduct of War
Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.
The direction of war requires direction of the common strength.
The power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.
The President May Require Official Reports from Executive Officers
The President “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.” Art. II, § 2, cl. 2.
This is a mere redundancy included for clarity, since the right it authorizes would result from the office itself.
The Broad Pardon Power Is Best Exercised by a Single Person
The President is granted the “Power to grant Reprieves and Pardons for Offences against the United States, except in cases of impeachment.” Art. II, § 2, cl. 1 (emphasis added).
Both humanity and good policy dictate the benign prerogative of pardoning should be shackled or impeded as little as possible.
The criminal codes of every country are so severe that justice would wear a countenance too bloodthirsty and cruel without an easy access to exceptions in favor of unfortunate guilt.
A sense of responsibility is always strongest when undivided.
Thus an individual would be the most apt to attend to those forces which might plead for a mitigation of the rigor of the law, and the least apt to yield to those considerations calculated to shelter a fit object of the law’s vengeance.
Knowing that the fate of a fellow creature depended on his sole fiat would naturally inspire scrupulousness and caution in the President.
The dread of being accused of weakness or connivance in granting a pardon would beget an equal circumspection, though of a different kind.
Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war requires direction of the common strength. The power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.
Groups of Individuals Are More Prone to Abuse the Pardon Power More Often
Groups of individuals generally derive confidence from their numbers.
On the one hand, they might often encourage each other to be unyielding and hard-hearted in the exercise of the pardon power.
On the other hand, a group holding the pardon power might be less aware of the suspicion and censure an injudicious or predetermined clemency would arouse in the community.
On these accounts, the mercy of government should be dispensed by one individual rather than a group of them.
The Pardon Power Properly Extends to Treason
Treason is a crime directed at the government itself.
Once the guilt of the offender is ascertained, it would seem fit to refer an act of mercy towards that offender to the judgment of the Federal legislature.
Further, the possibility always exists that the chief Executive – our President – might connive with the offender to effect a pardon.
For these reasons, some proposed that the power to pardon treason ought to require the assent of one or both chambers of the Congress.
But these concerns are outweighed by strong objections to a plan to vest the pardon power all or part of the Federal legislature.
A single individual of prudence and good sense is better fitted than a body of any number to balance the motives which may plead for and against the remission of the punishment in what might be delicate circumstances.
A single individual of prudence and good sense is better fitted than a body of any number to balance the motives which may plead for and against the remission of the punishment in what might be delicate circumstances.
Treason will often be connected with seditions that can embrace a large proportion of the community, as happened recently in Massachusetts, when economic difficulties led to a popular rebellion against Federal and State authorities.
In every such case, we might expect to see the representatives of the People tainted with the same spirit which had given birth to the offense.
Where a sedition proceeds from causes that inflame the resentments of the major party, the same representatives might be found obstinate and inexorable towards the offending minor party, when sound policy actually demanded forbearance and clemency.
Where the parties are pretty well equally matched, the friends and sympathizers of the condemned person – availing themselves of the weakness of some good-natured representatives – might persuade them to bestow the impunity of a pardon, when in fact the terror of an example was needed.
The Occasional Need for Swift Action Is the Ultimate Reason the Executive Alone Controls the Pardon Power
The decisive reason for reposing the power of pardon to the President is this: in seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.
Should one or more of these moments pass without action, they become impossible to recall.
The dilatory process of convening one or both branches of Congress to obtain approval of a pardon would frequently let slip the golden opportunity.
The loss of a week, a day, or even an hour may sometimes prove fatal.
Congress Ought to Have No Say at All in the Final Decision to Pardon
As for the suggestion that one or both branches of the Federal legislature might be vested with the power to pardon – subject to occasionally conferring it to the President in such emergencies – in the first place it is questionable whether the legislative department could delegate one of its powers to another department under our limited Constitution.
In the second place, it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity to the offenders.
The act of conferring such power out of the usual course would likely be construed as timidity or weakness, and would have a tendency to embolden guilt.
Hamilton
Federalist 75: The Power to Make Treaties Rests with the President and Senate in a Distinct Federal Department
The President has the power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” Art. II, § 2, cl. 2.
The President Is an Integral Part of Treaty Negotiations
Although this provision was assailed on different grounds with no small degree of vehemence, it is well considered and unexceptionable.
One objection rested on the trite topic of improper intermixture of powers.
Some argued the President ought alone to possess the power of making treaties, while others proposed the Senate as the exclusive repository of this power.
Others disapproved of the relatively small number of individuals involved in the process, urging participation of the House of Representatives.
Still others contended approval should require two thirds of all members of the Senate, rather than two thirds of those present.
The provision in question was discussed in Federalist 64, and I flatter myself the observations made there suffice to place it in a very favorable light to a discerning eye.
Hence here I shall content myself with offering only some supplementary remarks regarding the objections just stated.
With regard to the asserted improper intermixture of powers, I refer to Federalist 47 and Federalist 48, which discuss the application of the doctrine of separation of powers to the Constitution.
From those numbers I shall take it for granted that the union of the executive with the Senate is no infringement of that rule with respect to treaties.
I venture to add that the particular nature of the power of making treaties establishes the propriety of that union.
Although several writers on the subject of government have placed the power of making treaties in the class of powers belonging to the executive, this is an arbitrary disposition.
If we attend carefully to its operation, the power partakes more of the legislative than of the executive character, although it does not seem strictly to fall within the definition of either of them.
The essence of the legislative authority is to enact laws, that is, to prescribe rules for the regulation of the society.
The essence of the executive authority is to execute those laws using the common strength or the common defense.
Treaties are contracts with foreign nations. These contracts have the force of law, but they derive this force from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power of making treaties forms a distinct department that properly belongs to neither the legislative nor the executive.
Treaties Are Contracts Negotiated Between Sovereigns
The power of making treaties is distinct from both.
The power does not relate to the execution of existing laws, nor to the enactment of new ones, and even less to an exertion of the common strength.
Treaties are contracts with foreign nations.
These contracts have the force of law, but they derive this force from the obligations of good faith.
They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.
The power of making treaties forms a distinct department that properly belongs to neither the legislative nor the executive.
The indispensable qualities for the management of foreign negotiations – explained in Federalist 63 and Federalist 64 – identify the President as the most fit agent in those transactions, while the vast importance of the trust involved and the operation of treaties as laws demand the participation of the whole or part the legislative body in making them.
The Treaty-Making Power Cannot Rest with the President Alone
The President alone must not have the entire power of making treaties.
While that power might safely or properly be given to an executive magistrate in a hereditary monarchy, it would be utterly unsafe and improper to entrust that power to an elective magistrate of four years’ duration.
A hereditary monarch – though often an oppressor of the people – has too much stake personally in the government to be corrupted by foreign powers in any material way. But an individual raised from the station of a private citizen to the rank of President – possessed perhaps of a moderate or slender fortune, and envisioning a return to that station in the near future – might sometimes be under temptation to sacrifice duty to interest, a situation only superlative virtue could withstand.
An avaricious individual be tempted to betray the interests of the People to the acquisition of wealth.
An ambitious individual might solicit the aid of a foreign power for his own benefit, the price of his treachery to his constituents.
The history of human conduct warrants no exalted opinion of human virtue.
It would be unwise for a nation to commit its interests concerning dealings with the rest of the world – often both delicate and momentous – to the sole disposal of an individual who serves as a President of the United States.
The Treaty-Making Power Cannot Rest with the Senate Alone
Similarly, entrusting the power of making treaties to the Senate alone would relinquish the benefits of the Constitutional agency of the President in the conduct of foreign negotiations.
While presumably the Senate could employ the President as a negotiator, pique or cabal might induce it to forego this option.
Besides this, the President – being merely a ministerial servant of the Senate – would be unable to act with the degree of weight or efficacy accorded an individual holding constitutional authority.
Foreign powers would naturally have less confidence in and respect for the President’s authority, and the United States thereby would lose a considerable advantage in the management of its external concerns.
And in turn the People would be deprived of the additional safety that would result from the cooperation of the President.
The President and Senate Working Together Is Better than Either Acting Alone
Anyone who maturely weighs the circumstances which must occur for the appointment of a President (see Federalist 68) will be satisfied the office will always bid fair to be filled by individuals of wisdom and integrity, rendering their concurrence in the formation of treaties peculiarly desirable.
In sum, the joint possession of the power of making treaties by the President and Senate will afford a greater prospect of security than the separate possession of that power by either of them.
The history of human conduct warrants no exalted opinion of human virtue. It would be unwise for a nation to commit its interests concerning dealings with the rest of the world – often both delicate and momentous – to the sole disposal of an individual who serves as a President of the United States.
The House of Representatives Is Properly Excluded from Treaty Negotiations and Approval
As for the admission of the House of Representatives to a share in the formation of treaties, my remarks in Federalist 64 reject that option with conclusive force.
Taking future increases of that body into account, its multitudinous and fluctuating composition forbid us to expect it to possess those qualities essential to the proper execution of such a trust.
The qualities essential to making treaties – accurate and comprehensive knowledge of foreign politics, a steady and systematic adherence to the same views, a delicate and uniform sensibility to national character, secrecy, decision, and dispatch – are incompatible with the genius of a body so variable and so numerous.
Adding the concurrence of the House of Representatives to that of the President and Senate would itself complicate the business of making treaties.
It would require both more frequent calls upon House members and more time to keep them together when convened to obtain their sanction in the progressive stages of a treaty.
The inconvenience and expense alone ought to condemn the project.
The qualities essential to making treaties – accurate and comprehensive knowledge of foreign politics, a steady and systematic adherence to the same views, a delicate and uniform sensibility to national character, secrecy, decision, and dispatch – are incompatible with the genius of a body so variable and so numerous as the House of Representatives.
Requiring Treaty Approval by Two Thirds of Senators Present Is Better than Requiring Two Thirds of All Senators
The remaining objection to Senate concurrence would have substituted the proportion of two thirds of the entire Senate for two thirds of the members present, as the Constitution specifies.
All provisions requiring more than the majority of any body to its resolutions have a direct tendency to impede its operations and an indirect tendency to subject the sense of the majority to that of the minority.
This consideration alone was sufficient to determine the Constitution goes as far as necessary to secure the advantage of numbers in the formation of treaties as can be reconciled with either the activity of the public councils or a reasonable regard to the major sense of the community.
If two thirds of the entire Senate were required for treaty approval, in practice it would require near unanimity if some members chose not to attend.
Demanding the approval of two thirds of all Senators is simply a demand for higher proportion of those Senators already in attendance.
The history of every political establishment where this principle has prevailed is one of impotence, perplexity, and disorder.
Proofs might be adduced from the examples of the Roman tribuneship, the Polish diet, and the states-general of the Netherlands, but examples from our own experience make foreign precedents unnecessary.
If two thirds of the entire Senate were required for treaty approval, in practice it would require near unanimity if some members chose not to attend.
Requiring Two Thirds of Senators Present Promotes Punctual Attendance
The motives to punctual attendance are diminished by a continuing demand for one’s presence at all times.
But a body that depends on a proportion of those present has the opposite effect, since the presence or absence of a single member can make all the difference.
As this tends to promote punctuality, it tends to keep the body complete.
In all likelihood, the same number of Senators will be present for the vote whether the requirement is two thirds of the whole or two thirds of those present.
With the members voting individually, the active voices in the Senate would rarely fall short in number of active voices present in the Congress under the Articles of Confederation.
When we add to these considerations the participation of the President, the People of America would have greater security against an improper use of the power of making treaties than existed prior to adoption of the Constitution.
And when finally we envision the likely erections of new States and the consequent addition of Senators, we can have even greater confidence in the sufficiency of members to whose agency the power of making treaties will be entrusted, as well as the knowledge that a body more numerous than the Senate would very little fit for the proper discharge of the trust.
Hamilton
Federalist 76: The Power to Appoint U.S. Officers Is Best Posited in a Single Individual – the President – with the Concurrence of a Select Legislative Body – the Senate
Constitutional Provisions regarding the Appointment Power
THE PRESIDENT “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 . . . .” Art. II, § 2, cl. 2, emphasis added.
“[B]ut 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.” Ibid.
In addition, 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.” Ibid. (emphasis added).
I observed in Federalist 68 that “the true test of a good government is its aptitude and tendency to produce a good administration.”
If the justness of this observation be admitted, the mode of appointing the officers of the United States set forth in the foregoing clauses is particularly commendable.
It is not easy to conceive of a plan better calculated than this to promote a judicious choice of individuals for filling the offices of the Federal government, and upon which it must essentially depend for the character of its administration.
Vesting the Appointment Power in the People Collectively Was Rejected as Impractical
Some consideration was given to vesting the appointment power in the People collectively, who from their number and dispersed situation are less susceptible to the regulation of their movements by the systematic spirit of cabal and intrigue that can effect any assembly or body of individuals.
This option, though, was readily admitted to be impracticable; as waiving every other consideration, it would leave the People little time to do anything else.
It was thus decided the power to appoint federal officers be delegated to their elected representatives.
The Three Ways to Exercise the Appointment Power
It was agreed on all hands that the power of appointment could be vested in three ways:
(1) in a single individual,
(2) in a select assembly of a moderate number, or
(3) in a single individual, with the concurrence of such an assembly.
An Individual Is Better Suited than a Committee to Select Officers
Those who have themselves reflected upon the subject (or who have attended to the observations made in other parts of these Papers) in relation to the appointment of the President – I presume will agree to the position, that there would always be great probability of having the place supplied by an individual of at least respectable abilities.
On this premise, I proceed to lay it down as a rule – that one individual of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of individuals of equal or perhaps even of superior discernment.
It was agreed on all hands that the power of appointment could be vested in three ways: (1) in a single individual, (2) in a select assembly of a moderate number, or (3) in a single individual, with the concurrence of such an assembly.
The sole and undivided responsibility of one individual will naturally beget a livelier sense of duty and a more exact regard to reputation.
A single individual will – on this account – feel under stronger obligations – and be more interested to investigate with care the qualities requisite to the stations to be filled – and thus to prefer with impartiality the persons who may have the fairest pretensions.
A single individual will have fewer personal attachments to gratify than a body of individuals – each of whom may reasonably be supposed to have an equal number of attachments.
The President will therefore be much less liable to be misled by the sentiments of friendship and of affection.
A single individual – directed by a single understanding – will be less likely to be distracted by that diversity of views, feelings, and interests which frequently warp the resolutions of a collective body.
There is nothing so apt to agitate the passions of mankind as personal considerations – whether they relate to ourselves or to others who are to be the objects of our choice or preference.
Hence in every exercise of the power of appointing to offices by an assembly of persons, we must expect to see a full display of all their private and party likes and dislikes, partialities and antipathies, attachments and animosities felt by those who compose the assembly.
A single individual – directed by a single understanding – will be less likely to be distracted by that diversity of views, feelings, and interests which frequently warp the resolutions of a collective body.
Nomination by Committee Results in Party Battle and Compromise
The collective choice to be made under such circumstances will be the result either of a victory gained by one party over the other, or a compromise between the parties.
In either case, the intrinsic merit of the candidate will too often be obscured.
In the case of a party victory – the qualifications will be those best adapted to uniting the votes of the majority party – rather than those which fit the person for the station.
In a party compromise, the coalition will commonly turn upon the trade of an equivalent appointment: “Give us the person we wish for this office, and you shall have the one you wish for that.”
This will be the usual condition of the bargain.
Whether the appointment results from a party victory or compromise, rarely will the advancement of the public service be the primary object.
All the Advantages of Vesting the Appointment Power in the President Alone Are Retained Even Though Senate Approval Is Required
Some suggested the President ought solely to have the power of appointments.
But it is easy to show that every advantage to be expected from such an arrangement would be derived from the power of nomination alone, while several disadvantages attending the absolute power of appointment in the hands of a single individual would be avoided.
Even if the President’s nominee fails to obtain Senate approval, this would only make place for another nomination by the President. The person ultimately appointed must be the object of presidential preference, though perhaps not in the first degree.
In the act of nomination, only the President’s judgment would be exercised – and having the sole duty to point out the person who should fill an office – the exercise of responsibility would be as complete as if making the final appointment.
In this view, there is no difference between nominating and appointing. The same motives influencing a proper discharge of duty in one case would exist in the other.
And since no one can be appointed but on the President’s nomination, every person who might be appointed would actually be the President’s choice.
Even if the President’s nominee fails to obtain Senate approval, this would only make place for another nomination by the President.
The person ultimately appointed must be the object of presidential preference, though perhaps not in the first degree.
It is also improbable that the President’s nomination would often be overruled.
The Senate will not be tempted to reject the one proposed by any preference they might feel to another because they could not assure themselves that the person they might wish for would be brought forward by a second or by any subsequent nomination.
Dissenting Senators could not even be certain that a future nomination would present a candidate in any degree more acceptable to them.
Finally – as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the President – it unlikely their sanction would often be refused – except where there were special and strong reasons for the refusal.
Senate Approval Will Check Presidential Favoritism and Bias
Why then require the co-operation of the Senate?
The answer is the necessity of their concurrence will have a powerful (though generally silent) operation.
Senate concurrence will be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters due to bias in favor of one or more States, or from family connection, personal attachment, or even a view to popularity.
Senate approval also provides an efficacious source of stability in the administration.
It is readily apparent that an individual who alone controlled the disposition of offices would be governed much more by personal inclinations and interests than when bound to submit the propriety of the choice to the discussion and determination of a different and independent body – and that body is an entire branch of the legislature.
The possibility of rejection would be a strong motive to care in proposing.
Further, the danger to the President’s own reputation and political existence from betraying a spirit of favoritism or an unbecoming pursuit of popularity to the observation of the Senate – a body whose opinion would have great weight in forming that public opinion – could not fail to operate as a barrier to favoritism or popularity.
A President would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations candidates who had no other merit than that of (1) coming from the same State to which the President belonged, (2) being in some way or other personally allied to the President, or (3) possessing the necessary insignificance and pliancy to render them the obsequious instruments of the President’s pleasure.
It is readily apparent that an individual who alone controlled the disposition of offices would be governed much more by personal inclinations and interests than when bound to submit the propriety of the choice to the discussion and determination of a different and independent body – and that body is an entire branch of the legislature.
Fears that a President Will Overpower the Senate Are Unfounded
Some suggested the President – by the influence of the power of nomination – may secure Senate approval of the nominee.
This argument rests on the erroneous supposition of universal venality in human nature. It is little less an error in political reasoning than the supposition of universal rectitude.
The institution of delegated power implies there is a portion of virtue and honor among mankind which gives a reasonable foundation of confidence in upright behavior.
Experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments.
The venality of the British House of Commons has been long a topic of accusation against that body, both in that country and this.
It cannot be doubted the charge is well founded to a considerable extent.
But it is as little to be doubted there is always a large proportion of the body – consisting of independent and public-spirited individuals – who have an influential weight in the councils of that nation.
Hence the sense of that body is often seen to control the inclinations of the monarch, both with regard to individuals and to measures.
So even supposing the President might occasionally influence some individuals in the Senate, it is forced and improbable to suppose the President could purchase the integrity of the whole body.
A person disposed to view human nature as it is – without either flattering its virtues or exaggerating its vices – will see sufficient ground of confidence in the probity of the Senate to rest satisfied – not only that it will be impracticable to the executive to corrupt or seduce a majority of its members – but that the necessity of its co-operation in the business of appointments will be a considerable and salutary restraint upon the conduct of the President.
The institution of delegated power implies there is a portion of virtue and honor among mankind which gives a reasonable foundation of confidence in upright behavior. Experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments.
Restrictions on New Office or Emoluments Are a Further Security
Nor is the integrity of the Senate the only reliance.
The Constitution has provided some important guards against the danger of executive influence upon the legislative body, for it declares: “No senator or representative shall during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office.” Art. I, § 6, cl. 2, emphasis added.
This provision severely restricts movement from the Senate to the executive branch and vice-versa.
Hamilton
Federalist 77: Senate Concurrence in the Appointment of Officers Far Surpasses the Alternatives
Concurrence Fosters Stability of Administration
ONE OF THE ADVANTAGES from the cooperation of the Senate in the business of appointments will be its contribution to the stability of the administration, since the consent of the Senate would be necessary to displace as well as to appoint.
Therefore, a change of the chief magistrate (the President) would not occasion so violent or general a revolution in the officers of the Federal government as might be expected the President were the sole disposer of offices.
Where an individual in any station of government has given satisfactory evidence of his or her fitness for it, a new President would be restrained from attempting a change in favor of a more agreeable person by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon the Presidency.
Those who can best estimate the value of a steady administration will most prize a provision which connects the individual appointed with the approval or disapproval of the Senate, which – from the greater permanency of its own composition – will in all probability be less subject to inconstancy than any other part of the Federal government.
It Is Unlikely the President or Senate Will Wield Undue Influence Over One Another
The union of the Senate with the President in the article of appointments led some to say it would give the President an undue influence over the Senate, while others proposed it would have an opposite tendency, a strong proof that neither suggestion is true.
To restate the first contention in its proper form is to refute it.
It amounts to this: the President would have an improper influence over the Senate, because the Senate would have the power of restraining the President.
This is absurd, for a President could much more effectually to establish a dangerous empire over the Senate if granted the entire power of appointment, rather than a mere power of nomination subject to Senate control.
Consider the converse suggestion: the Senate would influence the President.
The objection is so indistinct it forbids a precise answer.
In what manner is this influence to be exerted?
In relation to what objects?
The power of influencing a person – in the sense here used – implies a power of conferring a benefit.
How could the Senate confer a benefit upon the President by employing its right to approve or reject nominations?
Some pointed to the possibility the Senate might gratify the President by acquiescence in a favorite choice even though public motives might dictate different conduct.
My answer is the instances in which the President could be personally interested in the result would be too few to effect a material advantage to the Senate.
The power which originates the disposition of honors and emoluments is more likely to attract than to be attracted by the power which can merely obstruct their course.
So if by “influencing the President” is meant the power of restraint, this is precisely what must have been intended.
It has been shown the restraint would be salutary, while not destroying a single advantage that might be gained if the President had the sole power of appointment.
The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils.
Those who can best estimate the value of a steady administration will most prize a provision which connects the individual appointed with the approval or disapproval of the Senate, which – from the greater permanency of its own composition – will in all probability be less subject to inconstancy than any other part of the Federal government.
The Constitution’s System of Appointments Far Surpasses that of New York
If one compares the mode of appointment of officers of the United States with that of New York, a decided advantage appears in the Federal government.
First, the power of nomination is unequivocally vested in the executive. And since it is necessary to submit each nomination to the judgment of the Senate (an entire branch of the legislature), the circumstances attending an appointment would naturally become well known, and the public would be at no loss to determine what part had been performed by the different actors.
The blame of a bad nomination would fall upon the President singly and absolutely.
The censure of rejecting a good one would lie entirely at the door of the Senate, particularly if the rejection counteracted the good intentions of the executive.
If an ill appointment should be made – the executive for nominating – and the Senate for approving – would participate in the opprobrium and disgrace, though in different degrees.
The reverse of all this characterizes the manner of appointment in New York.
Its council of appointment consists of from three to five persons, of whom the governor is always one.
This small body – shut up in a private apartment impenetrable to the public eye – proceed to the execution of the trust committed to them.
The governor claims the right of nomination – upon the strength of some ambiguous expressions in the constitution – but it is not known to what extent or in what manner the governor exercises it, nor upon what occasions the governor may be contradicted or opposed.
The censure of a bad appointment – due to uncertainty of its author and want of a determinate object – has neither poignancy nor duration.
An unbounded field for cabal and intrigue lies open, while all idea of responsibility is lost.
The most the public can know is (1) the governor claims the right of nomination; (2) at least two of the three four others can often be managed with little difficulty; (3) if some of the members should be of an uncomplying character, their opposition can be overcome by regulating the times of meetings to render their attendance inconvenient; and (4) from whatever cause it may proceed, a great number of very improper appointments are from time to time made.
Whether a governor of New York prefers individuals who are best qualified for their offices – or prostitutes power to the advancement of persons whose chief merit is their implicit devotion to the governor’s will – and to the support of a despicable and dangerous system of personal influence – can only be the subjects of speculation and conjecture for the public.
The Convention Rejected the Alternative of Forming a Separate Council of Appointment
However constituted, every council of appointment will be a conclave in which cabal and intrigue will have their full scope.
The number of council members cannot be made large enough to preclude a facility of combination without a corresponding unwarrantable increase of expense.
Each member will likely have friends and connections to provide for, so the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places.
The private attachments of one individual might easily be satisfied; but to satisfy the private attachments of a dozen or twenty individuals would occasion a monopoly of all the principal employments of the government in a few families, leading more directly to an aristocracy or an oligarchy than any measure a cabal could contrive.
While it might be possible to avoid such an accumulation of offices by frequently changing the persons who were to compose the council, the mischiefs of a mutable administration would fully appear.
A council smaller in size than the Senate would also be more liable to executive influence due to their fewer number, and also would act less immediately under public inspection.
To substitute such a council for the Senate would produce an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the President.
The House of Representatives Is Too Mutable and Numerous to Serve Any Role in Appointments
Some argued in favor of uniting the House of Representatives in the power of making appointments, but that body so fluctuating – and at the same time so numerous – it can never be deemed proper for the exercise of the power of appointment or ratification.
In half a century it may consist of three or four hundred persons.
All the advantages of the stability – of both the President and Senate – would be defeated by this union.
Infinite delays and embarrassments would be occasioned.
The examples of most of the States in their local constitutions confirm this.
A council smaller in size than the Senate would also be more liable to executive influence due to their fewer number, and also would act less immediately under public inspection.
The Remaining Executive Powers Are Unexceptionable
The only remaining powers of the executive are comprehended:
(1) in giving information to Congress of the state of the Union;
(2) in recommending to their consideration such measures as the President shall judge expedient;
(3) in convening them, or either branch, upon extraordinary occasions;
(4) in adjourning them when they cannot themselves agree upon the time of adjournment;
(5) in receiving ambassadors and other public ministers;
(6) in faithfully executing the laws; and
(7) in commissioning all the officers of the United States.
The only objections were invented by an insatiable avidity for censure.
Some questioned the power of convening either the House or the Senate.
With respect to the Senate, a good reason is readily apparent: since this body has a concurrent power with the executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives.
A few cavils were raised as to the reception of ambassadors, but these were answered in Federalist 69.
The Executive Department Balances the Republican Requisites of Energy, Safety, Responsibility, and Due Dependence on the People
My survey of the structure and powers of the executive department is now complete. I have shown how it combines – as far as republican principles will admit – all the requisites to energy.
The remaining inquiry is: does it also combine – in the republican sense – the requisites to safety, a due dependence on the People, and a due responsibility?
The answers to these questions must be in the affirmative.
The President will be elected or re-elected once every four years by persons immediately chosen by the People for that purpose.
The President will at all times liable to impeachment, trial, dismissal from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.
Finally, in those instances in which the abuse of the executive authority was materially to be feared – treason, bribery, or other high crimes and misdemeanors – the President would be subject to the control of the Senate.
What more could an enlightened and reasonable People desire?
Hamilton