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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.

Greetings from Long Beach Island New Jersey!  What fun I’ve been having reading the Federalist Papers on the beach! And what interesting looks I get from passersby who take the time to glance at the cover of my book.

Federalist Papers 68-77 are especially interesting to me personally, as I have been fascinated by the Presidency for as long as I can remember. My first “political” experience was writing to President Nixon when I was in grade school, telling him I was praying for him during his struggles.  In Junior high, I begged my father to take me to SMU, in Dallas near where I grew up, to stand in a rope line in order to catch a glimpse of President Gerald Ford.  I voted for the first time in 1980, proudly casting my ballot for Ronald Reagan.  My first college course in political science at Texas A&M was taught by an expert in the Presidency, and although regretfully I can’t remember his name, I loved the course so much, I switched my major from business to political science that semester!

During the last decade, I got an even closer look at the Presidency through my husband’s work with President George W. Bush, and opportunities our family had to interact with him.  I had always admired President Bush’s steady leadership, and his unwavering commitment to certain values and principles, most notably keeping America safe. But getting to know him personally, I admired the way he carried the office of the Presidency.  When you are President, you are always President, whether relaxing in a small group or at public events.  President Bush respected the office, and lived every day in a way that could make our country proud.

Thank you to Professor Joerg Knipprath for your enlightening and thorough essays on Federalist Papers No. 69 (The Real Character of the Executive ) and 70 (The Executive Department Further Considered ).  The historical background you provide gives a useful prism from which to view these two papers that explore the President’s powers versus those of the British Monarch and the New York Governor, and the decision of the founders to have a unified executive, versus two or more heading that branch.

In Federalist No. 69 Publius makes a convincing argument that the United States Presidency, while powerful enough to head the country, is not as powerful as the King, or even the New York Governor (with the exception of the power to make treaties).  This is a fascinating comparison, and reveals the founders’ thought process on why the Presidency of our country is vested with certain powers and limited in others.

Some of the President’s powers originally outlined by the founders have waned, while others have increased. The President’s term in office still remains at four years, but is now limited to two terms by the twenty-second Amendment.

The President’s power 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,”

has been expanded over the years by the President’s ability to create “Czar” positions.  These “Czar” positions sound eerily similar to the power Publius ascribes to the King, and denies the President having:

The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices.”

Time Magazine provides an interesting history of “Czars” in the United States at this link: http://www.time.com/time/politics/article/0,8599,1925564,00.html

Time states the first Czar existed in President Woodrow Wilson’s cabinet during World War I, when Wilson appointed Bernard Baruch to head the War Industries board, and was known as the Industry Czar.  This must have been the proverbial camel’s nose under the tent, as the use of “Czars” has mushroomed from that point forward.

In Federalist No. 70, Publius defends the decision of the founders to have a single executive in the office of the Presidency head the executive branch, versus two or more individuals.  The benefits of a unified executive make an extraordinary amount of sense, especially in protecting the people’s liberty through transparency, and accountability.  As difficult as it was to pinpoint blame in Watergate, for example, imagine how much more difficult it might have been had there been two Chief Executives.  Professor Knipprath quotes Harry Truman’s famous line, “the buck stops here,” and that indeed is one of the most important attributes of the United States Presidency.

The founders’ grasp of history, as they detail the failures of past plural executives, such as the Achaens, or the dissensions between the Consuls and the military Tribunes in Roman history once again illuminates their arguments.  And their grasp of human nature is equally as profound –

“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.”

“Men 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. But if they have been consulted, and have happened to disapprove, 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. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.”

Our United States Presidency is a unique institution, crafted thoughtfully and skillfully by our founding fathers!

On to Federalist #71!

Good night and God Bless,

Cathy Gillespie

Tuesday, August 3rd, 2010

 

The Powers of the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In Federalist 69, Hamilton responds to the charge by the Constitution’s opponents that the president is an American king. He compares the powers of the “president of confederated America” (interesting phrasing) under the Constitution with those of the king of Great Britain and the governor of New York. He chooses the latter for several reasons. First, the essays of Publius are written during the pendency of the New York and Virginia ratifying conventions and were obviously intended in the first instance to influence those closely-fought skirmishes.

Second, Hamilton was deeply involved in state politics as a member of the downstate faction that favored both the Constitution and, later, the Federalist Party. Though it is hard to believe today, New York City politically was, in many ways, a Tory town. It was a hotbed of Loyalist sentiment during the Revolutionary War, so much so that the British made it their headquarters. Hamilton was intimately familiar with the operation of his state’s government and, given the emerging significance of the city and state, would  find New York’s system more important than others’.

Third, the governor of New York was a rather strong chief executive compared to the state governors at the time. Comparing the president’s powers favorably to those of a republican American state executive would resonate particularly well with the persuadable delegates by avoiding charges that comparing the prerogatives of the president to those of the British monarch was irrelevant to the cause, as no American king was to be crowned.

But there is one more reason. The governor of New York, George Clinton, was the presiding officer at the convention and a staunch Antifederalist. He was also a member of the upstate Albany faction politically opposed to Hamilton. Clinton is the likely author of potent attacks on the Constitution in  “Letters of Cato.” Many historians believe that it was the publication of some of those letters that induced the Constitution’s supporters to organize the effort that became The Federalist. The executive was one of Cato’s particular concerns. In an essay published four months before Federalist 69, Cato labeled the president the “generalissimo of the nation,” assailed the scope of the president’s powers, compared those powers alarmingly with those of the king of Great Britain (especially the war power), and warned, “You must, however, my countrymen, beware that the advocates of this new system do not deceive you by a fallacious resemblance between it and your own state government [New York]….If you examine, you…will be convinced that this government is no more like a true picture of your own than an Angel of Darkness resembles an Angel of Light.” Hamilton had no choice but to respond.

The result is a brief comparative overview, the particulars of which do not matter much today, as the king’s prerogatives, already circumscribed then, are virtually non-existent now. The essay does provide an introduction to various powers of the president, most of which are in Article II of the Constitution. Hamilton will delve into greater detail of various of them over the course of Federalist 73 to 77.

The Framers saw Congress as the most dangerous branch, and the one most likely to encroach on the domain of the others. While there were dangers in an independent and powerful executive, the lessons from the Revolutionary War and life under the Articles showed the need for just such an officer. The turbulence of state governments with weak and dependent executives only proved the point. Most agreed that a strong, independent executive was needed. But, how strong?
What is significant for us is the dog that does not bark, the constitutional clauses that are not mentioned by Publius. Not long after the Constitution was approved, Hamilton used the occasion of Washington’s Neutrality Proclamation in 1793 to advance a broad theory of implied executive powers. His position, vigorously challenged by Madison during the Pacificus-Helvidius debates, was that the president has all powers that are not denied to him under the Constitution either expressly or by unambiguous grant to another branch. That approach has been used by subsequent presidents to fuel the expansion of executive power.

Article II is rather short, and the president’s powers few and specific. Beyond that, the boundaries are vague. It was broadly understood that George Washington would be the first president. The general recognition of his propriety and incorruptibility meant that he would have discretion to define the boundaries of the office. Indeed, Washington was expected to do so, and he was well aware of that responsibility. In addition to the oath of office, there are three clauses whose text suggests room for discretion. Those three, the executive power clause, the commander-in-chief clause, and the clause that the president “shall take Care that the Laws be faithfully executed,” have proved to be generous reservoirs of necessary implied executive powers.

Publius spends little time on the commander-in-chief clause, and essentially none on the others. He portrays the role of the president as if he would be confined to leading the troops in military engagements. While Washington, with Hamilton as his aide, actually dressed in military regalia and mounted up to lead troops during the Whiskey Rebellion, they soon delegated that project to General “Light Horse Harry” Lee. That is the least likely role of the president today. Indeed, even during the ratification debates, that was a questionable view not usually advocated, as it frightened republicans by blurring the line between civilian control and military command and was thought likely to lead to the election of “military chieftains.”

The executive power clause is the principal source for the president’s implied or inherent powers, those that the president’s detractors would disparagingly call royal or prerogative powers. The textual significance is that, while Article I says that, “All legislative powers herein granted shall be vested in a Congress …,” Article II declares that, “The executive power shall be vested in a President …”[italics added]. That affirmative grant to the president has to mean something, and –unlike Article I regarding Congress–it has to mean more than the powers mentioned later in the text. The question ever since has been, “Just what does it mean?” Presidents have massaged that ambiguity and the flexibility of the other elastic clauses mentioned to act unilaterally, as necessity demands, usually in military affairs, foreign relations, and national security matters. Executive unilateralism came under particular scrutiny by Congress, the courts, the academy, and the media during the Bush(43) administration, though interest in that topic has slackened since the election of 2008–perhaps not coincidentally.

Not surprisingly, as advocate for the Constitution’s adoption, Hamilton does not spend time defending, or even recognizing, the theory of implied executive powers that he embraced soon thereafter. The enumeration of specific limited presidential powers and Hamilton’s soothing interpretations in Federalist 69 do not give due credit to the possible sweep of the executive office. His next essay presents a more forthright defense of the need for an energetic executive.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 70 is the heart of Hamilton’s investigation of the nature of executive power. Publius returns to “energy,” a theme that he has addressed frequently in his essays as a necessary attribute of government generally, and the Union in particular. As executive power is the essence of government, energy is the essence of executive power. Energy in the executive produces vigor in the administration of law and expeditiousness in response to necessity. Too much energy, however, can threaten republican government and personal liberty. The secret is to find the constitutional version of Aristotle’s golden mean.

The Antifederalists had a lavish panorama of historical examples to illustrate the dangers of energetic executives. They proposed a multiple executive, instead, examples of which were spread throughout history, while others were close at hand in the states. Multiple executives are of several types. One, such as the consuls and tribunes of Rome or the kings of Sparta, are of equal dignity and can veto each other’s acts. Another, more favored by the states and based on the republican variant of the old British model, involves a governor-and-council structure.

There are others, not mentioned in Federalist 70. One is the modern British cabinet model, where ministers hold their portfolio independent of the “prime” minister through election by the party. Formally, they are the monarch’s ministers, but today this is a quaint fiction, as the monarch reigns as head of state, but does not rule. An American version of this can be found in the governments of many states, where various executive officials are elected independent of the governor. Those officials, like the California Attorney General, Secretary of State, and others, derive their powers directly from the state constitution and election by the people, not from appointment by the chief executive.

As anyone who has worked on a committee or sat in a meeting knows, the more people there are, the less of substance gets done, and the exponentially longer it takes to do so. Veterans of faculty meetings can bear particularly melancholy witness to those truths. Hamilton urges that multiplicity is welcome in the legislative department, where deliberation and the “wisdom of the multitude” are valuable to reach a “right” decision and to protect the rights of the minority. Indeed, haste in the passage of laws will result in badly-written legislation with unintended or—if the law is so long and complex that it has not even been read—unknown consequences, as well as in laws that may be against the people’s wishes.

In the executive, however, delays and indecision are damaging. As a member of General Washington’s staff, Hamilton personally must have been keenly aware of the incapacity of the Continental Congress and even the Board of War, its agency, to direct the war effort reliably and effectively. A multiple executive also courts the evils of faction, undermining stability. At the same time, a successful cabal among multiple executives can magnify their danger to liberty.

It is crucial, then, that the executive be unitary, to provide the requisite energy and vigor to accomplish the objectives of government expeditiously and without endangering the respect for law that haphazard and desultory administration brings. There are other benefits from a unitary executive, ones that, at the same time, provide the most effective protections of liberty. Those are transparency and accountability. It has been said that success has many parents, but failure is an orphan. Having a single decision-maker shines the light of responsibility on him: “The buck stops here.” The best protection against abuse by an overly-energetic executive is, predictably, the vigilance of the people expressed at the next election. But they cannot exercise that vigilance when multiple parties are pointing fingers at each other the way that members of Congress do when policies they have been championing become political liabilities. Nor can responsibility readily be gauged when politically tough issues are shunted onto appointed commissions, such as “deficit commissions,” whose “recommendations” are treated as binding.

Another limit on the executive comes through formal restraints. Some are institutional, such as fixed terms and removal through impeachment. Others are more in line with the “auxiliary precautions” Publius defends in Federalist 51 in connection with separation and balancing of powers. Examples are the qualified nature of the veto and the Senate’s role in approving treaties, in both of which the President is engaged in making law. With the exception of the appointment power, however, there are no formal limits on his explicit executive functions.

The objectives of executive government that Hamilton cites are instructive: Protecting against foreign attacks, securing liberty against domestic subversion, protecting property against riots and insurrection, and administering the law in an impartial and constant manner. In this classic political minimalism, one notes the absence of the trappings of the modern administrative Leviathan that has taken over functions best left to other institutions.

Despite the assertions in Federalist 70, the nature of the executive branch was ambiguous when the government convened. Hamilton, a fan of the British political system, contributed to that uncertainty. As Treasury Secretary, he envisioned the cabinet as an approximation of the British system, with the President as chief of state and as someone who presided over the administration of policies determined by rather willful cabinet officials exercising independent authority. Due to his close connection as Treasury Secretary to Congressional policy-making (and his long personal relationship with George Washington), Hamilton envisioned himself as the prime minister in this arrangement. There was some constitutional plausibility to this conception of a moderate multiple executive, as the Constitution provides that Congress can create a limited appointment power in “heads of departments” and sets up the Senate in some ways like the governor-and-council system. The Senate not only votes to approve appointments and treaties, it technically has an “advice and consent” role that could be read as requiring formal Senate participation before the president nominates an officer or makes a treaty.

Several developments arrested any significant movement in that direction. Textually, the Constitution vests the executive power entirely in the President, subject only to specified limitations, a point Hamilton himself urged further in his 1793 Pacificus essays during the debates over the Neutrality Proclamation. Politically, Hamilton left the Cabinet in 1795, reducing his influence, a trend that was accelerated when his patron, President Washington, left two years later. Even while Hamilton was in the Cabinet, Washington was not the type of person content to play a passive role. He favored a vigorous presidency, and it was clear that, while he listened carefully to his officials, he made the decisions. The Senate-as-council role was buried when Washington, after one soured attempt at consultation before treaty negotiations in 1789, refused to set foot in the building again. Washington’s presidency was intended to help define the ambiguous contours of the president’s powers, and he set the office firmly on the course of the unitary executive.

As a functional constitutional matter, the issue was settled over the course of the debate over the president’s power to fire executive officials at will. A presidential removal power is not specified in the Constitution, so it has to be implied from other powers. Though Hamilton wanted a strong executive, he appears to have favored the view that the president’s power to remove officials can only come from his power to appoint. As the latter requires Senatorial consent, so must the former, a position Hamilton endorses in Federalist 77. The reason for his support of what at first blush appears to be a dilution of executive unity is that he liked the British style of government. Presidents could come and go, but, if a new president could not unilaterally remove members of the Cabinet, those members gained political independence. Effectively, that made them the policy-makers and administrators as long as they maintained the confidence of the Senate. With that qualification, Hamilton favored a strong, independent executive branch.

The removal power occupied the first Congress’s attention. The matter was resolved by artful language in a statute that implied that the President had the inherent executive power to remove the secretary of state. While this was a victory for the unitary executive argument, there remained ambiguities. President Andrew Jackson won a clear political victory in favor of the unitary executive doctrine by removing the secretary of the treasury when the latter disobeyed a presidential order, even though Congress had given the secretary the discretion to act as he did. Analogous to Hamilton’s implied executive powers theory of the Pacificus letters, Jackson argued that the appointment and removal powers were both executive powers that, unless expressly limited by the Constitution, belonged to the President as head of the unitary executive branch.

As the removal controversy demonstrates, the unitary executive broadly implicates separation of powers that finds concrete expression in provisions of the Constitution. If those provisions are elastic, such as the executive power clause, the “take care” clause, or the commander-in-chief clause, the line between execution of policy and legislation of policy can become blurred. The need to find limits is matched by the difficulty of doing so. Much depends in specific cases on formal precedent (legislative, executive, and judicial) and customary constitutional practice shaped by broad popular acceptance. For example, the unitary executive theory underlies doctrines of executive immunity and executive privilege. Those concepts are not expressly addressed in the Constitution but are obviously connected to an energetic executive branch and the unitary executive that animates it. Though the Supreme Court did not address executive privilege until 1974, it arose early in the Washington administration, when the President set a precedent followed by almost all his successors. In implied powers cases, the need for action often determines the outcome, and foreign relations, military affairs, national security, and emergencies define their own scope of action.

Despite Jackson’s victory and a long history in support of the unitary executive, controversy still flares occasionally. A recent challenge to the unitary executive theory has involved presidential “signing statements.” These have long been used as expressions of reservation about the constitutionality of a proposed law. Critics argue that the president can veto the bill, if he believes it to be unconstitutional. If the Congress overrides the veto, is the president then bound to enforce the bill? He is obligated to take care that the laws be faithfully executed, but there is also the long tradition of executive discretion in the enforcement of laws. Moreover, if the law invades a presidential power or is otherwise unconstitutional, the president can refuse to enforce this statute.

Laws, however, are often many-layered creations. Why should the president have to veto the whole effort just to avoid enforcing one objectionable part? A signing statement can help. In fact, the signing statement puts everyone on notice about the president’s intentions. They are constitutional because the president as head of the executive branch is independently responsible under the Constitution for the actions of the whole branch in the enforcement of laws.

The unitary nature of the executive also has been challenged by some who cite to the existence of a vast array of “independent” administrative agencies as contrary evidence. Since the 1930s, the Supreme Court has upheld Congress’s power to limit the President’s removal power in regards to officers of independent agencies. Using the unitary executive theory, presidents since Franklin Roosevelt have formally rejected the assertion these agencies are beyond the President’s removal power. Such agencies are performing executive functions and are not otherwise recognized under the Constitution as a fourth branch of government. One may wonder, though, whether any dilution of the unitary executive paradigm is really the problem. The sheer growth of government (of which administrative agencies are the most significant part) is probably more responsible for the dearth of transparency and accountability citizens endure.

Critics of the administrative state see this exception from the application of the general rules for  separation and balance of powers as more evidence that these agencies are unconstitutional. The still-growing reach of the regulatory state assures that the issue will not go away. As the matter involves fundamental and shifting boundaries between the legislative and executive domains, it is thoroughly political and admits of no definitive settlement. But the broad theory of the Constitution has been settled in favor of the unitary executive that Hamilton defends in Federalist 70 and his later writings.

Tuesday, August 3rd, 2010

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

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.