The Appointing Power Continued and Other Powers of the Executive Considered
From the New York Packet.
Friday, April 4, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency, a strong proof that neither suggestion is true.

To state the first 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 him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control.

Let us take a view of the converse of the proposition: “the Senate would influence the Executive.” As I have had occasion to remark in several other instances, the indistinctness of the objection 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 in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can ORIGINATE the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant RESTRAINING him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; 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; aggravated by the consideration of their having 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, though in different degrees, in the opprobrium and disgrace.

The reverse of all this characterizes the manner of appointment in this State. The 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. It is known that 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 he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination; that TWO out of the inconsiderable number of FOUR men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture.

Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of 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 Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution.

I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Representatives in the power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea.

The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.

Except some cavils about the power of convening EITHER house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. AS 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. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer.

We have now completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?

PUBLIUS.

Howdy from Arizona! As I read Alexander Hamilton’s Federalist Paper No. 77, I have such an appreciation and gratitude for our founding fathers and revolutionary heroes, great and small. They fought for our independence and dignity of soul. Their bravery was no less when they had the fortitude to gather at the Constitutional Convention and construct a document that furthered the principals of the Declaration of Independence. The following paragraph by Alexander Hamilton in Federalist Paper No. 77 reveals the genius of their collective vision.

“Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?”

Our founding fathers fiercely desired our President and our representatives to be held accountable and that they represent the people with the solemnity and dignity that the office deserves.

God Bless,

Janine Turner
Monday, August 16th, 2010

 

Greetings from Arizona!  What a beautiful state and friendly people.  We stopped to get gas, and several people wanted to know more about Constituting America – we ended up having fascinating conversations with them, about the importance of the Constitution, and their love for our country.

I haven’t blogged since I arrived in California on Friday, so I would like to take a moment to catch you up on our Constituting America We The People 9.17 Road Trip!

We spent Friday with Jacob Wood. If you haven’t listened to Jacob’s prize winning song, “What the Constitution Means to Me,” please go to www.constituting.staging.wpengine.com and listen!

Jacob is an outstanding young man! We filmed him all day in preparation for a music video we will release in the next few weeks. We loved getting to know Jacob! We also got to speak with his Pastor, and his parents who shared with us some wonderful stories about him.  Look for our Behind the Scenes Video in the coming weeks to learn more about Jacob!

Saturday we prepared for our departure, and today we took off from Los Angeles, headed to Arizona!

As we drove along looking the impressive desert vistas, I read Federalist Paper No. 77, only interrupted by Janine reminding me to look out the window and take in the views!

Federalist No. 77, The Appointing Power Continued and Other Powers of the Executive Considered, continues to explore the President’s power to nominate, and how the Senate’s role affects the balance of power between the White House and the legislative branch.  Hamilton even takes time to explore the ramifications if the U.S. House shared in the Advice and Consent role. Near the end of the essay, the remaining powers of the President outlined in Article II, Section 3 of the Constitution are quickly mentioned:

“The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.”

The requirement in the Constitution that the President deliver a State of the Union address to Congress:

“He shall from time to time give to the Congress Information of the State of the Union,”

is one of the few specific requirements of the President in the Constitution. Most of the powers given to the President may be utilized at his discretion, but the State of the Union is required.  I am surprised Publius did not spend more time on Article II, Section 3.  I find the State of the Union requirement of the President fascinating, as a validation of the President’s unique bird’s eye view of the country, and as a confirmation of the importance the framers placed on the legislative branch of government, by requiring a report be made to them.

Dr. Matthew Spalding, in the Heritage Guide to the Constitution, gives an interesting history of State of the Union speeches, on page 217.  Presidents Washington and Adams delivered their State of the Union speeches orally, as was the expectation by the framers.  Thomas Jefferson, however, broke with tradition and delivered his State of the Union speech in written form, read aloud by the clerks in Congress. Jefferson felt an in person delivery was “too pompous.” President Wilson was the first after John Adams to deliver his State of the Union orally, and every President since President Franklin D. Roosevelt has followed that tradition.  President Coolidge’s State of the Union address was the first broadcast by radio in 1923, and Harry Truman’s 1947 State of the Union address was the first broadcast by television.

I have had the privilege of attending several State of the Union Speeches, including one by President Reagan, one by President Clinton, one by President George H.W. Bush, and one by President George W. Bush.  All I witnessed were an impressive display of the three branches of government, personified by the individuals filling the U.S. House Chamber:

The members of Congress: U.S. House of Representative Members and U.S. Senators, fill the Chamber. The Speaker of the House is seated behind the President, as is the Vice President, who serves as the President pro tempore of the Senate.  The Supreme Court Justices line the front row.

One of the more famous State of the Union speeches occurred when President Obama rebuked the Supreme Court for their Citizens United vs. Federal Election Commission decision:

“with all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’d urge Democrats and Republicans to pass a bill that corrects some of these problems.”

Many have debated if it was appropriate for President Obama to criticize the Judiciary Branch so strongly in such a forum, with the Justices seated directly in front of him.  The appropriateness of Justice Alito’s reaction, of mouthing “not true,” has also been debated and discussed.  I believe that when attacked, a person has a right to defend himself. Justice Alito was perfectly within his bounds mouthing “not true.”  It is unfortunate it was necessary.

Just as President Obama should not have attacked the Supreme Court in his 2010 State of the Union, Representative Joe Wilson should not have shouted out “You lie!” in President Obama’s first State of the Union in 2009. When decorum is breached in the State of the Union, or anywhere, sadly standards degenerate on all sides.

The intricate layers of checks and balances in the United States Constitution is amazing.  They are buried in the nooks and crannies of the Constitution, and the State of the Union requirement is an example of this.  The simple requirement of a State of the Union speech puts yet another check and balance into play, and give and take between the branches goes on!

Looking forward to Federalist No. 78, the Judiciary Department!  AND looking forward to telling you about the next We the People 9.17 winner we are unveiling tomorrow in Arizona!!

Good night and God Bless,

Cathy Gillespie
Thursday, August 12th, 2010

 

Guest Essayist: Steven H. Aden, Senior Legal Counsel with the Alliance Defense Fund

Federalist 77 “complete[s] a survey of the structure and powers of the executive department,” which, Hamilton urged, “combines, as far as republican principles will admit, all the requisites to energy” the Federal Executive would require to fulfill the duties of his office.  Anticipating the skepticism of his audience, the pre-eminent Federalist added one “remaining inquiry”: “Does it also combine the prerequisites to safety, in a republican sense – a due dependence on the people, a due responsibility?”  Not to worry, Hamilton soothed:  “In the only instances in which the abuse of the executive authority was materially to be feared [i.e., appointments], the Chief Magistrate of the United States [i.e., the President] would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?”

Hamilton’s rhetorical caution with his Empire State audience may have stemmed from the depth of contention the issue of appointments had engendered in the Constitutional Convention.  The final compromise settled on language that reflected the desire to maintain a strong separation between the powers of the Executive and Legislative branches.

The late Justice Byron White, writing in Buckley v. Valeo (1976), in which the Supreme Court held that Congress had violated the Appointments Clause by constituting the Federal Election Commission with a majority of commissioners appointed by Congress instead of the President, explained the importance of the clause to the Federal system and ultimately the approval of the Federal Constitution:

The decision to give the President the exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws.

The Convention proposed, in alternative versions, that both Houses of Congress should appoint judicial officers, then that the Senate should do so.  Judicial and Executive officers were finally lumped together under the Appointments Clause, with the presumption being that the Judiciary being (in Hamilton’s phrase) “the least dangerous branch (Federalist 78),” Congress’ oversight of the President’s power of appointing federal judges would suffice for checks and balances over that branch.

Time and experience have revealed both the wisdom of the balance the Framers struck by the Appointments Clause and their myopic failure to foresee the real dangers posed by a life-tenured federal judiciary.  As to the latter, check Judge Vaughn Walker’s opinion in the Proposition 8 case last week, cavalierly tossing aside millennia of moral teaching on marriage as “irrational” and “discriminatory.”  As to the former, Executive nominations have rarely been voted down, perhaps demonstrating the “steady administration” inherent in a system in which “the circumstances attending an appointment…would naturally become matters of notoriety,” as Hamilton put it in Federalist 77.  One truly “notorious” exception was that of Senator John Tower, a powerhouse of American politics who was denied an appointment as Secretary of Defense 1989 due to a confluence of political and personal factors that seemed to bear out the wisdom of conferring the power of “salutary restraint” on Congress over presidential nominations.  The Left thought he had too many ties to defense contractors, and the Right condemned his extramarital infidelities, heavy drinking, and pro-abortion views.  Presuming a relative equipoise of power in the Senate (absent today), when both sides of the aisle have reasons to deny an appointment, it suggests that – as “Publius” predicted – the Executive is obliged to nominate moderate candidates to guide federal policy and programs, keeping the ship of state (in theory) more or less on course.

As to the hysterical political theater the Supreme Court confirmation process has become, that of course began with the nomination of eminent jurist Robert Bork to the  Supreme Court in 1987, whom Senate partisans voted down in part because of his perceived role in arrogating too much authority to the Executive Branch.  That story begins much earlier, but I will tell it as a kind of morality play whose lesson is that in the pas-de-trois dance for power between the three “co-equal” branches, “what goes around comes around,” and the consequences for overreaching may be severe.

Among President Richard Nixon’s manifold abuses of power, none inflamed his political enemies more than the “Saturday Night Massacre” of October 1973.  Nixon had appointed a Special Prosecutor for the Watergate Scandal, Archibald Cox, as a result of a promise his Attorney General, Elliot Richardson, had made to the Senate Judiciary Committee.  When Cox subpoenaed Nixon’s Oval Office tapes, Nixon ordered Richardson to fire him.  After all, Nixon reasoned, Cox was an “inferior officer,” whose tenure was at the pleasure of the Administration.  Richardson refused to fire Cox, though, and resigned in protest.  Nixon then ordered the Deputy Attorney General to fire Cox, and he likewise refused and resigned.  Nixon turned to next-in-line Robert Bork, then Solicitor General.  Bork was of the opinion that as a creature of the Executive, the special prosecutor was an “inferior officer” who served at Nixon’s pleasure, and he accordingly fired him.  In the brouhaha that ensued, Congress re-asserted its power over the Executive Branch by passing the Independent Counsel Act, restricting the authority of the Executive over congressionally authorized investigations.

On October 23, 1987, the Senate rejected Judge Bork’s confirmation after a heated public debate over his political positions.  Among the chief objections was that by backing Nixon’s authority, Bork had shown himself, in the words of the New York Times, “an advocate of disproportionate powers for the executive branch of Government, almost executive supremacy.”  A decade later, Independent Counsel Ken Starr’s investigations into President Clinton’s improprieties led in turn to the Supreme Court’s unanimous decision in Paula Jones v. William Clinton that the separation of powers doctrine did not absolve a sitting President from having to respond to charges of sexual harassment by a low-level state employee.  Jones v. Clinton may have marked the low ebb of Presidential power (though it was perhaps also the high water mark for the rule of law).  Over two decades and both Republican and Democratic administrations, the Legislative and Judicial branches had taken advantage of the character flaws of Chief Executives to substantially reduce the President’s authority.  Conversely, the power of the unaccountable Supreme Court and the uncontrollable Congress appears to be on the rise.  One hopes that the American people will soon find ways to exert a “salutary restraint” on these branches as well, and begin to return constitutional authority to the People, with whom it truly resides.

Thursday, August 12th, 2010

Steven H. Aden is senior legal counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.