July 29, 2010 – Federalist No. 67 – The Executive Department, From the New York Packet (Hamilton) – Guest Blogger: Troy Kickler, Founding Director of the North Carolina History Project.

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Thursday, July 29th, 2010

Among the 85 essays in The Federalist Papers, some of the most passionate language is in Federalist 67.  A frustrated Alexander Hamilton admits that moderation in tone in writing #67 had been a difficult task.  He denounces “writers against the Constitution” (now called Antifederalists) and accuses them of practicing “unwarrantable arts” that include disingenuousness regarding executive power and offering counterfeit information to prey on the American people and their fear of monarchy.

He specifically calls out Cato (probably former New York Governor George Clinton) and provides a lengthy, detailed explanation of the nomination and appointments and recess appointments clauses in Article 2, Section 2.   In essence, Federalist 67 has two purposes: reprimand the critics of the Constitution and explain the constitutional limitations placed on executive power.

Hamilton writes with so much verve and occasional sting—and he admits as much in the last paragraph–that it is worth including a lengthy quote: “Calculating upon the aversion of the people to monarchy, they [Antifederalists] have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as an embryo, but as the full-grown progeny. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York [here Hamilton seems to know Cato’s identity], have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.”

After rebuking Antifederals, Hamilton clarifies Article 2, Section 2 and hopes to prove that, without a doubt, State legislatures—not the President–fill Senate vacancies.  Hamilton writes that only temporary appointments, including ambassadors and justices, would be made in special circumstances such as recess of the U.S. Senate.  This clearly excluded, Hamilton writes, presidential appointments of U.S. Senators.  He then refers back to Article 1, Section 3 which guaranteed States the authority to fill permanent vacancies in the Senate.  (This was changed, however, with the passage of the 17th Amendment–popular election of Senators).

Hamilton rightly criticized Cato for misinterpreting Article 2, Section 2.  Cato, however, included the recession appointment clause in his Letter #5 (Hamilton refers to this essay in Federalist 67) as a means to argue for annual Congressional elections.  In it, Cato recalled similar ideas expressed by Algernon Sidney (1623-1683), author of Discourses Concerning Politics, and Charles de Secondat, Baron de Montesquieu (1689-1755), an Enlightenment thinker who articulated the separation of powers doctrine.  Cato believed, in short, that annual elections eliminated a need for the recess appointment clause.

But back to Hamilton’s points.  Article 2, Section 2 reveals the Framers’ fear of congressional despotism and serves as a check, alluded Supreme Court Justice Antonin Scalia in Freytag v. Commissioner (1991).  This provision helped identify the source of temporary appointments of U.S. officers and avoided the possibility of legislative machinations.  As James Wilson, a leading Pennsylvania Federalist, legal scholar, and one of the first U.S. Supreme Court justices writes, in Lectures on Law (1790-92):  “The person who nominates or makes appointments to offices, should be known. . . No constitutional stalking horse should be provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to publick view.”  Simply put, Article 2, Section 2 ensures that Americans know who is responsible for nominating appointments described within the provision.

It must be remembered that the President nominated, but Congress approved the nomination.  Presidents have sometimes evaded this procedure, to be sure, by creating positions not listed in the provision.  Grover Cleveland did so in 1893, when appointing James H. Blount to report on the Hawaiian Revolution.  Hamilton argues in Federalist 67 that presidents do not confirm the officers listed in Article 2, Section 2. As James Iredell, a leading North Carolina Federalist reminded delegates at his state’s ratification convention, “The President proposes such a man for such an office.  The Senate has to consider upon it.  If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.”  History has provided examples of implementing this governmental check: approximately 20% of Supreme Court nominations have NOT been confirmed, to name only one example.

Although Hamilton uses an accusatory tone, all involved in the ratification debates were concerned with defending liberty.  The debates prompted a more clear explanation of the Constitution’s checks and balances and limits on governmental power.  We can be thankful for that.

Troy Kickler is Founding Director of the North Carolina History Project.

 

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