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 original Federalist no. 67 [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 (see 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]